Con Law Flashcards
Type of process required: Commitment to Mental Institution
Adults: prior notice + prior evid. hearing
Children: prior screening by neutral fact finder
Type of process required: Welfare Benefits
Prior notice + prior evid. hearing
Type of process required: Disability Benefits
Prior notice + opportunity to respond + subsequent evid. hearing
Type of process required: public employment (tenured or termination only for cause)
Prior notice + opportunity to respond + subsequent evid. hearing
Type of process required: public education
Prior notice + opportunity to respond
Type of process required: DL suspension
Prior evid. hearing, unless breathalyzer suspension statute
Type of process required: child custody
Prior notice + prior evid. hearing
Type of process required: civil forfeiture
Real property: prior notice + prior evid. hearing
Personal property: subsequent notice + subsequent hearing
Type of process required: detention of citizen enemy combatant
Subsequent notice + meaningful opportunity to be heard
Procedural Due Process: Test for deprivation –> what level of process is required?
The level of process that is required before deprivation of liberty or property depend on the circumstances. Courts weigh (a) the importance of the individual interest and (b) the value of specific procedural safeguards to that interest against (c) the government’s interest in fiscal and administrative efficiency
Procedural Due Process: property
Legitimate claim or entitlement to benefit under state law
Takings Clause
Government is prohibited from TAKING private property for PUBLIC USE without JUST COMPENSATION
Takings Clause: What constitutes a “taking”?
- Physical invasion or appropriation; even if temporary, unless emergency situation
- Denial of ALL economic use of the land, unless the owner is causing a nuisance; if temporary, it could be a taking, depending on the circumstances (does fairness and justice require compensation?)
- MERE DECREASE in economic value is generally NOT a taking. Courts consider (i) social goal (ii) diminution (iii) if there is substantial interference w/ investment-backed expectation
Is a zoning ordinance that prohibits the most beneficial use of the property a “taking”?
No–its a regulation, which does NOT require just compensation!
Is an exaction a “taking”?
Yes, unless (1) the condition relates to a legitimate gov’t interest and (2) the adverse impact of the development is proportional to owner’s loss from the forced transfer
What is an exaction?
It’s where local government will condition a building permit on the landowner giving the gov’t some of the property or granting an easement
Takings Clause: what is the test for “public use”
Rational Basis! Taking must be RATIONALLY related to a LEGITIMATE public purpose
Takings Clause: how is “just compensation” measured
FMV @ time taken–measured by loss to OWNER
What does an owner do when the gov’t takes his property without a condemnation proceeding?
Bring an action for inverse condemnation, seeking just compensation or temporary taking damages
Trigger for Substantive DP issue v. EP issue
Substantive DP: law denies all persons right to engage in activity EP: law treats person/class differently from others
Standards of Review for DP and EP
SS: gov’t must show law is necessary to achieve a compelling gov’t interest; narrowly tailored and LRM
IS: gov’t must show law is substantially related to achieve an important gov’t interest
RB: π must show the law is not rationally related to achieve a legitimate gov’t interest
Application of SS or IS requires a showing of intentional discrimination. That can be satisfied by…
a) facial classification
b) facially-neutral, but discriminatory application
c) discriminatory motive
- -note: discriminatory impact, standing alone, is NOT enough
Is diversity a compelling gov’t interest in public education?
It depends…
- -Primary/Secondary school: no
- -Public university: yes; but uni must show no race neutral alternatives and race cannot be predominant factor in admissions
What standard applies to alienage classifications?
It depends…
- -Federal: rational basis
- -State: strict scrutiny, except for laws that concern participation in state gov’t (police officer; jury; voting; probation officer; primary/secondary school teacher; elective office)
Note: classifications re undocumented aliens are subject to rational basis
What standard applies to gender classifications
IS, including intentional discrimination against males
What standard applies to legitimacy classifications
IS. State can’t enact discriminatory regulation intending to punish non-martial children
What are the four categories of fundamental rights?
