Con Law Flashcards
Justiciability - Overview
Whether a lawsuit is capable of judicial resolution as a case or controversy. Components:
(1) No advisory opinions
(2) Ripe and not moot
(3) Standing
Justiciability - No Advisory Opinions
Federal courts may not render advisory opinions, which lack: (1) an actual dispute between adverse parties, OR (2) any legally binding effect on the parties
Justiciability - Ripeness and Mootness
Ripeness - Federal courts may only decide controversies that are ripe for review
* Pre-enforcement review of laws (DJ) are not ripe UNLESS: (1) substantial hardship in the absence of review, AND (2) issues and record are fit for review
Mootness - Fed courts may only decide live controversies. Live if: (1) in suit for injunction/DJ, challenged law or conduct continues to injure, OR (2) in suit for damages, plaintiff not made whole
- Exceptions (not moot despite injury passing):
(a) Injury is capable of repetition yet evades review because of inherently limited duration
(b) D voluntary ceases activity but may restart at will
(c) In class actions, ONE P suffers ongoing injury
Justiciability - Standing
Standing requires: (1) Injury, (2) Causation, AND (3) Redressability
- Injury - Any harm that is (1) concrete, and (2) particularized
(a) NOT ideological objections or generalized grievances as a citizen/taxpayer, EXCEPT: - Taxpayer challenging own liability
- Congressional (not executive) spending in violation of Establishment Clause
(b) Third-party injury exceptions:
- Congressional (not executive) spending in violation of Establishment Clause
- Close relationships - P and TP injured; TP unable/unlikely to sue; P can adequately represent TP
- Organizations on behalf of all members - Members’ injury related to org’s purpose; members not seeking individualized damages
- Free speech over-breadth - Party whose speech can be censored sues on behalf of those whose speech cannot
- Causation - Injury is fairly traceable to D
- Redressability - Favorable decision can remedy the harm
Sovereign Immunity
States can’t be sued
- Exceptions:
(a) Waiver by states
(b) Lawsuits where P is another state or feds
(c) Bankruptcy proceedings
(d) Clear abrogation by Congress under 14A to prevent discrimination - Doesn’t apply to:
(a) State officers in suits for injunctive relief or money damages from own pocket
(b) Local govt’s
SCOTUS Review
- Final Judgment Rule - Hears a case only after there’s been a final judgment by the highest state court capable of rendering a decision, a federal CoA, or (in special circumstances) a 3-judge district court
- Independent and Adequate State Grounds - No review of a fed q if state court decision rests on an IASD (i.e. if the outcome would be the same regardless of how the fed q is decided)
Fed Leg Power - Overview
- Limited to enumerated powers; no general police powers EXCEPT over federal land, Indian reservations, and DC
- N&P Clause - Not a basis of power, but allows Congress to choose any rational means to carry out an enumerated power
Fed Leg Power - Enumerated Powers
Taxing and Spending
- Congress may tax and spend to provide for the general welfare, including any public purpose not prohibited even if not within an enumerated power
- Spending conditions:
(a) Strings must related to purpose of spending and not violate Constitution
(b) Strings can’t be unduly coercive
Commerce Power
- Congress can regulate commerce w: foreign nations, Indian tribes, bw states
- Interstate commerce includes: (1) channels of IC, (2) instrumentalities of IC, and (3) substantial effect on IN in aggregate, of even purely local activities
(a) Limits on IC - Can’t (1) regulate noneconomic activity in area traditionally regulated by states, and (2) compel participation in commerce, notwithstanding substantial effects test
Fed Leg Power - Delegation
- To agencies w/ intelligible principle
- To president, but NO line-item veto (violates bicameralism and presentment)
- To itself, but NO legislative veto to void duly enacted laws
Fed Exec Power
Domestic powers:
- Enforcement (and duty) to execute laws
- Inherent/implied presidential powers:
(a) Highest where authorized by Congress
(b) Lowest where prohibited by Congress
(c) Gray area where neither
Foreign powers:
- Can’t declare war, but has broad discretion to deploy troops internationally to protect American lives and property
- Treaties and Exec Agreements:
(a) Treaties trump existing and future STATE law, and existing (NOT future) FED law
(a) Exec agreements trump existing and future STATE law, but NO FED law
Federalism - 10A
Powers not granted to US, or prohibited to the states, are reserved to the states or the people
- General police powers
- Anti-commandeering - Can’t compel states to enact or administer federal programs
(a) Non-coercive spending conditions are NOT commandeering
Federalism - Supremacy and Preemption
Supremacy Clause - Federal law preempts inconsistent state and local laws
Preemption:
- Express
- Implied
(a) Conflict - (1) Impossible to follow both federal and state law, OR (2) state law impedes federal law
(b) Field - Extensive federal regulation indicates congressional intent to “occupy the field”
Federalism - Dormant Commerce Clause
Prohibits state laws that discriminate against or unduly burden interstate commerce
Test:
- Discriminatory laws (favoring in-state over out-of-state commerce) are invalid UNLESS: (1) Necessary to achieve important gov’t purpose unrelated to economic protectionism, AND (2) No less discriminatory alternatives
- Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are valid unless the burden on IC clearly outweighs non-protectionist benefits
Exceptions:
- Congressional approval
- State itself is a market participant (buyer/seller)
