Con Law Flashcards
1
Q
Article 3 limits juridiction of the federal courts to all “cases and controversies”
Is the case one the Constitution permits the federal court to hear?
A
- arising under the Constitution, federal laws, and treaties (federal question)
- between two or more states
- between citizens of different states (diversity)
- between a state and citizens of foreign states
- admiral and maritime cases
- cases where the U.S. is a party
The court cannot render an advisory opinion
2
Q
11th Amendment: sovereign immunity
A
- A private individual cannot sue a state for money damages or for injunctive relief in federal/another state court unless there is
1. consent by the state OR
2. consent by Congress - Does not apply to
-actions by the US government or other governments
-actions against counties, municipalities, or local governments
-if the plaintiff is seeking an injunction against a state officer for: (1) injunctive relief, (2) money damages to be paid out of their own pocket, (3) money damages that would result in prospective payment from the state
Congress cannot do away with a state’s 11th Amendment immunity unless it does so under a statute that unambiguously asserts that it does so, and does so under amendments that were ratified after the 11th amendment
3
Q
Federal courts limitations on pending state court proceedings
A
Federal courts should not enjoin (prohibit) pending state court proceedings
4
Q
Political question doctrine
SCREAM
A
federal courts do not decide political questions–questions which are either committed by the Constitution to another branch of gov or not inherently capable of being decided by the judiciary (SCREAM)
* seating of delegates at a national political convention
* challenges to impeachment and removal procedures
* “republican form of government” clause issues
* the election and qualifications of Congress
* procedures to amend the Constitution
* military or foreign affairs decisions by the President
5
Q
What are the requirements for a court to hear a case?
Justiciability
A
Federal courts can hear a matter only if there is a “case or controversy”
1. standing
-injury, causation, redressability
2. ripe
-real injury has resulted or there is a strong likelihood of actual injury
3. not moot
-a real live controversy must exist
The federal court cannot render an advisory opinion
6
Q
Standing
A
- injury in fact
-actual or imminent personal injury (rather than hypothetical) - causation
-the harm must be fairly traceable to the defendant’s actions - redressability
-a favorable decision would eliminate the harm or remedy the injuy
7
Q
Mootness
CCCC
A
- In order for a court to adjudicate a case it must not be moot
- a real live controversey must exist at all stages of review
- a case is not considered moot (even though it appears so) (CCCC)
-capable of repetition to tha particular plaintiff
-class action: at least one member of the class is still affected
-collateral consequences: there are other consequences that will still affect the person
-ceased activity voluntarily
8
Q
Third party standing
A
- 3rd party cannot sue to enforce someone else’s rights unless there is
1. a special relationship between the party and third person AND
2. a reason the third party does not want to or cannot raise his own rights
9
Q
Organization standing
A
- an organization can sue for an injury to itself and for injuries to its members if
1. a member(s) has standing
2. the member’s injury is related to the purpose of the association, AND
3. individual members are not required to participate in the lawsuit
10
Q
Citizen standing, tax payer standing, legislator standing
A
- There is no citizen or tax payer standing
- there is an exception for taxpayer challeneges
1. if a law enacted under Congress’s taxing and spending powers AND
2. the plaintiff alleges that Congress exceeded a specific constituional limit on the power - Legislators have no standing to challenge laws they do not think are constitutional unless they have a personal and concrete injury
Exception: Plaintiff alleges an establishment clause challenge to a taxing and spending law
11
Q
What cases does the Supreme Court have original jurisdiction over?
A
- The SC has original jd over any case that involves (APS) ambassadors, public ministers, consuls, or where the state is a party
- SC has original and exclusive jd for lawsuits between states
12
Q
What cases does the supreme court have apellate jurisdiction over?
appellate jurisdiction
A
The SC can review decision of
* decisions by three judge federal district court that grants or denies injunctive relief
* federal courts of appeal AND
* federal decisions made by state courts if
1. the case involves a matter of federal law,
2. it is a final judgment,
3. from the highest state court authorized to hear it, AND
4. was not made on adequate and independent nonfederal grounds (Ask: If the SC decided the issue of federal law in the opposite way, would it make any difference in the outcome? If no, the SC will not hear it)
13
Q
Separation of powers - Congress
A
- Congress only has the lawmaking powers the Constitution gives it
-all powers not given to the federal gov are reserved for the states
-congress does not have police power except over federal lands it owns (MILD: military base, indian territory, federal lands, district of columbia) - Congress needs bicameralism and presentment to pass laws
1. bicameralism: a majority vote in both houses
2. presentment: presented to the president to sign into law or veto (Congress can override a presidential veto with 2/3 majority vote in each house)
14
Q
what are the powers of congress?
