Con Law Flashcards
Con Valid Case/Contr
Standing
Timing
11th Amend
Con Standing
Individual
3rd Party
Taxpayer
Organizational
Individual Standing
Injury Actual or imminent Traceability Redressability Outcome must be possible
Con 3rd Party Standing
Individual standing
Special relationship between the two
Difficult for 3rd party
Taxpayer Standing
Only for violation of Establishment
Org Standing
Members have standing
Interests related to org’s purpose
Does not require participation by org’s members
Con Timing to File
Ripeness
Mootness
Ripeness
Cannot be too speculative
Mootness
Must still be in controversy
Exceptions of Mootness
Collateral Consequence
Voluntary Cessation
Class action
11th Amend
Provides immunity to states from federal suit
Individual 11th Amend
Precludes citizens from
Suing their own state in Fed court
Gov’t 11th Amend
Precludes citizens of one state from
Suing another state in Fed court
Not Barred by 11th Amend
Actions against local gov’t
Actions by US gov’t
Bankruptcy
Exceptions to 11th Amend
Injunctive Relief When state official Enjoined from enforcing state law Damages Only if officer pays b/c outside law
Con State Action
Must be gov’t involvement for violation of constitution
Two types: Traditional or Entanglement
Trad State Action
Elections OR private property used for public services
Entanglement State Action
Significant State Involvement:
When gov’t acts affirmatively to
Facilitate, encourage, or authorize activity
Judicial and law enforcement
Government licensing and regulation
Government subsidies
Voter initiatives permitting discrimination
10th Amend state powers
All powers not assigned to Fed go to state cannot compel states to pass laws
Fed Legislative Powers
Commerce Clause Taxing/Spending War Alienage Enabling Delegation DC
Commerce Clause
Channels: Highways, waterways
Instrumentalities: Cars, trucks
Activity that substantially affects
Intrastate:
Commercial or economic:
Rational basis
Substantial economic effect on interstate
Noncommercial or noneconomic:
Direct and substantial effect on interstate
Legis Taxing Power
Reasonable relation to revenue production
Goods exported to foreign cannot be
Taxed by Congress
Legis Spending Power
Broad power for general welfare
Legis War Power
Power to declare war and raise armed forces
Legis Alienage Power
Plenary
Legis Enabling Power
Broad authority to enact laws necessary and proper
Rationally related to enumerated power
Legis DC Power
Congress supreme authority
Legis Delegation Power
Generally no
Sometimes if intelligible principle
Explicit Exec Power
Appointment
Veto
Pardon
Military
Exec Appt Power
Officers subject to senate approval
Exec Veto Power
In its entirety
If no action by pres &
Congress in sess, law passes
Exec Pardon Power
Federal offenses
Except impeachment
Exec Military Power
Action w/out declaration of war
Can be limited by Congress
Inherent Exec Powers
Max Auth
Zone of Twilight
Lowest Ebb
Inherent Max Auth
Express or implied auth by Congress
Difficult to challenge
Inherent Zone of Twilight
No act by Congress either way
Constitutional unless usurp powers given to Congress
Inherent Lowest Ebb
Express denial from Congress
Constitutional ONLY if Congress
Act was unconstitutional
Judiciary Power for Fed to Review Cases
Arising under the Constitution Admiralty Between two or more states Between citizens of different states Between state or its citizens and a foreign country
Exception to Fed Power to review Cases
Independent and adequate state law
Will not be heard even a Fed question
Express Preemption
Language shows intent
“Supersedes any and all state laws”
Preemption
State limitations for legislation based on Fed laws
Implied Preemption
Conflict: mutually exclusive
Impedes Fed legislative goal
Field: Congress occupy particular area of law
DCC
Commerce clause reserves to congress
Power to regulation commerce
If congress has not acted then state can regulate so long as does not discriminate or unduly burden interstate commerce
Req of DCC Discriminate
Necessary to achieve important
Non-economic gov’t interest
With no reasonable alternative
Req of DCC Unduly burden interstate commerce
Rationally related to a legitimate gov’t interest
Outweighed by benefits to state
Exceptions to DCC
Congressional Approval
Market Participation
P & I
Prevents discrimination against non-citizens regarding fundamental right to national unity UNLESS substantial reason
Corporations and aliens not considered citizens for this
Substantial Reason P&I
Peculiar source of evil
Substantially related to this evil
With no less restrictive means to solve the problem
K Clause
Prevents state gov’t from passing laws retroactively AND substantially impair existing contracts
Private K Clause
Reasonable and appropriate to serve significant and legitimate public purpose
If social and economic:
Must be necessary
Public K Clause
Necessary to serve important public purpose
10th Amend Commandeering
The Fed government cannot force the states to create laws or force states to enforce Fed laws
First Amendment
Protects individual rights to free speech and is applicable to the states through the 14th amendment
Content Based Speech
Regulated based on content
Requires strict scrutiny
Strict Scrutiny
Narrowly tailored
Compelling gov’t interest
Less Protected Speech
Obscenity Incitement Fighting Words Defamation Commercial
Obscenity Speech
Appeal to prurient interest
Patently offensive to average person
Lacks value: artistic, scientific, etc
Incitement Speech
Intended to incite
Imminent lawless action
Likely to do so
Fighting Words Speech
Likely to immediate breach of peace
Commercial Speech
Non-deceptive/non-illegal speech
Substantial gov’t interest
