Con Law Flashcards
Requirements for Constitutional Standing?
1) Injury in fact; 2) Causation; and 3)Redressability
Justiciability doctrine?
RAMPS
Ripeness: Genuine immediate harm or threat of harm
Advisory Opinion: Fed courts can’t issue AO’s
Mootness: Controversy exists at all stages of review
Political Question:
Standing:
Typical Executive Powers
○ Executive orders - binding on federal agencies
○ Commander in Chief
○ Appointment Powers
○ Emergency Powers
○ Clemency Powers - Only FEDERAL criminals
Hierarchy of laws
Constitution
Congressional Acts (and regs)
Executive Orders/Agreements
State Laws
Congressional Powers
Federal Property
Tax/Spend for general welfare
coin/print money
Interstate Commerce
What is the anti-commandeering doctrine
Congress cannot tell a state to enact laws or enforce law. (congress can condition spending)
Strict Scrutiny
Burden on the gov’t to show the law/regulation is NECESSARY to justify a COMPELLING government interest.
What gets strict scrutiny
Race, national origin, alienage, infringing on a fundamental rights
Intermediate Scrutiny
Burden on government to show the regulation is NECESSARY to justify a COMPELLING government interest.
What gets intermediate scrutiny
Gender, alien children, sexual orientation (maybe)
Rational Basis Review
Plaintiff must show that the regulation is not RATIONALLY related to a LEGITIMATE government interest.
note; congress does not have to intend for the law to meet the interest identified.
What are the fundamental rights
- Privacy (CAMPER) - (Contraception, abortion, marriage, procreation, education (private), familial relations,
- Right to vote
- Right to travel
What are the fundamental voting rights (what are not)
Fundamental: discrimination in voting, reapportionment, switching party affiliation, ballot restrictions based on special interest
Not fundamental: Right to be a candidate, filing fees, age/residency restrictions.
What is the Priv. and Immunities Clause standard when a state discriminates against out-of-staters
SUBSTANTIAL government interest must exist
What is a taking
a regulation that denies the owner of ALL economic use of viable land.
When can the government condemn land for PUBLIC USE
Government must show that the action is RATIONALLY related to ANY GOVERNMENT PURPOSE
What is a Bill of Attainder
A statute/regulation that punishes a named group or individual
What is the major exception to the 11th Amendments prohibition of citizens suing their state.
When the plaintiff is seeking injunctive relief
-Other exceptions (waiver, enforcement power of 13, 14, 15th amend, state officials and subdivisions, state v. state)
What is the free speech analysis?
Step 1 - Content or TPM?
Content step 2; TPM step 3
Step 2 - Protected Speech?
Yes: strict scrutiny; no: rationality review
Step 3 - Apply 3 step TPM test
1) Significant Gov’t interest
2) Narrowly tailored (least restrictive means)
3) Alternative means of communication
What are forms of unprotected speech?
Defamation, obscenity, fighting words, fraudulent commercial speech, child pornography
What is the analysis for free exercise questions?
Purposeful interference - strict scrutiny
Incidental burden - Rational basis review
What is the Lemon test?
Establishment clause issues
1) Primary PURPOSE must be secular
2) primary EFFECT must neither inhibit nor advance religion
3) No excessive government ENTANGLEMENT
Organizational Standing Requirements
1) Individual standing of member
2) Purpose is related to interest
3) Member interest alligned
When can congress tax/spend?
If one of three requirements met:
1) Objectively a tax
2) subjectively a tax
3) regulatory tax if congress has regulations
What are the conditional spending requirements?
1) spending serves general welfare
2) condition is unambiguous (usually met)
3) Condition relates to the federal program
4) no coercive effect
Analysis for state laws that discriminate against other states on its face?
The regulation is NECESSARY to serve a COMPELLING state interest.
Analysis for state laws that incidentally burden interstate commerce?
Balance state interest v. burden on interstate commerce.
What are the exceptions to the dormant commerce clause?
1) congressional authorization/delegation
2) market place participant
When can congress prohibit private party discrimination?
only when it is acting pursuant to enforcement powers of 13th amendment.
What is the balancing test for procedural due process?
Balance:
1) Importance of the protected interest
2) Risk of error/erroneous deprivation
3) burden on the government
Think Goldberg (doctor v. landlord)
What is the review for abortion laws
Cannot impose an undue burden on woman’s right to an abortion