A
- necessary and proper (combined with an enumerated power)
- taxing
- spending
- commerce
- property
- war and defense
- admiral and maritime
- investigatory
- postal
- copyright and patent
- coin money
- citizenship
- enforcement
- delegate
- impeachment
- speech and debate immunity
15
Q
necessary and proper power
Congress
A
Congress has the power to make all laws that are necessary and proper for carrying out any of its specifically granted enumerated powers
* must be combined with an enumerated power
16
Q
taxing power
congress
A
- congress may tax and spend for the general welfare
- congress may impose a tax to regulate or prohibit behavior so long as it raises some revenue (so long as the tax has a reasonable relationship to revenue and congress has the power to regulate the taxed activity)
17
Q
spending power
congress
A
- congress has the power to spend for any public purpose (extremely broad)
- cannot commandeer states to enact a federal program
- congress may place a condition on receipt of federal funds. The condition must
1. serve the general welfare
2. be unambiguous
3. relate to a legitimate federal interest
4. not be unduly coercive and
5. not require states to violate individual liberties
MEE: Only tested in 2018
18
Q
commerce power
A
Congress can regulate
* the channels and instrumentalities of interstate commerce,
* persons and things in interstate commerce, OR
* anything that has a “substantial effect” on interstate commerce
i.e., Congress can regulate anything economic or anything noneconomic that sustantially affects interstate commerce (even if purely intrastate)
* Can’t regulate noneconomic activity that does not substantially effect interstate commerce
* can’t commandeer states and force them to enact federal laws
-regulate states directly or
-regulate indirectly by threatening to take away funding
MEE: only tested in 2012
19
Q
war and defense powers
A
- congess has the power to
1. declare war
2. support an army, navy, militia; and
3. mobilize troops during wartime - may establish military courts
20
Q
enforcement powers
13th, 14th, 15th amendents
A
written into the 13th, 14th, and 15th amendments
* congress may enforce these amendments with legislation that is “congruent and proportional” (can’t create new rights or expand)
21
Q
power to delegate powers
A
Congess can delegate legislative power to executive agencies or the judiciary
* exception: the power can’t be uniquely delegated to congress by the constitution
* there must be intelligible standards used in delegating the power (easy standard)
* must not be a separation of powers problem (legislative veto)
22
Q
impeachment powers
A
congress can remove the president, vice president, federal judges, and officers of the US only by impeachment
* for treason, bribery, and high crimes and misdemeanors
* the house has the sole power to impeach by majority vote
* the senate convicts by a 2/3 vote
23
Q
What are the powers of the president?
A
Domestic powers:
* veto power
* enforcement of laws
* appointment and removal power
* pardon power
war & foreign powers:
* conduct operations once war is declared and respond to attacks
* enter into treaties or executive agreements
24
Q
veto power
A
- president have 10 ays to sign or veto a law
- if he does not sign within 10 days
-the bill passes by default if Congress is in session
-the bill is automatically vetoed if Congress is not in session - line item veto is unconstitutional
25
Youngstown test
| Take care clause
## Footnote
Enforcement of laws
* president acts w/express or implied authoirty of congress = actions are valid
* president acts where congress is silent = action will be upheld if it does not take over the power of another branch or prevent it from carrying out its tasks
* president acts against congress's express will = president's action invalid
## Footnote
president must enforce congressional laws and "take care" that they be faithfully executed
26
appointment and removal power
* president has the power to appoint and remove executive officials
* president appoints principal officers with the advice and consent of the senate
-congress cannot appoint officers (but can vest appointment of inferior officers)
* president can remove executive officials w/o cause, at will unless congress limits removal for good cause
-congress can limit removal where independence from the president is desirable
27
pardon power
president can only pardon for federal crimes
## Footnote
Cannot undue an impeachment
28
war and foreign affairs powers
| president
* president can conduct military operations once war is declared and respond to attacks or take emergency actions
* president can enter into treaties with a 2/3 senate vote
-self-executing = no further legislation needed to implement
-non self executing = further legislation needed to implement
-prevails over earlier federal legislation but not the constitution
* president can enter into executive agreements w/o senate ratification
-federal law prevails
29
presidential immunities
* president is absolutely immune fom civil suits for damages for any official acts he took as president
* president had a presumptive privilege to not disclose presidential communications (use balancing test)
30
federal preemption
federal law is supreme and preempts state law. preemption occurs when:
1. when there is an *actual conflict* between state and federal law (state law is inconsistent with federal law and it is impossible to comply with both)
2. when state law *prevents achievement* of a federal objective
3. congress has passed such *extensive regulation* that it means to *"occupy the field"*
31
Can states control the federal government?
No, states cannot sue, tax, or regulate the federal government
32
when does federal law preempt state law?
