Con Law Flashcards
standing
individual standing
- injury in fact:
- almost anything but must be particular
- mere ideological objection is not - causation:
- D’s conduct caused/will cause the injury - redressability
- a court can remedy or redress the injury
- damages for past injury, injunction for future (must show it’ll happen again)
- federal taxpayers always have standing to challenge their own tax liability, but do not have standing to challenge government expenditures (except establishment of religion challenge to specific congressional appropriation)
- generally no third-party standing (raise rights of someone else), except parties to an exchange or transaction can raise the rights of other parties to that exchange/transaction
organizational standing
- individual members have standing
- claim is related to the purpose of the organization
- the individual members are not necessary to adjudicate the claim
ripeness
concerns prematurity of a case: you must show actual or an immediate threat of harm
mootness
cases are overripe and dismissed when become moot
cases can become moot during trial or on appeal
exception: controversies capable of repetition yet evading review are not moot (internal time limit)
a court will not dismiss as moot a case in which the defendant voluntarily ceases its illegal or wrongful action once litigation has commenced. The court must be assured that there is no reasonable expectation that the wrong will be repeated
legislative powers overview
- commerce clause
- the taxing & spending power (separate but one clause)
- delegation of legislative power
- anti-commandeering
- war & defense powers
commerce clause
*almost anything can be regulated as interstate commerce
congress has the power to regulate interstate commerce:
- the channels of interstate commerce
- the instrumentalities of interstate commerce
- activities that have a substantial effect on interstate commerce
substantial effect: economic activity in the aggregate
-Wickard v. Filburn, growing wheat on land for purely intrastate commerce, but economic activity and aggregate had substantial effect on interstate commerce
*congress cannot regulate purely intrastate, non-commercial, non-economic activity for which there is no substantial effect on interstate commerce
spending & taxing power
the spending power
-includes spending for the general welfare
- congress can condition federal funds to states and require states to implement certain regulations (such conditions must be set out unambiguously to be enforceable)
- e.g. requires states to pass seatbelt laws for cars in order to receive federal money for highway construction (related)
The spending power has been interpreted very broadly, but is subject to five limitations. First, Congress must spend for the “general welfare,” which amounts to any public purpose. Second, the condition must be unambiguous. Third, the condition must relate to “the federal interest in particular national projects or programs.” Fourth, the condition must not induce the states to act in an unconstitutional manner. Finally, the condition may not exceed the point at which “pressure turns to compulsion.”
taxing power
-taxing clause applies, even when tax is actually used to prohibit the good/activity in question
- the tax need only be rationally related to raising revenue
- Congress may not tax goods exported to foreign countries
*Congress can impose indirect taxes so long as they are (1) uniformly applied in every state where the taxed goods are found and (2) reasonably related to revenue production.
*Direct federal taxes comply with the taxing and spending clause so long as they are (1) apportioned proportionately among the states based on each state’s population and (2) reasonably related to revenue production.
13, 14 & 15 Amendments
13A: congress has broad power to legislate against racial discrimination (public & private)
14A: congress can remedy violations of individual rights by the government, but only as those rights have been defined by the courts (enabling clause - section 5 of 14thA)
-the legislation must have “congruence” and “proportionality” - there has to be a reasonable fit btw the remedial law and the constitutional right
(if not, can’t be applied to states, but can apply to army and navy & DC as exercise of federal powers)
–> think about the enabling clause when essay asks if Congress can pass a law outlawing a state from doing something
15A: congress has power to ensure no racial discrimination in voting
delegation of legislative power
congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power (usually is)
*Congress can delegate incidental legislative powers to federal agencies if it provides an intelligible principle to guide the agency—i.e., 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.
anti-commandeering
Congress cannot force states to adopt or enforce regulatory programs; can’t commandeer state/local agencies to implement federal programs
But it can bribe states through use of the spending power & can adopt its own regulatory program and enforce it with federal officers
war & defense powers
congress has power to declare war & power to maintain the army and navy (can authorize pres to call national guard)
can provide for military discipline of US military personnel
can provide for military trial of enemy combatants and enemy civilians
cannot provide for military trial of US citizens who are civilians
The authority granted to Congress under the war power of Article I, Section 8, is very broad. Congress may take whatever action it deems necessary to provide for the national defense in both wartime and peacetime, including rent control of the civilian economy during wartime, and even during the post-war period.
executive powers (article 2)
executive order:
-the president has the power to issue an executive order within the scope of his presidential powers
domestic affairs:
- pardon power for federal offenses (doesn’t extend to impeachment of a federal official)
- veto power (10 days to veto legislation, override requires 2/3 each house)
- appointment and removal powers of executive officers (some senior officers require consent of senate)
- congress cannot give executive power to any officer it can hire/fire
- The appointments clause grants Congress the power to delegate the appointment of inferior federal officers to the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.
