Con Law Flashcards
Justiciability
For a case to be heard in federal court, it must be justiciable, meaning a case or controversy must exist
• To determine whether a case or controversy exists, the case must satisfy requirements for:
1) Standing
2) Ripeness
3) Mootness
4) Political question doctrine
Standing
A party must have a concrete interest in the outcome of a claim to have it heard in federal court:
Individual
Third-party
Organizational
Individual Standing Requirements
Injury
Causation
Redressability
Standing Injury
P must have suffered some injury or show a likelihood of imminent injury
» Note — look for Ps who have personally suffered injury or economic loss
» Ps seeking an injunction or declaratory relief must show a likelihood of future harm
Standing Causation and Redressability
P must allege that D caused the injury and that the court can grant a proper remedy
Taxpayer Standing
P cannot sue solely as a U.S. citizen or taxpayer to compel the govt. to act in a particular way
• Exception — taxpayers have standing to challenge specific
govt. expenditures pursuant to the Establishment Clause
Third Party Standing
A party generally lacks standing to assert the claims of another,
unless one of the below exceptions applies. Requires:
Special relationship between P and the injured third party
Injured party is unlikely or unable to assert his own rights
TP Standing Special Relationship
P may assert the rights of a third party whose injury adversely affects P or his relationship with P
• E.g., doctor could assert patients’ rights in challenging abortion restrictions; bar owner could assert underage males’ rights in attacking state ban on beer sales to underage males only
TP Standing Unlikely to assert
» E.g., association could attack law requiring disclosure of member identities because members could not attack law directly without revealing their identities
Organizational Standing
» Organizations always have standing if injury is to organization itself
» Organizations may also sue on behalf of members if:
a) Members would have standing to sue individually;
b) Injury is related to the organization’s purpose; and
c) Neither claim nor relief requires participation of individual members
Ripeness
Cases must be sufficiently developed
• Arises with pre-enforcement review of statutes or regulations
• Courts may grant pre-enforcement review if P will suffer
harm or an immediate threat of harm
Mootness
A live controversy must exist at all stages of review
• If circumstances causing P’s asserted harm cease to exist
after P files suit, the case must be dismissed as moot
Exceptions to Mootness
Wrongs capable of repetition but evading review - injury ceases before litigation can ever happen (i.e. abortion)
Voluntary cessation by D - but can resume
Class action lawsuits - only one member must have ongoing injury
Political Question
Federal courts will not adjudicate certain constitutional issues
that constitute political questions.
Common Political Q’s
1) Actions under the “republican form of government” clause
in the Constitution
2) Challenges to the conduct of foreign policy
3) Challenges to impeachment and removal proceedings
4) Challenges to partisan gerrymandering
Common Non-Political Q’s
- Legislative apportionment
* Production of presidential papers/communications
Methods of Supreme Court review
Discretionary Review
Mandatory Review
Original JDX
USC Discretionary Review
Most cases get to the U.S. Supreme Court by writ of certiorari; the Court then decides whether to grant review
USC Mandatory Review
The Court must take appeals from three-judge district court panels regarding injunctive relief
» This bypasses the courts of appeal
USC OG JDX
Suits between states
» Supreme Court has original and exclusive jurisdiction over suits between states (i.e., these suits must be filed in the Supreme Court)
USC Final Judgment Requirement
Supreme Court only hears cases on review if there has been a final judgment of a lower federal court or a state’s highest court
USC State Court Decisions
Supreme Court cannot review a state court decision that rested on an independent, adequate state law ground
• I.e., if the state decision is based on federal and state law, the Supreme Court will not grant review unless the decision cannot stand on the state grounds alone
11th Amendment Immunity
The 11th Amend. bars suits against state govts. in federal court
• Federal courts cannot hear claims from a private party or foreign govt. against a state govt.
