Con Law Rule Statements Flashcards
11th Amendment Sovereign Immunity
You cannot sue a state for money damages, absent a specific exception.
Exceptions to 11th A Sovereign Immunity
Consent
Injunctive relief
Damages to be paid by an individual
Prospective Damages
Ripeness
Plaintiff must have experienced a real injury (or be imminently facing one)
Mootness
Cases will not be heard if further legal proceedings would have no effect.
Individual Standing Requirements
Injury
Causation
Redressability
Organizational Standing
Member suffers an injury
Members would have had standing on their own.
Interests at stake are germane to the organizations purpose
Taxpayer Standing
Typically none, unless they are litigating their tax bill
3rd Party Standing
3rd party unable to assert their own rights
Special relationship
injury adversely affects plaintiffs relationship with third party.
Primary Congressional Powers
Commerce, Taxing Power, Spending Power, War & Defense, Aliens & Naturalization, Necessary & Proper, 13th amendment, 14th amendment, and 15th amendment
Congressional Commerce Power
Can create laws that regulate interstate commerce (channels and instrumentalities), that have a substantial economic effect on interstate commerce, or non-economic activities that have a substantial effect on econ activities.
Congressional Taxing Power
Congress has the power to pass and utilize taxes if they have a reasonable relationship to revenue production
Spending Power
Congress has the power to spend for the general welfare
Congressional Power: War & Defense
COngress has power to declare war, raise and support armies
Aliens and Naturalizaton
Congress has plenary power over non-citizens and naturalization.
Necessary and Proper Clause
Congress has the power to enact legislation that is necessary and proper to further their authority.
13th Amendment
Congressional power to adopt legislation rationally related to the elimination of racial discrimination
14th amendment
Permits congress power to pass legislation to enforce equal protections and due process rights under the 14th.
15th Amendment
Congress cannot treat states differently or impinge on state sovereignty.
Executive Appointment Power
Only the president (or his appointees) have the power to hire exec branch employees
Removal power Exec branch
only the president has the power to hire
Veto Power
Article I section 7 gives president the power to veto legislation presented before him.
Chief Executive - Maximum Power
Express or implied authorization of congress to act.
Chief Executive - Mid Power
Where congress has not yet spoken on an issue
Chief Executive Power - Lowest
when congress has spoke to the contrary on an issue.
Executive Branch - War and Foreign Relations
Commander-in-chief cannot declare war.
Exec Branch - Treaty Power
Exclusive power to negotiate treaties
Exec Power - Executive Agreements W/Foreign Nations
President may enter executive agreements with foreign nations without senate approval
Executive Privilege
Privilege to not reveal confidential communications with advisers
Executive Immunity
absolute immunity from liability for official acts
Types of Preemption
Express, Implied, Field
10th Amendment Limits on Fed Tax/Regulation of States
Partial immunity from federal taxation that unduly interferes with states “sovereign functions”
Full Faith And Credit
Requires that out-of-state judgments be given in-state effect.
Dormant Commerce Clause
States have the power to regulate areas of inter-state commerce so long as it does not: (1) Discriminate against OOS commerce;
(2) Unduly Burden inter-state commerce; or
(3) Regulate extraterritorial activity.
Dormant Commerce Clause - Exceptions to Discrimination
(1) Necessary to an important state interest
(2) Market Participant
(3) traditional government function
State Taxation on inter-state Commerce
State may pass taxes so long as congress has not already done so, and it does not discriminate against/unduly burden OOS interests.
Exception to State Taxation on OOS Commerce
(1) Substantial Nexus b/w state and taxed activity;
(2) Fair apportionment
(3) non-discriminatory; and
(4) Fair relationship to services provided.
Individual rights - State action Req.
Must be either a traditional goverment function or significant state involvement
Procedural Due Process
Requirement for fair proceedings before depriving a persons life, liberty, or property.
Privileges and Immunities clause
Citizens of each state shall be entitled to the privileges and immunities of citizens in the several states.
