Con Law Flashcards
Const Art III
Federal judicial power
- Interpretation of constitution, laws, treaties
- Disputes between states, states and foreign citizens, and diverse citizens
Standing- federal court
- Injury
- Causation
- Redressibility
Standing to enforce government statutes if in “zone of interest” congress meant to protectl
11th amendment
Private citizen cant sue state
Actions against state officers
- Enjoin from further conduct that violates constitution or federal law
- Against officer personally
Congress- legislative power
- Enumerated power
- Necessary and proper
- Taxing
- Spending
- Commerce
Necessary and proper
Must work with another power
Laws necessary and proper for executing any power granted to fed gov
Taxing
- Reasonable relationship to revenue production
- Power to regulate taxed activity
- Tax brings money into federal coffers( different from regulation)
Spending power
Spend to Provide for common defense and general welfare
- Any public purpose
- Limited by bill of rights
Commerce clause
Regulate
- Channels of interstate commerce
- Instrumentalities of interstate commerce
- Activities with Substantial affect
Intrastate Activity
- Congress can regulate in aggregate
- Usually ok if noncommercial and noneconomic
- Congress mist show direct substantial economic effect on interstate commerce to regulate
Executive power
- Appointment and removal
2. External affairs
Police power
All powers not delegated to gov reserved for states
Spending power condition “regulation”
- Condition on grant of money to state
A. Clearly stated
B. Not unduly coercive
C. Relate to purpose of program
Article IV privileges and immunities
Prohibits state discrimination against out of staters
( not corps or aliens)
- Protects only fundamental rights
A. Civil liberties
B. Commercial activities - Substantial justification exception
A. State must show non residents cause or contribute to problem
B. No less restrictive means
Dormant Commerce clause/
Negative
State may regulate local commerce
1. If federal law has not regulated
2. May not unduly burden interstate commerce
3. May not discriminate against interstate commerce
Exceptions
1. Furthers a non economic state interest and no non discriminatory alternatives
2. State is acting as market participant
3. Gov action regarding Traditional gov function
- States interest outweighs burden
State legislation flow
- Does Federal legislation exist?
A. Supersedes
B. Preempt the field
C. Authorize otherwise impermissible regulation? - Discriminate or unduly burden interstate activity?
- Exceptions?
A. Non economic state interest
B. State is market prticipant
C. Traditional gov power
State taxing
- Nondiscriminatory
A. Substantial nexus
B. Fair apportionment
C. Fair relationship
13th amendment
- No slavery
Can prohibit racially discriminatory action by anyone
15th amendment
Cant prevent vote by race
State action
- Action by state
- Private entity performing exclusive public functions
- Affirmatively Facilitating private discriminatory action
Contract clause
- State cant retroactively impair contract rights
- Private contracts- intermediate scrutiny
A. Important and legitimate public interest
B. Narrowly tailored - Public contracts - stricter scrutiny( same test but stricter)
Procedural due process
- Life,
- liberty
- loses freedom of action
- is denied a freedom - property interest infringed
- legitimate claim or entitlement
Procedural due process test
- Importance of interest
- Procedural safeguards
- Government interest in efficiency
Usually notice and hearing
5th amendment taking
- Rationally related to legit interest
- Physical invasion or appropriation-> taking
- Denial of all economic use
Source of Substantive due process
- 5th amendment due process clause- federal gov
2. 14th amendment due process clause- state and local
Discriminatory classification
- Facially discriminatory
- Facially neutral, discriminatory application
- Discriminatory motive
Fundamental rights
Strict scrutiny
- Right of privacy
- Right to vote
- Right to travel
Abortion
- Pre viability- no undue burdens
2. Post viability- may prohibit unless health threatened
Congressional elections
Almost exact mathematical equality required for voting districts
Content neutral speech regulations
Intermediate scrutiny-
Important interest, narrowly tailored
Time place manner restrictions
To avoid strict scrutiny
1. Public forums
A. Content neutral
B. Narrowly tailored, important gov interest
C. Alternative channels for communication
- Nonpublic forums
A. Viewpoint neutral
B. Reasonably related to legitimate gov interest
Commercial speech
Protected if truthful
Regulation upheld if
- Substantial gov interest
- Directly advanced interest
- Narrowly tailored (reasonable fit)
Gov employee speech
- Within official duties- can be punished or regulated
- Matter of public concern- balancing test between efficient public service and employees speech interest
- Not public concern- employer has wide deference to punish or regulate
Free exercise clause
- No punishment of beliefs
2. General conduct can be regulated, but cant target particular group
Establishment clause
Action Invalid unless
- Has a secular purpose
- Has a primary effect that neither advances or inhibits religion
- Does not produce excessive gov entanglement with religion
(Lemon test)
