Con Law Flashcards
What are the 4 requirements to establish that a case or controversy exists?
Standing of P
Claim is Ripe
Claim is not Moot
Does not pose a Political Question
Article 3 limits the power of federal courts to what?
Cases and controversies
What are the 2 requirements to have constitutional standing?
Personal Injury-doesn’t have to be physical or monetary.
Causation and redressability
Regarding standing, what is causation?
That the defendant caused the injury.
Regarding standing, what is redressability?
Court can provide remedy
When are the 3 times one can sue on behalf of a 3rd party??
close relationship
3rd party unlikely to be able to do it.
Organizations sometimes
When can an organization sue on behalf of a member…3 requirements?
Member would have standing,
Interests are germane to organization’s purpose,
Neither claim nor relief requires members participation.
What is the only kind of case a citizen can bring as a generalized grievance without regular standing?
When challenging federal statutes alleging expenditures violating the establishment clause.
What is Ripeness?
Whether a court may grant pre-enforcement review of a statute or regulation.
What are the 2 main factors courts look at for Ripeness?
Hardship suffered without pre-enforcement review,
Fitness of the issues and record for review.
What is Mootness?
Whether a claim is a live controversy at the time of review.
What are the 3 exceptions to a claim needing to NOT be moot?
Wrongs capable of repetition but evading review,
Voluntary cessation by D,
Class actions
What is the Political Question Doctrine?
A federal court will not hear cases that involve issues constitutionally committed to another branch of government OR are inherently incapable of judicial resolution.
What are the 4 most common political question kinds of challenges federal courts won’t hear?
Republican form of government,
president’s foreign policy,
impeachment/removal process,
partisan gerrymandering
What are 3 kinds of federal expenditure establishment clause violations claims that are not allowed?
giving property to religious places,
general executive revenue spending,
state tax credits to religious places.
What is the only 2 kinds of suits that SCOTUS has automatic jurisdiction?
Suits between States,
Appeals from 3-judge federal district courts.
SCOTUS won’t hear a case involving a state law that has been adjudicated by that state’s highest court unless:
There is a federally based challenge to the state issue.
Generally, the 11th Amendment bars filing suit against:
States
What are the 4 exceptions to sovereign immunity for States?
State expressly waives it.
Federal statutes under the 14th Amendment allow it.
Federal Govt can sue States.
Bankruptcy proceedings.
Rather than suing a State, a plaintiff should sue:
The State officer
To sue a State officer, a P needs 1 of what 2 things?
Personal Damages, or
Enjoin officer from future federal violations.
Absent a few MILD exceptions, does Congress have police powers?
No
What are the MILD exceptions in which Congress does have police powers?
Military
Indian lands
Federal lands
D.C.
What does the Necessary and Proper Clause do?
Allows Congress to take action that is not constitutionally prohibited to carry out its powers.
Is the Necessary and Proper Clause a Congressional power alone?
No-It must accompany an express power.
The Constitution grants Congress the power to tax and spend for what?
General welfare constituting any public purpose not prohibited by the Constitution.
According to the Commerce Clause, Congress can regulate what 3 things within interstate commerce?
The channels,
Instrumentalities,
Activities that have substantial effect.
When can Congress regulate intrastate commerce that is economic…non-economic?
Economic-When there’s a rational basis, that in aggregate, substantially affects interstate.
Non-economic-When direct, substantial effect on interstate.
Can Congress regulate inactivity?
No
The federal govt being restricted from commandeering state powers is established through which Amendment?
10th
When Congress grant’s money to States with stipulations for them to get the money, what are the 4 requirements so it doesn’t violate 10th Amendment??
Grants are expressly stated,
Relate to purpose of program,
Not unduly coercive,
Don’t violate Constitution.
What are the 3 ways federal law impliedly preempts state law?
Mutual exclusivity,
State law impedes federal objective,
Field preemption (clear intent by congress to preempt).
What does the Dormant Commerce Clause state?
unconstitutional if place an undue burden on interstate commerce.
What 2 places in the Constitution are there a Privileges and Immunities Clause?
Article 4 and 14th Amendment
What does the Privileges and Immunities clause of Article 4 state?
States may not deprive citizens of other states of the privileges and immunities it provides its citizens.
What does the Privileges and Immunities Clause of the 14th Amendment state?
States may not interfere with the right to interstate travel.
Are corporations and aliens protected by the P&I Clause of Article 4?
No
Are corporations and aliens protected by the P&I Clause of the 14th Amendment?
Yes
What is the first question to ask when evaluating privileges and immunities cases?
Does the state law discriminate against out-of-staters? If not, it does not fall under Article 4.
What is the second question to ask when evaluating P&I cases?