PDP Protected Interest - Liberty
significant govermental restraint on one’s physical freedom, exercise of fundamental rights, or freedom of choice/action
PDP Protected Interest - Property
There must be a “legitimate claim of entitlement”: (1) Public employment only for cause; (2) Public Education.
P&I - Comity
Prohibits one state from discriminating against the citizens of another state.
P&I Rights protected
Protects from discriminaton with respect to fundamental rights and essential activities
P&I - Exceptions
Substantial Justification, IE: the law bears a substantial relationship to a states legitimate objective.
Substantive Due Process
Guarantees protections of fundamental rights
SDP - Standard of Review
Fundamental Rights = Strict Scutiny
Non-Fundamental= Rational Basis
Strict Scrutiny
The law must be the least restrictive means to achieve a compelling governmental interest.
Rational Basis Review
Law must be rationally related to a legitimate state interest.
SDP - Fundamental Rights
Right to travel, Right to Vote, and Right to Privacy.
SDP - Non-fundamental Rights
those related to social or economic interests (IE: business, taxation, lifestyle, zoning, etc.)
Equal Protection
No state shall deny to any person the equal protection of the laws. IE: prevents discrimination against persons of a particular class
EP - Standards of Scrutiny
Suspect Classification - Strict Scrutiny
Gender/Legitimacy - Intermediate Scrutiny
other non-listed/disparate impact - Rational basis Review
intermediate Scrutiny
the law must be substantially related to an important government interest
Proving Discrimination under EP
Facial discrimination, or disparate impact
1st Amendment - Freedom of Religion
Protects the rights of individuals to religious beliefs and conduct
Establishment Clause
Prohibits Government Endorsement of religion in a context that may prove coercive to an individuals conscience.
Establishment Clause - Sect Preference
Government may not show preference to one sect or religion over another.
Conduct Excepted to sect preference
(1) Reading religious text in public schools for literary purposes
(2) Display of religious iconography for secular reasons
(3) Voluntary School Prayer
Free Press
The media receives the same freedoms regarding speech as individuals
Freedom of Association
People cannot be punished or disadvantaged because of political associations.
Freedom of Association - Public Employment
Public employees can be required to take loyalty oaths, but are often overbroad.
Facial Challenges to Free Speech violations
Overbroad
Vagueness
Unfettered Discretion
Prior Restraint
Free Speech - Unfettered Discretion
laws permitting a gov official to restrict free speech must provide definite standards to avoid unfettered discretion.
Free Speech - Prior Restraint
regulation of speech that occurs in advance of expression must identify: 1) particular harm to be avoided; and 2) certain procedural safeguards.
Content-Based Speech Regulations
Receive Strict Scrutiny unless they include:
(1) FIghting words
(2) Incitement to violence
(3) Obscenity
(4) Defamatory speech
(5) Commercial speech
(6) Child Porn
Fighting Words
Words that by their very nature is likely to incite an immediate breach of peace.
Incitement to violence
SPeech that is (1) directed to incite imminent lawless action; or (2) likely to incite or produce such an action.
Obscenity
Speech that (1) Appeals to the “prurient interests”; (2) Depects sexual conduct in a patently offensive way; and (3) lacks serious literary, artistic, political, or scientific value.
Commercial Speech
Usually struck down unless it is misleading or untruthful.
Commercial Speech Test
Regulation must directly advance a substantial government interest and be narrowly tailored to that interest.
Content Neutral Speech Regulations
1) Public Forums
2) Designated public forum
3) Limited Public Forum
4) non-public forum
Content Neutral Regulations - Scrutiny
Speech regulations in traditional public forums, and designated public forums are subject to a strict scrutiny analysis. non-public forums have a lower standard.
Conduct restrictions on symbolic speech
Upheld if the law: (1) furthers an important interest; (2) interest is unrelated to the suppression of expression, and (3) is no greater than needed.
Takings Clause
Private property may not be taken for public use without just compensation.
When has a “taking” occured?
A taking has occurred when a government’s action results in a permanent physical occupation of private property by the government or a third party.
Bill of Attainder
A legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial.
Contracts Clause
Prohibts state legislation from retroactively impairing the obligation of contracts.
