Con Law Flashcards
What are the requirements for case and controversy?
Ripeness, Mootness, and Standing
When does a court opinion constitute an advisory opinion?
there has to be an actual controversy (no controversy between the parties) or the court can’t legally bind either of the parties
Can a court review a law or policy before it takes effect?
Yes, if P. can show the issue is fit for a judicial desicion AND the plantiff would suffer substantial hardship abest review
What is mootness?
P. must be suffering from an ongoing injury at all stages of the case
What are the exceptions to the mootness rule:
if a P. has a controversy that is capable of repetition b/c of inherently short duration OR cases where D voluntarily stops behavior but can resume at any moment
What are the req for Standing?
An injury in fact, which req both a particularied injury that affects P in a personal and individual way AND a concrete injury (not hypothetical)
Who can’t sue for general standing?
Standing solely based on citizenship or taxpaying status (unless a tax liability issue)
Can any person sue on congressional spending grounds?
Yes, but only for first amendment establishment clause (religious establishment clause) grounds, and only for spending power
For Standing, when must injury occur?
already occurred or imminent
How does one claim standing for a third party?
ONLY if it is difficult for the third party to assert their own rights OR if there is a close relatiohshop between the claimant and the third party
How do you determine standing for organizations?
if there is an injury to a member, the members injury is related to the organizations purpose AND the individual members participation in the lawsuit is not req (they are not seeking individualized damages)
What is the free speech exception for standing?
one can claim a free speech violation on behalf of a group of which they are a part even if their own speech is unprotected, so long as the speech of the members of that group is protected. Rule does NOT apply to commercial speech
Do people have standing to sue states?
No, UNLESS states consent. Can sue local governments
What is a political question?
Ones inherently incapable of judicial relief or are constitutionally vested with the other branches
What are the elements of constitutional conditions on Congress’ spending power?
- clearly stated 2. serves the purpose of the program 3. not unduly coercive on state (rare) 4. not otherwise unconstitutional
Are taxes generally valid?
Yes, so long as they are reasonably related to revenue production and not a penalty (CAN be labelled as a penalty but still permissibile)
What is Congress’ Commerce power?
congress has the enumerated power to regualte interstate commerce. the three parts are 1. Channels 2. Insrtumentalities 3. activity that substantially affects interstate commerce (can includ epurely intrastate activity
Can Congress regulate non-economic activity that substantially effects interstate commerce>
NO, key on NON-economic activity
True/False: congress cannot compel states to act for insterstate commerce
True
Rights of Aliens controlled by congress
resident aliens: right to notice and hearing for deport
non-resident aliens: no right to enter US
Basic outline for presidential actions
if authorized by statute or Congress: likely to be upheld
if congress is silent: balance of history. Unlikely to be upheld if it usurps power from a branch or prevents another branhc from performing tasks
Rank treaties against other laws
Treaties trump state and local law, are on par with federal law, and are inferior to the constitution
What is the anti-commandeering principle?
Congress can’t compel states to pass state law OR enforce federal law through use of enumerated powers (tax, spending)
What is implied preemption of state law by federal law?
when state law makes following a federal law impossible OR when state law prevents achievement of a federal objective, state law is impliedly preemepted through supremecy clause
What is the privileges and immunities clause?
prevents states from discriminating against non-residents
- does not include corporations and aliens
- ONLY protects important commercial activities and fundamental rights
Can a state discriminate against a non-resident for important commercial activities?
Yes, BUT ONLY if there is and importnat govt purpose AND there is no less restrictive method available
What is the dormant commerce clause?
when congress has not enacted a law regulating an aspect of interstate commerce and a state has, that state law can’t discriminate OR unduly burden interstate commerce
what happens when a state discriminates against interstates commerce?
dormant commerce clause violation, invalid unless there is an important noneconomic stat interest AND no reasonable nondiscriminatory alternative
what happens when a state unduly burdens interstate commerce?
dormant commerce clause, balancing test that presumes validity UNLESS the burden on interstatwe commerce outweighs the legitimate state interest
Can a state prefer its own citizens when the govt owns the business or is providing the services?
yes, then the govt is a MARKET PARTICIPANT and can prefer its own citizens w/violating the dormant commerce clause
What is the thought process for a question for regulation of interstate commerce?
does the state regulation affect an activity addressed by fed regualtion? does the state regualtion discriminate against interstate commerce? does the state regualtion burden interstate commerce?
Can states discriminate against interstate commerce with taxes?
