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Select Topics Part 2 > Con Law > Flashcards

Con Law Flashcards

1
Q

Justiciability

A
  1. Standing
  2. Mootness
  3. Ripeness
  4. Collusive Suits
  5. Political question

Only discuss if facts create issue.

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2
Q

Ripeness

A

P has been harmed or there is an immediate or imminent threat of harm

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3
Q

Mootness

A

If the relief that would be requested has been obtained, or it is no longer a realistic solution, the court will not hear the case due to mootness.

Controversy is not moot if party will likely be subjected to the same action and could not resolve the matter due to the short duration of the situation but it is capable of repetition yet capable of review (pregnancy, elections, divorce)

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4
Q

Individual Standing

A
  1. Concrete & particularized injury
  2. Injury fairly traceable to challenged conduct, and
  3. Favorable ruling will eliminate the harm
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5
Q

Third Party Standing

A
  1. P has suffered individual injury AND
  2. Third parties find it difficult to assert their own rights, OR
  3. Ps injury adversely affects Ps relationship with the third parties
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6
Q

Organizational Standing

A
  1. Individual members have injury sufficient to grant them standing;
  2. Injury is related to the organization’s purpose; AND
  3. Neither the nature of the claim nor the relief requires participating of the individual members
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7
Q

11th Amendment

A

Generally bars suits against states in federal courts.

  1. Actions against state governments for damages
  2. Actions against state governments for injunctive or declaratory relief where the state is named as a party
  3. Actions against state government officers where the effect of the suit is that retroactive damages will be paid from the state treasury or where state land would be taken away
  4. Actions against state government officers for violating state law

UNLESS P claims remedy for EP/DP violations, 11th Amendment does NOT apply due to Section 5 remedies provision of 14th Amendment

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8
Q

Commerce Clause

A

Constitutional power for congressional enactment to regulate interstate commerce.

  1. Whether federal law regulates the channels (roads/waterways) of interstate commerce
  2. whether federal law regulates the instrumentalities (trucks/trains) of interstate commerce
  3. whether regulated activities have a substantial economic effect on interstate commerce
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9
Q

Substantial Economic Effect

A
  • May be local if aggregates to INTERSTATE effect
  • regulated activity must be economic in nature
  • inactivity cannot be regulated under CC
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10
Q

10th Amendment Limits on CC

A
  1. Coercion - requiring states to act a certain way with an imposition of a substantial penalty for failing to act
  2. Commandeering - requiring state officials to act in aid of federal law without funding it
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11
Q

Spending Clause

A

Plenary so long as it is for the general welfare

10th Amendment limit - CS cannot coerce state governments to do something by cutting of a significant amount of the funding

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12
Q

Dormant Commerce Clause

A

State OR Local Economic/Business Regulation that either:

  1. Discriminates against out of state competition to benefit local economic interests
  2. is unduly burdensome - legit local benefits do not outweigh incidental burden on interstate commerce

CONSIDER P&I

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13
Q

Dormant Commerce Clause - Exceptions

A
  1. Discriminatory state/local law may be upheld if it:
    a. furthers an important non-economic state interest AND
    b. there are no reasonable nondiscriminatory alternatives
  2. government agency is a market participant
  3. Congress exempts state/local law from DCC
  4. traditional public function
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14
Q

Article IV Privileges and Immunities

A

Forbids discrimination against non-citizens of the state as to fundamental rights, which include traditional fundamental liberties, as well as the right to earn a living.

A state law discriminating against nonresidents in the exercise of fundamental rights may only be valid if the state has a SUBSTANTIAL JUSTIFICATION for the different treatment.

However, Article 4 P&I Clause does not apply to aliens and corporations since they are not deemed citizens of a state.

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15
Q

Fundamental Rights

A
  • Civil liberties
  • 1st, 2nd, 4th, 5th, and 6th Amendments
  • Right to Earn a Living
  • marriage
  • travel
  • privacy
  • voting
  • family rights of association
  • parents’ right to raise children

Corporations/aliens not protected

If fundamental right, use strict scrutiny.
If non-fundamental, use rational basis

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16
Q

Delegation Power

A

Congress may delegate authority to administrative agencies or to executive officers

Analysis:

  1. Does CS have authority to regulate
    • applies to any enumerated power
    • requires INTELLIGIBLE standards
    • delegated power cannot be uniquely confined to CS
  2. Does agency regulation conform to Congress’ legislation?
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17
Q

Taxing Power

A

CS has plenary power to tax.

Tax is valid if reasonably related to revenue raising or Congress can regulate the taxed activity

Should have geographical uniformity

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18
Q

13th Amendment

A

Authorizes CS to remedy private racial discrimination by enacting laws banning racial discrimination in private and public commercial activities and transactions.

Does not apply to non-racial discrimination or other forms of involuntary servitude

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19
Q

Contracts Clause

A
  • Applies to state/local law
  • Law may not substantially impair the obligation under private contracts UNLESS:
    1. law serves legit and important state interests and
    2. is reasonable and narrowly tailored to promote that public interest

Government entity that ultimately impairs its own contract with private party (public contracts) under STRICTER review.

