Con Law Flashcards
Does Congress have powers to remove officers?
No – that is the president’s sole job, unless officers:
- Belong to multi member body that is balanced along party lines; or
- Lack policy making or admin authority
ICC for instate activities
TIP: look for economic effect
To determine if Congress can regulate, consider whether:
1. Activity is economic in nature → if so, substantial effect presumed
- Jurisdictional element limits reach to activities w/ direct connection to IC
- Express congressional findings that activity substantially affects IC; and
- Strong link between activity & effect on IC
If Congress explicitly tells Prez how to use $$, does Prez have to listen?
YES, Article 2 requires Prez to faithfully execute the laws
Prez cannot unilaterally alter how the funds used
CF: if congress gives him discretion, then that is fine
Can a state tax the fed govt?
No per the supremacy clause, which immunizes the fed govt from state taxation, unless Congress consents
State can tax the fed govt’s affiliates: employees, IC!
- this is true even if the tax is eventually passed to the govt
When does a fed affiliate not have to pay state taxes
Must pay state taxes unless:
- congress gave them immunity
- tax discriminates against fed govt or affiliate; or
- tax substantially interferes w/ affiliate’s ability to accomplish its fed purpose/duties
Dormant CC
Prohibits states from enacting:
- Discriminatory against OOS commerce
- Undue burden on ICC, especially when burden > local benefits
- Regulate wholly OOS
State Actor Doctrine – private actor
Private actor is considered a govt actor when:
- private actor performs a traditional + exclusive govt function (ie, ED); or
- Govt is significantly involved in private actor’s activities, which requires more than:
- funding
- licensing
- regulating
- granting franchise
Is water service a state action?
No, historically done by private actors
Rational Basis
Challenger has burden to show:
- No rational relation to
- Legitimate state interest
- lifestyle
- taxation
- zoning
- punitive damages
Intermediate Scrutiny
Govt has burden to show
- substantial relaiton to
- Important state interest
Applies to quasi suspect class (gender, legitimacy)
Strict Scrutiny
Govt has burden to show
- Necessary to achieve (via narrowly tailored)
- Compelling state interest
Rights of State Citizenship
Seen w/ PI of Art 4 (comity clause)
- travel/reside in state
- employment
- business/trade in state
- own/transfer property
- seek medical services
- access to state courts
- civil liberties
- creditor’s rights
- tax exemptions
Privileges & Immunities Clause of Art 4
Aka, Comity Clause
prohibits states from discriminating against OOS residents by denying them a right of citizenship
TP Standing
No standing unless:
- TP is unable to assert their own rights
- Special relationship between P and TP; or
- P’s injury adversely affects P’s relationship
Organizational Standing
Org can sue on its own behalf or behalf of its members if:
- members would have right suing on their own;
- interest at stake are germane to org’s purpose
Standing for P
P must establish
- injury in fact – actual/ future harm must be imminent
- causation
- Redressibility –can’t be moot
- “prudential standing” – P is a proper party
Ripeness of an action
P must have experienced a real injury; or imminent threat of of an injury
an action brought too soon is unripe
Mootness
Need live controversy at each state of review
Case is NOT moot when:
- “capable of repetition but evading review” –> will not last long enough to work though judicial system
- D voluntarily ceases its illegal/wrongful action upon commencement of litigation
- Collateral legal consequences can be imposed based on clahhened conviction
- Named P’s claim in class action is resolved––doesnt render the entire class moot
Not subject to Justiciability
Advisory opinions
Declaratory judgment – can be reviewed, but the challenged action must pose a “real and imminent danger” to a party’s interest
Political Questions
Political Questions
Not subject to judicial review when:
1. constitution has assigned decision making to a diff branch
- matter is inherently not one the judiciary can decide
What does ICC regulate?
