Con Law Flashcards
Federal Courts empowered to decide
CC
Federal Courts empowered to decide (CC, Cases, Controversies)
cases and controversies
Federal Court Jurisdiction limited to certain categories of cases or controversies, including
QDR
Jurisdiction limited to certain categories of cases or controversies, including (QDR, Question, Diversity, Review):
Federal Question Jurisdiction - the power to decide cases that arise under Federal Law
Diversity Jurisdiction - the power to decide disputes between citizens of different states
Federal Courts also exercise power of judicial review
Empowered to strike down statutes and acts of executive officials as unconstitutional
Marbury v. Madison - federal courts have the power to “say what the law is”
11th Amendment and state sovereign immunity
General State Sovereign Immunity Rule
MCA
11th Amendment and state sovereign immunity
General State Sovereign Immunity Rule (MCA, Money, Consent, Abrogate):
Cannot sue any state for money damages in federal court unless:
State consents to the suit; or
Congress chose to abrogate that sovereign immunity through an enumerated power
11th Amendment prohibition breakdown
AVO
11th Amendment prohibition breakdown (AVO, Another, Violating, Own):
Citizens of one state suing another state in federal court
Suits in federal court against state officials for violating state law; and
Citizens suing their own state in federal court
11th Amendment does not protect against injunctions or individual state officers, but federal courts cannot enjoin…
SLC
Limitations: protects only states and state agencies
Does not protect local governments
On the bar exam, if the defendant is a county or city, state sovereign immunity and the Eleventh Amendment do not apply
Does not protect individual state officers
Extends only to suits for money damages
Ex Parte Young: Can seek injunctive relief against state officers, but federal courts cannot enjoin (SLC, State Courts, Law Clerks)
state courts or state law clerks
A plaintiff can only seek money damages from a state officer by suing the state officer in his or her personal capacity. Damages from the state treasury are barred
11th Amendment - Congress can abrogate state sovereign immunity to enforce certain individual rights under the 14th Amendment when…
CWA
Congress can abrogate state sovereign immunity to enforce certain individual rights under the 14th Amendment (CWA, Clear, War, Article)
Congress intent to abrogate immunity must be clear
Must be exercising power under the Civil War Amendments: 13th, 14th, or 15th Amendments
Cannot abrogate state immunity by exercising power under Article I
11th Amendment exception by state consent, which extends to (according to SCOTUS)…
OBAP
States can consent to suit
The U.S. government is permitted to bring suits against the states because state consent is implied by the states ratifying the Constitution
The U.S. Supreme Court has also held that this implied consent allows (OBAP, Other, Bankruptcy, Approved, Powers):
Actions brought by other state governments
Bankruptcy proceedings that impact state finances
Federally approved condemnation proceedings brought by private parties, AND
Actions by private parties against a state pursuant to a federal statute enacted pursuant to Congress’s war and defense powers
The 11th Amendment does not bar
LGB
The 11th Amendment does not bar (LGB, Local, Government, Bankruptcy):
Actions against local municipalities
Actions by the United States government or other state governments
Bankruptcy proceedings that impact state finances
US Constitution - Article I
Legislative Branch
US Constitution - Article II
Executive Branch
US Constitution - Article III
Judicial Branch
US Constitution - Article IV
Full Faith and Credit
and
Privileges and Immunities
US Constitution - Article V
Making Amendments to the Constitution
US Constitution - 1st Amendment
Establishment Clause
Freedom of Religion
Freedom of Speech
Freedom of Press
Freedom of Assembly
Freedom to Petition Gov’t
US Constitution - 2d Amendment
Right to bear arms
US Constitution - 4th Amendment
Right to be free from unreasonable searches and seizures
US Constitution - 5th Amendment
Takings Clause
Grand Jury
Double Jeopardy
Protection Against Self-Incrimination
Due Process
US Constitution - 6th Amendment
Right to a speedy & public trial
Right to an impartial jury in criminal cases
Right to confront witnesses
Right to counsel
US Constitution - 7th Amendment
Right to jury in civil cases
US Constitution - 8th Amendment
Protection against excessive bail
Protection against cruel and unusual punishment
US Constitution - 10th Amendment
Powers not delegated to the US government are reserved to the state governments
US Constitution - 11th Amendment
Sovereign immunities of the states
US Constitution - 13th Amendment
Abolition of slavery
Protection against discriminatory private action (incidents and badges of servitude)
US Constitution - 14th Amendment
Due Process extended to states
Privileges and Immunities extended to states
Equal Protection
Citizenship bestowed upon all persons born and naturalized in US
US Constitution - 15th Amendment
Right to vote for all men, regardless of race or previous conditions of servitude
US Constitution - 19th Amendment
Right to vote for all genders
SCOTUS Original Jurisdiction
AMCS
The United States Supreme Court
Original Jurisdiction
Allows limited cases to be filed directly to U.S. Supreme Court
Typically limited to disputes between states
Cases where Supreme Court has original jurisdiction (AMCS, Ambassadors, Ministers, Consuls, State)
All cases affecting ambassadors
Other public ministers and consuls
Those in which a state is a party
Adequate and Independent State Grounds (AISG)
Regularly tested on MBE
AISG is relevant only if the case
SWD
Adequate and Independent State Grounds (AISG)
Regularly tested on MBE
AISG is relevant only if the case (SWD, Supreme, Writ, Decided):
