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Con Law Flashcards

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1
Q

Requirements for getting a case in federal court

A
  1. interpretation of const or federal statute
  2. diversity between citizens
  3. cases between states

AND

a case or controversy

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2
Q

What makes something a case or controversy generally? (3)

A
  1. not an advisory opinion
  2. ripe and not moot
  3. standing
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3
Q

What makes something an advisory opinion? (2)

A
  1. no actual dispute between 2 parties

2. no legally binding effect on 2 parties

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4
Q

What makes an issue ripe?

A

formalized and concrete effect.

Legal issue and not factual issue, not relying on uncertain contingencies, and will suffer substantial hardship in future if no review

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5
Q

Exceptions to general mootness rule- types of cases that are not ongoing but still not moot

A
  1. capable of repetition but limited duration
  2. D voluntarily stops but can reopen
  3. class action with live claims
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6
Q

standing requirements (3)

A
  1. injury
  2. causation
  3. redressability
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7
Q

exceptions to standing rules- injuries upon which citizens can sue (3)

A
  1. tax payers- individual tax liability
  2. individual- federal action interferes with 10th A
  3. tax payers- congressional spending violates Establishment Clause
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8
Q

exceptions to standing rules- injuries upon which 3rd parties may sue

A

difficult for the 3rd party, relative, an organization on behalf of members, free speech overbreadth

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9
Q

When can Congress attach strings to a regulation made under the Spending Clause?

A

clearly stated, related, constitutional, not unduly coercive

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10
Q

3 options for Congress to regulate under the ICC

A

channels, instrumentalities, local activities that have substantial effect in the aggregate

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11
Q

How can state govt tax federal employees?

A

indirect, non-discriminatory, not overly burdensome, not related to how they perform govt functions

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12
Q

When does a federal law preempt state law through implied preemption

A
  1. conflict and can’t follow both
  2. impedes or frustrates without direct conflict
  3. field preemption
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13
Q

P&I article 4 analysis- when states cannot pass a law that discriminates against out of state citizens

A

About important commercial activities or fundamental rights and intentionally protectionist in nature

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14
Q

How states may override P&I and pass a law that discriminates against out of state citizens

A

necessary to achieve important purpose
and no less restrictive alternatives available
and passes DCC if it’s about economic interests

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15
Q

How can states regulate interstate commerce?

A

No federal law, doesn’t unduly burden interstate commerce, doesn’t discriminate against out of state citizens, not irrational (benefit worth the burden), passes DCC

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16
Q

DCC analysis- states regulating interstate commerce in a way that discriminates against out of state citizens

A

necessary to achieve important non-economic purpose, no non-discriminatory alternative, or fits into exception (congressional approval, market participant, corp, traditional govt purpose)

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17
Q

How can states tax interstate commerce?

A

Congress has not spoken on the issue, does not discriminate, activity has substantial nexus to state, fairly apportioned according to rational formula, fairly related to services provided by the state

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18
Q

Rational Basis Review

A

not fundamental right, not against suspect or quasi suspect class, rationally related to legitimate govt purpose

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19
Q

intermediate scrutiny

A

law discriminates against quasi suspect class but is substantially related to important or significant govt purpose (exceedingly persuasive for gender)

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20
Q

strict scrutiny

A

burdens fundamental right or discriminates against suspect classification but is necessary/narrowly tailored/least restrictive to achieve compelling govt purpose

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21
Q

procedural due process

A

Before being deprived of life, liberty, or property, a person has right to reasonable notice, opportunity to be heard, with a neutral decisionmaker

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22
Q

Substantive due process questions

A

A fundamental right, either enumerated or not enumerated, is restricted for all people, claim is under 14th or 5th amendment, get strict scrutiny unless decided otherwise

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23
Q

Equal protection questions

A

A right is restricted for some ppl, under 14th amendment for state law or 5th amendment for federal

either gets strict, intermediate, or RB scrutiny, depending on fundamental right/suspect class

24
Q

Racial classifications in schools under EP

A

intentional segregation- never ok
unintentional imbalance due to housing- always ok
remedying past intentional imbalances through integration in lower schools- must be pass strict scrutiny
promoting diversity in lower schools- not ok
remedying past imbalances in higher schools- must pass strict scrutiny
promoting diversity in higher schools- must only be one factor

25
Q

Abortion analysis

A

pre-viability- states can regulate if no undue burden

post-viability- states may ban unless necessary to protect women

26
Q

3 ways for a law to be discriminatory under EP

A
  1. facially discriminatory
  2. facially neutral but discriminatory in application and intent
  3. facially neutral but disparate impact and discriminatory intent
27
Q

What is included in suspect class

A

race, national origin, alienage (state and local level)

28
Q

what is included in quasi suspect classification

A

gender, non-marital children

29
Q

What is a taking under 5th amendment and how can it be done constitutionally?

