Con Law Flashcards
1
Q
Requirements for Judicial Review
A
- case or controversy
- subject-matter jurisdiction
2
Q
Case or Controversy
A
- plaintiff has standing
- claim is ripe when the lawsuit is filed
- claim is not mooted
- lawsuit does not seek an advisory opinion
3
Q
Standing
A
- injury in fact (concrete and not hypothetical)
- causation (fairly traceable to conduct of defendant)
- redressability (injury likely to be rectified by a favorable court decision)
4
Q
Citizenship Standing
A
cannot challenge conduct just because citizen
5
Q
Taxpayer Standing
A
no standing to challenge how tax contributions used.
exceptions:
- challenging collection of specific tax assessment
- challenging congressional standing on grounds that it violates First Amendment’s prohibition on establishment of religion
6
Q
Third-Party Standing
A
3P cannot bring action on behalf of another unless there is:
- hindrance to injured party bringing the action herself and
- close relationship between parties such that 3P will adequately advocate inured party
7
Q
Organizational Standing
A
may bring federal cause of action on behalf of members if it can show:
- one or more of its members would have standing to bring the case
- claims are related to organization’s purpose
- litigation of the case will not involve participation of those members who have been injured
8
Q
Class-Action Standing
A
class representative must have standing to bring case as an initial matter. But if class member’s injury is redressed during pendency of case, that will not destroy standing for remaining class members
9
Q
Ripeness
A
not ripe when harm has not yet occurred and is not imminent. Factors:
- fitness of issues for current adjudication
- hardship to the parties if the claim is not heard
10
Q
Mootness
A
moot if a court ruling would no longer remedy the problem or make the plaintiff whole.
Exceptions:
- defendant voluntarily ceases the challenged event/action and it is likely to recur
- action is (a) so short in duration that it will be moot before resolution of case and (b) there is a reasonable probability the same plaintiff will suffer the same injury in the future
11
Q
Advisory Opinions
A
do not adjudicate legal dispute but merely give advice to another branch of gov’t on constitutionality of law or action.
federal courts do not give advisory opinions. some state courts are authorized to do so.
12
Q
Political Questions
A
- textual, constitutional commitment of the issue to another branch of gov’t
- lack of judicially discoverable and manageable standards for resolving question
- matter requires making a policy determination
- impossible to decide matter without disrespecting coordinate political department
- unusual need for unquestioning adherence to previously decided political issue
- potential embarrassment from inconsistent decisions
13
Q
Abstention
A
federal court may decline to hear a case over which it has jurisdiction when there is a potential for conflict with state courts over interpretations of state law and policy
- unsettled issues of state law
- ongoing state criminal prosecutions
- state court civil enforcement proceedings
14
Q
Relationship Between Federal and State Courts
A
state court decisions final on matters of state law.
Supreme Court can review state court decisions on federal law to ensure:
- uniform application of federal constitutional law throughout country and
- finality of litigated federal law issues
15
Q
Limits on U.S. Supreme Court Jurisdiction
A
- appeal must be from final judgment by highest state court. Decision of intermediate state court reviewable if either no right of appeal to state’s highest court or state’s highest court declined to exercise power to review.
- decision cannot rest on adequate and independent state law ground.
16
Q
Congressional Power to Define and Limit Federal Courts
A
Constitution vests in Congress the powers to create inferior courts and to make exceptions to appellate jurisdiction of federal courts.
this congressional power is plenary (no internal limits) but cannot violate another part of the Constitution.