- channels
- instrumentalities
- people/things passing through
- any activity (in state) that substantially affects––alone or in the aggregate––ICC
-TIP: needs to be economic effect
ICC – Aggregation + Standard to regulate
Don’t care about one’s direct economic impact, instead we look at the aggregate
Rational Basis : congress can regulate so long as there is a RB for concluding that the “total incidence” of activity in the aggregate substantially affects ICC
Regulating non economic activity
non economic actiity myst have a substantial economic effect on ICC
Taxing
Power of Congress
Tax by congress will be upheld if:
- reasonable relationship to revenue production
Congress has plenary power to imposes taxes that raise revenue––ie, for any public purpose––via the general welfare clause
Spending
Power of Congress
Congress has power to spend for the general welfare (ie any public purpose), including conditional fed funding**
**this is usually how they get around 10A anticommandeering
Powers of Congress
- Commerce
- Taxation & Spending
- War & Defense
- Property ower (ED)
- Power over noncitizens & citizenship
- Necessary & Proper Clause
- Power to enforce 13, 14, 15A
Powers of the President
- Domestic Power
- Pardon
- Veto
- Appointment
- Removal
- Authority as Chief Executive
- Duty to faithfully execute laws - Foreign Affairs
- Commander in Chief
- Treaties
- Executive Agreements
War & Defense Powers
Power of Congress
- declare war
- raise & support armies
- provide and maintain navy
- military courts & tribunals
- national guard – authorize Prez to call NG
ICC is under whose power
Only congress can regulate
Necessary & Proper Clause
Congress has power to enact any law necessary & proper to execute any authority granted to any branch of govt
Needs to be attached to something else; not an independent source of power
13A
Ban on slavery
eliminate racial discrimination
authorizes private c/a
14A
Equal Protection Clause & Due Process
Congress can pass legislation to enforce EP and DP rights
Enabling Clause: Must be “congruence and proportionality” between injury & means adopted
15A
Voting
prohibits state/fed govt denying any citizen right to vote based on race/color
Congress cannot treat states differently
Power to Pardon
Exclusive Prez Power
Power to pardon fed offenses––not state offenses
Can pardon anytime after the commission of the offense
What happens when a bill makes it to the Prez’s desk
Prez has 10 days to act on proposed legislation. Prez can:
- sign bill
- veto the bill
- do nothing – result depends on if Congress is in session
- if in session, leg becomes law
- if not in session, bill does not become law (pocket veto)
Veto Power
President’s power– what happens
- bill sent back to congress w/ objections
- congress can override the veto by 2/3 vote in each house
Appointment
Prez Power
Prez appoints all “officers of the US” w/ advice & consent of senate
Removal
Prez can remove any executive appointee w/o cause
Do NOT need Senate approval
“Take Care Clause”
Presidential duty to faithfully execute laws, even when Prez disagrees on them
Who can declare war?
only congress can!!
but the president can take military action w/o declaration of war in the case of actual hostilities against the US
Treaties
President negotiates them
2/3 of present senators approves them
Executive Agreements
Prez can enter into them
Do NOT need senate approval
Congressional Limitations on the Executive
- Impeachment –house can impeach via majority vote –> senate then tries the impeached + needs 2/3 vote
- Appropriation –If congress tells Prez how to use $, he has to listen + cannot refuse to spend it
- Legislative Veto –unconstitutional for Leg veto on Exec decision
Powers Congress Can and CANNOT Delegate
Can Delegate – some authroity to the exec branch if they specify an “intelligible principle” to guide the delegate
CANNOT Delegate– impeachment power; power to declare ware
Judicial Immunity
judge has absolute immunity from civil L for damages resulting from judicial acts
Can be L for hiring/firing
Legislative Immunity
NO immunity (civil or crim) for statements/conducts made in regular course of leg process by members of congress
Executive immunity
Prez CANNOT be sued for civil damages w/ regards to any acts performed as part of their official responsibilities
NO immunity from civil action based on conduct alleged to happen before Prez took office; or unrelated to job
Prez can be subject to suit even when in office
Executive Privilege
privilege with respect to disclosure of confidential info by exec branch to either judiciary or congress
Exclusive Federal Power
Congress + President
coin money
enter into treatises
declar ware
power over citizenship
Federal Immunity
State cannot regulate the fed govt
States cannot directly tax fed govt
States can tax fed govt’s contractors/employees – even if its an indirect tax on fed govt
State Immunity
Fed Regulation – fed govt can regulate state activities
- congress cannot commandeer tho
Fed Taxation – fed govt can tax a state, but states have partial immunity from direct fed taxation that would unduly interfere w/ performance of state’s “soverign functions”
Limitations on Conditional Funding
Conditions must be:
- for general welfare
- unambiguous
- relate to fed interest in projects/programs
- not induce states to act unconstitutionally
- not exceed point where condition is now “pressure”
When can a state discriminate against OOS commerce/ppl
state is protecting local economic interests at the expense of OOS competitors
- necessary to an important state interest!!
