Con law Flashcards
Constitution protecting against conduct of private parties
The constitution generally protects against wrongful conduct by the government, not private parties. A private person’s conduct must constitute state action in order for these protections to apply.
When is a private person a state actor
A private person’s conduct is state action when a private person carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a “company town”
First amendment applicability to the states
The first amendment is applicable to the states through the fourtheenth amendment and protects the freedom of speech as well as the freedom not to speak
Right not to say the pledge of allegiance
The supreme court has held that a child in a public school has the right not to recite the pledge of allegiance
Kinds of speech protected by 1A
The first amendment protects freedom of speech. Protected speech can include written, oral, and visual communication, as well as activities such as picketing and leafleting.
Ability to regulate speech based on forum
The government’s ability to regulate speech depends on the forum in which the speech takes place
Traditional public forum
A traditional public forum is one that is historically associated with expression, such as sidewalks, streets, and parks.
Regulating speech in a traditionally public forum
In a traditional public form, the government may only regulate speech if the restrictions are (i) content neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest and (iii) leave open ample alternative channels for communications
Absolute prohibitions on a type of expression
Restrictions, such as an absolute prohibition of a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling government interest
Cases and controversies
Art III Sec 2 restricts federal judicial power to cases and controversies
P needs standing
A federal court cannot decide a case unless the plaintiff has standing to bring it
Requirements for standing
To have standing, the plaintiff bears the burden of establishing three elements: injury in fact, the injury was fairly traceable to the challenged action (causation) and the relief request must revent or redress the injury
Injury part of standing
Standing requires a concrete and particularized injury, even in the context of a statutory violation. The injury need not be physical or economic.
Violation of privacy as injury
for standing
An injury such as the invasion of privacy may be a sufficiently concrete injury in itself even when extensive damages cannot be provided
Dormant commerce clause
The DCC is a doctrine that limits the power of states to legislate in ways that impact interstate commerce. If congrses has not enacted legislation in a particular area of interstate commerce, then states are free to regulate, so long as the action does not (i) discriminate against out of state commerce, (ii) unduly burden interstate commerce; or (iii) purposefully regulate extraterritorial (wholly out of state activity)
When does a state/local regulation discriminate against out of state commerce
A state or local regulation discriminates against out of state commerce if it protects local enconomic interests at the expense of out of state competitors. However, the mere fact that the entire burden of a state’s regulation falls on an out of state business is not sufficient to constitute discrimination against interstate commerce
What does DCC protect
The DCC protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations
When may a nondiscriminatory state regulation be shot down
A state regulation that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on interstate commerce. The courts will balance, case by case, the objective and purpose of the state law against the burden on interstate commerce and evaluate whether there are less restrictive alternatives
When may a discriminatory regulation be upheld
DCC
If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local ogvernment can establish that (i) an imporant local interest is being served and (ii) no other nondiscriminatory means are available to achieve that purpose
Market participant exception
A state may behave in a discriminatory fashion and burden commerce if it is acting as a market participant as opposed to a market regulator. If a state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.
Preventing leafletting and 1A
SCOTUS has held that preventing littering is an insufficient governmental interest to justify banning all leafletting.
EPC clause
The equal protection clause of the 14th Amendment provides that “no state shall deny any person within its jurisdiction the equal protection of the laws”
Who does EPC apply to
entities, not people
The equal protection clause applies only to states and localities– not the federal government (note that feds are kind of bound to it through reverse incorporation thru the 5A tho)
Review standard for laws based on age
Laws that make classifications based on age are reviewed under the rational basis standard, a test of minimal scrutiny.
Rational basis review
A law satisfies rational basis review when it is rationally related to a legitimate government interest. The challenger bears the burden of proof for this standard.
Link between means selected by state and legislature obejctive (rational review)
- it is not required that there actually be a link between the means selected by the state and a legitimate state objective
- however, the legislature must reasonably believe that there is a link
presumption of validity under rational basis review
laws are presumed valid under the rational basis standard, and the burden is on the challenger to show that a law does not satisfy this standard.
fed powers being enumerated
The federal government may exercise only those powers specifically enumerated in the constitution
Enabling clause
The 14th amendment Enabling Clause permits congress to pass legislation to enforce the equal protection and due process rights guaranteed by that amendment
Limits of the enabling clause
However, the enabling clause does not grant congress the authority to expand rights or create new ones.
