Con Law Flashcards
What is the standard of review for content-based speech?
strict scrutiny: the law must be necessary to further a compelling government interest
What is the standard of review for symbolic speech?
The law will be upheld if (1) it furthers an important interest (2) the interest is unrelated to the suppression of expression and (3) the burden on expression is no greater than necessary
What is the standard of review for regulation of content-neutral speech (time, place, manner regulation)? What forum does it apply to?
Law will be upheld if (1) the law is content-neutral on its face (2) narrowly serves a significant (substantial) state interest (3) there are alternative channels of communication
Applies to public forums – streets, parks, public sidewalks around public buildings. Does not apply to airports
What is a nonpublic forum and what are the rules regarding the regulation of speech there?
Nonpublic forum – government offices, jails, power plants, military bases, etc
Viewpoint discrimination is invalid but any reasonable regulation of speech will be upheld
Commercial Speech
law regulating commercial speech will be upheld if it’s (1) narrowly tailored (2) to directly advance (3) a substantial state interest. No protection for commercial speech that is false or misleading
narrowly tailored doesn’t have to be least restrictive means
What elements must speech have for it to be considered obscene (and therefore allowing the gov’t to regulate it)?
Defined by “S” Rule
- Sexy: must be erotic, appeal to the prurient interest (gore and violence aren’t obscene)
- Society sick: must be patently offensive to the average person in society. The society may be the nation as a whole, a particular state, or major metro areas
- Standards: must be defined by the proper standards for determining what is obscene, not vague and/or overbroad
-
Serious value: the material must lack serious value. If material has serious value (artistic, scientific, education, or political), it cannot be held legally obscene
- Determination is made by the court and must be based on national standards
Strict Scrutiny
The strict scrutiny test is applied if a fundamental right or a suspect classification (race, ethnicity, national origin) is involved. To satisfy strict scrutiny, the law must be narrowly tailored (least restrictive means) to achieve a compelling gov’t interest. The burden is on the gov’t to prove that the law is necessary.
Intermediate Scrutiny
Intermediate Scrutiny is used when a quasi-suspect classification (gender or legitimacy) is involved. To satisfy intermediate scrutiny, the law must be substantially related to an important government interest.
In gender cases, there must be an “exceedingly persuasive justification” for the classification, which brings the standard closer to strict scrutiny. The burden is on the gov’t to prove that the law in question passes intermediate scrutiny.
Rational Basis Review
Rational basis review applies to laws re: age, wealth, weight, economic reasons, etc. Law must be rationally related to a legitimate state interest. The burden is on the challenger to prove law is arbitrary or irrational
Interstate Commerce
Congress has the power to regulate (i) the channels (highways, waterways, airways, etc.) and (ii) the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right.
State Action
the Constitution generally protects against wrongful conduct by the government, not private parties. In other words, state action is a necessary prerequisite to triggering constitutional protections.
Delegation of Legislative Powers
Delegation of some of Congress’s legislative power to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate. Almost any legislative delegation passes the “intelligible standards” requirement, so even broadly phrased standards have been upheld
Commandeering
Congress cannot “commandeer” states by commanding them to enact specific legislation or administer a federal regulatory program. However, through the use of the taxing and spending powers, Congress may encourage state action that it cannot directly compel.
Who has the power to veto laws? Can they veto parts of a law and keep other parts? Can a veto be overridden?
President has the power to veto law within 10 days of its passing. No line item veto (cannot veto certain parts of law, must veto entire law). A presidential veto can be overridden by ⅔ majority vote by Congress.
Pardon Power
- President can grant pardons for federal crimes EXCEPT impeachment
- Cannot grant pardons for state crimes
- Can even pardon a person who hasn’t been convicted yet
Appointment and Removal Power
- President can appoint all US officers with the advice and consent of Senate
- President can remove any executive appointee without cause and without Senate approval, EXCEPT in cases of federal judges (federal judges may only be removed by impeachment).
-Note: Congress can still remove inferior officers, just can’t remove presidential appointees
Contracts Clause
limits the ability of states to enact laws that retroactively impair contract rights. The only exception is if there is an overriding need (something akin to an emergency)
Free Exercise of Religion
Prohibits the gov’t from imposing burdens on someone on the basis of religious belief.
To establish a violation of the Free Exercise Clause, the challenger must show gov’t’s intent to target religion. When intent is established, it triggers strict scrutiny review
What does SCOTUS’s original jx cover?
“APS”
- Ambassadors
- Public ministers and consuls
- States (controversies between states)
Can Congress decide what type of cases SCOTUS hears?
Congress has the general power to decide what type of cases SCOTUS may hear, just as long as it doesn’t expand the Court’s jx.
Article IV Privileges and Immunities Clause (Comity Clause)
Forbids states from discriminating against out-of-state citizens concerning essential activities and basic rights unless there is asubstantial justification and no less restrictive means
Note: clause does NOT protect out-of-state corporations
Can states require state residency for private employment?
No, but they can for public employment
Do classifications based on alienage violate EP?
No, classifications based on alienage are constitutional so long as they are reasonable and not arbitrary
If Congress uses its spending power to provide federal funding to a state and wants to impose limitations/conditions on the funding, what guidelines must Congress follow?
limitations/conditions must be:
* (1) merely **an incentive** and not a compulsion
* (2) **clearly stated** and
* (3) **relate** to the funding’s **pupose**
Supremacy Clause
federal law is supreme and prevails over state law. States cannot pass laws that conflict with federal law or interfere with a federal objective
Federal immunity from state law
a state cannot regulate or tax the federal government, but states can tax indirectly (ex: taking the income of federal employees)
What is the Dormant Commerce Clause? Does it protect out-of-state businesses or out-of-state businesses? Are there exceptions to not discriminating against out-of state interests?
- In the absence of federal regulation, state regulation of commerce is valid so long as
- (1) there is no discrimination against out-of-state interests [unless there is substantial state interest and no other non-discriminatory means available]
- (2) the regulation doesn’t unduly burden interstate commerce, and
- (3) the regulation doesn’t apply to wholly extraterritorial activity
- protects out-of-state businesses AND out-of-state individuals
- Yes: State as Market Participant, Subsidies, and Federal Approval
In relation to the Dormant Commerce Clause, what are the exceptions to not discriminating against out-of-state interests?
- State as Market Participant: when a state acts as a business rather than a regulator, it can choose to deal w/ only in-state persons
- Subsidies: a state can always choose to subsidize only its own citizens (ex: welfare benefits or in-state college tuition)
- Federal Approval: if Congress authorizes/consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests
When it comes to racial gerrymandering, can race be considered a main or predominant factor?
No. Race can be a factor but it can’t be the main or predominant one. Other factors that can be considered are compactness and observing local, political subdivisions
Ex post facto laws
states are prohibted from passing ex post facto laws, which are laws that increase punishment for crimes after the crime has already been committed.