17
Q
Congressional Powers
A
- necessary and proper clause
- taxing power
- spending power
- commerce clause
- war and foreign powers
- nondelegation doctrine
- power to enforce amendments
18
Q
Necessary and Proper Clause
A
Congress has power to make laws that are:
- necessary (convenient or useful) and
- proper to executing its other powers (legitimately related to another existing power)
19
Q
Taxing Power
A
congress can enact taxing measures that
- raise revenue for the general welfare and
- are not a penalty (unduly coercive or enacted to discourage certain private behavior)
20
Q
Spending Power
A
Congress can spend federal money for general welfare but can only impose conditions on federal grants to states if the condition is:
- clear and unambiguous (states understand consequences of accepting)
- related to a legitimate federal interest
- not unduly coercive
- constitutional
21
Q
Commerce Clause
A
Congress can regulate commerce with foreign nations, among several states, and with the Indian tribes. Cannot use this to compel participation in commercial activity. Can regulate:
- channels (areas in which interstate commerce moves)
- instrumentalities and persons/things (items and ways in which items are carried across state lines)
- activities having a substantial effect on interstate commerce (private activities can be regulated if cumulative impact of individuals and entities engaging in activities has substantial effect on interstate commerce)
22
Q
Dormant Commerce Clause
A
states cannot:
- discriminate against interstate commerce unless state has a compelling interest for enacting law and no less restrictive way of achieving that interest (STRICT SCRUTINY) or
- places undue burden on interstate commerce (weighs burdens of a state law against local benefits).
23
Q
Dormant Commerce Clause: Discriminatory v. Neutral
A
Discriminatory on its face if it:
- treats out-of-staters different from in-staters or
- clearly gives economic protection to in-state residents
Neutral: if a law is neutral, use undue burden
24
Q
Dormant Commerce Clause: Exceptions
A
- can discriminate against out-of-state interests if market participant (buyer or seller) rather than regulator
- even where regulator, can discriminate against out-of-state interests in favor of publicly owned enterprise if regulation is an exercise of traditional gov’t function
- Congress may enact statute that expressly authorizes states to discriminate against nonresidents regarding interstate commerce
25
Dormant Commerce Clause: State Taxation
state tax on business will generally be upheld if:
- activity being taxed has a substantial nexus with taxing state
- the tax is fairly apportioned so that is applies only to the in-state business activity
- the tax does not discriminate against interstate commerce
- the tax is fairly related to the services the state provides
26
War and Foreign Powers
Congress can:
- declare war
- fund and maintain the armed forces
- confirm high-ranking executive branch officials by majority votes
- ratify treaties by a vote of at least two-thirds of its members
- address post-war problems
27
Nondelegation Doctrine
Congress cannot abdicate or transfer its essential legislative functions, but it can make delegations to agencies if there is an intelligible principle on which to base the regulations
28
Power to Enforce Amendments
13th, 14th, and 15th Amendment empowers Congress to enforce their respective guarantees through appropriate legislation
29
Executive Powers
- Article II powers
- treaty and foreign affairs powers
30
Article II Powers
- sign or veto legislative bills (presentment)
- enforce laws
- appoint and remove officers of the U.S.
- grant reprieves and pardons for offenses against the U.S., except in cases of impeachment
- command the U.S. armed forces
31
Treaty and Foreign Affairs Powers
president has power to:
- recognize / not recognize foreign nations
- meet with foreign leaders
- withdraw from treaties without the advice or consent of Congress
- make international agreements in areas such as trade or troop deployment
32
Categories of Presidential Powers and Relationship to Congressional Powers
- express / implied: presidential authority is at its maximum if president acts with express or implied congressional authorization
- zone of twilight: presidential authority is less certain in the face of congressional inaction
- no authorization: presidential authority is at its minimum if the president acts contrary to congressional authorization and only under president's own constitutional powers
33
Congressional Limits on Executive
- creation and funding
- lawmaking
- impeachment
- restrictions on removal
34
Congressional Limits on Executive: Creation and Funding
Congress establishes cabinet and other offices in executive branch that president may fill, and it may establish those offices as well.
Congress funds offices through appropriations powers, but it may also defund them or limit expenditures.
35
Congressional Limits on Executive: Lawmaking
once a law is made, the president and the executive branch must enforce it. The president also must spend the funds Congress allocates for a particular purpose or program
36
Congressional Limits on Executive: Impeachment
House can impeach official if a majority of those present vote in favor of it. Senate then holds trial. Conviction requires two-thirds of senators who are present.
