Con Law Flashcards
10th Amendment
Powers not delegated to the United States, nor prohibited to the states, are reserved to the states.
- Limits Congress’s power to regulate the states
- NOT an independent grant of power to the states. Court almost never strikes down federal taxes / regulations on 10th Am grounds. Probably wrong answer.
** Congress does not have power to order states to adopt laws.
- Prohibits the federal government from adopting a statute that compels the states to enact or enforce a regulatory program
** Generally prohibits the federal government from regulating states alone, but states can be regulated through laws that apply generally.
** 11th Amendment
A PRIVATE individual cannot sue a STATE for money damages or for injunctive relief in federal / another state court without consent of the state or congress
Prohibits FEDERAL COURTS from hearing most PRIVATE actions against STATE governments
- Includes actions where the state is a named party or where the state will have to pay retroactive damages
** Private parties can sue OFFICIALs to ENJOIN an officer from future conduct
** Congress can remove 11th Amendment protections Equal Protections grounds
15th Amendment
The enabling clause of the Fifteenth Amendment allows Congress to adopt legislation protecting the right to vote from discrimination.
** Burden of Proof
In all criminal trials, the government has the burden to prove all the elements of a crime beyond a reasonable doubt. However, this rule does not preclude the state from imposing a burden on the defendant to prove an affirmative defense, such as self-defense.
Can a government employer fire an employee for speech-related conduct?
Matter of PUBLIC CONCERN (wide interpretation)
- PURSUANT to OFFICIAL DUTIES: can be punished/regulated
- NOT pursuant to official duties: the courts must carefully balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service
NOT on a matter of PUBLIC CONCERN: can be punished/regulated in the interest of mainting the work environment
Can a private party sue a state official for damages?
Exception to the 11th Amendment; private parties may bring actions to enjoin an OFFICER from future conduct that violates the Constitution or Federal law
- Includes enjoining from enforcement of an unconstitutional law
Can a state be sued in federal court?
Under the 11th Amendment, a federal court may not hear a PRIVATE party’s or a FOREIGN government’s claims against a state government
- State is named as a party
- State would have to pay retroactive damages
- Congress can remove immunity for actions created under the 14th Amendment
- Supreme Court has held that, for Eleventh Amendment purposes, a Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court
** Can Congress delegate its powers?
Congress is free to delegate its authority, and here it has delegated its authority to the President.
Can Congress impose conditions on states in order to receive Federal Funding?
Congress may “regulate” states through the spending power by imposing CONDITIONS on the grant of money to state governments.
- Even if Congress lacked the power to directly regulate the activity that is the subject of the spending program, attaching conditions on the spending does not violate the states’ 10th Amendment rights as long as the conditions are
1. Clearly stated
2. Related to the purpose of the program
3. Not unduly coercive
Can one state government sue another state government?
Yes. The 11th Amendment does not bar actions by one state government against another state government
** Commercial Speech
Regulation of truthful advertising of a lawful activity is valid only if it 1. Serves a SUBSTANTIAL government interest
- DIRECTLY advances that interest, and
- Is NARROWLY tailored to achieve that interest.
Commercial speech is protected by the First Amendment, but the Court tests regulation of commercial speech under a special test.
The Court FIRST asks whether the speech is about a lawful activity and is truthful and not misleading.
If these conditions are not satisfied, the speech has no protection.
If they are satisfied, the regulation will be valid only if it
- Serves a substantial government interest
- Directly advances that interest, and
- Is narrowly tailored to achieve that interest (that is, there is a reasonable fit between the means chosen and the ends sought).
Commercial speech restrictions
If the speech regulated concerns a LAWFUL activity and is not misleading or FRAUDULENT, the regulation will be valid if it -
- Serves a SUBSTANTIAL government interest
- DIRECTLY advances the interest
- NARROWLY tailored to serve the substantial interest.
