Con Law Flashcards
Con Law - JUSTICIABILITY
1) Standing
2) Ripeness
3) Mootness
4) Political Question
5) 11th Amendment
Con Law - INDIVIDUAL STANDING
1) Specific injury, greater and different from the injury all persons suffer because the government is engaged in unconstitutional action.
2) Injury is fairly traceable to the challenged conduct, and
3) Ruling favorable to π would eliminate his harm
Con Law - THIRD PARTY STANDING
π may assert the constitutional rights of others IF:
1) π has suffered injury, AND
2) 3P finds it difficult to assert his own rights OR π’s injury adversely affects his relationship w/ 3P
Con Law - ORGANIZATIONAL STANDING
1) Organization has standing to challenge gov’t conduct that directly injures it
2) Organization can challenge action that injures its members IF:
- -there is an injury in fact to members that would give them standing
- -the injury is related to the organization’s purpose, and
- -neither the nature of the claim nor the relied requested required participation of the individual members in the suit
Con Law - RIPENESS
Federal courts will not hear a case unless π has been harmed or threatened w/ immediate or imminent harm
Con Law - MOOTNESS
If the relief requested has either already been obtained or is no longer a realistic solution, a federal court will not hear the case UNLESS the injury is capable of repetition yet evading review
Con Law - POLITICAL QUESTION
A federal court will not hear a matter that is textually assigned to another branch or incapable of a judicial answer
Con Law - 11TH AMENDMENT
Bars suits against STATES in federal ct unless π claims a remedy for EP or DP violations under the 14th A.
Actions against states include:
1) action against state gov’t for damages
2) action against state gov’t for injunction or declaratory relief if state is a named party
3) action against state gov’t officers where the effect is retroactive damages paid from state treasury OR where state land would be taken away
4) action against state gov’t officers for violating state law
Con Law - COMMERCE CLAUSE
Congress has plenary power to regulate interstate, foreign, and Indian tribe commerce.
Interstate Commerce includes:
1) Channels of IC
2) Instrumentalities of IC
3) Activities w/ a substantial econ effect on IC
- -affirmative act that is economic in nature
- -may be purely local if it affects IC in the aggregate
Con Law - DORMANT COMMERCE CLAUSE
A state or local law is invalid if it EITHER:
1) discriminates against out of state competition to benefit local economic interests OR
2) is unduly burdensome on IC
- -legitimate local benefits do not outweigh the incidental burden on IC
Con Law - DORMANT COMMERCE CLAUSE EXCEPTIONS
1) Furthers important non-economic interest and there is no reasonable non-discriminatory alternatives
2) Gov’t is a market participant (still not may promulgate an outright ban if there are ANY external downstream effects)
3) Congressional waiver/exemption
4) Gov’t performing a traditional public function (still no outright ban allowed)
Con Law - ARTICLE IV PRIVILEGES AND IMMUNITIES
State discrimination against non-citizens of that state as to fundamental rights may only be valid if the state has a substantial justification for the different treatment
Fundamental = 1st, 2nd, 4th, 5th, 6th, and right to earn a living
Justification = non-citizens cause or are part of a problem AND there are not less restrictive means to solve the problem
Con Law - TAXING POWER
Congress has plenary power to impose and collect taxes:
1) on any activity it can otherwise regulate OR
2) where it is reasonably related to a revenue raising purpose
Indirect taxes should also have geographic uniformity
Con Law - SPENDING POWER
Congress has the power to spend for the general welfare. In so doing, it may place condition on state receipt of federal funds, IF:
1) condition is unambiguous
2) condition relates to the federal program funded
3) state is not required to undertake unconstitutional action
4) amount in question is not so great as to be coercive to the state’s acceptance
Con Law - 13TH AMENDMENT
Authorizes Congress to pass laws prohibiting slavery, the badges of slavery, and involuntary servitude.
Gives Congress the power to prohibit racial discrimination in public AND private transactions.
Con Law - CONTRACTS CLAUSE
A state gov’t may not substantially impair the obligations under existing private Ks unless the law serves a (1) legitimate and important state interest AND (2) is reasonable and narrowly tailored to promote that interest.
Public Ks are not impaired if either the authorizing statute or the K itself reserves the right to amend, revoke, or modify the K
Con Law - LEGISLATIVE VETO
Unconstitutional Congressional attempt to overturn executive agency action w/o bicameralism and presentment
Con Law - SUPREMACY CLAUSE
A valid act of Congress, federal regulation, or executive order preempts any state/local action conflicting w/ it.
