Con Flashcards
ex post facto clauses
prohibit enactment of retroactive criminal laws that
criminalize previously legal conduct,
impose a greater punishment than previously prescribed,
eliminate previously available defenses,
decrease gov’s previous burden of proof
bill of attainder clauses
prohibit legisilation acts that inflict civil or criminal punishment against indentifiable persons (or groups of ppl) without a trial
to determine if congress can regulate an activity, courts consider whether
1) the activities are economic in nature (if so, a substantial effect is presumed),
2) the reg has a jurisidictional elements that limits its reach to activities w/ a direct connection to or effect on interstate commerce
3) there are express congressional findings concerning the activities’ effect on interestate commerce, and
4) there is a strong link between the regualted activity and that effect
nondelegation doctrine
prohibits congress from delegating purely legislative powers but allows congress to delegate its incidental powers (rulemaking, legisilative enforcement) if it provides an intelligble principle - ie, a clear statement defining
1) the policy congress seeks to advance
2) the agency to carry out that policy, and
3) the scope of that agency’s authority
level of scrutiny applies to content based law
strict scrutiny
gov show that it is necessary and narrowly tailored (least restrictive means) to achieve a compelling gov interest
very little over or under inclusivness is allowed
level of scrutiny applied to a content-neutral law
intermediate scrutiny
permissible so long as the gov can show that it is narrowly tailored to achieve an important gov interest and leaves open alternative channels of communication
narrowly tailored = challenged law would achieve gov’s interest lest effecively if it were less or under inclusive
TPM test is satisifed so long as the reg promotes a substantial gov interest that would be achieved less effectively absent the regulation and leave open ample channels of communication
Central Hudson test for gov regulation of commercial speech
1) speech must be lawful and not misleading,
2) statute must serve a substanital gov interest,
3) statute must directly advance that interest, and
4) the statute must be narrowly tailored
all race based classifications imposed by gov must surivive strict scrutiny which requires the gov to prove
that these classifications are necessary to achieve a compelling gov interest - eg, to remedy its own history of racial discrimination*
express preemption occurs when
a fed law is enacted under an exclusive fed power or explicitly bars state regulation
implied preemption occurs when
there is no room for state regulation (field),
it is nearly impossible to comply with both laws (direct conflict), or
the state law frustrates the fed law’s purpose (indirect conflict)
the _____ clause renders a state law void and without effect when a fed law expressly or impliedly preempts it
supremacy clause
scotus has discretion to exercise appellate jurisidction over state spreme court decisions that present a federal Q unless
those actions are based on adequate and independent state grounds
once scotus reslves fed Q, must remand case to state supreme court if any state issues remain
an exaction amounts to a 5th amend taking requiring just comepnsation unless government establishes
exaction exists when the gov enacts a reg that restricts the owners use of a property as a cond to allowing the owner to develop the land
these are taking under 5A unless gov can show a legit gov interest and rough proportionality (adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner)
exaction occurs when
a local gov conditions the issuance of a building or developmnt permit on a landowners promise to dedicate part of the property for public use
severe (discriminatory) electorcal regulations are subjec to
strict scrutiny
ordinary (non-discriminatory) electoral regs are subject to
rational basis
gov’s regulation of protected commerical speech must
1) directly advance a substanital gov interest,
2) not be more extensive than necessary to serve that interest (satisifed if there’s a reasonable fit between the gov interest and the means chosen to achieve it)
1A protects the right of the press to
publish lawfully obtained, truthful information about matters of public signficance
1A doesnt shield press from generally applicable laws even if laws incidentially affect the press’s ability to gather and report the news
process for a treaty
approved by 2/3rd vote in senate (not house) before it can be ratified
then, treaty takes precedence over any conflicting state law pursuant to supremacy clause
Market participant exception
The state may discriminate in favor of residents when buying or selling goods and services because the state is acting as a “market participant” rather than as a regulator of an economic activity.
dormant commerce clause analysis
1) is the statute facially discriminatory?
