Con Law Flashcards
Justiciability Doctrines (RAMPS)
Ripeness
Advisory Opinions
Mootness
Political question doctrine
Standing
Ripeness
Fit & Substantial Hardship
-P must show that review is not premature, the P must demonstrate that a harm has occurred or imminently will occur
- Whether issue fit for judicial review
Is P challenging an actual law Whether the law being actually enforced Whether P suffering direct/immediate harm hardship to parties of withholding ct review
Advisory Opinions
Cannot give
Must be an actual dispute b/n adverse litigants
Must be a substantial likelihood that a federal ct decision in favor of a claimant will bring about some change or have some effect
Mootness ( what is it, exception)
Live controversy + Ongoing Injury
Exceptions
- capable of repetition, but evading review
- voluntary cessation, but free to resume
promise in and of itself is not enough
-for class action suits
just bc named P has been resolved doesn’t
mean case is moot case is viable if there is still
a member of class
Political question doctrine
- constitutionally committed to other branch of gov’t or inherently incapable of judicial resolution
- Exception: ct sees a commitment in the language
but disagree on meaning, interpretation of
language needed
Standing
Injury, Causation, Redressability
Standing is the determination of whether a
specific person is the proper party to bring a
matter to the ct for adjudication
Injury:allege that he/she has suffered or
imminently will suffer an actual concrete
and particularized injury
Causation: allege that the injury is fairly traceable
to the defendant’s conduct
Redressability : the ct provide the P relief that will
alleviate the injury
Standing Exceptions
3rd Party Standing: A party generally may assert
only his/her own rights and cannot raise the
claims of 3rd parties not before the court
Person who can bring suit on behalf of other ppl
must have standing themselves
Look at closeness of the relationship b/n P and
injured 3rd party
look at difficulty of 3rd party to assert own rights
Taxpayer: P may not sue as taxpayer who shares a
grievance in common with all other taxpayers
(prohibition of generalized grievances)
A taxpayer can’t sue unless (taxing and spending
power violating 1st amendment)
Challenged act relates to Taxing&Spending power
Must est link b/n taxpayer money & gov’t
expenditure, AND
Taxpayer must prove spending power being
challenged violates the Constitution
(specifically the first amendments freedom of
religion )
Sovereign Immunity
Government cannot be sued without consent
Local gov’ts and entities can be sued
States can sue each other
States can be sued in relation to Bankruptcy
State officials can be sued
Congress removed immunity as to actions created
under 14th amendment power to prevent
discrimination
Necessary and Proper Power
grants Congress the power to make all laws necessary and proper for carrying into execution ANY power granted to ANY branch of the Federal government. As long as that law doesn’t violate another provision of the constitution
Commerce Power
empowers Congress to “regulate commerce with
foreign nations and among the several states,
and with the Indian tribes.”
Congress can regulate commerce in 3 ways
Channels (taken to get goods from one place
to another)
Instrumentalities ( transportation used to get
goods there)
Economic activities that have a substantial
effect on interstate commerce
Congress can regulate activites that themselves
have little effect on interstate commerce but if
take singular act and add it cumulatively and it
has a substantial effect on commerce then
congress can regulate it (singular act taken in
the aggregate)
Only Beyond congress reach= those which are
completely within a particular state, which do
not affect other states, and with which it is not
necessary to interfere for the purpose of
executing some of the general powers of the
govt
Congress may prohibit private discrimination in
activities that might have substantial effect on
intetrstate commerce
10th Amendment
powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Congress violates the 10th amendment when it interferes with traditional state and local government functions (can’t regulate NONECONOMIC intrastate activity in areas traditionally reg by stat/ local gov)
Congress may not simply commandeer the legislative process of the states by directly compelling them to enact and enforce a federal regulatory program( can hold out incentives)
Tax constitutional when?
