CON LAW Flashcards
What does Article III limit?
Article III limits federal power to hearing cases involving actual cases and controversies, which is known as justiciability.
What types of cases can federal courts hear?
Federal courts can hear cases involving suits between states and cases involving foreign ambassadors.
What is discretionary review?
Discretionary review allows cases to reach the Supreme Court by writ of certiorari, where the court decides whether to grant review.
What is mandatory review?
Mandatory review requires the court to take appeals from three-judge district court panels regarding injunctive relief.
What is the Final Judgement Rule?
The Supreme Court only hears cases on review if there has been a final judgement from a lower federal court or the state’s highest court.
What are adequate and independent state grounds?
The Supreme Court will hear a case from state court only if the state court judgement is overturned on federal grounds; it cannot review a state court decision that rests on an independent adequate state law ground.
Can courts give advisory opinions?
Courts cannot give advisory opinions or address hypothetical disputes.
What are declaratory judgements?
Courts can issue declaratory judgements that determine the legal effect of proposed conduct without awarding damages or injunctive relief if imminent and real danger exists to the plaintiff’s interests.
What is ripeness?
Ripeness means a case is ready when actual harm or an immediate threat of harm exists; the claim must be fully developed.
What is mootness?
A case is moot if there is no longer a live controversy because it has ended or been resolved before review, except in certain circumstances.
What are the exceptions to mootness?
Exceptions include cases capable of being repeated, voluntary cessation, and class actions when at least one member has an ongoing injury.
What is a political question?
Courts lack standing if the question is designated to another branch of government to resolve, either by the Constitution or inherently not one a judicial body can decide.
What is standing?
A plaintiff must have standing, demonstrating a concrete stake in the outcome of the controversy to bring a case in federal court.
What are the requirements for standing?
The requirements for standing include injury in fact, causation, and redressability.
What is injury in fact?
Injury in fact is a concrete and particularized injury that must be actual and an imminent threat of future injury.
What is causation?
Causation means the injury is traceable to the challenged action; the defendant’s conduct caused the injury.
What is redressability?
Redressability means it is likely that a court decision will redress the injury suffered by the plaintiff.
What must a plaintiff show for injunctive or declaratory relief?
The plaintiff must show a concrete, imminent threat of future injury.
What is third-party standing?
A plaintiff cannot assert constitutional rights of others unless there is a special relationship, it is difficult for the third party to assert their rights, or the plaintiff’s injury adversely affects their relationship with the third party.
What is organizational standing?
An organization can sue on behalf of its members if the suit is related to an issue germane to the organization’s purpose, the members would have standing to sue, and the members’ participation is not necessary.
What does the 11th Amendment prohibit?
The 11th Amendment prohibits citizens from one state or foreign country from suing another state in federal court for equitable relief or damages.
What are the exceptions to the 11th Amendment?
Exceptions include state consent to waive protection, lawsuits seeking injunctive relief against a state official, individual money damages from a state official, or congressional authorization involving federal laws under the 14th Amendment.
What powers does Congress have?
Congress’s powers are limited to those given by the Constitution, including enforcing constitutional rights under the 13th, 14th, and 15th Amendments.
What is the Necessary and Proper Clause?
The Necessary and Proper Clause allows Congress to exercise powers enumerated by the Constitution that are necessary and proper to carry out all powers vested in the federal government.
What is Congress’s taxing power?
Congress has the power to lay and collect taxes, which will be upheld if the tax has a reasonable relationship to revenue production or if Congress has the power to regulate activity.
What is Congress’s spending power?
Congress can spend for the common defense and general welfare, attaching reasonable conditions to states receiving federal funds.
What does the Commerce Clause allow?
The Commerce Clause gives Congress the power to regulate all foreign and interstate commerce.
What is intrastate commerce?
Intrastate commerce will be upheld if there is a rational basis to conclude that the activity in aggregate substantially affects interstate commerce.
What powers do the 13th, 14th, and 15th Amendments grant Congress?
They authorize Congress to pass appropriate legislation to enforce civil rights guaranteed by these amendments.
What is delegation of legislative power?
Congress may delegate legislative power to either branch as long as it is limited by specific standards and is delegable under the Constitution.
What is the Speech and Debate Clause?
The Speech and Debate Clause grants Congress immunity from defamation on the floor.
What is Congress’s police power?
Congress lacks police power to regulate solely for the health, safety, and welfare of citizens, except for Washington D.C.
What powers does the President have in the domestic sphere?
The President has powers to manage the executive branch, pardon federal offenses, appoint officials, remove executive appointments, act as commander in chief, and veto bills.
What foreign powers does the President have?
The President can negotiate treaties, enter into executive agreements, and control and deploy troops in case of actual hostilities against the U.S.
What does the 10th Amendment provide?
The 10th Amendment reserves all powers not assigned to the federal government to the states, unless prohibited by the Constitution.
What is the Dormant Commerce Clause?
If federal law is enacted, state/local law is pre-empted; states may regulate local commerce if Congress has not adopted a law on the subject.
What are the restrictions on state regulation of commerce?
States may not discriminate against out-of-state interstate commerce or place an undue burden on interstate commerce.
What is the Supremacy Clause?
The Supremacy Clause states that a validly enacted federal law trumps conflicting state/local law.
What is express preemption?
Express preemption occurs when federal law specifically states its exclusion either by Constitution or legislation.
What is implied preemption?
Implied preemption occurs when Congress intended federal law to occupy the field or when state law directly conflicts with federal law.
How does the Bill of Rights apply?
The Bill of Rights applies directly to the federal government and is incorporated to the states through the 14th Amendment Due Process Clause.