1. when there is an actual conflict between federal and state law
2. when the state law prevents achievement of a federal objective
3. congress has passed such extensive regulations
33
privileges AND immunities clause
States cannot discriminate against
* out of state
* citizens
* with respect to fundamental rights
* unless there is a substantial justification and there is no less restrictive means
34
dormant commerce clause
* states cannot discriminate against interstate commerce. discrimination occurs when:
1. laws that expressly discriminate against interstate commerce in favor of in-state commerce
-automatically invalid
2. laws that discriminate against interstate commerce but were supposedly passed to promote the health, safery, or welfare of the state's citizens
-apply strict scutiny (state must show the law was necessary to serve a compelling state interest and there is no reasonable non-discriminatory alternative)
* if a state law is nondiscriminatory on its face but still burdens interstate commerce, it is valid only if it serves an important state interest and does not impose an unreasonble burden
-apply a balancing test
35
when can states tax interstate commerce?
* States may not impose discriminatory taxes on interstate commerce (if a law does it is invalid)
* if the tax does not expressly discriminate against interstate commerce, see if the burden outweighs the benefit
1. there must be a **substantial nexus** between the taxpayer and the state
2. the tax must be **fairly apportioned**, and
3. there must be a **fair relationship** between the tax and service/benefits provided by the state
36
exceptions to the dormant commerce clause
* congress passes the law
-congress can always pass a law the discriminates against interstate commerce
* market participant doctrine
- If the state is acting as a market participant or business (instead of a regulator)
* traditional government function
37
full faith and credit clause
courts in one state must honor judgments of courts in another state if
* the court that rendered the judgment had jurisdiction,
* the judgment is on the merits, and
* the judgment is final
38
interstate compact cause
states may not enter into agreements with other states that increase the political power of the states at the expense of federal supremacy unless they have the consent of congress
39
which amendments apply to the states?
* 1st (free speech, press, religion),
* 2nd (bear arms),
* 4th (unreasonable searches and seizures),
* 6th (confrontation),
* 8th (prohibition against cruel and unusual punishment, excessive fines clause)
## Footnote
5th (right to a grand jury) and 7th (right to a jury trial in a civil case) do not
40
when is there state action?
* when a state passes a law or permits officials to take action
* when a private actor is performing a traditional and exclusive government function
* when the private action is closely controlled by the state
* stat action is present
-entwinement, judicial approval, discriminatory law enforcement, state authorization
## Footnote
Need state action to sue under the 1st, 14th, or 15 amendments
41
when does a law violate the contracts clause?
when the law
* substantially impairs
* preexisting contracts
* UNLESS there is an important and letgitimate public interest AND
* the law is reasonable and narrowly tailors
42
ex post facto laws
neither the states nor the federal government can pass laws that
* retroactively alters
* criminal laws
* in a substantially prejudicial manner
* for the purose of punishing a person for some past activity
43
bill of attainder
neither the state nor federal government may pass laws that
* specifically identifies people to be punished;
* imposes punishiment; and
* does so w/o a judicial trial
44
procedural due process
the government cannot deprive a person of life, liberty, or property w/o due process of law
* if the government deprives a person
* of life, liberty, or property
-property can be personal or real property, public education, public employment that is not at-will
* it must give notice and an opportunity to be heard, look at
-the interests of the individual in retaining their property,
-the risk of error, and
-the cost and administrative burden
## Footnote
a person can be a corportation, non-citizen, or any citizen
45
what is a taking?
* physical invasion
* regulatory taking
1. the econmic impact of the regulation on the claimant
2. whether the regulation substantially interferes with distinct, investment-backed expectations of the claimant, and
3. the character of the governmental action
* regulatory taking--exaction
-the government enacts a regulation that restricts the owner's use of property as a condition to allowing the owner to develop the land
-this is a taking unless the government can show:
1. a legitimate government interest (the city's requirement mut be related to the burden imposed) and
2. rough proportionality (individualized finding that the requirement by the city is related to the impact of the proposed development)
| a temporary taking is not generally considered a taking
## Footnote
Neither the federal government nor the states can take private property for a public use w/o just compensation
46
what are fundamental rights?
1. privacy rights (MOPPS)
-Marriage (including divorce)
-Obscenity (in the home)
-Parental and family rights
-Procreation and contraception
-Sexual relations
2. the right to vote
-states can enact age, residency, and citizenship qualifications
-partisan gerrymandering i a political question
3. the right to interstate travel
-14th amendment privileges OR immunities cluse allows every citizen to travel between states, move to a new state, and enjoy the same privileges and immunities as other citizens
4. first amendment rights
5. the right to refuse medical treatment (by a competent adult)
## Footnote
apply strict scrutiny: the government must show (i) a compelling interest and (ii) the law is necessary (narrowly tailored) to achieve that interest
47
what standard of review applies to due process claims related to non fundamental rights?