No and there are no exceptions
When is procedural due process triggered?
Any time a US person is being deprived of life liberty or property
What level of intentionality must the deprivation of life liberty and property be to require procedural due process?
At least recklessness, negligence insufficient
What process is required for procedural due process?
notice, neutral decisionmaker (no actual or serious risk for bias), and a hearing at which they can be heard (typically pre deprivation unless impractical)
Can you waive due process rights?
Yes, so long as the waiver was made knowingly and voluntarily
What is substantive due process?
guarantees laws will be reasonable and not arbitrary. for the federal govt comes from the fifth amendment, for the state govt comes from the 14th
What is the standard for review for substantive due process claims?
If the law limits a fundamental right (right to interstate travel, right to vote, privacy rights, bill of rights) then strict scrutiny used. Everything else is rational basis
What are the components of the right to interstate travel?
the right to travel state to state (no right to travel internationally), and the right to be treated equally after moving into a new state
Are there permissible restrictions on the right to vote?
Yes, but ONLY based on residence (reasonable time), identification, age, and citizenship
in equal protection claims, what are the different government intentions? At least one must be shown to have a valid claim
facial discrimination, discriminatory application, and disparate impact
What is required under the taking clause?
The govt may only take property from someone 1. for public use and 2. with just compensation
When will a taking always be found?
physical taking 1. taking of property 2. permanent of regular occupation of property
what are exceptions to the taking rule?
emergency
what are the rules on use restrictions for the Takings clause?
if govt denies a landowner of all economic use of their land, that constitutes a taking UNLESS nuisance prohibits the contested economic use of the land
Can govt decrease the economic value of land?
yes, court will use balancing test of the govt interest sought, diminuation of value to owner, and substantil interference with distinct investment backed expectations of the land
Are authorized takings by private enterprises public use under the Takings clause?
Yes, so lnog as they work to the publics advantage
What constitutes speech?
words symbols and expressive conduct (intends to convey a message AND reasonably likely to be perceived as conveying a message)
What constitutes incitement
intent to produce imminent lawless action AND likely to produce such action
is obscene speech protected by the first amendment
No, speech is obscene if it depicts sexual conduct specified by statute that to the ordinary person
-appeals to prueint interst in sex (through modern standard)
-is patentnyl offensive (modern standard)
AND- lacks serious value using objective person standard
When is commercial speech not protected?
Yes, only if it is not 1. false 2. misleading 3. about illegal stuff
what are examples of commercial speech
ads, promotions, marketing
What are the elements for testing regualtions on commercial speech?
regulation must serve a substantial govt interest
- directyl advance the interest
- marrowly tailored
What is content based regualtion for free speech?
a reg that restricts speech BASED ON THE SUBJECT MATTER or VIEWPOINT of the speech. Strict scrutiny
What are the rules for content neutral speech
intermediate scrutiny (advance an importnat interest unrelated to the supression of speech AND must not burden substantially more speech than nec. Ex. are time/place/manner restrictions or regs on conduct related to speech
What is the free exercise clause?
prohibits govt punhisning someone for their religious beliefs or related religious status or conduct
can court question the truthfulness of religious beliefs
No, can challenges the sincerity
When does a law discirminate under the free exercis clause
not neutral facial discrim with respect to religious belief conduct or status OR targeting a religion generall or a religion in particular
If a law is generally applicable and neutral can it violate the Free Exercise clause?
No, regulation must be show to specifically designed to interfere with religion
What is the free exercise rule for law with exceptions?
Can be challegned under the free exercise clause by someone denied an exception
What is the establishment clause?
req the govt to pursue a secualr non religuous course
Lemon test
- govt action must have
- -a seuclar purpose
- -neither advance nor detract any religion
- -no excesssive entanglements with religion and govt
What are the types of cases in Establishment clause?
cases preferring on religion over another
limited group of cases unconnected to financial aid or education
3 cases involving fin aid to religious institution
4cases concerning religious actviities in public school
eleventh amendment does not prohibit federal court from hearing private party claim against a state government
false, it does prohibit
eleventh amendment
The Supreme Court has held that the doctrine of sovereign
immunity reflected in the Eleventh Amendment bars a
private party’s suit against a state in federal and state courts.
Similarly, sovereign immunity bars claims against a state in
federal and state agencies
can federal govt interfere with a state lgislature when conducting state legislature duty
no
difference bw federal equal protection violation and state equal protection violation
state: 14th
federal: 5TH
