Con Law Flashcards
Elements of Standing
1 - injury in fact
2 - Causation
3 - Redressability
Eleventh Amendment limitations
Citizens of one state can’t sue another state. Citizens of own state can’t sue their own state
Exceptions
Consent
Injunctions against state official (not judges or clerks)
Personal suit against state officer, with damages paid by state officer
Congressional enforcement of civil war amendments
structural waivers in Const
Adequate and Independent State Grounds (AISG)
Prevents SCOTUS from hearing case if decided on
adequate - fully resolve matter
Independent - without reference to federal law
If unclear whether it was made without reference to federal law, SCOTUS can review to determine whether such grounds exist.
Standard for power to tax
rationally related to raising revenue
If direct - must be apportioned evenly among states
If indirect - must be uniform in every state
Taxpayer standing
(1) Litigate how much they owe on taxes
(2) challenge expenditures made by Congress’s power to tax and spend that violate Establishment Clause
Impeachment of President
(1) House of Reps votes by majority if “high crimes and misdemeanors”
(2) Senate convicts by super majority (2/3)
Ripeness vs Mootness
Ripe - fully developed, P suffers real injury
Moot - live controversy. Not moot if:
-capable of repetition yet evading review
-D voluntary ceases wrongful action (will only be voluntary if they could easily resume once case dismissed)
Requirements for a valid TPM restriction (public and designated public)
1 - content neutral
2 - narrowly tailored to serve significant state interest
3 - Leave alternate modes of communication open
Speech restrictions on non-public (or limited public) forums (e.g. military bases, prisons, public schools are limited public)
Must be (1) viewpoint neutral, and (2) reasonably related to legitimate government interest. Kind of like rational review
Commerce Clause can regulate which activities
(1) channels
(2) instrumentalities
(3) activities that have a substantial economic impact on interstate commerce (aggregate, presumed if economic in nature)
Cannot aggregate noneconomic things
Anti-Commandeering Doctrine
Federal congress cannot commandeer state legislatures by either forcing them to enact or enforce specific legislation, or prohibit them from enacting new laws.
BUT can use taxing and spending powers to incentivize state legislative action
Advisory Opinions
Court cannot review advisory opinions, must decide an actual case or controversy.
Asking for constitutionality or interpretation of law without an actual case not allowed.
SCOTUS original jurisdiction
(1) ambassadors
(2) public ministers and consuls
(3) case in which state is a party
CANNOT be modified by Congress
When can Congress regulate purely private conduct?
To eliminate badges and incidents of slavery (Thirteenth Amendment)
Expressive Conduct regulation requirements (think flag burning)
(1) - furthers important government interest
(2) - unrelated to suppression of ideas
(3) - burden on speech no greater than necessary
Prohibiting nudity is constitutional
Prohibiting flag burning is not
When can a state discriminate against out of state commerce?
(1) - Necessary to state interest and no other non-discriminatory alternative
(2) - State as Market Participant
(3) - Traditional government function exception (can favor state and local gov entities when performing a traditional gov function)
(4) - Subsidies
(5) - Federal/Congressional approval
Dormant Commerce Clause
Pre-req: Congress has not enacted legislation on particular area of interstate commerce.
THEN, states can regulate it as long as it does not:
1 - discriminate against out of state commerce (subject to strict scrutiny)
2 - facially non-discriminatory, but unduly burden interstate commerce (subject to clearly excessive review)
3 - purposely regulate wholly out of state activity
There are exceptions to discrimination against out of state commerce.
Presidential pardon power
only for federal offenses, not state
Fundamental rights for SDP
Right to travel (residency requirements for government benefits OK if reasonable, but not OK if they deny basic necessities)
Right to Vote
Right to privacy (family reside together, contraceptives, marriage, sexual relations, avoid disclosure of medical info, parental rights to control upbringing and education, obscene material, refuse medical treatment)
Federal Preemption
- Express
-Implied
——Conflict (indirect or direct)- impossible to comply with both state and federal
——-Field - rare, but if congress has occupied field so pervasively that state cannot regulate
State can pass MORE, but not LESS than federal
Pocket Veto
Congress adjourned within 10 day period following presentment. If President has not acted yet, then this is a pocket veto. Cannot be overridden
Are legislative vetos valid?
