Con Law - Essay

  1. Standing
    • In order to have standing, the plaintiff must show that has or will be directly and personally injured as a result of allegedly unlawful government action.
    • The plaintiff must also show that their grievance can be redressed by a decision in their favor.
  2. Third Party Standing
    • A claimant with standing in their own right may also assert the right of a third party if it is

    • - difficult for the third party to assert their own rights, or
    • - a special relationship exists (doctor asserting patent rights)
  3. Organizational Standing
    • An organization has standing if
    • - there is an injury to its members,
    • - the injury is related to the organization’s purpose,
    • - and individual member participation in the lawsuit is not required.
  4. Taxpayer Standing
    A taxpayer generally has no standing to challenge government expenditures.
  5. Ripeness
    A statute or regulation is not entitled to review prior to enforcement unless plaintiff will suffer some harm or immediate threat of harm.
  6. Mootness
    • A case is moot unless a real controversy exists at all stages of review.
    • The mootness requirement is not required for
    • - matters capable of repetition,
    • - voluntary cessation by the defendant,
    • - and class actions with viable claims by at least some class members.
  7. Abstention
    • Federal courts will abstain from resolving claims based on

    • - an unsettled question of state law
    • - or pending state criminal proceedings without proof of bad faith prosecution.
  8. 11th Amendment
    • The 11th Amendment prohibits federal courts from hearing private party claims against a state government,

    • Unless:
    • - the defendant state consents,
    • - the claim is personally against a state officer,
    • - or state immunity is removed by congress under the 14th Amendment.
  9. Necessary and Proper Clause
    Congress has the power to make all laws necessary and proper to carry out the power vested in the federal government.
  10. Spending and Taxing Power
    Congress has the power to tax and spend for the general welfare and common defense.
  11. Commerce Clause
    • Congress may regulate

    • - channels
    • - and instrumentalities of interstate commerce
    • - as well as economic activities that have a substantial effect on interstate commerce.
  12. Congress’s Delegation of Powers
    • Congress may delegate legislative powers but may not delegate executive powers to itself or its officers.

    • Legislative vetos – control of executive actions without bicameralism or presentment – are invalid.
  13. Presidential Immunity
    The president has absolute immunity from civil suits for money damages for actions while in office. However, the President does not have immunity for actions that occurred prior to taking office.
  14. Presidential Domestic Power
    • Where the President acts with the express or implied authority of Congress, his authority is at its maximum.

    • If the President acts where Congress is silent, his actions will be upheld unless it ursurps the power of another branch of government.
    • If the President acts against the express will of Congress, he has little authority and his action is likely invalid.
  15. Presidential Power over military
    As commander in chief of the Army, the President may act militarily in actual hostilities against the US without congressional declaration of war.
  16. Presidential Power in Foreign Affairs
    • The president has power to conduct foreign relations.
    • Executive agreements between President and the head of a foreign country can be used for treaty purposes and do not require the consent of the Senate. Such agreements cannot conflict with federal laws.
  17. Full Faith and Credit
    • States must give full faith and credit to judgments of courts in another state as long as

    • - the court had jurisdiction over the parties and the subject matter
    • - the judgment was final and on the merits.
  18. Dormant Commerce Clause
    • A state law that burdens interstate commerce but does not discriminate against out-of-staters, the dormant commerce clause is not violated unless the law’s burdens exceed its benefits.

    • If a state law burdens interstate commerce and discriminates against out-of-staters, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose.
  19. Market Participant Exception to Dormant Commerce Clause
    However, a state or local government may give preference to its own citizens in providing government benefit programs or when dealing with government owned-businesses.
  20. Privileges and Immunities Clause
    • A state law violates the privileges and immunities clause of Article IV if it

    • - discriminates against out-of-staters with respect to
    • - civil rights, livelihoods, or important economic activities,
    • - unless it is necessary to achieve an important government purpose.
    • This privilege does not protect corporations or aliens.
  21. Procedural Due Process
    • The due process clause of the 5th / 14th amendment prohibits intentional or reckless deprivation of

    • - life,
    • - liberty (freedom provided by the Constitution or statute)
    • - or property (entitlement to a benefit)
    • without due process.

    • Adequate procedures are determined by evaluating the balance between

    • - the individual’s interest
    • - the ability for additional procedures to increase the accuracy of the outcome
    • - and the government’s interest
  22. Takings Clause

    - What is a taking?
    - Temporary denial ?
    - Level of Scrutiny ?

    The government may take private property for public use if it acts out of reasonable belief that the taking will benefit the public provides just compensation in the form of reasonable market value.

    • Government regulation which leaves no reasonable economically viable use of the property is a taking.
    • Temporary denial of use of property is not a taking as long as the action is reasonable.

    • Takings are scrutinized under the rational basis test.

  23. Contract Clause
    The contract clause prohibits state and local laws from substantially impairing a party’s right under an existing contract unless the law is reasonably and narrowly tailored to promote an important and legitimate public interest.
  24. Abortion Right
    - Pre vs Post viability
    - Notice / Consent
    - Waiting period
    - Partial birth ban
    • Prior to viability, states may not prohibit abortions or impose an undue burden on the ability to obtain abortions.

    • After viability, states may prohibit abortions unless necessary to protect the woman’s life or health.
    • Prohibition of partial birth abortions – OK
    • 24 Hr Waiting period – OK
    • Licensed physician requirement – OK
    • Spousal Consent / notification – OK
    • States may require parental notification or consent for unmarried minors so long as there is an alternative procedure of approval by a judge who finds that an abortion is in the minor’s best interests or that she is mature enough to decide for herself.

Card Set
Con Law - Essay
Cal Bar Essay Rule Statements - Con Law