Con Law Flashcards
Federal courts are empowered to decide
cases and controversies (Federal Question & Diversity Jx)
Note: Cannot decide any legal questions (e.g. proposed legislation, Ct. CANNOT opine on constitutionality until passed)
Under the 11th amendment, State’s may not be sued for monetary damages or injunctive relief for violating state law in federal court unless
(1) the State consents to the suit, OR
(2) Congress chose to abrogate (repeal) that sovereign immunity through an enumerated power
Limitations of the 11th amendment for monetary suits against States protects only
States themselves and state agencies, but NOT:
(1) local governments
(2) Individual state officers
(3) Suits for injunctive relief
Exceptions to the 11th amendment and state sovereign immunity are
(1) Congress abrogate state sovereign immunity to enforce certain individual rights (intent to abrogate must be clear and be related to federal power under the Civil War amendments - 13, 14, 15)
(2) State consents to the suit (either express or implied through ratification of the Constitution)
The Supreme Court’s docket is
Discretionary (4 justices must agree to grant cert)
The Supreme Court cannot hear a case from a state court when
there are adequate and independent state grounds for deciding the case
Adequate and Independent State Grounds (AISG) is relevant only if the case
(1) Is in the US Supreme court
(2) Arises through a writ of certiorari, and
(3) Has already been decided by a state court
In reference to AISG, Adequate means
State law controls decision, regardless of how federal issue would be decided
In reference to AISG, independent means
State court’s ruling does not depend on an interpretation of federal law
US constitution sets a floor, not a ceiling for individual rights. States can always create additional rights
Standing are limitations on
WHO can bring a suit (not the substance of the suit itself)
Constitutional Elements of Standing
(1) Injury in fact (concrete - actual or imminent and particularized (not abstract)
(2) Causation
(3) Redressability (relief requested from court must be able to prevent or remedy injury)
Common Standing Doctrines
(1) Taxpayer Standing
(2) Organizational Standing
(3) Legislative Standing
(4) Third party standing
Taxpayer standing is
taxpayers have standing to challenge their own tax assessment / liability but cannot challenge government expenditures
Exception: Can challenge if they violate the Establishment Clause (religion)
Organizational standing is
standing of an organization to sue if
(1) Members would have standing to sue in their own right, and
(2) Interests at stake are germane to the organization’s purpose
Legislative Standing
Legislators LACK standing to challenge laws they voted against but the legislature may have institutional standing if the claim has something to do with institutional functions
Third Party Standing
Generally not permitted except for:
(1) Doctors on behalf of patients
(2) School on behalf of students
(3) Bar render on behalf of customers
(4) Parent on behalf of child (but may be limited to custodial parent)
A federal court will not consider a claim if it is
unripe (brought too soon) or Moot (no real case or controversy)
A claim will not be dismissed as moot if
“capable of repetition yet evading review”
a person will be subject to same action over and over again and action will not last long enough to work its way through judicial system (think gestational period and abortion)
The political question doctrine prevents courts from hearing issues when
(1) The constitution assigns decision making authority on this subject to a different branch of government, or
(2) The matter depends on that person’s discretion such that there is no law for the judge to apply
Political questions = non-justiciable
-Note: validity of a federal statute is NOT precluded by political question doctrine
4 Abstention Doctrines
(1) Pullman: Unsettled state law
(2) Younger: Pending state criminal case
(3) Burford: Parties seeking injunctive relief that would interfere with complex state regulatory scheme
(4) Colorado River: Case is substantially similar to another case being heard in state court
Common wrong answers for source of Congressional power
(1) General Welfare Clause (there is no general power to legislate for general welfare)
(2) Police Power (only states have this power, Federal government cannot “commandeer”)
(3) Necessary and Proper Clause (no power on its own, must be used in addition to another legislative power)
Forms of Activities under the Commerce Clause
(1) Channels of interstate commerce
(2) Instrumentalities of interstate commerce
(3) Any behavior that has a substantial effect on interstate commerce (may be judged in the aggregate)
The test for assessing whether an activity in the aggregate effects interstate commerce is
rational basis (very deferential)
Note: limitations to commerce clause regard noneconomic intrastate activity
The Taxing Clause allows the federal government to
(1) Impose a tax even if doing so is done to regulate behavior (e.g. smoking tax)
Taxation need only be rationally related to raising money and can be imposed for any purpose
The Spending Clause allows the government to spend for
the general welfare (any public purpose)
Under the Spending Clause, Congress cannot
(1) Impose unconstitutional conditions
(2) Enforce conditions that are ambiguous or not related to the program
(3) Coerce state behavior with its spending conditions