Is in U.S. Supreme Court;
Arises through a writ of certiorari; and
Has already been decided by a state Court
Adequate: state law controls decisions, regardless of how the federal issue would be decided
Independent: State court’s ruling does not depend on an interpretation of federal law
U.S. Constitution sets floor, not ceiling, for individual rights
States can always create additional rights
Constitutional Elements to Standing
RCI
Constitutional Elements to Standing (RCI, Redressability, Causation, Injury)
Injury in fact
Must be concrete - i.e. either actual or imminent
Must be particularized (not abstract) - i.e., it cannot be common to all members of the public
Need not be economic or monetary
Taxpayer standing
OE
Taxpayer standing (OE, Own, Establishment)
Taxpayers have standing to challenge their own tax assessment (i.e. that their tax is too much)
No taxpayer standing to challenge government expenditures
Narrow exception: Any federal taxpayer has standing to challenge government expenditures that potentially violate the Establishment Clause (religious expenditure)
Organizational standing
An organization may sue on behalf of its members if
MG
Organizational standing
An organization may sue on behalf of its members if (MG, Members, Germane):
The members would have standing to sue in their own right, AND
The interests at stake are germane to the organization’s purpose
Third Party Standing
Generally not permitted
Some exceptions apply for unique relationships between the third party and the person whose rights they are raising
Third Party Standing examples
DSBP
Third Party Standing
Generally not permitted
Some exceptions apply for unique relationships between the third party and the person whose rights they are raising
Third Party Standing examples (DSBP, Doctor, School, Bartender, Parent):
A doctor can raise the injuries of her patients
A school can raise the injuries of its students
A bartender can raise the constitutional injuries of her customers
A parent generally has standing to bring an action on behalf of her minor child (but may be limited to custodial parents)
Political Question Doctrine
Does not simply refer to a politically divisive legal issue
A political question arises when
BD
Political Question Doctrine
Does not simply refer to a politically divisive legal issue
A political question arises when (BD, Branch, Discretion):
The Constitution assigns decision making authority on this subject to a different branch of government; or
The matter depends on that person’s discretion such that there is no law for the judge to apply
Examples of political questions include:
How Congress uses its impeachment power
President’s power to negotiate a treaty
Political questions are non-justiciable
Abstention Doctrines
Abstention Doctrines are all about federalism - respecting state courts
Federal courts may abstain from deciding claims when there are strong state interests at stake
There are four kinds of abstention doctrine
PU YP BR CS
Abstention Doctrines
Abstention Doctrines are all about federalism - respecting state courts
Federal courts may abstain from deciding claims when there are strong state interests at stake
There are four kinds of abstention doctrine (PU YP BR CS, Pullman Unsettled, Younger Pending, Burford Regulatory, Colorado Similar):
Pullman abstention: may abstain because there is unsettled state law
Younger abstention: may abstain for pending state criminal cases (unless obviously unconstitutional)
Burford abstention: may abstain if parties are seeking injunctive relief that would interfere with a complex state regulatory scheme
Colorado River abstention: may abstain if case is substantially similar to another case being heard in state court
May not abstain from a case just to avoid hearing the case
Watch for specific facts that may trigger each type of abstention
The following powers rarely or never give Congress authority to pass a law
WPN
The following powers rarely or never give Congress authority to pass a law (WPN, Welfare, Police, Necessary)
The General Welfare Clause
Congress has no general power to legislate for general welfare
However, the General Welfare Clause does permit Congress to exercise its power to tax and spend for any public purpose, including general welfare
Police Power
Only states have general police power to enact laws to protect its citizens
Congress cannot commandeer state legislatures by forcing states to adopt or enforce federal regulatory programs
Necessary and Proper Clause
An important power of Congress, but not a freestanding power
Must be used in addition to another legislative power
Congress’s Authority
CTS
Congress’s Authority (CTS, Commerce, Taxing, Spending)
Commerce Clause (greatest source of power, usually the right answer on the bar)
Taxing Clause
Spending Clause
The Commerce Clause
The most robust power Congress enjoys is its power to regulate commerce
Empowers Congress to “regulate Commerce with the foreign Nations, and among the several States and with the Indian tribes”
Almost anything can be regulated as interstate commerce
Can regulate three forms of activities
BIC
The Commerce Clause
The most robust power Congress enjoys is its power to regulate commerce
Empowers Congress to “regulate Commerce with the foreign Nations, and among the several States and with the Indian tribes”
Almost anything can be regulated as interstate commerce
Can regulate three forms of activities (BIC, Behavior, Instrumentalities, Channels):
Channels of interstate commerce
Instrumentalities of interstate commerce
Any behavior that has a substantial economic effect on interstate commerce
Behaviors can be judged in the aggregate - i.e., you accumulate individuals to make one big one
Congress only needs a rational basis to conclude that the total incidence of the activity in the aggregate substantially affects interstate commerce
If a behavior is economic in nature, a substantial effect on interstate commerce is presumed
