Bare Bones Con Law Flashcards
Article III JXN
Cases and Controversies
Cases and Controversies Requirements
Standing
Ripeness
Mootness
Political Questions
Standing Requirements
Injury in Fact or likelihood if seeking injunction
Causation–D caused injury
Redressable–favorable court can remedy
Standing Limitations
No generalized greviances Generally no third party standing Exception, person with standing in own right if: Special Relationship Unlikely to assert their own Organizational Standing
Organizational Standing
Organization can assert members rights if:
Members have standing;
Interests are germane to organization; and
Claim or relief does not require member’s participation
Ripeness
Claim must be ripe at all stages
Note: Extreme hardships suffered without pre-enforcement review claim may be ripe
Mootness
Injury ended after filing=moot
Exceptions to Mootness
Capable of Repetition but Evades Review
Voluntary Cessation
Class Action
Political Questions
Challenges to Republican Form of Government Clause
Challenges ti President’s Conduct of Foreign Policy
Challenges to Impeachment or Removal Proceedings
Challenges to Partisan Gerrymandering
Supreme Court Review
Most by Writ of Certiorari
Three Panel Federal Judges
Original and Exclusive JXN for suits between states
Writ of Certiorari
All State Cases must this way
Court of Appeals cases
Final Judgment
will generally only hear if final judgment from lower court
Adequate and Independent
If reversed on federal law and will not change outcome SCOTUS will not hear
Sovereign Immunity
11th Bars suits against states in federal Courts
Sovereign Immunity bars suits against states in state courts or federal courts
Exceptions to Sovereign Immunity
Waivers
14th Amendment (Article V)
Federal Gov sues States
Bankruptcy
Suits Against State Officers
OK if seeking injunctive relive
Suing them individually
Not allowed if state treasury will pay
Abstention
Fed courts may not enjoin pending state proceedings
Federal Legislative Power
Congressional Authority must be express or implied congressional power
No federal police power unless MILD
Necessary and Proper
Congress may do all things which are necessary and proper in carrying out their duties
Article 1 Section 8
Taxing and Spending
May do so for general welfare
Commerce Power
Congress may regulate:
Articles of Commerce
Instrumentalities of Commerce
Economic Activity which has substantial effect on interstate commerce
10th Amendment Limitations
Congress cannot compel state regulations or legislation
Can put conditions on grants as long as they are expressly stated and not unduly coercive
Congressional Delegation of Power
No limit on Congress power to delegate LEGISLATIVE powers
Must have Bicameralism and Presentment to act
May not delegate executive powers
NOTE: no legislative vetos or line item vetos
Federal Executive Powers
Two Types Foreign Policy and Domestic Affairs
Executive Foreign Policy
Treaties–require consent of Senate; will prevail if later than federal statute
Executive Agreement–no consent necessary; federal statute prevails
Broad powers to use troops in foreign countries
Executive Domestic Affairs
Appointment and Removal Powers
Executive Appointments
President appoints ambassadors; federal judges; and officers of US
Congress may vest appointment of inferior officers in President
Congress cannot give appointment power
Executive Removal Power
Unless limited by statute President may fire any executive branch office
For Congress to limit must be office independent from President, i.e. a Special Prosecutor
Congress cannot prohibit but only limit to good cause
Impeachment and Removal
President, VP, federal judges, and officers can be impeached and removed from office for treason, bribery, or high crimes and misdemeanors
Impeachment does not remove from office–trial forthcoming in Senate
Impeachment requires majority in House
Conviction requires 2/3 vote by Senate
Presidential Immunity
All civil suits for actions while in office
Does not have immunity for actions occurred prior to taking office
Executive Privilege
Applies to presidential papers and conversations but must yield to other important governmental interests
Executive Pardon
President may pardon those accused or convicted of federal crimes
Federalism Concepts
Preemption
Dormant Commerce Clause & Privileges and Immunities of Article IV
State Taxation of Interstate Commerce
Full Faith and Credit
Preemption
Based in Supremacy Clause
Express–fed law says it is exclusive in field
