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CA Essay Subjects > Con Law > Flashcards

Con Law Flashcards

1
Q

Case and Controversy

A

There must be an actual case or controvery in dispute. No political questions.

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2
Q

Standing

A
  • To bring a claim, a person must have standing. Standing requires
    • injury,
    • causation, and
    • redressibility.
  • Third-party standing
  • Organizational standing requires that the
    • individual members have standing
    • that the interest asserted are related to the organization’s purpose and
    • that individual members are not required to participate
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3
Q

Ripeness

A

A case eill not be heard if there is not yet a live controversy or immediate threat of harm (future harm)

**discuss when declaratory judgement AND encacted law not yet enforced**

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4
Q

Mootness

A

A case will not be heard of a live controversy exsisted at the time the complaint was filed but has since been eliminated

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5
Q

11th Amendment

A

The Eleventh Amendmen provides immunity to the states from any federal suit against any one of the states by citizens of another state or a foreign state

  • cannot sue state
  • Bars actions for damages
  • Cities and counties OK
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6
Q

State Action

A
  • There must be government action for an action to violate the constitution.
  • The actions of a private actor can bw state action if
    • performs function that are traditionally and exclusively public functions, OR
    • state is heavy entangled
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7
Q

State Power: 10th Amendment

A

Under the 10th Amendment, powers not delegated to the federal government are reserved for the states

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8
Q

Federal Powers: Congress

A
  • Can regulate commerce
    • interstate
      • channels
      • instrumentalities
      • persons and things moving
      • activities with substantial effect on commerce
    • intrastate
      • economic
    • rational belief
    • substantial economic effect
    • direct and substancial effect
  • Tax and Spending
  • War
  • Naturalization
  • Necessary and propery - if rationally related
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9
Q

Federal Powers: Judiciary

A
  • Cases under constitution
  • Admiralty/ 2 states / citizens of different states
  • not if independent and adequate state grounds
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10
Q

Federal Powers: Executive

A
  • Carry out laws
  • executive orders
  • treaties
  • appointments
  • foreign affairs
  • pardon federal offenses
  • Veto bills - but no line items
  • Executive privilege qualified: weigh government interest
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11
Q

Limitations on State Power: Supremacy/Preemption

A

Federal laws take priority and preempt over state laws that conflict

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12
Q

Limitations on State Power: Dormate Commerce Clause

A

The Domant Commerce Clause restricts the states ad local governments from regulating activity that affects interstate commerce if the reulation is discriminatory or unduly burdens commerce.

(per se violaion) A regulation that is facially discriminatory against out-of-towners will be permitted only if it is

  • necessary to
  • important noneconomic government interest
  • with no reasonable alternatives

A regulation that unduly burdens interestate commerce will be permitted if it is

  • rationally related to a
  • legitimate government interest and the
  • burden imposed on interestate commerce must be outweighed by the benefits to the state

EXCEPTIONS

  • Market participant: when the state is not acting as a regulator, but rather owns or operates a business, it may favor local interest over nonlocal interest.
  • Congressional consent to regulation
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13
Q

Limitations on State Power: Privileges and Immunities Clause

A
  • State cannot discriminate against noncitizens
  • Unless substanctially reated and less discriminatory alternatives
  • rights fundamental to national unity
  • corporations and aliens are not citizens
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14
Q

Limitations on State Power: Contracts Clause

A

The contracts clause prevents state governments from passing laws that retrocatively and substantially impair existing contracts

  • if the state is substantially impairing private contracts, the law must be reasonable and appropriate to serve a significant and legitimate public purpose
  • Similar to the test above but the court will interpret it more strictly, focusing on the law being necessary to serve an important public purpose
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15
Q

Limitations on Federal Power: 10th Amendment

A

The tenth amendment reserves all powers not delegated to the federal government to states

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16
Q

Limitations on Federal Power: Improper delegation of legislative power

A
  • Congress cannot delegate its legislative authority to make law
  • congress can delegate regulatory powers to others branches of the government if there are intelligible principles that govern the exercise of the delegated authority
17
Q

Individual Rights: 1st Amendment - religion

A
  • The Free exercise clause bars any law that prohibits or seriously burdens the free exercise of religion, UNLESS there is a compelling governmental interest
    • generally applicable law that advances important public interest are OK
  • Establishment Clause prohibits laws respecting the establishment of religion. The government can’t endorse or favor specific religious groups
    • incidentally favoring one religion over another in an attempt to benefit a wide variety of people is allowable
    • lemon test
      • secular purpose
      • primary secular effect
      • no excessively government entanglement
18
Q

Individual Rights: 1st Amendment - Free Speech

Content based v. content neutral

A

Content based v. content neutral

Content-based speech regulations must meet strict scrutiny, which requires that the regulation be necessary to achieve a compelling government interest.