No, if the legislature reserves a right to disapprove of future execute actions, not allowed.
Suspect Classes for EQP
Race
Ethnicity
National origin
If state law, then Non-Citizens
Presidential immunity
Immune for civil liability for acts performed as part of official responsibilities.
NOT immune for acts committed before president or completely unrelated to carrying out the job
Intermediate Scrutiny - EQP
Gender - exceedingly persuasive justification. If separate facilities provided for men and women, then the facilities must be substantially equivalent.
Illegitimacy - almost always invalid though
Deprivation of Property as Job rules
If employee could only be fired for cause or terms of contract show they were entitled to more, then losing job can be a deprivation of property for PDP to kick in.
Even if at will, cannot be fired for unconstitutional reasons
When can Gov restrict speech on basis of content?
Obscenity
Incitement
Fighting words
Defamation
Commercial Speech
Presidential Veto process
Once presented, President has 10 days to veto. Must send it back to house in which it originated.
Congress can override veto with 2/3 vote in each house.
Strict Scrutiny
The law must be narrowly tailored to a compelling government interest
Narrowly tailored - least restrictive means
When can state tax instrumentalities of commerce?
If the instrumentality has
(1) - situs within the state
(2) - sufficient contacts with the state
Must be fairly apportioned
Strict Scrutiny - EQP
When either (1) suspect class, or (2) fundamental right
Rational basis
law is rationally related to a legitimate government interest
Intermediate Scrutiny
Law is substantially related to an important government interest
When can a third party have standing?
- special relationship (includes school and its students)
- third party is unable to assert its own rights
- disallowing would dilute third party’s rights
Section 1983 claims
Can sue to enforce constitutional rights
Proper Ds? Government employees at any level
Must show that the person was acting under color of state law
Political Questions
Not subject to judicial review when
(1) - Constitution assigns to another branch
(2) - matter is inherently one that the judiciary can’t decide
Congress right to enforce 14th amendment (in Section 5)
must be congruent and proportional between the injury to be prevented and the means adopted to achieve that end.
Cannot expand rights or create new ones
Delegation of legislative power
Congress may delegate power to agencies as long as it gives an intelligible principle to guide decision making
Limitation on conditional spending
(1) must be for general welfare
(2) condition must be unambiguous
(3)condition must be related to the funds
(4) must not require states to violate constitution
(5) condition must not be coercive (the more money at stake the more likely it will be coercive)
Claim that it is commandeering state power is not valid if conditional spending
Full Faith and Credit Clause
out of state judgments must be given effect if:
-PJ and SMJ proper
-final judgment
-on the merits
Is negligence enough to trigger due process?
No, it must be intentional act
Mathews v. Eldridge factors - what process is due?
1- private interest affected
2- Risk of erroneous deprivation with current procedures
3 - cost of additional procedural safeguards
How to prove discrimination for EQP
Facial discrimination
Discriminatory in application
Discriminatory motive - if facially neutral, but had a discriminatory motive, invalid.