- Does not require LRM, but there must be a REASONABLE FIT between the legislation’s end and the means chosen
- The greater the restriction on speech, the less likely it will be deemed to be reasonable
- A complete ban on truthful advertising of a lawful product is very unlikely to be upheld because such a restriction is not narrowly tailored
*If a state choses to make a product illegal, it can ban advertising of the products
Constitutionality of a neutral law that happens to burden interstate commerce
If a state law that treats local and out-of-state interests alike the nonetheless burdens IC, it will be VALID unless the burden OUTWEIGHS the promotion of a legitimate local interest
Content Based Restrictions / Viewpoint Regulations on Speech
PRESUMPTIVELY unconstitutional; STRICT SCRUTINY, rarely upheld
Content-neutral speech regulations
Intermediate scrutiny; the government must prove that it is NARROWLY tailored to achieve an IMPORTANT or significant government interest (other than the suppression of speech)
- USSC will not uphold a total ban on a speech activity
- Must leave open channels of communication (leafleting is a uniquely good method)
But even content-neutral regulations can be struck down if they are vague or overbroad. A law is overbroad if it prohibits substantially more protected speech than is necessary, and it is vague if a person of common intelligence cannot tell what is prohibited
Delegation of Legislative Power
Congress has broad discretion to delegate its legislative power; the Supreme Court will uphold almost any delegation of congressional power.
- Requires “intelligible standards”
- Can be delegated even under vague guidelines without creating an unconstitutional delegation
Dormant Commerce Clause
State and local regulations that discriminate against IC to protect local interests are almost always violation of DCC.
1. Facial discrimination?
- If not…burden v. benefit
State/local laws cannot place undue burden on IC, foreign commerce. Regulation must treat economic interests from within the state no differently from economic interests outside of the state. Unconstitutional unless Congress gives it blessing.
- Economic protectionism: DIRECT discrimination against out-of-state businesses/consumers –> violates (unless Congress approves).
- Balancing test: reasoning for state regulation (10th Am) v. Commerce Clause
Effect of a treaty
Properly ratified treaties are the supreme law of the land
- Conflicting STATE or LOCAL laws must yield
- Treaty v. Federal Law…last time time prevails
The U.S. Constitution, federal laws, and treaties are the supreme law of the land; state laws that are in conflict with the supreme law are invalid.
As stated above, the Constitution, federal laws, and treaties are the supreme law of the land. These can certainly give the President authority to invalidate state laws that interfere with federal objectives that are within the powers of Congress, such as objectives under the Commerce Clause
Equal Protection
“The 14th Am equal protection clause prohibits STATES and subsidiary state governments and entities from treating SIMILARLY SITUATED PEOPLE in a DISSIMILAR manner without adequate JUSTIFICATION.”
Treating outsiders differently from residents. A law involving a suspect class/ quasi-suspect class or burdens a fundamental right is involved, nor is a involved
- STATES, 14th Am.
- Discrimination on FEDERAL LEVEL –> substantive due process 5th Am
Establishment Clause
The 1st Am prohibits laws respecting the establishment of religion. Governmental action that does not contain a sect preference will pass muster under the Establishment Clause if passes the Lemon Test (PEE…yellow); requires all of -
- Secular PURPOSE
- Primary EFFECT neither advances or inhibits religion (incidental okay)
- No excessive ENTANGLEMENT (incidental okay)
- E.g., aid in the form of textbooks, transportation to and from school, and assistance for the administration of standardized tests is okay
* State action can be found if the government is significantly involved with the church
* Person asserting a violation of the Establishment Clause does not have to allege infringement of a particular religious freedom in order to have standing; it is enough that the person is directly affected by the government action challenged
Other approaches
- Neutrality
- Coercion
- Endorsement of religion
- History and tradition
Free Exercise Clause
The First Amendment provides that the free exercise of religion shall not be abridged. The amendment prohibits the government from outlawing religious BELIEFS / cannot outlaw conduct merely because it is religious unless NECESSARY to achieve a COMPELLING interest (strict scrutiny)
- Absolute protection for religious beliefs, as long as they are SINCERE.
- Cannot be used to challenge a NEUTRAL law of GENERAL application, no matter how much it burdens practices, as long as it is not designed/INTENDED to burden religious freedom, e.g., just happens to sweep up practice of specific faith. State is not required provide religious exemptions from the statute.
- Clergy can hold elected office
- Irrelevant whether the religious practice interfered with is a core religious belief or merely a minor belief
** Government Nativity Scene
If a government’s holiday display includes religious symbols (a nativity scene or a menorah) as well as other holiday decorations (a Christmas tree or a Santa Claus figure), the courts will allow the display. If the display includes only symbols of a particular faith, it will violate the Establishment Clause because it has a religious effect (it “endorses” religion).
If the government denies a fundamental right to everyone…
If the government denies a fundamental right to only some people…
Substantive due process, not equal protection.