Directly advances that interest
Least-restrictive method to achieve
Content Neutral Speech
Aimed at something other than content
Serve significant/important gov’t interest
Narrowly tailored to that interest
Leave alternative channels of communication
Time Place Manner Forums
Public
Designated
Limited
Non Public
Public Forum
Generally open to public
Designated Forum
Not general public but opened up for specific purpose
Public/Designated Req
Subject matter and viewpoint neutral
Serve significant/important gov’ interest
Narrowly tailored
Leave open alternative channels
Limited Forum
Opened for limited use by certain group
Non Public Forum
Closed to public
Non-Public/Limited Req
Viewpoint neutral
Serve legitimate gov’t interest
Reasonably related to interest
Symbolic Speech
Within Constitutional power
Important gov’t interest
Unrelated to suppression of speech
Prohibits no more speech than necessary
Vagueness
Sufficient definiteness that people understand
Does not encourage
Arbitrary or discriminatory enforcement
Overbreadth
Burdens more speech than Necessary to protect gov’t interest If properly regulated Strike whole statute If not properly regulated Removes only category being challenged
Prior Restraint
Preventing speech before it occurs only allowed if irreparable or serious harm to public
Narrowly drawn standards
Final determination on validity
Collateral Bar Rule
Must comply in order to challenge
Unfettered Discretion
Leaves discretion to decision maker
Not unfettered it
Narrow and specific grounds for denying
Closely tailored to regulation’s objective
Reasonable means of maintaining public order
Types of Religious Viol
Free Exercise
Establishment
Free Exercise
Cannot intentionally interfere with a party’s ability to exercise free religion
Requires strict scrutiny:
Narrowly tailored to achieve compelling gov’t interest
Exception to Free Exercise
Does not intentionally burden religious beliefs
Advances important public interest
RFRA Free Exercise
Allows challenge if substantially burden
Strict Scrutiny
Narrowly tailored to achieve
Compelling gov’t interest
Establishment
Prevents endorsing or
Supporting religion
Sect Preference Establishment
Strict scrutiny
No Sect Preference
Lemon Test:
Secular purpose
Primary secular effect
No excessive gov’t entanglement
Freedom of Ass’n
Right to freely associate
W/ individuals or groups
Ass’n Public Job
Active member of group
Knows group’s illegal aims
Specific intent to further group’s illegal aims
Compelled Ass’n
Compelling gov’t interest
Unrelated to suppression of free expression
Cannot be achieved by less restrictive
Press 1st Amend
No greater than public Gag Order: Prohibits publication about court proceedings Subject to prior restraint No constitutional privilege to protect sources Broadcaster: May be sanctioned for Patently offensive Sexual and excretory speech
Due Process Method
Applicable to states through 14th and Fed through 5th
Substantive DP
Gov’t action that infringes upon fundamental right and generally subject to strict scrutiny
Necessary to achieving
Compelling gov’t interest
Substantive DP Fundamental
Marriage Living with family Child bearing Child rearing Domestic travel Voting Free Speech
Substantive DP Non-Fundamental
Everything else
Rational Basis
Rationally related to
Legitimate gov’t interest
Procedural Due Process
Requires the gov’t to use
Fair process before
Intentionally depriving
Life, liberty, or property
Liberty Proc DP
Drive or raise a family
Property Proc DP
Real property Personal property Public education Gov’t education Gov’t licenses Gov’t benefits already receiving
Judicial Process Due for PDP
Right to hearing
Call Witnesses
Fair Trial
Appeal
Non-Judicial Process Due for PDP
Individual’s interest in right affected
Added value of procedural safeguards used (Make up what they could have done)
Gov’t interest in fiscal and admin efficiency
Equal Protection
Of 14th Amend and app to Fed through 5th
Treating similarly situated persons differently
Suspect Classification EP
Based on race, national origin, alienage OR fundamental
Strict Scrutiny:
Necessary to achieve
Compelling gov’t interest
Quasi-Suspect Classification EP
Based on gender or Illegitimacy
Intermediate:
Substantially related to achieve important gov’t interest
Non-Suspect Classification EP
Everything else
Rational Basis:
Rationally related to legitimate gov’t interest
Involuntary Servitude
Applicable to state and private
Forcing someone to perform by threat, restraint, or legal sanction
Takings Clause
5th Amend Private property not taken without Public use and just compensation This can be real property, tangible property Or intangible property
Public Use Takings Clause
Rationally related to
Conceivable public purpose
Just Compensation Takings Clause
Fair Market Value at time of taking
Types of Taking
Total Taking
Temporary Taking
Regulatory
Total Taking
Permanent physical invasion
Denies all economically beneficial use
Temporary Taking
Economic Impact
Length of delay
Reasonable expectation of owners
Good faith on gov’t planners
Regulatory Zoning
Character of the invasion
Economic impact on claimant
Interference w/ investment backed expectation
Ex Post Facto
Retroactive change to crim or penal law that Criminalizes act not Crim when originally committed Authorizes imposition of more severe penalty Deprives defendant of defense Available at time committed OR Decreases pros burden of proof Required for conviction
Bills of Attainder
Declared guilty w/ out trial
Applies only to crim or penal
Exaction (easement in order to obtain permit)
Not a taking if:
Essential nexus” between the public need and condition; and
Individualized determination of impact proportional to requirement