The 13th Amendment gives congress broad powers to legislate against public and private
racial discrimination (badges or incidents of slavery)
Section 5 of the 14th Amendment (the “Enabling Clause”) gives Congress the power to
enforce the provisions (EPC and DPC) by appropriate legislation
To determine whether enforcement is “appropriate” and only protects individual rights and does not expand them, the test used is the
Congruence and Proportionality Test which requires a reasonable fit between the constitutional right defined by the courts and the means of enforcement
Note: If enforcement is so broad it effectively expands the right, the enforcement is unconstitutional under Section 5
15th Amendment prohibits
State and Local governments from denying any citizen the right to vote based on race
Note: Interpreted to mean the vote is “meaningfully counted”
Other Powers of Congress include
Power to declare war, raise army / navy, establish a post office, plenary power over non-citizens, exclusive power over the naturalization process, power over national election, and anything “necessary and proper” (if coupled with separate enumerated power)
Presidential pardon power is available for
federal offenses (not state) and do NOT apply to impeachments
Veto Power of President
Must be exercised within 10 days and cannot be line-item veto (sign or veto entire legislation)
Appointment Power allows the President to
Appoint all officers of the US (those who exercise “significant” authority)
Note: Inferior officers can be appointed by a department head
Congress can create
Offices but not officers
Federal officers may be removed
By the president without cause unless Congress has passed a law creating the agency and protects the head of the agency from being fired (independent agency)
Note: if has policymaking or administrative power, Congress cannot intervene
Only intervention regarding federal officers is impeachment
Executive agreements are
Agreements by President and other countries which do not require approval by senate (like treaties do).
Not binding on successive Presidents
Impoundment outlines how the President may spend funds authorized by Congress, and means
(1) If congress passes statute and gives president discretion on spending funds, the president may withhold. BUT
(2) If a statute requires that certain funds be spent on certain purposes, the President has no discretion to withhold money
Under the Delegation of Powers doctrine, Congress is allowed to
delegate many powers to administrative agencies but must provide an intelligible principle to guide agency discretion
Immunities and Privileges (president, judges, legislators)
President: Immune from civil liability for official acts, but NOT in private capacity or for acts done before becoming president
Judicial: Immune for judicial acts but not for non-judicial acts (e.g. employment discrimination)
Legislative: Immunity for anything said during regular legislative process (cannot be used as evidence and extends to congressional aids if would have been protected had it been performed by legislator)
Overriding Executive Privilege requires
Demonstrated need (e.g. ongoing criminal investigation)
The Supremacy Clause provides that
federal law trumps conflicting state law
Between the Federal Government and the States, States cannot
pass a law regulating the federal government unless congress permits it, AND
cannot directly tax the federal government or shield state officers from federal liability (may tax income of federal employees)
The Dormant Commerce Clause (DCC) limits
the power of states to legislate in ways that impact interstate commerce
DCC issues arise when
(1) states are acting in ways that disadvantage each other, and
(2) Congress is silent
Note: If Congress has passed a law in the fact pattern, DCC is not applicable
Under DCC, if congress has not enacted legislation States may regulate commerce so long as they do not
(1) Discriminate against out of state commerce
(2) Unduly burden interstate commerce, or
(3) Purposefully regulate wholly out of state activity
Discrimination against out of state commerce pertains to (+ exceptions)
State or local laws that protect local economic interests at the expense of out of state competitions
Exceptions:
(1) Law is necessary to serve an important state function or local interest (and no other non-discriminatory means are available)
(2) State is acting as market participant
(3) Congress authorizes state regulation
Pikes Balancing is
balancing test for undue burden under the DCC
Test: Burdens imposed clearly outweigh local benefits
States may tax interstate commerce only if
(1) Congress is silent
(2) Tax does not discriminate against or unduly burden interstate commerce
(3) There is a substantial nexus between the taxing state and the property or activity to be taxed
(4) There is a fair apportionment of tax liability among the states (e.g. tax corporation only for in-state portion of revenue)
Ad Valorem Property Taxes are based on
real or personal property assessed at a certain time of year and include movable commodities (e.g. cars) but may NOT be levied on goods which are just passing through
3 Forms of Federal Preemption
(1) Express
(2) Conflict (impossible to comply with both state and federal at same time OR frustrates purpose of federal law)
(3) Field (Congress has occupied the field - think immigration)
For the Full Faith and Credit clause to apply, the judgement must be
