Con Law Flashcards
when can citizens sue states/ state officials
Consent
Injunctive relief
Enforcement of 13th, 145th, 15th
original jdx of SC
All cases affecting ambassadors, public ministers and consuls and in which a state is a party
what is appellation jdx of SC
By certiorari (discretionary) and direct appeal (mandatory)
when can SC not hear a final state court judgement
A final state-court judgement resting upon adequate and independent state law is not reviewable
* Adequate grounds = state law fully resolves the matter
* Independent grounds = no federal precedent was used in the decision
elements for standing
- injury in fact
-causation
-redressability
what can taxpayer have standing for
own tax bill, violations of establishment clause
when can third party have standing
- special relationship
- third party can’t assert own rights
- risk that disallowing third party standing will dilute third party’s rights
when can organization sue on behalf of member
members have standing in own right
interests at stake are germane to org’s prupose
political questions not reviewed when
constitution assigned decision making to different branch
matter is inherently not one judiciary can decide
what are the kinds of abstentions
pullman: unsettled state law
younger: pending state criminal case
burford: parties seeking injunctive relief that would interfere with complex state regulation system
colorado river: case is substantially similar to another case being heard in state court
what does DPC say about recusal
judge must recuse if direct, substantial pecuniary interest or serious objective risk of actual bias
what can congress regulate under commerce power
- channels of interstate commerce
- instrumentalities of interstate commerce and
- any activity that substantially affects interstate commerce
rule for if taxes should be upheld
if reasonable relationship to revenue production
what can congress spend for/ do conditional funding for
condition must be related to the purpose
clear and unamibguous
doesn’t require unconstitutional activity
not unduly coercive
no commandeering of state legislatures
when can congress directly tax states
fine as long it is evenly apportioned among states and
reasonably related to revenue raising
when can congress take private property
for public use with just compensation or to effectuate an enumerated power
test for when congress passes legislation to enforce EPC and DPC
no expansion
must be congruence and proportionality between the injury to be prevented and means to achieve that goal
what is dormant commerce clause
if congress hasn’t spoken, states can regulate interstate commerce as long as they don’t
discriminate against out of state commerce or
unduly burden interstate commerce or
purposefully regulate wholly out-of-state activity
what are the exceptions that allow a state to discriminate against other states in commerce (dormant commerce clause)
important local interest served and no other nondiscriminatory means are available
market participant exception (state is buyer/seller)
traditional government functions (like garbage)
what is the test for if a stat is unduly burdening interstate commerce
balance purposes of state law against burden on interstate commerce and evaluate if there are less restrictive options
rule for state taxation of interstate commerce (if congress hasn’t already acted and the tax doesn’t discriminate/unduly burden)
- substantial nexus between activity being taxed and state
- fair apportionment such that interstate doesn’t pay more than local
- nondiscrimination (no direct advantage to local)
- fair relationship between tax and services provided
when does implied preemption happen
- congress intended for federal law to occupy the field
- state law directly conflicts with federal law
- state law indirectly conflicts and creates obstacles
but feds just set a floor not ceiling on what state can do
when do states have to give full faith and credit
court had jdx
final judgement on merits
test for significant state involvement for state action
sufficient mutual contacts between conduct of private party and state such that the government is pervasively intertwined with the entity and
- constitutional standards should apply to the private actor or
- mutual benefit or
- state creates private entity for furtherance of gov objectives and retains control
what is not significant state involvement for state action
just licensing/regulation or receiving federal funds
fundamental rights for procedural due process
notice and hearing if liberty or property being taken
fundamental rights for substantive due process
travel
voting
privacy
second amendment
test for fundamental right or suspect class
Least restrictive means to achieve a compelling government interest
test for classification based on gender or legitimacy
substantially related to an important governmental interest
default scrutiny test
Rationally related to legitimate governmental interest
special test for segregating sexes
Government must show that there is an exceedingly persuasive justification for the gender distinction and that separate facilities are equal
Fundamental rights unique to EPC only
o One person one vote
o Gerrymandering (partisan ok, race no)
what is comity clause
Prohibits state discrimination against nonresident citizens for jobs, transfer of property, access to court etc
exception: substantial justification
types of takings
o Seizure of property
o Damage of property
o Taking private for public
o Regulatory taking
o Exaction of promises from developer
when is exaction of promises from a developer not at aking