Privacy; Voting; Interstate Travel; 1A
What are the rights that fall under privacy?
C-A-M-P-P-E-R-S
Contraception; Abortion; Marriage; Parental Rights + Procreation; Extended Family (right to keep together); Reading obscene material in the home; Sex
What is the current test for abortion?
Pre-viability: Undue burden
Post-viability: State can enact restrictions on abortion to protect health of the fetus, but must allow an abortion if necessary to protect woman’s health
What are examples re undue burden for abortion?
Undue burden: admitting privileges; spousal notification
No undue burden: licensed physician; parental consent of minor, if judicial bypass procedure available; 24-hour waiting period; required info for informed consent
Vote dilution: drawing districts
When states draw CONGRESSIONAL districts: almost exact mathematical equality is required.
–When Congress apportions: good faith
When states draw LOCAL districts: reasonable variance is OK (16% = constitutional; while 30% = no good). Exceptions: at-large elections and special purpose elections
Durational residency requirements can violate the right to interstate travel under some circumstances. When are such requirements valid/invalid
VALID
- -30 days to vote in state
- -1 year to get divorced in state
INVALID
- -1 year to vote in state
- -1 year to get full welfare benefits
- -1 year to get state healthcare
State action requirement + exceptions
To show a constitutional violation, state action must be involved. Exceptions…
- -Exclusive Public Function: e.g., running a town or an election
- -SIGNIFICANT state involvement in facilitating private action: when a state affirmatively authorizes, encourages, or facilitates acts of discrimination by private citizens.
- —-This includes enforcing racially restrictive covenants and leasing premises to a discriminatory lessee where the state derives an extra benefit.
- —-This does NOT include granting a license and providing essential services to a private club or granting a monopoly to a utility. This does NOT include a land grant to a private organization that later adopts discriminatory practices.
1A: restrictions on commercial speech
[Apply quasi-IS standard]. If the commercial speech is neither misleading nor fraudulent, the government can only place a restriction if (1) there is a SUBSTANTIAL gov’t interest; (2) the restriction DIRECTLY ADVANCES that interest; and (3) the restriction is NARROWLY tailored.
Commerce Clause
C-I-A
Congress can regulate (1) Channels of interstate commerce; (2) Instrumentalities of interstate commerce; and (3) Activities that have a substantial affect on interstate commerce.
Congress can regulate INTRAstate activity if (1) regulation concerns commercial or economic activity (2) there is a RATIONAL BASIS on which Congress could conclude that the the activity in AGGREGATE substantially affects INTERstate commerce.
When the INTRAstate activity is non-commercial, there is no aggregation, and the regulation will only be upheld if there is a showing of a direct substantial economic effect on interstate commerce
1A: Regulation of Gov’t Employee Speech
If the speech was within the gov’t employee’s official duties, the gov’t can regulate/punish based on the content (irrespective of whether it is a matter of public concern).
If the speech was NOT within the gov’t employee’s official duties and does NOT involve a matter of public concern, the gov’t has wide deference to regulate/punish speech that is disruptive to the work environment
If the speech was NOT within the gov’t employee’s official duties but DOES involve a matter of public concern, the speech can be punished/regulated only if government’s interest in providing public service outweighs the citizen’s interest in commenting on the matter.
Defamation: Absolute Privileges
- judicial proceedings
- legislators during proceedings
- federal executive officials
- compelled broadcasts
- between spouses
NOTE: for legislative proceedings, statement does NOT need to relate to the proceeding; but for JUDICIAL and EXECUTIVE PROCEEDINGS, the statement DOES need to relate to the proceeding for it to be protected
Defamation: Qualified Privileges
- reports of official proceedings
- statements in interest of publisher
- statements in interest of recipient
- statements in common interest o publisher and recipient
Can be lost through abuse
Standing: elements
(1) injury: π has been injured or will imminently be injured
(2) causation
(3) redressability
3P standing
(1) close relationship; (2) difficult for 3P to assert her own rights
Organizational standing
(1) members would have standing to sue
(2) injury is related to org.’s purpose
(3) neither the claim nor the relief requires participation of individual members
Do taxpayers have standing to challenge federal gov’t grants of property to religious institutions?
