Con Law Flashcards
Establishment Clause
(SEX or PEE)
(1) Secular Purpose
(2) Effect neither promotes nor inhibits religion
(3) no excessive government entanglement
Time Place and Manner Restrictions
Content Neutral
Narrowly tailored to serve an important government interest
Leave open alternative channels of communication
Rational Basis
Burden on the challenger.
Rationally related to a legitimate government interest
Commercial Speech Regulation
Must concern lawful activity and cannot be misleading or fraudulent; then
(1) substantial government interest (2) directly advances government interest and (3) NT to substantial government interest
Strict Scrutiny
Government must prove law is necessary to achieve a compelling interest
Applies to equal protection (suspect classes; NORA) and violation of fundamental rights
Alienage is RB IF - voting, serving on a jury, cops, teacher or probation officer
Executive Agreements and Treaties
Treaty - Sen approval; prevails over state; last in time control for fed
Exec. Agree - NO Sen. approval; prevails over states; fed stat control
Intermediate Scrutiny
Substantially related to an important government interest (gender, illegitimacy, undocumented alien children) (SIC)
Classifications for role stereotypes not allowed but remedy past discrimination is allowed
Declaratory Judgment
Fed Court will hear only if actual controversy
P must show that he engaged or wishes to engage in specific conduct and law imposes an immediate danger
Standing
A person must have a concrete stake in the outcome of a case at all stages of litigation
(1) Injury (need not be economic)
(2) Causation
(3) Redressability
* Taxpayers only have standing if challenging establishment clause
Third Party Standing
(1) If 3P has difficulty asserting own rights (membership association); or
(2) Special relationship b/t claimant and 3P (doctor patient)
Ripeness
Pre-enforcement review (usually seeking declaratory judgment)
Hardship will be suffered and fitness of issues for review
Mootness
Events after filing lawsuit no long in existence = moot
EXCEPT (1) Wrong capable of repetition but evades review (2) Voluntary cessation (3) Class Action
Political Questions
Will not be adjudicated
NEVER right answer - republican form of government, foreign policy, impeachment and removal challenge, gerrymandering
Commerce Power
Congress can regulate channels, instrumentality, economic activities with a substantial effect on IS commerce.
*Cannot compel activity
Preemption
(1) Express - exclusivity in the field
(2) Implied - cannot comply simultaneously with state and federal law so state law preempted
Dormant commerce Clause (negative implications)
(1) State or local discrimination against out of staters
(2) Places undue burden on IS commerce unless NECESSARY to achieve an IMPORTANT government purpose (except congressional approval and market part.)
* burden v. benefit
P & I of Article IV (right to earn a living)
(1) Discriminates against out of staters
(2) Pertains to economic activities or fundamental rights (making a living)
* *Can’t be used by corporations or aliens
(3) Must be necessary to achieve an important government purpose
State Action
Government (not private individuals) must comply with constitution
State Action of private individuals when (1) traditionally done by the government or entanglement (authorizes, encourages or facilitates
Procedural Due Process
Deprivation of life, liberty (freedom in const) or property
Balancing test: (1) importance of the interest; (2) ability of additional procedures (3) efficiency/economically possible
Welfare = notice and hearing
SS benefits = post-termination hearing
Substantive Due Process
*Requires that gov’t deprivation of LLP be justified by sufficient purpose.
Protecting economic liberties and safeguarding properties
Only RB test used for laws affecting economic rights (taking can be either physical or regulatory)
Contracts Clause
ONLY STATES - cannot enact laws interferring with already existing contracts
Interference w/ private - Substantially impairs rights and must be reasonably and NT to promote important interest
Government contract interference = SS
Fundamental Right to Privacy
Right to marry, procreate, family together, upbringing of children, purchase and use contraceptives, right to an abortion (cannot prohibit prior to viability but can regulate as long as no undue burden; after viability - prohibit unless necessary to protect health)
Right to refuse medical treatment, right to travel (durational residency requirement)
Right to vote - at large election are constitutional unless proof of discriminatory PURPOSE
Free Speech
CB (SS) - based on subject matter or viewpoint
CN (IS)
Symbolic speech - may regulate if IMPORTANT interest unrelated to suppression of the message and no grater than necessary to achieve goal (flag burning/cross)
GOVT SPEECH IS RB (usually can’t be challenged
Unprotected/Less Protected Speech
(1) Incitement of imminent lawless action that is likely to produce that action
(2) Fighting words - true threats or personally abusive words likely to incite immediate physical retaliation (usually vague or overbroad though)
(3) Obscenity - Must appeal to prurient interest, patently offensive and lack artistic, literary, political or scientific value (national standard)
NOTE: speech by govt employees on the job is not protected
(4) Defamatory speech
(5) Some commercial speech
Defamation
(1) Public figure - must prove actual malice and P must prove falsity (punitive damages)
(2) Private Figure of Public Concern - negligence and actual injury and P must prove falsity - punitive requires actual malice
Places Available for Speech
(1) Public Forums - cant be CB (SS), proper TPM (IS)
(2) Designated Public Forum - government properties that are voluntarily open (same as public forums)
(3) Limited Public Forums - limited to certain groups or dedicated to certain speech - reasonable regulation and VPN
(4) Non public forum - RB (military bases, area outside jails, schools, sidewalks outside post office, signs on public property, airports - reasonable laws not aimed at the suppression of speech
Freedom of Association
Prohibit or punish group membership must meet SS
Can’t require disclosure of group membership unless SS
10th Amendment
Prohibits Congress from subjecting states to regulation
Reserves to the states powers not granted to the federal government
Does not bar enforcement of a regulation that applies to the states and private sector
11th Amendment
Prohibits federal courts from hearing damages action against the states and their agencies
Bars suits by state employees against state employers
