Con Law Flashcards
Justiciability
Under Article 3, the jdx of federal courts is limited to cases or contoversies. The case must be ripe, not moot, the plaintiff must have standing.
Ripeness
a case is not ripe if there is no actual or imminent threat of harm
Moot
A case is moot if the legal proceedings will have no effect, unless it is a class aciton or an issue capable of repetition but evading review
Standing
The plaintiff must show injury in fact (concrete and particularized), causation, and redressibility.
Tax payer standing
very limiting, tax payers cannot challenge governmetn spending generally unless challenging specific legislatively authorized expenditures as a violation of the establishment clause
Third party standing
no standing unless the 3rd party is unable to assert their own rights, there is a spcial relationshp betweent he plaintiff and the third party, or the injury to the plaintiff affects the relationship with 3P
Organizational Standing
may sue on behalf of members if the members would have standing and the interest is germane to the purpose of the organization
Advisory Opinions
not allowed, actual case or controversy needed
Declaratory judgments
not prohibited, but the challenged action must pose a real and immediate danger to the party’s interests
Political questions
not subject to judicial review if the Constiuttion has assigned decision making to another branch of the government or the matter is inherently not one that the judiciary can decide
Eleventh Amendment Limitations/soveregn immunity
a federal court can generally not hear a claim by a private citizen against a state government; this doesn’t protect local governments
a state is immune for suit for money damages by its own citizens in state or federal court
Exceptions to sovereign immunity
- consent by the state
- injunctive relief against a state official
- money damages against state officer personally
- prosepective damages paid by treasury in suit against hte state officer
- congressional abrogation under 13, 14, 15th amendments
- Structural waivers: actions brought by US govt’, bankruptcy proceedigs, federal condemnation, war and defense power actions
Powers of Congress
the powers of congress are those enumerated in the constiuttion. Powers not granted to the federal gov’t or prohibited to the states belong to the states
Nondelegation doctrine
Congress can only delegate its power to an agency if it gives an intelligible principle to guide them.
Anti comandeering clause
The federal government cannot comandeer the states by requiring them to pass or nullify laws, or requiring their law enforcement to enforce or not enforce.
Commerce power
Congress can regulate channels of commerce, instrumentalities of commerce, and any activity that substantially affects interstate commerce.
Substantial economic effect: congress can regulate any activity that has a substantial economic effect on interstate commerce, measured by whether the activity in the aggregate would affect interstate commerce. This is presumed for economic activity, but must be established for noneconomic activity
Taxing and spending power
Congress has the power to tax if it is reasonably related to raising revenue
Congress has the power to spend for the general welfare and can use its spending power to regulate activity by conditioning federal funding on such activity.
Necessary and Proper clause
enables congress to legislate to carry out its powers. Not a justification on its own
War and defense powers
power to declare ware, raise and suport armies, provide and maintain a navy
Property power
no limit to disposing US proeprty, but may only take private property for public use with just compensation
Power over noncitizens and citizenship
plenary power over noncitizens, exclusive authority over naturalization
Enforcment Powers
Congress is empowered to enact legislation to enforce the civil rights guarantees of the 13, 14, and 15 amendment
13th amendment
Congress has hte power to adopt legislation rationally related to eliminating racial discrimination, badges and incidents of slavery, the only amendment that authorizes Congress to regulate purely private activity
Equal protection and due process
congress cannot expand or create new equal protection or due process rights
15th amendment
prohibits both the state and federal governments from denying any citizen the right to vote based on race, color, ethnicity.
Dormant Commerce Clause
state regulation of commerce is valid so long as there is no discrimination against out of state commerce or an undue burden on interstate commerce.
Discrimination against out of state commerce?
can still be allowed if it is:
necessary to an important state interest and no alternatives available
market participant excpetion
traditional government function (e.g. waste disposal)
No discrimination against out of state commerce
may still be improper if there is an undue burden on interstate commerce: are the burdens clearly excessive in relationship to the local benefits?
a state cannot regulate conduct that occurs wholly beyond its borders
Privileges and Immunites Clause of Artice 4
no state may deprive a citizen of another state the privileges and immunities it accords its own citizens. applies to commercial licenses, residency requirements, etc.
