Con Law Flashcards
State action
Constitution generally protects against wrongful conduct by the government, not private parties.
In other words, state action is a necessary prerequisite to triggering constitutional protections
11th Amendment
Sovereign Immunity.
Bars citizens from suing their own state w/o state’s consent.
Can sue state officials and municipalities
10th Amendment
All powers not granted to the federal govt are reserved to the state.
Congress cannot commandeer states by requiring them to enact laws or administer federal law
Standing
P must establish (1) injury in fact (2) causation and (3) redressability
tax payer standing
generally no standing but taxpayer has standing to litigate how much is owed on tax bill and challenge govt expenditures as violating establishment clause
third party standing
generally no standing.
Exceptions:
- when there’s a special relationship between P and 3P, when 3P is unable to assert his own rights or when there’s risk in disallowing 3P standing that will dilute 3P’s rights
organizational standing
organization can sue on his own behalf or behalf of members if (1) its members would have standing to sue in their own right and (2) interests at stake are germane to organization’s purpose
ripeness
P must have experienced real injury or imment thereof. An action brought too soon is “unripe”
mootness
Must be live controversy at stage of review. Action brought too late is moot
Exceptions: Controversy is “capable of repetition” but is “evading review” OR D voluntarily ceases its illegal/wrongful action upon commencement of litigation
political question doctrines
Not subject to judicial review when (1) Constitution has assigned decision making on subject to different branch of govt or (2) matter is inherently not one that judiciary can decide
justiciability
Case must be justiciable to be heard in federal court which means there must be a case or controversy. To determine whether constrovery case exists, case must satisfy requirements for (1) standing (2) ripeness (3) mootness (4) political question doctrine
commerce clause
Power to regulate (i) channels, (ii) instrumentalities of interstate commerce as well as any (iii) activity that substantially affects interstate commerce
taxing power
Impose and collect taxes to pay debts and spend for the general welfare with purpose to raise revenue
spending power
spend for any public purpose to provide for general welfare
necessary and proper clause
Congress has power to enact legislation necessary and proper to execute any authority granted to any branch of federal govt
13th amendment
prohibition of slavery and involuntary servitude
14th amendment
Equal Protection Clause
permit congress to pass legislation to enforce equal protection and due process rights
o Strict Scrutiny (Race, National Origin, Aliens)
o Intermediate Scrutiny (Gender, Illegitimacy)
o Rational Basis
15th amendment
prohibits both state and federal govt from denying any citizen the right to vote based on color, race, or previous condition of servitude
appointment powers
President: Can appoint ambassadors, federal judges and other high level officials with the advice and consent of the Senate
Congress: cannot give itself appointment powers
removal powers
President – can remove at will, high level, purely executive officers and some heads of independent agencies
Congress – can only remove executive officers through its impeachment process
impeachment
House of representatives can impeach the president, VP, federal judges and federal officers for treason, bribery or high crimes and misdemeanors (requires majority votes)
Upon impeachment, trial in senate requires ⅔ vote for removal from office
immunity of President
President has absolute immunity from civil suits arising from official actions taken while in office. No immunity for actions prior to taking office
executive privilege
Protects against disclosure of presidential papers and conversations
pardon power
President has powers to pardon those accused or convicted of federal crimes
Exceptions: president cannot pardon someone for convictions leading to impeachment. President can also commute sentences. Congress cannot limits president’s pardon powers.