Rational Basis = a law meets the rational basis standard of review if it is rationally related to a legitimate state interest
This test generally results in the law being upheld
under the Spending Clause, Congress cannot
UAC
under the Spending Clause, Congress cannot (UAC, Unconstitutional, Ambiguous, Coerce):
Impose unconstitutional conditions
Enforce conditions that are ambiguous or not related to the program
Coerce state behavior with its spending conditions
Private Action can be regulated by Congress under the 13th Amendment when
REBI
Private Action can be regulated by Congress under the 13th Amendment when (REBI, Rationally, Eliminating, Badges, Incidents):
Congress adopts legislation rationally related to
Eliminating racial discrimination, aka
“Badges or incidents” of slavery
14th Amendment - Section 5 Gives Congress power to “enforce these provisions by appropriate legislation”
Congress can enforce these individual rights as the courts have defined them, but cannot expand them
The Congruence and Proportionality Test
RFRM
Section 5 Gives Congress power to “enforce these provisions by appropriate legislation”
Congress can enforce these individual rights as the courts have defined them, but cannot expand them
The Congruence and Proportionality Test (RFRM, Reasonable Fit, Right, Means):
Requires a reasonable fit between the constitutional right defined by the courts and the means of enforcement
If the enforcement is so broad it effectively expands the right, the enforcement is unconstitutional under Section 5
In Smith, if there is a neutral, generally applicable laws that happen to burden religious conduct are constitutional. Because a law criminalization the use of peyote was not targeted at the members of a Native American church who used peyote in religious ceremonies, the law was not a 5th Amendment violation.
Subsequently, Congress passed the Religious Freedom Restoration Act (RFRA) which gave religious believers an accommodation from otherwise valid laws. SCOTUS struct down RFRA as exceeding Congress’s Section 5 power because it effectively created a new right rather than enforcing an existing right.
Other Congressional Powers
PONCEN PWN
Other Congressional Powers (PONCEN PWN, Post Office, Non-Citizens, Elections, Necessary Proper, War, Naturalization)
Power to declare war, raise an army and navy, and regulate the armed forces
Exclusive power to establish a post office
Plenary power over non-citizens
Exclusive power over the naturalization process
Power over Federal Elections under Article I, Section 4
Power to enact any legislation necessary and proper to execute an enumerated power
NOT a freestanding power. Rarely a correct answer on the bar exam unless it is carrying into effect a separate enumerated power
Presidential Veto Power
After bill passes both houses of Congress (i.e. bicameralism), bill must be presented to the President for signature
The President then has 10 days to:
Sign the bill (making it a law); OR
Veto the bill (rejecting the bill and sending it back to the originating house
Need not give a reason for the veto
Cannot veto some parts of legislation and not others
This is called a line-item veto and SCOTUS has ruled this as unconstitutional
Congress may override veto with a supermajority (i.e. 2/3 vote in each house)
Pocket Veto
If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden
Presidential Power over Foreign Affairs
Commander in Chief Power
President is commander in chief of the military
But Congress has the power to declare war
Chief Diplomat Power
President has the power to negotiate treaties
Treaties must be ratified by a supermajority of the Senate to have force of law
Supermajority is a 2/3 vote of the Senate
A treaty cannot conflict with the Constitution; if it does, the Constitution trumps the treaty
The President can also negotiate executive agreements (i.e. presidential agreements with other countries that do not require Senate approval)
Because these agreements do not become law, they do not bind a successor President
Federal Impoundment
Congress may pass a statute and give the President discretion to withhold the funds
If a statute requires that certain funds be spent on certain purposes, the President has no discretion to withhold (impound) the money
There is only a separation of powers violation if the President fails to spend the money when Congress has mandated that the funds are to be allocated in a certain way
Executive Immunities
The President is immune from civil liability for official acts, but not immune for acts done:
In the President’s private capacity; or
Before becoming President
Breakdown
The president may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities
The president has no immunity for civil actions based on conduct that occurred before the president took office or completely unrelated to carrying out the job
Judicial Immunity
Absolute immune for all judicial acts that could result in civil liability
May be liable for non-judicial acts (i.e. employment discrimination)
Legislative Immunity
Speech and Debate Clause protects federal legislators from liability for anything said in the course of the regular legislative process
Protected statements cannot be used as evidence against the legislator
Protection extends to Congressional aides if conduct would have been protected had it been performed by a legislator
Supremacy Clause
- Federal Law preempts State Law when
CECP
Federal Law preempts State Law when (CECP, Constitution Exclusive, Congress Prohibits):
The Constitution makes federal power exclusive (such as the powers to coin money or declare war), OR
When Congress has enacted legislation that explicitly prohibits state regulation in the same area
Dormant Commerce Clause (DCC)
Limits the power of states to legislate in ways that impact interstate commerce
Generally, states cannot enact legislation that discriminates against out-of-state commerce, except when