A

taking property (interfering/confiscating real or personal), not for development conditions or public emergency, for public use that is rationally related to legitimate govt purpose, with just compensation measured by fair value

30
Q

When is expressive conduct considered speech?

A

Conduct is inherently expressive or intended to convey a message and reasonably likely to be perceived as such

31
Q

Obscenities- when can it be restricted under free speech?

A

Depicts sexual conduct that is listed in a statute, and when taken as a whole it appeals to prurient interests of community, is patently offensive under community standards, and lacks serious value under reasonable person standards

32
Q

Unprotected speech that can sometimes be censored in some way

A

incitement, fighting words, true threats, obscenities, as long as not view-point based and follow rules

33
Q

Special categories of speech that are partially protected

A

Defamation of public figure of matter of public concern, other torts against public figures, commercial speech

34
Q

What speech restrictions are subject to which type of scrutiny?

A

content-based restrictions- limit speech based on subject matter of
viewpoint= strict
content-neutral restrictions- limit based on time, place, or manner=
intermediate
also cannot be overbroad, vague, or use prior restraint

35
Q

Rule for public defamation under free speech

A

In order to recover tort damages, defamation of public figure or about public matter must include all elements of defamation, falsity, and actual malice

36
Q

When is commercial speech not protected?

A

false, misleading, or about illegal services

If it is not any of these things, can still be regulated if: (1) serves a substantial government interest, (2) directly advances that interest, and (3) is narrowly tailored to achieve that interest (that is, there is a reasonable fit between the means chosen and the ends sought).

37
Q

When can speech in govt employment be unprotected?

A

involves a matter of private concern- speech is made at work, is disruptive to work, or was made pursuant to official title
private concern- speech made at work pursuant to official duties

38
Q

When is speech in govt employment protected?

A

private concern- outside of work, no detrimental effect on work,
public concern- not made pursuant to duties and value of speech outweighs govt workplace efficiency interests

39
Q

When can speech be regulated at public school?

A

on campus- evidence of substantial disruption (except drug use)
off campus- if safety interests outweigh speech interests
in teaching- reasonably related to legitimate concerns

40
Q

When is prior restraint of free speech allowed?

A

special societal harm, passes requisite scrutiny, and passes safeguards: narrowly drawn, reasonable, definite, promptly seeks injunction, prompt and final judicial determination of validity

41
Q

How can a discriminatory law pass strict scrutiny under freedom of religion? (never happened)

A

not facially neutral or not generally applicable

42
Q

What is considered a non-discriminatory law under freedom of religion?

A

facially neutral and generally applicable

43
Q

Lemon test for govt action under Establishment Clause

A

1-secular purpose
2-primary effect that does not inhibit or advance religion
3-does not produce excessive govt entanglement with religion

44
Q

MEE Standing in Federal Ct

A
  1. It’s a case or controversy about interpreting federal law or a dispute between diverse citizens (not a judicial opinion, ripe, and not moot)
  2. There is an injury (concrete and particularized), causation, and redressability
45
Q

MEE 11th Amendment

A

Lawsuits against states are basically barred unless fall into exception (waived, civil rights, bankruptcy, local govt)

Always barred in federal ct.

Lawsuits against state officials are allowed if personal or for injunction. Damages not allowed if it will be reimbursed by state.

46
Q

MEE Federal taxing and Spending Power

A

Congress has no general police power

Through Necessary and Proper Clause, Congress can spend on general welfare for public purposes.

There can be strings/penalties attached, as long as: clearly states, related, constitutional, and not unduly coercive

A tax might be an impermissible penalty if it’s not related enough to revenue production.

47
Q

MEE Interstate Commerce Power (federal analysis)

A

Congress can regulate interstate and foreign commerce as long as: channels, instrumentalities, or local activities with substantial aggregate effect.

