Con Law Flashcards
tenth amendment
powers not delegated to the federal government nor prohibited by the constitution to the states are reserved to the states.
judiciary power (Art III)
established judicial review
the constitution is law and the judiciary’s province and duty was to declare what the law is.
judiciary does not have to hear every case
what are the limitations on the court’s jurisdiction?
limitations on the court’s jurisdiction:
- case or controversy
- mootness
- ripeness
- abstention
- standing
- political questions
case or controversy
a real and substantial dispute that touches the legal relations of parties with adverse interests and that can be resolved by a judicial decree if a conclusive character
what is it called if the matter has already been resolved?
dismissed or moot
ripeness
bars consideration of claims before they have fully devloped.
absentation
the court may abstain or refuse to hear a particular case when there are undecided issues of law presented.
the state court resolves the issues of state law first.
making a decision on the constitutional issue unnecessary.
standing
a person litigating a constitutional question must have standing
the litigant must show:
injury in fact
causation
redressability
executive branch
president
commander in chief
chief executive
powers of the president
appointment power to nominate and appoint ambassadors, justices of the supreme court and all other officers of the US
veto power over congress legislation
veto power
the president has 10 days to act on legislation
if the president fails to act the proposed legislation becomes law
the president can pocket veto a bill passed within 10 days of the end of the congressional term by not signing it.
congress has the power to override by a 2/3 vote
congress
power to amend legislation to delete provisions
can enact legislation that delegates rule-making power to an executive or administrative agency in designated areas
powers of the president
power to deploy military forces
NOT power to declare war
make treaties with foreign nations- requires 2/3 of the senate before enactment
legislature
to make laws
right to conduct investigations and hearings (necessary and proper)
necessary and proper clause
gives congress the implied power to make all laws which shall be necessary and proper for carrying into execution the forgoing powers
what are congress’ specific powers?
legislative commerce taxing spending war and defense investigatory property eminent domain admiralty bankruptcy postal copyright and patent speech and debate civil war amendments
commerce clause
gives congress the power to regulate:
- channels fo interstate commerce
(highways, waterways and air traffic) - instrumentalities of interstate commerce
(cars, trucks, ships, airplanes) - activities that have a substantial economic effect upon interstate commerce
dormant commerce clause
if a state law discriminates on its face between in state and out of state economic acts, the state must show that the regulation serves a compelling state interest and the regulation is narrowly tailored to serve that interest.
if the state law merely incidentally burdens interstate commerce, the state must show that the regulation serves an important state interest and the burden on interstate commerce is not excessive in relation to the interest served.
substantially effects test
congress must show that the regulated activity is economic in nature and that the regulated activity when taken has a substantial effect on commerce
congress– collecting taxes
a congressional act purporting to be a tax should be upheld as a valid exercise of the taxing power:
- does raise revenue?
- was it intended to raise revenue?
can use this power to achieve a regulatory effect
can a state tax interstate commerce?
YES!
so long is it doesn’t discriminate against or unduly burden interstate commerce
when courts look at a state tax on interstate commerce, they generally require that…
there must be:
- a substantial nexus between the activity taxed and the taxing state
- fairly apportioned
- not discriminate against interstate commerce
- fairly related to the services provided by the taxing state
supremacy clause
federal law will supersede any state law that is in direct conflict with it
can private actors be found to be state actors?
Yes!
when they are carrying on activities traditionally and exclusively performed by the government
OR
where the government and private entity are CLOSELY RELATED that the action by the private party can be treated as action by the government
how does the 14th amendment apply the bill of rights to the states?
Yes, the 14th amendment applies the bill of rights to states by holding that fundamental rights are not privileges and immunities of national citizenship
ESSAY QUESTION:
always include how an amendment applies to the states through the 14th amendment!!!
14th amendment
- what are the 2 parts?
- who does it apply to? state or federal?
- what are the 2 parts?
-bill of rights application to the states
AND
- due process clause - state level
14th amendment- Due Process Clause
protects he rights of persons
NOT JUST CITIZENS
protects against the deprivation of life, liberty or property without due process of law
procedural due process
an individual is entitled to certain safeguards:
some form of notice
meaningful hearing within a reasonable time
substantive due process
economic regulation
will be upheld if it is rationally related to a legitimate government interest
strict scrutiny
evaluating governmental regulations that affect fundamental rights of personhood
fundamental rights
right to travel
right to vote
right to privacy
what are privacy rights?