- important local interest served
- no other nondiscriminatory means available
^^ rarely upheld
Market Participation Exception
Exception to DCC
state can favor local commerce or discriminate against nonresidents commerce ONLY IF it is acting as a buyer/seller
Traditional Govt Function – DCC
state/local regulations can favor state/local govt entities (but not private!!) ONLY IF:
- entitles performing a traditional govt function (waste disposal)
Water services not a traditional govt function
Undue Burden on ICC – DCC
nondiscriminatory state law may be stricken if it imposes an undue burden on ICC
BALANCING TEST:
- purpose of state law against burden on ICC
- are there less restrictive means?
State Taxation of Commerce + 4 part Test
GR: states can tax ICC ONLY IF:
1. congress has not acted in the particular area; and
2. tax does not discriminate aginst or unduly burden ICC
4 PART TEST!
(1) Substantial Nexus –btw activity and taxign state
(2) Fair Apportionment –ICC does not pay total taxes more than local commerce
(3) Nondiscrimination – no direct commercial advantage to locate business over OOS competitors
(4) Fair Relationship –tax must be fairly related to served provided by taxing state
Implied Preemption of Fed Law
Applicable when:
1. congress intended for fed law to occupy the field;
2. state law directly conflicts w/ fed law
3. state law indirectly conflicts w/ fed law
Absence of Preemption
Fed law is the floor
state law is the ceiling
Full Faith & Credit
OOS judgments must be given in state effect if:
1. court had PJ + SMJ
2. judgment on the merits
3. final judgment
State Action: Traditional Govt Function
State action occurs when a private person carries activities traditionally performed exclusively by the state
- Running primary elections
- Running “company town”
NOT state action: shopping center
State Action: Significant State Involvement
- Sufficient mutual contacts btw private party + govt –> govt is entwined w/ entity and:
- constitutional standards should apply to private person; or
- mutual benefits results
OR
- state creates private entity by special law for futherance of govt objections & retains permanane control of entity
State Action: Significant State Involvement –Guidelines
mere licensing or regulation of private party –> not state action
state must act affirmatively to facilitate, encourage, or authrotize activity
Procedural Due Process
Cannot deprive “life, liberty, or property” w/o adequate process
Usually, need notice + opp to be heard
Substantive Due Process qG
Guarantees FR to all; no deprivation w/o adequate justification
Procedural DP – protected interests
Liberty – restraint on physical freedom, FR, freedom of choice or action
Property – entitlement by stature, employment K, custom
Procedural DP – Notice & Hearing
amount of process due is determined by 3 factors:
- private interest affected
- risk of erroneous deprivation + value of additional safeguards
- govt interest, including burden/cost of additional process
Procedural DP – Indigent
court fees waived for indigent if they will deny a FR
counsel will be appointed to them
Substantive DP – Standards of Review
Strict Scrutiny – govt action infringes on FR or suspect class
- Narrowly tailored + compelling interest
Rational Basis – any non fund right
- rationally related + legit interest
Compelling Interest
understood to be:
1. necessary
2. crucial
Fundamental Rights
FIRST – VIP
- First Amendment
-
Voting + Ballot Access
- NOTE: SS does not apply to this
- NO FR to hold office - Interstate Travel –-> state to state
-
Privacy
- marriage, contraception, sex, parental rights, family relations - 2A –> right to possess firearms, subject to laws
14A – Equal Protection
Strict Scrutiny – govt action infringes on FR or suspect class
- Narrowly tailored + compelling interest
Intermediate Scrutiny – quasi suspect – gender + legitimacy
- substantial interest + important state interest
Rational Basis – any non fund right
- rationally related + legit interest
Do SDP & EP have same standard?
