Con Law Flashcards
Equal protection
When the government treats people differently via creating classes of people.
The government’s creating a so-called class of people singling out a group, and they’re treating these people differently than everybody else.
How do we know it’s constitutional? 3 levels of scrutiny.
Strict Scrutiny
- Applies to Race, Alienage, National Origin
- Government has the burden
- NECESSARY to achieve a COMPELLING
interest
Intermediate Scrutiny
- Applies to Gender, Illegitimacy
- Government has the burden
- SUBSTANTIALLY related to an IMPORTANT
interest
Rational Basis
- Applies to Everyone Else
- Plaintiff has the burden
- RATIONALLY related to a LEGITIMATE
interest
Two types of equal protection questions
- Identify it’s an EP question
- Level of scrutiny identification
Due Process
Government regulating a right for ALL PEOPLE
Example:
o “All citizens must…”
o “All citizens shall not…”
o “If you want to do X, all people must do Y”
Levels of Scrutiny – Substantive Due Process:
- Fundamental Right: Strict Scrutiny
vs. - Non-Fundamental Right: Rational Basis
Fundamental Rights:
- Vote
- Free Speech
- Interstate Travel
- Privacy
Strict Scrutiny
Privacy Fundamental Right under Due Process
CAMPER triggers Strict Scrutiny:
* Contraception
* Marriage
* Procreation
* Education
* Raise Family
Laws or regulations that effect these rights
Procedural Due Process
Notice and a hearing
Property right or interest = notice and a hearing
What are your property rights?
Your job, license, and benefits, employment or your job licenses, professional licenses and benefits
PUBLIC jobs and licenses
PUBLIC benefit
Make sure your interest has VESTED - think of probationary period of jobs
Levels of Scrutiny – Procedural Due Process:
- No Levels of Scrutiny
- Need Notice AND Hearing
Equal Protection & Due Process Amendments:
FEDERAL Law = 5th Amendment
vs.
STATE Law = 14th Amendment
Where is the state or congress getting the power to affect EP or DP? ^^
Privileges & Immunities
State passes law that treats residents of the state differently than NON-RESIDENTS
13th Amendment
- Bans slavery
- PRIVATE individuals cannot racially
discriminate
15th Amendment
- Voting & Racial Discrimination
TAKINGS CLAUSE
Rule:
1) Government taking Private Property 2) For Public Use
3) With Just Compensation
Definition – Public Use (Takings Clause)
Any overall public benefit
Example: Public Use:
o Government wants to bulldoze Jon’s house for a new highway
Not Public Use:
o Government wants to bulldoze Jon’s house for restaurant and shops for private owner, unless government shows it is for a public use
Inverse Condemnation:
- Denies you the economic benefit of the land
- Value left is WORTH NOTHING
Example:
o Put nuclear power plant across from Jon’s house o Put manure factory across from Jon’s house
o Put exit ramp of a main highway across from Jon’s
house
Establishment Clause
Government cannot pass a law that formally sponsors or establishes a religion
Tests for Establishment Clause
1) History and Tradition: whether the challenged government action accords with historical practices and the Founding Fathers’ original intent (e.g., citizens shall not be coerced into participating in religious observance)
2) Neutrality: whether the challenged government action is religiously neutral
LOOK AT INTENT
Free Exercise Clause
Government must remain neutral on practice of religion
A Law NEUTRAL to religion will be constitutional even if the EFFECT prohibits religion
SPEECH: Content-Based Regulation:
- Government stops the message
- Triggers Strict Scrutiny
Example:
o Ask Government to march, parade, or
demonstrate and Government says no
o Group wants to take out an advertisement
in newspaper and Government refuses
SPEECH: Content-Neutral Regulation:
- Regulation on Time, Place, & Manner
- Where, When, & How
Not stopping the message of the speech
Triggers a form of Intermediate Scrutiny
Constitutionality Test – Content-Neutral Regulation:
- Furthers significant governmental interest
- Leaves open alternative means of
communication - Form of Intermediate Scrutiny
Example:
o There is a demonstration in front of the White
House, and Government says you can protest from 8am-4pm, but you must be 20 feet from White House, and you cannot go on the roof of the buildings
A gov may regulate speech in a
Public Forum:
- Streets & Parks
- Must further significant government interest * Leave open alternative means of
communication
A gov may regulate speech in a
Non-Public Forum:
- Billboards, Signs, Buses
- Reasonably related to a legitimate
government interest
UNPROTECTED SPEECH
- Obscenity
- Clear & Present Danger
- Fighting Words
- False/Misleading Advertisement
Obscenity
A reasonable person would find the material …
1) A prurient interest in sex by objective local community standards
2) Depicts sex in a patently offensive manner
3) Lacks any serious literary, artistic, political,
or scientific value
Clear & Present Danger
1) Speech incites imminent violent action
2) Likely to produce violence (generally by a group of people)
Fighting Words
Harsh language likely to incite an average person to commit violence
Fighting Words – Based on the individual
vs.