Implied if:
Mutually Exclusive–Conflict
Impedes Achievement of Federal Objective–Field
Clear Intent to Preempt State law–Immigration
Dormant Commerce Clause
state and local laws are unconstitutional if places excessive burden on interstate commerce
Privileges and Immunities Clause of Article IV
No state may deny other state citizens privileges and immunities granted to their own
P & I in 14th wrong unless involves right to travel
Application of Dormant and P & I of Art. IV
Ask, does it discriminate against out of states
If no, P & I does not apply; Violates Dormant Commerce clause if burden exceeds benefits on interstate commerce
If yes, violates P & I if discriminates on ability to earn livelihood or fundamental right unless necessary to achieve important governmental purpose; Violates Dormant Commerce clause unless necessary to achieve important governmental purpose
Exceptions to Dormant Commerce Clause
Congressional Approval
Market Participant Exception–may prefer own citizens in receiving benefits from government or in dealing with government owned business
State Taxation of Interstate Commerce
May use tax systems to help in state businesses
May only tax activities if substantial nexus
State taxation of interstate business must be fairly apportioned
Full Faith and Credit
State must give full faith and credit to judgments of other states so long as state had jurisdiction over parties and subject matter, judgment on the merits, and judgment is final
Individual Liberties Structure
Is there governmental action
Application of Bill of Rights
Levels of Scrutiny
Governmental Actors
Constitution applies only to government action
Congress may apply constitutional norms by statute to private conduct, e.g. 13th to prohibit private race discrimination, Commerce Power, 14th
Exceptions to Governmental Actors
Public Function Exception–task traditionally and exclusively done by government
Entanglement Exception–Gov affirmative authorizes, encourages, or facilitates unconstitutional activity
Application of Bill of Rights
Bill of Rights applies directly to Federal Government
Applied to state and local through 14th except solider quartered (3rd), right to grand jury indictment in criminal case (5th), right to jury trial in civil cases (7th), excessive fines (8th)
Levels of Scrutiny
Strict
Intermediate
Rational
Strict Scrutiny
Must be necessary to a compelling governmental interest
Must be the least restrictive means
Burden on the Government
Intermediate Scrutiny
Must be substantially related to an important governmental interest
Burden on Government
Rational Basis
Must be rationally related to important governmental purpose
Burden on Challenger
Individual Rights
Procedural Due Process
Substantive Due Process
Equal Protection
Procedural Due Process
Has there been a deprivation of life, liberty or property
“Loss of significant freedom provided by Constitution or Statute”
Deprivation of Property if entitlement and entitlement not fulfilled
Government Negligence not enough; must be intentional governmental action or reckless action
Procedures Required for Procedural Due Process
Balance the importance of the individual interest, ability of additional procedures to increase accuracy of fact finding, and the governmental interest
Economic Liberties & Takings
Rational Basis will suffice
Takings–government may take private property for public use if provides just compensation
Possessory Taking–gov confiscation or physical occupation
Regulatory Taking–leaves no reasonably economically viable use of property
Contracts Clause
No state shall impair obligations of contracts
Applies only to state/local interference with EXISTING contracts
Interference with private contracts must meet intermediate scrutiny–reasonably and narrowly tailored of promoting important and legitimate public interest
Interference with government contracts must meet strict scrutiny
Substantive Due Process Fundamental Rights
These are Fundamental Rights Marry Procreate Custody of Children Keep Family together Control Child's Upbringing Contraceptive Abortion--note viability distinction Private Consensual Homo Sex Refuse Medical Treatment--Child distinction Bear Arms Travel--foreign travel only requires rational basis Vote
Right to Vote
Poll taxes=unconstitutional
At large is constitutional unless proof discriminatory purpose
Equal Protection Approach
What is the classification?
What level of scrutiny to apply?
Does law meet level of scrutiny?
