Con Law Flashcards
Case or controversy
(1) standing
(2) ripeness
(3) mootness
(4) not a political question or advisory opinion
Standing
A party must have a concrete interest in the claim
(1) injury
(2) causation
(3) redressibility
third party standing
P may assert the rights of a third party where P has standing and either
- the injured third party is unlikely / unable to assert their rights, OR
- Injury has adversely affected P’s relationship with the third party
third party org standing
Org may sue on members’ behalf if:
- Injury to the members that would give members standing to sue individually;
- Injury is related to the organization’s purpose; and
- Neither claim nor relief requires participation of individual members
Ripeness
The dispute must be matured. Only applies to laws pre-enforcement if
(1) the issue is fit for judicial decision, and
(2) P would suffer substantial hardship in the absence of review
Depends on likelihood of enforcement
Mootness
Suffering from an on-going injury. Exceptions
- controversies capable of repetition by avoiding review
- Voluntary cessation by D that can resume them at any time
- class action where at least one claim is viable
11th Amendment - Sovereign immunity
Bars suits against state govt in fed court unless
(1) the state waives sovereign immunity or consents,
(2) the suit involves the enforcement of laws under sec. 5 of the 14th Am. and Congress has removed immunity,
(3) the fed. govt. brings the suit, or
(4) bankruptcy proceedings
But suits against state officers can be brought in fed. court if the suit involves either:
- Injunctive relief claim for violation of the Const. or fed. law, or
- Claim for money damages to be paid by the state officer personally
SCOTUS jdx
SCOTUS has OG jdx over suits between states and cases involving foreign ambassadors/ministers.
- Must be filed in fed. court (but suits between states must be filed in SCOTUS)
- Congress cannot expand Court’s OG jdx to other types of cases
SCOTUS also has appellate jdx over cases with a final judgment
- Discretionary review – by writ of certiorari >
- Mandatory review — the Court must take appeals from three-judge district court panels regarding injunctive relief > This bypasses the courts of appeal
Powers of Congress
Taxing and Spending Clause
- Congress has the power to tax if the tax is intended to raise revenue OR if Congress has the power to regulate what is being taxed
- Congress has the power to spend for the general welfare
Commerce Clause - Congress may regulate channels, instrumentalities, or economic activities that have a substantial effect on interstate commerce.
May also regulate intrastate economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce.
Property Powers - Power to make rules for territories and other prop of the US.
Necessary and Proper clause - grants Congress the power to legislate to enforce rights under other clauses
Postal, admiralty, and power over aliens
Restrictions on grants
Conditions are valid if:
(1) clearly stated
(2) related to the purpose of the program
(3) not unduly coercive
Federalism limitations - supremacy clause
- Supremacy Clause > fed preemption (impossible to meet both laws), express preemption, and field preemption (congressional scheme is so comprehensive)
- Full faith and Credit Clause
Federalism limitations - Dormant Commerce Clause
- Dormant Commerce Clause
— regulations that favor local business or intentionally discriminate against interstate is invalid unless (1) state is market participant, (2) necessary to an important, non-econ state interest w no reasonable alternatives available, or (3) govt action regarding a traditional govt function
— regulations that create an incidental burden on interstate commerce are invalid if they impose an undue burden (the court balances the legitimate state int. vs burden on commerce)
Federalism limitations - Art IV privileges and immunities
Prohibits intentionally protectionist discrimination from a state to non resident if it involves the non resident’s commercial activities or fundamental rights.
std - important govt interest with no less restrictive means
State Taxes
Cannot be discriminatory. if they are not, there still needs to be
(1) substantial nexus to the state,
(2) apportionment, and
(3) relation between tax and benefit
Government action
A government actions is one taken by government officials or private entities that are either
(1) performing an exclusive public function, or
(2) where there is entwinement between the govt and the private entity is significant
Levels of scrutiny
- Rational basis – a law will be upheld if it is rationally related to a legitimate govt. purpose > cannot be irrational or arbitrary
- Intermediate scrutiny – a law will be upheld if it is substantially related to an important govt. purpose > reasonable and narrowly tailored
— for gender discrimination, may also req the govt to show an exceedingly persuasive justification - Strict scrutiny – a law will be upheld if it is necessary to achieve a compelling govt. interest > no less restrictive or burdensome means of achieving its goal
Procedural due process
Usually fair procedures, an unbiased decision-maker, and notice of the govt.’s action is required. Determined by balancing:
- Importance of the individual interest involved, and
- Value of procedural safeguards to that interest, against
- Govt. interest (i.e., fiscal or administrative efficiency)
Substantive due process
Whether govt has adequate reasons for depriving life, liberty, or property
- Non-fundamental rights – rational basis
- Fundamental rights – strict scrutiny
Equal protection
(1) Is there a discriminatory classification?
