Con Law Flashcards
Standing
Part of Case and Controversy Requirement
Plaintiff must show:
- Injury
- Causation and Redressability
No generalized grievances, i.e., no injury as citizen or taxpayer (unless alleging a violation of the establishment clause)
Third party can assert standing if (1) special relationship with plaintiff OR (2) if they also have standing they can assert the rights of another who would have difficulty asserting their own rights
Organizational: if members have standing; injury relates to organizations purpose; and participation of members is not required
Ripeness
Whether federal court can grant pre-enforcement review of a statute or regulation. Consider:
- Hardship that will be suffered without pre-enforcement review; and
- The fitness of the issuess and the record for judical review.
Mootness
Requirement for a live ongoing controversy
Exceptions:
- Capable of repitition but evading review;
- Voluntary cessation (but free to resume).
Political Question Doctrine
Courts will not review:
- The republican form of government/guarantee clause
- challenges to president’s conduct of foreign policy
- challenges to impeachment or removal process
- challenges to partisan gerrymandering
Supreme Court Review
- Cases by Writ of Certiorari (at discretion)
- Appeals from three-judge federal district courts (no discretion)
- Suits between State governments
Final Judgement Rules: Generally only after final judgement of highest court
Congressional Power (limits/sources)
Congressional power must be express or implied in the constition; no general police power
Necessary and proper clause allows congress any means not prohibited by the consitution for carrying out its authority.
Taxing/Spending Power
Congress may tax and spend for the general welfare
The Commerce Power
Congress may regulate:
- the channels (places) of interstate commerce
- the insturmentalities (things that facilitate) of interstate commerce
- economic activities that have a substantial effect on interstate commerce (consider cumulative effect); also, non-economic acticites that have a substantial effect (non-cumulatively)
Congress and 14th Am, Sec. 5
Congress has rights to enforce 14th amendment (which only applies to the government).
Congress may not expand the scope of rights, only prevent or remedy violations with laws that are proportionate and congruent (narrow tailoring)
10th Amendment and Federal Government
All powers not granted to the federal government are reserved for the states or the people.
Congress cannot compel state regulatory or legislative action, but it can incentivize (taxing and spending power) so long as:
- Conditions relate to purpose of spending program; and
- Not unduly coercive
Instruments of Foreign Policy (Executive Power)
- Treaties - must be ratified by senate
- Executive Agreements - effective when signed by president (no need for ratification)
Both are subject to constitution and prevail over state law, but only treaties prevail over federal law if they were enacted after the statute
Appointment and Removal Power
- President appoints ambassadors, federal judges, and officers
- Congress may vest the appointment of inferior officers in the President, heads of departments or lower federal courts (but can’t give itself the appointment power)
- Congress can only limit the removal power where independence from the president is desirable
Impeachment and Removal
- Pres, VP, federal judges, and officers of the US can be impeached
-
Impeachment brings charges (for treason, bribery, or for high crimes and misdemeanors)
- requires majority vote in House
-
Conviction - removal
- requires 2/3 vote in Senate
Executive Privilege
President has executive privilege for presidential papers and conversations but the privilege must yield to other important government interests
Presidential Immunity
Absolute immunity from civil suits for money damages for any actions taken while in office.
Not immunce to civil suits for actions taken prior to taking office.
Pardon Power
For FEDERAL CRIMES only
Can’t pardon impeachment
Preemption
Concept of Federalism; Supremacy clause makes Constitution and federal laws supreme
- Express
-
Implied
- Fed and State laws mutually exclusive;
- State law impedes federal objective; OR
- Clear intent by Congress to prempt.
State Taxation/Regulation of the Federal Government
States MAY NOT tax or regulate federal government activity because of inter-governmental immunity
Dormant Commerce Clause
State and local laws are unconstitutional if they place an undue burden on interstate commerce
Analysis:
- Does law discriminate against out of staters?
- If No, subject to balancing (burdens v. benefits.
- If Yes, violates DCC unless necessary to achieve an important government purpose (must show no less restrictive means)
*Exceptions: Congressional Approval; Market Participant Exception
*Also consider P&I of Art IV
Privileges and Immunities Clause of Article IV
No state may deprive citizens of other states the rights afforded to its own citizens (no discrimination of out of staters)
Analysis
- Law MUST discrimate against out-of-staters
- If it impacts the ability to earn a livelihood or fundamental rights, it violates P&I Art IV unless necessary to achieve an imporant government purpose (must show no less discriminatory alternative)
*No Exceptions
*Does not apply to corporations or aliens
*Consider DCC also
State Taxation of Interestate Commerce
- States cannot use their tax systems to help in-state business, at the expense of out-of-state business
- State may only tax activities if there is a substantial nexus with the state
- State tax must be fairly apportioned
Full Faith and Credit
Courts in one state must give full faith and credit to judgments of other state courts, as long as:
- Court had jurisdiction
- Judgment was on the merits
- Judgement was final
Government Action Requirment for Protection of Individual Liberties
- Constitution only applies to government action (not private conduct)
- BUT, Congress may regulate private conduct through statute by
- 13th Am (enact statutes that prohibit discrimination)
- Commerce Power
- NOT 14th Am, Sec 5 (this only used to regulate state and local governments)
Exceptions: public function exception; entanglement exception (especially race related)
Selective Incorporation of the Bill of Rights to States
Through DPC of 14th Am.
