Con Law BLL Flashcards
Equal Protection
It is applicable to states via 14A and to fed via 5A Due process clause
Applies where a statute or gov’t action treats similarly situated people in a dissimilar manner or singles out one class of persons (classficiation)
Three Standard
(1) Strict scrutiny: Gov has the burden to necessary to achieve a compelling gov interest
- Race: segregation
affirmative action: also subject to strict scrutiny, can be upheld if it intends to remedy past discrimination (NOT societal discrimination), with narrow tailoring
- Alienage: Citizen and non citizen,
- Public function exception: Rational basis applies for certain jobs in the state
- illegal alines are not protected: Rational basis applies
- Fed gov (NOT STATE GOV) can regulate the immigration policy, rational basis
- National Origin
(2) Intermediate Scrutiny: Gov has the burden to substantially related to an important gov interest
a. gender: Gov must show the exceedingly persuasive justification
b. illegitimate child
(3) Rational basis
a. P has the burden to prove that it’s not rationally related to a legitimate gov interest
Establishment Clause
Prohibits gov’t from preferring one religion over another or establishing a religion
- If regulation on its face discriminates or prefers a religion, or prefers religion generally over non-religion → Strict scrutiny
- Coercion Test: 2022 Kennedy decision - Gov’t cannot coerce support or participation in religion against one’s will (e.g., broadcasting prayer during school graduation or football game, expectation to participate).
Lemon test: if it has 1) secular (nonreligious) purpose, 2) primary effect that does not advance or inhibit religion, 3) no excessive gov’t entanglement with religion, such as payment, scholarship, tax break, subsidies. Kennedy “abandoned” Lemon but did not explicitly overrule. Consider both tests
b. Gov’t financial assistance to defined class of persons is valid if the class is defined w/o reference to religion or religious criteria (even if recipients use to attend religious school)
Free Exercise clause
Gov’t may not prohibit the free exercise of any religion
- Sincere religious beliefs are absolutely protected. The belief must parallel orthodox religious beliefs; it cannot be a purely political or philosophical view
- Gov’t may regulate (under Rational basis) an activity if the regulation is neutral to religion and is of general applicability, serves an important government interest. Even if it incidentally burdens religious conduct
- If law is not generally applicable and was motivated by intent to interfere with religion → Strict Scrutiny
15th Amendment
The Fifteenth Amendment is a limitation on both the states and the federal government. It prohibits them from denying any citizen the right to vote on account of race or color.
race cannot be the predominant factor in drawing the boundaries of a voting district unless the district plan can pass under strict scrutiny.
Reasonable restriction (on being a candidate: age, residency, filing fee, ? Rational Basis
a. Traditional one-person one-vote principle does not apply to special, limited-purpose voting districts, such as a water-storage district where voting is limited to landowners
Spending power and Tax power
Congress’s spending power is plenary, and Congress can choose how it spends its money so long as that choice can reasonably be said to serve the general welfare and not violate any prohibition in the Constitution.
(e.g., education, roads, space program)
Impose and collect taxes to pay debts and spend for the general welfare w/ purpose to raise revenue
limits fed court jurisdiction to “cases” and “controversies
Standing: P must show “personal stake.” 1) P’s actual or imminent injury, 2) causation, 3) redressability. Your injury, not your mom or wife’s injury
- There is no “injury” to taxpayers (unless litigating tax bill or fed taxpayer challenging spending on 1A religious grounds)
- Organizational standing requires that
1) individual members have standing + 2) interest asserted is related to organization’s purpose + 3) individual member participation in the suit is not required (there is no individualized injury, remedy would be the same to all members, or injunction would solve everyone’s problems)
ii. Ripeness (future problem): P must show harm or imminent threat of harm. Proposed law or action not yet taken,»_space;> not real cases or controversies
iii. Mootness (past): A case is moot if the dispute has been resolved (i.e., there is no redressability), unless “capable of repetition
iv. Political/justiciability: Fed court will not take issues involving a matter for another branch of gov’t that the judicial process is inherently incapable of resolving and enforcing
vii. (No) advisory opinions: Advisory opinions lack an actual dispute b/w pts or any legally binding effect. Matter must be a real and substantive present controversy capable of specific relief
11th Amendment (sovereign immunity)
Private parties cannot sue your state or another state
BUT it’s allowed if
state consent (permissible on the statute)
government official (뉴욕시장)
municipalities (뉴욕주는 안되더라도 뉴욕시는 가능)
Takings clause
i. Gov’t cannot take private property for public use without just compensation
1. Public use means “public purpose.” Very broad. Burden on gov’t to show the action is rationally related to any legitimate purpose (such as health, welfare, safety, aesthetic reasons or economic benefit)
2. “Just compensation”: loss of FMV to owner, not gain to taker
Mere “regulation” does not require compensation
1. Examples of reg: zoning ordinance, ordering destruction of diseased trees, landmark ordinance
iii. Actual/physical taking: If gov’t takes one’s property by actual or physical appropriation
1. Includes permanent, physical invasion no matter how minor
2. Temporary taking: Not a per se taking. Balance the circumstances (e.g., planners’ good faith, reasonable expectations of owners, length of delay, actual economic impact) to determine whether fairness and justice require just compensation
iv. Regulatory taking: A regulation that decreases the value of property. Per Lucas, it is not a taking unless it deprives all economically beneficial use of land (e.g., disallowing land development).