Exceptions to 11th Amendment
Suits against state govts. are allowed if:
1) The state waives sovereign immunity or consents
2) The suit involves the enforcement of laws under §5 of the 14th Amend. and Congress has removed immunity
3) The federal govt. brings the suit
4) Bankruptcy proceedings
Suits Against State Officers 11th Amend
Can be brought in federal court if the suit involves:
1) A claim for injunctive relief for violation of the Const. or federal law
2) A claim for money damages to be paid by the state officer personally
Necessary & Proper Clause
Congress can exercise constitutionally-enumerated powers and all auxiliary powers that are necessary and proper to carry out those enumerated powers
• Enables Congress to take any action not constitutionally prohibited to carry out its express powers
» This authority constitutes Congress’s implied powers
Taxing & Spending Power
Congress may tax and spend in any way deemed necessary for the “general welfare” (a very broad power)
» Note — “general welfare” as an answer choice is usually correct only if the question concerns taxing, spending, or an area within Congress’s limited police power (military, Indian reservations, land, D.C.)
• Taxes must reasonably relate to revenue production (a very low threshold)
Regulations for Taxing & Spending
Congress can use its taxing power to achieve a regulatory effect as long as the tax’s dominant intent is to raise revenue and there is some reasonable relationship between the tax and regulation (low burden to satisfy)
Fed Police Power
Congress has no general police power, except for legislation concerning:
1) Military
2) Indian reservations
3) Land — i.e., federal land or territories
4) District of Columbia
Commerce Clause
The Commerce Clause gives Congress exclusive authority to regulate interstate commerce
• Congress may also regulate intrastate commerce if it sufficiently affects interstate commerce
Interstate Commerce
Between states
• Congress may regulate channels, instrumentalities, or economic activities that have a substantial effect on interstate commerce
» Includes persons and things in interstate commerce
Intrastate Commerce Economic
Congress may regulate commercial or economic activities if the cumulative effect of those activities substantially affects interstate commerce
Intrastate Non-Economic
Congress may only regulate non-economic activities if the activity individually and substantially affects interstate commerce as a matter of fact
» Congress may not regulate non-economic activities based on “cumulative effects”
DCC
Limits state laws burdening interstate commerce (i.e., potentially interfering with Congress’s commerce power)
10th Amendment
All powers not granted to the federal govt., nor prohibited to the states, are reserved to the states under the 10th Amend., which acts as a restriction on congressional regulation of states
• Congress can tax and regulate if the tax or regulation applies
to the private sector and state/local govt., but not govt. only
Conditional Grants
Congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants
• Requirements:
1) Condition must be expressly stated
2) Condition must somehow relate to the purpose of the law at issue (low burden to satisfy)
• E.g., federal highway funds conditioned on states maintaining a minimum drinking age of 21
Congressional Delegation of Powers
Congress has broad authority to delegate legislative powers to executive officers and administrative agencies
• Congress must provide intelligible standards to define the scope of legislative authority it delegates
• Administrative agencies established by congressional enabling acts can create rules that have the status of law
» However, such laws cannot be overturned by legislative veto
Limitation to Delegation
Congress may not delegate executive or judicial powers to itself or its officers (e.g., Congress cannot create commissions that enforce or prosecute violations of law)
• Note — b/c the delegation power is broad, be wary of answer choices regarding excessive delegation
Legislative Veto
Congress cannot veto a decision by an agency acting pursuant to delegated power
» Must be overturned by enacting a superseding law
Line-Item Veto
President cannot veto part of a bill; must sign or veto the bill in its entirety
President Appt Powers
Has power to appoint ambassadors, federal judges, and other high-level officers.
