Con Law [the essentials] Flashcards
Standing
1) Injury-in fact
2) causation
3) redressability
Injury-in-fact
must prove that they have been or imminently will be injured
for injunctive/declaratory relief–must show likelihood of future harm
Causation
causal connection between injury and conduct complained of
Redressability
court decision is likely to remedy the injury
3rd party standing
person with standing in own right right can also assert the rights of a 3rd party if:
1) special relationship between plaintiff and injured third party
2) injured party is unlikely to be able to assert their own rights
Organizational standing
1) organization suffers injury
2) may bring action on behalf of its members IF:
a. its members would have standing to sue in their own right AND b. the interests at stake are germane to the orgs purpose
Ripeness
Claim has not fully developed
factors to use:
1) hardship that will be suffered without pre-enforcement
2) the fitness of the issues for judicial review
Moot
if events post-filing end Ps injury
Exceptions:
1) capable of repetition but evading review
2) voluntary cessation
3) Class action
Political Q
Issues that are:
1) constitutionally committed to another branch of government OR
2) inherently incapable of judicial resolution
Powers of Congress
1) Necessary + Proper Power
2) Taxing and Spending Power
3) Commerce Power
Necessary and Proper Clause
Congress may make all laws necessary and proper to carry out all the powers vested to any branch
Taxing + Spending power
Taxing: congress has power to tax and spend for general welfare
Taxes should:
1) bear some reasonable relation to revenue production OR
2) Congress has the power to regulate the activity taxed
Commerce Power
Power to regulate all foreign foreign and interstate commerce
May regulate:
1) channels of interstate commerce
2) instrumentalities of interstate commerce
3) local activities that have a substantial effect on interstate commerce
Substantial effect on interstate commerce
when congress tries to regulate intrastate activity must show that
1) economic or commercial activity AND
2) the court can find RB that activity in aggregate substantially affects interstate commerce
Delegation
Generally OK if:
1) intelligible standards are set to guide the delegation AND
2) the power is not uniquely confined to Congress
if Prez’s actions are within powers
1) when acting with express or implied authorization of congress = authority at highest
2) when congress has not spoken = less OK
3) when congress has spoken to the contrary = authority at lowest
President powers
Foreign Powers:
-commander in chief
-war
-treaties
-executive agreement
domestic:
-pardons
-appoint all officers with the advise and consent of the Senate
-removal power
-veto bills presented
Appointment Power
Prez appoints ambassadors, federal judges and officers of the US
Congress can vest appt of inferior officers with heads of departments, the president, or the lower federal courts
Removal Power
Unless limited by statute, Prez can fire any executive branch officer
For congress to limit by statute
-must be a position where independence from Prez is desirable
-and can only limit by “good cause”
-also cannot limit the Prez’s ability to fire sole director of agency
Exclusive State Powers
10th Amendment
All powers not assigned to the feds = the states or the people
Congress can’t command states to do things but can use taxing and spending power to encourage them to do something
Exception: 14th Amendment enforcement powers allow congress to restrict states from discriminating
Express preemption
Federal statute explicitly says that federal law is exclusive in the field
Implied preemption
1) congress intended for fed law to occupy the entire field
2) direct conflicts
3) indirectly conflicts–impedes objective of fed law
State Action
Exceptions:
1) performing activities that are traditionally the exclusive prerogative of the state
2) entanglement–state affirmatively facilitates, encourages or authorizes acts of discrimination by its citizens
RB
rationally related to a legitimate government purpose
Intermediate Scrutiny
substantially related to an important government purpose
Strict Scrutiny
necessary to achieve a compelling government purpose
Procedural DP
Q of whether there were adequate procedures
Ask:
1) has there been deprivation of life, liberty or property?
2) what procedures are required
Test for type and amount:
1) the importance of interests to the person
2) would additional procedural safeguards help to improve accuracy
3) government interest in fiscal and administrative efficiency
Fundamental Rights
right to travel
right to vote
right of privacy (which includes a whole shitload of things)
Substantive DP
Does the government have an adequate reason for taking away a persons life, liberty, or property
DP of 5th amendment applies to feds
DP of 14th applies to state + local
EP
All equal protection cases pose the same basic question: Is the government classification justified by a sufficient purpose?
What is the classification?
What level of scrutiny should be applied?
Does it meet scrutiny?
Suspect classification
race, ethnicity, national origin, alienage
use strict scrutiny
government must prove that the regulation is the least restrictive means to achieve a compelling government interest
quasi-suspect classification
gender, legitimacy
use intermediate scrutiny
government must show that the classification is substantially related to an important government interest
all other classifications
RB test
challenger must show that the regulation is not rationally related to any legitimate government interest
Affirmative Action
states can implement regulations to remedy past discrimination if the class has actually suffered persistent and readily identifiable past discrimination
race-based plan cannot be used to remedy general past “societal” discrimination
Proving discrimination
Intent can be shown:
1) law is discriminatory on its face
2) discriminatory application of a facially neutral law
3) discriminatory effect/motive
Takings Clause
the government may take private property for public use if provides just compensation
1) is there a taking
2) is it for public use?
3) was just compensation paid?
**public use = rationally related to a legit public purpose
**just compensation = measured by loss to the owner (fair mkt value at time of taking)
Regulatory Taking
If government regulation denies a land owner ALL economically viable use of their land
If ANY economically viable use left–generally not a taking
Possessory Taking
actual or physical appropriation of property
P + I Clause
Contracts Clause
No state shall impair obligation of contracts
limits ability of states or local governments to enact laws that retroactively impair K rights
does not affect future contracts
Ex Post Facto Law
government may not pass a law that criminally punishes conduct that was lawful when it as done or make greater punishment after the fact
1st Amendment
Freedom of Speech + Freedom of Religion
Content Based Restriction
generally must meet strict scrutiny
to types:
1) subject matter restrictions–means that the government cannot regulate speech based on the topic of the speech
2) viewpoint restrictions–means that the government cannot regulate speech based on the ideology of the message
Content Neutral Restriction
Intermediate scrutiny
Have to advance important interests unrelated to the suppression of speech
Must not burden substantially more speech than necessary
Imminent Lawless action
(1) substantial likelihood of imminent illegal activity AND
2) speech is directed at causing imminent illegality
Fighting Words
personally abusive words that are likely to incite immediate physical retaliation in an average person
True threats
Ex: cross burning with intent to intimidate
NOT protected by 1st
Obscenity
Speech is obscene if it describes or depicts sexual conduct that:
1) appeals to the prurient interest in sex (community standard)
2) is patently offensive AND
3) lacks serious artistic, literally, political, or scientific (national standard)
Commercial Speech
generally given 1st amendment protection
INTERMEDIATE SCRUTINY
NOT protected if
-proposes unlawful activity
-is inherently misleading or fraudulent
restrictions upheld if:
1) serves a substantial government interest
2) directly advances that interest AND
2 is narrowly tailored to serve that interest
Freedom of Association
protects the right to form or participate in an group, gathering, club etc
gov can infringe if they can satisfy strict scrutiny
Time, Place + Manner Restrictions
Gov has power to regulate the conduct associated with speech and assembly
See chart
Free Exercise Clause
Cannot be used to challenge a neutral law of general applicability
Law is discriminatory if:
1) not neutral on its face OR
2) facially neutral but not generally applicable
**if there is discretion to grant exceptions at ALL for a law–then you can challenge denial of exception on religious grounds (strict scrutiny)
Establishment Clause
New test: government may not directly or indirectly coerce individuals to exercise (or not exercise) their religion
