Con Law Flashcards
11th amendment state sovereign immunity
prohibits a party from suing a state or state agency in federal court unless
consent
suit pertains to law adopted under section 5 of 14A
suit is against state official
does not apply to local gov, state v. state suits, or suit by fed gov against state
standing
- injury in fact: concrete and particularized injury
injunctive/declaratory relief = P must show concrete, imminent threat of future injury - causation and
- injury is redressable by court order
third party standing
prohibited unless
- close relationship exists
- difficult or unlikely for third-party to assert their rights on their own or
- third-party is an organization and suit is brought on behalf of members and is related to an issue germane to org purpose, members would have standing to sue, and member participation is not necessary
ripeness
whether the case is ready to be litigated
case is ripe when actual harm or an immediate threat of harm exists
pre-enforcement review of state statute allowed after considering hardship of parties if no review and fitness of the record
mootness
when a dispute has ended or was resolved before review
exceptions:
1. capable fo being repeated but evading review
2. voluntary cessation, but capable of resuming at any time or
3. class actions, where at least one member has ongoing injury
commerce clause
applies to channels of interstate commerce, people and instrumentalities of interstate commerce, economic/commercial activity that has substantial effect on interstate commerce
federal regulation of interstate commerce will be upheld when
- rational basis
- to conclude that the cumulative impact (aggregation)
- has substantial effect on interstate commerce
**aggregation not allowed when activity is not commercial or economic in nature
taxing power
congress has power to lay and collect taxes, duties, imposts and excises
must be geographically uniform throughout US
16A allows C to collect taxes on income from any source
spending power
congress has power to spend for common defense and general welfare
conditions or restrictions on receiving federal funds
conditions attached to funding will be upheld if
- imposed unambiguously
- condition related to federal interest in national program or project
- condition is not so coercive as to turn pressure into compulsion and
- spending it is attached to is for the general welfare
domestic powers of the president
execute laws
appoint ambassadors, counsels, fed judges, and officers (with senate advice and consent)
appoint inferior officers when C gives power
remove cabinet-level appointees without cause
remove independent regulatory agency appointees without cause unless C imposes a law requiring good cause
pardon federal crimes and
act as commander in chief of military
treaty & foreign affair president powers
pres shares treaty powers with C. treaties may be negotiated by pres, but must be ratified by Senate
pres has the power to enter into exec agreements without Senate approval
pres has power to control and deploy US troops in other countries
delegation of C powers
congress may delegate legislative powers if
- the powers are delegable under constitution and
- congress provides reasonably intelligible standards to guide the delegation
non-delegation doctrine: C cannot delegate powers it does not have
state immunity
all powers not granted to the fed are reserved for the states unless prohibited by constitution
congress cannot compel state gov’t to implement legislation but may induce action by attaching restrictions and conditions pursuant to spending power
dormant commerce clause
a state may regulate commerce if congress has not enacted laws on subject matter (if laws regulating it are enacted, state law is preempted)
states cannot pass laws that discriminate against out of state commerce or place an undue burden on interstate commerce
dormant commerce clause - unduly burdensome regulations
laws that are not discriminatory, but place undue burden on interstate commerce are unconstitutional when
- burden is on interstate commerce
- clearly excessive to the putative benefits to state or local gov’t
* balancing test on case by case basis
dormant commerce clause - discriminatory regulations
discriminatory regulations: laws that are discriminatory or have a discriminatory impact are unconstitutional unless
- burden is narrowly tailored to achieve a legit, non-protectionist state objective or
- state is a market participant rather than a regulator of economic activity
preemption
under the supremacy clause, a validly enacted federal law will always preempt conflicting state law
- express - occurs when the fed law specifically states that it is exclusive
implied - occurs when direct conflict with state law or state law substantially interferes with the objective of federal law
- field preemption - fed law is so expansive the state law is unnecessary or consumed by application of federal law
incorporation doctrine
amendments are applicable to the states by incorporation through 14A Due Process clause
exceptions: 3A, 5A, 7A
14A Equal Protection is incorporated into 5A DP clause, making it applicable to fed gov’t
government action of a private actor
courts will find gov’t action when
- traditional public function (powers traditionally and exclusively reserved to the gov’t) or
- significant gov’t involvement exists to authorize, encourage, or facilitate private unconstitutional conduct
Due Process
no person shall be denied life, liberty or property without due process of law
states - 14A
federal - 5A
- substantive - gov’t power to regulate activities
when regulating fundamental rights (marry, procreate, contraceptive, family, custody, vote, privacy, interstate travel) strict applies (necessary to achieve compelling gov’t interest)
non-fundamental rights = rational basis test - procedural - certain procedures req when gov’t deprives a person of life, liberty, or property (entitlement)
adequate due process requires notice, opportunity to be heard, unbiased hearing
determining procedure req is done by balancing
- importance of private interests
- risk of error under current procedure and the value of additional procedures and
- importance of state interest and burden imposed by additional safe guards
equal protection
prohibits gov’t from denying citizens equal protection of laws. discriminatory classification exists when law is discriminatory on its face, is applied in discriminatory manner or a discriminatory motive exists
the test is based on the basis of discrimination suspect class or infringes on a fund right = strict quasi-suspect = intermediate all other classes = rational basis
suspect classes
race, nationality, alienage classification under state law
quasi-suspect class
gender, non-martial children, and likely sexual orientation
strict scruit