EP: Race and National Origin
Apply Strict Scrutiny
Prove Racial Classification by face or as applied (discriminatory impact and intent)
EP: Gender Classification
Apply Intermediate Scrutiny
Prove Gender classification by face or as applied (discriminatory impact and intent)
EP: Alienage Classification
Generally, apply strict scrutiny
Rational Basis if concerns self-government or democratic process
Intermediate for undocumented alien children
EP: Legitimacy
Apply Intermediate Scrutiny
Cannot be punitive nature
Where Rational Basis is Used
Age Disability Wealth Economic Sexual Orientation---shouldn't be tested, they are now getting intermediate
First Amendment Concepts
Free Speech Protected v. Unprotected Speech Places for Speech Freedom of Association Freedom of Religion
Free Speech Methodology
Content Based v. Content Neutral Restrictions
Prior Restraints
Vagueness and Overbreadth
Symbolic Speech
Speech: Content Restrictions
Content Based–generally must meet strict scrutiny
Content based laws included subject matter restriction (topic of message) and viewpoint restrictions (depends on ideology)
Content Neutral–generally must meet intermediate scrutiny
Prior Restraints
Judicial order stopping speech before it occurs
Must meet strict scrutiny
Procedurally proper court orders must be complied with until vacated or overturned; if violate barred from later challenging
Vagueness and Overbreath
Vagueness-unconstitutional if reasonable person cannot tell what speech is prohibited and what is allowed
Overbreadth–regulates substantially more speech than constitution allows
Fighting words are unconstitutionally vague and overbroad
Unprotected/Less Protected Speech
Incitement of illegal activity–substantial likelihood of imminent illegal activity and speech directed to cause imminent illegality
Obscenity & Sexually Oriented Speech
Material must appeal to prurient interest; patently offensive, and taken as a whole lacks serious redeeming artistic, literary, political, or scientific value
Obscene & Sexually Oriented Speech
Material must appeal to prurient interest; patently offensive, and taken as a whole lacks serious redeeming artistic, literary, political, or scientific value
Zoning may be implemented for porn stores/movies
Child porn may be completely banned
May not punish private possession unless child porn
Commercial Speech
Advertising for illegal activity, and false/deceptive ads are not protected by First Amendment
Must be narrowly tailored but does not have to be least restrictive
Defamation
Actual malice required of public official
Places for Speech
Public Forum
Designated Public Forums
Limited Public Forums
Non-public forums
Public Forums
Government constitutional required to make available for speech
Must be subject matter and viewpoint neutral, if not apply strict scrutiny
Regulations must be time, place, or manner that serves important government purpose and leaves open adequate and alternative channels of communication
Need not use least restrictive
Designated Public Forum
Government could close but chooses to open
Apply same rules as public forums
Limited Public Forum
Government properties limited to certain groups/dedicated to discussion of only some subjects
Can regulate so long as regulation is reasonable and viewpoint neutral
Non-Public Forum
Government can and do close constitutionally
Can regulate so long as regulation is reasonable and viewpoint neutral
Freedom of Association
Fundamental Right
Laws which punish or prohibit group membership must meet strict scrutiny
To punish must prove person was actively affiliated with group which they knew to be engaging in illegal activities and had specific intent to further those illegal activities (conspiracy ?)
Laws requiring disclosure must meet strict scrutiny
Freedom of Religion
Two Components
Free Exercise
Establishment Clause
Free Exercise Clause
Free exercise clause cannot be used to challenge neutral law of general applicability (Indians tripping balls)
Government may not deny benefits to individuals who quit jobs for religious reasons
Government may not hold religious institution liable for choices it makes as to who will be ministers
Establishment Clause
The Test: Must be secular purpose for law, the effect of which neither advances nor inhibits religion, and no excessive entanglement with religion
Cannot discriminate against religious speech or among religions unless meets strict scrutiny
Government sponsored religious activity in public school is unconstitutional
May provide assistance to religious schools so long as not used for religious instruction
