Con Law Flashcards
5A Takings Clause
Under the 5A takings clause, the government may not take the private property of another citizen for public use without just compensation. A taking can be total or partial
If total or partial,
Public use (HSW) rational basis
Just compensation (FMV)
Total Taking
A total taking occurs when the government physically invades or destroys the owner’s property
Partial Taking
A partial taking can occur when the government imposes a regulation that substantially deprives the owner of his or her use of the property
Regulation amounts to partial taking, courts consider:
- economic value of the property to the owner
- whether the regulation deprives the owner of his or her investment backed expectations
- the characteristic of the taking and balancing the benefits to community and burden to owner.
Procedural Due Process
Under the constitution, the government or states may not pass laws that deprive a person’s life, liberty, or property without the due process of the law. It’s based on fundamental fairness.
Individuals are entitled to a notice of hearing and an opportunity to be heard before he is deprived of life, liberty, or property.
Typically includes notice, hearing, right to atty
To find whether a state has violated PDP: protected interest affected and if so what process is due
PDP: Employment (read)
Guaranteed job = actionable property interest
Not guaranteed = no actionable property interest that required procedural due process beyond receiving written notice as called by the k
When employment can be terminated for any reason, court has held not to be claim of entitlement
PDP: Speech (read)
Liberty interest in exercising free speech at community meetings and school board meetings
Argue FOS as a constitutionally protected right and fundamental freedom
Speech and Gov Actors
Gov actors are permitted to limit employee speech in certain limited contexts such as political speech inside office buildings but they may not retaliate against employees
Content Neutral Speech - TPM
1A Free Speech
Time, place, and manner restrictions may be upheld if they are content neutral, the administrator does not have free reign to decide, and alternative revenues are kept open
The test the court will apply depends on the forum
Standing
To have standing, a plaintiff must have suffered harm caused by a government actor and can be redressed by a court.
It cannot be moot nor premature
Standing as taxpayers
No standing against state (or atty gen)because their tax contributions are too far removed from state officers to have any actionable interest in state statutory and regulatory actions
11th Amendment
Under the 11A, states have a sovereign immunity and may not be sued in federal court unless the state consents or the federal court finds a constitutional violation
SDP: Liberty
An impingement on a person’s liberty can occur when state action has retained the person’s physical freedom as well as their freedom to exercise a fundamental right provided by the constitution
SS
PDP: Property
A person is deprived of a property interest when the state takes away a legal claim of entitlement provided by a k or law. This can include a gov issued driver’s licenses and public education and state benefits
PDP: Notice and Hearing
If a protected right has been deprived, the individual must have had a fair opportunity to be heard and have given notice.
To determine what kind of notice is due court will look at 3 factors:
what protected interest was protected
the danger of the interest to continue to be infringed upon with the current process being provided compared to the changes that may be able to be provided to change that effect
the feasibility of providing more process
Establishment Clause
Under the US Constitution, citizens have a 1A right to the freedom of speech, which is also incorp to the states through the 14A. When there is a law in place that seems to promote or encourage religion, the court applies the Lemon test.
Lemon (factors= weigh): action has secular purpose, the action does not encourage or inhibit religion, the action does not constitute excessive entanglement with religion
If does not pass Lemon, SS
Free Exercise Clause
Under the US Constitution, citizens have a 1A right to freedom of religion. This is applicable to the states through the 14th amendment.
