Con Law Rules Flashcards
Ripeness
Harm must actually be threatened
P can establish ripeness before law/policy is enforced by showing:
1. Issues are fit for a judicial decision AND
2. P would suffer substantial hardship in the absence of review
*If legislation has NOT been enacted = not ripe for review
*If legislation has been enacted but not enforced –> determine whether it could be enforced!
1. If on books for years, but never enforced = will be dismissed for lack of ripeness
- Where there’s no reason to doubt it could be enforced –> usually will be found ripe
Mootness
Must be a real, live, ongoing controversy at all stages of litigation
- If issue has been resolved, court will NOT hear
Exceptions:
1. Capable of repetition yet evading review
2. Defendant voluntarily stops conduct complained of
3. Class actions (rep can continue even if action has been resolved)
Standing
P must have a concrete stake in the outcome at all stages of litigation
- Injury in fact: specific injury affects P in personal way and injury actually exists
- Causation: causal connection between injury and conduct complained of
- Redressability: decision in litigant’s favor must be capable of eliminating their harm
Typically, Plaintiff cannot raise 3rd party standing unless it falls within one of these exceptions:
- 3rd party finds difficult to assert her own rights
- Where government action affects relationship between plaintiff and third party
*Third party plaintiff must have actually suffered harm
Abstention
If action already going on in state court on unsettled question of state law, federal court will abstain so the state can settle the issues
Adequate and Independent State Grounds
Federal court will not hear appeal from state court if adequate and independent nonfederal grounds support state decision
Political Question
When questions are fundamentally political, even though they might have ripeness, standing, and mootness the court will not hear
Sovereign Immunity under 11th Amendment
Private citizens cannot sue states
Exceptions:
- express waiver (tort claims)
- implicit consent/structural waiver
- local governments can sue states
- states can sue states
- federal govt can sue states
- private citizen can sue state officer personally
- congress can remove states immunity for actions under the 14th amendment
Necessary and Proper Clause
Congress has power to make law necessary and proper; act where the constitution doesn’t give it authority - low hurdle
Taxing & Spending Power
Congress has power to tax/spend for the general welfare (only time an answer should be picked if there is “general welfare”
Taxes valid if: bear some reasonable relationship to revenue production or promoting the general welfare (can also be referred to as penalties)
Spending Power
Congress may regulate beyond enumerated powers by attaching conditions to a grant as long as conditions are:
- Clearly stated;
- Related to the purpose of program;
- Not unduly coercive
*10% of states budget is considered unduly coercive
*5% of budget not considered coercive
spending power is best constitutional justification when spending for general welfare
Commerce Power
Congress may regulate:
- Channels of interstate commerce: roads, rails, waterways, phones, internet, etc.
- Instrumentalities of interstate commerce: trucks, trains, planes, etc.
- Activities having a substantial economic effect on interstate commerce (generally, economic/commercial activity)
*If congress tries to regulate intrastate economic/commercial activity –> court will uphold if there is a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce
*If states: “matter is reserved to state” often wrong UNLESS example is similar to regulating guns in school zone
Property Power
Includes power of eminent domain, to dispose of federal property AND to make rules/laws regulating federal lands and Indian reservations
Article IV, Section 3 Congress has power to “make all needful rules and regulations respecting the territory or other property belonging to the United States”
*airbag regulation on MILITARY bases would fall within property power
War Power
Power to declare war, raise and support armies (fund), and provide for and maintain a Navy
Investigatory Power
Broad implied power to investigate to secure information for potential legislation or other official action
- Subpoena presidential information to advance a legitimate legislative purpose
- Citizenship power to establish uniform rules of naturalization
Delegation
Congress may delegate regulatory power to other branches as long as intelligible standards are set and power isn’t uniquely defined to Congress (declaring war/impeaching)
Exception = major questions doctrine
Major Questions Doctrine
Agency seeking to adopt rules having extraordinary economic and political significance must be able to point to language clearly granting such authority
Speech or Debate Clause
Conduct that occurs in regular courts of federal legislative process is immune from prosecution
- Senators who make statements on senate floor have immunity from defamation suits, even if defamation suit could otherwise overcome high standard for suits against public figures
Legislative Veto
Congress cannot make a law reserving to Congress the right to overturn discretionary executive action without passing a new law and presenting it to the President for approval
Domestic powers of president (Executive Power)
- Appointment/removal of officers and Supreme Court justices w/ advice and consent of Senate
- Pardon - federal crimes only
- Veto power
- power as chief/executive orders
Pardon
Only applicable to federal crimes
*A federal officer who has already been impeached CANNOT be pardoned
Veto
10 days to veto, but can still become law if overriden by 2/3 of each house
*no line item veto
Determining if Presidents actions as Chief Executive are valid:
- If express/implied authority from Congress –> action likely valid
- If Congress silent –> action valid if does not impinge on powers of another branch
- If against Congress’s will –> action likely invalid
Power over External Affairs
- War
- Foreign Relations
- Treaty Power
- Executive Agreements
President’s Power on War
President as commander in chief can act militarily in actual hostilities against the US without a congressional declaration of war to protect life/property.