NO
SDP – SS + RB
EP –SS, IS, RB
How to prove discrimination – EP
To trigger SS or IS –> need to have discriminatory intent by govt
- Discriminatory on its Face – explicitly distinguishes between classes of ppl
- Discriminatory Application –law is neutral on its face, but applied in discriminatory fashion
- Discriminatory Motive –Law is neutral on face + application, BUT results in disparate impact
- NEED proof of discriminatory motive or intent
Suspect Classifciation
- Race, Ethnicity, National Origin
- intentional school segregation –> violation
- Affirmative action –> SS - Citizenship status
Quasi Suspect – Gender
- need discriminatory intent, not just disparate impact, to trigger IS
- Govt must show an “exceedingly persuasive justification” for gender disctinction
NON suspect classes
age
poverty
sexual orientation
Are partisan gerrymandering claims judicable?
NO
Privileges & Immunity – overview
Art 4 – Comity Clause –> applies
14A –> pretty much moot
Comity Clause
P+I of Art 4
- prohibits state discrimination against nonresidents
- prohibits discrimination against OOS re: FR activities (travel, work, access to courts)
EXCEPTION: substantial justification + substantial relationship
NO market participant exception
14 A Privileges + Immunities
Re: national citizenship; moot
**APPLIES ONLY TO TRAVEL
- applies to “citizens”
- protects against infringement by states re national citizenship
rights to interstate travel, vote, enter public lands,
5A Takings Clause – Property Interest
- Property – RP, tangible personal property, intangible property
- Interests – fee simple, easement, leashold, lein, rights of a property owner
5A Takings Clause – Types of Takings
- Seizure of property –was there just compensation?
- Regulatory –generally not a taking, but it can rise to level of taking
- permanent physical occupation
- regulation results in total loss of property’s economic value - Excation of promises from developer as taking
- Damage or destruction of property
- Re-characterization of private property as public
When does a regulatory taking amount to a taking?
Per Se Taking, when:
- permanent physical occupation
- when regulation results in permanent total loss of property’s economic value
When does an Exaction of Promise result in a taking
If there is no:
- no essential nexus btw legit state interest + conditions imposed on property owner; and
- no rough proportionality btw burden imposed on PO + impact of proposed development
What is an Exaction
5A – type of taking
requirement imposed by the govt on a property owner as a condition for granting a permit or land-use approval.
Example of Exaction that amounts to a Taking
Property owner applies for a permit to develop a residential project on their land. Govt requires the POto dedicate a large portion of the property for a public park, even though the proposed development’s impact on the need for a park is minimal.
If the dedication requirement significantly reduces the value or usability of the property and is not reasonably related to the impact of the development –> could be seen as an excessive exaction that amounts to a 5A taking
Example of Exaction that does NOT amount to a 5A Taking
A property owner seeking a permit to build a commercial building. Govt requires the PO to install and maintain traffic lights near the development to address the increased traffic flow.
The requirement is directly related to the development’s impact and is proportionate to the need for traffic management.
