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