37
Treason
treason = levying war against US, adhering to their enemies, or giving them aid and comfort.
can only be convicted upon testimony of two witnesses to the same overt act or upon the accused's confession in open court.
when a person charged with treason is a high-ranking federal official, can be impeached, tried separately in court, or both.
38
Congressional Limits on Executive: Restrictions on Removal
congress can restrict president's power to remove quasi-legislative and quasi-judicial officials. BUT cannot restrict president's removal of purely executive officers.
But Congress created civil service and enacted restrictions on how civil servants may be discharged. Congress has also created positions and limited their removal.
39
Legislative Veto
provision in federal statute that gives Congress authority to nullify administrative action.
S.C. has found these are invalid because can violate bicameral representation or the presentment clause.
40
Federal Immunity: Taxation
states cannot regulate or tax the federal gov't or its instrumentalities
41
State Immunity and the 10th Amendment
states have no immunity from federal regulation, but the 10th amendment grants state local police power and state autonomy from federal overreaching.
42
Commandeering
federal gov't cannot require states to enact any particular legislation but it can make condition appropriations
federal gov't cannot require states to perform executive functions but no commandeering when law regulates state gov'ts in a manner similar to private entities who perform same types of functions
43
11th Amendment Immunity
bars states from being sued for damages in federal court unless:
- state consents to being sued
- congress has passed a law that clearly and unambiguously abrogates states' sovereign immunity
- lawsuit is against a state official to enjoin the official from committing a violation of federal law or suing the official for money damages
44
Judicial Immunity
judges absolutely immune from civil suits for damages when they are performing their official judicial duties but only have qualified immunity for other administrative functions (like disciplining employee)
45
Legislator Immunity
congressional members performing their official duties are absolutely protected from punitive or judicial sanctions (speech or debate clause)
46
Executive Immunity
presidents immune from civil lawsuits based on official conduct but not immune from civil lawsuits for pre-presidential conduct. presidents can be prosecuted after being removed from or leaving office for official or unofficial actions taken during presidency but unclear whether can be criminally prosecuted while in office
federal prosecutors have absolute immunity from criminal prosecution based on official prosecutorial conduct or actions within prosecutorial duties. have qualified immunity for investigatory functions.
47
Full Faith and Credit Clause
requires state to respect the laws, public records, and judicial judgments of every other state
48
Supremacy Clause
requires states to recognize the Constitution and federal laws as supreme law of land and mandates federal gov't will prevail if conflict between valid federal law or action and state law or action
49
Types of Preemption
- express preemption
- implied preemption
50
Express Preemption
federal law explicitly declares it is preempting contrary or conflicting state laws
51
Implied Preemption
- impossible to comply with both laws at the same time
- state law interferes with or is an obstacle to the purposes of the federal law
- state law seeks to regulate a field that is already fully regulated by the federal gov't
Federal law protections provide floor. States can go above that without creating preemption
52
State Action: Incorporation Doctrine
nearly all the rights in the Bill of Rights are applicable to the states because they have been incorporated by the 14th Amendment's Due Process clause
53
State Action: Reverse Incorporation
14th Amendment due process and equal protection apply to federal gov't through due process clause of 5th Amendment
54
State Action
can only bring claims under 5th or 14th amendment against gov't actor.
Private entity is state actor when:
- private entity performed a public function performed by and exclusively reserved by the state
- private entity acted with significant state involvement or entwinement (promote or endorse activity or symbiotic relationship)
- private action was judicially enforced
55
14th Amendment: General Due Process
Vagueness: law is void if
- does not give an average person fair notice of the conduct proscribed or
- so lacking in standards that it is ripe for discriminatory enforcement
Legal proceedings must be available, fair, unbiased, and impartial (e.g., there must be a mechanism by which an indigent person can have fees waived)
56
14th Amendment: Substantive Due Process Standards
if a law or gov't action impinges a fundamental right, it must pass strict scrutiny. If no fundamental right, level of scrutiny is rational basis
57
14th Amendment: Substantive Due Process Fundamental Rights
includes rights that are (1) implicit in scheme of ordered liberty and (2) deeply rooted in this nation's history and tradition.
