Con Law Flashcards
Delegation
a. Umbrella. Congress may delegate authority to administrative agencies, or to executive officers. Two-step analysis:
b. Does congress have the authority to regulate? Congress may delegate any of its enumerated powers not uniquely confined to congress. Delegation will be upheld if it includes intelligible articulable standards for the delegate to follow.
i. Enumerated powers. Need to analyze whether Congress had the authority to legislate. Usually commerce analysis. Other e.g., contracts.
ii. Uniquely confined. E.g., can’t delegate impeachment power.
c. Does the agency regulation conform to Congress’ legislation? An admin agency’s regulation under congressional delegation of power must conform to and be consistent with Congress’ legislation (cannot exceed that delegation).
Taxing Power
a. Rule. Congress has the plenary power to tax. Tax is valid if
(1) reasonably related to revenue raising or
(2) congress can otherwise regulate the taxed activity.
i. Geographic uniformity. Indirect taxes should have geographic uniformity – tax imposed the same way wherever it’s imposed. E.g., individual mandate, fed cigarette taxes, similar transactional taxes.
ii. Example. Individual mandate.
iii. Sebelius. Court found penalty on those who don’t get health insurance is a tax, designed to raise revenue to fund ACA administration. Thus, Court held it was a proper tax, and the individual mandate was upheld on that basis.
13th Amendment.
a. Rule. Authorizes Congress to pass laws prohibiting slavery, the badges of slavery, and involuntary servitude, thus allowing Congress to enact laws banning private racial discrimination in private and public commercial activities and transactions.
b. Limits. Has not been held to apply to
(1) non-racial discrimination or
(2) other forms of involuntary servitude (such as the draft or mandatory national service).
Legislative Veto
An attempt by by congress to overturn an executive agency action without
(1) bicameralism (approval by both houses of Congress) and
(2) presentment (giving a bill to the president for signature or veto).
Contracts Clause
Generally, a state or local gov’t may not substantially impair the obligations under private contracts, unless
(1) law serves a legitimate and important state interest and
(2) is reasonable and narrowly tailored to promote that interest.
Substantially impair: make performance of K impossible
specifically identify the state interest
Public contracts. Public contracts (gov’t entity ultimately impairs its own contract with private party), get “stricter review” (but not SS). If authorizing statute or contract itself reserves right of state or local gov’t to amend, revoke, or modify the contract, there is no substantial impairment.
Right to amend or revoke. Look for clause in contract or provision of law authorizing the contract and reserving right to amend or revoke – no impairment.
Supremacy Clause and Preemption
a. Generally. When governmental power belongs both to the federal government and the state, the Supremacy Clause renders state conflicting law void.
b. Express. Congress explicitly states that the law preempts all state and local regulation.
c. Implied. Three types of implied preemption:
(1) federal law and state law actually conflict;
(2) state law interferes with accomplishing a valid federal objective; or
(3) it appears that Congress intended to occupy the entire field of regulation in that
(a) it is significantly comprehensive in scope and
(b) it creates an agency to administer to field.
On the test. Discuss express and all three kinds of implied.
The President’s Powers
Executive Power. The Executive Power (to take care that the laws be faithfully executed) is vested in the President and such other executive branch officers to whom those powers are delegated.
- Appointment Power. President has power to appointment ambassadors, judges, and officers of United States with advice and consent of Senate. However, under A2S2, Congress may vest the appointment of officers other than ambassadors, cabinet heads, public ministers, and judges, in the President alone, his cabinet officers, or in the courts.
a. Executive officers. The President has the authority to appoint executive officers (Cabinet members) and inferior officers (sub-Cabinet members).
b. Congress barred. Congress cannot appoint officers of the executive branch (agencies and commissions) or give the president a list of acceptable appointees.
- Power Over Internal Affairs. Where issue is whether President can act on domestic affairs not expressly authorized by Constitution, J. Jackson’s concurring opinion in Youngstown guides.
a. Rule. Youngstown Sheet & Tube analysis:
(1) Where the President acts with the express or implied authority of Congress, his authority is at a maximum and his actions are valid.
(2) Where Congress is silent, the President can act if he or she does not usurp powers of another branch or prevent another branch from carrying out its tasks. (E.g., commerce.)
(3) Where the President acts against the express will of Congress, his actions are invalid.
b. Examples. President cannot impound funds the Congress has authorized, cannot issue an Executive Order with an implied power that Congress has declined to authorize, such as the military courts used to try alleged terrorists.
c. State law. Valid executive order preempts state law under general preemption principles.
- Commander In Chief. As commander in chief, the President may act militarily without a Congressional declaration of war.
- Foreign Affairs. The President’s authority in foreign affairs is paramount.
Takings
- Conceptual Approach. Two ways to describe takings:
(1) total taking vs partial taking, and within each
(2) physical taking vs regulatory taking. - General Rule. 5th Am prohibits governmental taking of private property for public use without just compensation.