EXPRESS - directly states it conflicts IMPLIED -Actual Conflict -Interference w/ valid federal objective -Field Preemption - appears Congress intended to occupy the entire field of regulation such that is it significantly comprehensive in scope and creates an agency to administer it
Con Law - APPOINTMENT POWER
Ambassadors, judges, and officers of the US = President w/ advice and consent of Senate
Other officers = President alone, Cabinet officers, or Courts
Congress CANNOT appoint officers in the executive branch
Con Law - PARDON POWER
President has power to grant pardons for offenses against the US
Con Law - PRESIDENTIAL AUTHORITY
1) Commander in Chief of military
2) Foreign affairs
3) Domestic Affairs (Youngstown)
- -W/ expressed/implied Congressional authority = max authority; actions valid
- -Congressional silence = Pres can act so long as he does not take over powers of another branch OR prevent another branch from carrying out its tasks
- -Against express will of Congress = actions invalid
Con Law - TAKINGS
5th A prohibits governmental takings of private property for public use without just compensation.
Con Law - PHYSICAL TAKINGS
Any physical appropriation is ALWAYS a taking.
1) Total = all of owner’s property is physically appropriated
2) Partial = less than all of owner’s property is physically appropriated
Con Law - REGULATORY TAKINGS
TOTAL TAKING
Denial of ALL economically viable use
USE RESTRICTION
1) Economic impact on the property
2) Interferences w/ reasonable, investment-backed expectations
3) Character of the gov’t action
TEMPORARY MORATORIA
Length of delay + Use factors
EXACTIONS AS CONDITIONS TO PERMIT APPROVAL - Partial taking UNLESS:
1) related to a legitimate public interest AND
2) the adverse impact on the public from the proposed development is roughly proportional to the loss caused to the property owner
Con Law - ZONING ORDINANCES
Gov’t may adopt zoning ordinances pursuant to its police power and such regulations will not amount to a taking UNLESS it:
1) physically appropriates property
2) denies all economic use, or
3) unreasonably interferes w/ distinct investment-backed expectations
Con Law - ZONING VARIANCE
A variance from a zoning ordinance may be granted upon a showing of:
1) undue hardship to property owner AND
2) Not contrary to public welfare
Con Law - 14th A STATE ACTION
Required for EP or DP only!!
MAJOR TYPES:
1) law, ordinance, or regulation,
2) Gov’t actor,
3) private actor engaged in traditional and exclusive public function,
4) private action w/ significant state involvement, encouraging or facilitating the private action
Con Law - EQUAL PROTECTION - STRICT SCRUTINY
For classifications based on: race, national origin, alienage, or a fundamental liberty
1) GOV’T has the burden of proving the law is
2) NECESSARY to achieve
- -no less restrictive means
3) a COMPELLING state interest
- - war, nat’l security, jails, specific remediation of past discrimination, achieving a diverse student body in higher education
Con Law - INTERMEDIATE SCRUTINY
For classifications based on: age or illegitimacy:
1) The GOV’T has the burden of proving the law is
2) SUBSTANTIALLY related to achieving
3) an IMPORTANT state interest
Con Law - RATIONAL BASIS REVIEW
For all other classifications:
1) CHALLENGER has the burden of proving the law
2) is NOT RATIONALLY RELATED to a
3) LEGITIMATE government interest
Con Law - PROCEDURAL DUE PROCESS
When gov’t acts to intentionally deprive a person of life, liberty, or property:
BASIC REQUIREMENTS
1) notice and an opportunity to be heard before a neutral party
2) punishment is not excessively disproportionate to the offense
TYPE OF PROCESS FACTORS
1) Importance of individual interest allegedly deprived
2) value of specific procedural safeguard to protecting that interest
3) countervailing gov’t interest in fiscal and administrative efficiency
Con Law - SUBSTANTIVE DUE PROCESS
1) gov’t infringes on a non-fundamental liberty interest = rational basis review
2) gov’t infringes on fundamental liberty interest = strict scrutiny
- contraceptive
- marriage
- abortion
- family relations
- private education
- travel
- voting
Con Law - ABORTION
1) Regulation on pre-viability abortion is unconstitutional if it imposes an UNDUE BURDEN on a woman’s right to chose
2) Subsequent to viability, a state cannot ban abortion IF the pregnancy endangers the life or health of the mother
Con Law - 14th A PRIVILEGES OR IMMUNITIES
No state shall make or reinforce any law abridging the privileges or immunities of citizens of the US
DURATIONAL RESIDENCY REQUIREMENTS
Con Law - EX POST FACTO LAW
Neither state nor federal government can pass retroactive CRIMINAL laws.