Congress may tax and spend to promote general welfare
constitutional when: generating revenue, used to achieve valid regulatory goal
Congress may place strings on grants as long as
the conditions are expressly stated and as long as they have some relationship to the purpose of the spending program: pursuit of general welfare, clearly stated, related to purpose, constitutional, not unduly coercive
Privileges or Immunities Clause (under 14 amendment prohibits
states from denying their citizens the rights of national citizenship, which includes the right to interstate travel, right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to enter public lands
Privileges and immunities Clause of Article IV
limits states from discriminating against nonresidents regarding fundamental rights
those involving important commercial activities (right to earn a living) or civil liberties absent a substntial justification
Congress delegating powers
- can’t transfer ability to create law
has the power to delegate its broad legislative powers to administrative agencies that fall under the executive branch
must provide intelligible principles when delegating power to the executive branch.
need for bicameralism & presentment
no line item veto
no legislative veto
implied Presidential powers
Max power: pres acts pursuant to an express or implied consent of congress
Medium power: pres acts in absence of either a congressional grant or denial of authority, rely on his own independent power , congress may have concurrent authority (some authority to enforce laws some authority to pass laws)
Min power (prob unconstitutional): pres acts in a way incompatible/ contridiction with expressed or implied will of congress
Treaties process
Negotiated by pres
Approved by ⅔ senate
Constitution > fed law (treaties)> state law
Conflicts with fed law = last in time rule
Executive agreements effect
No senate approval
constitution> federal law> executive agreements> state laws
Preemption
If Congress has lawfully passed a law with their own power, that law can trump state law or any local ordinance.
Express preemption: Expressly says we do not want state to do “x”
Implied Preemption: arises when there is a federal statute, but Congress has not explicitly prohibited regulating by the state in a statute (3 types):
Implied Preemption (3 types)
Conflicts preemption (implied): if a fed and state law are mutually exclusive so that a person cannot comply with both the state law is preempted
Field preemption (implied): federal gov’t should control entire field
Where the scheme of federal law and regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it
Frustration of Federal purpose (implied):the state legislation is frustrating the purpose of the federal legislation and creates an obstacle contrary to Congress’ intent.
If purpose of state statute is different form purpose of federal regulation then there is no frustration of purpose
Dormant Commerce Clause (negligent clause)
If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not:
Discriminate against out-of-state commerce;
Unduly burden interstate commerce; or
Regulate extraterritorial (wholly out of state) activity
NOndiscriminatory law ( state)
states can impose nondiscriminatory restrictions, so long as they apply the same to all people/states:
Discriminatory Law (state)
ct concludes that a state is discriminating against out-of-staters, then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose
Facially Discriminatory: laws that clearly favor in state residents over out of state people.= presumptively invalid BUT valid if
Necessary to achieve purpose unrelated to protectionism
No non-discriminatory alternatives
Economic Protectionism: States trying to isolate themselves from national economy is unconstitutional.
Nondiscriminatory state law-= presumptively valid
But invalid if burden outweighs benefit ( law is essentially irrational)
Facially Non-Discriminatory w/ Discriminatory impact= Unconstitutional
State law shown to discriminate against US Commerce (what happens next)
burden on state to demonstrate
They have sufficient interest in the law in question, and
The law is the least discriminatory way to advance the states interest
Exception to state law discriminate against US Commerce
congressional approval
Market participant: State or local gov may prefer own citizens in receiving benefits from gov programs or in ealing w/ gov-owned business.