Analyze under equal protection + substantive due process (for essays)
** Ineffective Assistance of Counsel
To obtain postconviction relief for ineffective assistance of counsel, the claimant must show her counsel’s performance was deficient and that, but for the deficiency, the outcome of the trial would have been different.
- The standard is “reasonable probability”
Intermediate scrutiny review
STATE must show law is SUBSTANTIALLY related to an IMPORTANT government interest.
- Gender
- Legitimacy
Limited Public Forum or Nonpublic Forum
Other than streets, sidewalks, parks, and designated public forums, MOST public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum. The government can regulate speech in such a forum to reserve the forum for its INTENDED USE.
Regulations will be upheld as long as they are
- Viewpoint neutral
- Reasonably related to a legitimate government purpose.
* The citizen would have the burden of proving that there was no reasonable basis for the statute
** Obscenity
Not protected speech; government does not need a specific compelling interest to ban it.
A description or depiction of sexual conduct that, taken as a whole, by -
1. Average person in the contemporary COMMUNITY/STATE; prurient interest in sex/portrays sex in a PATENTLY OFFENSIVE way
2. NATIONAL reasonable person standard; does not have serious literary, artistic, political, or scientific VALUE.
≠ mere nudity
** Overbroad speech regulation
A regulation of speech will not be upheld if it is overbroad, i.e., prohibits SUBTANTIALLY more speech than is necessary
- A regulation punishing a substantial amount of protected speech judged in relation to its legitimate sweep is facially invalid and cannot be enforced against anyone UNLESS the court has limited construction of the regulation to remove the the threat to protected speech
Privileges and Immunities
Privileges and Immunities Clause of Article IV prohibits STATES from discriminating against NON-RESIDENTS for important economic interests or civil liberties. INVALID unless the state has a SUBSTANTIAL JUSTIFICATION and there are NO LRM.
- E.g., protects OUT of state citizens from economic discriminations
- There must be discrimination
- C.f., NEW residents, Priv OR Immun
- Does not apply to CORPORATIONS / ALIENS
Privileges or Immunities Clause
The 14th Amendment Privileges OR Immunities Clause prohibits states from denying their citizens the privileges or immunities of NATIONAL citizenship
** Residency requirements
- The right to interstate travel (includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state)
- Right to petition Congress for redress
- Right to vote
- Right to government benefits
Procedural Due Process
The Due Process Clauses of the 5th Am (federal) and 14th Am (states) provide that a person has a right to a fair process when the government deprives them of life, liberty, or property. Requires -
- NOTICE
- HEARING
- -BALANCING TEST; interest being taken away v. risk of error if no hearing is granted. - NEUTRAL decision maker
- Must be intentional / reckless government action
** Property Interest in Job
A government employee will have a property interest in continued employment only if the employee has a legitimate claim to (as opposed to a mere expectancy of) continued employment. To have such a claim, there must be a CONTRACT, CLEAR PRACTICE, MUTUTAL understanding, etc., that the employee can be terminated only for CAUSE.
- E.g., If someone in a position of authority promised that the teacher could be dismissed only for cause and the teacher relied on this promise by moving, a case can be made that the teacher had a legitimate claim to continued employment despite the employee handbook
- A public employee who is subject to removal only for “cause” has a property interest in her job; generally must be given
1. Notice of the charges against her that are to be the basis for her job termination
2. A pre-termination opportunity to respond to those charges - Due process does not necessarily entitle to a pre-termination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient
Rational basis review
PLAINTIFF must show law is not RATIONALLY related to LEGITIMATE government interest
- A law is presumed to be valid
- Does does not target a suspect classification, does not burden a fundamental right
Requirements for certification by the USSC
The Supreme Court may grant certiorari to review a case from the HIGHEST court in a state that can render an opinion on the matter if a state statute’s validity is called into question under the FEDERAL Constitution
- I.e., the Supreme Court will hear a case from a state court only if the state court judgment TURNED ON federal grounds….
- May decide the federal issues, but cannot rule on the state law issues
- Will refuse to hear the case only if the STATE ground is adequate by ITSELF to support the decision as well as independent, so that the Court’s review of the federal ground for the decision would have NO EFFECT on the OUTCOME of the case, e.g., state court had found the law invalid under both the state and federal Constitutions
** Residency Requirements
The right to travel is protected by the Fourteenth Amendment, and it includes the right of newly arrived citizens to enjoy the same privileges as are enjoyed by other citizens of the state.