As long as the requirement is reasonably connected to the impact and does not excessively burden the property owner, it may be considered a valid exaction that does not amount to a 5A taking
Prohibited Legislation
- Bills of attainder – declares person or group guilty of a crime and punishes them w/o trial
- Ex Post Facto Laws –
- retroactive criminal laws;
- authorizes more severe penalty after crime committed;
- deprives D of defense when act was committed;
- lowers P’s burden - Impairment Contracts – applies only to state legislation that retroactively impair K rights
- does not apply to Ks not entered into yet
Contracts Clause
prohibts states from passing laws that impair “the obligation of Ks”
applies to state legislation only that retroactivly impairs K rights
Does not apply o Ks not entered into yet
Freedom of Religion – c/a
Establishment
Free exercise
Establishment Clause – Religion + Test
Govt program shows preference to (a) one religion over another or (b) religion over non religion –> SS applies
Test: “historical practices + understandings”
Establishment Clause – Financial Aid
Institutions: allowed if aid is secular + used for secular purpose (books, computers, transportation)
Tax Exemptions: valid, if equivalent exemptions to other charitable institutions is not advancing/inhibiting religion
Tax Deductions for religious school: invalid if to reimburse tuition
Tuition vouchers: valid if parents choose where to send kids;
- States CAN DENY funds if kid wants to pursue religious career
Establishment Clause –Public School Facilities
If a public school allows student groups to use its facilities when classes not in session, then allowing religious orgz to do so too –> NO violation
Establishment Clause –Prohibited public school activities
- prayer + bible reading
- period of silence or meditation (lacking secular reason)
- nondemoninational prayer at school events
- posting 10 commandments on public school walls
- prohibiting the teaching of Darwinism
Establishment Clause – Religious Displays
10 Commandments – display on public property not allowed if it has a predominantly religious purpose
Govt Holiday Displays – generally allowed as an acknowledgment, but not an endorsement of religion
– Context is KEY
Free Exercise – Religious Belief
Freedom to act or not act
Religious belief – govt cannot:
- deny benefits or impose burdens based on religious beliefs
- require affirmation of belief
- determine the reasonableness of belief
Free Exercise – Religious Conduct
Freedom to act or not act
Religious Conduct:
- NOT absolutely protected
- State laws that intentionally target religious conduct –> SS
- neutral laws of general applicability that have an impact on religious conduct –> RB
- under RFRA, neutral laws of general applicability + substantial burden –> SS
Freedom of Expression + Association – Types of regulations
- Regulation of Speech
- Regulation of Time, Place, Manner or Expression
- Regulation of Content
- Regulation of Media
- Regulation of Association
Expressive Conduct
Regulation of Speech (Symbolic Speech) –– can be protected; subject to less protection tho
Reg of expressive conduct is upheld when if:
- regulation w/in govt’s power to enact
- furthers an important govt interest
- interest is unrelated to the suppression of ideas
- burden on speech is no greater than necessary
Overbreadth – Regulation of Speech
VOID for Overbreadth – if reg burdens a substantial amount of speech/conduct that is protected by 1A
Overbroad statutes may be challenged as “facially invalid) to prevent a chilling effect on protected speech
Vagueness of Regulation of Speech
VOID for Vagueness if fails to provide a person of ordinary intelligence w/ fair notice of what is prohibited
Grounded in DP notice req
Freedom of Expression – GR
Not absolute
Regulation of content of speech –> constrained
Regulation of time/manner/place –> less restrictions
Prior Restraints –Reg of Speech
Prior Restraint –reg of speech that occurs before its expression
Presumed to be UNCONSTITUTIONAL, except in:
- there is a particular harm to be avoided; and
- certain procedural safeguards are provided to speaker
- standards must b narrowly drawn, reasonable
- censoring body must promptly seek injunction
- finally judicial determination of validity of restraint
Burden on Govt
Can Govt force private entity to allow others to exercise free speech rights?