CANNOT declare War, that is up to Congress
Foreign Relations
President has paramount power to represent the US; broad discretion here
Executive Agreements
Signed by President and head of foreign country; do not require consent from Senate
- Enforceable if not in conflict with federal, treaties, or Constitution
- If state law conflicts –> executive agreement prevails
Treaty Power
Signs treaties with approval of 2/3 of Senate
- Treaty on par with other federal laws “supreme law of land”
- Treaties cannot conflict w/ Constitution
Executive Privilege/Immunity
- Privilege extends to documents and conversations but must yield if court decides information needed in criminal case
Immunity: President is immune from suits for civil damages for actions taken as President; immunity extends to aides exercising discretionary authority of President
Impeachment
President, Vice President & ALL US civil officers may be impeached for treason, bribery, high crimes, misdemeanors by majority vote of the House; are tried by the Senate; and conviction requires 2/3 vote of Senate
Supremacy Clause
If a state statute conflicts with a federal statute, federal agency regulation, or executive order, the state law is unconstitutional
- If actual conflict –> state law invalid
- If interferes w/ federal objectives –> state law invalid
- Preemption –> see next slide
Preemption
- Express preemption (narrow) –> congress says states cannot adopt laws concerning subject matter of federal legislation
- Field (implied) preemption –> if federal law comprehensive or federal agency oversees area, preemption may be found*
(if federal regulatory scheme/agency was created it will often be that they intended to occupy the field; but if facts leave some area out that the agency did not legislate on may not be preempted) - Presumption against preemption –> presumption that historic state police powers are not intended to be preempted unless that is the clear and manifest purpose of Congress
Dormant Commerce Clause
- Congress may delegate commerce power to states
- Absent delegation, states may not intentionally discriminate against interstate commerce
Exceptions:
(a) necessary to achieve an important state interest (no reasonable alternatives available = bait fish in Maine)
(b) State acting as market participant (may prefer it’s own citizens in receiving benefits from govt programs/dealing with govt owned businesses)
watch out for downstream restrictions
- Nondiscriminatory state law may not be unduly burdensome
Nondiscriminatory state tax affecting interstate commerce requires:
- Substantial nexus between object of tax and taxing state
- Fair apportionment according to rational formula
- Fair relationship to services of benefits provided by the state
21st Amendment Liquor Regulation
States can regulate sale of liquor, but cannot favor local businesses
Federal vs. State Power to Sue
- US may sue states without their consent
- States cannot sue the US without its consent
- State can sue state in federal court; Supreme Court has exclusive jurisdiction
Regulation of States/10th Amendment Concerns
- Tax/regulation applying to both private/public entities = valid
- Tax/regulation of states as states = invalid (cannot commandeer states to enforce/enact state laws) exception being conditions on federal funding
State Taxation on Federal Government
- State cannot directly tax federal government
- State cannot directly regulate federal employee
- State may tax federal employee and contractor salaries (indirect tax)
State Action Limitation
Constitution limits actions of government, so there must be state (govt) action in order to find something as “unconstitutional”
private action can sometimes be attributed to the government
Private Action Can be Attributed to the Government When:
- Performing a traditional and exclusive federal function
(running town/election) - State is signficantly involved in the private action
- official encouragement/use of judicial machinery
- entinewment of state/private actors
- mere regulation, provision of public services/licensing = NOT enough for government action
Article IV Privileges and Immunities
Prohibits states from discriminating against citizens of other state with respect to “fundamental rights” or commercial activities
*exception: if necessary to achieve an important government purpose and NO less restrictive means are available
14th Amendment Privileges or Immunities Clause
Prohibits states from denying their own citizens rights of national citizenship
- right to petition to Congress for grievances
- right to vote for federal office
- right to interstate travel
strongest basis for challenging a state durational restriction
Contract Clause
Applies only to states!