law favors gov action: Involves performance of traditional gov function (waste disposal)
Article IV Privileges and Immunities
Prohibits states from discriminating against out of state citizens
Important commercial activities and ability to earn a living
Only US citizens
Not absolute
Congress POwer Under the Post civil war amendements
Congress may regulate only state and local gov actions not private conduct under the post civil war amendments to futher aims of the amendment
13th amendment - ended slavery and involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, applies to private conduct
14th amendment- sec 1: anyone born in US is a citizen of the US , equal protection of the law, due process of law
can’t deprive person of life, liberty, or property, without due process of law
15th amendment cant deny someone the right to vote on the basis of race color or previous servitude status
State action Doctrine
Gov action needed for constitution to apply
( laws or act of gov official)
not private action unless activities traditionally and exclusively performed by government
significant state involvement in private conduct ( perform exclusive public function or stte affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is sufficient entwinement b/n state and private party
Levels of scruitnity
Rational basis test =Law is constitutional provided it is rationally related to a legitimate government interest
P has Burden of proof
Interest must be legitimate
Intermediate scrutiny test =Law is constitutional provided it is substantially related to an important government interest
Government has burden of proof
Interest must be important
There is an alternative channels (for speech)
Strict scrutiny test Law is constitutional provided it is narrowly tailored to serve a compelling government interest
Government has burden of proof
Government interest must be compelling, and law has to be precisely written to meet only the intended goals of the statute
Due Process ( what protected/ if right is…)
Person right to a fair process when the gov’t deprives the person of life liberty or property
liberty= loss significant freedom of action or denied freedom provided by the Constitution or a statute
property= personal and real prop and gov’t benefits to which there iis entitlement ( reasonable expectation of continued receipt)
If a right is safeguarded under due process, the constitutional issue is whether the government’s interference is justified by a sufficient purpose
If right is protected under equal protection, the issue is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose
Fundamental Right (types:6)
When a fundamental right is limited the law or action is evaluated under STRICT SCRUTINY
Types
1st amendment right
Right to interstate travel
Equal treatment in new state
Some residency restrictions OK
Privacy related rights
Voting rights
One person, one vote
Racial gerrymandering= strict scrutiny
Right to bear arms
self - defense in home and in public
Regulation- consistent with histrorical tradition of firearm regulation
Unspecified rights (standard of review unclear)
Sexual intimacy
Refusal of medical treatment
Privacy rights
right to marry : law prohibiting class of adults to marry= invalid
procreation : forcefully steralizing= invalid
use of contraception
right to keep family together : included extended family but not unrelated ppl
right to custody of one’s child
right of parents to control childs upbringing
Abortion
No fundamental right in constitution
States may regulate
Restrictions entitled to strong presumption of validity : rational basis review
Support restriction reasons
Respecting and preserving prenatal life at all stages
Protecting maternal health and safety
Eliminating particularly gruesome or barbaric medical procedures
Preserving integrity of the medical profession
Mitigating fetal pain
Preventing discrimination based on race gender or disability
existence of a right triggers 2 burden
Substantive: the gov must justify an infringement by showing that its action is sufficiently related to an adequate justification (whether have an actual right)
Procedural: a guarantee that the gov will not act in a way that will deny citizens a life, liberty, or prop interest without sufficient notice and a hearing
procedural due process requires
must be an intentional or reckless gov’t action
Notice :Be reasonably calculated to inform the person of deprivation
Opportunity to be heard
Type and extent of hearing determined by balancing
Importance of interest to the individual nd
Value of specific procedural safeguards to that interest against
Government interest i fiscal and administrative efficiency
Neutral decisionmaker = Cannot have any actual bias or serious risk of actual bias
Equal protection Classification/ scrutiny
Showing that it exists on the face of the law or demonstrating that a facially neutral law has a discriminatory impact and a discriminatory purpose
Strict for race or national origin or religion or ethnicity or against aliens (gove, burden of proof, recognized interest = Try to remedy past intentional discrimination, generalized will not work, have to be specific
Trying to diversify higher education, race has to be a factor of a wholistic view ( GPA, Personal statement,)- Grutter
Quota inherently suspicious typically will not satisfy narrowly tailored
intermediate- gender and nonmarital children, Law must have an exceedingly persuasive justification for the class and that justification has to be substantially related to an important gov interest, Gov has the burden of proof
Rational basis- all laws under equal protection must meet ex: age , burden of proof on P, if rooted in animus towards group then can’t be deemed legitimate interest
Taking clause
5th amendment provides private prop may only be taken for public use and gov’t must pay just compensation
public use= Gov’t action rationally related to a legitimate public purpose
Authorized takings by private enterprises are included if they work to the public advantage
pay just compensation=Measured by the fair market value of the prop taken at the time of taking and its based on th eloss to the owner
Taking vs. Regulation
Confiscation or occupation = physical takings
Use restrictions (reguatory takings)
If gov’t regulation denies landowner of all exonomically viable use of their land, the regulation amounts to a taking unless principles of nuisance or prop law make use prohibitable
Temporary denials of all economic use does not constitute a per se taking
Regulations that decrease value of prop do not amount to taking if leave an economically viable use for the prop
Taking Clause Exceptions
Conveying title to part of the prop to the gov’t or granting the public an easement to access prop is a taking UNLESS
Gov’t can show there is ann essential nexus b/n the condition and the proposed development AND
The adverse impact of the proposed development is roughly proportional to the loss caused to the prop owner from the forced transfer
EMERGENCY EXCEPTION- public emergency like war
Private/ public contracts ( Retro active Leg.)