- The law that gives a benefit to long-term residents (people who have been residents more than a year) and soinfringes on the right to travel.
Standard for state action via private entity
Private action will constitute state action when
- Private actor is performing a TRADITIONAL AND EXCLUSIVE public function or
- The state is SIGNIFICANTLY INVOLVED in the private action
“Significantly involved,” mere acquiescence by the state to private conduct is not enough
- States need not outlaw discrimination…just forbidden to facilitate, encourage, or authorize it
Standing
Standing requires a concrete stake in the outcome of a controversy which includes an injury in fact.
- Abstract injury is not enough; the plaintiff must show that he has sustained or is immediately in danger of sustaining a particularized and concrete injury as the result of the challenged official conduct.
- The injury or threat of injury must be real and immediate, not conjectural or hypothetical
- Determined at the BEGINNING of a lawsuit
- PRESENT injury in fact (economic, ideally. E.g., entered into contracts)
- Causation (sue party that caused harm)
- Redressability (court needs to be able to make you whole)
State taxation of interstate commerce
A state tax is valid under the Commerce Clause if -
- Not preempted by federal law
- The tax does not DISCRIMINATE against interstate commerce
- There is a substantial NEXUS between the ACTIVITY taxed and the taxing STATE
- The tax is FAIRLY apportioned
- The tax fairly relates to services or BENEFITS provided by the state
** State’s Power to Tax the Federal Government
A state tax levied directly against the property or operation of the federal government without the consent of Congress is invalid.
- However, nondiscriminatory, indirect taxes on the federal government or its property are permissible if they do not unreasonably burden the federal government
- Because this tax is not levied directly against the government, but rather against the provider of a service that the government is obtaining, and is levied on all communications lines in the state, the tax is valid
Both the federal government and the state government have the power to tax, but the federal law is supreme in this area. (C) is wrong because not every state tax that burdens the federal government is invalid. A nondiscriminatory tax on a service provided to the federal government by a private entity does not appear to be an unreasonable burden on the operation of the federal government. (D) is wrong because the fact that interstate commerce is involved does not invalidate the tax. Power over commerce is concurrent, belonging to both the states and the federal government. While federal law is supreme in the area of interstate commerce, state legislation that affects interstate commerce is not automatically invalidated.
Substantive Due Process
Guarantees that laws will be reasonable and not arbitrary, both as to rights enumerated by the Constitution and unenumerated rights.
- If a FUNDAMENTAL RIGHT is limited, law or action is evaluated under STRICT SCRUTINY
1. All First Am rights
2. Right to interstate travel (and be treated equally there) - Durational residency requirements
3. Privacy-related rights - Marriage
- Procreation
4. Voting - All else, rational basis
The Commerce Clause
As part of its power to regulate interstate commerce, Congress may regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce.
- Congress has absolute PLENARY POWER to regulate INTERSTATE COMMERCE, commerce with foreign countries.
*RATIONAL BASIS; must be rationally related to interstate commerce
- “CIA “
1. Channels
- Telephone and similar communications devices
2. Instrumentalities
- Transportation that constitutes IC
3. Activities w/ substantial effect on IC
** Alien or corporation may be a plaintiff
The First Amendment
The first amendment generally prohibits the government from restricting the CONTENT of speech unless the GOVERNMENT can prove that the restriction is NECESSARY to achieve a COMPELLING government interest
Gives a person the right to say what he wants, and also prohibits the Government from requiring persons to say what they do not want to say.
The General Welfare Clause
Congress has the power to lay taxes under Article I, Section 8, and spend under the 16th Am. CONGRESS can TAX and SPEND for the GENERAL WELFARE. A congressional tax measure will be upheld if it
- Bears some REASONABLE relationship to revenue production or
- If Congress has the POWER to regulate the taxed activity, e.g., interstate commerce
- Congress’s strongest power
- Separate from the Commerce Clause!
- Cannot be UNDULY COERCIVE
- Congress may spend for any public purpose, not merely the accomplishment of other enumerated powers
* The spending power does NOT give Congress power to PASS LAWS for the general welfare, even when combined with the Necessary and Proper Clause. No non-spending regulations!
** Unprotected speech
- Incitement of lawless action; does not apply to abstract lawlessness, must be IMMINENT
- Fighting words
- Obscenity