- Physical Takings.
a. Rule. The actual appropriation, occupation, or physical taking of property is almost always a taking. A physical taking or appropriation of all the owner’s property is a total physical taking. Anything less is a partial physical taking.
i. Partial taking, economic use remains. If remaining land has a viable economic use, it’s almost never going to be a total taking.
b. Exception. No compensation is required if an emergency.
c. Examples. Requiring landlords to allow cable TV installation but limiting the fee to $1; abolishing the right of descent; requiring public be given free access to private waterway.
- Regulatory Takings. Four major use restrictions.
a. Denial of all economic use – total taking. If gov’t denies landowner all economic use of land there is a per se total regulatory taking. All other regulatory takings are partial regulatory takings.
i. Example. Prohibiting erection of any permanent structures.
b. Use restrictions. Regulations that decrease value of property by denying its most beneficial use do not result in even a partial taking if they leave an economically viable use. The Court balances the three Penn Central factors:
(1) the social goals sought to be promoted;
(2) the diminution in value to the owner; and
(3) the owner’s reasonable investment-backed expectations regarding use of the property.
i. Injustice required. There will be a partial taking only if the regulation unjustly reduces the value – greatly reduces the value with only slight public benefit.
c. Temporary moratoria. Where there is a temporary moratorium on all economic use, the court will weigh the three Penn Central factors plus
(4) the length of the delay.
d. Unconstitutional conditions (exactions). When municipalities condition building or development permits on
(1) the landowner’s conveying title to part or all of the property to the government or
(2) granting public access, or
(3) paying a monetary fee,
this is called an exaction.
An exaction is an unconstitutional condition unless
(1) the government shows that the condition relates to a legitimate gov’t interest and
(2) the adverse impact of the proposed building or development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupancy rights.
Zoning
Zoning ordinance may be taking if
(1) ordinance physically appropriates property,
(2) ordinance denies all economic use,
(3) ordinance unreasonably interferes with distinct, investment-backed expectations.
This is not a rule, just a roadmap of things to look out for. Apply takings rules above.
a. Nonconforming use. Zoning power is based on the police power and is limited by the Due Process Clause. A nonconforming use that existed when the zoning ordinance was passed cannot be eliminated at once – they are permitted, and may be amortized over a reasonable period of time by grandfathering in existing uses.
i. Conveyance to third party. Only when the property with the non-conforming use is conveyed to an independent third party (as opposed, for example, to a family trust or family member such as parent to child) can the zoning change be enforced.
b. Variance. Variance from zoning may be granted if
(1) showing of unique hardship to property owner, and
(2) not contrary to public welfare.
Procedural Due Process
- Due Process Requirement.
a. Rule. Individuals have a right to due process before gov’t acts to deprive them of life, liberty, or property. This includes fair process or procedure, which requires
(1) notice and opportunity to be heard before a neutral decision-maker and
(2) that “punishment” is not excessively disproportionate to “crime”.
b. Limits.
i. Individualized hearings only. There is only a right to procedural due process when the government acts to deprive an individual (as opposed to a group or everyone generally) of life, liberty, or property.
ii. Passage of law not an issue. Passage of a law, which affects the general public, does not present a procedural due process issue.
iii. Look out for. Some kind of hearing on an individual or organization’s rights, or license, or permit, like zoning, or the property interest of a public employee in continued public employment if their position is tenured and not at-will.
iv. Begin by identifying right. Then begin by identifying the right that is allegedly deprived.
- Deprivation, Interest.
a. Deprivation. Deprivation must be intentional, not negligent, and a deprivation means that the government affords no remedy or an inadequate remedy.
b. Life. Death penalty.
c. Liberty. When P
(1) loses significant freedom of action (such as commitment to jail or a mental institution), or
(2) is denied a freedom provided by the Constitution or by statute, such as the freedom of speech.
d. Property. Personal belongings and realty, chattels, or money and intangible property, but also includes
(1) legitimate claims and entitlements,
(2) development rights, and
(3) vested right to continued public employment by a tenured employee except for cause.
- Adequacy of Notice.
a. Before deprivation. Must receive notice and opportunity to respond before deprivation occurs. Notice must be reasonably designed to ensure party is in fact notified.
- Fairness of Hearing.
a. Matthews balancing test. Hearing must have fair procedures and an unbiased decision maker. The test for fairness of the type of process required:
(1) importance of the individual liberty or property interest allegedly deprived;
(2) value of specific procedural safeguards protecting that interest (including proportionality of punishment to offense); and
(3) countervailing governmental interest in fiscal and administrative efficiency.
14TH AMENDMENT & Equal Protection
- Umbrella. The 14th Amendment bars state and local gov’t deprivation of equal protection and substantive due process rights, including those rights that apply to the states through incorporation under the 14th Amendment.
- State Action.
General rule. Claim based on deprivation by state or local gov’t of equal protection or substantive due process fundamental rights, there must be state action.
b. Types of state action. Four major types of state action:
(1) law, ordinance, or regulation;
(2) government actor (e.g., agency or gov’t employee);
(3) private actor engaged in traditional exclusive public functions; and
(4) private action with significant state involvement, encouraging or facilitating the private action (court enforcement of racial covenants in Shelley v. Kraemer; one-time grant not enough).