Content-neutral regulations require that the regulation serve a significant/important governement interest, that is narrowly tailored, and that it leaves open alternative channels of communication.

19
Q

Individual Rights: Freedom of Association

A

First Am

20
Q

Individual Rights: Freedom of Association

A
21
Q

Individual Rights: Substantive Due Process

A

Substantive due process limits the governement’s ability to regulate certain areas of human life, such as the substantive interest in life, liberty, and property.

  • fundamental right - strict scrutiny
  • no fundamental right - rational basis
22
Q

Individual Rights: Procedural Due Process

A

Procedural Due Process requires the government to use fair process before intentionally deprive a person of life, libery, or property.

  • judicial: hearing, counsel, call witnessses, trial, appeal
  • nonjudicial: balance private interest, procedural safeguards, and government interest
23
Q

Individual Rights: Equal Protection Clause

A

The Equal Protection Cluase prohibits the government from treating similarly situated people from being trated differently under the law on its face or as applied.

  • Levels of Scrutiny
    • Strict Scrutiny
      • necessary to compelling gov interest
    • Intermediate Scrutiny
      • Substantially related to an important governmental interest
    • Rational Basis
      • rationally related to legitimate government interest
  • Classifications
    • Suspect
    • Quasi-suspect
    • Nonsuspect
24
Q

Takings Clause

A
  • The government can not take private property
  • for public use (rationally related OK)
  • without just compensation (market value)
  • Considered a total taking if
    • permanent physical invasion (per se taking)
    • use restriction no economic value left
  • Temporary taking court considers
    • economic impact
    • reasonable expectation of owner
    • length of delay
    • good faith
  • Regulatory taking court considers
    • character of invasion
    • economic impact
    • interference with invest backed expectation
25
Q

Individual Rights: 1st Amendment - Free Speech

Limitations on Free Speech

Vagueness

Overbroad

Unfettered Discretion

Prior Restraints

A
  • A regulation is Vague if it is so unclearly defined that a reasonable person would have to guess at its meaning.
  • A regulation is Overbroad if it bans both protected speech and unprotected speech.
  • A regulation, licensing scheme, or permit regulation is unconstititutional if it leaves Unfettered Discretion to the decisionmaker by not setting forth narrow and specific grounds for deny a permit or where the permit mechanism is not closely tailored to the regulation’s objective. Further, the regulation must be a reasonable means of maintaining public order
  • ​Prior Restraints prevent speech from being heard before it even occurs. These are rarely allowed and carry a heavy presumption of unconstitutionality. A prior restraint is only allowed where the government can show that some irreparable or serious harm to the public will occur and then there must be narrowly drawn standards and a final determination of the valifity of the restraint.
26
Q

Individual Rights: Speech -

Time, Place, Manner

Commercial Speech

Symbolic Speech

Limitations on Free Speech

A
  • Time, Place, Manner
    • Public/designated public
      • content nuetral and viewpoint neutral
      • significant governmental interest
      • narrowly tailored
      • open alternative channels
    • Limited public/nonpublic
      • viewpoint neutral
      • legitamate governmental interest
      • reasonably related
  • The government may restrict Commercial Speech only if the regulation
    • serves a substantial government interest
    • directly advances that interest AND
    • narrowly tailored to a reasonable fit
  • Symbolic Speech is the freedom not to speak or the freedom to communicate an idea by use of a symbol or communicatice conduct, the government may restrict symbolic speech if the regulation
    • is within the constitutional power of the government to enact
    • furthers an important governmental interest unrelated to the supression of speech and
    • prohibits no more speech than necessary
      *

CA Essay Subjects (9 decks)

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