(1) Final
(2) On the Merits
(3) And have had proper jurisdiction
Action may be deemed to be governmental if it is
(1) A regulatory statute or criminal prosecution (express),
(2) A private actor carrying out traditional government function (generally exclusively government provided)
(3) State Entanglement of Private Actors (hard to see where private action ends and state begins - liquor license not enough)
(4) State facilitation of private action (affirmatively facilitate / endorse)
Procedural Due Process protects against
international governmental action which deprives people of life, liberty or property
Interests Protected under Procedural Due Process are
(1) Life (death penalty)
(2) Liberty (physical confinement / restriction of fundamental rights)
(3) Property (legitimate claim of property interest by statute, contract, or custom)
Note: Reputation is not a protected interest
Deprivation of an interest requires
intentionality (accident or negligence by governmental employee is insufficient)
Matthews v. Eldridge balancing test for Procedural Due Process
(1) Individual interest at stake (importance to the individual)
(2) Value of procedure that is protecting that interest (and risk of erroneous deprivation)
(3) Government’s interest/burden in efficiency (cost vs. degree of materially enhancing protection)
Note: This will be used for deprivation of REAL property in Civil Forfeiture actions
Generally, a person being deprived of a property interest is entitled to
(1) Notice of the government’s action by unbiased decision maker, and
(2) An opportunity to be heard
Note: Notice must be “reasonably calculated” to apprise interested parties of the action
Hearings before / after deprivation? Welfare, Disability, Termination for Cause
welfare - hearing before deprivation
disability - prompt hearing after so long as retroactive relief may be awarded
termination for cause - hearing before unless significant reason not to keep employee
Standard for Strict Scrutiny
The Government must show the challenged law was (1) necessary to meet a (2) compelling government interest
Compelling: National Security, preserving public health, remedying past discrimination
Necessary: Least restrictive means possible
Standard for Rational Basis Review
The Challenger must show the law is not (1) rationally related to (2) a legitimate state interest
Very deferential, legitimate interests include reattributing wealth, keeping highways safe
Laws receiving rational basis review are generally only struck down if
animated by prejudice or animus towards a particular group
Standard for Intermediate Scrutiny
Government must show law is (1) substantially related to (2) an important government interest
List of Fundamental Rights
(1) Right to Travel (between states)
(2) Right to Vote
(3) Right to privacy (contraceptives, marriage, intimate association, parental rights)
(4) Right to bear arms
Gerrymandering is
permitted if partisan, prohibited if racial
To show racial, must prove:
(1) Discriminatory purpose
(2) Race is either the only or predominant factor in drawing district lines
Right to intimate association includes
right to choose intimate partners and possess obscene material in one’s home (child pornography excluded)
Parental rights include
send kids to private school, educate child in language other than English, and live with children unless finding of abuse or neglect
Restrictions to 2nd Amendment right to bear arms are only constitutional if
they are supported by a history and tradition of firearm regulation
Classification based on race, ethnicity or national origin receives
strict scrutiny
To prove racial classification, plaintiff must prove
discriminatory purpose (NOT effect or impact)
For purpose, look to face of law, context/history, or statistics (so dramatic only explanation can be racial purpose)
Affirmative Action is subject to
Strict scrutiny
Citizenship Status is subject to
Strict Scrutiny if State law applies
Exception: prohibiting non-citizens participation in government functions is subject to RB
RB if Federal law applies
Intermediate scrutiny applies to
gender and children born out of wedlock (quasi-suspect class)
Permissible gender classifications include
statutory rape laws and military draft
Non-suspect classes include
age, property, undocumented
sexual origination - RB w/ bite
The Comity Clause (aka Article IV privileges and immunities) prohibits
Serious discrimination against out-of-state individuals in allowing access to the private job market / if economic discrimination affects fundamental rights (unless passes IS - closely related to substantial government interest)
Exception: Recreational hunting license (Rational Basis)
There is NO market participant exception for the Comity Clause
Takings Clause is the right of
Government to take private property for public purposes so long as pays just compensation
Public use is
any conceivable public purpose
Types of Takings
(1) Taking for modification for public purpose
(2) Giving a third party a right to occupy even a small space
(3) Destruction of private property (exception, public peril)
Taking v. Regulation
Regulating does not require just compensation unless zoning law is so thorough there is no economic viable use for property (TOTAL loss of economic value / expectation - assess under Penn Central test)
The test for establishing a Regulatory (Partial) Taking (Penn Central analysis)
(1) gravity of economic impact (how much value was lost?)