CAMPERS
CAMPERS
contraceptives abortion marriage procreation private education family relations sexual relations
substantive due process
when the law affects he rights of all persons with respect o the specific activity
equal protection due process
when a law affects he rights of some persons with respect to a specific activity
strict scrutiny
APPLIES TO: suspect class - race -sex -religion
fundamental right
NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE
BURDEN IS ON THE STATE
intermediate scrutiny
APPLIES TO:
quasi suspect class
- gender
-legitimacy
SUBSTANTIALLY RELATED O AN IMPORTANT GOVERNMENT INTEREST
- substantially related= an exceedingly persuasive justification
BURDEN IS ON THE STATE
RATIONAL SCRUTINY
APPLIES TO:
-non-suspect
-gender-neutral
-need for necessities of life
(food, shelter, clothing, medical care)
- merely discriminatory
RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST
BURDEN IS ON THE PLAINTIFF
first amendment
freedom of religion
freedom of speech
freedom of the press
freedom of association
freedom of religion
both the establishment of religion and the free exercise of religion
establishment clause
the clause in the First Amendment of the US Constitution that prohibits the establishment of religion by Congress.
lemon test
the statue must have a secular legislative purpose
the principal or primary effect or purpose must neither advance nor inhibit religion
the statute must not foster an excessive government entanglement with religion
government aid to religious activities
violate the establishment clause and is unconstitutional
if the program provides aid to ALL school students including those attending religious schools then the program “passes” the lemon test
first amendment
free exercise clause
religious beliefs are protected
the government may not punish an individuals by denying benefits or imposing burdens based on religious belief.
first amendment
freedom of speech clause
the government may not censor all categories of speech or engage in content-based discrimination with some exceptions
regulations are allowed if they pass strict scrutiny
exceptions are:
conduct based regulation
government as speaker
unprotected speech
- advocates violence or unlawful action
- fighting words
- hostile audience speech
- obscene speech
- defamatory speech
first amendment
freedom of speech clause: conduct based regulation
allowed if it furthers an important or substantial government interest unrelated to the suppression of free expression
and
the restriction is no greater than is essential to the furtherance of that interest
first amendment
freedom of speech clause: government as speaker
when the government is he speaker rather than a private actor, the government may discriminate based on the content of the speech.
first amendment
speech that advocates violence or unlawful action
is directed to inciting or producing imminent lawless action and is likely to incite or produce such action
first amendment
fighting words
words that likely tot incite acts of immediate physical retaliation that are more than annoying or offensive.
there must be a genuine likelihood of imminent violence
first amendment
hostile audience speech
speech that elicits an immediate violent response against the speaker by an audience maybe grounds for prosecution
obscene speech test
an average person applying contemporary community standards would find that the work, apples to a prurient interest
the work depicts or describes in an offensive way, sexual conduct specifically defined by state law
AND
the work, taken as a whole, lacks serious literary, artistic, political or scientific value
defamatory speech
apply where:
-the plaintiff is either a public official or public figure
OR
-where the statement involves a matter of public concern.
P must prove actual malice
- knowledge of falsity or reckless disregard of the truth or falsity of the statement
what type of speech receives lower levels of protection?
commercial
when can the government regulate commercial speech?
if false or deceptive or if related to unlawful activity
serves a substantial government interest
directly advances the substantial governmental interestt
AND
is not more extensive than is necessary to serve that interest
when can sexual speech be regulated by the government?
regulation must serve a substantial government interest and leave open reasonable alternative channels of communication
what public areas can the government restrict speech and under what contexts?
the government can regulate:
ttime
place
manner of speech
applies to public areas:
streets
sidewalks
parks
what is the 3 part test to determine he constitutionality of government’s restrictions on speech?
STEP 1:
must be content-neutral as to both subject matter and viewpoint
STEP 2:
must be narrowly tailored to serve a significant government interests
STEP 3:
leaves alternative channels of communication open
freedom of press
the press has no greater freedom to speak than to any ordinary member of the general public.
TRUE OR FALSE:
the press has special right of access to government information.
FALSE
they do not have a special right
CRIMINAL TRIALS:
both the public and the press have a right to attend unless the judge finds an overriding interest
Gag orders will almost never be held constitutional
Can federal courts render advisory opinions?
Federal courts may not render advisory opinions, which lack:
an actual dispute between adverse parties
OR
any legally binding effect on the parties
What is ripeness?
federal courts may only decide controversies that are ripe for judicial review
when are cases considered ripe?
substantial hardship in absence of review
and
issues and record are fit for review
what is mootness?
federal courts may only decide live controversies
P suffers ongoing injury
MOOT
when is a case considered “live”?
in suit for injunctive or declaratory relief, challenged law or conduct continued to injure
in suit for damages, plaintiff not made whole
MOOT
what types of cases are exceptions and considered not moot?
injury is capable of repetition yet evades review because of inherently limited duration
Defendant voluntarily ceases challenged activity but may restart at will
OR
in class actions, one plaintiff suffers ongoing injury
standing
plaintiff must have standing to sue
standing
what are the requirements?
injury
causation
redressibility
standing
what constitutes injury?
any harm that is concrete (not hypothetical) and particularized (not general).
standing
what does not constitute injury?
ideological objections or generalized grievances as citizen or taxpayer
citizen may not use:
to force government to obey laws
over how government spends money
standing
what types of cases are exceptions and considered tot have standing?
taxpayer challenge to own tax liability
congressional spending in violation of establishment clause
NOT executive spending
standing
when must injury occur?
injury must have occurred or will imminently occur
injunctive or declaratory relief (must show likelihood of future harm)
standing
who must suffer injury?
injury must be personally suffered by P rather than those not before the court
NO 3rd party standing
standing
what are the 3rd party standing exceptions?
close relationships
organizations
free speech over breadth
standing
what is a close relationship?