F SNAP
Dormant Commerce Clause (DCC)
Limits the power of states to legislate in ways that impact interstate commerce
Generally, states cannot enact legislation that discriminates against out-of-state commerce, except when (F SNAP, Function, Subsidies, Necessary, Approval, Participant)
Necessary to important state interest and no other nondiscriminatory means are available
State is acting as a market participant
Traditional government function
Subsidies
Federal/Congressional Approval
The DCC issues only arise when:
States are acting in ways that disadvantage each other AND
Congress is silent
Implied because Congress has the power to regulate commerce among the states
A state can impose a nondiscriminatory tax on interstate commerce when
NAR
A state can impose a nondiscriminatory tax on interstate commerce when (NAR, Nexus, Apportionment, Related):
There is a substantial nexus between the taxing state and the property or activity to be taxed
There must be fair apportionment of tax liability among the states; AND
The tax must be fairly related to the services provided by the taxing state
A state can tax the instrumentalities of commerce when
SWAT
A state can tax the instrumentalities of commerce when (SWAT, Situs Within, Apportioned Time):
The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and
The tax is fairly apportioned to the amount of time the instrumentality is in the state
Dormant Commerce Clause
DCC Basic Rule: If Congress has not enacted legislation on a particular area of interstate commerce, then the states can regulate it as long as they do not
DBR
DCC Basic Rule: If Congress has not enacted legislation on a particular area of interstate commerce, then the states can regulate it as long as they do not (DBR, Discriminate, Burden, Regulate):
Discriminate against out-of-state commerce
Unduly burden interstate commerce, OR
Purposely regulate whole out-of-state activity
State Discrimination Against Out-of-State Commerce
Includes state or local laws that protect local economic interests at the expense of out-of-state competitors
A discriminatory state law will survive if one of several exceptions applies, including if
NPC
Discrimination Against Out-of-State Commerce
Includes state or local laws that protect local economic interests at the expense of out-of-state competitors
A discriminatory state law will survive if one of several exceptions applies, including if (NPC, Necessary, Participant, Congress):
It is necessary to serve an important state interest;
The state is acting as a market participant; or
Congress authorizes a state regulation of commerce
Federal Preemption
ECF
Federal Preemption (ECF, Express, Conflict, Field)
Express Preemption
Applies when Congress explicitly says that state regulation in an area is preempted by federal law
Not triggered by merely regulating the same activity
Conflict Preemption
Applies when it is impossible to comply with federal and state law at the same time
Field Preemption
Rare form of preemption
Applies when federal regulation is so thick that we imply that Congress has determined there cannot be a concurrent state law in an area (i.e., Congress has occupied the field)
The state action (that gives rise to Constituional protection) requirement is also satisfied by the following situations
TEA
The state action requirement is also satisfied by the following situations (TEA, Traditional, Entanglement, Affirmatively):
Private actor carrying out a traditional government function
When a private person or company carries on activities that are traditionally performed exclusively by the state, state action exists
Merely providing a product or service that the government could offer is insufficient (e.g., schools)
State entanglement of private actors
State action may exist if there are sufficient mutually beneficial contacts between the conduct of the private party and the state
Must be so intertwined that it is hard to see where the private action ends and the state action begins
Just having a license from the state is not enough
Look for joint ventures or situations where the government has management authority or is making money off the private conduct
State affirmatively approves of private action
State action exists if a state has facilitated or endorsed private behavior
Must affirmatively facilitate the conduct, not just passively approve
Property (Due Process Protection)
A cognizable property interest requires a
LEV SCoC
Property (Due Process Protection)
A cognizable property interest requires a (LEV SCoC, Legitimate, Entitlement, Virtue, Statute, Contract, Custom)
Legitimate claim of
Entitlement to the property interest by
Virtue of a
Statute,
Contract, OR
Custom
The Process Due
To decide what process is due (e.g. hearing, notice, statement of reasons) under the Mathews v. Eldridge balance test, a court will weigh
IS VP GE
The Process Due
To decide what process is due (e.g. hearing, notice, statement of reasons) under the Mathews v. Eldridge balance test, a court will weigh (IS VP GE, Interest Stake, Value Procedure, Government’s Efficiency):
Individual interest at stake
Value of the procedure that is protecting that interest; and
Government’s interest in efficiency (i.e., cost to provide process)
Generally, person whose interest is being deprived is entitled to Procedural Due Process in the form of
NH
Generally, person whose interest is being deprived is entitled to Procedural Due Process in the form of (NH, Notice, Hearing):
Notice of the government’s action by unbiased decision maker; and
An opportunity to be heard
Notice must be reasonably calculated under the circumstances to apprise interested parties of the pendency of the action with enough time to present objections
Timing of hearing varies between post-deprivation hearing and pre-deprivation hearing. For example…
Termination of welfare benefits requires a hearing before the benefits are taken away