Clear & Present Danger – Based on the group
A gov may regulate
Commercial Speech
- Anything Business Related Speech
- REASONABLE fit to a SUBSTANTIAL interest
- Narrowly tailored
False/Misleading Advertisement
- Speech that provides false/misleading information
- Not Protected
Prior Restraint
- Stops speech before it is published * Injunctions, Gag Orders
Unfettered Discretion
- Government official cannot choose/allow one form of speech over another
Overbroad & Vague Speech
- Statute cannot be too broad or too vague
- Keywords: “any” or “all”
Bill of Attainder
- Cannot expressly PUNISH an individual or named group of people (with criminal or civil)
- Applies to both Federal and State Government
Not EP when —> Talking about a person or group of people and giving a penalty
Ex Post Facto Laws
- Law that retroactively makes action illegal
- Applies to both Federal and State
Government
“when I did this conduct it was legal now it’s illegal and they are trying to punish me”
Contracts Clause
STATE cannot EXPRESSLY impair your ability to enter a contract
- Only applies to state government
- Only correct when it is blatantly obvious in the facts. Explicit
State Action
There must be State/Government action to violate the constitution
Private actors can do what they want under the federal constitution
State Action and Nexus
If the government is supplying enough money, support to an individual or a private company, that there ends up being some sort of nexus between the government and me. And now I’m an arm of the government and now there is state action.
You are basically an employee
Presidential Powers:
- Veto
- Appointment
- Pardon
- Commander in Chief
- Treaty
- Executive Order/Agreement
Veto Power:
President has the power to VETO
Presidential Appointment Power
The power to appoint ambassadors, judges, heads of agencies
Joint Appointment Power
- CONGRESS may appoint members when the agency has NO regulatory or rulemaking authority
The president has the power to appoint the heads
Congress can appoint lower level people
IF no regulatory authority. Recommendations are okay – can not make law
Presidential Pardon Power
- Absolute power of the President (can not be appealed)
- Only pardon FEDERAL crimes
Commander-in-Chief
- President can Command Troops, but CANNOT Declare War
Can tell troops to go from one country to another, seize property –> ultimate general
Presidential Treaty Power
President has the power to enter into treaties
Treaty Conflict
- If treaty & federal law conflict – LAST IN TIME prevails
Executive Order vs. Executive Agreement
Executive Order = Anything Prez does that is Domestic
vs.
Executive Agreement = Anything Prez does that is Foreign
When are Executive Orders/Agreements constitutional?
- CANNOT conflict or supersede Congress (federal law)
If there is no federal law –> can not enter into it
Congressional Powers
- Tax & Spend
- Commerce Clause
- Declare War
- Foreign Affairs
- Aliens
- Coin Money
- Federal Land
Congressional Taxing Power: Can congress tax us?
- Yes, if, “To raise revenue for the general welfare”
Congressional Spending Power:
- As long as spending is “For the general welfare”
They must tell you why and for what purpose
Commerce Clause:
- Congress has broad power to regulate interstate commerce
- Regulate the making, manufacturing, shipping of a widget/good
War Power
- Congress can declare war
Foreign Affairs
Congress has the Primary Authority
Aliens
- Congress has the power over non-citizens
Coin Money
- Congress has the power to coin money
(Print money)
Federal Land. Who has the power over federal property?
- Congress has power over federal land including Washington D.C.
- Parks, Monuments
Delegation of Powers
- Congress CAN delegate their own enumerated powers to the President
- MUST include guidelines & limitations
Necessary & Proper Clause
Whatever is “necessary & proper” to enact enumerated powers
Must be linked to an enumerated power
Ex) Congress can do anything they want to enable them to tax or regulate commerce.
^ The hypo must include the enumerated power and connected to N&P
Original Jurisdiction
- Case can go directly to Supreme Court
- Congress CANNOT “enlarge or restrict”
Appellate Jurisdiction
- Case is appealed up to Supreme Court
- Congress MAY regulate scope
Congress & Supreme Court:
- Congress CANNOT tell Supreme Court what to do
Congress & Lower Courts:
- Congress CAN establish lower courts & jurisdiction
Mootness
- The issue has already been resolved
Ripeness:
- Case is not ready to be brought to court
Standing:
- Plaintiff must have a personal injury at stake
Case or Controversy:
- Must be an actual dispute
Independent & Adequate State Grounds:
- A case resolved on independent & adequate state grounds will not go to the Supreme Court
Political Questions/Justiciability:
- Federal Courts will not hear cases regarding legislative or executive power
Eleventh Amendment:
Citizens of one state CANNOT sue their own or another state
Exceptions to Eleventh Amendment:
- State Consent
- Government Official * Municipalities
SUPREMACY CLAUSE
- A conflict exists between Federal and State Law
- In a conflict, Federal ALWAYS wins
TENTH AMENDMENT
State Law can be MORE RESTRICTIVE
than Federal Law
- States have POLICE POWER
- States can pass laws for health, safety, and
welfare - There is NO Federal Police Power
COMMANDEER RULE
- Federal Government CANNOT REQUIRE a state to do anything
DORMANT COMMERCE CLAUSE
State Law regulating business cannot discriminate against out of state businesses
Examples: Commerce Clause:
o Congress regulating cotton in children’s pajamas
Dormant Commerce Clause:
o State of Florida passing a law regulating how
many fish can be caught and
Discriminatory on it’s face under Dormant Commerce Clause
Strict Scrutiny applies
Discriminatory Effect under Dormant Commerce Clause:
- Intermediate scrutiny applies
- Burden on Commerce should not be
excessive
Market Participant Exception under Dorman Commerce Clause:
- State controls entire industry
- State may discriminate
Full Faith and Credit
Judgment in one state must be given full faith and credit in another
Immunity: Federal Immunity
States cannot
- Sue federal government
- Tax federal government
States can tax individuals
Individuals cannot sue Federal Gov unless consent
State Immunity
- Fed Govs and states can sue a state
- Fed gov may not tax a government activity
- Fed gov may tax a property business
