Con Law Flashcards
Who resolves conflicts between two states?
The supreme court
To have standing a (P) must establish?
Injury in fact (P must be directly injured)
Causation (injury caused by D conduct in violation a a con or fed right)
Repressibility
VERY IMPORTANT TO KNOW
what is interstate commerce and who regulates it? Commerce Clause
Congress has the power to regulate:
(I) channels (highways, waterways, airways)
(II) instrumentalities and people that travel and work in the channels of interstate commerce(cars, trucks, ships, airplane, pilots) and
(III) and any activity substantially affecting interstate commerce— provided the regulation does not infringe upon any other constitutional right
What is the taxing and spending power?
Congress has the power to lay and collect taxes, duties, imposts and excuses to pay the debts and provide for the common defense and general welfare of the United States
When is the racing power generally upheld?
If it has any reasonable relationship to the goal of revenue production
What is the war and defense powers?
Congress has the power to declare war, raise and support atomizes and maintain a navy and make rules of law governing and regulating them.
What is eminent domain?
Congress may take private property for public use with just compensation and in order to effectuate an enumerated power
What is the general overview of the presidents power?
Has the power to enforce federal laws and manage the executive branch
What are the presidents domestic powers?
Pardon power for federal offenses
Veto power
Appointment and removal of officials
What are the presidents foreign affair powers?
Commander in chief (but only conferred declares war)
Exclusive power to negotiate treaties (can be ratified by 2/3 Of the Senate)
Enter into executive agreements with foreign nations (NO RATIFICATION power by Congress)
What does the state have power over?
Anything not assigned by the constitution to the fed gov
What happens if both the federal government and the state legislate in the same are?
The supremacy clause applies
What is immune from state taxation?
The government and its instrumentalities
What is commandeering?
Congress cannot commandeer state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program. BUT Congress can encourage the state to act in a certain way through their taxing and spending powers
When can States regulate interstate commerce?
If Congress has not enacted legislation in a particular area of interstate commerce.
States can regulate so long as the action doesn’t:
1. Discriminate are against out of state commerce
2. Unduly burden interstate commerce or
3. Regulate extraterritorial activity (wholly out of state)
When is a state discriminating against out of state?
When the legislation is protecting local economic interests at the expense of out of state competitors
If a law is discriminating against out of state commerce when can it be upheld?
If the state can show:
An important local interest is being served AND
There are no other non discriminatory means available to achieve that purpose
What is the market participant exception to the dormant commerce clause?
A state may discriminate if it it’s acting as a market participant rather than a market regulator
A state can favor its own citizens in providing subsidies (ex: in state tuition)
What is the full faith and credit clause?
Full faith and credit shall be given to each state to the public acts, records, and judicial proceedings of every other state
When can state action be found when a private person is acting?
If ther action is an activity that is traditionally performed exclusively by the state (ex: governing a company town)
What does the due process clause say?
No person shall be deprived of life liberty or property without due process of law.
**State is some but starts with “no state shall make or enforce any law that shall…”
What is Liberty?
Physical freedom
Exercise of fundamental right
Freedom or choice or action
What is property under your due process clause right?
Legitimate claim of entitlement by virtue of statute employment contract or custom
Ex rights to welfare and disability benefits, public employment, public education K-12
What is substantive due process?
Laws should be reasonable and not arbitrary.
What is the standard of review for substantive due process?
A government action that infringes upon a fundamental right is generally subject to strict scrutiny. If not fundamental then need rational basis for the regulation.
What is strict scrutiny?
The law must be the least restrictive means to achieve a compelling governmental interest.
Note hard to meet strict scrutiny and most laws reviewed under the standard are struck down
Government has the burden to prove the law is necessary to achieve a compelling gov interest under struck scrutiny
What is rational basis?
The law must be rationally related to a legitimate state interest
Rational basis generally the law is upheld
Rational basis, the challenger must overcome the presumption by showing the law is arbitrary or irrational
What are your fundamental rights? VIP
-voting
-interstate travel
-privacy
What is included in the to right to privacy?
Marriage
Sexual relations
Abortion
Child rearing
Right to persons living together
Parental rights
Family relations
If a fundamental right is infringed upon all persons likely substantive due process, if only one then likely equal protection
What is the equal protection clause of the 14th amend?
No state shall deny to any person with its jurisdiction the equal protection of the laws
No federal equal protection clause but the 5th amend due process Callie includes the EPC and fed gov is subject to same state discrimination standards
What are the three standards of review for EP?
Strict scrutiny (compelling)
Intermediate scrutiny (substantially important)
Rational Basis (rationally legit)
What is strict scrutiny?
The law must be the least restrictive means to achieve a compelling gov interest.
- Gov to prove the law is necessary
- Applies to fundamental rights or suspect classification (race, ethnic, alienage)
What is intermediate scrutiny?
To be constitutional the law must be substantially related to an important gov interest.
Gov has burden
Gender and illegitimacy
What is rational basis?
The law must be rationally related to a legitimate governmental interest
Challenger has burden
All cases not strict and intermediate
For intermediate scrutiny there MUST be discriminatory intent. Can be facially, as applied or based on discriminatory motive
What are some non suspect classes
Age
Poverty
Sexual orientation
TIP: fundamental rights under the substantive due process clause may also be protected under the EPC and require trigger an analysis by both. This would include vote, travel, or privacy.
What is Gerrymandering?
A states election districts cannot be created in a way to prevent the minority from exercising its voting strength.
What is the privileges and immunities clause?
