Con Law Flashcards
Supreme Court Review: Mandatory Review
State v. state; decision of 3 federal judge panel
Permissive Supreme Court Review
On vote of 4 justices, review of decisions from highest state court if no AISG; decisions from US CAP
No Federal Court Review
Private party v. state (except under § 5)
Inter-Governmental Suits
US can sue state but state can’t sue US without permit; states can sue other states with mandatory sup ct review
Federal Police Power
“MILD”: Military, Indian (reservations), (federal) Land, District (of Columbia).
Strings Attached to Congressional Spending on States
(1) EXPRESSLY STATED
(2) RELATED TO SPENDING PROGRAM’S PURPOSE
(3) NOT UNDULY COERCIVE
Removal: Permissible Congressional Limits on President’s Removal Power
(1) Independence from President desirable
(2) Limited to Good Cause Shown
Executive Agreements versus Treaties
Later in time treaty > federal law > executive agreement
Treaties require approval by Senate
Pardon Power
“CRIMINALS FESTER INSIDE”
(1) Must be for CRIMINAL offense
(2) Charged under FEDERAL law
(3) Congress has not IMPEACHED the person
Fourteenth Amendment P+I Clause
RIGHT TO TRAVEL: State can’t discriminate against people who move into the state; right to enter onto federal lands; right to petition congress for redress of grievances, right to vote for federal officers.
Must be NECESSARY to achieve an IMPORTANT government purpose; no LDA. Requires SUBSTANTIAL JUSTIFICATION.
Article IV P+I Clause
RIGHT TO EARN A LIVING: State can’t discriminate against NON-RESIDENTS trying to earn a living in that state. Must be NECESSARY to achieve an IMPORTANT government purpose; no LDA. Requires SUBSTANTIAL JUSTIFICATION.
Dormant Commerce Clause
(1) If a state law AFFECTS interstate commerce; then (2) BALANCING TEST if no discrimination against out-of-staters; and (3) if there’s discrimination against out-of-staters, gov’t must show that the law is NECESSARY to achieve an IMPORTANT government purpose (NO LDA)
EXCEPTION: GOV’T AS MARKET PARTICIPANT
Dormant Commerce Clause and State Taxes
Cannot discriminate against out-of-staters
A non-discriminatory tax is valid if:
STATES NEED FREQUENT ADVICE FROM RABBIS
S ubstantial N exus (between prod/activit taxe and the state)
F airly A pportioned (to avoid double taxation)
F air R elation (to the services provided by state)
NO TAXATION ON COMMODITIES IN COURSE OF INTERSTATE TRAVEL UNTIL GOODS REACH DESTINATION
TAX ON INSTRUMENTALITIES OK IF THERE IS A TAXABLE SITUS AND THE ABOVE TEST IS MET. PROPER APPORTIONMENT = AVG PHYS PRESENCE OF INSTRUMENTALITY IN THE STATE
FULL FAITH AND CREDIT
(1) jurisdiction of rendering court (PJ + SMJ)
(2) final judgment
(3) on the merits
Bill of Rights Not Applicable To States
8th Am. prohibition of excessive fines; 7th Am. right to jury trial in civil cases; 5th Am. right to grand jury indictment in criminal cases; 3rd Am. right against quartering of soldiers.
§ 5 of the Fourteenth Amendment
Congress’s law must be NARROWLY TAILORED, congruent, and proportional, to rectify a history or pattern of EPC violations.
Strict Scrutiny
NECESSARY to achieve a COMPELLING gov’t purpose; no LDA. Gov’t burden.
Intermediate Scrutiny
SUBSTANTIALLY RELATED to an IMPORTANT gov’t purpose, narrowly tailored. Gov’t has burden of showing exceedingly persuasive justification for the discrimination.
Rational Basis
Reasonable/rationally related to a conceivable gov’t purpose. Petitioner’s burden.