rational basis: the plaintiff has to show the law is
* not rationally related to
* any legitimate purpose
includes
-economic regulation
-right to education
-zoning
-right to welfare
-the right to lead a certain "lifestyle"
48
what is strict scrutiny for EP cases
the government must prove the law is narrowly tailored (necessary) to achieve a compelling interest
49
what is intermediate scrutiny for EP cases
the government must prove the classification is subtantially related to an important government interest
50
what is rational basis for EP cases
the plaintiff must prove the law is not rationally related to a legitimate government interest
51
when do you apply strict scrutiny in EP cases
1. fundamental rights
2. alienage * by the state
-political function exception: states may exclude non-citizens from government jobs (cops, gov. officials, public school teachers)
3. race/ethnicity
-express discrimination
-neutral on its face but written with the intent/purpose to discriminate
-neutral on its face but applied in a discriminatory manner
| FAR
## Footnote
Apply rational basis when the federal government discriminates on the basis of alienage
52
when does intermediate scrutiny apply in EP cases
1. gender
-government must show an "exceedingly persuasive justification"
-the government interest must be genuine (not made up)
-remedying past discrimination is an important interest
2. illegitimacy
53
what is a compelling interest for EP purposes
* race/ethnicity
-diversity in education at universities
(i) race can be a factor or a "plus"
(ii) there needs to be an indivualized review
-ovecoming present conseqences of past discrimination by that exact same party
54
when does rational basis apply in EP cases
* age
* wealth
* poverty
* education
* mental capacity
* other
55
when is remedying past societal discrimination OK?
| equal protection
* gender cases
* NOT allowed in racial disrimination cases
56
what standard of review applies to viewpoint based speech restrictions?
strict scrutiny: the government must show the regulation is necessary to serve a compelling state interest and is narrowly tailored to that end
57
what standard of review applies to content based speech regulations?
strict scrutiny: the government must show the regulation is necessary to serve a compelling state interest and is narrowly tailored to that end
58
what are the exceptions for content based speech restrictions?
1. symbolic speech
2. low value speech
3. less protected speech
59
what standard of review is used for symbolic speech
must be narrowly tailoed to an important governmental interest and unrelated to the supression of speech
## Footnote
intermediate
60
what standard applies to content neutral speech restrictions
the government must show it has an important governmnt interest and the regulation does not burden substantially more speech than necessary
## Footnote
intermediate
61
define the types of unprotected speech. what standard applies?
* apply rational basis
* speech inciting immediate lawless or violent behavior
-the government may prohibit speech directed at inciting and likely to incite imminent lawlessness
-look for a riotous crowd
* fighting words
-words likely to incite immediate violene (usually overbroad or vague)
-fighting word statutes designed to punish certain viewpoints are unconstitutional
* true threats or verbal acts as conduct
* obscenity
1. appeals to the prurient interest in sex (apply local standards)
2. depicts sexual conduct in a way that is patently offensive (apply local standards)
3. lacks serious artistic, literary, political, or scientific value
62
what standard applies to commercial speech
* speech must be lawful and not misleading
* statute must serve a substantial government interest, directly advance that interest, and be narrowly tailored
63
what standard applies to sexual or indecent speech
the regulation must serve a substantial government interest and leave open reasonable alternative channels of communication
64
what is a public forum? what stadard applies?
* public forum
1. traditional public fora = streets, sidewalks, parks
2. designated public fora = forums the gov. chooses to open (schools, state fair grounds)
* three part test (CNA)
1. statute must be **c**ontent neutral
2. **n**arrowly tailored to serve an important (substantial) government interest
3. must leave **o**pen alternative channels of communication
65
what are non public forums? what standard applies?
* non public forum = forums not historically associated with the free exchange of ideas
-militar bases, advertising sold on city buses, prisons, gov. workplaces, airports, school mailboxes, sidewalks on postal services property
* must be viewpoint neutral and reasonably related to a legitimate governmental interest
## Footnote
rational basis
66
when are licensing statutes valid?
NODS
* neutral
* objective
* definite standards
67
when can speech in schools be regulated?
the regulation must be reasonably related to legitimate pedagogical (educational) concerns
68
what applies when a law favors one religion?
strict scrutiny
69
what standard applied to laws that are religiously neutral on their face?
reference historical practices and understandings
* if historical practices show it is constitutional it will be upheld
* if historical practices show the law is unconstitutional, it will be struck down
70
free exercise
* government cannot punish/burden a person based on their genuinely held religious beliefs
* gov. looks at sincerity
71
how can the government regulate religiously motivated conduct?
* gov can regulate or prohibit activity so long as the law is neutral and of general applicability
* if the purpose of a law is to prevent, burden, or interfere with religion, apply strict scrutiny
-the gov has to show the law is necessary (narrowly tailored) to achieve a compelling interest
