Con Law MC Flashcards
A taxpayer has standing when
Generally no standing.
However, a taxpayer does have standing to (1) litigate whether, or how much, she owes on her tax bill; or (2) challenge specific legislatively authorized expenditure under tax/spend power that violate 1A Establishment Clause.
This exception doesn’t apply to (no standing):
- property transfer by congress to religious org under Property Power
- expenditures to religious org made by President from general discretionary fund
- tax credit for student tuition orgs that provide scholarships for private schools (including religious)
The taxing and spending clause has been broadly interpreted to give Congress the power to
spend for the general welfare—i.e., for any public purpose—not just to carry out its other enumerated powers.
Ex post facto clauses apply to _______ and prohibit….
fed (art 1, sec 9) + state gov’t (art 1, sec 10)
Prohibit enactment of retroactive criminal laws that:
- criminalize previously legal conduct (at time act committed)
- impose greater punishment than previously prescribed
- eliminate previously available defenses
- decrease prosecution’s previous burden of proof
**this clause generally does not apply to civil laws because their purpose is nonpunitive. However, a civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.
factors to determine whether retroactive civil law violates ex post facto clauses:
cts weigh whether the law:
- imposes an affirmative disability or restraint (e.g., imprisonment)
- has historically been regarded as punishment (e.g., public shaming)
- promotes the traditional aims of punishment (e.g., retribution)
- is rationally related to its nonpunitive purpose (weighed most heavily!)
Heightened equal protection review is appropriate when a law _______ against _______ .
intentionally discriminates—on its face, in its application, or in its motive—
a quasi-suspect or suspect class.
T/F - laws that distinguish on citizenship trigger heightened scrutiny
(1) False for Fed (5A). federal laws based on U.S. citizenship are presumptively constitutional (national origin discrimination does!); To rebut this presumption challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.
(2) True for State (14A EPC). Citizenship is a suspect class so presumptively unconstitutional unless survives strict scrutiny (necessary - ie least restrictive means - to achieve a compelling state interest.
How rebut presumption that fed laws based on US citizenship are presumptively constitutional:
To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, a challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.
The equal protection component of the Fifth Amendment requires federal laws based on U.S. citizenship to satisfy ___ scrutiny.
rational basis
Since a public employee who can only be terminated for cause has a property interest in such employment—and termination is a serious deprivation of that interest—due process requires that the employee receive:
notice of his/her alleged misconduct
a pre-termination opportunity to respond to that allegation
and
a post-termination evidentiary hearing to determine if the termination was warranted.
public employee suspended without pay - DP requirements?
Notice of alleged misconduct
Prompt post-suspension evidentiary hearing
Tenth Amendment, prohibits Congress from commandeering who for what purpose?
state or local governments by requiring them to enforce federal laws (or enact state or local laws).
The First Amendment freedom of the press
generally prohibits the government from restricting the right to publish lawfully obtained, truthful information about matters of public significance. A government action that abridges this right is presumptively unconstitutional and must survive strict scrutiny.
also - media shielded from crim or civil liability for publishing lawfully obtained private facts and other truthful info involving matters of public concern (ie newsworthy - eg NFL player lewd public behavior)
can a ct issue gag order to prohibit press from reporting about court proceedings to protect identity of witnesses or to not thwart ongoing investigations?
no. the First Amendment generally guarantees the press and the public the right to attend every stage of a criminal trial.
However, this right is not absolute, and a court can order that trial proceedings be closed if the court’s findings on the record demonstrate that the closure withstands strict scrutiny.
regulatory taking occurs when the government:
deprives an owner of all economically beneficial use of the property but the owner retains possession.
or
substantially restricts the use of private property, based on the totality of the circumstances including:
- the character or nature of the government action—i.e., the degree to which the regulation benefits the public versus the degree to which it violates the owner’s property rights (like selling property to third parties)
- the economic impact on the property—e.g., the change in the property’s fair market value caused by the regulation—and
- the interference with the owner’s reasonable investment-backed expectations regarding the use of the property
Civil laws that retroactively impair the right to raise the statute of limitations as a defense must undergo
rational basis scrutiny
Fundamental rights list and what level of scrutiny?