Contracts Clause
Private –> substantial impairment triggers intermediate scrutiny
Public –> substantial impairment triggers higher scrutiny, maybe strict scrutiny
Due Process Balancing test
(1) IMPORTANCE of interest to individual;
(2) AVAILABILITY of add’l procedures to increase accuracy;
(3) Government interest in EFFICIENCY
DP: Termination of welfare benefits
Notice and a hearing
DP: Right to custody of one’s children
Notice and a hearing
DP: Termination of social security DISABILITY benefits
POST-TERMINATION hearing
DP: Punitive Damage awards
jury instructions to guide discretion + judicial review to ensure reasonableness of award
DP: non-citizen held as enemy combatant
ability to challenge continued detention through some legitimate procedure
DP: public employment, if tenured or termination only allowed for cause
Prior notice, opportunity to respond, and post-deprivation hearing
DP: Public education – suspension or academic dismissal
Prior notice, opportunity to respond (no hearing required)
DP: U.S. citizen facing crim charges in foreign country, held by Us military
Habeas corpus petition and review in federal court
DP: Recusal of judge
Required if` substantial risk of actual bias
DP: Fees denying access of indigents to courts
Must be waived if imposition denies fundamental right: marriage license, divorce, candidate for electoral office, but not when non-fundamental rights are involved such as bankruptcy discharge or review of welfare determination.
DP: emergency action by government
STD = shocks the conscience
Regulatory Taking
No reasonable, economically viable use of land remains.
Conditions on development = taking unless justified by a benefit roughly proportional to the burden of the regulation.
Temporary denial of use of land is okay if REASONABLE (e.g., environmental standard)
Taking: Public Use Standard
Reasonable belief of benefit to the public
Right to marry
Fundamental privacy right triggering strict scrutiny
Right to procreate
Fundamental privacy right triggering strict scrutiny
Right to custody of children
Fundamental privacy right triggering strict scrutiny (state must show compelling interest)
Right to keep family together
Fundamental privacy right triggering strict scrutiny
Right to purchase and use contraceptives
Fundamental privacy right triggering strict scrutiny
Right to possess obscene material
Fundamental privacy right triggering strict scrutiny
Right to engage in private consensual sexual activity, same-sex or otherwise
Fundamental privacy right triggering unknown level of scrutiny
Right to refuse medical teatment
Fundamental privacy right triggering unknown level of scrutiny
(Note: this is an individual right, states can place burdens on allowing others to decide)
Right to physician-assisted suicide
No right
Right to education
No right
Right to practice trade or profession
No right
Right to vote
Fundamental constitutional right triggering strict scrutiny
Poll Taxes
Unconstitutional
Property Requirement to Vote
Unconstitutional
Prohibition on Parties Opening Primary Elections to Anyone
Unconstitutional
Durational residency requirements to vote
> 50 days unconstitutional
Dilution of right to vote
Congressional: requires almost exact mathematical equality when creating congressional districts
State: no variances of more than a few percentage points for number of persons within districts, but maintaining integrity of local political subdivisions is a legitimate state interest as long as final apportionment is substantially based on population (upheld 16% variance for this reason).
Right to Abortion
Fundamental privacy right triggering undue burden analysis. (Prior to viability, no prohibition but regulation as long as not undue burden; after viability, prohibition unless necessary to protect life/health of mother).
Undue burdens = spousal consent and notification
Not undue burden = parental consent and notification for unmarried minor; 24-hour waiting period; performance by licensed physicians; partial-birth abortion
Laws Preventing People From Moving Into State
Protected under 14th Am. P+I clause (strict scrutiny)
ONE YEAR RESIDENCY IN STATE FOR WELFARE BENEFITS
INVALID under 14th amendment (EPC/P+I)
ONE YEAR RESIDENCY IN STATE TO VOTE
INVALID under 14th amendment (EPC/P+I)
ONE YEAR RESIDENCY IN STATE TO RECEIVE SUBSIDIZED MEDICAL CARE
INVALID under 14th amendment (EPC/P+I)
ONE YEAR RESIDENCY IN STATE TO OBTAIN DIVORCE
VALID under 14th amendment (EPC/P+I)
INCREASED PENALTIES ON FATHER ABANDONING CHILDREN BY LEAVING STATE
VALID under 14th amendment (EPC/P+I)
RESTRICTIONS ON INTERNATIONAL TRAVEL
NO fundamental right to international travel, so rational basis review applies
Commercial Speech Restrictions
Bans permissible if the speech proposes unlawful activity or is misleading/fraudulent, otherwise upheld only if: SUBSCONSCIOUS DELIVERS ANOTHER NINE TORTILLAS.
