24. Constitutional Law Flashcards
Establishment Clause
Under the Establishment Clause, government action that PREFERS ONE RELIGIOUS SECT OVER OTHERS violates the First Amendment unless the action is necessary to achieve a compelling interest.
More broadly, the current approach to the Establishment Clause compels the government to pursue a course of neutrality toward religion, and it prohibits the government from directly or indirectly coercing individuals to exercise (or refrain from exercising) their religion.
Establishment Clause Test
TEST: Whether government action that is not neutral is nonetheless permissible depends on whether it accords with history and the understanding of the Founders.
Free Exercise Clause
The Free Exercise Clause forbids the enactment of laws or other state actions that PROHIBIT the free exercise of religion or PUNISH someone on the basis of that person’s religious beliefs.
If a regulation is targeted to a particular religious belief or expression, meaning that the purpose of the government’s action is to negatively affect a particular type of conduct because that conduct is dictated by a religious belief, such a regulation will not be upheld unless the government can show a compelling state interest under the strict scrutiny test.
GOV HAS TO BE NEUTRAL TOWARDS RELIGION
Limitations on Judicial Power
CRAMPS-11
- Case and Controversy
- Ripeness and Concreteness
- Abstention on Constitutional Issues
- Mootness
- Political Questions
- Standing
- 11th Am. and Sovereign Immunity
Case and Controversy Requirement
prohibits advisory opinions where actual controversies may not exist
does not prohibit declaratory judgments where controversy does exist
Standing
plaintiff must have a personal stake in the outcome of the case that is likely to be redressed by the relief sought
injury must be distinct and palpable and must be fairly traceable to the alleged conduct (sufficient threat is ok)
Taxpayer Standing
Flast v. Cohen double nexus test:
(i) logical nexus between taxpayer status and TYPE of legislation attacked
(ii) nexus between taxpayer status and the NATURE of the constitutional infringement alleged
Citizen Standing
generally mere status as a citizen does not confer standing
requires that plaintiff allege some particular injury connected to his status as a citizen
Mootness
case is moot when controversy ceases to exist or plaintiff obtains relief sought after filing suit
Exceptions to Mootness Requirement
- Recurring but Evading Review
- Voluntary Acquiescence (D voluntarily ceases – not automatically moot, D has burden to show it is unlikely challenged conduct will recur)
Ripeness and Concreteness
- threat cannot be merely hypothetical (need substantial likelihood that statute will be enforced/ prosecution will be undertaken)
- adverse positions concretely fixed
Political Questions
function of separation of powers (won’t review policy decisions of other branches)
Powell Test for Political Questions
POWELL TEST:
(i) is there a “textually demonstrable constitutional commitment of the issue to a coordinate political department of government”?
(ii) if so, what is the scope of the commitment?
11th Amendment
there shall be no suit by citizens against any state in federal court for damages (can sue officials for conduct)
Ex Parte Young Doctrine
federal court can enjoin state action that violates the federal constitution or federal law on the theory that unconstitutional action ceases to be legitimate state action (UNCONSTITUTIONAL action is not legit state action)
does NOT apply to violation of state law
Abstention from Constitutional Issues
court should dispose of issues in a case on non-constitutional grounds when possible
court decides dispositive unsettled state law question, abstains from deciding the constitutional issue
Unconstitutional Violation of Separation of Powers
- where there is no constitutional authorization/ action exceeds authorization
- usurpation of power granted to other branch
- improper delegation of one branch to another
Scope of Executive Power
Article II
if congress agrees = SCOTUS reviews broadly
if congress does NOT agree = reviews narrowly
- sign/ veto legislation (no line item veto)
- pardons
- treaties (senate approval)
- appoint ambassadors/ judges/ officers (senate approval)
- convene special sessions of Congress
- enforce/ execute laws
Scope of Legislative Power
- taxing and spending clause
- regulate interstate commerce
- declare war
- raise/ support armies/ provide navy (limited by Appropriations Clause)
- NECESSARY AND PROPER
- no federal “police power”
Legislative Commerce Power
- Congress the power to regulate commerce among the states.
- Federal regulation must be a necessary and proper exercise of that power.
Federal regulation is permitted even if the activity merely “affects” interstate commerce. CANNOT BE PURELY LOCAL/ CANNOT COMPEL ACTIVITY
Legislative Taxing and Spending Power
Congress the power to tax and to spend for the payment of national debts and for the general welfare.
