You are on page 1of 19


STANDING Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication Requirements for Standing Injury: the plaintiff must allege and prove that he or she has been injured or immediately will be injured o Plaintiff must have personally suffered the injury o If seeking injunctive or declaratory reliefplaintiff must show likelihood of future harm Causation: plaintiff must allege and prove that the defendant caused the injury sustained Redressability: plaintiff must show that a favorable court ruling is likely to remedy the injury

THIRD-PARTY STANDING Plaintiff cannot assert claims of others who are not before the court Exceptions: o 3rd party standing allowed if there is a close relationship between plaintiff and the injured third party o 3rd party standing is allowed if the injured party is unlikely to be able to assert his or her own rights

claim Neither the claim nor relief requires participation of individual members

STANDING AS AN ORGANIZATION Organizations have standing to sue on behalf of their members if: The members would have standing to sue individually The purpose of the organization are related to the interests involved in the


Plaintiff must not be suing solely as a citizen or taxpayer interested in having the government follow the law Exception: o Taxpayers have standing to challenge government expenditures as pursuant to federal statutes as violating the Establishment Clause

RIPENESS Ripeness is the question of whether the federal court may grant pre-enforcement review of a statute or regulation (i.e. Is the claim being brought too early?) Criteria for determining Ripeness: o Hardship that will be suffered without pre-enforcement review (i.e. criminal penalties or large economic fines) o The fitness of the issue and the record for judicial review

MOOTNESS A case becomes moot, and must be dismissed, if events after the filing of the lawsuit end the plaintiffs injury Exceptions: o Capable of repetition yet evading review (Roe) o Voluntary cessation by the defendant of the offending practice but is free to resume o Class Action Suits If the named plaintiffs claim becomes moot, case will not be dismissed as moot as long as one member of the class has an ongoing injury POLITICAL QUESTIONS DOCTRINE Political questions are those issues that are: Constitutionally committed to another branch of the government OR Are inherently incapable of judicial resolution Political questions include: The republican form of government clause Challenges to the Presidents conduct of foreign policy Challenges to the impeachment and removal process Challenges to partisan gerrymandering o Where political parties draw election districts to maximize FEDERAL JUDICIAL POWER their seats for their respective parties

11th AMENDMENT: SOVEREIGN IMMUNITY o o o o o o 11th Amendment bars suits against states in federal courts. Prohibition extends to: Actions where state is named as a party Actions where state will have to pay retroactive damages Actions in state courts or federal agencies against state governments Prohibition does not extend to: Actions against local governments Actions by the United States Proceedings in Federal Bankruptcy courts

EXCEPTIONS TO SOVEREIGN IMMUNITY States may be sued under the following circumstances: Where the state expressly or explicitly waives sovereign immunity

If the suit is brought pursuant to federal laws adopted under section 5 of the 14th Amendment o Congress cannot authorize suits against states under other constitutional provision (14th A passed after 11th A and so clear that Congress intended to remove immunity) o o Federal government may sue state governments Suit against state officers are allowed: For injunctive relief (prospective damages allowed) For money damages to be paid personally by state officer

JURISDICTION OF THE SUPREME COURT Original Jurisdiction of the Supreme Court SC has original and exclusive suits between state governments

o o

Appellate Jurisdiction of the Supreme Court SC has appellate jurisdiction over all case to which federal power extends Cases can come to the SC in one of 2 ways: By Writ of Certiorari (discretion-based) Cases from the US Court of Appeals Cases from state courts By Appeal (No discretion; Must hear case) Decisions of three-judge federal district courts

SUPREME COURT REVIEW OF STATE COURT DECISIONS Decisions of state courts come to the Supreme Court by writ of certiorari. For the SC to review a state court decision, it must be: Must be a final judgment of the highest state court There must not be an independent and adequate state law ground for the decision o Independent: decision is not based on federal case interpretation of identical federal provisions o Adequate: fully dispositive of the case