1) makes criminal an act not criminal when committed,
2) prescribes greater punishment for a crime after commission,
3) decreases the evidentiary burden for conviction after commission,
4) extends SOL for a crime after original SOL has expired
Con Law - BILL OF ATTAINDER
Neither state nor federal gov’t can pass (1) a legislative act that (2) inflicts punishment, (3) w/o a judicial trial, (4) upon a named individual or easily ascertainable group, (5) for past conduct
Con Law - SYMBOLIC SPEECH
Regulation of conduct intended as speech is upheld IF:
1) W/in the constitutional power of the gov’t,
2) furthers an important gov’t interest unrelated to the suppression of speech, and
3) the incidental burden on speech is no greater than necessary
Con Law - CONTENT-NEUTRAL REGULATION
Where speech is regulated w/o regard to its content, it must meet intermediate scrutiny
1) Advances important issues unrelated to the suppression of speech
2) does not burden substantially more speech than necessary to further those interests
Con Law - TPM FORUMS
PUBLIC - historically held open to speech-related activities
DESIGNATED PUBLIC - not traditionally held open, but opened by the gov’t on a permanent or limited basis
NONPUBLIC - jails and gov’t buildings
LIMITED - all other public property, including courtrooms
Con Law - TPM IN PUBLIC OR DESIGNATED PUBLIC FORUM
Gov’t may regulate w/ reasonable TPM restrictions if:
1) Content-neutral
2) Narrowly tailored to serve significant gov’t interest, and
3) leaves open alternative channels of communication
Con Law - TPM IN NON-PUBLIC OR LIMITED FORUMS
Gov’t may regulate to reserve the forum for its intended purpose if the regulation is:
1) viewpoint neutral and
2) reasonably related to a legitimate gov’t purpose
Con Law - CONTENT-BASED REGULATION
Regulations that forbid, punish, or burden all communications about a subject must meet strict scrutiny.
Vagueness - person of ordinary intelligence does not know what conduct/speech is prohibited
Overbreadth - not narrow/specific and thus has a chilling effect upon protected speech
Con Law - FUNDING SPEECH
When gov’t funds speech to promote its OWN policy goals, it may do so on content-based criteria.
When funding private speech, the gov’t must do so on a viewpoint-neutral basis.
Con Law - COMMERCIAL SPEECH
If speech involves a lawful activity and is not misleading or fraudulent, it can be regulated ONLY if:
1) it serves a substantial gov’t interest
2) it directly advances that interest, and
3) it is narrowly tailored to serve the interest
Con Law - UNPROTECTED SPEECH
1) Clear and present danger
2) Fighting Words - likely to incite ordinary citizen to immediate physical retaliation
3) Hostile Audience - elicits immediate violent response against speaker
4) Defamation of Private Persons
5) Obscenity
- -appeals to a prurient interest in sex
- -portrays sex in a patently offensive way, and
- -work as a whole lacks serious literary, artistic, political, or scientific value
Con Law - PRIOR RESTRAINT
To justify gov’t action that would prevent a communication from reaching the public, the gov’t has a heavy burden of showing a special societal harm and the following procedural safeguards:
1) standards are narrowly drawn, reasonable, and definite so as to include only prohibitable speech
2) gov’t must promptly seek an injunction
3) prompt and final determination of the validity of the restraint (expedited appeal)
Con Law - FREE EXERCISE CLAUSE
Gov’t may not punish someone, either by imposing burdens or denying benefits, b/c of his religious beliefs UNLESS it meets strict scrutiny.
Gov’t may prohibit and regulate general conduct under laws of general applicability, even if that conduct is in conformity w/ a person’s religious beliefs, so long as the purpose is not to punish religion and the means are reasonably related to achieving the secular purpose
Con Law - ESTABLISHMENT CLAUSE
Religion/sect preference = strict scrutiny
Neutral on its face = Lemon test; action valid if:
1) secular purpose
2) primary effect neither advances nor inhibits religion, and
3) does not produce excessive gov’t entanglement w/ religion
Con Law - 1st AMENDMENT PRESS
- Gov’t can’t punish publication of lawfully obtained, truthful info absent compliance w/ strict scrutiny
- Reporters can be compelled to testify as to source absent a shield statute
- General business regulation can be imposed on the press, but can only be content-based w/ strict scrutiny
Con Law - 1ST AMENDMENT ASSOCIATION
Right to join together for political or expressive activity may be infringed only if strict scrutiny is met
Cannot be denied public employment based on membership in political organizations unless:
1) it is a high-level policy-making position OR
2) he is an active members of a subversive organization w/ knowledge of and specific intent to further its illegal goals.
