con law review Flashcards
preemption
-comes from supremacy clause of constitution (“constitution, federal laws and treaties are the supreme law of the land”)
- if federal and state laws conflict (i.e. impossible to comply with both), the federal law prevails
- if state law impedes achievement of federal objective, it is invalid even if goal is to promote valid state goals
- if Congress demonstrated a clear intent to preempt state law by occupying an entire field, federal law preempts (example: comprehensive regulations or a federal agency oversees an area)
Court presumes not preempted
express preemption
Congress explicitly states federal law is exclusive in an area
dormant commerce clause
state law is invalid if it discriminates against interstate commerce or unduly burdens interstate commerce
applies to both corporation and natural persons
discriminatory law may be valid if it furthers a noneconomic, important state interest and there are no reasonable nondiscriminatory alternatives
if undue burden, may be valid if the burden is outweighed by a legitimate local interest. whether less restrictive alternatives are available is a factor.
privileges and immunities clause of article iv
No state may deprive other citizens of other states the privileges and immunities it gives its own citizens, unless the state has a substantial justification and there are no less restrictive alternatives
- applies only to natural persons and citizens- aliens and corporations are not considered citizens of a state
- only protects commercial activities important to earning a living and fundamental rights- civil liberties
*state must show important state interest and no less restrictive alternatives - important state interest means the out of state residents must cause a particular problem or be part of the problem and the legislation must be tailored to address it
note- recreational activities not protected
discriminatory laws may be challenged under
- dormant commerce clause- if burdens interstate commerce
- privileges and immunities Article IV: if it discriminates against out of staters in regard to civil liberties or important economic activities
- equal protection
does the market participant exception apply to Article IV privileges and immunities?
No, it only applies to Dormant Commerce Clause
privileges or immunities clause- fed gov
states may not deny citizens the privileges or immunities of national citizenship- ex: right to travel and right to vote for federal officials
Does not include rights listed bill of rights, for example right to have guns
exceptions to dormant commerce clause
market participant exception- the state can prefer its own citizens when it buys or sells products or hires labor
Law favors government actor performing traditionally govt function (ex- all waste must be processed by state government facility, or exempting in state city and state bonds from tax because issuing bonds to pay for public projects is a traditional govt function)
Congress authorizes the state law
if the law burdens interstate commerce but is not discriminatory, how can it be challenged?
dormant commerce clause only.
Article IV only applies if discriminates against out of staters.
full faith and credit
courts must give full faith and credit to judgments of courts in another state so long as the court that rendered the judgment had jurisdiction, judgment on the merits, judgment is final.
requirements for case alleging violation of individual liberties
state action
restrict fundamental right and/or suspect class
fail to meet level of scrutiny
examples of entanglement giving rise to state action
- private entity regulating interscholastic sports within a state
- state gives books to school racially discriminating
- court enforcing a racially restrictive covenant
- government leases premises to restaurant intentionally discriminating b/c state is getting a benefit (but NOT if it gives a liquor license to a private club that discriminates)
giving a business a license or giving a monopoly to or heavily regulating utilities does not amount to entanglement
private conduct may have to comply with Constitution if
- Congress passes law under 13th Amendment (which prohibits slavery)
- Congress passes law under 14th Amendment to enforce rights and guarantees provided by the 14th Amendment (prevent or remedy court-recognized violations)
- Congress passes law under commerce power (in activities that might have a substantial effect on interstate commerce)
to prohibit discrimination
due process- defining liberty and property
liberty: includes right to contract, engage in gainful employment. a deprivation occurs if the person loses significant freedom of action or is denied a freedom provided by the Constitution or statute
property: legitimate claim or entitlement to a benefit under state or federal law.
- must be a reasonable expectation of continued receipt of the benefit (ex: govt employee has contract for 1 year, has reas. expectation that he will have the job for 1 year)
- at will employment does not count
in intermediate scrutiny, who has the burden?
the government
in rational basis scrutiny, who has the burden?
challenger
in strict scrutiny, who has the burden?
the government
the least restrictive alternative analysis is conducted in what level of scrutiny?
strict scrutiny only
procedural due process- clause and required process test
No person shall be deprived of life liberty or property without due process of law
- importance of the interest to the individual
- value of specific procedural safeguards to the interest (is there a risk of error from current procedures or is there a benefit of changing them or adding more protections?)
- government interest in fiscal and administrative efficiency
always: notice, opportunity to be heard, unbiased decisionmaker
often fair procedure means a hearing BEFORE the liberty/property is taken, unless doing so is too burdensome to the govt. in many cases notice and chance to respond suffices (school children and prisoners have lower needs; public employees facing termination may not be feasibly able to have a pre-term hearing).
welfare benefits, driver licenses, or garnishing wages or property in a lawsuit by a creditor require an advance hearing before deprivation.
disability benefits and public employment require post-deprivation hearings.
due process- punitive damages
jury instructions and judicial review to ensure that award is reasonable. grossly excessive awards violate due process
due process- institutionalization
prior notice and prior evidentiary hearing (adults)
prior screening by neutral factfinder (child)
due process- seizure of assets
generally- notice and hearing
exigent circumstances- attachment, notice and hearing
Takings clause: government may take property for public use if it provides just compensation
government take private property?
if yes- for public use?
just compensation paid?
taking: confiscation, physical occupation, or leaving no economically viable use of land
public use: rationally related to legitimate public purpose (health, welfare, safety, economic, aesthetic reasons)
just compensation: measured by loss to owner
is a temporary denial of use of property a violation of the takings clause?