(2) extent to which regulation interferes with owner’s reasonable investment-based exceptions
(3) Nature of regulation (how much will it benefit society, how many people have been affected)
Bills of Attainder prohibit
Legislative acts that declare a person or group guilty of a crime and punish them without a trial
Applies to criminal measures and bars on government employment
Ex Post Facto Laws (Article I §10)
(1) Retroactive change to criminal laws are prohibited
Laws will be struck down if
(1) Criminalizes an act that was not a crime when committed
(2) authorizes imposition of more severe penalty
(3) Deprives defendant of a defense that used to be available
(4) Decreases prosecutor’s burden of proof after crime was committed
Obligation of Contracts prevents
STATE legislative impairment of existing contracts between private parties unless narrowly tailored to promote important and legitimate public interest
(Note: does not apply to federal legislation or state COURT decisions)
Financial aid to religious institutions is permissible if
aid is secular in nature and used for secular purposes
If money is distributed to BOTH secular and religious institutions, distribution must be NEUTRAL as to religion
Access to public facilities by religious group & giving Tax deductions
Must be done in the same way for religious and non-religious groups / parents
Prohibited Government Actions at Public Schools concerning religion include
(1) Creating school district to serve particular religion
(2) Requiring prayer in school (or designating periods of silence “for meditation or voluntary prayer” lacking any secular purpose)
(3) Allow prayer at graduation
(4) Post ten commandments on public school walls
(5) Prohibit teaching darwin and evolution
Permissible Government action at Public schools concerning religion includes
(1) Voluntary prayer in school
(2) Permit Bible reading so long as emphasis is on literature or poetic aspects
(3) Private prayer at halftime of football game
(4) Study ten commandments as early legal code
Religious displays are
Permissible if also communicate secular message / acknowledge religion rather than endorse religion
Legislative prayer is generally
permissible because of long history and tradition of such prayer
Laws purposely targeting religious conduct are subject to
strict scrutiny
Laws that are neutral and incidentally affect religious conduct are subject to
rational basis review
Ministerial Exception allows
religious institutions to hire / fire religious leaders without complying with federal or state employment laws
Content-based restrictions are laws that
prohibit speech based on the subject matter discussed or idea expressed
subject to strict scrutiny
Content-neutral restrictions are laws that
restrict the time, place, and manner of speech
Level of Scrutiny depends on forum
Government may restrict protected speech in a PUBLIC forum (traditional or designated) if restriction is
(1) Neutral on both its face and as applied (to subject matter and viewpoint)
(2) Leaves open alternate channels of communication
(3) Narrowly serves a significant state interest
Compare with non-public forum which must be viewpoint neutral and reasonably related to legitimate interest
Types of Forums
(1) Traditional public forum (historically reserved for speech activities)
(2) Designated public forum (government has opened space for free speech activities)
(3) Non-public forum
Government may regulate expressive conduct so long as
(1) The regulation in question furthers an important interest
(2) The interest is unrelated to expression
(3) Burden on expression is no greater than necessary
To be “Obscene” it must be
Sex: must be erotic (appeal to prurient interest)
Society sick: patently offensive to average person
Standards: government must decide obscenity clearly with precise standards
Serious value: Material lacks serious artistic, scientific, or educational value
Unprotected Categories of Speech
Obscenity, Incitement, Fighting Words, Defamation, Commercial Speech
Incitement speech is forbidden if
it advocates use of force or illegal action and speech must be
(1) directed to inciting or producing imminent unlawful behavior
(2) likely to incite such behavior (reasonable person would engage)
Note: Abstract ideas are NOT incitement
Fighting words are forbidden if
speech is likely to incite an immediate breach of the peace or threatens violence (imminence is key)
Note: Annoying or offensive language is NOT fighting words and is protected
Defamation does not apply to
scientists publishing in journals or spouses of public figures
Commercial speech must be
lawful and not false or misleading (false and misleading commercial speech is unprotected and can be prohibited altogether)
Even protected commercial speech may be restricted if
(1) government asserts substantial interest