veto powers
President has 10 days to act on proposed legislation:
Signed bill → becomes law
Veto bill → congress can override by ⅔ vote
Do nothing
commander in chief
only Congress can declare war, but president can take military actions w/o declaration of war
delegation of legislative powers
Congress has broad authority to delegate legislative powers to executive officers and administrative agencies
Limitations:
- Congress must provide intelligible standards to define scope of legislative authority it delegates
- Congress may not delegate executive or judicial powers to itself or its officers
dormant commerce clause
If congress hasn’t enacted legislation, the states can regulate interstate commerce so long as the regulation doesn’t (1) discriminate against out of state commerce (2) unduly burden interstate commerce or (3) purposefully regulate wholly out of state activity
DCC: Test
Test:
Discriminatory on its face → apply strict scrutiny
Incidental discrimination → does it serve an important govt interest + burden is excessive on commerce
DCC: Market Participant exception
states may pass law that discrimiantes against out of state business when its acting as a market participant (state runs the business/industry itself)
interstate commerce taxation
States may tax interstate commerce only if Congress hasn’t already acted in a particular area and tax doesn’t discriminate or unuduly burden interstate commerce
4 Part Test: (1) Substantial nexus (2) fair apportionment (3) nondiscrimination (4) fair relationship
supremacy clause
Under Supremacy Clause, federal law trumps conflicting state and local laws
express preemption
When Constitution makes federal powers exclusive or Congress enacted legislation explicitly prohibiting state regulation in the same area
implied preemption
occurs when Congress intended federal law to occupy, state law directly or indirectly conflicts with federal law
full faith and credit clause
Certain states must recognize and enforce courts judgements in other states. 3 Requirements:
(1) Court that rendered judgment had jurisdiction over parties and subject matter
(2) Judgment was on the merit and
(3) Judgement was final
procedural due process
Govt cannot interfere with one’s life, liberty and property rights w/o due process of law
- Right to Notice and a Hearing
Procedural due process - Balancing Test
(i) private interests (ii) risks of erroneous deprivation using current procedures and probable value of additional safeguards and (iii) govt interest
substantive due process
guarantees fundamental rights to all persons
Strict scrutiny – fundamental right
Rational basis – nonfundamental
strict scrutiny - substantive due process
If Govt Infringes on Fundamental Right. Least Restrictive means of achieving a compelling govt interest. Burden on the Govt
rational basis - substantive due process
Not a fundamental right. Law must be rationally related to legitimate state interest. Burden on challenger.
Fundamental rights
**FIRST VIP **
(First amendment freedoms, voting, interstate travel, privacy - marriage/family, parental rights, sexual acts, contraceptives)
Travel, Right to Vote, Privacy, Free Speech
Equal Protection Clause - Strict scrutiny
Least restrictive means of achieving a compelling govt interest.
Burden on govt.
Applies to race, alienage, national origin
Equal protection clause - intermediate scrutiny
substantially related to important govt interest.
Burden on govt.
Applies to gender and legitimacy
Equal protection clause - rational basis
rationally related to legitimate govt interest.
Burden on challenger.
Applies to age, wealth, height, etc.
proving discrimination
to trigger Strict Scrutiny or intermediate scrutiny, there must be discriminatory intent on part of the govt
Discrimination on the face, discrimination in application or discriminatory motive
comity clause
State govt can’t discriminate against non-residents of the state if economic discrimination affects “fundamental rights” or “important economic activities” unless discrimination is closely related to substantial govt interest
Takings clause
Govt can’t take private property for public use w/o just compensation
Just compensation: fair market value of property at time of taking
actual taking
govt takes ones property by actual or physical appropriations
regulatory taking
regulation that adversely affects a person’s property
per se taking
(i) permanent physical occupation and (ii) when the regulation results in permanent and total loss of property’s economic value
bill of attainder
state/govt may not pass a legislative act that inflicts punitive punishment w/o trial on named individuals or easily ascertainable groups for past conduct
Ex post facto law
state/federal govt may not retroactively alter criminal offense or punishment that puts D in worse position
impairment of contracts
prohibits state legislation from substantially impairing obligations of existing K. Can’t make law expressly impairing ability to enter K.
Establishment clause
Govt can’t make any laws respecting the establishment of religion and laws that discriminate against religious speech or conduct. Govt must remain neutral as to religion
TEST: “Historical Practice and Understandings” which imposes presumption of constitutionality for longstanding monuments, symbols and practices
Free exercise clause
1st amendment prohibits state action that interferes with the free exercise of religion, including both the freedom to believe and the freedom to act.
Govt conduct that intentionally targets religious actions are subject to strict scrutiny. Incidental impact on religious practices, apply rational basis
1st amendment
Freedom of speech.
Restricts govt regulation of private speech
symbolic speech
regulation of expressive conduct is upheld if regulation is within govt’s power to enact + furthers important govt interest + interest is unrelated to suppression of ideas + burden on speech is no greater than necessary
Overbreadth
law that burdens substantial amount of speech/other conduct is constitutionally protected. “Overbroad”
vagueness
Statute is void for vagueness if it fails to provide person of ordinary intelligence with fair notice of whats prohibited
prior restraint
regulation of speech that occurs before its expression. Generally presumed unconstitutional with limited exceptions.
