Con law Flashcards
Bill of Rights
Individual rights against the federal government
Main Body
Establishes a federal government with limited power
Article 1 - Legislature
Article 2 - executive
Article 3 - judicial
Civil rights amendments 13-15
Guarantee rights against states
Case or controvery
Federal courts can only here matter if there is a case or controversy (justiciability)
- what is the case requesting (no advisory opinions)
- when is it brought (ripe or moot)
- who is bring it (standing)
Advisory opinions
Cannot issue
1) lack an actual dispute between adverse parties
2) lack any legally biding effect on the parties
Ripeness
1) issue for a judicial decision (legal issue)
and
2) P would suffer substantial hardship in the absence of review
Mootness
A live controversy must exist - must be suffering from ongoing injury
Exceptions
- capable of repetition yet evading review - inherently short duration
- D voluntary stops the offending but is free to resume
- Class action where the rep’s controversy is moot but the claim of a class member is still viable
Standing
Must have at all stages including appeal
Components
- injury - particularized and concrete, already occurred or imminent
- causation
- redressibility
Exception to no citizenship standing that government action violates federal law or constitution
1) challenging own tax liability
2) Tenth amendment violation if person has a redressable injury
3) Congressional spending on establishment clause grounds
Standing to assert rights of others
1) difficult for third party to assert own rights
or
2) a close relationship exists
Standing for free speech overbreadth
Can bring even if own speech would not be protected - on behalf of others whose speech would be protected
Does not apply to restrictions on commercial speech
Standing or organizations
Sue on behalf of members
1) injury in fact
2) the members’ injury is related to the org purpose
3) participation in the lawsuit is not required (ie not seeking individualized damages)
Sovereign immunity - 11th
Bars a private party’s suit against a state in federal and state courts
Bars claims against a state in federal and state agencies
Exceptions
- express waiver
- Implicit consent/structural waiver - states yield to certain federal powers
- actions against local governments
- suites by other states or the fed gov
- bankruptcy
- certain actions against state officers (damages personally or injunctions)
- congress can remove state’s immunity to prevent discrimination
Structural waiver to sovereign immunity
Federal power is complete in itself
and
the states implicitly consented to the fed gov exercising that power as part of the plan of the constitution
Political questions
Cannot be decided
1) constitutionally committed to another branch
or
2) inherently incapable of judicial resolution
Original jurisdiction Supreme Court
Cases affecting
- ambassadors
- public ministers
- consuls
- state is a party
Appellate jurisidction
Review constitutionality of acts of other branches of fed gov
review state acts under Supremacy clause
Writs of Cert - discretion
- cases from highest state court where consitit. of a fed statute, treaty, or state statute in issue, or a state statute allegedly violates fed law
- all cases from fed COA
Appeal - mandatory must hear
Adequate and independent state ground
Supreme court will not hear
state law fully disposes of the case and not based on federal case interpretation of identical federal provisions
can still hear if state does not clearly indicate decision rests on state law
(SC reversal on fed law ground will not change the result in the case)
Congress powers
- Enumerated plus any powers necessary and proper to cary out enumerated powers
- taxing and spending for any public purpose/general welfare - can influence behavior but cannot compel
- Commerce power
- war - declare war, raise and support armies, provide for and maintain navy
- investigatory power
-property - can dispose, but need enumerated power to take private property
- exclusive postal power
- power over citizenship
-admiralty, power to coin money and fix weight and measures, patent and copyright power
No general police powers for health, safety, and welfare of nation
exceptions - DC, federal lands, military bases, indian reservations
Spending power conditions
Congress can impose conditions on grant of money if
- clearly stated
- related to purpose of program
- not unduly coercive
- do not violate constitution
Commerce power
Regulate interstate commerce
- channels
- instrumentalities
- activities that have a substantial effect on interstate commerce
Limitation
- cannot regulate nonec intra in areas traditionally regulated by state or local gov
- cannot compel activity, only regulate existing activity
Delegation of legislative pwoers
can delegate rulemaking or regulator power to executive or judicial as long as intelligible standards set and the power is not uniquely confined to Congress
if agency makes adopts regulation with great significance, must be able to point to clear congressional authorization
Separation of powers
Bicameralism and presentment
no line item vetoes
no legislative vetoes - congress gives itself authority to amend or repeal existing law without bicameralism and presentment
Executove power inherent orimplied
Express or implied authority from congress - Authority at max and are likely valid
Congress silent - constitutionality uncertain, cannot usurp power of another branch or prevent that branch from carrying out its tasks
Against express will of congress and congress had authority to act - likely invalid
President powers
-appointment
- removal
- pardons
- veto
- war - no pawer to declar but is commander in chief
- treaty - requires 2/3 of senate
- executive agreement - no consent needed
Treaty conflicts
With federal law - last in time wins
with constitution - constitution wins