FEDERAL LEGISLATIVE POWER: SOURCE OF POWER Congress must have either the express or implied power to act Express powers are those enumerated in the Constitution o Congresss power to tax and spend for the general welfare Include: Commerce, Spending, Taxing, Taking Property, Citizenship, Civil Rights, Foreign Affairs, War, Elections Implied powers are all auxiliary powers necessary and proper to carry out all powers vested in the federal government (for executing any power granted to any branch of the federal government) o Congresss necessary and proper power must be used in conjunction with another federal power E.g. Congresss investigatory power is implied FEDERAL LEGISLATIVE POWER: TAXING AND SPENDING POWER Taxing Power Congress has the power to tax; tax will be upheld if o They bear some reasonable relationship to revenue production OR o If Congress has the power to regulate the activity taxed Neither Congress nor the states may tax exports to foreign countries Spending Power Congress may spend to provide for the common defense and general welfare May be for any public purpose

FEDERAL LEGISLATIVE POWER: COMMERCE POWER Under the Commerce Clause, Congress may regulate:

The channels of interstate commerce The instrumentalities of interstate commerce Economic activities that have a substantial effect on interstate commerce Intrastate activities o Economic or Commercial Activities (growing wheat or medical marijuana for personal consumption) Regulation will be upheld if the activity in aggregate substantially affects interstate commerce o Non-economic Activities (possession of guns in school zones) Regulation will be upheld if it can be factually shown that the activity has a substantial economic effect on interstate commerce (not based on cumulative effect)

FEDERAL LEGISLATIVE POWER: CIVIL RIGHTS POWER o Congress may not create new rights or expand the scope of the rights Congress may act only to prevent or remedy violations of rights Laws must be proportionate and congruent to remedying constitutional violations

FEDERAL LEGISLATIVE POWER: OTHER POWERS Citizenship: Congress may establish uniform rules of naturalization; Congress has plenary power over aliens Property Power: Congress has the power to dispose of and make rules for territories and other properties of the US o No express limitation on Congresss power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under the Constitution Admiralty Power: Congresss admiralty power is plenary and exclusive unless Congress leave maritime matters to state jurisdiction War-Related Powers: Congress has the power to declare war, raise, and support armies and provide for and maintain a navy as well as regulate the economy during war and in the post-war period to remedy wartime disruptions Congress also has the power to: Coin $ and Fix Weights and Measures, Patent/ Copyright Power, Bankruptcy Power (non-exclusive), and Postal Power NO FEDERAL POLICE POWER

10th AMENDMENT: LIMIT ON CONGRESSIONAL POWER 10th Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people

Congress cannot compel (commandeer) state regulatory or legislative action Congress can induce state government action by putting strings on grants as long as the conditions are expressly stated and relate to the purpose of the spending program (inducement through grants or funding) Congress can prohibit harmful commercial activity by state governments

FEDERAL LEGISLATIVE POWER: DELEGATION OF POWERS o Congresss ability to delegate powers No limit exists on Congresss ability to delegate legislative power Legislative vetoes and line-item vetoes are unconstitutional Congress may not delegate executive power to itself or its officers

and o

FEDERAL LEGISLATIVE POWER: CONGRESSIONAL ACTS For Congress to act: There must always be bicameralism (passage by both the house and the senate) Presentment (presenting the bill to the president to sign or veto) President must sign or veto bill in its entirety


FEDERAL EXECUTIVE POWER: FOREIGN POWERS (TREATY AND EXECUTIVE AGREEMENTS) Treaties Agreements between the US and a foreign country that are negotiated by the President and effective when ratified by the Senate Prevail over state laws If treaty conflicts with a federal statute, the one adopted last in time controls Treaty is invalid if conflicts with the US Constitution Executive Agreements Agreement between the US and a foreign country that is effective when signed by the President and the head of a foreign nation Can be used for any purpose Prevail over conflicting state laws EA never prevail over conflicting federal laws or the Constitution

FEDERAL EXECUTIVE POWER: DOMESTIC POWERS Federal Executive Domestic Powers include: o Appointment and Removal o Pardon Power o Veto Power o Power as Chief Executive Acting with express or implied power from Congress (authority at maximum) action is likely valid Acting where Congress is silent action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks Acting against the will of Congress (authority at its minimum) action is likely invalid (e.g. refusing to spend congressionally appropriated funds)

EXECUTIVE POWER: APPOINTMENT President has the power to appoint: Ambassadors Federal Judges