Exceptions: Require that
(i) there’s particular harm to be avoided and
(ii) certain procedural safeguards are provided by speaker
unfettered discretion
govt cant choose/allow one form of speech over another.
law/regulation that permits govt official to restrict speech must provide definite standards as to how to apply law to prevent govt official from having unfettered discretion over its application
content-based regulation
content based on its face or in its application or intent is generally subject to strict scrutiny except:
Obscenity and child pornography, incitement of fear, fighting words, defamation and commercial speech
content based regulation
obscenity and child pornography
regulation only valid if the work (1) appeals to purient interest based on local community standards (2) depiction or description is offensive per local standards (3) lacks serious literary, artistic, political or scientific value to a reasonable person
content based regulation:
incitement of violence
state may forbid speech that advocates use of force or unlawful action if (1) speech is directed to inciting/producing imminent lawless action and (2) its likely to incite such action
content based regulation:
fighting words
words by their very nature are likely to incite immediate breach of peace. Must be genuine likelihood of imminent violence by hostile audience
Defamation
defamatory statement of and concerning another publication to 3P and damages to reputation
commercial speech
protected if (1) not false or deceptive and (2) doesn’t relate to unlawful activity.
Govt can regulate if (1) serves substantial govt interest (2) directly advances that interest and (3) narrowly tailored to achieve that interest
content-neutral regulation
regulation of the time, place and manner of expression
content neutral - public forum
historically open to speech activities
content neutral - designated public forums
not historically open for speech activities but govt has opened for such use
content neutral - Restrictions on public and designated forums
(1) must be content neutral as to both subject matter and viewpoint neutral + (2) narrowly tailored to serve significant govt interest + (3) leave open alternative channels of communication
content neutral -Nonpublic forum
not open to public.
Govt may regulate speech related activities so long as its viewpoint neutral + reasonably related to legitimate govt interest
21st amendment
Grants states broad authority to regulate alcohol within their borders. When doing so states can’t discriminate against interstate commerce unless (1) state statute furthers a legitimate non economic state interest and (2) no reasonable alternative exists to do so
Unprotected speech (FIDO)
Fighting words, inciting crimes, defamation, obscenity
8th amendment
Ban on excessive fines applies to states because its, been incorporated into the 14th amendment due process clause. Ban limits the amount of payment that may be imposed as punishment for an offense.
declaratory relief
an official declaration of the status of a matter in a controversy. the challenged action must pose a real and imminent danger to party’s interests for there to be an actual dispute
TRO
purpose is to preserve the status quo pending a hearing for a preliminary injunction.
Preliminary injunctions
can’t issue unless D has been given notice and an opportunity to be heard. Requires (1) irreparable harm (2) likelihood of success and (3) balance of the equities
dormant commerce clause exception
states cannot discriminate against interstate commerce unless (1) discrimination furthers a legitimate, noneconomic state interest AND (2) no reasonable alternative exists
speech or debate clause
immunizes members of Congress from civil or criminal liability for official legislative activities – e.g. giving speeches on the House or Senate floor
Equal Protection (Citizenship)
Federal Law (5th amendment) –> Rational basis
State Law (14th amendment) –> Strict scrutiny
Article IV privileges and immunities clause
- generally prohibits states from discriminating against citizens of other states by denying them right of citizenship.
- such discrimination is valid if: (1) there’s substantial reason for difference in treatment and (2) discrimination against nonresident bears substantial relationship to state’s objectives
nondelegation doctrine
prohibits Congress from delegating its exclusive legislative powers (e.g., making or repealing laws)
BUT Congress can delegate its incidental powers (e.g., rule-making authority) to agencies in the executive branch if it provides an intelligible principle to guide the agency—i.e., a clear statement defining: (1) the policy Congress seeks to advance, (2) the agency to carry out that policy, and (3) the scope of that agency’s authority.
immunity from state taxation
The federal government, its agencies, and its instrumentalities are immune from direct taxation by the states unless Congress expressly consents.
2nd amendment
guarantees individuals the right to possess and use firearms for traditionally lawful purposes like self-defense in the home.
However, this right is not absolute, so certain government restrictions are permissible—e.g., imposing conditions and qualifications on commercial sales of firearms.