On the test. Make sure you clearly indicate which type of state action is applicable. Private actor or action/state action issue rarely tested on the essay.
Only applies to 14th Am. State action only required for state/local gov’t violation of 14th Am equal protection and sub due process. Don’t discuss if federal gov’t action or state/local gov’t violations of other parts of constitution.
Equal Protection
- Equal Protection.
a. Intent. Is there intent to discriminate? Three kinds of intent:
(1) facial discrimination,
(2) discriminatory purpose, or
(3) law is being discriminatorily applied.
i. Discriminatory effect insufficient. Discriminatory application and purpose need additional facts showing that they exist. Discriminatory effect is not enough.
b. Classification. Define the classification(s). (See take-home model answer.)
c. Test. Define and apply the appropriate test. [Classifications based on ___ receive ___.]
i. Strict scrutiny.
(1) Strict scrutiny applied to suspect classifications (race, national origin, alienage under state law); or fundamental liberties.
(2) Gov’t has burden of proving classification is “necessary” to achieve a compelling governmental interest.
- Necessary. Means
(1) there’s no less restrictive alternative, or
(2) law is narrowly tailored – it neither covers
(a) more people or conduct than necessary to achieve purpose (overinclusiveness) or
(b) less people or conduct than necessary to achieve purpose (underinclusiveness)..
ii. Intermediate scrutiny.
(1) Court uses intermediate scrutiny when classification based on gender or legitimacy.
(2) Gov’t has burden of proving classification is substantially related to achieving important governmental interest. Requires a close fit between means and ends.
iii. Rational basis.
(1) All classifications other than suspect classifications, gender or legitimacy, and non-fundamental liberty interests.
(2) Plaintiff has burden of proving classification is not rationally related to legitimate governmental interest.
- Deference unless no legitimate basis. Even if law is unwise, or under/overinclusive, Court will defer to legislative body – unless purpose is to target unpopular groups or if basis of purpose is some animus toward a group.
Substantive Due Process
Substantive due process involves government infringement of liberty interests. If infringed liberty interest is fundamental, court applies strict scrutiny.
a. Fundamental rights/liberty interests.
(1) marriage;
(2) right to travel;
(3) privacy; voting;
(4) all first amendment rights (except if the purpose of a state is not to target free exercise, but only incidentally inhibits it), including the right of traditional families, but not non-traditional families, to live together; and
(5) the right of parents to raise their children in the manner they see fit.
b. Test. If fundamental right, apply strict scrutiny. Non-fundamental right, use rational basis.
c. All other cases. In Lawrence v. Texas, Court held non-fundamental right in consensual, private, adult sexual conduct, and under a rational basis test, struck down prohibition on such conduct. In all other cases, including business regulation, taxation, lifestyle, and zoning, the liberty interest is non-fundamental > rational basis.
d. Abortion. Mostly MBE, see lecture notes.
1st Amendment Speech
- Content Regulation. Regulation of speech is content based if it forbids, punishes, or burdens communications about a particular subject, but not other subjects. If speech regulation is content-based, gov’t has burden of showing its law is necessary to achieve a compelling state interest. (Strict scrutiny.)
a. Vagueness and overbreadth. A statute is vague if it is unclear what conduct or speech is prohibited. A statute is overbroad if more speech than is targeted is made unlawful.
(Give examples for why it’s vague and overbroad.)
i. Always discuss. Always discuss vagueness and overbreadth immediately after content-based regulation, independent of that and each other and under their own headers. See model answer for structure.
b. Unfettered discretion. Also consider whether the law gives government unfettered discretion to regulate speech. It cannot, so discuss that if present.
1st Amendment Speech Cont’d
- Content Neutral Regulation. Content-neutral regulation will be upheld if gov’t shows that
(1) it advances important issues unrelated to the suppression of speech, and
(2) does not burden substantially more speech than is necessary to further those interests. (Intermediate scrutiny.)
a. TPM regulations. Usually discuss under TPM regulations.
- Conduct. Freedom of speech includes right to engage in symbolic conduct. Regulations evaluated under modified O’Brien test – regulation of conduct is upheld if:
(1) the regulation is within the constitutional power (such as police power) of the government;
(2) it furthers an important government interest;
(3) the government interest is unrelated to the suppression of speech; and
(4) the incidental burden on speech is no greater than necessary (talk about alternative avenues for expressing speech – can still burn flag inside). - Commercial Speech. If commercial speech involves lawful activity and is not misleading or fraudulent, regulation of that speech is valid only if:
(1) it serves a substantial government interest;
(2) it directly advances the asserted interest; and
(3) it is narrowly tailored to serve the substantial interest.
a. Reasonably narrowly tailored. This form of “narrowly tailored” requires only a reasonable fit between the legislation’s end and the means chosen.
b. Discuss whether illegal/misleading/fraudulent first. Always first discuss whether commercial speech is misleading/fraudulent, because that’s not protected.