Includes:
- parental rights to care, custody, and control of children
- right to family life and household cohabitation
- right to contraception
- right to marry
- right to procreate
- right to consensual, adult sexual intimacy
- right to vote
- right to interstate travel
- right to access the courts
58
14th Amendment: Substantive Due Process Strict Scrutiny
government's interest must be compelling and the means chosen must be narrowly tailored (necessary and least restrictive)
59
14th Amendment: Substantive Due Process Rational Basis
gov't interest must be legitimate and the means chosen must be reasonably related. Applies to economic, social, and educational interests.
60
14th Amendment: Substantive Due Process - Medical Interests
No fundamental right to die with dignity or die by assisted suicide (so rational basis review). BUT constitutionally protected interest to refuse medical treatment. State can require clear and convincing evidence that individual wished to have lifesaving medical treatment withdrawn before allowing it to be done.
61
14th Amendment: Procedural Due Process Factors
if gov't deprives someone of protected life, liberty, or property interest, courts consider:
- individual's interests in retaining his property or liberty and the injury threatened by the official action
- the risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards
- gov't's interest in efficient adjudication and the administrative burden and cost of additional process
62
14th Amendment: Procedural Due Process - Liberty Interests
include termination of parental rights, proof of paternity, and freedom from confinement
63
14th Amendment: Procedural Due Process - Property Interests
include entitlement to public benefits, public employees with a reasonable expectation in continuing employment, public education, property that is subject to forfeiture, wages that are subject to garnishment, licenses, and fines or fees to the gov't that are due to be refunded
64
14th Amendment: Procedural Due Process - Process Required
minimum process due is notice and opportunity to be heard and maximum process is full trial with avenue for appeal
65
14th Amendment: Equal Protection Clause
applies when gov't actor treats one person or group differently from another person or group based on classification.
level of scrutiny depends on classification.
To find a suspect or quasi-suspect classification, there must be a disparate impact and gov't intent
66
14th Amendment: Equal Protection Clause - Levels of Scrutiny
- strict scrutiny (suspect class - race, ethnicity, national origin; classifications involving fundamental right; state discrimination based on citizenship status that is not related to political function)
- intermediate scrutiny (quasi-suspect class - sex, gender, illegitimacy, access to education for undocumented children)
- rational basis (everything else - age, wealth, disability status, federal discrimination based on citizenship status, sexual orientation, right to international travel, candidacy for public office, speaking a different language)
67
14th Amendment: Equal Protection Clause - Strict Scrutiny
government interest must be compelling and the means chosen must be narrowly tailored (necessary, neither overinclusive nor underinclusive)
68
14th Amendment: Equal Protection Clause - Intermediate Scrutiny
gov't interest must be important and the means chosen must be substantially related (gov't's justification must be exceedingly persuasive, genuine, and not hypothesized or invented post-hoc and not rely on over broad generalization)
Examples of important interests: remedying past discrimination; laws and actions based on physical differences and legal status differences
69
14th Amendment: Equal Protection Clause - Rational Basis
gov't interest must be legitimate and the means chosen must be reasonably related
70
14th Amendment: Equal Protection Clause - Burden of Proof
burden is on gov't when strict or intermediate scrutiny applies. If rational basis applies, burden is on the challenger
71
14th Amendment: Equal Protection Clause - Gov't Animus
if the gov't interest is based on animus (i.e., ill will based on prejudice or spite), then the action is unconstitutional, no matter what the level of scrutiny
72
Privileges and Immunities
Article IV protects rights of state citizenship (e.g., right to travel between states) and is limited to fundamental rights and important economic activities (e.g., right to earn a living)
Substantial Justification Standard: states can enact laws that discriminate against citizens of another state if:
- nonresidents are the peculiar source of evil to be remedied and
- there are no less restrictive means to solve the problem
[14th Amendment protects rights of national citizenship]
73
First Amendment: Freedom of Religion - Establishment Clause
prohibits gov't from establishing a religion.
must be interpreted in accord with history and must faithfully reflect understanding of Founding Fathers.
