Con Law Flashcards
Standing
Injury in fact (concrete and particularized, actual or imminent),
Causation (fairly traceable to D’s conduct),
Redressability (relief likely to prevent/redress injury).
Taxpayer standing sufficient for….
challenging one’s tax liability, and
challenge gvmt expenditures as violating establishment clause
Commerce Clause Power
Congress can regulate.... Channels and Instrumentalities of Interstate commerce, including Any activity that substantially affects interstate commerce
Aggregating effect of activity for commerce clause purposes
Even if an intrastate activity does not directly affect interstate commerce, Congres can regulate so long as Congress has a
RATIONAL BASIS to conclude that
the TOTAL INCIDENCE of activity in the AGGREGATE
SUBSTANTIALLY AFFECTS interstate commerce.
Tax and spend power
Congress can tax if it has reasonable relationship to revenue production
Congress can spend on general welfare and impose conditions on funding
14th Amdt Enabling Clause
Enables Congress to enforce equal protection and due process rights, but enforcement must have “congruence and proportionality” between injury to be prevented and means adopted to achieve that end.
Dormant Commerce Clause
State REGULATION burdening interstate commerce not OK if discriminatory or undue burden.
- Discriminatory: FACIALLY DISCRIMINATORY regulation OK only if NECESSARY to achieve IMPORTANT NON-ECONOMIC GVMT interest;
- Undue burden: Undue burdens on interstate commerce must be RATIONALLY RELATED to LEGITIMATE GVMT INTEREST, and BURDEN on commerce must be outweighed by BENEFITS TO THE STATE.
- Exceptions: Gvmt as market participant and congressional consent.
Privileges and Immunities of Art. IV.
States and localities may not discriminate against a non-local citizen (natural person) from exercising rights fundamental to national unity, e.g., practicing one’s chosen profession, without meeting strict scrutiny.
Contracts Clause
Restricts state governments from retroactively and substantially impairing existing contracts.
Public contracts: Intermediate scrutiny.
Privacte contracts: Rational basis.
Free Exercise Clause
Burden on religion OK if:
A law of general applicability
That does not intentionally burden religious beliefs, and
Advances important public interest
Establishment Clause
Prohibits laws respecting the establishment of religion. The government can’t endorse or favor specific religious groups.
- Facial sect preference: Strict scrutiny applies
- No Sect Preference: Lemon test (secular purpose, primary secular effect, does not foster excessive government entanglement w religion)
Freedom of speech - content-based restrictions
Strict scrutiny
Unprotected Speech - Obscenity
Obscenity - Describes or depicts sexual conduct that, taken as a whole, by the average person, (1) appeals to the prurient interest in sex (community standard, (2) is patently offensive (community standard), (3) lacks serious literary, artistic, political, or scientific value (national standard).
Unprotected speech - Imminent lawless action
Government can ban speech (1) intended to incite or produce imminent lawless action and (2) likely to do so.
Unprotected speech - Fighting words
Government can ban speech likely to cause the listener to commit an act of violence.
Freedom of speech - content-neutral restrictions
Public forums, limited public forms,m and designated public forums: Intermediate review (sig gvmt interest + narrowly tailored) + leave open alternative channels of communication.
Non-public forums: Rationale basis (reasonably related to a legitimate gvmt interest) + leave open alternative channels of communication.
Regulation of Commercial Speech
Only if regulation (1) directly advances a (2) substantial government interest, and (3) is reasonably tailored to serve that interest. (4) False or misleading commercial speech may be regulated.
Regulation of Symbolic Speech
OK if the regulation
(1) is content-neutral,
(2) meets intermediate scrutiny (furthers important gvmtl interest), and
(3) prohibits no more speech than necessary.
Limitations on Free Speech Regulations
Unfettered discretion – fails to set forth narrow or specific grounds for denying a permit, or where the permit mechanism is not closely tailored to the regulation’s objective.
Vagueness–so unclear that reasonable person would have to guess as to meaning.
Overbreadth: Bans both protected and unprotected speech.
Prior restraint
Presumptively unconstitutional– gvmt must show (1) likelihood of irreparable or serious harm to the public, (2) narrowly drawn standards, and (3) final determination on validity of restraint.
Free speech checklist
State action?
Content-based or content-neutral.
Vagueness, Overbreadth, Unfettered Discretion
Prior Restraint
Substantive due process - strict scrutiny applies when….
affecting fundamental rights, e.g., relating to marriage, living with one’s family, child bearing, and child rearing.
Freedom of association
An individual has a right to freely associate with other individuals in groups.
- Only applies to freedoms protected by the First Amendment (speech, religion), and not all groups.
- Restrictions must meet strict scrutiny.
Equal Protection - Suspect Classifications
Race, national origin, state alienage