gov’t has burden of showing classification is necessary to serve compelling gov’t interest
intermediate scruit
gov’t has burden of showing classification is substantially related to an important gov’t interest
rational basis
plaintiff must show classification is not rationally related to a legit gov’t interest
regulatory taking categories
- depriving owner of all economically viable use (per se taking)
- penn central taking - court will balance economic impact of regulation on claimant, the extent of interference with investment-backed expectations and character of regulation
- conditions on approval of a permit (land-use exaction) - do not constitute taking if there is an essential nexus b/t state interest and permit condition exists and gov’t makes an individualized determination that condition is roughly proportional to advancing state interest
possessory taking
gov’t physically occupies the proeprty
valid gov’t taking
gov’t may take private property for public use if it provides just compensation
public use = rationally related to a conceivable public purpose
just compensation = FMV at time of taking
privileges and immunities clause
under PI clause of Art IV states cannot intentionally discriminate against non-residents concerning
- civil liberties (vote, travel, etc.) or
- important economic activities (ability to earn livelihood)
* *does not protect corps or aliens
discriminatory regulations will be upheld if the state is justified when
- substantial reason exists and
- discriminatory law has a substantial relationship to that reason
establishment clause
prohibits govt from est a religion or endorsing/supporting religion
laws discriminatory against religion must meet strict – govt must show
- law is narrowly tailored
- to achieve compelling interest and
- least restrictive means to achieve that interest
laws that do not discriminate, but have a relationship with religion will be upheld if:
- secular purpose
- primary effect does not advance or inhibit religion and
- does not excessively entangle the gov’t with religion
free exercise clause
prohibits govt from interfering with the exercise of religion
laws designed to interfere with religion are subject to strict – must show:
- narrowly tailored
- to achieve compelling govt interest and
- least restrictive means
laws of general applicability that cause unintentional burdens on religion are constitutional and do not offend the free exercise clause
content-based speech restrictions
gov’t regulations regarding content of speech (subj matter or viewpoint) are subj to strict scruit (narrowly tailored, compelling interest, least restrictive)
content-neutral speech regulations
time place manner test: govt may regulate the time, place, and manner of content-neutral speech if gov shows that
- the regulation is narrowly tailored
- to achieve a significant gov interest and
- leaves open alternative channels of communication
public forum speech
place traditionally available to the public for speech (parks, sidewalks, streets, etc)
content-based – strict
content-neutral – time, place, manner test
designated forum
a place not traditionally made available for public speech, but gov chose to make it available (school makes classroom open for club meetings)
content-based – strict
content-neutral – time, place, manner test
limited public forum
non-public forums that were specifically designated by the gov as open to certain groups or topics
gov may regulate speech if reasonable and viewpoint neutral regulation
non-public forum
places traditionally limited for speech (military bases, schools, jails, airports)
gov may regulate if reasonable and viewpoint neutral
unprotected types of speech
fighting words - words by which their very utterance inflict injury or tend to incite an immediate breach of peace
incitement of imminent lawless action - clear and present danger test applies – speech advocating the use of force or illegality, intent to direct imminent lawlessness, and likely to incite such action
obscenity - material that appeals to sexual interest of an avg person under today community standards, is patently offensive AND lacks serious artistic, literary, or scientific value (private possession by adult inside home cannot be made criminal other than child porn)
commercial speech - not protected if false or misleading
regulation of commercial speech
gov may regulate truthful, non-misleading commercial speech if the regulation directly advance a substantial govt interest and is no more extensive than necessary to serve that interest (strict scruit)
regulation of speech in public school
a school may regulate speech if it shows the conduct regulated would materially and substantially interfere with the operation of the school
vague or over-broad regulation of speech
vague = does not put the public on reasonable notice as to what is prohibited
overbroad = regulates more speech than is constitutionally permitted
punishing a persons membership to group
gov may punish a person’s membership in group if proves the
- group actively engaged in illegal activity or incites lawless action
- person has knowledge of group’s illegal activities and
- person has specific intent of furthering those activities
regulation of gov employee speech
two step process to determine if their speech is protected
1. did employee speak as citizen on a matter of public concern? if no, speech is not protected. if yes, go to step 2
2. did the gov entity have adequate justification for treating employee differently from gen public? (based on gov interest as employer)
the court must balance employees rights vs. gov employer interest
if a gov employee speaks pursuant to their official duties, then speech is not protected
prior restraint on speech
occurs when gov’t attempts to regulate speech before it happens through court order or licensing req. generally disfavored except in limited circumstances. must satisfy strict.
freedom of association regulation
the gov may only regulate right to associate if it meets strict scrutiny
show regulation is necessary, to achieve compelling gov interest, and least restrictive means to achieve such interest
bill of attainder
statute imposing punishment without any trial
applies where DP doesnt b/c DP procedure doesnt apply to legislative acts
procedural safeguards required for licensing involving speech or fund rights
procedural safeguards for licensing req:
- gov has important reason
- specific, articulated standard to remove discretion and
- procedural safeguards in place, including prompt final judicial decision when denied
right against self-incrimination
only available for compelled testimonial evidence
testimonial = verbal or otherwise communicative compelled = elicited or induced (evid. from free will or given with immunity is not compelled)
***does not apply to companies