No
Do taxpayers have standing to challenge a federal law providing monetary aid to parochial schools?
Yes
Ripeness
(1) fitness for judicial decision
(2) hardship to the parties of withholding court consideration
AISG
SCOTUS will not review a decision from the highest state court if the decision is supported by an adequate and independent state law ground. If the decision rests on both state and federal grounds, SCOTUS will not hear the case if reversal on the federal ground would not change the result.
Key type of case where SCOTUS has original jx
Suits between states
Congress does not have a general federal police power, except in 4 circumstances…
- military
- Indian reservations
- federal lands
- D.C.
Can a federal court hear a suit against a state? Can a state court hear a suit against a state?
No (11A bars suit against states in federal court; sovereign immunity bars suit against states in state court)
Exceptions
- waiver
- suits brought pursuant to federal law enacted under 14A § 5
- Fed v. State
- Bankruptcy
Can Congress tax and spend for the general welfare? What is the test?
Yes
(i) reasonable relationship to revenue production; or
(2) Congress has power to regulate taxed activity
Commerce Power
(1) channels of interstate commerce
(2) instrumentalities of interstate commerce
(3) economic activities that have a substantial effect on interstate commerce
––for intrastate activity: Congress can regulate if the activity is economic or commercial in nature and there is a rational basis for which Congress could conclude that the activity in aggregate substantially affects interstate commerce
What are the requirements for Congress putting strings on funding grants to states?
(1) conditions must be EXPRESSLY stated
(2) conditions must RELATE to the purpose of the spending program
(3) conditions cannot be UNDULY COERCIVE
Hierarchy of Laws
1) U.S. Constitution
2) Treaty // Fed Statute (last in time prevails)
3) Executive agreement
4) State law
Appointment Power
Congress can vest appointment of INFERIOR officers in…
a) the President
b) heads of Departments
c) federal courts
Congress may NOT GIVE ITSELF THE APPOINTMENT POWER
Presidential immunity
Absolute immunity from civil suits for money damages for any actions while in office
Is executive privilege absolute?
No–it must yield to other important gov’t interests
Pardon power
Only applies to FEDERAL CRIMINAL offenses; also, cannot pardon impeachment offense
Preemption
-Express
-Implied
––Impossibility
––Objects & Purposes
––Field
Can states tax or regulate federal gov’t activity?
NO! Inter-govermental immunity
What are the steps of analysis for a question dealing with state regulation of interstate commerce?
Step 1: does the law discriminate against out-of-staters?
––No: If the statute burdens interstate commerce, it is unconstitutional, unless the burden is outweighed by the benefit to the state
––Yes: [step 2]
Step 2: does the law unduly burden interstate commerce?
––Yes…
––––Dormant CC: the law is unconstitutional, unless it is necessary to achieve an important state interest [~IS]
––––Art IV P&I: if the law discriminates against out-of-staters re the right to earn a livelihood (or a fundamental right), the law is unconstitutional unless it is necessary to achieve an important state interest [~IS]
––No: law = constitutional
When is a state tax that affects interstate commerce constitutional?
(a) substantial nexus between activity taxed and the state
(b) fair apportionment according to a rational formula
(c) fair relationship between tax and benefits provided to the state
When must private conduct comply with the Constitution? (i.e., finding “state” action)
Public Function exception: where the private actor is performing a task traditionally done by gov’t (running a town)
Entanglement exception: where the gov’t authorizes, encourages, or facilitates unconstitutional activity
State Action situations
- State provides books to schools that racially discriminate?
- Gov’t leases premises to restaurant that racially discriminates?