Executive agreement conflicts
With state law - agreement wins
With fed law - fed law wins
Impeachment
Majority vote of house to bring charges and 2/3 senate to convict and remove
Executive privilege and immunity
Privilege - certain presidential communications
- exception - criminal proceeds where need is demonstrated
Immunity - absolute from civil damages during official responsibilities
State general police powers
upheld if rational
health, safety, welfare
Anti-comandeering
Congress cannot commandeer states by requiring them to enact state laws or to enforce federal laws
exception - civil rights- restrict states from discriminating or violating due process
- tax or regulation applying to state and private entities (min wage law)
Preemption
Express
Implied
- conflict between state and fed law requirements - impossible to follow both
- state prevents achievement of fed objective
- field preemption (ie comprehensive or agency formed)
Privileges and immunities article iv
Prohibits discrimination against non residents concerning commercial activities or fundamental rights if it is intentionally protectionist
corporations and aliens not protected by this clause
standard
-necessary to achieve and important gov purpose/substantial justification
no less restrictive means
Privileges of national citizenship - 14th
State may not deny their citizens the privileges or immunities of national citizenship
- right to vote for fed officers
- right to interstate travel
Dormant Commerce clause
State or local gov cannot discriminate against or unduly burden interstate commerce
Discriminatory - almost always invalid
- necessary to achieve important non-ec state interest
- no reasonable nondiscrim alternatives
Nondiscriminatory - balancing test
- valid unless burden outweighs the promotion of a legitimate local interest
Exceptions to dormant commerce clause
Congressional approval or prohibition
State as market participant - may prefer own citizens
State taxing power that affects interstate commerce
Discriminatory - violate commerce clause
nondiscriminatory - valid if substantial nexus between activity and taxing state, fair apportionment, and fair relationship to the servies or benefits provided byt the state
Full faith and credit
State court judgments must be recognized by other states if
Court had jurisdiction
judgment was on the merits
the judgment was final
State action requirement
Even if private individual, considered state action if
- perform exclusive public functions
- have significant state involvement
Exclusive public functions
- traditionally the exclusive prerogative of the state no matter who performs
Levels of scrutiny
Rational basis
Intermediate
Strict
Rational basis
Do not affect fundamental rights or suspect classes
upheld if rationally related to a legitimate gov purpose
person challenging has burden of proof
Intermediate scrutiny
Quasi suspect class - gender or legitimacy
upheld if substantially related to important gov purpose
usually BOP on gov
Strict Scrutiny
Fundamental right or suspect class - race, national origin, alienage
necessary/narrowly tailored to achieve a compelling gov purpose
BOP on gov
Due process
fair process when gov deprives person of life, liberty, or property
must be intentional or reckless gov action- not negligence
liberty - loses significant freedom of action or is denied freedom provided for in the constitution or statute
property - personal and real, and gov benefits to which there is an entitlement - reasonable expectation of continued receipt
Procedural due process
Need
- notice
- opportunity to be heard
AND
- neutral decisionmaker
Hearing balances importance of the interest and the specific procedural safeguards against the gov interest in efficiency
Substantive due process
Guarantees hat laws will be reasonable and not arbitrary
Fundamental rights -SS
- all first amendment
- right to interstate travel
- privacy
- voting
Everything else - RB
Fundamental right - unenumerated
deeply rotting in nation’s history and tradition and essential to concept of ordered liberty
Substantive DB v EP
SDP - limits rights of all persons
EP - treats a person or class differently
Privacy rights
Marriage, procreation, contraception, childrearing, rights or parents, keeping extended family together, obscene reading material in the home
Exception - prisoner’s rights - upheld if reasonably related to legit penological interests
Right to travel
Interstate - fundamental
- travel state to state
- be treated equally after moving to new state
international - not fundamental
Right to vote
Fundamental
restrictions allowed - residence, age, citizenship
state and local elections - populations of districts must be substantially equal - variance up to 16% valid
congressional elections - almost exact mathematical equality for districts
gerrymandering - race or suspect classes cannot be predominant factor
Right to bear arms
Permit law - criteria must be clear, no discretion
standard of review - consistent with historical tradition of firearm regulation
Unspecified rights
Intimate sexual conduct in private
right to refuse medical treatment
- but state can compel vaccinations against contagious diseases
Proving discriminatory classification - ep
discriminatory on its face
Discriminatory application plus intent
disparate impact plus intent
Remedying intentional school segregation
Can remedy based on past effects of segregation
cannot solely promote diversity
Affirmative action
compelling interest to remedy past gov discrim if it was persistent and readily identifiable
cannot be general past discrimination
Alienage
Federal classification - rational basis
State and local laws on alienage - strict scrutiny
-Exception - participation in state government and positions importnat to public policy is rational bases
Animus
Does not meet rational basis
