Con Law Flashcards
Eleventh Amendment immunity?
No federal jurisdiction over any suit for damages against a state by a private citizen. Also no suits in state court alleging state violated federal law.
Suits against state officials allowed?
Against state officials in their official capacity if seeking injunctive relief.
Can congress limit state’s immunity?
Abrogation of immunity allows congress to remove state’s immunity if:
1. congress must explicitly state its intent to abrogate state immunity AND
2. Congress must be legislating under the 13th, 14th, or 15th amendment.
Case and Controversy Requirements
- Standing
- ripeness
- mootness
Standing requirements
- Injury in fact
- Causation
- redressability
Ripeness
past injury or threat of real and immediate injury
What can congress regulate through the commerce clause
- uses of the channels of interstate commerce
- instrumentalities of interstate commerce
- economic activity that substantially affects interstate commerce
What is an economic activity for the purposes of the commerce clause?
The production, distribution, sale, or buying of goods or services
When can congress use its tax power
produces some revenue and does not function as a penalty
What are the limits on the taxing power?
- No taxes on exports
- taxes must be uniform across the nation
- Direct taxes must be apportioned among the states
The spending power must be used for what?
The general welfare
When is conditional spending allowed
- conditions are clearly stated
- reasonably related to a federal interest
- do not require the states to do anything unconstitutional
- not unduly coercive
Anti-Commandeering Principle?
Congress may not force states to 1. enact legislation OR
2. perform federal executive duties
Can a state consent to being commandeered?
NO
Dormant commerce clause?
State’s cannot pass laws that discriminate against or unduly burden interstate commerce
When does a state law discriminate against interstate commerce?
When it favors instate interests over out of state interests OR if it blocks interstate commerce at its border
Can a discriminatory state law be upheld?
Yes. it will receive strict scrutiny. Therefore, the law will only be upheld if
1. it serves a legitimate state purpose
2. that cannot be achieved through any non discriminatory alternative
What if a law is facially non discriminatory but unduly burdens commerce?
Intermediate scrutiny: Pike Balancing test
1. law has a legitimate objective
2. law is rationally related to that interest
3. burdens on commerce are not clearly excessive compared to the local benefits
Exceptions to the dormant commerce clause?
State’s can discriminate against other states if the state itself is a market participant. (I.e. state’s can pass laws that say the state can only buy from in state businesses
Can a state impose a tax on interstate commerce?
Yes IF
1. it is applied to a person or activity that has a substantial nexus with the state
2. it is fairly apportioned (based on the amount of business connected with the state
3. does not discriminate against interstate commerce
4. fairly related to the services provided by the state
Valid excuse doctrine
a neutral rule regarding court admin constitutes a valid excuse for a state to refrain from hearing a federal cause of action (Ex. neither P nor D are state resident, actions arising outside the forum’s territory, forum non conveniens, SoL).
Types of preemption
- Express (Congress expressly says that the federal law preempts state law)
- Implied (directly contradicts with state law, state law presents an obstacle to applying the federal law, or if congress intended the law to cover the entire field of law)
Can state’s tax the feds
No state taxes on the federal government or any agency or entity so closely connected with the federal government that the two cannot be viewed as separate entities
When will a private actor be considered a state actor?
IF the private actor performs a traditionally exclusive government function (e.g. taxing), if the government and private actor are in a symbiotic relationship, if the government has encouraged or facilitated the private action, or if the government is inextricably intertwined in the control of the private entity (state athletic board)
Government and private actor symbiotic relationship
both are interdependent, joint participants in a mutually beneficial venture.
Procedural due process
notice and an opportunity to be heard
When does a person have a property interest for due process to apply
must have an entitlement based on law, regulations, or contract
How to determine what type of due process is required
Consider
1. the private interest at stake
2. the risk of erroneous deprivation
3. the government’s interest, including the fiscal and administrative burdens imposed by additional or substitute safeguards
When is post deprivation due process allowed
if the governments interest is so high that it justifies deprivation before a hearing OR if a government official deprives in an unauthorized or unforeseeable way
Substantive due process: implied rights
- right to marry
- right to purchase and use contraceptives
- right to have and raise children
- right to control a child’s education
- right to refuse medical treatment
Substantive due process
protects basic, individual rights
What standard of review is applied in fundamental rights cases?
Strict scrutiny: Government can only deprive a fundamental right if
1. necessary and narrowly tailored
2. to achieve a compelling government interest
What standard of review is applied in non-fundamental rights cases?
rational basis
law is presumed valid unless plaintiff shows that the law has no rational relationship to any legitimate government interest
Equal Protection
no state shall deny any person equal protection under the law. 14th applies to states. 5th to the feds
Laws that discriminate based on what, get strict scrutiny RE Equal Protection
race, religion, national origin, or lawful alienage
What discriminatory laws get intermediate scrutiny?
gender and illegitimate birth
Intermediate scrutiny for EPC
law is presumed invalid
government must prove law is substantially related to an important government interest
Equal protection fundamental rights
- Vote
- right to marry, procreate, live as a family
- right to the courts
- right to access the ballot as a candidate
- right to travel to another state
Contract clause
congress can make no laws that substantially impair an existing contract
Contract clause test
must substantially impair an existing contract between private parties
1. government must show that the law serves a significant and legitimate purpose
2. and the impairment is reasonable and appropriately tailored to that purpose
When can states impair contracts
- meet social emergencies
- achieve goals within the scope of their police powers
When can a state impair state contracts
same test but heightened scrutiny
Ex post facto laws
Not allowed!!!!!!!