intermediate scrutiny
Leg that substantially impairs an existing private contract is invalid unless leg
Serves an important and legitimate interest and
Is reasonable and narrowly tailored means of promoting that interest
public contract- heightened scrutiny
Ex Post Facto Laws
Neither state nnor fed gov may pass an ex post facto law,
is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for tthe purpose of punishing a person for some past activity
Statute retroactively alters law in substantially prejudicial manner if
Makes criminal an act that was innocent when done
Imposes greater punishment for act
Reduces the evidence required to convict
Freedom of speech/ what counts as speech
The first amendment of the US Constitution states that Congress shall make no law abridging the freedom of speech
Includes words, symbols, and expressive conduct
Expressive conduct= any kind of conduct that is either inherent expressive or conduct intended to convey message and reasonably likely to be perceived as conveying a message
Protest
Artistic expressions: music art movies etc
Symbolic expression: burning of flag, wearing black armbands with peace sign,
Content Based SPeech
- the government cannot regulate speech based on its content
facially content-based law will not survive strict scrutiny
A law will be found to be content-based and must meet strict scrutiny if it is either a viewpoint or a subject-matter restriction
viewpoint
Viewpoint discrimination= a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny
Test for viewpoint discrimination is whether within the relevant subject category the government has singled out a subset of messages for disfavor based on the views expressed
Content-Based Exception
Secondary effects test- intermediate scrutiny
only pertains to sexual adult material
gov argue regulation is justified by a content-neutral desire to avoid undesirable secondary effects of the speech.
Content Neutral
Content neutral time, place, and manner regulations are acceptable so long as they are designed to serve a substantial gov interest and do not unreasonably limit alternative avenues of communication = intermediate scruitiny
speech public vs private
Public if
can “be fairly considered as relating to any matter of political, social, or other concern to the community, subject of legitimate news interest
private if
speech solely in the individual interest of the speaker and its specific business audience
Government speech
When gov’t speaks, it is not barred by the free speech clause from determining the content of what it says
To assess whether gov’t speech doctrine applies
The courts assess
A historical context of speech = traditionally comes from the gov’t
Whether the public can reasonably interpret as coming from the govt or on its behalf and
The extent to which the government controls the message
Ex: License plate , Permanent Monument
vagueness
CRIMINAL LAW OR REGULATION fails to give persons reasonable notice of what is prohibitted
Overbroad/ overbreath
Regulation of speech or speech related conduct Unconstitutuionallly overbroad if it regulates substantially more speech than is necessary
prior restraint( what it is, exclusion, procedural safeguards)
An administrative system or a judicial order that prevents speech from occurring
Strong presumption against = strict scrutiny
Gov argues national security most likely to be enjoined ( troop movement, development of a weapon, method for identifying terrorist= strategy still using)
procedural safeguards
Standards narrowly drawn, reasonable and definite
Injunction promptly sought
Prompt and final judicial determination of validity of the restraint
Obscenity
Obscene material is material which deals with sex in a manner appealing to prurient interest
Test
Whether the average person would find that the work taken as a whole appeals to the prurient interest
Whether the work depicts or describes sexual conduct specifically defined by the applicable state law in a patently offensive way under contemporary community standards
Whether the work taken as a whole lacks serious literary artistic political or scientific value (LAPS)
child pronography ( unprotected speech)
works that visually depict sexual conduct by children below a specified age is not okay
The gov cannot ban child pornograpy based on its condemnation of the material
Gov interest is limited to protecting the children from being used in the making of the material
fighting words
speech that is directed at another and likely to inflict injury or provoke a violent response that breaches the peace
upheld only if it specific and narrowly tailored to apply just to speech that is not protected by the First Amendment
Press publication