Prevents ability to take retroactive legislation that will substantially impair party’s rights under existing contract
Exception: law is valid if –>
1. Serves an important interest;
2. Narrowly tailored to promote that interest
Public contracts are subject to stricter scrutiny
1. State cannot be obligated to refrain from exercising its police power
2. Laws should not broadly repudiate governmental contractual obligations
Ex Post Facto Laws
Prohibits:
1. law that makes criminal an act that was innocent when done
2. prescribes greater punishment than what was prescribed when act was committed
3. reduces evidence required to convict
4. specifically applies only to legislation but due process prohibits similar changes by the courts
Bills of attainder
Prohibits laws inflicting punishment without a trial on people by name or past conduct
Procedural Due Process
5th Amendment = Federal Govt.
14th Amendment = States
Were steps followed in depriving a person of life liberty property fair?
1. Exists when government acts;
2. Makes decision with respect to this individual defendant;
3. That deprives person of life, liberty, or property
*Requires fair process/procedure when government acts intentionally or recklessly to deprive a person individually of life, liberty, or property
- Actual bias/serious risk of bias are unconstitutional
- Liberty includes losses of significant freedom of action
- Property includes legitimate claims/entitlement to government benefits (public employment is property right if claim to entitlement through contract, policy, law)
Government jobs commonly tested for procedural due process issues:
- If guaranteed further employment –> due process required
- If at will employment –> no due process required
Balancing Test for Determining Fair Process / Pre vs. Post Deprivation and Scope of Hearing
Court weighs:
- Importance of individual right;
- Value of specific procedural safeguard involved;
- Governmental interest in fiscal and administrative efficiency
Takings
If government takes land for public purpose, it must provide just compensation (public purpose = liberally construed)
- Actual/physical appropriation almost always a taking even if property taken is small (unless emergency)
Just compensation = reasonable, FMV of property taken at time of taking
Substantive Due Process
5th Amendment = Federal
14th Amendment = States
Prohibits against unreasonable laws or government action that impinges on or restricts liberty interests!
Reasonable test depends on interest involved (see standards of review)
*requires laws to give fair notice of conduct that is forbidden/required
Use Restrictions = Action for Inverse Condemnations as part of Takings
Denial of all economic value –> taking
Decrease in economic value –> generally not a taking if economically viable use remains
Dedications - cannot condition building permits on forced dedication unless:
1. Govt can show legitimate interest; AND
2. Adverse impact of development roughly proportional to owners loss
Equal Protection
14th Amendment = States
5th Amendment = federal govt
Prohibits states and subsidiary state government/entities from treating similarly situated people in a dissimilar manner without adequate justification
People in similar circumstances must be treated equally!