The regulation serves a SUBSTANTIAL gov’t interest, directly advances that interest, and is narrowly tailored to serve that interest
Prior Restraints
Strict Scrutiny eview: (1) Special social harm; (2) Narrowly drawn, reasonable, and definite; (3) Prompt + final determination of validity of restraint.
Licensing for Speech
Only if: (1) important reason; (2) clear criteria w/ almost no discretion in licensing authority; (3) procedural safeguards
Regulation of Symbolic Speech
OK if (1) important interest unrelated to suppression of the message; (2) impact on communication is no greater than necessary to achieve that goal
Flag Burning
Protected speech
Draft card burning
Not protected speech
Nude dancing
Not protected speech
Burning crosses
Protected unless done in a threatening way or to intimidate
Contribution limits in election campaigns
Not protected speech (limits allowed)
Expenditure limits in election campaigns
Protected speech (no limits allowed)
Anonymous speech
Protected speech
Equal Protection Clause: Initial Questions
(1) Classification? (2) Level of scrutiny? (3) Scrutiny met?
Suspect Classes
Trigger strict scrutiny: Race, Alienage (with exceptions), Nat’l Origin
When Alienage does NOT trigger Strict Scrutiny
(1) Federal gov’t purposes
(2) If the law is related to a “self-government” role like police officer, secondary school teacher, elective office, jury service.
(3) UNDOCUMENTED aliens are not a suspect class, except maybe children (can’t deny undocumented alien child a free public education)
Quasi-Suspect Classes
Gender (benefitting OK but not to perpetuate stereotypes); Legitimacy
Gender-based death benefits
Invalid under intermediate scrutiny
Gender-based peremptory strikes
Invalid under intermediate scrutiny
Alimony only for women
Invalid under intermediate scrutiny
State-supported all-male, all-female schools
Invalid under intermediate scrutiny
Discriminatory minimum drinking age
Invalid under intermediate scrutiny
discriminatory statutory rape laws
VALID under intermediate scrutiny
All-male draft
VALID under intermediate scrutiny
Requiring American fathers, not mothers, to prove parentage of non-marital children born abroad to obtain US citizneship
VALID under intermediate scrutiny
Law requiring establishment of paternity to receive certain benefits
VALID under intermediate scrutiny
Classifications based on wealth
RATIONAL BASIS
Classifications based on age
RATIONAL BASIS
Classifications based on disability
RATIONAL BASIS
Gov’t Speech
Rational basis (w/ religious messages, must have diversity of message)
Gov’t funding of private messages (e.g., funding campus newsletter)
Must be viewpoint neutral
Content-based restrictions of speech
View-point or subject matter: strict scrutiny
Content-neutral restrictions of speech
Intermediate: must advance important interests unrelated to the suppression of speech and be narrowly tailored, not burden substantially more speech than necessary
Time/place/manner restrictions in public forums or designated public forums
(1) Content neutral; (2) narrowly tailored for important government purpose; (3) leave alternative channels of comm’n open
Limited Public Forum Restrictions
(1) viewpoint neutral; (2) reasonably related to legitimate gov’t purpose
Public forums
Sidewalks (except outside of Post Office; parks) NOT e.g. the steps of a courthouse while in session.
Limited Public Forums
Classrooms in public schools when out of session, any public forum opened by government for some speech
Non-public forum
Military bases, airports (but can’t ban ALL speech; may prohibit solicitation of money, but can’t prohibit distribution of literature ); schools while in session; government workplaces.
Obscenity Restrictions
Not protected speech if:
Prudish Individuals Preach Opposition (to) Nudes, Anarchists, and Vandals.
(1) appeals to PRURIENT INTEREST in sex (measured by community standard);
(2) is PATENTLY OFFENSIVE (by community standards); and
(3) NO serious ARTISTIC, literary, scientific, political, or social VALUE (measured by national standard).
Oaths requirements
OK if not over broad, vague (can’t require to swear to flag or have/not have membership in parties) but can require oath to uphold constitution.
