Con Law Flashcards
Procedural Due Process
Concept of “fundamental fairness.” Protects (1) right to be notified and (2) opportunity to be heard.
Questions:
(1) is the interest protected?
(2) if so, what process is due?
(3) Is there a neutral decision maker?
Public employees at-will have no property interest. But for-cause employees do. If there is a significant reason for removing a for-cause public employee, a prompt post-termination hearing can be used with reinstatement and back pay if the employee prevails.
Abortion restriction standard
“Undue burden” test = state may regulate abortions as long as the regulations do not place substantial obstacles in the way of the women’s right to seek an abortion.
Contracts Cause
Art I, § 10 prohibits states legislation (but not feds or state court orders) from passing any law impairing the obligation of contracts. Only applies to state legislative that retroactively impairs contractual rights.
Impairment of private contracts is invalid unless gov’t can show it was reasonable and necessary to serve an important governmental interest.
Impairment of public contracts gets the same test, but with a slightly stricter application.
Regulation of commercial speech
Intermediate First-Amendment protection. Elements:
(1) commercial speech concerns lawful activity that is neither false nor misleading
(2) asserted gov’t interest must be substantial
(3) regulation directly advances the asserted interest
(4) regulation is narrowly tailored to serve that interest (i.e., a “reasonable fit” between the gov’t ends and its means).
Congressional immunity
Members of Congress enjoy immunity for statements made in the regulator course of legislative process. But no immunity for statements made outside Congress.
Presidential immunity
President enjoys absolute executive immunity from civil suits for money damages while in office.
Dormant Commerce Clause
States cannot:
(1) Discriminate against out-of-state commerce.
(2) Unduly burden interstate commerce (balancing test)
(3) Regulate wholly out-of-state commerce
Exceptions:
(1) traditional local government function (e.g., trash removal).
(2) Important governmental interest and no nondiscriminatory means available
(3) State acting as market participant
(4) Congressionally permitted discrimination
Congressional investigation
Congress has power to conduct investigations through the Necessary and Proper clause. But procedural due process rights apply, including presence of counsel.
Key to Art III jurisdiction
Cases and controversies
Supreme Court’s Original Jurisdiction
(1) cases affecting ambassadors
(2) Other public ministers/consuls
(3) when a state is a party
Adequate and independent state ground
If state’s highest court rests its decision on an adequate and independent state ground, SCOTUS will not hear appeal.
Elements of standing
(1) injury-in-fact
(2) causation
(3) repressibility
Taxpayer standing
Generally not grounds for standing. However, taxpayers have standing to (1) litigate how much they owe on a tax bill and (2) challenge government expenditures as violating the Establishment Clause.
Third-party standing
Generally no standing for third parties to bring lawsuits. Exceptions include:
(1) when 3rd party unable to assert his own rights
(2) if there is a special relationship between π and 3rd party
(3) π’s injury adversely affects the π’s relationship with 3rd party
Organizational standing
Organization CAN sue on its own behalf or on behalf of members if: (1) member has standing in his own right, AND (2) interest at stake is germane to organization’s purpose.
Timeliness of lawsuit
Ripeness = π must experience real injury
Mootness = must be live controversy. Not moot if:
(1) is capable of repetition but evading review
(2) ∆ voluntarily ceases illegal/wrongful act upon commencement of the litigation
(3) named π’s claim in class action is resolved
Three justiciability concerns
(1) No advisory opinions (need actual case or controversy)
(2) No declaratory judgments (must be “real and immediate” danger to party’s interest
(3) Political question matters
Pullman abstention
Federal court may abstain from ruling on unsettled issues of state law.
Power to regulate interstate commerce (three ways)
(1) channels of commerce
(2) instrumentalities of interstate commerce AND
(3) any activity that substantially affects interstate commerce (aggregation if rational basis for concluding that the “total incidence” of activity in the aggregate substantially affects interstate commerce)
Taxing and spending powers
Tax upheld if reasonable relation to revenue product OR if Congress had power to regulate the activity being taxed
Spending upheld if connected to general welfare or any public purpose (almost always upheld).
Congress’s War and Defense Powers
(1) power to declare ware
(2) raise and support armies/navy
(3) govern land/naval forces and
(4) organize militia
Congress’s power of aliens and citizenship
Plenary power over aliens (subject to DPC)
Exclusive authority over naturalization.
Necessary and Proper Clause
Power to enact legislation necessary and proper to execute any other federal authority. NOT an independent source of power. Must link to another enumerated power.
Enabling clause of 14th Amendment
Enables Congress to enforce equal protection and due process. Enforcement must have “congruence and proportionality” between injury prevented and means adopted to achieve that end.
Delegation of legislative power
Allowed if Congress specifies an “intelligible principle” to guide the delegate.
When can states tax interstate commerce?
General Rule: Permitted only if Congress has NOT already regulated and tax does not discriminate against or unduly burden interstate commerce.
Four-part test:
(1) substantial nexus between activity taxed and taxing state
(2) fair tax apportionment
(3) No local direct commercial advantage over intestate competitors
(4) Tax must be fairly related to services provided by taxing state
When can states tax foreign commerce?
Never, unless states have congressional consent.
Preemption (express and implied)
Express = Congress makes federal power exclusive or prohibits state regulation in the same area (narrowly construed)
Implied = three ways:
(1) Congress intended for federal law to occupy the field
(2) State law directly conflicts with federal law
(3) state law indirectly conflicts by creating an obstacle to federal law’s purpose
Full faith and credit applies to court judgments if…
(1) court rendering judgment had jurisdiction over parties and subject matter
(2) judgment was on the merits AND
(3) final judgment
Substantive Due Process Standards
Strict Scrutiny = Law must be least restrictive means to achieve compelling governmental interest. Applies to fundamental rights.
Rational basis = Law must be rationally related to a legitimate state interest.
Fundamental rights (substantive due process)
(1) Travel
(2) Voting and ballot access
(3) privacy
(4) Second amendment firearm right
Triggers strict scrutiny (least restrictive means to achieve compelling governmental interest)
