Con Law Definitions Flashcards
Standing
Art 3 requires that a person must show a direct and immediate personal injury directly traced to the challenged action and likely to be redressed by the judicial relief.
Association Standing: 3 Elements
Associations have standing to assert the rights of their members where:
1) The members themselves would have standing;
2) The interest asserted is relevant to the association’s purpose and;
3) The members themselves are not indispensable parties.
Do Taxpayers have standing?
Tax payers generally do not have standing to challenge federal tax unless it involves a governmental spending power which results in an infringement of a specifically guaranteed Constitutional right.
Third Party Standing
Exists where there is a close nexus between the claimant and third party, a high risk of compromising substantial rights, or not reasonable for third party to assert own rights.
Ripeness
P attempting to bring suit too early. Argue whether it is fair to make P wait until actual injury before bringing suit.
Mootness
Will adjudication have any affect on P’s rights? Exception: Ongoing problem (i.e. pregnancy)
Federal Question: 3 types
Usually involves:
- Separation of powers
- National policy
- International affairs
What does 11th Amendment cover?
Bars a citizen of one state from suing another state without its consent in federal court.
Definition of Commerce Clause
Article 1, Section 8:
Gives Congress the power to regulate commerce with the foreign nations and among the several states and with the Indian Tribes. This includes the ability to regulate the channels and instrumentalities of interstate commerce and persons and things involved in interstate commerce..
Taxing Power
Must be revenue raising as opposed to regulatory in nature. What is the dominant intent of the tax?
Bill of Attainder
A legislative act directed against a class of designated persons, pronouncing guilt without a trial or conviction.
Ex Post Facto Law
A criminal law passed after the occurrence of a fact or commission of an act, which retroactively changes the legal consequences or relations of such fact or deed. States are forbidden from enacting Ex Post Facto laws.
What does 10th Amendment cover?
States have power to regulate in ways that have an affect on interstate commerce as long as it does not infringe upon Congressional Commerce Power.
Doctrine of Alternative Means
If a state has a strong interest which can be accomplished by alternative means with less burden on commerce, the law will be held invalid.
Preemption Doctrine
Article VI states that the Constitution and the laws made in pursuance of it are to be the supreme law of the land and superior to any state law or constitutional provision in conflict with them.
Express preemption
A federal rule or provision that expressly removes the power from the state to deal with a particular subject.
Implied preemption
No express preemption language but the courts must imply preemption from the intentions of congress or the executive based on the nature and characteristics of the federal regulation.
Three prong test if a state is taxing interstate commerce
- Tax must be nondiscriminatory and revenue raising as opposed to burdening free flow of commerce.
- There must be a substantial relationship to the benefits and protections afforded by the state.
- Tax must be fairly apportioned.
Privilege AND Immunities Clause
Art 4, Sec 2 states that Citizens of each state shall be entitled to all P/I of citizens of several states. Does not apply to Corporations.
Privileges OR Immunities Clause (14th Amendment)
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
Article 1, Section 1
All legislative power shall be vested in a Congress
Article 2, Section 1
Confers on the President entire executive power
Article 3, Section 1
Provides that federal judicial power shall be vested in one Supreme Court
Due Process Clause
The 5th/14th Amendments provide that the federal government shall not deprive any person of life, liberty or property without due process of law.
Must differentiate between substantive and procedural due process.
State or Federal statute is judged by reasonableness using this 3 prong test.
- Purpose of statute
- Are means rationally related to purpose being sought?
- Legitimate ends?
Statute affecting Fundamental Individual Rights
Regulation will be found to be invalid unless found to be necessary to a compelling government interest. Look for least alternative means.
What does Liberty include?
Includes more than freedom from physical restraint including right to contract, engage in gainful employment, to be free from defamation by the government.
Eminent Domain rule
5th Amendment provides Nor shall private property be taken for public use without just compensation.
Penn Central considerations regarding a taking
The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations.
Contract Clause
Constitution forbids states from making laws impairing obligations of contracts. Must balance state interests against private interests.
Equal Protection IRAC
- Government Regulation (State statute)
- Arbitrary Classification
- Individuals similarly situated must be treated the same
First Amendment IRAC
- Freedom of Speech not absolute
- First Amendment applicable to states via 14th Amendment.
- Unprotected Speech
- Freedom not to speak
- Freedom of Association
2 tests to determine if a Content-Neutral Speech regulation will be upheld
- Does it further an important or substantial governmental interest unrelated to the suppression of speech?
- Does the regulation burden more speech that substantially necessary?
4 part test to determine if a law regulating Symbolic Conduct is justified
- Is the regulation within the constitutional power of the government?
- Does it further an important or substantial government interest?
- Is the governmental interest unrelated to the suppression of free speech?
- Is the incidental restriction on alleged First Amendment freedoms no greater than is essential to the furtherance of that interest?
What is the issue regarding Content-Based Regulation?
Issue is whether the regulation is seeking to forbid communication of specific ideas. The government must show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.
What is the issue regarding Criminal advocacy (speech)?
Issue is whether speech advocates imminent illegal action including a breach of the peace and is likely to cause illegal activity.
Definition of Fighting Words
Words that have very little social value and, by their utterance, inflict injury or tend to incite an immediate breach of the peace by the person to whom individually they are addressed.
What is the issue regarding Hostile Audiences?
Do the speaker’s activities produce imminent threat of uncontrolled violence by listeners? Must balance public safety v. suppression of content.
Is commercial speech Commercial Speech protected?
Protected as long as not false/illegal.
3 prong test to determine if Obscenity is unprotected
- Is the dominant theme shameful/morbid to an average member of society?
- Is the material patently offensive by applying contemporary community standards?
- Does it lack serious literary, artistic, political or scientific value.
Items 1 and 2 are based on community standard and 3 is based on national standard.
Time/Place/Manner restrictions (Definition and 4 part test)
State has a legitimate interest to regulate time/place/manner as long as standards are specifically defined (health, safety, morals) and are unrelated to the content of expression.
- Is the regulation content neutral?
- Is the regulation narrowly tailored?
- Does the regulation serve a significant government interest?
- Are there ample alternative forums or channels of communication for protected expression?
What is the issue with Overbreadth (Speech)?
Does statute regulate both protected and unprotected speech?
What is the issue with Vagueness?
Does statute give notice to the reasonable person of common intelligence of what is specifically prohibited? If not, it’s void on its face.
Definition of Establishment Clause
Government will neither aid nor formally establish religion as Constitution requires a wall of separation between church/state.
Three part test for determining if regulation violates Establishment Clause
PEE
- Purpose - Secular?
- Effect - Primary neither advances nor inhibits religion
- Excessive Entanglement
Definition of Free Exercise Clause
Government shall make no law which prohibits free exercise of religion.
