Con Law Flashcards
Article III exceptions clause
Gives Congress power to expand, regulate, or make exceptions to such jurisdiction
Adequate and independent state grounds (when it occurs and its effect)
(1) Adequate: state law completely resolves the matter, such that the application of federal law would not affect the outcome of the case
(2) Independent: the state court did not rely on federal law to decide the state-law issue
Effect: SCOTUS must refuse to hear the appeal
Standing
To have standing, the plaintiff must establish
- injury-in-fact: actual or imminent harm that is concrete and particularized
- causation: the injury is fairly traceable to the defendant’s challenged conduct
- Redressability: a favorable judicial decision will likely remedy or prevent the alleged injury
Article I necessary and proper clause
Gives Congress the power to enact laws that are reasonably appropriate to carry out the President’s express powers
Dormant Commerce Clause
Prohibits a state from discriminating against out-of-state commerce UNLESS
(1) if the state or local government can establish that an important local interest is being served, and
(2) no other nondiscriminatory means are available to achieve that purpose
Complete Auto test (applicability)
A state tax imposed on interstate commerce
Federal Equal Protection clause
Does not exist BUT SCOTUS has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause
Effect: subjects discrimination by the federal government to the same standards as discrimination by the states
Complete Auto Test requirements
- the activity taxed must have a substantial nexus to the taxing state
- the tax must be fairly apportioned
- the tax may not discriminate against interstate commerce, and
- the tax must be fairly related to the services provided by the state
Additional prohibitions on state tax of foreign commerce
State tax must not…
- create a substantial risk of international multiple taxation or
- prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues
What does it take for a governmental affirmative action program based on race to survive?
The relevant government entity
(1) must be guilty of specific past discrimination against the group it is seeking to favor
(2) the remedy must be narrowly tailored to end that discrimination and eliminate its effects
*Remedying general societal injustice through affirmative action is not a compelling state interest
Standard applicable to noncitizen’s participation in government functions
Only require rational relationship to a legitimate state interest
Government regulation of speech in nonpublic forum
Permissible as long as the regulation is
- viewpoint neutral
- reasonably related to a legitimate governmental interest
State regulation of content of speech
Permissible if the regulation is
- necessary to achieve a compelling government interest
- narrowly tailored to meet that interest
Categories of speech where content-based regulation is generally found constitutional
- obscenity
- subversive speech
- fighting words
- defamation
- commercial speech
Fighting words
Words that by their very nature are likely to incite an immediate breach of the peace
Subversive speech
speech that is directed to incite or produce imminent lawless action and that is likely to produce such action
Standard of review for commercial speech such as advertising
intermediate scrutiny, must be narrowly tailored to serve a substantial governmental interest (reasonable fit between the government’s ends and the means chosen to accomplish those ends)
Four-part test for reviewing commercial speech
- it must concern lawful activity and be neither false nor misleading
- the asserted government interest must be substantial
- the regulation must directly advance the asserted interest, and - the regulation must be narrowly tailored to serve that interest.
Different kinds of takings
- Taking ownership of private property and modifies it for a public purpose
- Giving a third party (e.g. a utility company) the right to occupy even a small space on the property
- Destruction of private property
- Regulatory taking
In what instance is the destruction of private property permitted?
When it is destroyed in response to a public peril
Regulatory taking
A government rule adversely affects a person’s property to such an extent that it rises to the level of a taking
Factors to consider re: regulatory taking into account
- Gravity of the economic impact
- Extent to which the regulation interferes the with owner’s reasonable investment- based expectation
- Character of the regulation (how much it will benefit society)
Two examples of a regulatory taking
- Permanent, physical occupation of property
- Permanent total loss of property’s economic value
Third-party standing examples
- Doctor raises the injuries of their patients
- School can raise the injuries of its students
- Bartender can raise the constitutional injuries of her customers
- Parent generally has standing to bring an action on behalf of her minor child
Requirements for an organization to be able to sue on behalf of its members
- Members would have standing to sue in their own right
- Interests at stake are germane/relevant to the organization’s purpose