2) if no, Q is whether it effectuates a legit local public interest and whether the burden if any is clearly excessive in relation to the putative local benefits
3) if it is facially discrim then its invalid unless narrowly tailored to meet a legit purpose (less discrim means).
11th amend
bars private parties and foreign govs from suing a state in federal court without state’s consent
doesnt bar suits brought by US or another state
*doesnt apply to suits vs public officials in their official capacity seeking an injunction
a state may treat men and women differently consistent w/ equal protections and provide separate facilities for each gender if state can
1) demonstrate the exceedingly persusaive justification for the separate treatment, and
2) demonstrating that the sepratae facilities are subsntially equivalent
actions of private parties constitute state actions when
1) they have prformed a traditional public function,
2) there’s enforcement of certain private contracts;
3) there is joint action or entanglement between state and private actor; or
4) there’s state encouragement of private discrimination
analysis for 1A free speech viol
- state or private actor?
- if private actor, are they a state actor under public function standard?
- content based or content neutral reg?
a law regulating unprotected speech needs to pass
rational basis
incitment, fighting words, threats, obsecnity, false
SCOTUS has long held that public schools may not force their students to participate in
flag salute ceremony when it offends the political or religious beliefs of the students or their families
when expression takes place on gov owned property, gov regulation of expression is asserted under the
public forum doctrine.
public street and sidewalks = traditional public forum
when a state tries to reg expressive activity in a traditional public forum, it is prohibited from doing so based on the expressive acticity’s content unless
it survive strict scrutiny (narrowly tailored to achieve compelling gov interst)
SCOTUS has held that the gov’s interest in keeping streets clean is insufficent to ban leafletting in the public streets as the gov power to reg with incidental effects on public sidewalk speech is very limited
.
14th amendment equal protection
not state shall deny to any person within its jurisidction the equal protection of the law
suspect classes
race
religion
citizenship
national origin
a federa statue abrogates 11th amendment immunity if
1) statute unambigiously asserts that it does so; and
2) congress enacted the statute under a poewr that may abbrogate 11th amendment immunity
NY v. Garcia
congress may not commander the state to regulate private conduct
US v. VA
state laws that make classifications on basis of gender are uncosntitutional unless state can estalblish an exceedingly persuasive jusification for the classification
“exceedingly persussaive justificatin” servces important gov interest and doesnt rely upon outdated or overbroad generalizations and stereotypes
*case w/ separate men and women military schools
congress may condition receipt of federal funds to states if
1.) spending must be for general welfare
2) cond imposed by congress must be imposed unambiguously
3) cond imposed must be related to the federal interest in particular national projects/programs
4) cond must not be used to induce states to engage in unconstitutional activities,
5) a cond will be deemed improper if its so coercive to pass the point at which pressure turns into compulsion
10th amendment
limits federal powers
federal gov may neither issue directeves requiring the states to address particular problems nor command states officers or their policital subdivision to administer or enforce a federal regualtory program
15th amendment prohibits state and federal gov from
abridging right to vote by direct limitation or diluting voting power on the basis of race, color, or previous servitude
Standard applied to burdens on 1A free exercise of religion
direct burdens = strict scrutiny
indirect burdens = rational basis
Endorsement test
government displays of religion symbols violate establishment clause when overall context of the display would cause a reasonable person to conclude the display endorses religion
congress has the sole power to impeach and remove
federal judges
intermediate scrutiny
gov must prove that the classification is substantially related to an important gov interest
dormant commerce clause
generally prohibits states from discriminating against or unduly burdening interestate commerce
A nondiscriminatory state law that imposes an “incidental” burden on interstate commerce will nonetheless be unconstitutional if the burden it imposes is “clearly excessive in relation to the putative local benefits.”
