Con Law Flashcards
Con Law Essay Roadmap
I. Can the matter be addressed by this court? (ripeness, mootness, standing)
II. What type of Constitutional issue is presented?
- Scope of Congressional power? (Commerce Power, Power to Tax and Spend)
- State interference with power? (Supremacy Clause, Dormant Commerce Clause, Privilege and Immunities Clause, Contract Clause)
- Individual rights? (state action, procedural due process, substantive due process, equal protection, takings clause, 1st Amendment)
Individual standing
ab
P must prove:
- Injury in fact: An actual or imminent injury
- Causation: The injury is caused by the conduct complained of, and
- Redressability: It is likely that the injury will be redressed by a favorable decision
Third-party standing
P must prove:
- Individual standing, and
- A special relationship between P and the third-party; or
- That it is difficult for the third party to assert his own rights.
Organizational standing
P must prove:
- The members have standing in their own right.
- The interest asserted are related to the organization’s purpose, and
- The case does not require participation of individual members.
Federal taxpayer standing
A federal taxpayer has standing to sue over a federal tax or spending program that violates the Establishment Clause
Timeliness: ripeness and mootness
- Ripeness: a case will not be heard if there is not yet a live controversy or immediate threat of harm (future wrong).
- Mootness: a case will not be heard if a live controversy existed at the time the complaint was filed but has since been eliminated.
- Exception: a) the controversy is capable of repetition, yet evading review (e.g. abortion litigation) or b) voluntary cessation of the activity by D.
State Action Doctrine
For an action to violate the Constitution, there must be government involvement with the challenged action
The action of a private actor can qualify as state action if:
- public function: the private actor performs functions that are traditionally and exclusively public functions; or
- heavy involvement: the state is heavily involved in the activity, such as by commanding, encouraging, or being entangled with the activity.
Congressional Power (the legislative branch)
Congress has limited enumerated powers to:
- Regulate interstate commerce: channels, instrumentalities, persons & things moving, activities with substantial effect.
- Regulate intrastate commerce: if there is a rational basis to believe that the commercial or economic activities has a substantial (cumulative) economic effect on interstate commerce. For noneconomic activities - direct and substantial effect on interstate commerce.
- Tax and spend
- War Powers: declare war
- Naturalization and bankruptcy
- Necessary and Proper Clause: broad authority to enact laws that are necessary and proper to execute any of the enumerated powers. The law need only be rationally related to the enumerated power.
Presidential Power (the executive branch)
- Carry out laws
- Executive order
- Treaties with foreign nations
- Appointments of ambassadors, federal judges, cabinet members, subject to Senate approval.
- Foreign affairs
- Pardon federal offenses
- Veto bills by sending it back to Congress unsigned with a message stating reasons.
- Executive privilege: has a qualified right to refuse to disclose confidential information relating to his performance of his duties.
Supremacy Clause
the Constitution is the supreme law of the land. Any state law that directly conflicts with federal law will be preempted by federal law.
- Conflict preemption: where state law is inconsistent with a valid federal law covering the same subject matter.
- Field preemption: where the federal government intends to occupy the entire field the state cannot regulate the field.
Dormant Commerce Clause
DCC restricts the states from regulating activity that affects interstate commerce if the regulation is 1) discriminatory or 2) unduly burdensome.
- Discriminatory: a regulation that is facially discriminatory against out-of-towners (local interests > nonlocal interest) will be permitted only if it is necessary to achieve an important noneconomic governmental interest such that there are no reasonable alternatives. Facially discriminatory regulations are per se violations of DCC.
- Undue burden: a regulation that unduly burdens interstate commerce will be permitted if it is rationally related to a legitimate government interest, and the burden imposed on interstate commerce must be outweighed by the benefits to the state.
- Exceptions: a) when the state is a market participant, it may favor local interests over nonlocal interests; b) Congress consented.
Privileges and Immunities Clause
A state cannot intentionally discriminate against noncitizens regarding rights fundamental to national unity.
- rights fundamental to national unity focus on commercial activities, such as right to support oneself, right to be employed, engage in business, practice professions, or civil liberties.
- Corporations and aliens are not considered citizens for this rule and not afforded protection.
- Exception: substantially related + no less discriminatory alternative means available.
Contracts Clause
State governments may not pass laws that retroactively and substantially impair existing contracts.
private contract: if a state is substantially impairing private K, the law must be reasonable and appropriate to serve a significant and legitimate public purpose.
public contract: must be necessary to serve an important public purpose
Freedom of Religion
1st Amendment right, applicable tot the states through 14th Amendment. There are two clauses:
- Free Exercise Clause
- Establishment Clause
Free Exercise Clause
Free Exercise Clause bars any law that prohibits or seriously burden the free exercise of religion, unless there is a compelling government interest.
Freedom to believe in a religion is absolutely protected; the government may not deny benefits or impose burdens based on religious belief.
Freedom to act on religious belief is less protected; the government may not intentionally target religious conduct, but a neutral law of general applicability that impacts religious conduct will be upheld if it is rationally related to a legitimate interest.