Officers of the US Congress may vest the appointment of inferior officers in the President, heads of departments, or the lower federal courts Inferior officers: officers that can be fired by US officers Congress may not give itself or its officers the appointment power EXECUTIVE POWER: REMOVAL Unless limited by statute: President may fire any executive branch officer Congress may limit removal power only in offices where independence from the President is desirable Such as the independent counsels office or the special prosecutor Congress cannot prohibit removal and can only limit where there is good cause

EXECUTIVE POWER: PARDON President has the power to pardon those accused or convicted of federal crimes Presidents can never be pardoned themselves for crimes leading to impeachment Only federal crimes can be pardoned (not state crimes) Pardon extends only to criminal liability; does not extend to civil liability IMPEACHMENT AND REMOVAL FROM OFFICE The President, Vice President, federal judges, and officers of the US can be impeached and removed from office for: Treason Bribery High Crimes Misdemeanors Impeachment alone does not remove a person from office Impeachment by the House of Reps requires a majority vote; conviction in the Senate requires 2/3 vote

EXECUTIVE POWER: PRESIDENTIAL IMMUNITY & PRIVILEGE President has absolute immunity to civil suits for money damages for action while in office

President does not have immunity for actions that occurred prior to taking office If presidential aids have exercised discretionary authority in a sensitive area, they may share in the immunity for suits brought concerning that area President has executive privilege for presidential papers and conversations The President has a privilege to keep certain communications secret (National security secrets are given great deference by the court Exception: o Privilege must yield to other important government interests (i.e. the need for evidence in a criminal trial)


PREEMPTION Preemption is grounded in the Supremacy Clause Supremacy Clause: Constitution and laws and treaties made pursuant to it are the supreme law of the land Preemption can be express or implied Express Preemption: o Federal statute expressly states that federal law is exclusive in a field Implied Preemption: o If federal and state laws are mutually exclusive, federal law preempts state law o If state law impedes the achievement of a federal objective, federal law preempts state law o If Congress evinces a clear intent to preempt state law, federal law preempts state law States may not tax or regulate federal governmental activity due to Intergovernmental immunity DORMANT COMMERCE CLAUSE DOCTRINE Dormant commerce clause refers to the negative implications of the Commerce Clause (where Congress has not acted) If a state law burdens interstate commerce, it violates the dormant commerce clause unless it is: o Necessary to achieve an important government purpose (heavy burden) Necessary requires the absence of less discriminatory means Important government interest can never be to protect in-staters at the expense of out-of-staters

EXCEPTIONS TO THE DORMANT COMMERCE CLAUSE Congressional approval Market-participant Exception A state or local government may prefer its own citizens in receiving Benefits from government programs OR In dealing with government-owned business STATE TAXATION OF INTERSTATE COMMERCE

States may not use their tax systems to help in-state businesses State may only tax activities if there is a substantial nexus to the state State taxation of interstate businesses must be fairly proportioned

PRIVILEGES &IMMUNITIES CLAUSE OF ARTICLE 4 States that no state may deny citizens of other states the privileges and immunities of citizens of other states Applies only to discrimination against out-of-staters Discrimination must be with regard to civil liberties or important economic activities (i.e. the ability to earn a living) Corporations and aliens cannot use the P&I clause Standard applied o Discrimination will only be upheld if necessary to achieve an important government purpose (no less discriminatory means) The only interest that has been held to satisfy this standard is the preservation of natural resources FULL FAITH AND CREDIT CLAUSE Courts in one state must give full faith and credit to judgments of courts in another state, so long as: The court that rendered the judgment had jurisdiction over the parties and the subject matter o Personal jurisdiction and subject matter jurisdiction The judgment was on the merits The judgment is final


STATE ACTION REQUIREMENT The Constitution applies only to government action State action is satisfied if: The government is acting itself through statute or regulation Private conduct does not need to comply with the Constitution Exceptions (where private conduct must comply with the Constitution): o Public Function exception: Where a private entity is performing a task traditionally and exclusively done by the government o Entanglement Exception: Constitutional norms apply to private action if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity APPLICATION OF THE CONSTITUTIONAL NORMS TO PRIVATE CONDUCT Congress, by statute, may apply constitutional norms to private conduct. Presently constitutional norms may be applied to private conduct through: 13th Amendment o To prohibit private race discrimination through Congresss broad power under the 13th A to prohibit racism Congresss Commerce Power can be used to apply constitutional norms to private conduct o E.g. Civil Rights Act of 1964 Congress cannot use section 5 of the 14th A to regulate private action (state action required) APPLICATION OF THE BILL OF RIGHTS Federal Government The Bill of Rights applies directly only to the federal government State and Local Governments: Bill of Rights is applied through its incorporation into the DP clause of the 14th A (selective incorporation) o Exceptions: 2nd A (right to bear arms) 3rd A (right not to have soldier quartered in home) 5th A (right to jury in civil cases) 8th A (right against excessive fines)

o o o is met Government sponsored religious activity in public schools violates the Establishment Clause o Government may give assistance to parochial schools as long it is not used for religious instruction