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20
Q

Legislative Veto

A

Attempt by Congress to overturn an executive agency action without:

  1. bicameralism (majority approval by both houses) and
  2. presentment (giving bill to the president for signature or veto)

Action by President to veto appropriation after signing the legislation (line item veto)

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21
Q

Preemption

A

Supremacy Clause

  1. Express - statute expressly states it preempts state/local law
  2. Implied
    a. actual conflict with state/local law
    b. state/local law interferes with valid federal objective
    c. federal law shows congressional intent to occupy the field - comprehensive in scope and creation of agency to administer
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22
Q

Presidential Authority

A

Analyzed based on whether exercise of power is in:

1) domestic affairs;
2) as commander-in-chief of military; or
3) foreign affairs

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23
Q

Presidential Power - Domestic Affairs

A
  1. Express/implied authority of CS - acts presumptively valid
  2. Congress silent - act is valid if no violation of other provisions of CN
  3. CS declines to authorize - act is presumptively invalid
24
Q

Presidential Appointment Power

A

Power to appoint principal officers with advice and consent of the senate who can act with their own discretion. (Ambassadors, judges, officers of the US)

Power to appoint inferior officer granted by congressional law and supervised by someone appointed by the advice and consent of the Senate

CS cannot appoint officers of executive branch (agencies and commissions)

25
Q

Takings (condemnation)

A

Property may be taken for a public purpose with just compensation. If gov says its a public purpose, then it is a public purpose

1) total taking v. partial taking
2) physical taking v. regulatory taking

26
Q

Regulatory Takings

A
  1. Denial of all economic use - total taking
  2. Use restrictions (partial taking)
  3. Temporary Moratoria (partial takings)
  4. Exactions as a condition to permit approval partial taking UNLESS
    • Legit gov. interest AND
    • Adverse impact is roughly proportional to loss caused to property owner

unconstitutional condition
is it a problem you made

27
Q

Use restrictions (partial taking)

A

Penn Central Factors:

1) economic impact on the property (diminution in value)
2) interference with investment backed reasonable expectation and
3) character of the government action (social goals promoted)

28
Q

Temporary Moratoria (partial taking)

A

1) length of delay plus Penn Central Factors
2) planners’ good faith
3) economic effect of delay
4) owners’ reasonable investment-backed expectations

29
Q

Zoning Ordinance

A

May be a taking IF ordinance:

1) physically appropriate property
2) denies all economic use
3) unreasonably interferes with distinct investment-backed expectations

Existing, non-conforming uses permitted and amortized by grandfathering provisions

Zoning variance may be granted if:

1) showing of unique hardship to the property owner; AND
2) not contrary to public welfare

30
Q

Procedural Due Process

A
  1. Notice and Opportunity to be heard before a neutral party
  2. Punishment not excessive or disproportionate to the crime
  3. only applies to individualized hearings, not general law
  4. applies ONLY when government acts to deprive an individual of life, liberty, or property
31
Q

Notice and Opportunity to Respond Factors

A

Mathews v. Eldridge three-part balancing test

  1. importance of individual interest deprived
  2. risk of erroneous deprivation/value of procedural safeguards (including proportionality of punishment to offense)
  3. importance of government interest
32
Q

14th Amendment - State Action Application

A

Only applies to actions by state/local government that involve deprivations of 14th Amendment (equal protection/substantive due process - fundamental rights)

DO NOT DISCUSS IF:

1) actions are of federal government or
2) state or local government and violations of other parts of CN

33
Q

14th Amendment - State Action Types

A
  1. Law, ordinance, or regulation
  2. government actor
  3. private actor engaged in traditional exclusive public functions
  4. private action with significant state involvement, encouraging or facilitating the private action
34
Q

Equal Protection

A

Is there intent to discriminate?

1) facial discrimination
2) discriminatory purpose; or
3) law is being discriminatorily applied

35
Q

Equal Protection Analysis

A
  1. Define the classification (race, gender, etc.)
    a. identify governmental purpose
    b. characterize the purpose (compelling, legit, important)
  2. define and apply the appropriate test - strict/intermediate/rational basis
    • Is classification or law [necessary/substantially related/rationally related] to achieving the government purpose
36
Q

Equal Protections Tests

A
  1. Strict Scrutiny - race/national origin/alienage/fundamental liberty
    • government has burden of proving classification is necessary to achieve compelling governmental interest
  2. Intermediate Scrutiny - gender/illegitimacy
    • gov has burden of proving classification is substantially related to achieving important governmental interest
  3. Rational Basis - all others
    • P has burden of proving classification is not rationally related to a legit gov. interest
37
Q

First Amendment Speech Analysis

A
  1. Type of speech or
  2. Government role in regulating speech

a. gov acting as regulator?
b. gov. regulating conduct?
c. gov regulating speech in prisons?
d. gov. funding speech?
e. gov. acting as property owner - regulating speech/conduct based on location?