- Law discriminates on its face
- Facially-neutral law applied in a discriminatory manner + intent
- Discriminatory purpose / disparate impact + intent
(2) What level of scrutiny applies given the classification?
- Suspect classifications — strict scrutiny (race, national origin, fundamental rights, some alienage)
- Quasi-suspect classifications — intermediate scrutiny (gender, non-marital children)
- All other alleged classifications — rational basis (alienage if related to self-govt or immigration, age)
(3) Does the classification satisfy the appropriate level of scrutiny?
Protected speech
Content-based restriction (based on subject matter or viewpoint) – strict scrutiny
Content-neutral restriction – intermediate scrutiny - the govt can place time, place, and manner regulations
- Public forum / designated public forums – upheld if
(1) content-neutral,
(2) narrowly tailored to serve an important govt purpose, and
(3) leave open adequate, alternative channels of communication
- Limited public forums / non-public forums – upheld if:
(1) viewpoint neutral and
(2) reasonably related to legitimate govt. purpose
Unprotected or lesser-protected speech
Incitement of imminent unlawful activity – govt may punish speech if (clear and present danger):
- There is a substantial likelihood the speech will bring about imminent illegal activity; and
- The speech is aimed at causing imminent illegality
Fighting words – Govt may punish speech if it is likely to cause an immediate violent response against the speaker
True threats – a threat communicated with the intent to place the recipient in fear of bodily harm is not protected speech
Obscenity – expression is obscene if:
- (1) It appeals to prurient interests (sexually stimulating) (average person in the community std)
- (2) It is patently offensive in its sexual portrayal (offends community standards)
- (3) The material lacks serious literary, artistic, political, or scientific value (national std)
Pornography — private possession is not punishable unless it involves child pornography
Profanity/indecent speech — generally protected unless the speech is aired over broadcast media (not cable), or occurs in public schools
Commercial speech
Commercial speech is not protected if it is false/misleading/deceptive, or illegal/concerns illegal activity
Speech that concerns lawful activity and is not misleading can only be regulated if
- There is a substantial govt. interest in regulating the speech
- The regulation directly advances that govt. interest; and
- The regulation is not more extensive than necessary to serve that govt. interest
Defamation
If defamation involves a public figure, official, and/or public concern, P must prove:
- Falsity – P must prove the statement was false
- Fault – P must prove D was at fault (+ malice for public figure/officer)
Takings clause
Prohibits govt from taking private property without providing just compensation.
(1) Has there been a taking?
- Possessory taking – govt takes or occupies physical property
- Regulatory taking – govt action that adversely affects property value; depends on extent of economic interference:
- (2) Is the taking for public use?
- (3) Is just compensation paid? – measured in terms of loss (fair market value at time of taking)
punishment of govt employee speech
When speech relates to the employee’s official duties, it can be punished or regulated based on content
when the speech involves a public concern, the court balances the employee’s interest vs employers interest
When the speech involves private matters, it. can be regulated if its disruptive to the work place
Prior restrains
Whether a societal harm justifies the restrain. Not favored and rarely allowed.
Content-based - strict scrutiny
content-neutral - intermediate scrutiny
Free Exercise Clause
Prohibits govt. from punishing someone based on that person’s religious beliefs. Strict scrutiny applies.
Only applies to laws that are discriminatory on its face or neutral but intended to limit/interfere with religious practice/belief
Establishment Clause
Prohibits govt. acts that establish /sponsor /coerce religion or give preference to one religion over another
Std - must be neutral, not coercive, history and tradition approach, and Founder’s intent