Congress Appt Powers
Cannot give itself appointment powers
» Congress can vest the power to appoint inferior officers in the President, federal courts, or heads of departments or agencies
» Inferior officers — usually those working under presidentially-appointed officers (i.e., can be fired by the appointed officer)
President Removal Powers
Can remove any high-level executive officer
» Limitation — good cause is required to fire those in positions that Congress has decided should be independent (e.g., independent counsel)
Congress Removal Powers
Can only remove executive officers through its impeachment power
Impeachment
• House of Representatives can impeach the President, VP,
federal judges, and federal officers for treason, bribery, or high crimes and misdemeanors — requires majority vote
• Upon impeachment, trial in the Senate — requires 2/3 vote for removal from office
Presidential Immunity
President has absolute immunity from civil suits arising from official actions while in office
• No immunity for actions occurring prior to taking office
Executive Privilege
Protects against the disclosure of presidential papers and conversations
• Important govt. interests in criminal cases can override the privilege (e.g., Watergate — presidential documents and phone logs were disclosed for evidentiary purposes, which overrode the privilege)
Pardon Power
President has the power to pardon those accused or convicted of federal crimes (not state crimes)
• Exception — President cannot pardon someone for convictions leading to impeachment
• President may also commute sentences
• Congress cannot limit President’s pardon power
Treaties
Agreements between the U.S. and foreign countries negotiated by the President
• Become effective upon ratification by 2/3 of the Senate
Conflicts of Treaties
If a treaty conflicts with other sources of law, these rules control:
» Conflicts with state law — treaty prevails
» Conflicts with federal law — most recent prevails
» Conflicts with the Const. — Const. prevails
Executive Agreements
Agreements reached between the President and foreign heads of state
• Can be used for any purpose
• No congressional approval is required
Conflicts of Executive Agreements
Executive agreements only prevail over conflicting state laws
Supremacy Clause (Preemption)
Under the Supremacy Clause, federal laws trump conflicting state and local laws
Express Preemption
If a federal law provides that it is the exclusive authority in a given area, it preempts state and local laws in that area
• However, preemption provisions are narrowly construed
Implied Preemption
If a federal law is silent on preemption,
courts will presume a conflicting state law is valid, unless
Congress clearly intended to supercede. Implied preemption
usually occurs in three situations:
Mutual exclusivity
State law impedes a federal objective
Congress evidences a clear intent to legislate exclusively
and/or preempt state law
DCC Discriminatory State Law
Violates DCC if it:
1) Burdens interstate commerce, and
2) Is not necessary to achieve an important govt. purpose
• Note — environmental preservation is usually the only govt. purpose that is deemed important
• Helping local businesses or residents is never an important govt. purpose
DCC Non-Discriminatory State Law
Violates DCC if it:
1) Burdens interstate commerce, and
2) Its burdens exceed its benefits of promoting legitimate local interests
Exceptions to DCC
1) Express federal govt. approval, or
2) State is market participant — state and local govts. can favor their own citizens in giving subsidies, govt. hiring, govt. purchasing, etc.
» E.g., state universities can give tuition discounts to instate residents
Art IV P&I
No state may deny citizens of other states the privileges and
immunities it accords its own citizens
• Protects against the denial of fundamental rights to non-state
citizens (i.e., it is an anti-discrimination provision)
• Note — only applies to U.S. citizens; corporations and aliens
cannot bring claims under Art. IV privileges and immunities
Art IV P&I Discriminatory State Law
Invalid if it:
1) Relates to civil liberties or the ability to earn a living
2) Is not necessary to achieve an important govt. interest
• I.e., state has no substantial justification for different treatment of non-residents and/or less restrictive means are available
Art IV P&I Non-Discriminatory State Law
Valid
14th Amend P&I
Primarily applies to restrictions on rights to interstate travel; narrowly construed and unlikely to be a correct answer choice
State Taxation of Interstate Commerce
States may only tax activities that have a substantial nexus to the state. A state may not use its tax systems to help in-state
businesses or discriminate against interstate commerce.
Intergovernmental Immunity for Tax
States may not directly tax or regulate federal govt. activity
• Incidental taxes are acceptable
» E.g., states can collect income tax on federal employees working within the state or tax private entities doing business with the federal govt.