A tax that seriously and unnecessarily burdens a fundamental right, therefore, may be unconstitutional
Regulating Through Taxing and Spending
Can regulate through taxing and spending – “penalty” can be a tax
Is it a tax?
determination of whether a law passed by Congress imposes a tax does not depend on the label given to it by Congress, but rather on its function
Congress’s Delegation of Power
Legislative delegation of power to judicial/ executive branch is only permissible if it includes SUFFICIENT STANDARDS (can be judged for fidelity to legislative will).
Review of Congress’s Delegation of Power
Where there is a broad congressional delegation on a “major question,” the Court will examine whether the agency has
historically asserted such power
and whether there is clear congressional authorization for the power.
10th Amendment
= source of state powers
“The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Supremacy Clause
Constitution/ federal laws = supreme law of the land
Preemption
State action or legislation is “preempted” by federal legislation if there is complete preemption or if there is a “collision” between the two. (Gibbons)
STATES CAN LEGISLATE WITHIN THE GAPS
Either FIELD preemption or CONFLICT preemption
Field Preemption
- fed scheme so pervasive there is a reasonable inference Congress left NO ROOM for states to supplement it
- fed legislation in a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws
- object and character reveals dominant federal interest
Conflict Preemption
the state policy may produce a result inconsistent with the objective of the federal statute
Dormant Commerce Clause
whether a state’s action burdens the flow of interstate commerce
and thereby unconstitutionally interferes with the federal commerce power
Pike Balancing Test
= determines whether state laws place UNDUE burdens on interstate commerce (and thus unconstitutional)
balance degree of burden against the importance of the state interest being promoted by the state law or action
Dormant Commerce Clause Burdens:
state’s interest in health and safety
sufficiently important to justify burden
Dormant Commerce Clause Burdens:
attempts to regulate businesses operating in other states
state CANNOT pass law that attempts to regulate businesses operating in other states
Dormant Commerce Clause Burdens:
discriminates interstate commerce in favor of intrastate
almost always invalid regardless of purpose
Dormant Commerce Clause Burdens:
primary purpose to protect/ promote state’s economic interest
not sufficient (even if it claims to promise health/ safety)
Dormant Commerce Clause Burdens:
if there is a less burdensome alternative available
burden not upheld
DCC Analysis
a. Does the law discriminate against interstate commerce?
b. If not, does the law burden interstate commerce?
1. How substantial is the burden?
2. What is the purpose of the law?
3. Is the law’s purpose important enough to justify the burden?
4. Is there a less burdensome alternative?
Governmental Market Participation Exception for DCC
State and local governments are not restricted by the Commerce Clause when they act as market “participants” rather than as market “regulators.”
LIMIT: Can’t use to regulate downstream market
Privileges and Immunities Clause
“The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States.”
Only applies to FUNDAMENTAL privileges and immunities
DOES NOT APPLY TO ALIENS/ NONCITIZENS/ CORPORATIONS
Fundamental Privileges and Immunities
- right to travel
- right to own property
- right to transact business/ carry on a trade
NOT hunting licenses/ recreational activities
When may state discriminate against nonresident with respect to a fundamental protected right?
only where
its reasons are “substantial” and
the difference in treatment bears a close relationship to the reasons
Limits on State Taxation
A state’s power of taxation may be limited by:
(i) the Commerce Clause,
(ii) the 14th Amendment,
(iii) the Privileges and Immunities Clause, and
(iv) the Import-Export Clause
Commerce Clause Limits on State Taxes
State taxation that unduly burdens or discriminates against interstate commerce violates the Commerce Clause
Privileges and Immunities Clause Limits on State Taxes
The right to pursue one’s trade is protected by the Privileges and Immunities Clause.
If a state tax restricts access to a protected privilege or immunity and is discriminatory against citizens of other states, it is unconstitutional.
14th Amendment Limits on State Taxes
- Due Process Clause (no minimum contacts OR multiple taxation = violates DPC)
- Equal Protection Clause (classification must be rational - state gets broad discretion)
Import-Export Clause Limits on State Taxes
a state may not impose “imposts or duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws”
Contract Clause
prohibits retroactive impairment of existing contracts
DOES NOT APPLY TO INVALIDATE STATE LAW THAT ONLY HAS INDIRECT EFFECTS ON CONTRACTS
a state may not pass a law to ___ its ____ contractual obligations
a state may not pass a law to undo its own contractual obligations
a state may not pass a law that retroactively effects a severe change in contractual circumstances unless . . .