Does the state law burden interstate commerce?
If a state law doesn’t discriminate against out-of-staters (falls under 14th Amendment), and it burdens interstate travel, it violates the dormant commerce clause if:
The burden exceeds the benefit.
If a state law discriminates against out-of-staters (falls under Article 4), and it burdens interstate travel, it violates the dormant commerce clause unless:
It is necessary to achieve an important govt purpose, AND there is no less discriminatory alternative.
What is the ‘market participant’ exception to the dormant commerce clause?
Govt can prefer its own citizens in receiving benefits from govt programs or when dealing with govt-owned businesses.
The dormant commerce clause will not be scrutinized as heavily when the state action involves what?
A traditional govt function not involving economic protection.
Generally speaking, to show a constitutional violation, who must the claim be against minus a few exceptions?
The government.
Regarding constitutional claims, activities of a private individual will be considered govt action if:
Exclusive public function or traditionally is, or
Significant state involvement,
What gives Congress the power to enact laws that prohibit private racial discrimination?
13th Amendment
What is the Rational Basis standard of review? What kind of cases?
Law must be rationally related to a legitimate government purpose.
No suspect class and not fundamental rights.
What is the Intermediate Scrutiny standard of review? What kind of cases?
Law must be substantially related to important government purpose. Quasi-suspect classes (Gender).
What is the Strict Scrutiny standard of review? What kind of cases?
Law must be necessary to achieve a compelling government purpose, and it is the least restrictive means.
Suspect classes and fundamental rights.
Which standards of review do the govt have the burden of proof?
Intermediate and Strict Scrutiny.
What is the focus of procedural due process?
Whether the govt has provided adequate procedures for taking away life, liberty, or property.
What is the focus of substantive due process?
Whether the govt has an adequate reason for taking away life, liberty, or property.
What is the first question to ask regarding procedural due process claims?
Is life, liberty, or property being taken?
A loss of a significant freedom provided by the constitution or statute is what?
Loss of liberty
When the reasonable expectation of one’s entitlement is taken away or not fulfilled, it is what?
Loss of property
If there has been a deprivation of life, liberty, or property under a procedural due process claim, what are the 2 factors courts use to weigh proper process?
Importance of individual’s interest.
Improvement of fact finding against government interest.
Generally, procedural due process requires what?
Fairness
What is the Takings Clause and where does it come from?
5th Amendment - Govt may take private property for public use if it provides just compensation.
What are the 2 main ways to get a ‘Taking’?
Physical invasion of property OR,
Total economic loss of property.
Under the takings clause, to constitute ‘public use’, the government’s action must be what?
rationally related to a legitimate govt public purpose.
Under the Takings Clause, just compensation equals what, and from whose perspective?
Fair market value at time of taking from the owner’s perspective.
What does the Contract Clause state?
No State shall impair the obligation of contracts.
Ex Post Facto laws are not allowed. What are they?
Newly created laws that criminalize, give greater punishments, or reduces required evidence for crimes already committed.
Regarding substantive due process, what is the standard of review when the govt limits a fundamental right versus all other rights?
Fundamental-Strict Scrutiny
Others-Rational Basis
What are the 3 ways to prove violation of equal protection?
Law is discriminatory on its face,
In application,
In motive
Who does the equal protection clause apply to?
Government
What are the 3 classes that fall under strict scrutiny for EP claims?
Race
National Origin
Alienage
If a law is facially neutral regarding race, what are the 2 requirements to show it is still racially discriminatory?
Discriminatory intent
and impact
Can the state or federal govt discriminate against aliens?
Only federal
What kind of speech falls under strict scrutiny?
Content-based
What are the 2 things that determine if speech is ‘content-based’?
Subject matter,
viewpoint
What is the standard of review for content-neutral speech regulation?
Intermediate scrutiny
What is the void for vagueness doctrine?
A law regulating speech is unconstitutional if a reasonable person doesn’t know what is allowed.
What are the 2 requirements for the govt to license speech?
Important reason,
clear criteria with little discretion
Inciting lawless action is not protected speech, what are the 2 requirements?
Substantial likelihood of imminent illegal activity,
Directed at causing imminent illegal activity
What are the 3 elements of obscene speech?
Appeals to prurient interest of sex,
patently offensive,
lacks usable value
Commercial speech is protected as long as it is?
truthful
Commercial speech regulation will be upheld if it meets what 3 requirements?
Substantial govt interest,
directly advances that interest,
narrowly tailored.
Speech regulation in public forums must meet what 3 elements?
Content neutral,
important govt purpose with alternative channels,
narrowly tailored.
Speech regulation in nonpublic forums must be what 2 elements?
Viewpoint neutral,
reasonably related to legitimate govt interest.
