con law

• Judicial Review


  Power of the courts to review the constitutionality of executive actions and of legislation that is adopted by congress or by states or local governments
• Judicial review is not explicit in the constitution - SCOTUS created authority for judicial review
• Marbury v Madison


  Authority of federal courts to review constitutionality of federal executive and legislative actions
• Justiciability


  Refers to a body of judicially created doctrines that define and limit the circumstances under which an Article III federal court may exercise its constitutional authority, including its authority to engage in judicial review
• Justiciability is derived from Art III cases and controversies and some policy considerations
• Justiciable matter


  It possesses a sufficient number of those characteristics historically associated with judicial dispute resolution
• Doctrines of justiciability


  • Standing
  • Ripeness
  • Mootness
  • Political question
• Case and controversy


  When there is an actual dispute involving legal relations of adverse parties and for which the judiciary can provide some type of effective relief
• Judiciary may NOT issue advisory opinions - an opinion issued outside the context of a justiciable case or controversy
• Congress may NOT ask the SCOTUS of the constitutionality of a proposed legislation
• President may NOT ask the court to render an opinion on the legality of pending executive action
• Standing


  Examines the constitutional minimum from the perspective of the individual seeking to invoke the court's authority, typically a PL in a civil suit
• Standing requirements


  Injury in fact + Causation + Redressability
• Standing cannot be waived - can be raised at any time
• Injury in fact


  PL must show that he has suffered a concrete and particularized invasion of a legally protected right
• When the interest or harm is either conceptually or factually too abstract or speculative, it will NOT trigger an Art III authority to adjudicate
• Causation


  Causal link between the claimed injury and the conduct of the D - injury must be fairly traceable to defendant's conduct
• Redressability


  Whether a ruling favorable to the litigant would eliminate the harm to him
• Must make clear the specific nature of the injury and the specific manner in which the injury will be alleviated by the requested relief
• Third-party standing exceptions


  Must meet all standing requirements + Sufficiently close relationship + Injured 3rd party unlikely to assert his own rights
• No PL Can bring claims of others - no generalized grievances allowed
• Taxpayer standing


  Have standing to challenge government expenditures pursuant to statute as violating the establishment clause, but lack standing to challenge fed gov grants of property or religious interest
• Ripeness


  May the federal court grant pre enforcement review of a statute or regulation?
• Mootness


  If events after filing of a lawsuit end the PL injury
• Exceptions to mootness


  • Wrongs capable of repeition but evading review
  • Voluntary cessation
  • Class action suits
• Political question


  Allegations of constitutional violations that the federal court will not adjudicate
• Examples of political questions


  • Cases under the republican form of government clause
  • Challenges to presidents conduct of foreign policy
  • Challenges to the impeachment and removal process
  • Challenges to partisan gerrymandering
• Lower federal courts


  State government cannot be sued in federal court, but state officials can be sued
• Exceptions where state governments can be sued in federal court


  • Consent
  • Waiver (must be explicit)
  • Congress can authorize suits against states when acting pursuant to section 5 of 14th amendment
  • Federal gov can sue state gov
  • State courts may be sued in bankruptcy proceedings or pursuant to laws adopted by congress in raising an army and navy
• Supreme court review


  Writ of certiori - SCOTUS has complete discretion
• Appeals exist only after SC review of decisions of 3 judge federal district courts
• SCOTUS has original and exclusive jurisdiction of suits between state governments
• Case must have final judgement before going to SC review
• Suing state officials


  For injunctive relief, money damages where they are personally liable, but can't be sued if the state will be liable for retroactive damages
• Congress authority to tax


  Must have implied or express authority, no general police power
• Sources of Congress' taxing authority


  • Necessary and proper
  • Taxing, spending powers
  • Commerce clause
• Congress' taxing and spending powers


  May tax and spend for general welfare
• Congress' commerce clause power


  Can regulate interstate commerce, persons or things in interstate commerce, and activity that has a substantial effect on interstate commerce
• 10th Amendment


  All powers not granted in US or prohibited to the states are reserved to the states and the people respectively
• Congress cannot compel state legislative or regulatory activity, but can try to induce state local government to act by putting conditions on federal grants</b>