Gov't coercion is a violation of the establishment clause. Gov't cannot coerce to attend church or force citizens to engage in formal religious exercises.
Mere offense is not coercion
74
First Amendment: Freedom Religion - Free Exercise Clause
Protects religious beliefs and practices. If targets religion or is hostile to it, strict scrutiny. If neutral but has effect on religion, rational basis.
strict scrutiny: gov't interest must be compelling and means chosen must be narrowly tailored
rational basis: gov't interest must be legitimate and means chosen must be reasonably / rationally related
75
First Amendment: Freedom of Speech - Content-Based Regulations
when regulate expression based on content, strict scrutiny (further compelling interest and the means must be narrowly tailored to achieve that interest)
Includes subject-matter regulations that restrict speech related to particular topics and viewpoint regulations that restrict speech on a particular perspective on a topic [signage, hate speech that is not fighting words or a true threat, disparagement speech]
76
First Amendment: Freedom of Speech - Content-Neutral Regulations
aimed at time, place, or manner of expression.
If in traditional public forum / functional equivalent, constitutional if satisfy intermediate scrutiny:
- gov't has significant/substantial interest unrelated to suppression of speech
- means chosen are narrowly tailored (but not necessarily the least restrictive means), and
- ample alternative channels of communication
77
First Amendment: Freedom of Speech - Forum Doctrine (Types of Forums)
- Traditional public forum: places that have been traditionally held for public use
- Limited/designated public forum: places that the gov't can choose to open to speech
-nonpublic/closed public forum: gov't-owned property that is not open for speech
-non-forums: private property and other gov't-owned property that is not a public forum
78
First Amendment: Freedom of Speech - Forum Doctrine (Traditional Public Forums)
content restrictions = strict scrutiny
time, place, and manner restrictions = intermediate scrutiny
79
First Amendment: Freedom of Speech - Forum Doctrine (Limited/Designated Public Forum)
intermediate scrutiny but gov't can close a designated public forum, and its restrictions are evaluated in light of the gov't purpose in designating the forum
80
First Amendment: Freedom of Speech - Forum Doctrine (Nonpublic/Closed Public Forums)
if not viewpoint neutral, strict scrutiny
if viewpoint neutral, regulation valid if regulation of speech is reasonable in light of the purpose served by forum
81
First Amendment: Freedom of Speech - Forum Doctrine (Non-forums)
forum analysis will not apply and First Amendment claims will fail
82
First Amendment: Freedom of Speech - Unprotected Speech
no first amendment protection for:
- gov't speech
- obscenity
- child pornography
- true threats
- incitement to illegal activity
- fighting words
83
Obscenity
- appeals to prurient interest
- patently offensive
- lacks any serious literary, artistic, political, or scientific value as judged by a national standard
84
True Threats
- directed at a person or group of persons
- not satire, purely hypothetical, or political hyperbole
- involve imminence
- uttered by speaker in conscious disregard of a substantial risk that the statement would be viewed as threatening in nature
85
Incitement to Illegal Activity
(1) the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action
86
Fighting Words
includes words that by their very utterance inflict injury or tend to incite an immediate breach of the peace
87
Commercial Speech
if not false or misleading and does not pertain to unlawful activity, regulations subject to intermediate scrutiny:
- gov't interest must be substantial
- restriction must directly advance the state interest
- if the state interest could be served by a more limited restriction, then excess restrictions cannot survive
88
First Amendment: Freedom of Speech - Public Schools
can infringe on expression of students if expression would materially and substantially interfere with appropriate discipline in the operation of the school
more authority to regulate content that is sexually oriented, related to drugs, or curricular speech - reasonably related to legitimate pedagogical objectives
89
First Amendment: Freedom of Speech - Public Employees
if expressing themselves as citizens on a matter of public concern, receive 1A protection.