No, not usually. In determining whether govt must pay just compensation, courts look at:
good faith, reasonable expectation of owners, length of delay, impact on property value.
substantive due process v. equal protection
if limits liberty of all persons, due process. if it takes away from only some people, EP.
substantive due process level of scrutiny for fundamental rights
strict scrutiny
ex: right to privacy, right to travel, right to bear arms, right to vote
NOT education
rights under the privacy umbrella
- right to marry- interference requires strict scrutiny
- right to procreate- sterilizing someone against their will, must have strict scrutiny
- right to custody- compelling reason to deny, such as neglect. note: irrebuttable presumption that woman’s husband is the father of her child is ok
- right to use contraceptives (compelling interest of supporting children)
- right to abortion- no longer privacy right and states may regulate
- right to read obscene material in one’s home
- right to keep extended family together- zoning regulation can’t prevent family members from living together
- right to refuse medical treatment (but no right to physician assisted death)
- right to engage in private, consensual sexual activity (includes homosexual)
- parental rights- includes custody and management/care of kid
right to travel subs. due process
laws preventing people from moving into a state must meet strict scrutiny.
durational residency requirements before can receive benefit- strict scrutiny
restrictions on foreign travel- rational basis
right to vote subs. due process
- residency requirements- meet strict scrutiny b/c compelling interest in ensuring only bona fide residents vote (30 days valid, 1 year invalid)
- requiring property ownership usually invalid
- poll tax invalid
NONRESIDENTS- can be forbidden voting rights if rational basis
equal protection
Fourteenth Amendment for states
Fifth Amendment- Due Process Clause for feds
Where a law treats a person or class of persons differently from others, it is an equal protection question.
gender discrimination
quasi suspect classification
government must show exceedingly persuasive justification
proving discriminatory classification
- law discriminatory on its face
- law facially neutral, but applied in a discriminatory way with intent (ex: prices differ or eligibility for exemption differ based on race)
- discriminatory motive for a facially neutral and neutrally applied law (difficult- must show evidence of a history of discrimination)
racial set asides
strict scrutiny. if past discrimination, satisfies compelling state interest.
must be persistent and readily identifiable.
diversity as justification for moving students of different races
strict scrutiny, and only compelling interest for universities
important interest for gender classification
remedying past discrimination and inequality of opportunity
alienage classifications (citizenship) and state law
must meet strict scrutiny
BUT if: participation in self-government and offices involving important public policy…must meet rational basis
ex of self-government: voting, jury, public office
important public policy: public school teacher- primary and secondary, probation officer, police officer
Congressional discrimination against aliens
plenary power to regulate immigration, so may deny benefits. as long as not arbitrary
undocumented aliens- state discrimination
not suspect classification. subject to rational basis as long as not totally arbitrary
Law denying education to alien children was not rationally related to legit gov interest
state discrimination against aliens (not undocumented)
strict scrutiny (re: welfare, jobs, licenses)
legitimacy (illegitimate children do not receive a benefit, for example)
quasi suspect justification
intermediate scrutiny- substantially related to important government interest (inheritance restriction and benefit restrictions failed)
sexual orientation
rational basis
government speech
not subject to First Amendment. government can promote its own views.
generally can fund private messages if on viewpoint neutral basis. however, can fund artists based on content.
content regulation
must meet strict scrutiny.
types of content reg:
subject matter- restricted to certain topics
viewpoint- restricted to certain points of view
note: can place burdens on obscenity and defamation due to its content
content neutral law
need only meet intermediate scrutiny.
must advance important interests unrelated to suppression of speech
must not burden substantially more speech than necessary
overbroad
regulation prohibits a substantial amount of protected speech in relation to its plainly legitimate sweep (no entering private property to promote any cause without a license, for example)
expressive conduct
conduct intended to communicate, or that could be reasonably perceived as communicating a message
government can regulate conduct communicating speech if
1) govt has an important interest unrelated to suppressing speech
2) regulation’s incidental burden on speech no greater than necessary
campaign contribution limit is constitutional
spending limit unconstitutional
unprotected speech
- obscenity
- fighting words- would provoke retaliation in a reasonable person
- true threats- words likely to place a specific person or group in fear of imminent harm
- incitement of illegal activity- directed to producing or inciting illegal activity and likely to do so.
- false advertising
- defamation
obscenity
describes or depicts conduct that, taken as a whole:
- appeals to the Prurient interest, under a community standard
- is patently Offensive, under a community standard
- lacks erious historical, artistic, political, or scientific Value by national standards
(POV)
private possession may not be punished
child pornography
state may prohibit altogether even if not obscene, so long as minors actually used in the film
private possession may be punished
profane and indecent speech
generally protected
except: broadcast media may ban because pervasive, public schools may ban
commercial speech
advertising for illegal activity, false or misleading ads are not protected and may be banned.
other speech regulations (heavy int scrutiny):
- must serve substantial govt interest
- directly advance the interest
- narrowly tailored to serve the interest (but need not be least restrictive alternative- just reas. fit b/w goal and means chosen to achieve)
defamation- public concern
P must prove falsity; public figure P must prove actual malice, private figure negligence
if private figure only proves negligence and can’t prove actual malice, must prove their actual damages and they don’t get punitive damages.
limited and nonpublic forum test
viewpoint neutral regulation
bears a reasonable relationship to a legitimate government purpose
i.e. rational basis
private property first amendment
there is no first amendment right to use private property for speech purposes