foreign affairs:
- commander in chief: control over military decisions (can cut off funding)
- treaties: negotiated by president but require 2/3 senate approval, once ratified it has same authority as statute
- executive agreement: not binding like treaty, can be authorized/overridden by statute, but take precedence over conflicting state laws
- the President has the exclusive power to recognize a foreign government
*A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation
state powers overview
- supremacy clause
- preemption (express & implied)
- privileges & immunities clause
- 10th amendment
- dormant commerce clause
*federal gov immune from direct state regulation/taxation, but states can tax indirectly (tax income of federal employees)
preemption
federal law preempts (overrides) inconsistent state law
express preemption: the federal law explicitly states that it is the only law allowed in that area
implied preemption:
- congress passes a federal law intending to “occupy the field” (rare)
- the state law conflicts either directly or indirectly with federal law
*a state can pass more stringent laws than the federal law, so long as they do not conflict
privilege and immunities clause article IV (comity clause)
prohibits states from discriminating against citizens of other states
this protection only applies to individuals; corporations cannot claim this clause
there can be no legal requirement of residency for private employment (public can)
Non-serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses or state park access.
10th amendment
all powers not expressly given to the federal government are reserved to the states
The federal government can tax state government affiliates—i.e., persons doing business with state governments—so long as the taxes do not discriminate against states or their affiliates.
dormant commerce clause
- protects out of state business as well as individuals
- only applies in the absence of federal action; if congress authorizes/consents to state regulation of commerce, state won’t violate commerce clause even if it discriminates against out of state interests
in the absence of federal regulation, state regulation of commerce is valid so long as:
- there is no discrimination against out of state interests
- the regulation does not unduly burden interstate commerce, and
- the regulation does not apply to wholly extraterritorial activity (state saying beer sold in state couldn’t be sold at price diff from other states)
discrimination:
- if a state discriminates against out of state commerce, the state must show 1. it has an important state interest, and 2. there is no other non-discriminatory means available to achieve that interest
- market participant exception (don’t forget about this!!!) (If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business)
unduly burden interstate commerce:
- if a statute is not discriminatory, the law may still be invalid if it causes an “undue burden” on interstate commerce
- a court will balance the purpose of the statute against the burden on interstate commerce (only if so costly in comparison to benefit)
5th amendment takings clause overview
- look for property being taken from an individual by the government
rule: private property shall not be taken for public use without just compensation
government action private property public use physical or regulatory taking just compensation
*A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a particular use or a demand for an additional expenditure, in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if (1) there is an essential nexus between legitimate state interests and the conditions imposed on the property owner (the conditions substantially advance a legitimate government interest), and (2) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.
- government action
Federal, state, or local government “taking” property by rezoning, prohibiting development, etc.
- private property
usually involves land, but can be other property
- public use
must be taken for public use, including health, safety, economic development, etc.
-basically anything, need only be rationally related to a conceivable public purpose
*A government may seize private property not only for its own direct use but also to transfer the property to another private party. Although such a seizure is subject to challenge as not being made for public use, the taking need merely be rationally related to a conceivable public purpose.
*economic redevelopment goals constitute a sufficient public purpose to justify the seizure.
- physical or regulatory taking
physical taking: government physically occupies the land (even a tiny portion)
*A taking has occurred when the governmental regulation results in a permanent physical occupation of the property by a government or third party, regardless of the public interest that it may serve.
regulatory taking: a law has the effect of decreasing the value of the plaintiff’s property –>
- total taking: the regulatory taking leaves no economically viable use of the property
- partial taking: the regulatory taking affects some economic use of the land, but there is still some economic use available
- economic impact: how much value was lost due to the regulation
- reasonable expectations: the owner’s reasonable expectations of return on investment (talk about interference with use)
- character of the regulation: does the regulation impact a few owners or the entire community? (more likely if only a few)
- just compensation
if a taking has occurred, the property owner is entitled to the fair market value of the property that has been taken at the time of the taking
*a government may destroy property in response to a public peril without the payment of compensation.
