Con Law Flashcards
The Takings Clause of the Fifth Amendment, applicable to the States via the Fourteenth Amendment, requires that
private property may not be taken for public use without just compensation
State and local governments may regulate the use of land through zoning laws. Generally, a governmental regulation that adversely affects a person’s property interest is not a taking, but under certain circumstances it may rise to the level of one. A per se taking occurs when
there is physical occupation of the land for public use or when a regulation results in a permanent total loss of the property’s economic value.
In determining whether a regulation that is not a per se taking but denies an owner of nearly all economic value amounts to a taking, the following factors are considered:
i) character of the governmental action, (ii) economic impact on the property owner, (iii) the extent to which the regulation has interfered with the owner’s reasonable, investment-backed expectations. (Penn Central Transportation Co.).
For a person to challenge a governmental action as an unconstitutional taking, the person must have a
a property interest
Property interest is liberally defined and may involve a
a fee simple absolute, easement, leasehold interest, or a lien.
Moreover, a property owner who applies for a building permit under the existing regulations is entitled to consideration under that ordinance according to
the vested rights doctrine. It allows projects to be completed in accordance with land use plans and regulations in effect when the projects were approved.
A federal court cannot decide a case unless the P has
standing - a concerte interest in the outcome - to bring it
Standing is when the individual who’s bringing the case has to have some personal injury at stake. Elements are
injury in fact, causation, and redressability.
Injury in Fact
The injury must be concrete and particularized. While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, but must be actual and imminent.
Casuation
The plaintiff must show that the defendant’s conduct caused the injury.
An organization may bring an action when it has suffered an injury. In addition, an organization may bring an action on behalf of its members (even if the organization has not suffered an injury itself) if its
members would have standing to sue in their own right and the interests at stake are germane to the organization’s purpose.
Ripness
refers to the readiness of a case for litigation. Plaintiff must have experienced a real injury or imminent threat thereof
Why wont a federal court will not consider a claim before it has fully developed?
premature, and any potential injury would be speculative
Mootness
A live controversy must exist at each stage of review, not merely when the complaint is filed. A case has become moot if there is no longer a controversy.
Declaratory relief
When is it appropriate
relief provided by a court that does not change the rights of a party but merely delineates those rights.
to handle questions of whether or not an ordinance is constitutional and appropriate in the context of a municipality
You must do an analysis on whether the ordinance is constitutional
State action is a necessary prerequisite to triggering constitutional protections because
the Constitution generally protects against wrongful conduct by the government, not private parties.
The Free Exercise Clause (“FEC”) of the First Amendment has been construed to include two freedoms:
act and believe
The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law. Religious conduct, on the other hand,
is not absoultely protected
Law of general applicability is where states prohibit or regulate conduct in general, even if the law incidentally interferes with a person’s ability to engage in religious practices. Such a neutral law of general applicability is subject only to
rational basis review
State laws that ientntionally target religious conduct r subject to
SS
Strict Scrunity applies when the government purposely targets conduct because it is religious or displays religious beliefs To pass muster under the strict scrutiny test, CC must show that the ordinance is
necessary to achieve a compelling interest and that it is the least restrictive means of doing so.
Establishment clause
prohibits the establishment of religion.
If a law includes a preference for one religion over another, or religion over nonreligion, then the court will apply what in an establishment clause question. However, if the law does not have a sect preference, then the court will apply
SS; lemon test
In order to determine whether government action violates the Establishment clause, the court will apply the Lemon test. The Lemon test has three factors.
to be valid the law must have a secular purpose, a primary effect that neither advances nor inhibits religion, and not result in excessive government entanglement with religion.
Lemon test is applied when there is no sectural preference. The action must:
have a secular purpose
a primary effect that neither advances nor inhibits religion, and
not result in excessive government entanglement with religion.
Secular purpose
The regulation must have a secular, nonreligious, purpose.
Primary effect
regulation must neither advance nor inhibit religion.
Even if the county is successful on the first two factors of the Lemon test, it will likely fail on this factor. Under this prong, the government action cannot
The regulation must not result in excessive government entanglement with religion.
The Due Process Clause of the Fourteenth Amendment provides that “no state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.” In assessing if there has been violation of the PDP clause, the court will first determine if there has
been a deprivation of a life, liberty, or property (LLP) right. If there has been a taking of an LLP right, then second, the court will determine whether sufficient due process was afforded or what amount of due process is due.
Life Liberty or property
Liberty interests may include fundamental rights, such as those guaranteed by the U.S. Constitution. Moreover “property” rights are loosely defined and include almost any legitimate claim of entitlement, such as rights provided within an employment contract.
When congress is sending cases directly to the SC they are
enlarging/restricting the orginal jursidiction of the court and that is illegal because it violates the separation of powers
If the case is being appealed to the SC can congress have a say in it
Yes