Federalism - P&I Art. IV
Prohibits state laws that discriminate against out-of-state ~U.S. citizens~ re: (1) important commercial activities (earning livelihood), OR (2) fundamental rights
Test:
Discriminatory laws are invalid UNLESS: (1) Necessary to achieve important gov’t purpose, AND (2) no less discriminatory alternatives
Federalism - P&I of 14A
- Fundamental right to interstate travel (enter/leave state and get equal treatment once a permanent resident)
- No fundamental right to int’l travel
- Right to petition fed gov’t
Individual Liberties - Incorporation
DPC of 14A incorporates protections against states EXCEPT 3A quartering, 5A right to grand jury indictment, and 7A right to jury in civil cases
Individual Liberties - State Action
- State law
- State officials acting officially
- Private party performs function done by gov’t (1) traditionally, AND (2) exclusively
- Significant state involvement (e.g. assistance, encouragement, supervision, entwinement, or approval) in private conduct
Individual Liberties - Levels of Scrutiny
Rational Basis
(a) Presumed valid
(b) Burden on challenger
(c) Rationally or reasonably related to a rational or legitimate interest
Intermediate Scrutiny
(a) No presumption of validity
(b) Burden on state
(c) Narrowly tailored (substantially related or close fit, not least restrictive) to serve an important or significant state interest
Strict Scrutiny
(a) Presumed invalid
(b) Burden on state
(c) Narrowly tailored (least restrictive) to serve compelling state interest
Individual Liberties - Procedural DP
Individual has right to fair process when gov’t acts to deprive of life, liberty, or property
- Deprivation = Intentional rather than negligent
(a) Liberty - Physical freedom, constitutional rights
(b) Property - real and personal, gov’t entitlements to which an individual has a reasonable expectation of continued receipt - Process due:
(a) Notice - Reasonably calculated to inform person of deprivation
(b) Opportunity to be heard - Pre-deprivation hearing, unless impracticable - Mathews balancing test - (1) Importance of interest to individual, (2) Risk of error, (3) Accuracy gain from add’l procedures, (4) Burden on gov’t
(c) Neutral decisionmaker - No actual or serious risk of bias
- Mathews balancing test - (1) Importance of interest to individual, (2) Risk of error, (3) Accuracy gain from add’l procedures, (4) Burden on gov’t
Substantive DP - Overview
Types of Rights:
- Enumerated
- Unenumerated
- Above can be ~fundamental~ if: (1) deeply rooted in history/tradition, (2) implicit in concept of ordered liberty, OR (3) identified as fundamental by reasoned judgment and new insight
- Unspecified (private consensual adult sexual intimacy, refusing medical treatment, bearing arms)
Levels of Scrutiny:
- Strict Scrutiny (all fundamental):
(a) Marriage
(b) Procreation
(c) Contraception
(d) Custody, care, and upbringing of children
(e) Living w extended family
(f) Interstate travel
(g) Voting - Undue burden - Abortion (fundamental right)
- Rational Basis (Non-fundamental):
(a) Economic rights
(b) Education
(c) Physician-assisted-suicide
Substantive DP - Voting
- Unenumerated fundamental right
- Requirements that protect, not hinder, voting get rational basis
- One person, one vote:
(a) EP requires state and local voting districts to be substantially equal in pop’n (<10% variance presumptively valid)
(b) Art. I requires congressional districts within a state to be as close to ~mathematical equality~ as possible (much stricter)
(c) Racial gerrymandering gets strict scrutiny if race was ~predominant factor~
(d) Political gerrymander OK - nonjusticiable political q
Substantive DP - Abortion
- Pre-viability:
(a) Scope - State may regulate (but not prohibit) abortions to protect woman’s health or life of fetus
(b) Test - Undue burden (substantial obstacle, weighting benefits/burdens) - Post-viability:
(a) Scope - State my prohibit abortions unless necessary to protect woman’s life or health
EP - Levels of Scrutiny
Rational Basis:
- Age
- Disability
- Wealth
- Alienage classifications ~by Congress~
- Alienage classifications by state related to democratic governance
- All other classifications
Intermediate Scrutiny:
- Gender
- Non-marital children
- Undocumented alien children (maybe)
Strict Scrutiny:
- Race
- National origin
- Alienage classifications ~by state~ generally
- Denial of fundamental rights to some
Takings
Gov’t can’t take private property unless (1) for public use, and (2) just compensation paid
- Property = real personal property and some intangible property (NOT welfare benefits tho)
- Physical takings
(a) Temporary occupation - Maybe depending on degree of invasion, etc.
(b) Development exception - Traditional conditions on property development’s are not a taking if benefits are roughly proportional to burdens
(c) Emergency exception - Less likely to find a taking - Regulatory takings
(a) Bright-line rule - Taking if reg does not merely diminish property value but leaves no economically viable use
(b) Ad-hoc analysis - Consider: (1) Economic impact of reg, (2) Interference w investment-backed expectations, and (3) character of gov’t action - Public purpose = Any purpose that government reasonably believes will benefit public
- Just compensation = Fair market value at time of taking
Retroactive Legislation - Contract Clause
“No State shall pass any law impairing the Obligation of Contracts”
- Applies to state and local laws ONLY
- Tests:
(a) For private contracts - Substantial impairment of existing rights invalid UNLESS (1) legitimate or significant purpose, AND (2) reasonable or appropriate means
(b) For public contracts - Intermediate or strict scrutiny
