con law (C&C/DP/EP) Flashcards
strict necessity
how is a case “justiciable” and thus can be heard by SCOTUS
depends on whether there is a “case or controversy”
strict necessity
what type of opinions can the court not issue and why
advisory opinions –there must be a present risk of harm or threat of specific future harm
strict necessity
what are the 3 primary inquiries for the case or controversy requirement
- ripeness
- mootness
- standing
standing
how does an organization have standing
- injury in fact to the members that gives them the right to sue on their own behalf
- injury related to organization’s purpose
- individual member participation is not required
standing
how does an individual have standing to bring a claim
- injury in fact
- act in issue was the cause of the injury
- adjudication in favor of the challenging party would satisfy their grievance (redressability)
standing
how can a person with standing assert third party rights
- if the third party would find it difficult to assert her own rights; or
- the injury suffered by the plaintiff adversely affects her relationship with the third party (e.g., doctor can assert a patient’s rights in challenging an abortion restriction)
relative spheres of federal and state power
what does the supremacy clause provide
federal law is supreme and state laws that are preempted by federal law are invalid
relative sphres of federal and state power
how can state laws be preempted
- expressly (federal law expressly preempts state law)
- impliedly (state law conflicts with federal law, prevents the achievement of federal objectives, or because Congress’s laws are so pervasive they preempt the entire field)
relative sphres of federal and state power
what do courts start with when analyzing whether a state law is preempted by federal law
in cases involving a field traditionally within the power of states, courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress
relative sphres of federal and state power
when are state laws not deemed invalid under the Supremacy Clause
state laws that regulate consistently with federal policy and in a manner that reinforces said policy
procedural DP
what does procedural due process prohibit
prohibits a person from being deprived by the government of life, liberty, or property without due process of law
procedural DP
what 3 questions must be asked to answer a procedural due process question
- is there a protected liberty or interest involved?
- did the individual receive adequate notice?
- was the individual given a meaningful opportunity to be heard, tailored to the deprivation in question?
procedural DP
how is the concept of property understood
it is flexible; an individual must prove a legitimate “claim” or “entitlement” to a benefit under federal or state law
procedural DP
how is the concept of liberty understood
more than just freedom from bodily restraints. deprivation occurs if a person (1) loses significant freedom of action or (2) denied freedom provided by Constitution or statute
procedural DP
what does the court assess to determine whether the process was appropriate
- the nature of deprivation (importance of interest)
- the government’s interest involved (fiscal and administration policy)
- the risk of an erroneous deprivation (value of specific procedural safeguards)
procedural DP
what is usually required for process
- fair procedures and an unbiased decisionmaker
- notice and chance to respond before termination of the interest involved
procedural DP
what determines whether someone has a property interest in state employment
state law
procedural DP
when does DP protection apply for a property interest in continued employment
if a policy says an employee can only be fired under certain circumstances, then DP protections apply
substantive DP
what does substantive DP require
laws must be (1) reasonable and (2) not arbitrary
determination of whether a law is reasonable depends on the interests involved
substantive DP
when does strict scrutiny apply
where a law limits a fundamental right, and the law will only be upheld if the government can prove that the action is necessary to promote a compelling or overriding interest
substantive DP
when does rational basis apply
all other cases; action will be upheld unless the challenger can show that the action is not rationalyl related to any legitimate government interest
substantive DP
what does the court employ when assessing whether a regulation passes the rational basis test
a deferential review –presumption of constitutionality
what is the vagueness doctrine
law can be held unconstitutional if it fails to prove reasonable notice of what is prohibited and minimal guidelines to discourage arbitrary and discriminatory enforcement
EP
what does EP prohibit
prohibits states from unreasonably discriminating against people in similar situations
EP
what determines what test to apply for EP
dependent on the basis of discrimination and the nature of interests involved
EP
when does strict scrutiny apply
when the action involves a fundamental right or suspect classification (e.g., race) – government must show that the action is narrowly tailored to achieve a compelling state interest
EP
when does intermediate scrutiny apply
when an action involves quasi-suspect classification (e.g., gender or legitimacy)
EP
when does rational basis apply
all other cases – classifications must have some rational relationship to a legitimate government objective