NOTE: REQUIREMENT NOT TO BE A MEMBER OF AN ORGANIZATION THAT PROMOTES ILLEGAL ACTIVITIES IS NOT CONSTITUTIONAL. Overbroad –> state has compelling interest in preventing KNOWING membership with specific intent to FURTHER UNLAWFUL AIMS but cannot deny license b/c of mere membership in particular group.
Association: Punishment of group members
OK if: (1) Actively affiliated; (2) knows of illegal activity; (3) specific intent to further illegality
Association: Protection of right to discriminate
None, unless it’s a very intimate association whose purpose is to discriminate as expressive activity (e.g., KKK dinner party).
Association: laws requiring disclosure of group membership
NOT OK if disclosure would chill membership (e.g., NAACP in the 60s in the South)
Establishment Clause Test for Government Activity
Government must prove SEX:
(1) Secular purpose
(2) primary Effect is not to advance religion;
(3) no eXcessive gov’t entanglement with religion
Payment of teacher’s salaries in parochial schools
Violates Establishment Clause
Discrimination against religious speech or among religions
Must meet strict scrutiny or else violates Establishment Clause
Laws aimed at religious PRACTICES generally
Must meet strict scrutiny or else violates Establishment Clause
Neutral laws of general applicability that tangentially affect a certain religious practice
Does not violate establishment clause unless org can show the legislation was MOTIVATED BY DESIRE TO INHIBIT the religious organization’s objections.
Don’t apply rational basis test to reviewing laws of general applicability under the establishment clause.
Government-sponsored religious activity in public schools
Violates Establishment Clause
Voluntary/mandatory school prayer or voluntary moment of silent prayer
Violates Establishment Clause
Government assistance to parochial schools not used for religious instruction
Does Not Violate Establishment Clause
Government providing vouchers to parents which may be used to send children to parochial schools
Does Not Violate Establishment Clause
Legislature’s employment of chaplain or beginning legislative session with prayer
Does Not Violate Establishment Clause
Delegation of zoning power to religious organization
Violates Establishment Clause
Requirement that all employers grant workers their Sabbath day off
Violates Establishment Clause
Christmastime display of only religious symbols (nativity scene, menorah only)
Violates Establishment Clause
Displaying Ten Commandments with predominantly non-religious purpose
Does Not Violate Establishment Clause
Displaying Ten Commandments with predominantly religious purpose
Violates Establishment Clause
Christmastime display that includes religious and nonreligious symbols
Does Not Violate Establishment Clause
Granting religious organization an exemption from employment discrimination laws where contrary to org’s beliefs
Does Not Violate Establishment Clause
Reimbursement for Writing Achievement Tests in ParochialSchools
Violates Establishment Clause
Providing private schools with teachers or money to pay teachers of secular classes
Violates Establishment Clause
Tax exemptions for religious ass’ns only
Violates Establishment Clause
Property tax exemptions for religious, charitable, or educational properties
Does Not Violate Establishment Clause
Tax credits for parents of all students for educational expenses, including parochial school children
Does Not Violate Establishment Clause
Tuition vouchers for poor students that can be used to attend both public and private schools
Does Not Violate Establishment Clause
Providing transportation to and from school for all students, including those at parochial schools
Does Not Violate Establishment Clause
Providing all students with state-approved textbooks or lending religiously-neutral instructional materials to private and public schools
Does Not Violate Establishment Clause
Ending classes early to allow students to attend off-school religious classes
Does Not Violate Establishment Clause
Ending classes early to allow students to attend voluntary in-school religious classes
Violates Establishment Clause
Prayer, bible reading, or posting ten commandments in school or at football games
Violates Establishment Clause
Requiring creation science to be taught
Violates Establishment Clause
Allowing religious student groups to meet in unused classrooms as any other student group
Does Not Violate Establishment Clause
Speech restrictions on curriculum-based public high school activities
Not public forums so restrictions will be upheld as long as viewpoint neutral and reasonably related to legitimate government purpose.
Prohibition on publishing articles on drugs in a school newspaper as part of a journalism class
Upheld as valid under First Amendment
Speech protections in public school
Students do have some first amendment protections although they do not enjoy FULL constitutional rights. E.g., students have First Amendment rights to wear black armbands in school to protect Vietnam war. Curriculum-based high school activities are NOT public forums, though, and can be regulated as long as viewpoint neutral and reasonably related to legitimate gov’t purpose