FREEDOM OF RELIGION: ESTABLISHMENT CLAUSE The Establishment Clause prohibits laws respecting the establishment of religion Test for determining if government action violates the Establishment Clause: There must be a secular purpose for the law The effect must be neither to advance nor inhibit religion There must not be excessive entanglement with religion Government may not discriminate against religious speech unless strict scrutiny


intent What standard of review (scrutiny) is applicable? Strict Scrutiny race, national origin, alienage, or fundamental rights (right to travel, voting rights) Intermediate Scrutiny gender, legitimacy (non-marital children), undocumented alien children Rational Basis age, disability, wealth, economic, sexual orientation, and alienage classifications related to self government and the democratic process Is the standard met? Strict Scrutiny necessary to achieve a compelling government purpose Intermediate Scrutiny substantially related to an important government interest Rational Basis rationally related to a legitimate government interest

EQUAL PROTECTION: ANALYSIS 1) What is the classification? Facially Discriminative Facially Neutral requires proving discriminatory impact and discriminatory


Applicable Standard: o Strict scrutiny requiring the government prove that there is a compelling government interest in the classification and that the means chosen are narrowly tailored such that no less restrictive means exist Invidious v. Benign Classifications: o No distinction between classifications meant to benefit minorities (benign classifications) and classifications harming minorities (invidious) both adjudicated under strict scrutiny Numerical set-asides/ quotas require clear proof of past discrimination Higher Education: o Educational institutions may use race as a factor in admissions (diversity in higher education is a compelling government interest) but cannot assign points to race

GENDER CLASSIFICATIONS Applicable Standard: o Intermediate scrutiny is used which requires that the government prove that they have an important government interest and the means chosen is substantially related to the interest Gender Classifications Benefitting Women: o Adjudicated according to intermediate scrutiny o If classification is based on role stereotype, it will not be allowed (i.e. only women are able to get alimony) Gender classifications designed to remedy past discrimination and differences in opportunity will be allowed o i.e. Social Security can use a different formula to calculate benefits for women to compensate women for past wage discrimination

ALIENAGE CLASSIFICATIONS o o Applicable Standard: Generally strict scrutiny is used Exceptions to the Use of Strict Scrutiny: Rational basis used for alienage classification that concern self-government and

the democratic process Govt. may discriminate against non-citizens in voting, serving as a juror, employment as police officer, teacher, or probation officer o Rational basis is used for congressional discrimination against aliens o Intermediate scrutiny is used for discrimination against undocumented alien children


FUNDAMENTAL RIGHTS ANALYSIS When a law or government action limits the liberty of all persons to engage in some activity, the standard used is determined by whether the limitation affects a fundamental right When a fundamental right is limited The law or action is evaluated under Strict Scrutiny All other cases Rational basis is applied Fundamental Rights include: Privacy, Interstate Travel, Voting, and 1st Amendment rights


PROCEDURAL DUE PROCESS: DEFINITIONS Procedural DP requires that the government follow certain procedures before depriving a person of life, liberty, or property (must be intentional government action) Deprivation of Liberty: Occurs if there is the loss of a significant freedom provided by the Constitution or a statute E.g. Institutionalization, violation of a persons Constitutional rights Harm to a persons reputation is not a loss of liberty Deprivation of Property: Occurs if there is an entitlement and that entitlement is not fulfilled Entitlement: reasonable expectation to continued receipt of a benefit

o o

PROCEDURAL DUE PROCESS ANALYSIS Has there been a deprivation of life, liberty, or property? o If Yes: the procedures that must be supplied by the government in order to comply with DP is determined by balancing: Importance of the interest to the individual Ability of procedures to increase the accuracy of fact-finding The governments interest o If No: The government need not provide procedural due process