Penn Central balancing test: 1) regulation’s economic impact on the claimant, 2) extent to which the regulation interferes with distinct investment-backed expectations (purpose of property?), 3) character of the government action (for welfare?)
Due process - substantive
Government regulate a right for all people
Two standards
(1) fundamental rights - strict scrutiny
(Vote, free speech, interstate travel, privacy rights - contraception, abortion, marriage, procreation, education, raise family),
right of parents to direct the care, upbringing, and education of their children.
right to refuse medical procedures, No right to suicide though
abortion - undue burden test, but now it varies by states, not a fundamental right, sexual orientation,
Obscene material: Right to possess in one’s home. No right to buy, sell, transport. No right to child porn
free assiocation
(2) non-fundamental rights - rational basis
Due process - procedural
protects persons against intentional deprivation of life, liberty or property w/o due process of law
Persons: All people including aliens and corporations, not just citizens
Liberty: Freedom of action (e.g., bodily restraint), constitutional freedom
Life: Threat to life
Usually relating to property rights
governmental jobs, (no property interest if “at will)
license (probation, trial period period (x))
public benefits
No levels of scrutiny
Need notice and hearing
Make sure the property rights has vested (threshold question)
Matthews balancing factors: (1) importance of interest to the person (more important → more process needed), (2) gov’t interest/burden in
efficiency (more burdensome to get protection → less process needed), (3) value of procedural safeguards (more likely that gov’t will make a mistake without procedural protection → more process needed)
Dormant commerce clause
행위의 주체가 state, state wants to regulate the business
State regulate interstate commerce cannot discriminate against the out of court business.
i. If Congress hasn’t enacted legislation, states may regulate local transactions affecting interstate commerce, only if the regulation does not discriminate against out-of-state actors to benefit local economic interests
- If a state law does discriminate on its face against out of court actors»_space; strict scrutiny applies, and it’s usually invalid
- If a state law is facially neutral and merely incidentally burdens interstate commerce: intermediate scrutiny applies. use balancing test: burden on interstate commerce should not be greater than the legitimate local interests (i.e., undue burden)
a. EXCEPTION: State may prefer local business as a market participant
State controls entire industry and no private player in that industry
Due process - substantive
Government regulate a right for all people
Two standards
(1) fundamental rights - strict scrutiny
(Vote, free speech, interstate travel, privacy rights - contraception, abortion, marriage, procreation, education, raise family), right to refuse medical procedures, No right to suicide though
abortion - undue burden test, but now it varies by states, not a fundamental right, sexual orientation,
Obscene material: Right to possess in one’s home. No right to buy, sell, transport. No right to child porn
free assiocation
(2) non-fundamental rights - rational basis
Content based regulation , content - neutral regulation
Content-based regulation: Strict scrutiny triggered when gov stops the message, and it’s presumptively invalid.
Content-neutral regulation / time, place, manner (TPM) regulation: When, where, how
Intermediate scrutiny and furthers the gov interest
public forums (open to speech-related activities, e.g., sidewalk, park)
designated public forums (not historically open to speech but designated for it, e.g., classroom for after-school civic activities) m
- narrowly tailored (no total bans) to serve an significant interest + leave open alternative channels of communication
non-public forums (not open to public, e.g., military base, school in session)
Just need to be reasonably related to a legitimate gov interest
A public employee has a First Amendment right to speak on a matter of public concern, and may not be discharged for that speech unless the employee’s actions interfere with the functions of the government