(First VIP)
- First Amendment freedoms
- Voting
- Interstate travel
- Privacy
Marriage / family (eg related persons’ right to reside together in single household)
Parental rights
Sexual acts
Contraceptives
(also MC says right to appeal is fundamental; and that prohibiting fundamental right based on wealth gets strict scrutiny)
Strict scrutiny
Substantive due process violation happens when there is _________. How analyze?
Deprivation of life, liberty, or property impacts ordinary right or fundamental right
Ordinary - challenger must show RBT (economic, employment, education, social welfare); fundamental right (1A, Voting, /interstate travel, Privacy) gov’t must show SS
Stogner v. California. In that case, the U.S. Supreme Court held that a change in the relevant statute of limitations that resulted in the revival of a prosecution (criminal punishment) for sexual abuse for which the statute of limitations had expired [did / did not] constitute an invalid ex post facto law.
did constitute invalid ex post factor law
Enumerated congressional powers
- Taxing & spending
- Interstate & foreign commerce
- War, armed forces, militia
- Coin & borrow money
- Immigration & naturalization
- Copyright & patent laws
- Federal courts
- District of Columbia
- Bankruptcy
- Rules concerning captures
militia clauses. ___ has power to _____
Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.
Freedom of association. Infringing upon right to associate barred unless:
necessary to achieve compelling interest
The government can interfere with the First Amendment freedom of association by punishing (i.e., deny public employment to or criminally prosecute) persons who
(1) are active members of a subversive organization, (2) know of the organization’s illegal objectives, and (3) specifically intend to further those objectives.
Requiring loyalty oath for public employment permitted unless:
overbroad – infringes on constitutionally protected behavior or
vague – reasonable person would not understand oath
Freedom of association: Forced inclusion. Interfering with organization’s discriminatory policy barred unless:
no significant burden on organization’s mission and
necessary to achieve compelling interest
freedom of association…
Imposing restriction on electoral process ok?
ordinary – permitted if rationally related to legitimate interest
severe – barred unless necessary to achieve compelling interest
Nonjusticiable political questions
Recognition of foreign governments
Reception of ambassadors
Nature of wars/hostilities
Partisan gerrymandering
Guarantee of republican form of government
Recognition of Native American tribes
House/Senate rules for impeachment
Ratification process for constitutional amendments
The political-question doctrine prevents federal courts from hearing a case if
it presents issues that (1) are reserved for the executive or legislative branch or (2) lack judicially manageable standards for resolution.
ministerial exception
protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles. This exception applies to any employee whose primary function is to advance the organization’s religious mission (e.g., pastor, parochial school teacher).
laws of general applicability definition
Religious organizations typically must comply with laws of general applicability—i.e., laws that apply equally to all regardless of their religion.
First Amendment prohibits the government from engaging in ________ against speech. Censorship on that basis will be upheld only if it can survive ______.
content-based discrimination
- If traditional public forum or designated public forum, content based regs prohibited
- if nonpublic forum (which means other public property not in those two above), content based regs permitted if viewpoint-neutral
strict scrutiny for traditional and designated (for designated purpose)
RBT for nonpublic or designated (if used for unintended purpose)
Traditional public forums
Public property historically used for, or associated with, public speech (eg, streets, sidewalks, parks)
Content-based regulations prohibited
Designated (limited) public forums
Public property opened for specific types of expression (eg, school classrooms, civic auditoriums)
Content-based regulations prohibited
Nonpublic forums
Public property that’s not trad public or designated/limited public forum
Content-based regulations permitted if viewpoint-neutral
No 11A immunity
Suit brought by United States or other state
Suit against local government (eg, counties, municipalities)
Bankruptcy proceedings
Eminent domain proceedings
Suits permitted by Congress pursuant to its powers over war & armed forces
11A Immunity from
Suit brought by private party or foreign government
Suit against state official violating state law
Exceptions:
- State consents to suit
- Immunity removed by 13th, 14th, or 15th Amendment
- State official sued for injunctive or declaratory relief for alleged constitutional violation
- Damages to be paid by state officer personally (not state treasury)
- State official sued for prospective (not retroactive) damages to be paid by state treasury
Younger abstention
applies when declaratory or injunctive relief is sought in federal court. This doctrine requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:
involves an important state interest and
provides an adequate opportunity to litigate the federal issue(s).