Termination of disability benefits do not require a hearing before the benefits are taken away, so long as the hearing occurs promptly after the termination and retroactive relief is possible if appropriate
Public employees who can be fired only for cause (e.g. tenured professor or police officer) must be given hearing before discharge unless there is significant reason not to keep them
Substantive Due Process is the idea that laws should
RAFP
Substantive Due Process is the idea that laws should (RAFP, Reasonable, [not] Arbitrary, Freedom, Possible)
Be reasonable and not arbitrary; and
Protect individual freedom to the extent possible
Standards of Review
SSRI
Standards of Review (SSRI, Strict Scrutiny, Rationality, Intermediate)
Standards of review determine the amount of deference owed to a prior decision maker
Strict Scrutiny
Least deferential standard of review
Strict Scrutiny definition - the law must be the (LeaR MACoI, think “Real McCoy”):
Least
Restrictive
Means
To achieve a
Compelling
Government Interest
The government must show that the challenged law is (NCL, Necessary, Compelling, Least)
Necessary to meet a
Compelling government interest
Using the least restrictive means to do so
Compelling interests: include national security, preserving public health, or remedying past discrimination
Necessary: must be the least restrictive means to achieve the government’s purpose
Sometimes, this is also called the “narrowly tailored” prong
Intermediate Scrutiny
Between strict scrutiny and rationality review
The government must show the law is (SI, Substantially, Important)
substantially related
To an important government interest
Rationality Review
Most deferential standard of review
Rationality review places the burden on the challenger, not the government
A challenger must show that the law is not (RL, Related, Legitimate)
Rationally related
To a legitimate state interest
Legitimate interests: include redistributing wealth, protecting scalp safety, keeping highways safe
Rationally related: the fit of the law to these interests can be loose
Not satisfied by irrational laws animated by prejudice or animus towards a particular group
Strict Scrutiny definition - the law must be the
LeaR MACoI
Strict Scrutiny definition - the law must be the (LeaR MACoI, think “Real McCoy”):
Least
Restrictive
Means
To achieve a
Compelling
Government Interest
Strict Scrutiny requires that The government must show that the challenged law is
NCL
The government must show that the challenged law is (NCL, Necessary, Compelling, Least)
Necessary to meet a
Compelling government interest
Using the least restrictive means to do so
Intermediate Scrutiny
Between strict scrutiny and rationality review
The government must show the law is
SI
Intermediate Scrutiny
Between strict scrutiny and rationality review
The government must show the law is (SI, Substantially, Important)
substantially related
To an important government interest
Rationality Review
Most deferential standard of review
Rationality review places the burden on the challenger, not the government
A challenger must show that the law is not
RL
Rationality Review
Most deferential standard of review
Rationality review places the burden on the challenger, not the government
A challenger must show that the law is not (RL, Related, Legitimate)
Rationally related
To a legitimate state interest
Legitimate interests: include redistributing wealth, protecting scalp safety, keeping highways safe
Rationally related: the fit of the law to these interests can be loose
Not satisfied by irrational laws animated by prejudice or animus towards a particular group
All a plaintiff needs to show for the court to apply intermediate or strict scrutiny is
D FAM
All a plaintiff needs to show for the court to apply intermediate or strict scrutiny is (D FAM, Discriminatory, Facially, Applied, Motive):
Discriminatory intent, either
Facially
As Applied or
By Motive
Substantive Due Process Fundamental Rights
A violation of any of these rights gives rise to a strict scrutiny review
TVPB
A violation of any of these rights gives rise to a strict scrutiny review
Right to Travel
Right to Vote
Right to Privacy
Right to Bear Arms
Identifying Substantive Due Process
Arises out of the word “liberty” in the 14th Amendment
Substantive due process and the Equal Protection Clause overlap, but substantive due process claims do not require a comparative judgment
Right to Travel
Includes right to travel from state to state or settle in another state
States may impose reasonable residency restrictions before new residents are eligible for benefits
Typically 30-90 days
One year is too long for everything except
TD
Right to Travel
Includes right to travel from state to state or settle in another state
States may impose reasonable residency restrictions before new residents are eligible for benefits
Typically 30-90 days
One year is too long for everything except (TD, Tuition, Divorce):
In-state tuition; and
Jurisdiction to issue a divorce
Durational residence requirements cannot deny newcomers the basic necessities of life
Although there is also a right to travel internationally, it is not a fundamental right invoking strict scrutiny
Right to Privacy
Collection of several related rights that all have to do with family and procreation
I CAMP
Right to Privacy
Collection of several related rights that all have to do with family and procreation (I CAMP, Intimate, Contraception, Abortion, Marry, Parental)
Right to marry
Fundamental right
State bans same-sex marriage and interracial marriage are unconstitutional
States can still regulate this right (e.g. require proof that two people who want to marry are not related), but must meet strict scrutiny to do so
Right to contraception
Fundamental right of everyone to purchase contraceptives
Right to intimate association
Lawrence v. Texas held that we have a right to choose our intimate partners