If only a disparate impact, then only rational basis
Regulatory Taking
Generally, regulation not a taking. But sometimes it can rise to this level
Per se taking - Regulation (1) involves physical possession of property or (2) results in a total loss of economic value
Partial taking - (1) economic impact, (2) private party’s investment expectation, and (3) character of regulation
Standard of review for Establishment Clause
historical practices and understandings are considered
Commercial Speech - four part test
Prelim for analysis: Commercial speech is only protected if it is lawful and not false or misleading (if it is then you can totally restrict). If it is lawful and not false, then any regulation must meet the following:
-government interest must be substantial
-law must directly advance asserted interest
-must be a reasonable fit between means and end
Privileges and Immunities clause (difference between Article IV and Fourteenth Am)
Article IV - state discriminates against citizens of OTHER states (N/A to corporations). Subject to substantial justification analysis. Cannot discriminate based on fundamental rights, but can discriminate based on recreational hunting/fishing license
Fourteenth - state interferes with is OWN citizen’s rights, but only with issues of national citizenship (very limited)
When will a private party be treated as a state actor?
(1) - carrying out an activity traditionally performed by government
(2) - Intwined with state actor (joint-venture)
What is an exaction?
Local government can exact promises from developer in exchange for permits subject to some relevance limitations.
Requires (1) essential nexus and (2) rough proportionality
Incitement vs. Fighting Words
Incitement - advocates for use of force or unlawful action that is (1) imminent, and (2) likely to cause such action (among a group of friends, a mob)
Fighting Words - by their very nature, they are likely to incite immediate breach of peace (between two opposing parties)
Obscenity
average person in contemporary community finds the speech
(1) appeals to prurient interest
(2) Depicts sexual conduct in a patently offensive way
(3) lack serious literary, artistic, political, or scientific value.
Ex-post facto laws
Prohibits government from passing CRIMINAL laws that have retroactive effect.
Only applies to Civil violations if the retroactive effect is so punitive that it overrides non-punitive purpose
If retroactive civil application, it is given rational basis review
Citizenship as a suspect class
Only when state discrimination.
With federal discrimination, it is allowed and only subject to rational review
Freedom of the press
prohibits the government from restricting publishing lawfully obtained, truthful information regarding matter of public concern.
Regulation must survive strict scrutiny.
Can states prohibit felons from voting in state elections?
Yes, under Section 2 of Fourteenth Amendment
Tariffs vs. Export tax
Congress CAN impose tariffs (imports)
Congress CANNOT impose an export tax
Exclusive President Power
Nominate principal officers
veto bills
prosecute/pardon federal offenses
recognize foreign governments
enter executive agreements
States Taxing Federal Government
Direct - CANNOT do it unless congress authorizes
Indirect - can tax affiliates of government like employees on income tax, or contractors
Standard of review for electoral regulations
If non-discriminatory and reasonably - rational basis
If discriminatory or severe - strict
SCOTUS appellate jurisdiction
(1) decisions by lower federal courts
(2) decisions by highest state courts if based on federal law
CAN be modified by Congress - Article III Exceptions Clause
One person, one vote
Congressional elections - Article I, S 2- district needs to be almost exact 3% or less
State or local - EQP, 10% or less
Free Speech rights of government employee
Restricted if it is speaking pursuant to official duties.
If it is spoken as a private citizen on a matter of public concern, then balance the interests.
Presidential Appointment and Removal Powers
President appoints, upon advice and consent of Senate, PRINCIPAL OFFICERS and Justices of SCOTUS.
President can appoint INFERIOR OFFICERS, Heads of executive committees, or courts, without Senate consent
Can generally remove principal officers without cause. Congress can impose for cause requirements on other officers. But cannot shield from removal with multiple officers.
Legislative Immunity
No liability for statements made in regular course of legislative process
welfare vs disability
welfare- pre-termination notice and hearing
disability - OK for post-termination hearing
Abstention Doctrines
Pullman = unsettled law
Younger = Pending Criminal Case
Burford = Complex state regulatory scheme
Colorado River = Simultaneous state/federal cases
Federal Property Clause
Allows Congress to dispose of property and make all necessary rules and regulations regarding U.S. property.
Power to dispose for ANY reason
Can only take for public use with just compensation
Treaties - what is the deal
President has sole power to negotiate treaties. Can only be ratified by 2/3 vote in senate
Self-executing treaty is not federal law for purpose of supremacy clause.