If facially neutral, no discriminatory application, and no discriminatory motive –> rational basis applies
*Generally doesn’t apply to private action, unless falls into exceptions
Standards of Review
For Equal Protection and Due Process Challenges
- Rational Basis
- Intermediate Scrutiny
- Strict Scrutiny
Intermediate Scrutiny
Law upheld if SUBSTANTIALLY RELATED to an important government purpose
(Gender, Legitimacy)
BOP: government bears burden of an EXCEEDINGLY PERSUASIVE justification
Rational Basis
CHALLENGER must prove law is NOT RATIONALLY RELATED TO any legitimate government purpose
Any law that does not affect fundamental rights/suspect/quasi-suspect qualifications
(Age, disability, poverty, wealth)
*Claim will almost always fail, because tough for P to show that government action is irrational
**2 Areas SCOTUS Stated NO Legitimate Interest exists:
1. Prohibiting developmentally disabled persons from living together;
2. Regulating private, noncommercial sex relations between consenting adults
Strict Scrutiny & Suspect Classifications
Law upheld if NECESSARY TO ACHIEVE A COMPELLING GOVT INTEREST (no less burdensome alternative available)
BOP: government
Fundamental Rights: interstate travel, voting, 1st amendment rights
Suspect class: race, national orientation, alienage
IMPORTANT: state classification on alienage will be subject to strict scrutiny (unless self-governing process)
Federal regulations on alienage: will be subject to rational basis
Affirmative action (favoring minorities)
Typically invalid unless seeking to remedy past discrimination within jurisdiction
- Promoting diversity in student body is NOT compelling interest
Alienage w/ respect to state employment positions
Alienage can be considered for state employment positions involving the self-government process (police officers/primary and secondary school teachers)
Abortion
No constitutional right to abortion; left up to the states
Privacy Rights
- Marriage
- Use of contraceptives
- Possession of obscene reading material (except child pornography)
- Right to live with extended family
- Right to educate and raise children
Typically subject to strict scrutiny
Substantive Due Process vs. Equal Protection
If law limits rights of ALL persons to engage in activity –> due process
If law treats a person or class of persons differently from others –> equal protection
Voting Rights
- Short residency requirement (30 days) is okay
- One person one vote
Congressional elections = almost exact mathematical equality required (a few percentage points could be fatal)
State/Local Elections = variance cannot be unjustifiably large (16% variance was upheld)
Right to Interstate Travel
Durational residency requirements for dispensing benefits ordinarily subject to strict scrutiny (30 days probably okay; one year = not valid)
Distinctions between old and new residents = invalid
First Amendment
Prohibits Congress from interfering freedom of speech and press, interfering with right of assembly, or establishing a religion/interfering with or exercising a religion
Content-Based Speech Restriction
(Generally Applicable via Regulation)
If restricts speech based on the subject matter/viewpoint of the speech
- Subject to strict scrutiny (necessary to achieve compelling government purpose)
- Presumptively unconstitutional
Content-Neutral Based Speech Restriction
(Generally Applicable via Regulation)
Must advance important interests unrelated to suppression of speech and must not burden substantially more speech than necessary
- Subject to intermediate scrutiny
- Subject matter and viewpoint neutral
- Time, Place, Manner restrictions
Speech restrictions on public forum and designated public forum = streets/sidewalks/parks/schoolrooms open for use after social events
Regulation will avoid strict scrutiny and be upheld if:
- Content neutral
- Narrowly tailored to serve important government interest
- Leaves open alternatives channels of communication
COMPLETE bans on passing out leaflets rarely pass “narrowly tailored” test // if only during certain hours –> will likely be okay
Speech restrictions in limited public forums and nonpublic forums
(public property only open for expressive activities on certain topic or public property not open for expressive activities)
School gym/libraries/military bases
Regulation valid/can restrict speech if:
- Viewpoint neutral
- Reasonably related to a legitimate government purpose
Unprotected Speech
- Clear and present danger of imminent lawless action
- Fighting words (true threats)
- Obscenity
- Defamation
Obscenity Test
- appeals to the prurient interest in sex;
- Portrays sex in a patently offensive way;
- Does not have serious literary, political, or scientific value judged from a national standard
can prohibit pictures of minors engaging in sex that wouldn’t be obscene if engaged in by adults
Zoning Ordinances for Obscenity