the law is necessary to serve an important and legitimate public interest
OR
to address a broad economic or social problem
Contract Clause: Private K
prohibits only SUBSTANTIAL IMPAIRMENTS of contractual obligations for private contracts
Contract Clause: Burden for Government for Private K Regulation
If it is a substantial impairment,
- must serve important and legitimate public interest and
- is reasonably and narrowly tailored to promote that interest
Contract Clause: Public K
a state or political subdivision cannot legislate to reduce or “undo” its own contractual obligations
Contract Clause: Exceptions (Public K)
where the state has reserved to itself the power to revoke, alter, or amend a contract in the contract itself, a statute or other law,
or when the law is narrowly tailored to serve another legitimate public interest
5th Amendment
= takings clause
private property shall NOT be taken for public use,
without just compensation
Takings Analysis
- Was there a taking? (not merely regulating land use)
- Was the taking for a public purpose? (if no = return of property / if yes = only remedy is “just compensation”)
- What constitutes “just compensation”?
Taking
- a physical occupation of property by the state or condemnation of property
- the denial of all rights in land or substantially all use of land
REDUCTION OF GOV BENEFITS = NOT A TAKING
Zoning and Takings
MERE IMPAIRMENT (ZONING) IS NOT A TAKING UNLESS IT DENIES THE OWNER SUBSTANTIALLY ALL USES OF THE PROPERTY
Reduction of Governemnt Benefits and Takings
REDUCTION OF GOV BENEFITS = NOT A TAKING
Taking: Substantial Regulations that Impair Use of Property
- substantial regulation closely related to substantial public purpose = NOT a taking
- substantial regulation not closely related to public purpose = MAY be a taking
Taking: Public Purpose Requirements
- must be CLOSELY RELATED to the state regulation
- public purpose so long as government reasonably believes that the taking will benefit the public, even if the public benefit is part of a redevelopment plan for economic revitalization
Standard to Challenge Public Purpose Classification
- states get WIDE LATITUDE
- determination that it is a public purpose will not be disturbed unless palpably without reasonable foundation
Just Compensation
- ordinarily money damages
- calculation begins at time use was denied (e.g. date of moratorium)
State Action
AFFIRMATIVE STATE INVOLVEMENT NECESSARY
- state passes law
- leasing public property to private party
- encourages unconstitutional private action
- judicial enforcement
NOT: permission of private action/ granting of license
14th Amendment
“no STATE shall” deprive any person of due process or equal protection of the laws
the plaintiff must allege and prove some “state action” in connection with the deprivation of due process or equal protection
Procedural Due Process Elements
- The presence of state action;
- An adverse effect on a recognized liberty or property interest; AND,
- Notice and a meaningful opportunity to be heard.
Property Interest
must be a vested property right by law or otherwise
tenure ok; temp emp not
Matthews Factors
determines nature/ timing of required notice and opportunity to be heard … CONSIDER:
- the private interest that will be affected by the official action
- risk of an erroneous deprivation of such interest through the procedures used, and the probable value of additional procedural safeguards
- government’s interest (including fiscal/administrative burdens)
Factors to Determine how much Process is Due
a. Are common law safeguards adequate to protect the right, or is additional process needed?
b. Is a pre-deprivation hearing necessary to provide a check against some substantial loss to the individual?
c. Will the requested procedures substantially reduce the risk of an erroneous deprivation of a right?
d. Has there been an historical incidence of abuse of these rights?