YES –
- if they are open to the public and
- the message is not attributable to the private entity
Campaign Speech – Reg of Speech
Contributions –laws limiting contributions –> IS
Expenditures –restrictions on individuals –> SS
Overview: Reg of Time, Place, Manner of Expression
Gov’t ability to regulate speech depends on the forum where the speech takes place
Three Categories of Forum
- Traditional Public Forums
- Designated Public Forums
- Nonpublic (limited public) Forms
Traditional Public Forum
Forums that are historically associated with expression
- sidewalks,
- streets
- parks
Designated Public Form
Forums not historically used for speech expression, but ones that Govt has opened for such use
- civic auditoriums
- publically owned theaters
- school classroom (afterhours)
Regulation in Traditional or Designated Public Forum
Govt restrictions in either forum must be:
- content-neutral as to both subject matter + viewpoint
- narrowly tailored to serve significant govt interest; and
- aesthetic preservation + traffic safety–> govt interest - leave alternative channels of communication of the info
Restrictions not content neutral –> SS
Test for Injunctions in Public Forums
The constitutionality Test of injunctions in public forums depends on:
- Content Neutral –whether it burdens no more speech than is necessary to achieve an important govt interest
- Content-Based –> SS (NT + CI)
Non Public Forum
All public property is not a traditional or designated public forum
Govt can regulate speech as long as the regulation is:
1. viewpoint neutral and
2. reasonably related to legit govt interest
Reg of speech on a person’s own property RARELY upheld
Regulation of Content – Speech
Content-based regulation is subject to SS, except for:
FIDO
1. Fighting words
2. Inciting violence
3. Defamation
4. Obscenity
Regulating Obscenity
average person, applying modern community standards, must find material taken as a whole:
- appeals to prurient interest – community standard
- depicts sexual conduct that is offensive
- lacks serious value
Restrictions on Commercial Speech – 4 part test
- commerical speech must concernl lawful activity + be neither false or misleading
- asserted govt interest must be substantial
- asserted regulation must directly advance interest
- reg is NT to serve interest
Regulation of Media
Media has same rights as average person, no greater rights
Gag order – rarely upheld; subject to prior restraint test
Attending trials –attendance can be outweighed if judge finds overriding interest
Illegally obtained info –media CAN publish if:
- TP obtained info
- involves matters of public concern
Regulation of Broadcaters
historically, they have a greater responsibiilty to the public –– can be more closely regulated than print or media
Internet Regulation
any regulation of internet content –> SS
Regulation of Association
GR: protects the right to form/participate in any group/gathering/club –> infringement may be justified by compelling state interest
When will a civil law be deemed an ex post facto law
A civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose
Factors do determine if a retroactive civil law is ex post facto
- Imposes an affirmative disability or restraint (e.g., imprisonment) (not seen here)
- has historically been regarded as punishment (e.g., public shaming)
- promotes the traditional aims of punishment (e.g., retribution)
- is rationally related to its nonpunitive purpose*
*Although no one factor is dispositive, the factor weighed most heavily by courts is whether the law is rationally related to its nonpunitive purpose.
What does it mean that Congress intended to occupy a field -implied preemption
Aka, field preemption –
when Congress intended to completely occupy a particular field by legislating so thoroughly that it left no room for supplementary state regulations
14A Enabling Clause
“congruence and proportionality” between injury & mean adopted
14A §5 – enabling clause–allows Congress to pass legislation to enforce the EP and DP rights of the 14A, but not to expand those rights or create new ones. In enforcing the rights, there must be “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.
Which test under EP applies:
Law is burdening the sales of food trucks due traffic
Rational Basis, bc it is economic in nature
usually will be upheld if there is any plausible justification
Extreme deference to the legislature
Zoning Ordinances of Adult Entertainment Businesses is what?
Content-Neutral –> IS applies
bc they target the secondary effects of the surrounding community
what does “case or controversy” mean
whether there is
standing
ripness
mootness
Re: free exercise, what type of inquiry can the govt look into?
whether the proposed professed religious belief is sincere
Govt cannot inquiry about reasonableness of religious belief
Can the govt inquiry about the reasonableness of religious belief?
what about sincierity?
Reasonableness – no
Sincerity – yes, whether it is sincerely held
Can states prohibit felons from voting
Yes, per 14A Sec 2
Younger Abstention Doctrine
abstention from hearing a case is REQUIRED when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:
- Involves an important state interest; and
- Provides an adequate opp to litigate the fed issues
When must a judge recuse herself?
- Judge has a direct, personal, substantial, pecuniary interest in it; or
- a serious, objective risk of actual bias exists
Failure to do so –> DP violation
What does “adequate” and “independent” mean re: state decision
State court judgment when it is based on:
- Adequate – state grounds that fully resolve the matter
- Independent – do not rely on federal law