May limit location of adult entertainment establishments if designed to reduce the secondary effects of business (rise in crime/reduction of property values)
Defamation
- Public figure/offical –> P must prove actual malice
actual malice = knowledge of falsity or reckless disregard for truth
- private matter suing on public concern = must prove at least negligence
- Media defendant cannot be sued for publishing a true fact about a public record lawfully obtained
Commercial Speech
False/deceptive/misleadings Ads can be prohibited
Regulation of Other Commercial Speech Valid IF:
1. Serves substantial government interest
2. Directly advances that interest
3. Narrowly tailored to serve that interest
*Complete bans are usually invalid
Prior Restraints
Court orders or administrative systems that prevent speech before it occurs
Content-based –> strict scrutiny
Content-neutral –> intermediate scrutiny
Procedural Safeguards MUST be:
- Standards narrowly drawn, reasonable, and definite
- Injunction must be sought promptly
- There must be a prompt and final determination of validity of restraint
Freedom of Press
Press has right to public information about matters of public concern; can only be restricted by narrowly tailored sanctions designed to further state interest of higher order
*applies even if the information was obtained unlawfully
Government employees can be sanctioned for speech undertaken as part of official duties:
Balancing test determines whether speech can be sanctioned:
- right to comment on matter of public concern vs. interest in government efficiency and orderly workplace
Loyalty Oaths for Federal Employees/Public Officals
permissible if not overbroad; can require they support the constitution but cannot require that they salute flag
School sponsorship of extracurricular club
Govt can require public universities to pay a student activity fee even if student groups are offensive to student as long as program is viewpoint neutral and reasonably related to legit govt interest
Free Exercise Clause
Prohibits government from punishing someone on basis of their religious beliefs or religious status/conduct
- courts can question sincerity; NOT truthfulness
- state cannot limit eligibility for generally available government benefit to nonreligious organizations
- SCOTUS granted Amish exception from requiring compulsory school attendance until age 16
*Law of general application that INCIDENTALLY burdens a religious practice is valid; BUT law that TARGETS religious practice is invalid!
Free Establishment Clause
Prohibits government sponsorship of religion / cannot aid or formally establish religion; requires course of neutrality towards religious institutions
NEUTRALITY
- must remain neutral/neither favor or disfavor
- Cannot directly or indirectly coerce individuals to exercise their religion
*Religious practices/displays that have been around for a long time because of history or tradition tend to be upheld because tolerable acknowledgement that religion played a role in development of the country
Types of Cases Under Establishment Clause
- Sect Preference
- Recipient Based Aid
- Cases Unconnected to Financial Aid/Education
Sect Preference
When government action prefers one religious sect over another –> violates establishment clause unless necessary to achieve compelling interest
Cases Unconnected to Financial Aid/Education
Law favoring/burdening religious group –> invalid
Law favoring/burdening large segment of society that includes religious groups –> upheld (Sunday closing law)
Cases Involving Financial Benefits to Religious Institutions
Statute authorizing government aid must be neutral toward religion
Programs that aid both religious and secular private schools are valid
- If state subsidizes private education cannot deny funding to religious schools
- Treating religious private schools and non-religious private schools the same is required by free exercise clause
Alienage Classifications Based on Federal or State Government
Federal regulations based on alienage –> apply rational basis
State regulations based on alienage: apply strict scrutiny, UNLESS the regulation involves self-governing process (police officer, public school teacher; then only have to apply rational basis)
Downstream Restrictions on Dormant Commerce Clause
State’s restricting how a favored recipient can dispose of the item later WILL violate the dormant commerce clause
Supreme Court has original jurisdiction in all cases affecting:
- Ambassadors
- Public ministers
- Consuls
- Those which a state is a party
Appellate jurisdiction where federal judicial power extends under Article III after final judgment from lower court
Supreme Court’s Discretion for Writ of Cert Cases
- Cases from highest state court capable of providing decision where:
- constitutionality of federal statute, federal treaty, state statue in issue that allegedly violates federal law
- all cases from federal courts of appeals