- Private club with state liquor license racially discriminates?
- State provides books to schools that racially discriminate? –> YES
- Gov’t leases premises to restaurant that racially discriminates? –> YES
- Private club with state liquor license racially discriminates? –> NO
Contracts Clause
- only applies to states
- only applies to existing contracts
- state/local interference with PRIVATE contracts is subject to IS
- state/local interference with GOV’T contracts is subject to SS
What standard applies to durational residency requirements?
SS
Sources of law for EP question
14A EP Clause: applies to states
5A DP Clause: applies to states; EP has been read into the 5A DP Clause
For alienage classifications by states, SS typically applies. However, classifications concerning self-gov’t and the democratic process are subject to RB–including…
i) voting
ii) jury service
iii) primary/secondary school teacher
iv) probation officer
v) police officer
Can the government require a license for speech?
Yes, but only if there is an IMPORTANT reason for licensing and CLEAR CRITERIA leaving almost NO DISCRETION to the licensing authority. Procedural safeguards are also required.
Can the gov’t regulate symbolic speech?
Yes, so long as it has an IMPORTANT interest unrelated to suppression of the message and the IMPACT on communication is no greater than necessary to achieve the gov’t purpose
Can broadcaster be liable for playing a tape of an illegally intercepted call?
No, so long as the media did not participate in the illegality and the speech involves a matter of public importance
Distinction between designated public forum and limited public forum + why it matters
Designated PF: non-public forum that gov’t opens to speech, by practice/policy
––school rooms used for after school activities
Limited PF: gov’t property that is opened to certain groups or discussions of some subjects (i.e., for specific purpose)
––example: school gym for a debate on a particular subject
Why it matters?
- –Designated PF TPM regulation must be content neutral and meet IS
- -Limited PF TPM regulation need only be viewpoint neutral and meet RB
Freedom of association; when can the gov’t punish membership in a group?
Must show the person (1) actively affiliated with the group; (2) knew of its illegal activities; and (3) had the specific intent of furthering those illegal activities
Are laws that prohibit a group from discriminating constitutional?
Yes, unless they interfere with intimate association (small dinner party) or expressive activity (Boy Scouts)
Free Exercise Clause
Gov’t cannot prohibit free exercise of religion, but CAN enact neutral laws of general applicability that incidentally burden religion. The law will only be struck down if it was specifically designed to interfere with religion.
- Ministerial exception fo emp’t discrimination
- Gov’t cannot deny unemployment benefits to someone who quits job for religious reasons, so long as that person’s belief is sincerely held
- Amish compulsory education exception (based on free exercise and FR to educate one’s children)
Can the gov’t deny benefits to persons who quit their jobs for religions reasons?
NO
Can the government deny benefits to a religious school that are provided to a secular school?
Yes, but SS applies
Establishment Clause
Lemon Test–for law to be constitutional: (1) secular purpose; (2) primary effect neither advances nor inhibits religion (3) no excessive entanglement b/n gov’t and religion
Is gov’t sponsored religious activity in public schools constitutional
No, but religious students must have the same access to school facilities as non-religious groups
Can the gov’t give assistance to parochial schools?
Yes, but it cannot be for the purpose of religious instruction
What is the effect of the President being Commander in Chief
Has the EXCLUSIVE power to deploy the military against any enemy, foreign or domestic
Level of process required for denial of certain things ––Commitment to Mental Institution ––Welfare Benefits ––Termination of Parent's Custody Rights ––Disability Benefits ––Public Employment ––Public Education ––DL Suspension ––Civil Forfeiture: Real Property ––Civil Forfeiture: Personal Property
Prior Notice + Prior Evidentiary Hearing ––Commitment to Mental Institution ––Welfare Benefits ––Termination of Parent's Custody Rights ––Civil Forfeiture: Real Property
Prior Notice + Opp. to Respond + Subsequent EH
––Disability Benefits
––Public Employment
Prior Notice + Opp. to Respond
––Public Education
––DL Suspension
Subsequent Notice + Subsequent Evidentiary Hearing
––Civil Forfeiture: Personal Property
Unprotected Speech
––Inciting Imminent Lawless Action
––Fighting Words
––Obscenity
Inciting Imminent Lawless Action
-Speech that creates clear and present danger of imminent lawless action
Fighting Words
-Generally, such regulations are invalid as vague and overbroad
Obscenity
-Speech that reasonable person would find (1) appeals to prurient interest in sex [community standard]; (2) is patently offensive [community standard]; (3) lacks serious value (literary; scientific; political; artistic) [national RP standard]
Can a state tax the federal gov’t?