Not explicitly held to be fundamental right, but government has no legitimate interest in regulating noncommercial sexual intimacy between consenting adults
Separate fundamental right recognized to read obscene material in the privacy of one’s own home
Parental Rights
Parents have a fundamental right to raise their children as they see fit, including the right to choose:
Whether to send kids to private school
To educate children in a language other than English
Parents have the right to live with their children unless there is a finding of abuse or neglect
Abortion rights
In Dobbs, the U.S. Supreme Court overturned Roe v. Wade and held that access to abortion is not a fundamental right
States can regulate or prohibit abortion outright, subject only to rationality review
Strict Scrutiny under Equal Protection Clause
REO S
Strict Scrutiny (REO S, Race, Ethnicity, Origin, Status)
Applies to suspect classifications of race, ethnicity, or national origin; and when a state law is at issue, the added strict scrutiny classification is citizenship status
Government decisions based on these classifications are automatically suspect and will be aggressively reviewed by the courts
The two triggers for a state action invoking strict scrutiny are when the state action involves a
FS
The two triggers for a state action invoking strict scrutiny are when the state action involves a (FS, Fundamental, Suspect):
Fundamental Right OR
Suspect Classification
Racial Classifications - Proving discriminatory purpose
FCS
Proving discriminatory purpose (FCS, Face, Context, Statistics)
Face of the law - i.e. explicit mention of race in the law
Context or history - i.e. legislative history or a context behind the law
Statistics - i.e., law is neutral on its face, but applied in a discriminatory fashion such that the results are so dramatic that the only explanation can be a racial purpose
Non-Suspect Classes Examples, that give rise to only a Rationality Review
Age
Poverty
Sexual Orientation
Laws that burden members of LGBTQ community get “rationality review with teeth”
Takings Clause
Comes from 5th Amendment
The government has the power to
PPC
Takings Clause
Comes from 5th Amendment
The government has the power to (PPC, Private, Public, Compensation)
Take private property for public purposes so long as it pays just compensation
Definitions
Private property = land, tangible property, and intangible property (e.g., patent rights and trade secrets)
Public use = any conceivable public purpose
The need for the private land only has to be rationally related to that purpose
The government may take private property and resell it to another
Just Compensation = fair market value at the time of the taking
Types of Takings
Takings include:
Taking ownership of private property and modifying it for a public purpose
Giving a third party the right to occupy even a small space on the property
Destruction of private property
But permitted to destroy private property in response to a public peril
Compensation not necessarily owed when destruction is in response to public peril
Taking vs. Regulation
If the government merely regulates property (e.g., zoning regulation), just compensation is not required
Zoning regulations are not takings unless the zoning law is so thorough that there is no economically viable use for the property
If the government physically occupies private owner’s property, then that is a taking
Economic impact on the property is not necessary a taking
Regulatory Taking
A government rule adversely affects a person’s property to such an extent that it rises to the level of a taking
To Determine if it is a Regulatory Taking, Courts consider (CIG, Character, Investment, Gravity):
Gravity of the economic impact
Extent to which the regulation interferes with the owner’s reasonable investment-based expectations; and
Character of the regulation - i.e. how much it will benefit society
Permanent, physical occupation of property = taking
Permanent total loss of property’s economic value = taking
To Determine if it is a Regulatory Taking, Courts consider
CIG
To Determine if it is a Regulatory Taking, Courts consider (CIG, Character, Investment, Gravity):
Gravity of the economic impact
Extent to which the regulation interferes with the owner’s reasonable investment-based expectations; and
Character of the regulation - i.e. how much it will benefit society
Permanent, physical occupation of property = taking
Permanent total loss of property’s economic value = taking
Ex Post Facto Laws
Retroactive change to a criminal law are prohibited
Law will be struck down as being ex post facto if the law
CDPB
Ex Post Facto Laws
Retroactive change to a criminal law are prohibited
Law will be struck down as being ex post facto if the law (CDPB, Criminalizes, Defense, Penalty, Burden):
Criminalizes an act that was not a crime when originally committed;
Authorizes the imposition of more severe penalty after act was committed
Deprives the defendant of a defense that used to be available when crime was committed
Decreases prosecution’s burden of proof after crime was committed
Government property open for speech
TDL
Government property open for speech (TDL, Traditional, Designated, Limited):
Traditional public forums
Designated public forums
Nonpublic/limited public forums
Restrictions on Speech - Content-Neutral Restrictions
Requirements
Government may restrict protected speech in a public forum, aka the time, place, or manner of the speech, if the restriction
FANA
Content-Neutral Restrictions
Requirements
Government may restrict protected speech in a public forum, aka the time, place, or manner of the speech, if the restriction (FANA, Face Applied, Narrowly, Alternative):
Is neutral both on its face and as applied
Leaves open alternative channels of communication; and
Narrowly serves a significant state interest
These requirements only apply to public forums.