press has a right to publish truthful info regarding a matter of public concern
Incitement of illegal activity
The test to determine the constitutionality of a statute restricting free speech is whether, under the circumstances, the speech is of such a nature as to create a clear and present danger that it will bring about the substantive evils that Congress has a right to prevent
Mere advocacy of the use of force or violence does not remove speech from the protection of the 1st amendmen
Intimidation ( unprotected speech)
If directing a true threat at an individual then not protected and can be prosecuted
speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death
student speech
materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech
public employment
Gov employees speech while at work involving private concern , the employer can punish employee if disruptive to work environment
Gov employer can punish public employee speech whenever speech made on job and pursuant to employee’s official duties even if speech toouches on matter of public concern
If matter on public concern but not made pursuant to employee official duties ct apply balancing test
Symbolic speech
If the conduct in question has the intent to convey a particularized message AND
It is likely that those who see/ view the conduct understand the message communicate by the conduct… THEN
The conduct is protected by the first amendment
campaign contribution
anything of value given or loaned directly to a candidate
Laws may limit the amount of money that a person group or corporation can contribute to a political candidate
gov may not limit the amount of money that may be spent to support or oppose a ballot referendum
gov can’t limit the aggregate amount one person or entity contributes to political candidates or committees during an election
speech forums
Public forum, gov props that gov required to make available for speech
designated public forums Are forums that could be closed to speech, but are voluntarily opened to speech by government entity
Once designated all rules for public forum apply
Can be removed after initial designation
limited public forums -designation of who this space is opened up to is limited
Defamatory speech ( public official figue)
Public official/ figure suing for public or private matter must show actual malice
Actual malice = knowledge that it was false or reckless disregar as to its truth or falsity
Pove by clear and convincing evidence
Only recover actual damages if P only shows neg.
punitive/ presumed damages need to show actual malice
Public officials are ppl
Holding or running for elective office
Public employees in positions of public importances ( prosecutors, principal, police officer)
Public figures are ppl
Assumed roles of prominence in society
Achieved pervasive fame and notoriety or
Thrust themselves into particular public controversies to influence their resolution
Commercial Speech
not protected if false, misleading, or about illegal products or services
regulation of commercial speech only upheld if
Serves substantial gov’t interest
Directly advances that interest and
Is narrowly tailored to serve that interest
Govt may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception
Private parties cannot be sued for violating the constitution unless
entanglement exception
The govt is authorizing or facilitating unconstitutional conduct by private party
public function exception
The private party is engaging in activity that is traditionally and exclusively done by the government
Free Exercise Clause
Government cannot outlaw or seriously burden a person’s pursuit of religion (ability to practice their religious belief)
Courts cannot probe the truth or falsity of a religious belief, but they can probe whether the belief is sincerely held
law (or action) is specifically directed towards regulating conduct because of its religious nature, strict scrutiny will apply
law has an effect of burdening religious practices, but is neutral and is of general applicability law will be subject to rational basis and generally upheld
Establishment Clause
Government cannot advance, endorse, support, or give preference to a particular religion or religion over non-religion
no school sponsored prayer during school day or during extracurricular activities , ( private schools dont have to abide by)
If the gov’t seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose
full faith and credit clause
requires states to respectthe public acts, records, and judicial proceedings of other states
state ct must recognize and enforce judicial decisions rendered by a ct in another state when
the ct had PJ and SMJ
the case was decided on its merits and
final judgment was entered