Full Faith & Credit Clause
Courts in one state must give full faith and credit to judgments
of courts in another state if:
1) The prior court had jurisdiction over the parties and subject matter
2) Judgment was on the merits
» E.g., judgment not founded on procedural issues
3) Judgment was final
State Action
Const. applies only to govt. action (federal, state, or local)
• Private conduct does not have to comply with the Const.,
subject to the below exceptions
Exceptions to State Action
Exclusive public function
Significant state involvement (entanglement)
Exclusive Public Function State Action
A private entity performs a task traditionally performed by govt. (narrow exception)
» Arises only if a private entity exclusively operates a govt. function (e.g., private prisons, elections)
Entanglement State Action
Govt. affirmatively authorizes or facilitates private conduct
» State must affirmatively approve or validate private conduct — permitting it alone is insufficient
» Examples of state action — court enforces a racially restrictive covenant; state provides books to private schools that racially discriminate
» Examples of no state action — govt. grants liquor license to racially discriminatory private club; private school receiving govt. funds fires a teacher over speech
Substantive DP
Courts use three tests to analyze the constitutionality of govt. acts under substantive due process and equal protection
Rational Basis DP
A law will be upheld if it is rationally related to a legitimate govt. purpose
• Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law
• A law will almost always be upheld under rational basis review unless it is completely irrational or arbitrary
• Burden of proof — challenger bears the burden of proof
Intermediate Scrutiny DP
A law will be upheld if it is substantially related to an important govt. purpose
• Govt. goal must be important; courts look at the actual reason the law was enacted
• Burden of proof — govt. bears the burden of proof
Strict Scrutiny DP
A law will be upheld if it is necessary to achieve a compelling govt. interest
• Govt. must show there are no less restrictive or burdensome means of achieving its goal
• Courts look at the actual reason the law was enacted
• Burden of proof — govt. bears the burden of proof
Procedural DP
A fair process (e.g., notice, hearings) is required for a govt.
agency to take or deprive a person’s life, liberty, or property
Has there been a deprivation of life, liberty, or property? DP
» Liberty deprivation — loss of significant freedom of action or freedom provided by Const. or statute (e.g., institutionalization, govt. restriction of fundamental rights)
» Property deprivation — a legitimate claim or entitlement to a benefit under law, which goes unfulfilled
• E.g., public school attendance, welfare
What procedures are required? DP
Determined by balancing:
a) Importance of the individual interest involved, and
b) Value of procedural safeguards to that interest, against
c) Govt. interest (i.e., fiscal or administrative efficiency)
Substantive DP Levels
Non-fundamental rights — rational basis
Fundamental rights — strict scrutiny
K Clause
States cannot impair contractual duties
• Applies only to state/local interference with existing contractual obligations, including govt. obligations
Private K
Intermediate scrutiny
• Local laws interfering with existing private contracts must be substantially related to an important govt. purpose
Gov’t K
Stricter scrutiny
• Local laws substantially impairing or interfering with existing govt. contracts must be reasonable and necessary to serve an important public purpose
Ex Post Facto Clause
Prohibits ex post facto laws
• A law is an ex post facto law if it either:
a) Criminally punishes conduct that was lawful when done, or
b) Increases punishment for a crime after it has been committed, or
c) Reduces the burden required to convict a person for a crime after it has been committed
• Does not apply to civil liability, where retroactive legislation must meet only rational basis
• Note — Ex Post Facto Clause is contained in the Contracts Clause
Bills of Attainder
Legislative acts that punish specific individuals without a judicial trial
• E.g., an order to imprison a person without judicial process
• Bills of attainder are prohibited under the Const.
Takings Clause
The 5th Amend. Takings Clause prohibits govt. from taking private property for public use without providing just compensation to the owner and/or occupant
Has there been a taking?
» Possessory taking — govt. confiscation or physical occupation of a property
» Regulatory taking — govt. regulation that leaves no economically viable use for a property; factors in determining if a regulatory taking has occurred:
a) Social good promoted by the regulation
b) Loss to owner
c) Owner’s expectations for his property
Is the taking for public use?
A taking is for public use if govt. acts with reasonable belief that the taking will benefit the public
• Very low standard
Is just compensation paid?
Measured in terms of loss to the owner
Fundamental Rights
Right to Privacy 1) Right to marry 2) Right to procreate 3) Rights concerning family and children: a) Right to custody of one’s children b) Right to keep family together c) Right to control children’s upbringing 4) Right to contraceptives Right to Vote Right to Travel
EP Incorporation
14th Amend. EP Clause applies directly to state/local govts.
• EP applies to the federal govt. by incorporation through the
5th Amend. DP Clause
» I.e., the EP Clause does not apply directly to the
federal govt.
• The same analysis and levels of scrutiny apply for EP
analysis whether it applies through the 5th or 14th Amend.
