Con Flashcards
Nonstanding requirements
-Ripeness–sufficiently matured to warrant a decision
-Not moot
Standing requirements
-Injury in fact
-Causation
-Redressability
Causation definition
Traceable to D’s challenged conduct AND not attributable to a third party
Redressability definition
Favorable ruling would eliminate P’s harm
Zone of interests
Injury in fact–was P’s injury within the “zone of interests” that Congress meant to protect with the statute?
Third party standing requirements
-P has suffered injury AND
-T unable to assert own rights OR P’s injury adversely affects P’s relationship with T
Organizational Standing
-Members have injury in fact that would give them standing on their own behalf
-Members’ injury related to org’s purpose
-Neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit
Taxpayer standing?
-Generally no
-Exception: Challenge fed appropriation and spending measures IF measure (1) was enacted under Congress’s taxing and spending power AND (2) exceeds specific limitation on the power (Establishment Clause)
Requirement for SCOTUS to hear state court case
-NEED judgment turned on federal grounds
-REFUSE IF “adequate and independent” nonfederal grounds to support the state decision
Political questions
-Con authority give to non-Jud branch OR
-Judicial process cannot resolve or enforce the question
11A limit
Fed Ct cannot hear private claim against State Gov
Sovereign immunity
-Bars private claim against State Gov in State Ct
-Bars private claim against State brought in another State’s Ct UNLESS D State consents
11A/sovereign immunity for local gov?
No
Interstate Commerce Definition
-Any activity affecting two or more states
-Transportation or traffic across state lines
-Anything that in the aggregate has a substantial effect on interstate commerce
Types of Interstate Commerce
-Channels
-Instrumentalities
-Activities that have substantial effect
Line item veto
No; POTUS can approve or veto whole bill, can’t edit the bill
Non-self-executing treaties
-Treaty that needs Congress legislation to effectuate its ends
-NOT law until Congress acts
Youngstown standard
-Maximum POTUS authority: IF express or implied Congress authorization THEN action likely valid
-Twilight POTUS authority: IF no Congress authorization THEN action valid UNLESS action infringes on another branch’s powers OR prevents another branch from exercising its powers
-Minimum POTUS authority: IF POTUS acts against express will of Congress THEN likely invalid
Field preemption
IF Congress attended to occupy the entire field THEN no state or local regulation
Fed can regulate States through Spending Power IF the conditions
(1) are clearly stated,
(2) relate to the purpose of the program, AND
(3) are not unduly coercive
Privileges AND immunities clauses
14A: protects US citizenship
Article IV: prohibits a state from discriminating against nonresidents w/r/t fundamental rights (commercial activities AND civil liberties)
What activities does Article IV Privileges AND Immunities Clause protect?
-Right to pursue livelihood
-Creditor priority
-Licensing
-Taxes against nonresidents
-Hiring preference for residents
-Civil liberties
Standard for state to discriminate against nonresident
-Nonresidents cause or are part of the State’s problem
-No less restrictive means
-Necessary to achieve an important government purpose
14A Privileges OR immunities clause
States may not deny citizens
-right to petition Congress to redress grievances
-right to vote for Fed
-right to enter public lands
-right to interstate travel
Dormant Commerce Clause
State/local gov can regulate interstate commerce IF:
-Congress has not enacted laws on the subject
-State/local law does not discriminate against out-of-state competition to benefit local interests
-State/local law is not unduly burdensome
When is nondiscriminatory state/local commerce law valid?
Nondiscriminatory law invalidated ONLY IF burden on interstate commerce outweighs the promotion of legitimate, nondiscriminatory local interest
21st Amendment
-State gov controls importation of liquor and liquor sales
-Under Commerce Clause, State cannot give too much economic preference to local liquor manufacturers
How to analyze commerce question?
(1) Is there fed leg that supersedes state reg?
(2) Is there fed leg that occupies the field?
(3) Does fed leg authorize otherwise impermissible state reg?
=>IF NO
(4) Does state leg discriminate against OR place undue burden on out-of-state commerce?
(5) IF SO, need important state interest AND no reasonable nondiscriminatory alternatives
OR
State is a market participant
14A Equal Protection applies IF
-Gov action is based on suspect class OR
-Gov action burdens a fundamental right
Con rights NOT applicable to states
3A quartering troops
5A right to grand jury indictment in crim cases
7A right to jury trial in civil cases
14A applies to states or fed?
States
14A guarantees
Life, liberty, property, due process, equal protection
14A applies to private entity IF
State is “significantly involved” in the private entity (beyond mere granting of license or providing essential services)
Bill of attainder
Legislative act that inflicts punishment without a judicial trial
DPC protections?
Life, liberty, property
Does DPC protect from negligent gov action depriving a person of rights?
No; DPC violation requires intent
Fundamental substantive due process rights
Bill of Rights, privacy, interstate travel, voting
Con tests and burdens of proof
-Strict scrutiny: race, alienage, national origin, fundamental rights
-State must show (1) necessary (2) compelling gov interest
-Intermediate scrutiny: gender, nonmarital children
-State must show (1) substantially related (2) important gov interest
-RB: everything else
-P must show not rationally related to legitimate gov interest
Physical Taking
NEED
-Public Use
-Just Compensation (FMV)
Regulatory Taking
IF reg leaves no economically viable use THEN reg taking
IF economically viable use, balance:
-Economic impact
-Investment-backed expectations
-Public interest
Types of Unprotected Speech
Incitement, true threats, obscenity, fighting words, false advertising, defamation
Incitement elements
(1) Intended to (2) AND reasonably likely to (3) produce imminent (4) lawless action
Defamation of public official
P must show (1) defamation (2) falsity (3) actual malice
IF private concern THEN no actual malice needed
Review of content-based speech restrictions
Strict scrutiny
Review of content-neutral speech restrictions
Intermediate scrutiny
Time/place/manner ok
Cannot be overbroad
Content-based regulation of speech on public forums and traditional public forums
Strict scrutiny
Content-neutral regulation of speech on public forums and traditional public forums
Intermediate scrutiny
Need “ample alternative channels”
Gov regulation of speech in limited public forums & nonpublic forums
Can reasonably restrict speech to preserve space for intended use BUT strict scrutiny for content-based regulation
Commercial speech regulation
NOT protected IF misleading or unlawful
IF lawful THEN intermediate scrutiny (need “ample alternative channels”)
Free Exercise Clause Standard of Review
Strict scrutiny IF reg based on religious conduct, status, or belief
Neutral reg of general application is constitutional IF not applied in a discriminatory manner
Free Exercise neutral reg of general application
Must apply to all people
CANNOT give Gov discretion to make exemptions
Establishment Clause and standard of review
-Gov must remain neutral w/r/t religion
-Gov cannot directly/indirectly promote or prevent exercise of religion
-Standard of review: history and tradition; understanding of Framers