Citizens of each state shall not be entitled to all privileges and immunities of citizens in the several states
Applies through the 14th amend
What does the privileges and immunities clause prevent?
Prevents one state from discriminating against citizens of another state
When may discrimination against and out of state citizen me valid under the privileges and immunities clause?
If the state can show:
1. A substantial reason for the difference in treatment and
2. The discrimination practices against nonresidents bears a substantial relationship to the states objective
Taking clause is applied to the states through the 14th amend due process clause
What type of property falls under the takings clause?
Land
Real property
Other tangible and intangible personal property
Can also be a leasehold, easement or lien
What are some types of takings?
Seizure of property
Damage or destruction of property
Recharacterization of property
Regulatory takings
Exaction (promises)
When can the gov take property and transfer to another individual?
Can seize and transfer to another private party if the taking is merely rationally related to a conceivable public
Purpose
What is the exception to destruction of
Property constituting a taking under the takings clause?
Destruction of private property in response to a public peril
Just compensation is the fair market value
What is an exaction not a taking?
If there is
1. A substantial nexus between the legitimate state interest and the conditions imposed on the property owner and
A rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development
What are some prohibited legislations?
Bills of attainder: legislative act declaring a person or group guilty of crimes and gives them no trial
Ex Post Facto Laws: retroactive change to criminal or penal law
Obligation of contracts: any law impairing the obligations of contracts only applies to state legislation
What is freedom of religion?
1st amend: congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
**includes the establishment clause and the free exercise clause
What standard of review applies to the establishment clause?
if the governmental program is showing a preference for one religion over another it to a religion vs a non religion, look at the “historical practices and understandings”
LEMON OVERRULED
Ex: god we trust on coin
God watch over this court etc
What are the two freedoms under the free exercise clause?
Freedom to believe
Freedom to act
What is religious belief?
The freedom to believe in any religion or none at all
ABSOLUTELY PROTECTED
How is religious conduct protected??
NOT ABSOLUTELY PROTECTED
only if a state intentionally targets religious conduct they are subject to strict scrutiny others is
All laws with a general purpose or applicability are subject to rational basis
What is the ministerial exception to discrimination laws?
Religious institutions can hire and fire any monster they want
What is freedom of expression and association?
Congress shall make no laws abridging the freedom of speech or of the press and or the right of the people to peacefully assemble and to petition the government for redress of grievances
Applies to states through 14th amend
The freedom of expression and association is NOT ABSOLUTE.
Gov regulation of the content of speech is severely constrained.
Gov regulation of the time, place, and manner of speech is subject to less restriction.
(Time place manner)
What are the three forums?
Public forums
Designated public forums
Non public forum
What are public forums?
Sidewalks
Streets
Parks
(Think they cannot be changed)
What are designated public forums?
Theatres
Classrooms
Civic centers
(Think can be changed to a non public forum)
When can the government impose reasonable restrictions on the time place and manner of speech?
When the restrictions are:
1. Content neutral as to both the subject matter and viewpoint
2. Are narrowly tailored to serve a significant governmental interest and
3. Leave open alternative channels for communication of the information.
What are nonpublic forums?
Jails
Military base
Airport terminals
Polling places
When can gov regulate on a non public forum?
When the regulation is
1. Viewpoint neutral and
2. Reasonably related to a legitimate governmental interest
Regulation of content
When can the government restrict speech on content? (Categories)
Obscenity
Subversive speech
Fighting works
Defamation
Commercial speech
What is the test for content for obscenity and child porn?
Would the average person applying contemporary community standards find the material as a whole:
1. Appeals to the prurient interest
2. Depicts sexual conduct in a patently offensive way and
3. Lacks serious literary, artists, political or scientific value
*** can regulate areas it’s sold, cannot get in trouble for it being in your home and child born is not protected
Regulation of content
What is incitement of violence?
Speech advocating for the use of force or unlawful action if:
- The speech is directed to inciting or producing imminent lawless action and
- It is likely to incite or produce such action
Regulation of content
What are fighting words? (Punishing speakers)
Words by their very nature are likely to incite an immediate breach of the peace
TIP: attempts to forbid fighting words almost always fail as vague overbroad
Regulation of content
What time defamation?
Must prove all elements of defamation and fault or falsity.
Defamation:
1-(D)s defamatory language is of or concerning the (P) and is published to a 3rd party who understands its defamatory nature and it damages the (P)s reputation
*** if it’s a public figure you must show malice
Regulation of content
What is commercial speech?
(Advertising or similar expressions have a 4 part test)
1- the commercial speech must concern lawful activity and be neither false nor misleading
2-asserted governmental interest must be substantial
3- the regulation must directly advance the asserted interest and
4- the regulation must be narrowly tailored to serve that interest
What are you entitled to under procedural due process?
Notice
Heading
Neutral decision maker
When is a state immune crime being sued?
If they make a claim of sovereign immunity or consent to being sued.
11th amendment: “the judicial power of the United States” does not extend to “any suit in law or equity, commenced or prosecuted against any me of the United States by Citizens of another state”.
Can you sue a state official in their “official-capacity”?
Yes. Official-capacity actions (actions against state officials) are not barred by the 11th amendment under sovereign immunity.
These actions are not treated as state actions.
Doctrine of Ex parte young
When can a federal statute abrogate 11th amendment immunity?
If two things occur:
(1) the statute unambiguously asserts that it does so and
(2) Congress enacted the statute under a power that may abrogate 11th amendment immunity.
Powers include only those amendments that post date the 11th amendment.
Watch for 14th amendment for section applied through the 14th amendment.