(2) regulation directly advances that interest
(3) Regulation is narrowly tailored to serve that interest
Define vagueness
law is ambiguous to such an extent it gives no clear notice to a person of ordinary intelligence about what speech is prohibited
Law is unconstitutional
Define overbreadth
burdens more speech than necessary for the government to achieve its interest
law is unconstitutional
Prior restraint (injunction to prevent speech before it is spoken) is
presumed unconstitutional
OK if:
(1) Seeks to avoid particular harm
(2) Has procedural safeguards in place (narrowly drawn, reasonable, definite)
Freedom not to speak extends to the rights to
refrain from speaking and refrain from being forced to fund political speech
The government may engage in viewpoint discrimination when
the government controls the message of the speech (government can say what it wants)
Federal employees first amendment rights are not applicable when
employee is speaking pursuant to official duties (applies to speech ordinarily within scope of duties)
OTHERWISE balance first amendment protections against state interest in effective management
Campaign Contributions v. Expenditures
Contributions may be limited so long as caps are not “unreasonably” low (intermediate scrutiny)
Expenditures are subject to strict scrutiny (rarely limited so long as source of funding is disclosed)
Money spent in coordination with campaigns
may be regulated like contributions
The media enjoys
no special privileges not enjoyed by ordinary speaker
Broadcasters can be fined for airing
patently offensive speech even if the speech does not qualify as obscene
Freedom of Association prevents
(1) Punishment because of political associations
(2) Required acceptance of a group leader (e.g. boy scouts)
(3) Requirement to take loyalty to oath to anything other than constitution
(4) A statute which criminalizes mere membership to any group
The exception to criminalization of association with a membership is
(1) when the group is actively engaged in unlawful activity or inciting imminent violence, and
(2) the individual in question knows about it and intends to further it
Exacting promises from a developer does not violate the Takings Clause if
(1) there is an essential nexus between legitimate state interests and the condition imposed on the property owner, and
(2) there is rough proportionality between the burden imposed and the impact on the proposed development
Rights of State citizenship protected by the Comity Clause
Travel/reside in state
Pursue employment
Practice commercial trade/business
Own/transfer property
Seek medical services
Civil liberties
Creditor’s rights
Tax exemptions
Under the Pike’s Balancing test, a non-discriminatory law will be upheld unless
the challenger shows the law’s burden on interstate commerce clearly exceeds its local benefits
Under the State-Action doctrine, private actors are considered government actors when
(1) they perform a traditional and exclusive government function or
(2) the government is significantly involved in their activities (requires more than providing access to government services or facilities)
Public employees have a protected property right in their employment if they
(1) have an ongoing employment contract,
(2) can only be fired for cause, or
(3) have received assurances of continued employment
Grants employees right to due process (notice and meaningful opportunity to be heard before they can be terminated)
Discrimination based on gender may be allowed if the government can
show it has an “exceedingly persuasive justification” for such treatment (satisfies intermediate scrutiny) and that separate facilities offered are “substantially equivalent”
Narrowly tailored means that a regulation
burdens no more speech than is necessary
A civil law may be deemed to be an ex post facto law if
its retroactive effect is so punitive that it clearly overrides the law’s non-punitive purpose
Gag orders and closed trials that prohibit the press from reporting about court room proceedings
may abridge the freedom of the press and must survive strict scrutiny (and be narrowly tailored)
Laws which retroactively impair an ordinary right (e.g. right to SoL as a defense) can be challenged
on substantive due process grounds but are reviewed under RB and therefore generally constitutional
Note: compare with laws concerning criminalizing past behavior which is presumptively unconstitutional
In order to exercise appellate jurisdiction and for the SCOTUS to grant a writ of certiorari
the judgement must be based on federal law (only decline if AISG)
The enclave clause gives Congress
plenary (executive) legislative power over DC
The Export Clause prohibits federal taxation on
exported goods and services and activities closely related to the export process