does not apply to corporations
does not apply to recreational activities
can still be okay if substantial reason: nonresidenst caused the problem and the discrimination is substantially related
State taxation of commerce
IF congress has not already acted, a state may tax interstate commerce if it is nondiscriminatory and does not place an undue burden on interstate commerce
Preemption
Under the Supremacy clause, federal law overrides inconsistent state constitutional provisions or law
Express: congress explicitly prohibts state law
implied: direct conflict, field preemption, frustration of purpose
states may enact more stringent laws though
State Action
Private conduct will not trigger constiutional guarantees, only **government action **
exceptions:
thirteenth amendment
traditional government function
significant state involvement such that the government is **pervasively entwined **with the private party’s conduct
Procedural Due Process
an individual may not be deprived of life, liberty, or propery without due process of law. Due process requires notice and an opportunity to be heard
attaches with restraint on a fundamental right or phyiscal freedom, or legitimate entitlement to receipt of benefits
Substantive due Process
government action that infringes on a fundamental right is subject to strict scrutiny. Infringment of a non-fundamental right is subject only to rational basis
Fundamental rights
Voting, travel (from state to state, residency requirements), privacy (marriage, contraception, right to live with related people, parental rights, sexual intimacy, right to refuse medical treatment)
Strict Scrutiny
The law must be necessary to acheive a compelling government interest It must be the least restrictive means and the burden of proof is on the government
Rational basis
The law must be rationally related to a legitimate state interest. The burden of proof is on the challenger
Equal Protection Clause
The Equal protection clause of the foruteenth amendment provides that no state shall deprive its citizens the equal protection of the laws.
Suspect classes get strict strutiny: race, ethnicity, national origin, citizenship (only if state law)
There must be a discriminatory purpose shown
Quasi-suspect classes: gender, nonmartial children, get intermediate scrutiny
Intermediate Scrutiny
The government must show that the law is substantially related to an important government interest.
Takings clause
The fifth amendment, applied to the states through the 14th amendment, prohibits the government taking of **private property for public use **without just compensation.
Physical taking
a physical taking occurs when the government physically occupies or takes the land
Regulatory Taking
A regulatory taking occurs when a law has the effect of reducing the value of the plaintiff’s land
Total: no viable economic use left (this is a taking)
Partial: balancing, consider the economic impact, the reasonable investment backed expectations, and the character of the action.
Establishment Clause
If the government shows preference to one relition over another, or to religion over nonreligion, strict scrutiny applies.
To determine whether a particular program violates the Establishment clause, consider historical practices and understandings (longstanding monuments, symbols, etc)
aid to religious organizations: permitted if aid is secular in nature, used fo rsecular purposes, and distributed neutrally
public school acticities: cannot have school prayer, silence for prayer, 10 commandments prohibiting darwinism
government holiday displays: permissible as acknowledgement but not endorsement
Free exercise clause
Freedom to believe in a religion is absolutely restricted.
Freedom to act on religion is less protected. The government may not intentionally target religious conduct unless it passes strict scrutiny, but a neutral law of general applicability that impacts religious conduct will be upheld if it is rationally related to a legitimate government interest
First Amendment Freedom of speech
The first amendment, applicable to the states through the 14th amendmnet, provides that the government shall not abdige the freedom of speech
Symbolic speech or expressive conduct
A government regulation of expressive speech is upheld if
1) the regulation furthers an important government interest
2) the interest is unrelated to the supression of speech
3) the burden on speech is not greater than necessary
4) the regulation is within the governmnet’s authority to act
Overbreadth
A statute is overbroad if it regulates more speech than necessary to protect a compelling government interest
Vagueness
a statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited
Prior restraint
A prior restraint prohibits speech before it occurs. There must be a particular harm the government is seeking to avoid and narrowly drawn, reasonable, and definite standards.
If there is a permitting process, the official cannot have unfettered discretion and must have definite statements
Content based Regulation
apply strict scrutiny: must be necesary to acheive a compelling government interest and must be narrowly tailored.
Time, place manner restriction
public forum: must be content and viewpoint neutral, narrowly tailored to significant gov’t interest, and leave open alternative channels for communication
nonpublic forum: must be viewpoint neutral and reasonably related to leg. gov’t interest (rational basis).
Commercial speech
Commercial speech is protected unless it is false, misleading, or unlawful.
Protected commercial speech can onlt be regulated if:
gov’t interest is substantial, regulation directly advances the interest, and regulation is **narrowly tailored **
Obscenity
Obscene speech is not protected. Obscene speech is speech that appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks literary or artistic value
does not include pornography
Freedom of association
laws that prohibit participation in a group must meet strict scrutiny
criminal punishment based on political association requires active membership with knowledge of the groups subversive nature and intent to further illegal objectives.
