Con Law Flashcards
Standing
Requires that a plaintiff has (1) personally suffered an injury in fact that is (2) causally related the conduct complained of (3) such that a favorable court decision is likely to remedy the injury.
Injury in fact = a particularized injury that affects the plaintiff in an individual way and a concrete injury.
Plaintiffs seeking injunctive or declaratory relief must show likelihood of future harm
Ripeness
Whether a federal court may grant pre-enforcement review depends on (1) the hardship that will be suffered without pre-enforce review and (2) the fitness of the issues and record for judicial review
Mootness
A real life controversy must exist at all stages of review, not just filing. A court will not hear a case that has become moot unless:
(1) the D voluntarily halts conduct
(2) wrong capable of repetition but evading review (ie a pregnant person)
Privileges and immunities clause IV
Does not protect aliens
States may not deprive citizens of other states the freedom it gives its own.
If a law discriminates against out of staters with regard to ability to earn a livelihood it is unconstitutional unless it is necessary to achieve an important government purpose
Dormant commerce clause
State action that places a burden on interstate commerce is unconstitutional unless it is necessary to achieve an important government purpose unless:
(1) there is congressional approval or
(2) But states can make state owned resources prefer in-staters (called state as a ‘market participant’)
Has there been a violation of life liberty or property?
If so, this is a violation of procedural due process. A deprivation of liberty occurs if there is a loss of a significant constitutional freedom. A deprivation of property occurs when the government interferes with an entitlement.
Government negligence must shock the conscience in order to violate this — it generally requires intent
Government need not protect people from privately inflicted harm under due process
Constitution procedure to establish due process
Process must balance the importance of the interest to the individual, the ability of additional procedures to increase the accuracy of fact-finding against the governments interest in efficiency.
Examples of due process procedures
Welfare benefits can only be terminated AFTER notice and hearing
SS benefits can be terminated but require a post-termination hearing
Before school discipline, there must be notice of the charges and an opportunity to explain
Terminating a parent’s right to custody requires preemptive notice and hearing
Prejudgment seizure of assets requires notice and hearing unless there is risk of flight
May seize property used in illegal activity even if innocent donor
Cannot suspend a license without preemptive notice and hearing
Gov’t jobs with ‘misconduct’ termination conditions require preemptive notice and hearing (back pay after post-termination hearing is not enough)
Takings clause
The government may take private property for public use if it provides just compensation
Possessory taking
Government confiscates or physically occupies a property
-temporary occupation is not a taking so long as government action is reasonable
Regulatory taking
Regulation amounts to a taking of it leaves no reasonable economically viable use of the property
-gov’t conditions on develop rent of a property must provide benefit roughly proportional to the burden imposed or they amount to a taking
-property owner can challenging existing regulations as a taking
Rational basis test
Rationally related to a legitimate government purpose so long as one is conceivable
Rational basis test
Rationally related to a legitimate government purpose so long as one is conceivable
Intermediate scrutiny
Substantially related to an important government purpose actually cited by the government
Strict scrutiny
Necessary to further a compelling government purpose/interest actually provided by the government. Must be the least restrictive means to achieve this compelling purpose