EP Is there a discriminatory classification?
To receive heightened scrutiny, the existence of a
discriminatory classification must be proved
EP What level of scrutiny applies given the classification?
» Suspect classifications — strict scrutiny
» Quasi-suspect classifications — intermediate scrutiny
» All other alleged classifications — rational basis
EP Rational Basis
1) Alienage, but only if classification:
a) Relates to the democratic process,* or
b) Is a congressional action concerning immigration*
2) All other classifications
a) Age, Disability, Wealth…
EP Intermediate Scrutiny
Quasi-Suspect Classification
1) Gender
2) Non-marital children
EP Strict Scrutiny
Suspect Classification
1) Race
2) National origin
3) Alienage
4) Right to travel
5) Right to vote
Free Speech CB
Apply strict scrutiny
• Content-based regulations restrict speech based on its subject matter or its viewpoint
» E.g., ordinance banning political protests — restricts speech based on its subject matter (politics)
» E.g., city grants a rally permit to a liberal group but denies a rally permit for a conservative group — restricts speech based on viewpoint (i.e., ideology of the message)
Free Speech CN
Analyze under the public forum doctrine
• Content-neutral regulations restrict the time, place, or
manner of the delivery of speech, not its content
Free Speech TPM
Applicable test depends on whether the speech is in a public
or non-public forum
» Public forum — intermediate-type scrutiny
» Non-public forum — rational basis-type scrutiny
Free Speech Public Forum/Designated Public Forum Test
1) Be content-neutral (i.e., only regulates time, place, or manner of speech)
2) Be viewpoint neutral
3) Serve an important govt. purpose
4) Leave open adequate, alternative channels of communication
5) Narrowly tailored
Public Forum
Public forums are govt. property that the govt. is constitutionally
required to make available for speech (e.g., sidewalk, park)
Designated Public Forum
Generally not open to public but has been opened up for particular purpose
Limited Public Forum
Opened for limited use by certain group
Non-Public Forum
Closed to public
Free Speech Non-Public Forum/Limited Forum Test
1) Viewpoint neutral
2) Serve legitimate gov’t interest
3) Reasonably related to that interest
Prior Restraint
Prior restraints involve a prohibition on speech (or publication)
before it occurs — strict scrutiny applies
Look for prevention of expression
• Prior restraints prevent expression, whereas other speech
restrictions punish expression after it has occurred
Prior Restraint Injunction
Most common type of prior restraint
• It is extremely difficult to get an injunction prohibiting speech
• “Gag orders” against pre-trial publicity are never allowed
• Note — P must comply with a valid injunction until it is vacated or overturned; P cannot challenge a violated injunction
Prior Restraint Permits/Licensing
Govt. may require licenses or permits for speech only if there is a reasonable justification for doing so
• License/permit requirements for speech must be similar to a “rubber stamp” process and must provide procedural safeguards or judicial review for denied permits/licenses
• P can challenge a denial on constitutional grounds, even if violated
Vagueness
A law is vague if a reasonable person cannot tell whether speech is prohibited or permitted
• E.g., a law prohibiting people from assembling and conducting themselves “in a manner annoying to passersby”
» Unconstitutionally vague — a reasonable person must guess as to what behavior is punishable
Overbreadth
A law is overbroad if it regulates substantially more speech than the Const. allows to be regulated
• An overbroad law restricts unprotected speech, but in doing so also restricts protected speech
» E.g., law prohibiting all “live entertainment” restricts obscenity (valid), but also prohibits protected speech in concerts or theater (invalid)
• If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected
Symbolic Speech
Symbolic speech refers to expressive or communicative
conduct (i.e., conduct intended to convey a message)
Requirements for Symbolic Speech
1) The regulation furthers an important govt. interest
2) That govt. interest is unrelated to suppression of the
message
» If the restriction is aimed at speech more than
conduct, it is likely unconstitutional
3) The impact on speech is no greater than necessary to
further the important govt. interest
Freedom of Ass’n
Freedom of association issues arise when laws prohibit or
punish group membership — strict scrutiny usually applies
Laws Criminalizing Ass’n Membership
Govt. must prove that D:
1) Actively affiliated with a group involved with illegal activities
2) Had knowledge of the group’s illegal activities
3) Acted with the specific intent of furthering those activities
Ass’n Disclosure Requirements
Strict scrutiny if chilling effect
• Laws requiring disclosure of group membership must meet strict scrutiny if disclosure would have the effect of chilling association (i.e., if it would inhibit the group’s ability or willingness to associate)
Ass’n Prohibiting Group Discrimination
Prohibitions on group discrimination are unconstitutional only if
they interfere with intimate association or expressive activities
Intimate Ass’n Prohibiting Group Discrimination
Small, intimate groups have absolute freedom of association
• E.g., small groups or clubs, dinner parties
Expressive Ass’n
Prohibiting Group Discrimination
Groups have the right to associate for the purpose of engaging in protected 1st Amend. activities (i.e., activities integral to the group’s purpose) • Usually involves groups formed for expressive, non-intimate associative purposes (e.g., NAACP, Boy Scouts, KKK) » E.g., the KKK is not required to accept AfricanAmerican members, as this exclusion is integral to its association and thus protected
Freedom of Religion
Religion is protected under the Free Exercise Clause and the
Establishment Clause, both under the 1st Amend.
Free Exercise Clause
Protects freedom to exercise religion
• Strict scrutiny applies
• Limitation — Free Exercise Clause only applies if the purpose
of a law is to limit or interfere with religious practice
» Laws of general applicability (i.e., not designed to regulate or interfere with religion) are valid
• Govt. cannot deny benefits to individuals who quit jobs for
religious reasons
Establishment Clause
• If govt. discriminates against a specific religion or sect (as
opposed to religion generally), strict scrutiny applies
• If govt. restricts or burdens religion without discriminating
against a specific faith or group, apply the Lemon test:
1) There is a secular purpose behind the act
2) The act neither advances nor inhibits religion
3) The act does not create excessive govt. entanglement
with religion
Free Speech Incitement
Govt. may punish speech if:
1) There is a substantial likelihood the speech will bring
about imminent illegal activity
2) The speech is aimed at causing imminent illegality
• Note — difficult to satisfy; the law must be narrowly
tailored
Free Speech Fighting Words
• Govt. may punish speech if it is likely to cause an
immediate violent response against the speaker
• Note — it is virtually impossible for a fighting words statute
to be upheld; it will be overbroad, vague, or deemed
content-based and fail under strict scrutiny
Free Speech Obscenity
Govt. may regulate obscenity, which has been deemed a lesser-protected category of speech
1) It appeals to prurient interests (sexually stimulating)
» Community standard applies (i.e., what would an average person in the given community think?)
2) It is patently offensive as defined by applicable law
» Any law prohibiting obscene material must specify what is deemed patently offensive
3) Taken as a whole, the material lacks serious literary, artistic, political, or scientific value
» Determined based on a national standard
Zoning for Obscenity
Govt. may use zoning to regulate obscenity-type
speech or conduct
• E.g., a zoning ordinance limiting all strip clubs to a small
section of a city can be upheld
Free Speech Porn
Private possession is not punishable unless it involves child
pornography
• Child pornography — may be punished because the underlying act is illegal (i.e., sex with minors)
» Child pornography = actual children are depicted
» Adults portraying children is not child pornography
Free Speech Profanity
Generally protected
• Two exceptions:
1) Speech is aired over broadcast media (not cable)
2) Speech occurs in public schools
Commercial Speech
Govt. may regulate commercial speech subject to a test similar
to intermediate scrutiny
Unprotected Commercial Speech
Commercial speech is not protected if it is either:
a) False, misleading, or deceptive, or
b) Illegal or concerns illegal activity
• The govt. may regulate unprotected commercial speech
Protected Commercial Speech
Govt. can only regulate protected commercial speech if:
1) The govt. asserts a substantial interest in its regulation
2) The regulation directly advances the govt. interest
3) The regulation is no more extensive than necessary to advance the govt.’s substantial interest
• A valid commercial speech regulation must be reasonably tailored, but not necessarily the least restrictive alternative