*state can do so when congress explicitly authorized the conduct
supremacy clause
fed law takes precedence over conflicting state laws so long as fed law is a valid exercise of congress’ emumerated powers
a state tax affecting foreign commerce must
satisfy complte auto requirements: substantial nexus, fairly apportioned, non-discriminatory, and fairly related
such a tax must not create an inevitable risk of multiple taxation or prevent fed gov from speaking with one voice in foreign affairs
commerce clause
congress may enact 3 types of regulations
1) regulate channels of interstate commerce (phone lines + highways),
2) regulate people and instrumentalities that work and travel in the channels of interstate commerce,
3) regulate activities that substantially affect interstate commerce
gov can interfere w/ 1A freedom of assocation by punishing persons who
1) are active memebrs of subverise organization;
2) know of the org’s illegal objectives
3) specifically intend to further those objectives
under 1A freedom of association, the gov cannot force a group to…
accept members who would significantly burden its views unless that interference is necessary to achieve a compelling gov interest
congress can only overturn an exec agency’s actions by
enacting new legilsation which requires bicameralism and presentment
pres has absolute authority to remove fed exec officers. congress may impose restrictions on this process only for officers who
1) belong to a mutlimeber body that’s balanced along partisian lines and exericses exec power; or
2) lack policymaking or admin authority
once congress delegates power to an exec agency, it cannot interfere w/ agency’s functions without
satisfying the legilsative action process (bicameralsim and presentment)
any attempt to bypass this process is an unconstitutional legislative veto
state’s police power
power to enact and enforce laws that are reasonably related to protecting public health, safety, and welfare
states cannot violate other consitutional provisions when using this power
*no federal power
Congress has power to regulate and make excpetions to SCOTUS’ appellate jurisidction article III
speech or debate clause
immunizes members of congress from criminal and civil liability for official legislative activities (speech given on House/Senate floor)
indirect federal taxes comply with taxing and spending clause so long as they are
1) indentical in every state where taxed goods are located; and
2) reasonably related to revenue production
power to tax and spend
congress has broad power to tax and spend for the general welfare
*congress can never impose taxes or exported goods or services and activities closely related to export process
congress can use its taxing power
directly (on persons/real property) - so long as the tax is apportioned proportinately among the states and reasonably related to revenue production
indirectly (goods/transactions) - so long as the tax is indentical in every state and reasonably related to revenue production
a plaintiff taxpayer has standing when suit…
1) challenges legislation enacted under congress’s taxing and spending power; and
2) alleges a violation of a specific constitutional limitation on that power (establishment clause)
the historical test
allows the government to pass through first amendment establishment clause a wall separating church and state when the government action has historically been permitted in accordance with the organization meaning of the constitution
US v. O’Brien
whether a law that regulates speech related conduct serves an interest within which the government regulator powers that’s important, substantial, and unrealted to suppression of expression and no greater than necessary to serve state’s interest
a limited public forum is created…
when a government entity could close a location to speech but instead opens it to speech
Discriminatory Impact Test
In Exxon the Court read the Hunt discriminatory-impact test to apply to a direct impact on out-of-state firms in the primary market (apples) regulated by the state.
City of Philadelphia v. New Jersey
where the Court invalidated a NJ law prohibiting the disposal of out-of-state waste in New Jersey landfills, effectively precluding the export of waste disposal services and preferring in-state consumers.
The Court made clear that it does not matter whether the law has a legitimate environmental purpose; the state may not use discriminatory means to accomplish it. Insofar as the law is discriminatory, it is invalid unless it is narrowly tailored to meet a legitimate, nonprotectionist purpose.
Doctrine of Ex parte Young
“Official-capacity actions [against state officials] for prospective relief are not treated as actions
against the State.” Thus, even when a damages claim against the state is barred under the
Eleventh Amendment, a suit against public officials in their official capacity seeking an
injunction may be maintained.
