Con Law Flashcards
What is Con Law?
It is the study if the history of how the Supreme Court has interpreted the Constitution.
Neccesary and Proper clause
Congress has the power to make laws necessary and proper for executing any power granted to any branch of the federal government
Spending Power
Congress may regulate4 beyond the enumerated powers by attaching strings to a grant as long as the strings are
1. Clearly stated
2. Related to the purpose of the grant
3. not unduly coercive.
What is required for standing in a federal court?
A concrete stake in the outcome is required for standing in federal court. A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact-caused by the government-that can be remedied by a ruling in the plaintiff’s favor (i.e., causation and redressability).
What is Redressability?
A decision in the plaintiff’s favor must be able to remedy the harm. through monetary damages or an injunction
Justiciability refers to the concept that a case may be tried in court. In federal courts, it is a broad term that encompasses a number of more specific topics, such as ripeness, mootness, and standing.
Equal Protection
14th Amend Equal Protection clause and the 5th Amend due process clause
Strict Scrutiny
The discriminatory effect
The discriminatory effect of governmental action is not enough, standing alone, to trigger strict or intermediate scrutiny.
Only intentional discrimination violates the Equal Protection Clause, and the mere fact that government action appears to have a discriminatory effect does not show a discriminatory intent.
Federal Judicial power extends to cases involving?
Interpretation of the constitution, federal laws, treaties, and admiralty and maritime laws.
Disputes between states, states foreign citizens, and citizens of diverse citizenship. m
What is justiciability
Federal courts can hear a matter only if there is a case or controversy.
Whether there is a controversy depends on:
What the case is requesting (Is it an advisory opinion)
When the case is brought (Is it ripe or mooy?)
Who is bringing the case, (Does the P have standing?)
NB.
Federal courts cannot issue advisory opinions
Case Ripeness
Courts wait until laws and policies have been formalized and can be felt in concrete ways. This means that pre-enforcement reviews of laws or policies are generally not ripe.
Also, a P can establish ripeness before a law or policy is enforced by showing two things
The issues are fit for a judicial decision AND
The plaintiff would suffer substantial hardship in the absence of review.
Rational Basis
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws such as age, disability and poverty) are reviewed under the rational basis standard.
The law is upheld if it is rationally related to a legitimate government purpose, the law is usually valid unless it is arbitrary or irrational.
The person challenging the law has the burden of proof
Intermediate Scrutiny
Regulations involving quasi-suspect classifications (that is, gender and legitimacy are reviewed under the intermediate scrutiny standard.
The law is upheld if is substantially related to an important government purpose.
The burden of proof is usually placed on the government because it is unclear who has burden of proof under intermediate scrutiny,
Strict Scrutiny
Regulations affecting fundamental rights e.g. interstate travel, voting, and First Amendment rights, or involving suspect classification (Race, national origin, and alienage) are reviewed under strict scrutiny standards.
The law is upheld if that must be, the least restrictive means to achieve a compelling government purpose.
Laws examined under strict scrutiny will always be invalidated especially if there is a less burdensome alternative to achieve the government’s goal.
The government has the burden of proof
What is a public forum?
A public forum is public property that historically has been open to speech-related activity. Examples include sidewalks and public parks.
What is Viewpoint Neutral?
Speech in a nonpublic forum or limited public forum may be reasonably regulated but the regulation must be viewpoint neutral-it cannot permit presentation of one side of an argument and exclude the other.
Under current Supreme Court precedent, the First Amendment Free Exercise Clause
prohibits the government from punishing conduct just because it is religious.
A law or government program that contains a preference for one or some religious groups over others will be invalid unless
it is necessary to serve a compelling government interest
Which of the following is not a factor in the test for the validity of government action under the Establishment Clause when no sect preference is involved?
The government action is narrowly tailored to promote a compelling interest
What is content based regulations?
The are subject to strict scrutiny, and they are presumptively unconstitutional (Unless they fall within one of the categories of unprotected speech, like obscenity.)
A regulation is content based if it restricts speech based on the subject matter or viewpoint of the speech
Content Neutral
The judicial power
The judicial power extends to cases involving
1. Interpretation of the constitution, fed laws, treaties, and admiralty.
2. Disputes between states, citizens of different states and states, and foreign citizens.
What are advisory opinions?
Federal courts cannot issue advisory opinions which are decisions that lack,
- An actual dispute between diverse parties or
- Any legally binding effect on the parties