Occurs when government retroactively
1. criminalizes non criminal conduct
2. aggravates the definition of an existing crime
3. increases punishment for an existing crime
4. alter evidentiary rules to permit a criminal conviction on a lessor amount of evidence
Bill of attainder
NOT ALLOWED
laws that impose punishment on named individuals without a judicial trial
Unconstitutional-Conditions Doctrine
prohibits the federal and state governments from conditioning the receipt of a discretionary benefit on the waiver of a constitutional right
Physical taking
government either takes possession of the property or makes a permanent physical invasion of the property
regulatory taking
- taking that denies a property owner of all economically beneficial or productive use OR
- taking that excessively or unforeseeably restricts the property’s use without entirely destroying its value
penn central test
Used for regulatory takings that restrict property’s use.
Considers
1. the regulation’s effect on the property’s value
2. the owner’s reasonable, investment-backed expectations regarding the use of the property
3. and the character of the government action
Conditional Regulatory Taking
conditions a government benefit on the owner’s surrender of property rights
Prohibited unless
1. there is an essential nexus between the condition and the state interest and
2. the extent of the condition is roughly proportionate to the impact of the proposed development
Free exercise clause
prohibits law that discriminate against or excessively interfere with the exercise of religion
What must a belief be to be protected under the free exercise clause
sincerely held
What scrutiny do laws get if they are facially good but incidentally burden religion
minimal scrutiny. Law is presumed valid unless plaintiff shows
1. not rationally related
2. to a legitimate government interest
ONLY APPLIES TO STATE LAWS
What scrutiny do laws get if they are facially discriminatory to religion
Strict scrutiny. presumed invalid. Government must show
1. law is necessary and narrowly tailored
2. to achieve a compelling government interest
Hybrid claims
combines free exercise with some other fundamental right. STRICT SCRUTINY
Individualized assessment case
requires the court to assess why a specific person cannot follow a law. STRICT SCRUTINY
Can church personnel sue a church for employment discrimination?
No, ministerial exception applies
Establishment clause
prohibits government from establishing a national religion, expressing a preference for religion, or from violating the separation of church and state
Freedom of speech, content neutral standard
Intermediate scrutiny, presumed invalid unless
1. law serves a significant or substantial government interest
2. the law is narrowly tailored (government interest would be less effective without the law) to burden no more speech than necessary
3. law leaves open ample alternative channels for communication
Freedom of speech, content based standard
strict scrutiny, presumed invalid unless
1. narrowly tailored (least restrictive means) and necessary
2. to achieve a compelling government interest
Total medium ban
government completely forbids a particular medium of speech (leafletting or posting signs). Courts are weary because of the total ban on speech
Secondary effects doctrine
applies intermediate scrutiny to content-based laws that target the secondary effects of expressive activity rather than the activity itself (location of adult bookstores)
fighting words
words likely to provoke an ordinary person to an immediate violent response. No protection
Incitement to crime protected?
unprotected if
1. directed at producing imminent lawlessness and
2. is likely to produce such action
defamation and true threats protected?
NO
Obscenity test
Miller test
Obscene if
1. average person in the community would find that it appeals to the prurient interests
2. the work depicts or describes in a patently offensive way, sexual conduct as defined by state law
3. AND the work lacks serious literary, artistic, political, or scientific value.
Types of government forums
Traditional public
designated public
non public
Traditional public forum standard of review
typical rules
content based strict
content neutral intermediate
designated public forum standard of review
typical rules, but a government may restrict or completely prohibit access so long as the restriction is viewpoint neutral
Nonpublic forum standard of review
Rational basis, but must be viewpoint neutral
commercial speech
speech that proposes a commercial transaction
when will a regulation on commercial speech be upheld?
- the speech concerns lawful activity and is not misleading
- the regulation directly advances a substantial government interest
- the regulation is not more extensive than necessary
expressive conduct
conduct intended to convey a message that is likely to be understood by those who view it
when may government regulate expressive conduct
- law serves a significant or substantial state interest
- government’s interest is unrelated to the suppression of free expression
- law’s restrictions are no greater than necessary
Overbroad
a law, as written, will chill or deter speech. Must be substantially over broad to be invalidated
vagueness
law is invalid if people of common intelligence are forced to guess its meaning
Freedom of the press
Press has the same speech rights as others and government may not deliberately disadvantage the press