Substantive Due Process
prohibits depriving a person of life, liberty, or property without due process of the law
5th = fed gov
14th = state gov
if you win you STOP the state action
State Laws Regulating Business Operations
valid so long as the regulations imposed are rationally related to legitimate gov’t interest
broad discretion to state
Punitive Damages Violation of DPC
award will violate the Due Process Clause of the 14th Amendment if it is “grossly excessive” in relation to state interests in punishing/ deterring
Court examines:
- the degree of reprehensibility of the defendant’s conduct,
- the ratio between the compensatory damages and the punitive damages and
- the difference between the punitive damages award and the criminal or civil sanctions that could be imposed for comparable misconduct
10x actual damages = constitutionally excessive
Privacy / Personal Rights
laws that infringe upon “fundamental rights” may be invalid under the Due Process Clauses of the 5th and 14th Amendments
“Right to Privacy”
- marriage
- same-sex marriage
- procreation
- family relationships
- consensual gay sexual relations
Test for Privacy Rights
The Constitution can protect rights NOT specifically enumerated in its text or in the Bill of Rights if a right is
deeply rooted in the nation’s history and tradition
and is essential to the concept of ordered liberty. [Dobbs]
State Regulation of a Fundamental Right
SUBJECT TO STRICT SCRUTINY
regulation MUST
- serve a compelling state interest, and
- be narrowly drawn so as to accomplish the compelling state interest with as little interference as possible with the fundamental right
Right to Travel
fundamental right
- a classification deemed to “penalize” a person who exercises his or her right of interstate migration = violation if no compelling state interest
Right to Vote
- severe restriction = strict scrutiny
- reasonable non-discriminatory restriction = sufficiently justified by an IMPORTANT state interest
- implied right to have one’s vote count EQUALLY
Strict Scrutiny
narrowly tailored to fulfill a compelling state interest
Limits on Campaign Contributions
intermediate scrutiny
“closely drawn” to match a “sufficiently important” state interest
Limits on Campaign Contributions: Your Own Campaign
cannot be limited
Limits on Campaign Contributions: Someone Else’s Campaign
can be limited
Limits on Campaign Contributions: Someone Else’s Campaign - Indirect Expenditures
cannot limit indirect expenditures – corporations can spend as much as they want to get someone elected
Right of Access to Ballot
restrictions on candidate qualifications must be narrowly tailored to serve compelling state interest
strict scrutiny
Right to Bear Arms
2nd/ 14th Amendment
special standard of review = within the nation’s “historical tradition of firearm regulation” with particular attention given to the practices in place at the time that the relevant amendments were adopted (i.e. 18/19th century) = LIMITS MUST BE HISTORICALLY BASED
Fundamental Rights
- privacy rights (marriage/ homo sex/ procreation)
- right to travel
- right to vote
- right to bear arms
- free speech
- NOT education
Equal Protection
Equal Protection Clause of the 14th Amendment and the Due Process Clause of the 5th Amendment prohibit the denial of equal protection of the laws
APPLIES WHEN PERSONS ARE PUT IN DIFFERENT CLASSIFICATIONS BY A LAW
Degree of Scrutiny Considerations
depends on whether a classification is characterized as:
(a) burdensome to constitutionally protected rights,
(b) inherently suspect,
(c) quasi-suspect, or
(d) neither burdensome nor suspect
Level of scrutiny for classifications that are burdensome to constitutionally protected rights
strict scrutiny
narrowly tailored to fulfill a compelling state interest
Level of scrutiny for classifications that are inherently suspect
strict scrutiny
narrowly tailored to fulfill a compelling state interest
Level of Scrutiny for quasi-suspect classifications
subject-by-subject basis
Generally classification must be substantially related to an important government interest (intermediate scrutiny)
Level of scrutiny for neither burdensome nor suspect classifications
minimal scrutiny RATIONAL BASIS
classification bear some rational relationship to a legitimate governmental interest
Suspect Classifications (3 Kinds)
(1) classifications that are facially discriminatory
(2) classifications that are discriminatory in their application (or that have a discriminatory impact)
(3) classifications that have a discriminatory motive
Facially Discriminatory Classification
one that makes an explicit distinction between classes of persons
considered inherently suspect, and will seldom, if ever, be upheld
Facially Neutral / Discriminatory Application Classification
discriminatory impact, by itself, is not enough to render the classification suspect
classifications that are discriminatory in their application must also be shown to have a discriminatory motive or purpose to be considered suspect
Classifications of Race and Natural Origin
MOST RIGID SCRUTINY
must be shown to be necessary to the accomplishment of some compelling state objective, independent of the social discrimination which it was the object of the 14th Amendment to eliminate
Discriminatory Purpose Burden
satisfied by showing that the legislation was intended to work to the disadvantage of a particular racial group
Affirmative Action
OLD LAW CHANGED BY VERY RECENT CASE
- race or sex may be considered to cure prior discrimination against, or under representation of, an identifiable minority group
- plan must be narrowly tailored
- no inflexible quotas / no blind numerical system
- must be ONE FACTOR of many considered
- states can prohibit affirmative action
Classification of Alienage
state/ local = strict scrutiny
federal = rational basis
Classification of Gender
“stiff intermediate”
closely reviewed and will not be upheld if they reflect “the baggage of sexual stereotypes”
separate but equal educational institutions are not permitted
Classification of Illegitimacy
“intermediate lite”
Court looks to the purpose behind the classification, and will not uphold classifications intended to punish the offspring of illicit relationships
Minimal Scrutiny / Rational Basis
2-step analysis:
(a) what is the purpose of the classification; and
(b) is there some connection between the classification and the purpose?
