Constitutional Law Bar Exam Outline

Constitutional Law

FEDERAL POWERS

JUDICIAL POWER

• Overview

  • Source: Article III

  • Limit: Actual Cases & Controversies

  • Doctrine: Justiciability, whether lawsuit is capable of judicial resolution as a case or controversy, depends on

    • WHAT is requests (no advisory opinions)

    • WHEN it is brought (ripe & not moot), and

    • WHO brings it (standing) (HEAVILY TESTED)

  • Additional doctrines limit federal court review

    • Political question, sovereign immunity, abstention.

    • Special rules govern Supreme Court Review

• Advisory Opinions

  • RULE: Federal courts may not render advisory opinions, which LACK

    • An actual dispute between adverse parties

    • Any legally binding effect on the parties

• Ripeness & Mootness

  • Ripeness (too early)

    • Rule: federal courts may only decide controversies that are ripe for judicial review

  • Application:

    • Pre-enforcement review of laws are not ripe, UNLESS

      • Substantial hardship in absence of review (more the better)

      • AND

      • Issues in the record are fit for review (more legal than factual the better)

• Mootness (too late)

  • Rule: federal courts may only decide LIVE controversies, ie., plaintiff suffers ongoing injury

  • Application: LIVE IF

    • For injunction or declaratory relief challenged law or conduct continues to injure

    • For damages, plaintiff not made whole from injury

  • Exceptions: though injury has passed, not moot if

    • Injury is capable of repetition but yet evades review because of the inherently limited duration

    • Defendant voluntarily ceases the challenged activity, but may restart at will, or

    • In class actions, ONE plaintiff suffers ongoing injury

• Standing

  • Rule: Plaintiff must have standing to sue, which consists of

    • Injury

    • Causation

    • Redressibility

  • Injury

    • What: almost ANY harm counts

      • Examples: physical, economic, environmental, loss of constitutional or statutory rights

      • NOT: ideological objections or generalized grievances as citizen or taxpayer

        • Examples:

          • Citizen may not sue to force government to obey laws

          • Taxpayer may not sue over how government spends tax revenues

        • Exceptions:

          • Taxpayer challenge to HIS TAX LIABILITY

          • Congressional Spending in violation of Establishment Clause

            • Not executive spending

              • Congress gives general appropriations

            • Not tax credits for contributions to private tuition

    • When: Injury must have occurred or will imminently or soon occur

      • Injunctive or declaratory relief:

        • Must show a likelihood of future harm

• Who: injury must be personally suffered by plaintiff rather than those not before court

  • No 3rd party standing generally

  • Exceptions

    • Close Relationship:

      • Plaintiff injured, 3P unable or unlikely to sue, P can adequately rep 3P

    • Organizations (obo members):

      • Members have standing, members' injury related to purpose of organization, members' participation not requires (not seeking individualized damages)

    • Free Speech Overbreadth (party who's speech can be censored obo those whose speech cannot)

      • SUBSTANTIAL overbreadth in terms of law's legitimate to illegitimate sweep, NOT COMMERCIAL speech

• Legislative Standing:

  • Legislators may challenge acts that injure them personally, rather than the legislature as a whole

• Causation & Redressability

  • Causation:

    • Plaintiff must show that injury is fairly traceable to defendant

• Redressability:

  • Plaintiff must show that favorable court decision can remedy the harm

    • Through money damages or injunction

• Political Question Doctrine

  • Rule: federal courts will NOT decide political questions, ie. questions:

    • Committed by the constitution to the political branches or government, or

    • Incapable of or inappropriate for, judicial resolution

  • Examples

    • Guarantee Clause

    • Foreign Affairs

    • Impeachment Process

    • Partisan Jerrymandering

    • Election & Qualifications

    • Seating of Delegates

• Sovereign Immunity (Eleventh Amendment/Federalism)

• Abstention

  • Federal courts may decline to decide a federal constitutional claim that turns on an unsettled question of state law

    • Ex. EQ claim that depends on meaning of ambiguous new state immigration law

• Federal courts generally may not enjoin pending state court or administrative proceedings

  • Ex. Criminal trial allegedly in violation of Due Process

• Supreme Court Review

  • Final Judgment Rule:

    • Supreme Court only hears a case after there has been a final judgment by the highest state court capable of rending a decision, a federal court of appeals, or (in special statutory situations) a three-district court

• Independent & Adequate State Grounds

  • Supreme Court will not review a federal question if the state court decision rests on an independent & adequate state law ground

    • Independent= separate

    • Adequate= wholly capable

  • Exists if outcome would be the same regardless of how the federal question is decided

LEGISLATIVE POWER

• Overview

  • Source: Article I

  • Limit: Enumerated Powers

    • Unlike states, Congress has no general police power to pass laws

      • Exception: federal land, indian reservations, D.C.

  • Necessary & Proper Clause

    • NOT a basis of legislative power, unless coupled w/ another power

    • Allows Congress to choose ANY RATIONAL means to carry out an enumerated power, as long as not prohibited by Constitution

    • Example: Article 1 gives Congress power to raise & support armies, but not to hold a bake sale.

      • Nonetheless, Congress may choose the means...

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