Con Law Flashcards
Equal protection applies when the government is doing what?
treating a group of people differently
3 levels of scrutiny
Strict scrutiny, intermediate scrutiny, and rational basis
Strict scrutiny applies when? What’s the burden?
People are being treated differently based on a suspect class (race, alienage, and/or National origin) or a fundamental right is being taken away
Government has the Burden to prove law is necessary to achieve a a compelling interest
Intermediate scrutiny applies when? What’s the burden?
People are being treated differently based on their gender or illegitimacy
Government has the burden to prove law is substantially related to important interest
Rational basis applies when? What is the burden?
Everyone else falls under rational basis
Plaintiff has the burden to show the law is not rationally related to a legitimate interest
Substantive due process applies when the government is doing what?
Taking away or regulating one of citizen’s rights
Statute deprives ALL people.
If government is taking away a fundamental right, what test do we apply? What is being violated?
Strict scrutiny
Substantive due process
If statute is depriving a non-fundamental right, what test? What is being violated?
Rational basis
Substantive due process
The fundamental Rights
Independent/individual rights: right to vote, free speech, and interstate travel
Privacy rights: C.A.M.P.E.R (contraception, abortion (not anymore), marriage, procreation, (private) education, right to raise your family)
Procedural due process is when the government is doing what?
The government is taking away an INDIVIDUAL’S property interest/right. If property right is taken away, individual has a right to Notice and to a hearing.
What are “property” rights under procedural due process?
Employment, benefits (Public), licenses
Key: individual must actually have the job, license, or benefit or have earned it.
Government must remain ___ when it comes to religion
Neutral!!! Look out for intent!
Speech is a ____ right. Government cannot ___ it, but they can ___ it.
Speech is a fundamental right. The government cannot ban it, but they can regulate it
2 ways to regulate speech:
① Content based: Banning/shutting down the entire message (Strict scrutiny)
② Content neutral: government is regulating the time, place, and manner of the message with reasonable alternative options
Powers of the executive branch
VEECAP
Veto: only prez can veto! Congress overrides
Executive order: applies to domestic affairs (gets treated like law)
Executive agreement: applies to foreign affairs
Commander in Chief: can deploy troops, but cannot declare war
Appointment: prez can appoint anyone with executive authority (solely executive = only prez can appoint)
Pardon: only federal crimes, not state or local (its unappealable)
Powers of the legislative branch
Commerce: plenary power (can do almost anything)
Taxing: so long as its for the general welfare
Spending: so long as its for the general welfare
Coin money: congress has total jurisdiction over currency
Federal lands: “property clause” congress has jurisdiction over all federal land
War: congress has power to declare war
Judicial branch powers:
SCOTUS:
- Original jurisdiction to hear all cases affecting ambassadors, public ministers, consuls, and where a state is a party
- Congress cannot enlarge nor restrict original jurisdiction
Congress MAY regulate and limit SCOTUS appellate jurisdiction
Lower Federal courts:
- Congress has jurisdiction over them, can do what they want
Supremacy clause
When federal law conflicts with State law, federal law wins.
10th Amendment
States Rights: State law can be stricter than federal law (police power), but it cannot be weaker than federal law.
Commandeer rule
Congress cannot command or require the state to do anything.
Privileges and immunities clause of Article 4
When one State discriminates against residents of another state. CANNOT DO THIS
Standing
Plaintiff must show:
- injury in fact
- causation
- redressability
In order to bring an equal protection or due process claim, the Defendant must be a ____
Defendant must be a state actor (aka: government is doing the violation)
Exception: 13th Amendment, No state actor is required if there is racial discrimination.
Mootness
Case is over, issues have already been litigated
Ripeness
There is no “case or controversy”; nothing has happened yet.
Free exercise clause
Government cannot punish someone on the basis of their religious belief
Establishment Clause
Prohibits the government from sponsoring a religion
Whether a person holds religious beliefs depends on the
SINCERITY of their beliefs
discrimination on the basis of religion is subject to
strict scrutiny
a law is discriminatory on the basis of religion if it is either:
1) not neutral on its face OR
2) facially neutral, but by design, it targets religion
Public forum
governemnt owned property
designated public forum
public property not historically used for speech but now is as a matter of public policy (town hall, civic center)
limited public forum
government property not historically for speech but open for SPECIFIC speech activity (like a school gym)
non public forum
government property that is not held open for specific speech activities
If speech is being regulated in a public forum or designated public forum, it is valid if it is:
- content neutral
- narrowly tailored to serve important gov interest
- alternative channels of communications are left open
If speech is being regulated in a limited public forum or non public forum, it is valid if it is:
- viewpoint neutral
- reasonably related to legitimate government interest
unprotected public employee speech
- if at work & a private matter: employer can punish if speech was disruptive
- if at work and related to official duties (even if public concern): employer can punish but employee cannot be discharged unless the actions interfere with the functions of the government
protected public employee speech
- if its a matter of public concern but not made pursuant to employees duties –> court applies balancing test (value of the speech v. government interest)
- if its a matter of private concern outside of work –> generally protected
unprotected speech
- incitement
- fighting words
- obscenity
- defamatory speech
- some commercial speech
incitement
speech intended to produce 1) imminent lawless action and 2) likely to produce such action
fighting words
speech of personally abusive words likely to incite immediate physical retaliation in the average person
true threats
words intended to convey to someone a serious threat of bodily harm
statutes that attempt to punish fighting words are usually….
overbroad and vague
the “taking” clause
private property can only be taken away if:
1) for public use
2) the government pays just compensation
(applicable to states via 14A; fed government via 5A)
a taking will be found if there is a
1) confiscation of a persons property; or
2) permanent or regular physical occupation of a person’s property by the government
exceptions to “taking” (when the gov takes property, but its not considered a taking)
1) Development exception (gov can show essential nexus b/w condition and the proposed development + adverse impact is proportional to loss caused to the property owner)
2) Emergency exception (public emergency, like war)
Contract clause - impairment of a contract
Only applies to the states!!
If a law substantially impairs an existing private K –> must survive SS
If a law impairs a K where a state is a party –> same test, but heightened scrutiny
Privileges and immunities clause of14th amendment
states cannot deny their citizens rights of national citizenship
commandeer rule
congress cannot command the states to enact state laws or enforce federal laws
dormant commerce clause
states cannot discriminate against out of state businesses
bill of attainder
state law imposes criminal penalties, to named individuals, with no right to a fair trial (cannot do this)
What must a Plaintiff show when they claim their property rights have been deprived without due process of law?
Plaintiff must demonstrate that they have a legitimate claim or “entitlement” to the benefit under state or federal law
P MUST SHOW THAT THE LAW CREATED A CONSTITUTIONALLY PROTECTED PROPERTY INTEREST (benefit, license, employment)