No, not directly. But a non-discriminatory indirect tax is OK (e.g., state income tax for federal workers)
Establishment Clause: financial aid rules
Recipient-based aid: gov’t can give aid to a neutral class, even if most people in that class attend a religiously-affiliated school
Aid to colleges/hospitals: aid must be used for non-religious purpose
Aid to middle/high school: [watch out for excessive entanglement]
Establishment Clause: religious activity in public school
Public school cannot sponsor religious activity, but accommodation of religion is OK
Religious organizations can use space in public school that is open for extra-curriculars
Freedom of Press: misc. rules
- -tax/reg on press
- -interviewing prisoners
- -access to trials
- -GJ testimony
Tax/Reg on press that is based on content of publication requires a compelling justification
No right to interview prisoners
Access to trial can be outweighed by overriding interest
Press can be required to testify b/f grand jury
Elections: misc. rules
- What is the standard of scrutiny for limits on individual campaign contributions?
- Can the gov’t limit contributions for a ballot referendum?
- Can the gov’‘t limit what a candidate spends on her own campaign?
- Can the gov’t ban personal solicitation of campaign contributions by judicial candidates?
- Can the gov’t prohibit judicial candidates from announcing views on disputed legal issues?
- Can the gov’t prohibit campaigning w/in 100 feet of polling place?
- Can the gov’t require a reasonable # of signatures for the ballot?
-What is the standard of scrutiny for limits on individual campaign contributions?
––IS
Can the gov’t…
- Limit contributions for a ballot referendum? –> NO
- Limit what a candidate spends on her campaign? –> NO
- Ban personal solicitation of campaign contributions by judicial candidates? –> YES
- Prohibit judicial candidates from announcing views on disputed legal issues? –> NO
- Prohibit campaigning w/in 100 feet of polling place? –> YES
- Require a reasonable # of signatures for the ballot? –> YES
Gov’t restrictions on gov’t employee speech: steps of analysis
- Was the speech w/in the EE’s duties?
––If yes, gov’t can punish
––If no, Step 2 - Was the speech a matter of public concern?
––If yes, gov’t can punish only if gov’t interest outweigh’s EE’s interest
––If no, gov’t has wide deference to regulate speech disruptive to work environment
Can gov’t prohibit executive branch officials from involvement in political campaigns?
Yes
Freedom of Association
Gov’t cannot unduly burden a person’s right to belong to an unpopular group
Gov’t can regulate if compelling interest, that is unrelated to suppression of ideas, if it is the LRM
Gov’t cannot regulate if it would substantially impede right to expression
State taxation of interstate commerce: ad valorem tax
Commodities in interstate commerce CANNOT be taxed
Instrumentalities used to transport the commodities CAN be taxed if taxable situs and fair apportionment
Free Exercise Clause: steps of analysis
Steps of Analysis for Free Exercise claim:
- Is the belief religious?
a. Test: does the belief occupy a place in the believer’s life parallel to that occupied by orthodox religious beliefs? - Is the religious belief sincerely held?
a. Test: is the person lying? - Does the law target religious conduct?
a. Test: neutral law of general application - If the law was adopted specifically to interfere with religious practice, is it nonetheless valid?
a. Test: SS