zoning & variances
zoning: local governments have the power to pass zoning ordinances, as long as they are reasonably related to a legitimate government purpose (health, safety, morals, and general welfare)
relief from zoning ordinance
- variance
- may be granted to allow the owner to continue his nonconforming use of the land
- the owner must show an undue burden if the variance is not granted - takings clause claim
procedural due process
the due process clause provides certain protections before the government can take a person’s life, liberty or property
*notice/hearing not required when accident; deprivation requires intentional taking away of life, liberty, or property
-life: death penalty require procedural due process
-liberty: physical confinement, probation/parole, physical injury (including spanking at school), any restriction on legal rights (including being punished for free speech)
(injury to reputation is not loss of liberty)
-property: property interest in gov job/benefit when legitimate entitlement (only fired “for cause”), but not mere expectation of continued employment
examples of procedures: notice, hearings appeals
amount of process due:
- the individual right at stake: life, liberty (including fundamental rights), or property
- the value of the procedure in protecting that interest, and
- the burden/cost of that additional process
timing of hearings:
- must be before deprivation if terminating welfare benefits, non-emergency revocation of driver’s licenses
- sometimes can be after deprivation as long as hearing is prompt and fair (terminating disability benefits, disciplinary suspension from school)
- public employees who can only be fired “for cause” must be given opportunity to be heard before discharge, unless significant reason not to keep employee on job (formal pre-termination hearing not required as long as notice, opportunity to be heard, and post-termination hearing)
- Due process entitles a person to a fair decision maker. A judge must recuse herself when she has a direct, personal, substantial, pecuniary interest in a case or there is a serious risk of actual bias.
- Due process requires public colleges and universities to provide notice and a meaningful opportunity to be heard before dismissing a student for disciplinary reasons. However, due process does not require a public college or university to provide a meaningful opportunity to be heard when a student is dismissed for academic reasons.
substantive due process
whether the government’s action (such as a law or regulation) is valid or whether it impermissibly infringes on an individual’s rights
standard of review:
- fundamental rights (life, liberty & property including travel and voting)
- strict scrutiny: only valid if necessary to achieve a compelling government interest
- But Section 2 of the Fourteenth Amendment permits states to prohibit felons—even those unconditionally released from prison—from voting in elections.
- However, courts will depart from this test and apply rational basis scrutiny when a state or local law limits the right to vote in a governmental unit’s election to its residents—i.e., those who reside within the governmental unit’s borders. - non-fundamental rights:
- rational basis: valid if rationally related to a legitimate government interest (burden on proponent to show arbitrary & irrational)
equal protection clause
discrimination requirement: the plaintiff must show discrimination
standards of review:
- strict scrutiny:
- applies to any law involving fundamental rights ( and classifications based on race, ethnicity, and national origin
- must be: a) the least restrictive means b) to achieve a compelling government interest
- the government bears the burden of proof
- discriminatory purpose is required (not just disproportionate impact)
- e.g. affirmative action: valid only when specifically corrects past discrimination by specific department/agency now engaged in affirmative action
- alienage generally strict scrutiny, 2 exceptions:
- -> federal classifications: valid unless arbitrary & unreasonable
- -> state/local participation in gov functions (voting, jury, police, public school teacher) - intermediate scrutiny:
- applies to laws involving gender and non-marital children born outside of marriage
- must be: a) substantially related b) to an important government interest
- the government bears the burden of proof
- permissible gender classifications: statutory rape & the draft
- Different treatment of the genders by the government (for example separate sports facilities at state universities) does not violate the equal protection guarantee if the state can show that it has an “exceedingly persuasive justification” for the different treatment and that the separate facilities offered are “substantially equivalent.” - rational basis
- applies to all other rights and classifications
- must be: a) rationally related b) to a legitimate government interest
- the plaintiff bears the burden of showing the law is arbitrary or irrational
- easily passed, but not re sexual orientation
- age & wealth (but fed gov has to waive filing fee for indigents except for bankruptcy)
- e.g. U.S. citizenship only when a state law excludes noncitizens from a government function that would allow (1) direct participation in formation, execution, or review of broad public policy or (2) the exercise of broad discretion
- Equal protection challenges to discriminatory state taxes are subject to rational basis review. Although encouraging the growth of an industry within a state is permissible, promoting domestic (i.e., in-state) business by discriminating against nonresident competitors is unconstitutional.
freedom of expression overview
- first talk about why 1A applies, then state action
- corporations have same 1A rights as individuals
symbolic speech - expressive conduct overbreadth vagueness prior restraints content lesser/unprotected speech speech in a government forum
*under the First Amendment, a city can regulate adult entertainment establishments (e.g., by localizing them in a particular area), but cannot impose a blanket ban on all pornography.
*When a public employee is speaking as a private citizen on a matter of public concern, the government can restrict that speech only if its interest in efficient government function outweighs the employee’s right to free speech.
The First Amendment is applicable to the states through the Fourteenth Amendment and protects the freedom of speech as well as the freedom not to speak. For example, the Supreme Court has held that a child in a public school has the right not to recite the Pledge of Allegiance.
- symbolic speech
expressive conduct
e.g. someone burning a copy of the Constitution to show anger at the government
- overbreadth
a statute is overbroad if it regulates more speech than necessary to protect a compelling government interest
- vagueness
a statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited (and thus violate due process)
e.g. “no mean words may be spoken”
