Con Law Flashcards
State Sovereign Immunity
the 11th Amendment prohibits a private party from suing a state or agency in federal court UNLESS: 1) explicit consent, 2) suit pertains to §5 of the 14th Amendment (where Congress has expressly abrogated), 3) plaintiff seeks injunctive relief in the government’s official capacity, OR 4) plaintiff seeks damages against the government officer in private capacity.
- DIST: OK: to sue local governments, state vs. state suits, and feds vs. state
Standing
Art III limits standing to sue to “cases or controversies.” Plaintiff must illustrate: 1) an injury in fact, pleading particularized or imminent harm, 2) causation, and 3) redressability.
Substantive Due Process:
Pertains to the government’s police power to regulate certain activities under the Due Process clause of the 5th and 14th Amendments.
- Fundamental Rights: when the government attempts to regulate fundamental rights, it must satisfy strict scrutiny (that law is necessary to satisfy a compelling interest). Fundamental rights include: 1) First Amendment, 2) privacy, 3) right to travel, and 4) the right to vote. Otherwise, may use rational basis.
Procedural Due Process:
the Due Process clause of 5th and 14th Amendments guarantee that no person shall be denied life, liberty, or property without due process. Eldridge factors: 1) importance of the private interest, 2) the value of additional procedures, weighed against 3) the government’s interests in efficiency.
- Deprivation of liberty = infringe right supplied by Constitution or statute.
- Deprivation of property = individual has entitlement not fulfilled.
Equal Protection:
Equal protection clause of the 5th and 14th Amendments prevents the government from denying citizens equal protection of the laws. Must show: 1) law is discriminatory on its face, 2) the law is applied in a discriminatory manner, OR 3) discriminatory motive.
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Strict scrutiny: classification is 1) based on suspect class (race, alienage [if state]) or 2) infringes on a fundamental right of a particular class of people.
- EXCP: may limit non-citizen participation in function of the government.
- Intermediate scrutiny: quasi-suspect class (gender, non-marital interest).
Takings:
Under Takings Clause of 5th Amendment, government may take private property for 1) public use IF 2) it provides just compensation. A taking is deemed for public use as long as there is a reasonable belief that it will benefit the public.
- Regulatory taking: Penn Central factors; property becomes economically unviable due to zoning ordinance: 1) character of regulation (invasion type), 2) economic impact, and 3) extent of interference. Courts reluctant to enforce if law is based on general welfare.
Commerce clause:
Congress may regulate 1) the channels of interstate commerce; 2) the people and instrumentalities that work and travel in interstate commerce; and 3) economic or commercial activities that have a substantial effect on interstate commerce.
- Intrastate activites may be regulated when there is a rational basis to conclude that they, in aggregate, have a substantial effect on interstate commerce.
First Amendment (General):
Protects the following rights: 1) freedom of speech and expression, 2) freedom to exercise religion, 3) freedom of the press, 4) freedom to peaceably assemble, and 5) petition the government for redress of grievances.
Establishment Clause:
Prohibits government from establishing or supporting religion. Under the Lemon test, law that does not discriminate against religion will be upheld if: 1) it has a secular purpose, 2) its primary effect does not advance or inhibit religion, AND 3) it does not excessively entangle the government with religion.
Content-Based vs. Content-Neutral Restrictions:
Content Regulation: generally unconstitutional unless strict scrutiny. EXCP:
A. Incitement of illegal activity: 1) imminent, and 2) speech directed.
B. Obscenity: 1) appeals to prurient interest, 2) patently offensive, and 3) lacks merit.
C. Commercial speech: 1) illegal and false & 2) intermediate scrutiny
Content Neutral Regulation: time, place, and manner restrictions.
A. Public forums and designated public forums (streets, sidewalks, parks) must be 1) subject/viewpoint neutral, 2) satisfy intermediate scrutiny (narrowly tailored to serve important government interest), and 3) leave open alternative channels for speech.
B. Limited and nonpublic: regulations must be reasonable and viewpoint neutral.
C. May include symbolic speech if intermediate scrutiny.
Free Exercise Clause:
Prohibits the government from interfering with the exercise of genuine religious beliefs. Interference must meet strict scrutiny.
- EXCP: Laws of general applicability that cause unintentional burdens are constitutional.
Licensing
Procedural Safeguards for Licensing are permitted if:
(1) the government has an important reason for licensing;
(2) specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND
(3) procedural safeguards are in place, including assuring prompt final judicial decision when a license is denied.