What are fundamental rights?
Fundamental rights are treated under both the 5th Amendment Substantive Due Process and the 14th Amendment Equal Protection.
What is the right to privacy?
The right to privacy is subject to strict scrutiny for rights such as marriage, procreation, family, children, and contraceptives.
What is the right to vote?
The right to vote is subject to strict scrutiny; at-large elections are constitutional when all voters vote for all office holders.
What is the right to travel?
The right to travel is subject to strict scrutiny; durational residency requirements are invalid if too long.
What is state action?
Individual right protections of the Constitution apply only when there is state action, either direct action by the government or action by a private party fairly attributable to the government.
What does the Due Process Clause guarantee?
The Due Process Clause guarantees that no person shall be denied life, liberty, or property without due process of law.
What is procedural due process?
Procedural due process requires fair process, including hearing and notice, before depriving an individual of liberty or property.
What is substantive due process?
Substantive due process involves determining whether the government has adequate reason for depriving life, liberty, or property.
What does the Equal Protection Clause prohibit?
The Equal Protection Clause prohibits the government from denying citizens equal protection of the laws.
What is strict scrutiny?
Strict scrutiny applies to suspect classes and requires that the law is necessary to serve a compelling government interest.
What is intermediate scrutiny?
Intermediate scrutiny applies to quasi-suspect classes and requires that the law is substantially related to an important government interest.
What is rational basis review?
Rational basis review applies when no suspect class is involved and requires that the law is rationally related to a legitimate government interest.
What does the Takings Clause state?
The Takings Clause allows the government to take private property for public use if it provides just compensation.
What are the requirements for a taking under the 5th Amendment?
The requirements include that private property is taken for public use and with just compensation.
What is a possessory taking?
A possessory taking occurs when the government physically occupies property or there is a total loss of the property’s economic value.
What is a regulatory taking?
A regulatory taking can occur if there is an economic impact, extent of interference with investment-backed expectations, and character of regulation.
What are land use exactions?
Land use exactions are conditions on the approval of a permit that may constitute a taking unless there is an essential nexus and rough proportionality to the state interest.
What does Article IV prohibit?
Article IV prohibits states from discriminating against non-residents regarding fundamental rights or economic activities.
What are the three conditions for regulatory taking?
1) There’s an economic impact 2) Extent of interference with investment-backed expectations 3) Character of regulation
What is a land use exaction?
Conditions on approval of a permit where the government exacts promises from the developer.
It is a taking unless there is an essential nexus between government interest and permit conditions imposed on the property owner, and the government makes an individualized determination that the condition is ‘rough proportionality’ to advancing the state interest.
What does Article IV’s Privileges and Immunities Clause prohibit?
It prohibits states from discriminating against non-residents regarding fundamental rights or economic activities.
What types of entities are not protected under the Privileges and Immunities Clause?
Corporations and aliens are not protected.
When is a discriminatory state law invalid?
If it relates to civil liberties or commercial activities and is not necessary to achieve an important government interest.
What is the Contracts Clause?
It prohibits states from retroactively and substantially impairing contract rights.
What are the three questions to ask regarding the Contracts Clause?
1) Has the government substantially impaired an existing contractual relationship? 2) Does the interference further a legitimate and significant public purpose? 3) Does the interference reasonably relate to fulfilling that purpose?
What is the standard for strict scrutiny review?
The government must show that the regulation is narrowly tailored to achieve a compelling government interest using the least restrictive means.
What triggers intermediate scrutiny review?
When the government regulation is substantially related to an important government interest.
What is the standard for rational basis review?
The challenger must show that the action is not reasonably related to a legitimate state interest.
What does the Establishment Clause prohibit?
It prohibits the government from establishing or endorsing religion.
What must laws that discriminate against a religion pass?
They must pass strict scrutiny: narrowly tailored to achieve a compelling government interest using the least restrictive means.
What does the Free Exercise Clause prohibit?
It prohibits the government from interfering with or punishing the exercise of religion.
What is the distinction between beliefs and conduct under the Free Exercise Clause?
Beliefs are protected, but conduct is not.
What is the scope of speech protected by the First Amendment?
It protects the right to freedom of speech and expressive activities that constitute speech.
What is prior restraint?
Regulation of speech by court order or ban that occurs before its expression, which is unconstitutional except in certain circumstances.
What is void for vagueness?
A law is void for vagueness if a reasonable person cannot tell whether the speech is prohibited or permitted.
What is the difference between content-based and content-neutral regulations?
Content-based regulations are subject to strict scrutiny, while content-neutral regulations are subject to intermediate scrutiny.
What are time, place, and manner restrictions?
Regulations related to the conduct of speech that must be content neutral, narrowly tailored to serve an important government interest, and leave open alternative avenues of communication.
What is incitement in the context of speech?
Speech that advocates for the use of force or illegality, directed to incite imminent lawless action, and is likely to produce such action.
What constitutes fighting words?
Speech likely to incite immediate physical retaliation to the average person.
What are the three criteria for obscenity?
1) Appeals to the average person’s prurient interest in sex 2) Portrays sex in a patently offensive way 3) Lacks serious literary, artistic, political, or scientific value.
What is the regulation of commercial speech?
Commercial speech is protected if truthful; misleading or false speech is not protected.
What is the standard for public school students’ speech?
Schools may regulate speech only if it would materially and substantially interfere with school operations.
What is the standard for press defamation?
Press is afforded heightened protection based on the type of person involved, requiring proof of actual malice for public figures.
What limits the government’s ability to regulate association?
The government may regulate the right to freely associate if it passes strict scrutiny.