Regulations in nonpublic forums need only be (VL, Viewpoint, Legitimate):
Viewpoint-neutral and
Reasonably related to a legitimate governmental interest
Speech Regulations in nonpublic forums need only be
VL
Regulations in nonpublic forums need only be (VL, Viewpoint, Legitimate):
Viewpoint-neutral and
Reasonably related to a legitimate governmental interest
Speech Regulation - Expressive Conduct
Government can regulate expressive conduct as long as
PINU
Expressive Conduct
Government can regulate expressive conduct as long as (PINU, Power, Important, Necessary, Unrelated)
The regulation is within the government’s power to enact
Regulation in question furthers an important interest
Interest is unrelated to expression; and
The burden on expression must be no greater than necessary
If it seems like the government is trying to get an idea or trying to suppress the expression of a message, that is likely unconstitutional. If it seems like the government is trying to neutrally regulate conduct or the time, place, or manner of the speech, that is likely to be constitutional
The types of content that Congress can regulate are
IF DOC
Regulations on freedom of expression based on content are subject to STRICT SCRUTINY
The types of content that Congress can regulate are (IF DOC, Incitement, Fighting, Defamation, Obscenity, Commercial):
Obscenity
Incitement to violence
Fighting words
Defamation
Commercial speech
Obscenity
Rule of 4 S’s
SSSS
Obscenity
Rule of 4 S’s (Sex, Society, Standards, Serious)
Sex = must be erotic (i.e. appeal to the prurient interest); gore and violence are not legally obscene
Society sick = must be patently offensive to the average person in society
Standards = government must define obscenity clearly with precise standards (i.e. not vague or overbroad)
Serious value = if material has serious artistic, scientific, or educational value, then it cannot be legally obscene
Child pornography is unprotected speech and can be prohibited under all circumstances
But merely establishing the speech as pornography is insufficient to show obscenity
Material that appeals to the prurient interests of minors may be regulated as to the minors even if it would not be considered obscene to an adult audience
Undue Burden Balancing Test (nondiscriminatory state law) & Pike Balancing Test
When states are impacting interstate commerce within the bounds of the Dormant Commerce Clause, they are not permitted to do so in a way that unduly burdens interstate commerce
When the law is nondiscriminatory against out-of-state citizens/commerce, use the PIKE BALANCING TEST: a nondiscriminatory law will be upheld unless the challenger shows that the law’s buden on interstate commerce clearly exceeds its local benefits
14th Amendment State Actor Requirement
Under the state-action doctrine, a private actor qualifies as a government actor when:
1) the private actor performs a traditional government function OR
2) the government is significantly involved in the private actor’s activities, including:
a) has a mutually beneficial relationship with the private actor (i.e. joint venture)
b) creates a nexus by affirmatively facilitating or authorizing private action (i.e. through a police officer acting under color of law), OR
c) is pervasively intertwined in the private actor’s management or control
Differences in application between the Equal Protection Clause v. Due Process v. Privileges and Immunities Clause
Equal Protection: applies to discriminatory treatment of similarly situated people
Substantive Due Process: applies to deprivation of life, liberty, or property without adequate JUSTIFICATION
Procedural Due Process: applies to deprivation of life, liberty, or property without adequate PROCESS
Privileges & Immunities: applies to interferences with rights of national citizenship
Rational Basis Test (Default Standard of Review) For Equal Protection Challenges
RRLI
RRLI
Rationally Related Legitimate Interest
Burden is on the CHALLENGER to prove:
Law is not rationally related to
Legitimate state interest
Intermediate Scrutiny - when does it apply under Equal Protection, and what must party prove?
QS / SRII
QS / SRII
Quasi Suspect / Substantially Related Important Interest
Quasi-Suspect Classes:
1. Sex/Gender
2. Legitimacy (child of married couple)
Intermediate Scrutiny is applied when a QUASI-SUSPECT class is allegedly impacted uneqally
To uphold law, the burden is on the STATE to prove
1. Law is substantially related to
2. An important state interest
Strict Scrutiny - When does it apply under Equal Protection and what must party prove?
SC or FR / NNCI
SC or FR / NNCI
Suspect Class or Fundamental Right / Necessary Narrowly Compelling Interest
Strict Scrutiny is applied when a law unequally impacts a Suspect Class or a Fundamental Right
Suspect Classes:
1. Ethnicity
2. Citizenship
3. Race
4. Nationality
Fundamental Rights:
1. Voting
2. Interstate Travel
3. Privacy
4. First Amendment Right
To uphold the law, the burden is on the STATE to prove:
1. Law is necessary and narrowly tailored to achieve
2. A compelling state interest
Is a regulation that attaches time, place, and manner limitations on only fliers for upcoming events and not other types of fliers such as political fliers content-neutral or content-based?
CONTENT-BASED.
Because only one type of speech (upcoming events) are targeted, this is content-based and therefore subject to strict scrutiny.
Strict scrutiny will require that the state prove that the restriction is NECESSARY and NARROWLY TAILORED to achieve a COMPELLING governmental INTEREST
Is choice of school considered a fundamental right?
The fundamental right to privacy includes PARENTS’ RIGHT TO CONTROL THEIR CHILDREN’S UPBRINGING AND EDUCATION. This fundamental right is part of substantive due process.
Which constitutional clause and standard of review is appropriate for a law that is purported to discriminate against truck drivers by regulating their on-the-job conduct?
Substantive Due Process of the 14th Amendment
Because a law that regulates truck drivers’ on-the-job conduct does not impact a fundamental right (1st Amendment, Voting, Interstate Travel, Privacy), and because truck drivers are not a suspect or quasi-suspect class, only a rational basis review is required.
Rational Basis Review: CHALLENGER (truck drivers) must show that the law has no rational relation to any legitimate interest.
Under the Equal Protection Clause, under what standard of review should a law be challenged that unintentionally impacts disabled persons?
RATIONAL BASIS TEST.
Disabled persons are not a suspect or quasi-suspect class, their is no requirement for a heightened level of review.
When is intermediate scrutiny applicable under the Equal Protection Clause?
When a law intentionally discriminates against a quasi-suspect class (gender/sex or legitimacy).
When is strict scrutiny applicable under the Equal Protection Clause?
