Con Law Flashcards
State Tax
Valid if it is nondiscriminatory & does not apply directly to the federal gov.
Fourteenth Amendment
Prohibits states from depriving any person of life, liberty or property without due process & equal protection of the law.
Prohibits a state from limiting access to the ballot to members of particular political parties unless the prohibition is necessary to further a compelling interest
Equal Protection Clause
no state shall make or enforce any law which shall… deny to any person within its jurisdiction equal protection of the laws.
If certain fundamental rights that are protected under the constitution are denied to some individuals it is an equal protection problem
Ripeness
i. fitness o f the issue for judicial decision and
ii. hardship to the parties of with-holding court consideration
Unconstitutional taking
5th amendment prohibits the government taking of private property for public use without just compensation
Both state & federal governments have the right to take private property for public use as long as just compensation is paid
Scope of gov. taking encompasses not only physical appropriations of property but also any gov. action that significantly damages property or impairs its use
show rational relationship between the requirement and the gov interest
Burden is on city to carry the burden of establishing the burden on the public.
Uncompensated taking
i. conveying title to part or all of the property to the gov;
ii granting the public access to the property
Not uncompensated taking (exceptions)
i. the gov can show the condition relates to a legitimate gov interest (nexus); and
ii. there is a roughly proportionality between the size of the give-back demanded by the city & the burden on the public caused by the proposed development
Unprotected speech
Obscenity: description or deception of sexual conduct that an average person would find:
i. appeals to the prurient interest in sex
ii. portrays sex in a patently offensive way and
iii. does not have any serious literary, artistic, political or scientific value
Prurient
material having a tendency to excite lustful thoughts
Commercial speech 1st amendment protection.
Determining whether a regulation of commercial speech is valid: 4 step process
i. Initially whether the commercial speech concerns a lawful activity that is not misleading or fraudulent
ii. The regulation must serve a substantial government interest
iii. It must directly advance that interest; and
iv. it must be narrowly tailored to serve the substantial
Obscene
to be considered obscene the pictures on the video would have to amount to a deception that an average person would have found to be excessively appealing to sex or portraying sex in a patently obvious way
First Amendment: Right to join together with other people for expressive or political activity
Right to join together with other people for expressive or political activity is protected by the First Amendment. Right is not absolute.
Limited w/ regard to those who join w/ the specific intent to further illegal action.
Battery
A P must prove that there was an act by the D which brought about harmful or offensive contact with the P’s person.
The d is not required to have personally carried out the offensive or harmful contact w/ the P as long as the D set into motion an action with purpose or knowledge to a substantial certainty that the offensive or harmful contact would result
Procedural Due Process
guarantees a person certain rights if he is deprived of life liberty or property
(ie. freedome of movement)
Fair process
When the gov. intentionally deprives a person of a legitimate liberty interest
i. the level of importance of the individual’s interest
ii. how valuable procedural safeguards are in protecting that interest
and
iii. the governments interest in adjudicative efficiency
Public school disciplinary action
specific suspension of more than 10 days a student must be given notice of the gov. action
and an opportunity to explain before imposition of the punishment
Privileges & Immunities Clause
prohibits citizenship or residency classifications
Facially overbroad
Only if it could never be applied constitutionally in any situation
Bill of attainder
a law that imposes a punishment w/o judicial proceeding.
Conducted by an administrative body & it is not unconstitutional for an administrative body to act in a quasi-judicial manner
Appointments Clause of the Constitution
President is empowered the advice & consent of the senate to appoint all ambassadors, other public ministers & consuls judges of the supreme court and all other officers of the US whose appointments are not herein otherwise provided for.
Statute violations:
- limiting the ambassador selection to a list of nominees violates the president’s power to nominate principal officers
- automatic 30 day confirmation provision violates the senatorial consent requirement
Legislative Immunity
In the course of the legislative process protected by legislative immunity bc senator’s statement was made on the senate floor,.
Speech & Debate Clause
shields members of congress from
i. civil or criminal suits relating to their legislative actions and
ii. grand jury investigations relating to those actions
Immunity extends to aids who engage in acts that would be immune if performed by a legislator.
Conduct that occurs in the regular course of the legislative process & the motivation behind this conduct are immune from prosecution
Speeches & publications made outside congress are not protected
Serves the important separation of powers function of assuring the members of congress are not distracted from their duties by being called into court to defend their actions
anything said in the course of federal legislation process is immune from prosecution
Age
violation of 5th amendment, implied equal protection provision. Would trigger a rational basis review
Privileges or Immunities Clause of the 14th Amendment
prohibits states from denying citizens rights & immunities of national citizenship (right to interstate travel; right to vote for federal officials) only applies to state statutes not federal
President & Federal Executive Agencies
President may direct federal executive agencies as long as Congress is silent on the matter &
the direction does not interfere with other branches
US Supreme Court has adhered to an overarching limitation on presidential power
President may not make laws, he may only carry them out. Congress may sometimes be found to have impliedly acquiesced (allowed) to the President’s exercise of power in a certain area.
President does not have the authority to direct the actions of persons outside the executive branch unless the President’s direction is authorized by an act of Congress
Presidents rights
When the President acts within the bounds of his executive powers,
and when Congress is silent on the matter his directives will be upheld as long as they do not otherwise interfere with other branches
Does not have plenary authority to direct all administration of federal agencies in a way he chooses,
His direction must abide by the will of Congress & must remain contained within the executive branch.
If he acts in a way that conflicts with the will of Congress it will likely be invalidated
14th Amendment Private Action
prohibits state action but not private action
Private actor does not become a state actor merely by inviting the public to an activity
Commerce Clause aka “Dormant Commerce Clause”
a state or local gov may regulate local aspects of interstate commerce if the regulation:
i. Does not discriminate against out of state competition to benefit local economic interests; and
ii. is not unduly burdensome (ie the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation).
If the regulation fails either prong it will be a violation
1st & 14th Amendment
Generally apply only to actions of governments & government officials not actions of privately-owned companies
Standing