An essential nexus exists between legit state interests and the conditions imposed on property owner and
Rough proportionality between the burden imposed on the property and the impact of proposed development
what is the rule for laws that retroactively impair an ordinary right like the right to raise SOL as a defense
must undergo rational basis scrutiny
under this test, the law is presumed valid until the challenger shows that the law’s retroactive application has no rational relation to any legitimate government interest
Regulation of expressive conduct upheld if
Regulation is within government’s power to enact
Furthers important government interest
Unrelated to suppression of ideas and
Burden on speech is no greater than necessary
regulation of speech before it is expressed is presumed unconstitutional, except
- If there is particular harm to be avoided and
- Procedural safeguards are provided to speaker
rule for campaign contributions
statutes limiting campaign contributions get intermediate scrutiny
rule for campaign expenditures
restrictions on expenditures get strict scrutiny
regulation for time place manner of expression
Restrictions must
* Be content neutral
* Be narrowly tailored to serve a significant governmental interest
* Leave open alternative channels
when can you have content based restrictions in a public forum
if government can prove that the restriction is necessary to achieve a compelling interest
tests for injunctions on speech
o Content neutral: whether it burdens no more speech than is necessary for important governmental interest
o Content based: must be necessary for the government to achieve compelling governmental interst
test for obscenity
Average person applying contemporary community standards finds that the material
Appeals to prurient interest (community standard)
Depicts sexual conduct in a patently offensive way (community standard)
Lacks serious literary, artistic, political or scientific value (national standard)
define incitement
- Speech directed to incite imminent lawless action
- Likely to do so
what do you need for fighting words
Must be genuine likelihood of imminent violence
what do public/ private πs have to show for defamation
P is public figure or defamation involves public concern, then P must prove fault and falsity of statement
Private P must show negligence
test for commercial speech
o Must concern lawful activity and be neither false nor misleading
o Asserted government interest is substantial
o Asserted regulation directly advances that interest
o Regulation narrowly tailored to serve interest
what restriction on media does get strict scrutiny
Strict scrutiny for right to publish about matters of public concern
when can media publish illegally obtained info
o Matter of public concern and
o They didn’t know obtain it unlawfully or don’t know who did
levels of scrutiny for cable tv and internet
content based gets SS
when can you be denied public employment based on association
- Active member of subversive group
- Knows about group’s illegal activity
- Has specific intent to further those illegal goals
when can you criminalize membership in group
- Group is actively engaged in unlawful activity or is engaging in advocacy that passes the clear and present danger test and
- Defendant knows of and specifically intends to further this
what are ordinary voting rights that get RB
o Voter registration
o ID
o Write ins
what are fundamental voting rights that get SS
o Poll tax
o No 3rd party candidates
o Property ownership requirement
test for if gov can seize real property prior to notice and hearing
- private interest involved
-risk of erroneous deprivation/ value of safeguards
-gov’s interest
when can personal property be seized before notice and hearing
seizure involves significant gov interst
interest would be frustrated by advance notice and
seizure performed by gov
what restrictions on firearms are ok
unusually dangerous firearms (grenades)
imposing conditions and qualification on commercial sales
forbidding possession by felons and mentally ill and
prohibiting the open carry in certain areas or concealed carry in public
who can issue a writ of habeas corpus for person in federal custody
only a federal court
when can congress limit president’s ability to remove a federal officer
only for non partisan body with no executive power or
they lack policy making
can’t directly do this because of separation of powers. But can impeach
what is a federal officer
someone who i) holds continuing public office and ii) has significant discretionary authority to administer or enforce laws (executive powers)
pike balancing test for state laws that do not discriminate against other states
nondiscriminatory law will be upheld unless challenger shows law’s burden clearly exceeds its local benefits
what do courts consider when determining if activities have substantial effect on interstate commerce
i. if the activities are economic in nature –> if yes, substantial effect presumed
ii. regulation has a jurisdictional element that limits reach to activities with direct connection to interstate commerce
iii. express congressional findings on the effect
iv. strong link between activity and effect on interstate commerce
states can tax fed government affiliates like contractors unless
i. congress granted affiliate immunity
ii. tax is discriminatory
iii. tax substantially interferes with affiliate’s purpose or duteis
the 11th amendment prohibits individuals or foreign governments from suing a state in federal court except for when
when a civil right amendment is being enforced