classification need not be the best method for promoting the state’s interest nor completely solve the problem
WEALTH/ AGE
Content Regulation of Speech
impermissible content regulation either punishes one type of speech over others, or seeks to regulate based on the “message” contained in the speech
Exceptions to Content Regulation of Speech
- advocating lawless conduct
- false/ deceptive commercial speech
- public EEs in some circumstances
- obscenity
- fighting words
Political Speech
highest level of protection - may not regulate unless the regulation is narrowly tailored to serve a state interest of the highest order
EXCEPTION: speech advocating lawless conduct (must be at least some possibility that the speech will result in the illegal conduct advocated)
Speech Advocating Lawless Conduct
Brandenburg Test:
Gov can regulate if speech is:
a) Directed to imminent lawless action AND
b) Likely to incite or produce such action (SILLA Factors)
Likelihood Factors for Speech Advocating Lawless Conduct
Likelihood factors (SILLA):
- seriousness of advocated conduct
- influence of speaker
- listeners
- location of speech
- aggravating circumstances increasing likelihood of violence
Commercial Speech Test
Court tolerates greater restrictions on commercial speech than other speech when the restriction is necessary to promote a substantial state interest, and provided there is a “reasonable fit” between the regulation and the state interest at stake
subject to reasonable restrictions as to the time, place and manner of the speech
FULL PROTECTION WHEN CORP ENGAGES IN POLITICAL SPEECH
Public EE’s Free Speech Rights
1) The speech must relate to a matter of “PUBLIC CONCERN” – speech that relates solely to private interests is not protected in the public workplace
2) if public concern - gov must show that its interest in efficiently delivering public services outweighs the employee’s free speech rights
3) OR gov can show that a negative employment decision would have been reached anyway for reasons unrelated to the employee’s speech
Obscenity
not protected by 1st amendment
Miller Test:
a) The work must be such that “the average person applying contemporary community standards” would find that, taken as a whole, it appeals to the prurient interest
b) The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law; and
c) The work, taken as a whole, lacks serious literary, artistic, political or scientific value
Fighting Words
not protected by 1st amendment
speech that is likely to create a breach of the
peace
Prior Restraint
gov must wait until speech occurs before acting
EXTREME cases (military code release)
Time/ Place/ Manner Restrictions
reasonable restrictions permissible
- must not be thinly-veiled content restrictions AND
- must be no greater than necessary to achieve the government’s stated purpose
+
- license/ permit OK if no unfettered discretion
- cant restrict simply for annoyance
Limited Public Forum / Nonpublic Forum
gov may regulate speech in such a forum to reserve the forum for its intended use IF:
a) Viewpoint-neutral AND
b) Reasonably related to a legitimate government purpose
Symbolic Speech
CONDUCT, by itself, usually is not protected by the 1st Amendment
protected IF:
a) It is combined with protected speech OR
b) It constitutes “symbolic speech” by itself
can regulate to protect important gov interest - degree depends on the importance of gov interest in regulating non-speech interest (armbands ok/ burning draft cards not)
no prohibition of political expression but can prosecute cross burnings if done to intimidate another
Overbreadth
statute is unconstitutionally overbroad if it restricts protected speech as well as unprotected speech
to successfully attack = regulation must reach expression within the protection of the 1st Amendment
Vagueness
statute is unconstitutionally vague if it restricts 1st Amendment expression but fails to provide an ascertainable standard of acceptable conduct
- related to due process: if a person cannot tell what speech is subject to regulation, then the person is likely to avoid engaging in protected speech as well (CHILLS CONSTITUTIONALLY PROTECTED SPEECH)
Freedom of Association
“the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”
Freedom of the Press
no more protection than otherwise granted by 1st amendment (but matter of debate)
Free Exercise Carveouts
- employment discrimination laws to a decision by a religious group to fire one of its ministers or teachers
- unemployment compensation programs that deny benefits to a person who lost a job or refused to accept an available job for reasons based on a sincerely-held religious belief
NOT Violative of Establishment Clause
(1) employment of a chaplain by a legislature to open its session with prayer
(2) town boards can begin meetings with a non- discriminatory prayer by clergy where there is no coerced participation
(3) long-standing monuments with historical significance can remain in place
Violates the Establishment Clause
- prayer and Bible reading in public schools are invalid as an impermissible establishment of religion (even if called moment of silence/ voluntary)
- state tax exemption that is available only to religious organizations or religious activities
Free Exercise/ Government Benefit Programs
A state may not limit eligibility for a generally available government benefit to nonreligious organizations.
Even if not required to create the benefit, cannot exclude otherwise qualified individual/institution based solely on the basis of their religion status. (NO COMPELLING INTEREST)