Except:
- 3rd Am. right not to quarter soldiers
- 5th Am. right to grand jury idictment
- 7th Am. right to jury trial in civil cases
- 8th Am. right against excessive fines
Rational Basis Test
Rationally related to a legitimate (conceivable) government purpose (burden on challenger)
Intermediate Scrutiny
Substantially related to an important (actual) government purpose (government has burden)
Strict Scrutiny
Necessary (no LRM) to achieve a compelling (actual) government interest (burden on government)
Procedural Due Process
Procedures that must be followed in taking of life, liberty, or property (notice and hearing)
- Was there a taking? (Deprivation of liberty = loss of significant freedom provided by consitution or statute; deprivation of property = a reasonable expectation of an entitlement that is not fulfilled)
* Generally requires an intentional government action - If yes, balance importance of interest to individual, the ability of additional procedures to increase the accuracy of the fact finding, and the government’s interest (often efficiency and cost)
Economic Liberties & Takings
Rational basis test is used for laws affecting economic rights.
Takings can be possessory (Loretto) or regulatory, depriving substantially all reasonable economic value (Lucas); must be for public use (reasonable belief that its action will benefit the public) and just compensation must be paid
Government conditions on development of property must be justified by a benefit that is roughly proportionate to the duty imposed
Contracts Clause
No STATE shall impair the obligations of EXISTING contracts
- private contracts: intermediate scrutiny
- government contracts: strict scrutiny
Substantive Due Process
Does the government have an adequate reason to take away life, liberty, and property?
Protects the right to privacy (to marry, procreate, custody of children, keep family together, contraceptives, abortion, homosexual activity; right to refuse medical treatment (but no physician assisted suicide));
Also protects: right to bear arms (2nd Am); right to travel (EPC and P+I of 14th Am; right to vote (15th Am and EPC)
Right to Abortion
Part of Privacy right protected by SDPC
- Pre-Viability: states may not prohibit abortion, but can regulate if no undue burden
- After-Viability: state may prohibit abortion unless necessary to protect women’s life or health
The Right to Travel
Protected by P&I of 14 Am and Art IV
Laws that prevent people from moving into a state must meet strict scrutiny (including durational residency requirements)
Equal Protection
14th Amendment (but applied to federal government through DPC of 5th Amendment)
whether the government distinctions drawn between people are sufficiently justified
EPC classifications
Consider the law on its face and in application (discriminatory impact AND intent)
Strict Scrutiny
- Race and National Origin
- Alienage (discriminate against non-US citizens)
- Travel
- Voting
Intermediate Scrutiny
- Gender Classifications (must show exceedingly persuasive justification)
- Non-Marital Children
Rational Basis
- Everything else
Free Speech (general principles)
- Content-based regulations subject to strict scrutiny
- Content-neutral laws must meet intermediate scrutiny (and leave open alternative channels of communication)
- Prior Restraints must meet strict scrutiny
- Vague and Overbroad laws are unconstitutional
Symbolic Speech
The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on the communication is no greater than necessary to achieve the government’s purpuse
(Intermediate Scrutiny)
Incitement
Outside 1st Am protection
substantial likelihood of imminent illegal activity and if the speech is directed at causing imminent illegality
Obscenity Test
Obscenity outside 1st Am protection
- appeals to prurient interest
- patently offensive under the law prohibiting obscenity
- as a whole lacks serious redeeming artistic, literary, political, or scientific value
Commercial Speech Test
Commercial speech regulation must meet intermediate scrutiny unless it inherently risks deception or is false
First Amendment (Forums)
- Public Forums: historically open
- regulation must be subject matter/viewpoint neutral, or survive strict scrutiny
- TPM must meet intermediate scrutiny and leave open adequate alternative channels
- Designated Public Forum: gov. chooses to open
- same rules as public forums
- Limited Public Forums: limited to certain groups or subjects
- can regulate as long as reasonable and viewpoint neutral
- Non-Public Forums: closed to speech
- same as limited public forums
Freedom of Association
Laws that prohibit or punish group membership must meet strict scrutiny
Laws that require disclosure of group membership must meet strict scrutiny
Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity
Free Exercise
Free exercise clause prohibits the government for punishing someone on the basis of their beliefs:
- Cannot be used to challenge a neutral law of general applicability
- Government may not deny benefits to those who quit job for religious reasons
- Government may not hold church liable for choices it makes as to who will be ministers
Establishment Clause
Government must pursue a course of neutrality towards religion
Lemon Test
- There must be a secular purpose for the law;
- the primary effect must be neither to advance or inhibit religion; and
- there must not be excessive government entanglement with reliegion
*Government may not discriminate against relgious speech or among religions unless strict scrutiny is met
*School sponsored prayer is not allowed