P and 3d party injured
3P unable or unlikely to sue
P can adequately represent 3P
standing
organziations
organization and members have standing
members injury related to purpose of orgnization
members participation is NOT required
standing
free speech overbreadth
party whose speech can be censored sues on behalf of those whose speech cannot
substantial overbreadth in terms of laws legitimate to illegitimate sweep
not commercial speech
standing
causation
P must show that the injury is fairly traceable to the D
standing
redressability
P must show that a favorable court decision can remedy the harm
through money damages or an injunction
11th amendment
sovereign immunity
states can not be sued unless with their consent
11th amendment: sovereign immunity
when does sovereign immunity apply?
states can not be sued in federal and state courts
this includes agencies
11th amendment: sovereign immunity
what are the exceptions to sovereign immunity?
waiver
P = states or feds
bankruptcy proceedings
clear abrogation by congress under 14th amendment powers to prevent discrimination
11th amendment: sovereign immunity
when is a suit against the state not barred?
D= is a state officer lawsuit= injunctive relief, money damages from own pocket
D= local governments lawsuit= any!
supreme court review
final judgment rule
supreme court only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a 3 judge district court
supreme court review
independent and adequate state grounds
supreme court will not review a federal question if the state court decision rests on a n independent (separate) and adequate (sufficient) State law ground.
supreme court review
when does independent and adequate state grounds exist?
if the outcome would be the same regardless of how the federal question is decided.
federal legislative power
what is the limit of the Congress’ power?
enumerated powers
no general police power to pass laws
exceptions: federal land, indian reservations and DC
federal legislative power
necessary and proper clause
not a basis of legislative power
allows congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by constitution
federal legislative power
enumerated powers
taxing and spending power
commerce power
federal legislative power: enumerated powers
taxing and spending power
congress may tax and spend to provide for the general welfare
includes any public purpose not prohibited by constitution even if not within an enumerated power
enumerated powers: taxing and spending power
spending conditions
strings must relate to purpose of spending and not violate constitution
cannot be unduly coercive
enumerated powers
commerce power
congress may regulate commerce with:
foreign nations
indian tribes
among states (interstate)
enumerated powers: commerce power
interstate commerce
broadest and most common basis for regulation
channels
instrumentalities
substantial effect
enumerated powers: commerce power
channels of IC
highways, waterways, telephone lines, internet
enumerated powers: commerce power
instrumentalities of IC
planes, traines, automobiles, persons in interstate commerce
enumerated powers: commerce power
substantial effect on IC in aggregate
growing wheat in backyard for home consumption
THINK: local activities that affect whole!
enumerated powers: commerce power
what are the limits of interstate commerce?
noneconomic activity in area traditionally regulated by states
compelling participation in commerce (even if lack of participation substantially affects IC)
enumerated powers: commerce power
14 amendment- enforcement of power
commerce power allows congress to ban private discrimination
congress may also ban state discrimination under its 14A power to enforce the guarantee of equal protection
federal legislative power
delegation of power to agencies
may broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power.
federal legislative power
delegation of power to president
no line-item veto
violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to present to sign or veto)
federal legislative power
delegation of power to congress
no legislative veto to void duly enacted laws without bicamerralism and presentment
federal executive power
domestic powers: enforcement
president has power and duty to execute laws
federal executive power
inherent presidental powers
highest where authorized by congress
lowest where prohibited by congress
federal executive power
foreign powers: war
congress alone has power to declare war
president as commander in chief has broad discretion to deploy troops internationally to protect American lives and property
challenger may be non-justiciable as a political question
Congress checks through power of the purse
treaties
STEPS:
president > senate> state law> federal law
president: negotiates
senate: 2/3 to approve
state law: trumps existing and future state law
federal law: trumps existing (not future) federal law
executive agreements
STEPS:
president > senate> state law> federal law
president: negotiates
senate: N/A
state law: trumps existing and future state law
federal law: federal law always trumps
10th amendment
powers not granted to the US or prohibited to the states are served to the states or the people
general police powers
reserved to the states
anti-commandeering principle
congress cannot compel states to enact or administer federal programs
supremacy clause
makes federal law preempt inconsistent state and local laws
federal law: constitution, statutes, regulations, treaties, executive agreements
When is there a conflict between federal law and state law enacting the supremacy clause?
when it is impossible to follow both federal and state law
state law impedes federal law
extensive federal regulation indicates congressional intent to “occupy the field”
dormant commerce clause
prohibits state laws that discriminate against or unduly burden interstate commerce