When a law seems to restrict religion unfairly, the government must look at whether 1) there is a sincere belief in the religion, 2) whether the law intentionally targets religious activity, and 3) whether or not the law is neutral of general applicability
If the law intentionally targets religious activity, apply SS
If the law is neutral and of general applicability, apply rational basis review
Address both
FEC: sincere belief or religion
Customs like an established religion and a sincere belief (low threshold)
FEC: neutral law of general applicability
Law is neutral with general applicability when it applies equally to everyone
Strict Scrutiny
Challenger must show that the law is not narrowly tailored to serve a compelling government interest, not over/under inclusive, and no reasonable alternatives
DPC - First Amendment
The USC via the DPC affords its citizens with the freedom of speech. If states violate an individuals freedom of speech, it will be held invalid. First Amendment rights are categorized under SS
First Amendment Rights to Religion
1A rights are determined by SS. For the state to pass SS, the law must be narrowly drawn to serve a compelling government interest with no reasonable alternatives. Burden on state
1A - Attack Plan
1A Rule 1A Right to \_\_\_\_\_? Narrowly Drawn Serve a Compelling Gov Interest No Reasonable Alternatives Conclusion
Ripeness
Actual case and controversy
Moot
Exists at all stages of review
Organizational Standing
Standing (ICR)
Germane to org’s purpose
Individual member participation not required
3P Standing
Needs own standing
3P cannot or difficult to assert on their own rights or special relationship
13th Amendment
The 13A is one of the broadest amendments in the constitution, applying to both the government and private actors.
A regulation is unconstitutional under the 13A if it compels one person to work for another, even if compensation is paid
14A DPC
There are 2 prongs of the DPC of the 14A
The PDP clause strikes down any law that deprives a citizen of a fundamental right without proper procedure
The SDP clause strikes down any law that deprives a citizen a fundamental right in
SDP: Privacy
USSC has held that there is a fundamental right to privacy
SS
14A EPC
EPC provides that no state shall enact a law favoring one citizen over another
NS: RB (PWDA)
QS: IS (GI)
SUS: SS (ANR)
1A Prior Restraint
PRs are subject to SS because they put a barrier on speech before speech can occur
Valid:
- further important gov interest
- involve little to no discretion by issuer
- clear criteria to obtain
- procedure for timely resolution or immediate appeal
1A Overbroad
1A Free Speech
A gov regulation is overbroad and invalid where it regulates more speech than intended
1A Vagueness
1A Free Speech
A reg is vague and invalid where it is unclear what speech is allowed and what is not allowed
T/P/M Restrictions
One way government may validly regulate speech is by controlling TPM of speech
These regulations are put under SS because they are not limiting what they say but how they say it
Go into P/NP/SP
TPM Limited Public Forum
LPFs are not traditionally open to public speech but the government opens them up to the public
While open to speech, a LPF may only regulate the TPM if
content neutral
alternative channels of com available
regulations are narrowly tailored to achieve sig gov interest
TPM Non Public
A NPF is where speech has traditionally been able to be severely limited
(mil bases, airports, gov buildings)
Gov can regulate in non public as long as it is reasonable and view point neutral
Commercial Speech
Commercial speech can be regulated if not false, misleading, directly advances substantial gov interest and narrowly tailored to do it
Fundamental Rights (SS)
T V P F F
EPC Non-Sus
P
W
D
A
EPC Q Sus
G
I
EPC Sus
A
N
R
Unprotected Speech (IS)
Fighting words (directed at another, likely to provoke violent offense)
Obscene (prurient interest of sex, patently offensive, no redeeming value LAPS)
Illegal activity (imminent)
Defamation
Commercial (no protection for false or deceptive ads)
Symbolic (specific msg, see msg/know msg, important interest of gov no greater than necessary)
1A General Rule
Congress shall make no law abridging the FOS. This is incorporated to the states via the 14th amendment
1A Attack Plan
1A General Rule Content based v content neutral (address both) Prior restraint Overbroad Vagueness
State/Government Action (address first)
Before X can raise his constitutional defenses, he must first prove there is state action. State action exists whenever the government or a government official is acting, or when a private party with sufficient government entanglement with the state is acting.
Content-based Regulation
1A Freedom of Speech
It is presumptively unconsitutional to place burdens on speech because of its content with few exceptions. If the regulation restricts the content of the speech, then the restrictions have to be narrowly tailored and necessary to promote a compelling government interest (SS).
Necessary = no less burdensome alternatives
Designated Public Forum
Content-neutral - 1A Freedom of Speech
A designated public forum is public property not traditionally open to speech related activities, but which the government has made available for such activities on a permanent or limited basis.
The test for designated public forums requires a showing that the regulation is (i) content neutral, (ii) narrowly tailored, (iii) serves important government interest, and (iv) leaves open alternate means.