Can congress override a state law that does not vioalte the constitution
Although congress may override state action that infringes upon the 14th Amendment if the congruence and proportionality test is satisfied, its enforcement power would not stretch to prohibit a law that does not violate the constitution.
Congruence and proportionality test
In enforcing 14th amendment rights, there must be a congruence and proportionality between the injury to be prevented and the means adopted to achieve that end.
11th Amendment
The 11A is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court.
Effect of 11A
The 11th Amendment immunizes a state from suit in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state.
Waiving immunity under 11A
One exception to the 11th Amendment is that a state may waive its immunity.
Suing a state official and 11A
When a state official, rather than the state itself, is named as a defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law.
Standard of review for DCC
A state law that discriminates against out of state commerce is subject to strict review and is virtually per se unconstitutional
Nondiscriminatory state laws that impose an incidental burden on interstate commerce
A nondiscriminatory state law that imposes an incidental burden on interstate commerce will nontheless be unconstitutional if the benefits of the state law are grossly outweighed by the burdens on interstate commerce
What does the takings clause provide
The 5th Amendment takings clause, as applied to the states and municipalities through the 14th Amendment due process clause, provides that private property may not be taken for public use without just compensation.
regulations that don’t affect a property interest
Generally, a governmental regulation that adversely affects a person’s property interest is not a taking
When can a regulation rise to the level of being a taking
It is posisble for a regulation to rise to the level of a taking, such as when a regulation results in a permanent physical occupation of the property by the government or a third party, or when a regulation results in a permanent total loss of economic value
3 factor test to determine whether an ordinance is a regulatory taking
The following factors are considered in determining whether a regulation is a taking
1. the economic impact of the regulation on the property owner
2. the extent to which the regulation interferes with the owner’s reasonable, investment backed expectations regarding use of the property; and
3. the character of the regulation, including the degree to which it benefits society, how burdens/benefits are distributed, and whether it vioaltes any of the owner’s essential attributes of property ownership
Exactions
A local government may exact promises from a developer in exchange for necessary construction permits
When do exactions not violate the takings clause
Exactions do not violate the takings clause when
1. there is a substantial nexus between a legitimate government interest and the conditions imposed on the property owner (i.e., the conditions substantially advance a legitimate government purpose); and
2. there is a rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development
how to tell whether there is rough proportionality between burden and impact for an exaction
In determining whether there is a rought proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact
When is a law content based
A law is content-based if it applies to certain speech because of the subject discussed or the idea expressed
When is a law content neutral
A law is content-neutral when it is not necessary to hear/read the language in order to apply the regulation.
Validity of content based regulations
Any governmental regulation of speech that is content based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., subject to strict scrutiny test)
Identification of problems to be solved with content based regulations
The government must identify an actual problem, and the regulation of speech must be necessary to solve that problem. This standard is incredibly stringent and not often met.
Strict scrutiny and 1A
The test for strict scrutiny means that the law must be the least restrictive means to achieve a compelling governmental interest. Under strict scrutiny, the law should be neither over-inclusive (reaching more people or conduct than is necessary) nor under-inclusive (not reaching all of the people or conduct intended).
What is a “compelling” gov interest
There is no precise definition of what is “compelling,” but it is generally understood to be something that is necessary or crucial, such as national security or preserving public health or safety.
Requirements for content neutral regulations
The government may impose restrictions on time place and manner so long as they are
1. content neutral as to subject matter and viewpoint
2. are narrowly tailored to serve a significant government interst; and
3. leave open ample alterantive channels of communication
narrow tailoring in context of time place manner restrictions
When dealing with time, place, or manner regulations, the requirement that the regulation be “narrowly tailored” does not mean that the regulation must employ the least restrictive means, it need only promote a substantial government interest that would be achieved less effectively absent the regulation.
What is a “substantial” gov interest with regard to 1A
The Supreme Court has held that aesthetic preservation and traffic safety are substantial government interests.
When is a time place manner restriction narrowly tailored
To determine if the ordinance is narrowly tailored, it has to be determined that the ordinance promotes a substantial government interest that would be achieved less effectively without the ordinance.