38
Q

First Amendment Speech - Content Regulation

A

Forbids, punishes, or burdens communication at all about a particular subject.

Subject to STRICT scrutiny.

Government has burden of showing regulation is NECESSARY to achieve a COMPELLING GOVERNMENT INTEREST

Vagueness - unclear what conduct/speech is prohibited

Overbreadth - more speech than is targeted is made unlawful

39
Q

First Amendment - Content Neutral Speech

A

Speech is regulated no matter its content.

Regulation will be upheld if it meets INTERMEDIATE scrutiny:

1) it advances important issues unrelated to the suppression of speech and
2) does not burden substantially more speech than is necessary to further those interests

40
Q

First Amendment - Conduct/Symbolic Speech

A

Regulation upheld if (Modified O’Brien Test):

1) regulation is within the constitutional powers (police power) of government
2) it furthers an important government interest
3) government interest is unrelated to the suppression of speech
4) incidental burden on speech is no greater than necessary

41
Q

First Amendment - Time, Place, and Manner Restrictions

A

Government regulating location, time/manner of speech, not content:

1) Public Forum - historically open to speech-related activities
2) Designated Public Forum - not historically open to speech-related activities but government has opened to such activities on a permanent or limited basis
3) Limited Public Forum - all other public property other than a nonpublic forum (courtroom)
4) Nonpublic Forum - jails and governmental buildings

42
Q

First Amendment - Forum Analysis

A

1) Public forum and Designated public forum
- reasonable time, place, & manner restriction
- content neutral
- narrowly tailored to serve significant interest
- alternative channels of communication remain open

2) Limited Public Forum and Non-Public Forum (RATIONAL basis)
- viewpoint neutral
- reasonably related to legit purpose

43
Q

Prison Speech

A

Restrictions on prisoners’ speech will be upheld if reasonably related to legit penological interest

nonpublic form

44
Q

Funding and Speech

A

Government may fund speech on content-based criteria that reflect its own policies

If it funds private speech however, it must do so on a viewpoint neutral basis

45
Q

Commercial Speech

A

1) involves lawful activity, not fraudulent or misleading
2) it serves a substantial government interest;
3) it directly advances that asserted interest; and
4) it is narrowly tailored to serve the substantial interest (reasonable fit between means and ends)

46
Q

Campaign Contributions

A

INTERMEDIATE scrutiny test - whether they are closely drawn to match a sufficiently important interest

Limiting campaign contributions to a particular candidate upheld - interest in avoiding appearance of corruption

Limiting aggregate spending (on multiple candidates) by one person is unconstitutional

47
Q

Campaign Expenditures

A
  • Campaign spending limits imposed on candidates are unconstitutional limit on speech
  • no limit on independent expenditures supporting a candidate if:
    1) not directly contributed to the candidate and
    2) no coordination with candidate/candidate’s campaign
48
Q

Unprotected Speech

A
  • Clear and present danger
  • fighting words
  • defamation of private persons
  • obscenity - Miller Test
    1) appeals to the prurient interest in sex
    2) portrays sex in a patently offensive way; and
    3) does not have serious literary, artistic, political, or scientific value (using national standard)

prurient - morbid or shameful interest in sex, but not one that incites lust

49
Q

Prior Restraint

A

Any governmental action that would prevent communication from reaching public (licensing system or injunction, judicial order prohibiting press from publishing) is generally disfavored.

Procedural Safeguards:

  1. standards must be narrowly drawn, reasonable, and definite;
  2. government must promptly seek an injunction if required;
  3. there must be a prompt and final determination of the validity of the restraint - prompt right of appeal
50
Q

Religion Clauses - General Approach

A
  1. discuss sincerity of belief if recent conversion
  2. discuss ESTABLISHMENT and FREE EXERCISE clauses
  3. discuss alternate analyses under each clause
51
Q

Free Exercise Clause

A
  1. Prohibits government from punishing someone, either by imposing burdens or denying benefits, because of their religious beliefs, absent it being necessary to achieve a compelling interest (STRICT scrutiny test)
  2. In absence of direct punishment for religious belief/conduct, state may prohibit and regulate general conduct that relates to the conduct of all persons, if purpose of the law is not to punish religion and so long as the means are reasonably related to achieving the secular purpose (RATIONAL basis)
52
Q

Establishment Clause

A
  1. Sect preference - use strict scrutiny
  2. Lemon test
    • has a secular (gov) purpose
    • has a primary effect that neither advances nor inhibits religion; and
    • does not produce excessive government entanglement with religion
53
Q

Freedom of the Press

A
  • Publication of truthful information
  • Access to trials
  • Requirements to testify
  • Taxes and Regulation
54
Q

Freedom of Association

A
  • Right to join together for political or expressive activity
  • limitation requires strict scrutiny analysis
  • focus on whether activity is political or expressive

MBE:

  • right to run for office
  • bar membership
55
Q

First Amendment

A
  • Freedom of Speech
  • Religion
  • Press
  • Freedom of Association

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