When, under a law, either
A fundamental right is substantially impacted
OR
A suspect class is intentionally discriminated against
When can the government impose a time, place, or manner restriction in a public forum?
When the restriction is
Narrowly tailored to serve a
Substantial government interest
AND
Leaves open ample alternative channels of communication
When is a defendant NOT liable as an accomplice?
- The crime requires more than one participant
- The criminal statute imposes liability on only one participant
AND - The person acts as the nonliable participant
Is a person liable for embezzlement if the person intended from the very beginning to commit fraudulent conversion of the property?
NO. If a person obtains possession of property by fraud, they were not in LAWFUL possession of the property. The initial intent preempts the lawful possession, and therefore they did not commit embezzlement, but rather Larceny by Trick, which requires fraudulent acquisition of the property.
Can a defendant raise the defense of property when the defendant was not in possession of the property?
NO. Defense of property is only applicable when the defendant was in possession of the property when it was taken.
What is the constitutionality test for restriction of expression?
PIST
PIST
Power Important Suppression Tailored
A government regulation of expressive conduct will be upheld if:
1. The regulation is within the government’s power to enact
2. The regulation furthers an important government interest
3. The government interest is unrelated to the suppression of ideas
AND
4. The burden on speech is no greater than necessary (narrowly-tailored)
Does the a valid content-neutral time, place, and manner restriction require the shifting of speech from one time and place to another?
YES. This is inherent in the time, place, and manner test; the “narrowly-tailored” aspect of the permissible restriction of expression requires that the government still leave alternative channels for the speech. An apparent all-out ban is unconstitutional.
What requirements must Congress follow to enact conditional federal funding?
Art. I, Section 8 - Spending Clause
CRUC
CRUC
Clearly Reasonably Unconstitutional Coerce
Conditions on federal funding must meet the following criteria:
- Clearly stated & unambiguous
- Reasonably related to federal interest in funded program
- Do not require states to engage in unconstitutional activity
- Do not unduly coerce states into accepting
Imposing conditions for federal funding is a valid and constitutional way that Congress can encourage the enactment of policies that the federal government wants the states to follow, but the conditions are binding only if they are clearly stated and unambiguous.
What authority do the states have over congressional elections and what authority does Congress have over congressional elections?
Art. I, Section 4 - Elections Clause
State: The Elections Clause grants state legislatures the power to enact laws that regulate the time, place, and manner of congressional elections.
Congress: The Elections Clause grants Congress the power to override state laws that regulate congressional elections by replacing the state laws with federal law.
What is prior restraint and what is its constitutionality?
Prior restraint is censorship imposed, usually by the state or state actor, on expression that prohibits particular instances of expression.
Prior restraint is almost always unconstitutional, except in extremely limited instances such as when national security is jeopardized by publication.
Which branches of government can appoint federal officers and what are the limitations of these appointment powers?
Art. II, Section 2 - Appointments Clause
Principal Officers (such as ambassadors, SCOTUS justices, Cabinet officials) are appointed by the PRESIDENT with SENATE approval
Inferior Officers (such as independent counsel, judicial clerks, administrative law judges) are appointed by PRESIDENT with SENATE approval UNLESS…
Congress delegates appointment to:
1. President alone
2. Federal Courts, OR
3. Heads of executive departments
Once Congress has delegated to the President or other Executive agency certain rulemaking authority, what power does Congress have to interfere/intervene?
BP
BP
Bicameralism Presentment
Once Congress delegates some of its rulemaking power to the Executive branch, it cannot interfere with these functions of the Executive unless it follows the guidelines of legislative action:
1. Approved by both houses of Congress (bicameralism), AND
2. Presented to the President for approval or disapproval (presentment)
Which legislative powers are exclusive and thus cannot be delegated?
WIL
WIL
War Impeaching Laws
Exclusive legislative powers include:
1. Making/repealing laws
2. Declaring war
3. Impeaching federal officers
What must congressional delegation of powers include to satisfy the INTELLIGIBLE PRINCIPLE requirement?
SAP
SAP
Scope Agency Policy
When Congress delegates its INCIDENTAL legislative power to the Executive (or Judicial) branch, it must provide INTELLIGIBLE PRINCIPLE defining:
1. Policy it seeks to advance
2. Agency carrying out policy
3. Scope of agency’s authority
When is a discriminatory (favoring in-state vs. out-of-state interests) state law not deemed unconstitutional?
Art. I, Section 8 - Commerce Clause
ILNo ReNA
ILNo ReNA
Important Legitimate Noneconomic
Reasonable Nondiscriminatory Alternative
A discriminatory state law - i.e. one that favors in-state over out-of-state interests - will be deemed unconstitutional unless the state proves that:
1. The law furthers an important or legitimate noneconomic state interest (e.g. health, safety), AND
2. There is no reasonable, nondiscriminatory alternative to achieve that interest
Under the rational basis review, is a state authorized by Congress to circumvent the dormant commerce clause limitations permitted to promote in-state business by discriminating against out-of-state business?
NO.
Rational basis review requires that state action be rationally related to a legitimate government interest, and according to the Supreme Court, discriminating against out-of-state business to promote in-state business is not a legitimate government interest.