courts balance employee's interest against the gov't's
90
First Amendment: Freedom of Speech - Political Expressions
gov't employees do not have a 1A right to actively campaign for political candidates
91
First Amendment: Freedom of Speech - Public-Employee Unions
public-employee union's compelled subsidy is subject to exacting scrutiny (compelling gov't interest that cannot be achieved through means significantly less restrictive of associational freedoms)
92
First Amendment: Freedom of Speech - Bar Associations
gov't attorneys can be compelled to pay dues to a required bar association but those dues can be used only to support regulation of the legal profession.
fees cannot be used to support activities that are political or ideological in nature
93
First Amendment: Freedom of Speech - Campaign Finance
regulations are valid if there is a sufficiently important interest and the regulations are closely drawn
94
First Amendment: Freedom of Speech - Corporate Expenditures
limitation on independent corporate and organization expenditures, including speech expressly advocating for a particular candidate or issue, is political speech that cannot be curtailed without a compelling interest and narrowly tailored means to achieve that interest (strict scrutiny)
95
First Amendment: Freedom of Speech - Judicial Elections
gov't may restrict a judicial candidate's speech only if restriction is narrowly tailored to serve a compelling interest
96
First Amendment: Freedom of Speech - Expressive Conduct
regulations on expressive conduct that have incidental burden on speech are analyzed under intermediate scrutiny:
- gov't action must further an important/substantial gov't interest that is unrelated to suppression of speech and
- regulation must prohibit no more speech than is necessary to further that interest
97
First Amendment: Freedom of Speech - Prior Restraints
includes the prohibition on speech before it has occurred.
strict scrutiny - serve a compelling gov't interest that is achieved by narrowly tailored means
98
First Amendment: Freedom of Speech - Vagueness
void for vagueness if:
- does not give an average person fair notice of what conduct is being proscribed OR
- it is so lacking in standards that it is ripe for discriminatory enforcement
99
First Amendment: Freedom of Speech - Overbreadth
facially invalid as overbroad if it prohibits a substantial amount of protected speech in comparison with unprotected speech
100
First Amendment: Freedom of the Press
press ad public are on the same 1A footing. 1A protections are the same.
Several torts are subject to same 1A constraints regardless of whether press involved.
101
First Amendment: Freedom of Association
infringements on the right to associate are subject to strict scrutiny (serve compelling state interests, unrelated to suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedom)
102
5th Amendment Takings
- private property cannot be taken
- by the gov't
- for public use (reasonably related to public or community purpose)
- without just compensation (fair market value at the time of the taking, which means highest amount the owner would receive in a voluntary exchange)
includes rights in real and personal property, including intangibles and economic use
103
5th Amendment Takings: Gov't Taking
physical taking: permanent physical occupation or damage of property, even a small portion of it
regulatory taking: gov't destroys someone's property rights or denies economically beneficial or productive use of property through regulation
- total: completely eliminates economic use unless landowner's expectation of use is unreasonable
- partial: consider factors - economic impact of regulation on property owner, extent the regulation interferes with distinct investment-backed expectations, and character of gov't action
- land use exaction: conditions placed on building is taking if no essential nexus between the condition and a legitimate state interest
104
Second Amendment
guarantees right to keep an ordinary firearm at home for self-defense
105
13th Amendment
prohibits slavery.
Congress can enforce amendment through appropriate legislation - enables it to enact legislation redressing vestiges of slavery
106
Contracts Clause
violated if:
- preexisting contract
- state gov't enacted the challenged law/regulation
- law/regulation substantially impairs the contractual relationship
- regulation does not serve a significant and legitimate public purpose or if it serves such a purpose, the means chosen are not reasonable
107
Ex Post Facto Laws
unconstitutional if:
- gov't action is legislative or regulatory
- law/regulation is criminal in nature
- law/regulation retroactively imposes punishment
108
Bill of Attainder
gov't action unconstitutional if:
- gov't action is legislative or regulatory
- law/regulation singles out specific individuals for punishment, and
- law/regulation inflicts punishment without a trial
109
Unconstitutional Conditions
vindicates constitutional rights by preventing the gov't from conditioning receipt of a benefit on abandonment of a constitutional right.
To prevail on a claim, an individual must show that the gov't could not have mandated the individual to do what it tried to pressure the individual to do through imposing the condition