imposing burden on a group because of a dislike of that group
The taking clause
Private property may only be taken
- for public use (rationally related to legit purpose)
- and the gov must pay just compensation (fmv at time of taking)
includes personal property, real property, and certain intangibles but not welfare benefits
Physical takings - confiscation or occupation
- Confiscation of a person’s property
- a permanent or regular physical occupation of a person’s property by the government
- a temp occupation depending on degree of invasion, duration, intention, foreseeability of result, interference
exceptions
- development - gov show essential nexus between condition and development and the adverse impact of the development is roughly proportional to the loss from forced transfer
- emergency - public policy such as war
Regulatory taking - use restriction
denial of all economic value of land
if temporary - look at good faith, reasonable expectation of owners, length of time, effect on value
Decreasing economic value - balancing test - and look at other ec viable use
- gov interest
-loss of value
-wither the regulation substantially interferes with distinct, investment backed expectation of owner
Contract Clause
Limit ability of state and local gov to enact laws that retroactively impair contract rights (fed gov = dp)
Private contracts - IS
- leg that subs impairs private contract invalid unless important gov interest and narrowly tailored
Public contract - heightened scrutiny
Ex post facto laws and bill of attainder
cannot retroactively alter criminal offenses or punishments in a subs prejudicial manner for purpose of punishing for some past activity
cannot inflict punishment on individual through legislative act without a judicial trial
Retroactive legislation
Contract clause
ex post facto laws
bill of attainder
Freedom of speech
what is speech
Speech - words, symbols, expressive conduct
- inherently expressive or conduct intended to convey a message and reasonably likely to be perceived as conveying a message
Unprotected speech - incitement
Incitement - intended to produce imminent lawless action and likely to produce such action
Unprotected speech - fighting words
fighting words - personally abusive words that are likely to incite immediate physical retaliation in an average person
- true threats - words intended to convey to someone a serious threat of bodily harm
- statutes for fighting words cannot be viewpoint based
Unprotected speech list
Incitement
Fighting words
Obscenity
defamatory speech
some commercial speech
Unprotected speech - Obscenity
Describes or depicts sexual conduct specified by state that:
- appeals to the prurient interest in sex using contemporary community standards
- is patently offensive under contemporary community standards
AND
- lacks serious value using a national, reasonable person standard
Unprotected speech - defamatory speech
defamatory statement about a public official or public figure or involves a matter of public concern
must prove all elements plus falsity and some degree of fault
public official or figure - fault is actual malice
- knowledge that it was false or reckless disregard
Private figure but public concern - can only recover actual damages if negligence, punitive if actual malice
Unprotected speech - some commercial speech
Not protected if false, misleading, or about illegal products or services
any other regulation upheld if
- serves a substantial gov interest
- directly advances interest
- narrowly tailored
General speech restrictions - content based regulations
Strict scrutiny
restricts speech based on the subject matter or viewpoint of the speech
General speech restrictions - content neutral regulations
Neutral to subject matter and viewpoint
intermediate scrutiny
form of time, place, and manner restrictions (conduct related to speech)
Public forum - traditional and designated
Traditional public forum - Public property historically open to speech related activities - streets, sidewalks, public parks
Designated public forum - not historically open to speech related activities, but gov opened for such activities
Content based - ss
Content neutral - IS and must leave open alternative channel of communication
Public forum - limited and nonpublic
limited - not historically open for speech but open for specific speech activity
nonpublic - gov property not held open for speech
Regulate to reserve forum for its intended use if
- viewpoint neutral
- reasonably related to legit gov interest - RB
If viewpoint based -SS
Speech restriction in public schools
Not public forums
reasonably regulate to serve schools educational mission
- student speech on campus cannot be censored absent substantial disruption
- student speech off campus- limited to prevent cheating, bullying, threats, etc
- teaching - reasonably related to legit pedagogical concern
Speech in public employment
at work and private concern - can punish if disruptive to work environment - no 1st A
on job and pursuant to official duties - punish even if public concern - no 1st A
Public concern not pursuant to official duties - balancing test - value of speech against gov’s interest in efficient operation of workplace
Private concern outside of workplace - can be punished if detrimental effect on workplace
Prior restrain
Some special societal harm
Content based- SS
content neutral - IS
Licenses and permits cannot five officials broad discretion over speech issues - otherwise void on its face
Free exercise clause
cannot punish someone on the basis of their religious belief or related relig status or conduct
can question sincerity but not truthfulness of belief
discriminatory if not netural or neutral by not generally applicable - by design targets - SS
Establishment clause
Prohibits government sponsorship of religion - gov cannot aid or formally establish a religion