5th amendment taking
a taking ocurs when the gov destorys private property or prop rights - including interests transferable by will or intetate succesion.
the gov may effectuate a taking only for a public use and must provide just compensation to the owner
non-physical takings into three categories
1) a “total regulatory taking” (i.e., regulations that completely deprive an owner of all economically beneficial use of her property)
(2) “a Penn Central taking” (for which courts will consider several factors such as the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and whether it amounts to a physical invasion or instead merely affects property interests through some public program adjusting the benefits and burdens of economic life to promote the common good), and
(3) a “land-use exaction” (more specifically, a government demand that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit)
In Loretto, SCOTUS held that a permanent phsyical occupation authorized by the gov is a taking…
without regard to the public interets that it may serve
the fact that the occupation will be by another entity does not change the analysis
public purpose test for 5A taking
court ask deferentially only whether the municipality’s taking is rationally related to a conceivable public purpose.
court will recognize that the ‘public use’ requirement is contemporaneous with
the scope of a sovereign’s police powers.
scotus has held that a State may transfer property from one private party to another if future use by the public is the purpose of
the taking
Free exercise of religion 1A
right to practice religion or no religion w/out government interference
the free exercise clause allows the gov to question
whether a religious belief is sincerely held but not whether that belief is reasonable/true
the political question doctrine prohibits federal courts from
adjudicating political questions
a case presents a nonjusticiable political question when
the constitution has reserved decision making on an issue to the executive or legislative branch and/or
the matter is inherently not one that the judiciary can decide - ie, there is a lack of judicially discoverable and manageable standards to resolve this issue
the taxing and spending clause grants congress extensive power to
appropraite federal funds
congress can then require that the pres and fed agencies spend the funds as explicily directed in a fed statute
a federal officer is someone who
1) holds a continuing public office and,
2) has signficant discretionary authority to administer or enforce laws
supervised soley by the pres and must be appointed by the pres with the senate’s advice and consent
ex: supreme court justice, ambassador, cabinet official
inferior federal officers are
appointed by the pres with senate approval unlesss congress delegates appointment to pres, fed courts, or heads of exec depts
supervised by princ fed officers
ex: independent counsel, judicial clerk, admin law judge
state can tax fed gov affiliates (contractors) unless
1) congress granted the affiliate immunity,
2) the tax is discrimintaory, or
3) the tax substanitally interferes w/ the affiliate’s fed purpose or duties
equal protection challenges are usually evaluted under
rational basis whic require challenger to prove that the discriminatory gov action has no rational relation to a legit gov interest
fundamental rights
1A freedoms
Voting
Interstate travel
Privacy (marriage, parental rights, sexual acts, contraceptives)
FIRST VIP
the gov cannot condition hiring a gov employee or contractor based on his political view or affiliates unless
these factors are required for effective job performance
Article 5 priv and immunities clause
prohibits states from discriminating against out of state citizens by denying them a right of state citzenship unless
1) nonresidents cause or contribute to the problem that the state is attempting to solve, and
2) the discrimination bears a substantial realtionship to the state’s objective
establishment clause - coercion test
gov cannot force particiaption in a religious exercise
school sponsored prayer in public schools viols establishment clause even when participatin is vol
Youngstownframework is used to determine the extent of president’s authority to act by considering whether there was congressional:
authorization - in which case the pres had max authority to act and that act is likely valid
silence - in which case the act is valid so long as it (1) fell w/in pres’ article II powers, and (2) did not interfere w/another branch’s powers, or
opposition - in which case the pres had minimal authority to act and that act is likely invalid
a law is content based if it
applies to particular speech because of the topic discussed or the idea the message expressed
the political question doctrine bars action that require courts to resolve issue concering diplomatic recongnition of a foreign gov
courts have the power to determine interbranch dispputes involving foreign affairs when they concern the validity of a fed statute
due process clause applies when a law impacts ___ persons, while the equal protection clause applies when the law impacts a ____ of persons
all; particular class
quasi suspect classes
gender/sex, legitmiacy
get intermediate scrutiny - substanitally related to important gov interest
necessary and proper clause allows congress to
take actions that are reasonably necessary to carry out its enumerated article 1 powers
congress has the power to regulate and make exceptions to SCOTUS’ appellate juris under
article III
when a public employee can only be fired for cause, due process generally requries that the employee recieve
1) notice of any alleged misconduct,
2) a pre-termination hearing to respond to the allegation, and
3) a post-termination evidentiary hearing to determine if the dismissal was warranted