**Only certain civil proceedings qualify for Younger abstention, including enforcement proceedings akin to a prosecution (e.g., termination of parental rights) and proceedings that further a state court’s ability to perform judicial functions (e.g., contempt).
Exceptions to Younger abstention
Bad faith prosecution
Patently unconstitutional state law (facial challenge)
State consents
or
Immediate and irreparable harm
State laws that discriminate against individuals based on wealth are generally subject to
rational basis scrutiny. But strict scrutiny will be used when a state law prohibits the exercise of a fundamental right based on an individual’s wealth.
The Fourteenth Amendment due process clause requires
that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property.
judge must recuse him/herself from a case when____________. if he doesn’t, it violates __________.
(1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists. A failure to do so violates due process.
t since SCOTUS may only review such judgments if they are based on federal law, it cannot review a judgment based on adequate and independent state grounds. This occurs when:
state law fully resolves the matter, so the outcome of the case is not affected by federal law (adequate) and
the state court did not rely on federal law to reach its decision (independent).
A federal court may refuse to hear a case on prudential-standing grounds when the plaintiff seeks to
litigate the claims of third parties or claims shared by all or a large class of citizens (i.e., generalized grievances)
Abstention types
Pullman: Resolution of unsettled state law in state court would moot federal constitutional issue
Burford: Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy & provides timely & adequate judicial review
Colorado River: Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources
Younger: Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims
enclave clause
gives Congress plenary (i.e., exclusive) legislative power over the District of Columbia.
The taxing and spending clause gives Congress the power to
tax and spend for the general welfare (i.e. any public purpose).
Can impose
- Direct taxes (on person or property) - must be apportioned evenly among states and Reasonably related to revenue raising
- Indirect taxes (sales, excise, income) - uniformly applied in every state and Reasonably related to revenue raising
CANNOT impose export taxes (goods or services leaving US; services and activities closely related to export) - UNCONST
Spnding:
- funds must be spent for general welfare
- Conditions must (1) clear; (2) reasonably related to fed interest; (3) not req unconstitutional activity; and (4) not unduly coercive
export clause
prohibits federal taxation of:
exported goods, which are goods leaving the U.S. and shipped to foreign countries
and
services and activities closely related to the export process.
Article IV full faith and credit clause
states have a duty to respect the public acts, records, and judicial proceedings of other states. This requires state courts to recognize and enforce decisions rendered by a court in another state when:
that court had personal jurisdiction and subject-matter jurisdiction
the case was decided on its merits and
a final judgment was entered.
Permissible race-based affirmative action
Richmond v. J.A. Croson Co.: Minority set-asides for government employment/contracts
- Can only survive strict scrutiny if gov proves
(1) it has a compelling interest in remedying its own history of discrimination against the favored group and
(2) the discriminatory program is necessary because race-neutral methods are unavailable or insufficient to further that interest.
Freeman v. Pitts
- Race-based student assignments in public elementary/high schools
- Gov’t interest: Remedying past intentional racial segregation in public schools
Constitutional amendments (excluding the Thirteenth Amendment) only apply to government actors. But a private actor can be treated as a government actor and be subject to the Constitution under the state-action doctrine. This doctrine applies when:
a private actor performs a traditional and exclusive government function (eg running elections)
or
the government is significantly involved in the private actor’s activities.
Significant government involvement under state action doctrine
Government & private actor have mutually beneficial relationship (eg, joint activity or venture)
Government creates nexus by affirmatively facilitating or authorizing private action (eg, police officer acting under color of law)
Government is pervasively intertwined in private entity’s management or control
________ requires that _____ not be the predominant factor used to draw boundaries for state or fed legislative districts. If it is, subject to _______
Fourteenth Amendment equal protection clause requires that race not be the predominant factor used to draw boundary lines for state or federal legislative districts.
If it is, then the boundary lines will be subject to strict scrutiny review and likely deemed unconstitutional.
In civil forfeiture actions, the government
deprives an individual of his/her property interest by seizing property allegedly used in criminal activity.