Race-based classifications imposed by the government must
survive strict scrutiny and if justified to remedy past racial discrimination, must attempt to remedy the state’s OWN history of racial discrimination (not society’s more generally)
Under the 21st amendment, states have the right to
broadly regulate alcohol within their borders, including the ability to prohibit the importation, transportation, or sale
Once Congress delegates power to an executive agency, it cannot interfere with the agency’s function without satisfying
the legislative-action process (standard passing of a law: bicameralism and presentment)
Bicameralism - both houses of congress have a say
Presentment - Presentment to the President
(otherwise serves as an unconstitutional legislative veto)
The Dormant Commerce Clause is rooted in
Article I commerce clause which empowers Congress to regulate interstate commerce
Under the Property Clause, Congress has the power to
regulate private property that affects federal public lands when such regulation is necessary to protect those lands
Personal property may be seized prior to providing notice and hearing when
(1) the seizure serves a significant government interest
(2) the interest would be frustrated with advanced notice of the seizure, and
(3) the seizure is performed by the government
Congress may limit the jurisdiction of federal courts so long as it does not
(1) Usurp judicial power (violate the separation of powers doctrine), or
(2) violate other constitutional provisions (e.g. suspension clause)
Suspension clause = a person in federal custody can challenge their detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ (applies to non-citizens in foreign territories under US control)
Under the 10th amendment, the federal government cannot impose
direct taxes on states that unduly interfere with their essential functions
The Fourteenth Amendment equal protection clause “one person, one vote” principle requires
the populations in state legislative districts to be approximately equal (less than 10% deviation is OK absent evidence of discrimination)
Dismissal from a School for Academic v. Disciplinary issues?
Academic = no required hearing
Disciplinary = require notice and hearing
Direct federal taxes comply with the taxing and spending clause so long as they are
(1) apportioned proportionately among the states based on each state’s population and
(2) reasonably related to revenue production.
The doctrine of sovereign immunity shields the federal government from
suits by private parties (or states or foreign governments) in federal court without Congressional consent (extends to suits against federal officers for actions taken in their official capacity)
States may allow a semi-closed primary system which
allows only registered party members and independents to vote in the party’s primary
In a prior restraint analysis, the burden is on
the government to prove the material to be censored is not protected speech
Impairment by the state of a public contract (one to which the state or local government is a party) must be
reasonable and necessary
The Speech or Debate Clause of Article I, Section 6 protects members of Congress from
civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports
The Speech and Debate Clause does not foreclose prosecution for a crime when
the crime does not require proof of legislative acts
Providing utility services is
not a traditional and exclusive government function (may not be used to establish state-action doctrine)
A state tax on foreign commerce must
(1) Satisfy all requirements for taxation on interstate commerce (substantial nexus, fairly apportioned)
AND
not (1) create a substantial risk of international multiple taxation or (2) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues.
Designated periods of silence for “meditation or voluntary prayer” lacking any secular purpose have been held
unconstitutional
A court will not dismiss as moot a case in which the defendant voluntarily ceases its illegal or wrongful action once
litigation has commenced
Note: The court must be assured that there is no reasonable expectation that the wrong will be repeated
Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but
the postal power may not be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment)
A state seeking to terminate parental rights must prove its case by at least
clear and convincing evidence to comply with procedural due process (lower standards substantially interfere with the private risk / erroneous deprivation)
Though Congress may conduct investigations and subpoena parties to testify before congress, witnesses are entitled to
certain procedural due process rights, including the right to counsel
Government taking as part of a criminal investigation or forfeiture action is
NOT a 5th amendment taking