Must be economic. Must be regulating and not compelling activity. Must not be related to civil rights.

Federal govt can regulate and tax state govt if applies to both public and private sector.

Federal govt can use Spending power non-coercively to incentivize states to enact federal legislation but cannot compel.

48
Q

MEE Delegation and Bicameralism

A

Congress can delegate as long as intelligible principle and not a matter confined to Congress.

The president cannot do line item veto. Congress cannot veto a law that was already passed.

Lawmakers cannot be prosecuted for regular lawmaking conduct.

49
Q

MEE State police power

A

States have general police power under 10th. Can make any laws that:

if burden fundamental right- passes strict scrutiny
if discriminates against suspect class- passes strict scrutiny
if no fundamental right/discrimination: has rational basis to legitimate public purpose

State can tax and regulate federal govt employees if: indirect, non-discriminatory, not overly burdensome, not related to their work

50
Q

MEE preemption

A

Under Supremacy Clause, Federal law trumps state law if:

express- only Congress may regulate
implied- there’s a conflict, state law impedes, or Congress effectively has field regulation

State law may always go beyond federal floor.
State law will not be preempted unless clear and manifest purpose of Congress.
Police power regulations are presumptively in state control.

51
Q

MEE P and I (Art 4)

A

States cannot discriminate against out of state citizens (not aliens or corps) if the law:

  1. relates to fundamental rights or important commercial activities
  2. and it’s an intentionally protectionist law

BUT this can be overrode if:

  1. it’s necessary for impt govt purpose
  2. and no less restrictive means available

and it’s ok under DCC, ICC, EP, DP, etc.

52
Q

MEE 14th Amendment P or I

A

A state may not discriminate against its own citizens with regard to:

interstate travel
getting state citizenship
any other rights of national citizenship

53
Q

MEE Interstate Commerce (state analysis)

A

States may regulate interstate commerce if:

No federal law (Supremacy)
Doesn’t unduly burden interstate commerce (ICC)
Doesn’t discriminate against out of state commerce (DCC)

If it’s burdensome –> prove it’s not irrational, the burden does not outweigh the benefit

If it discriminates–> prove it’s necessary to achieve impt non-economic interest and no alternative

Unless fits into Exceptions to DCC (cong approval, market participant, state of incorp, traditional govt function)

State can tax interstate commerce as long as Congress has not spoken on it, it’s not discriminatory, activity has substantial nexus to state, tax is fairly apportioned and related

54
Q

MEE 5th and 14th Amendments

A

BOR applies to states under 14th Amendment. Federal govt may not restrict individual rights under 5th. States may not restrict through the 14th. Private action may be prohibited and considered govt action if sufficient entwinement (or if slavery).

Rational basis review- applies to when there is govt action about no fundamental right or discrimination. Govt may make laws that restrict individual rights if rationally related to legitimate govt purpose. P has burden of proof.

Intermediate scrutiny- applies when there is govt action that discriminates based on gender/marital children. Govt may make laws that restrict indiv rights if law is substantially related to impt or significant govt purpose. Exceedingly persuasive justification for gender. Burden unclear but prob govt.

Strict scrutiny- applies when there is govt action that burdens fundamental right or discriminates. Govt may make laws that restrict indiv rights if law is necessary/narrowly tailored/least restrictive to achieve compelling govt purpose. Govt has burden.
There are 3 ways to be discriminatory- facially, intentionally in application, and intentionally in impact.

Laws that restrict equal rights usually challenged under DP or EP.
(Speech has its own standards for each type of speech- 1st and 14th A)
Fundamental rights are anything enumerated, plus voting, interstate travel, privacy, …
suspect classes are race, alienage (state and local), national origin, religion (has its own rules under 1st and 14th)

55
Q

MEE Due Process

A

Procedural:

There must be DP before deprivation of life, liberty, or property.
This constitutes reasonable notice, opportunity to be heard, before neutral decision-maker.

Substantive:

Usually a DP claim if law restricts rights of people. Also analyze under EP.

Apply the correct standard for which right is being affected and analyze.

56
Q

MEE Equal Protection

A

If a federal or state law restricts rights of a group of ppl, analyze under EP. Also analyze under DP.

Apply correct standard.

Special analysis already done for racial classifications in schools, abortion, marriage

Bar (12 decks)

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