ConLaw Flashcards
Dormant Commerce Clause- Discriminatory Test
Important Non-Economic interest
No less discriminatory alternatives
Exceptions: Market participant or Congress approval
Judicial Branch Powers
Hear cases involving the interpretation of the Constiution, federal laws , treaties, admiralty and maritime laws; and disputes between states and other states, foreign citizens or citizens from different states.
Judicial Powers - Essay Headings
Supreme Court
Original Jurisdiction
Appellate Jurisdiction
Final Judgement Rule
Lower Federal Courts
Sovereign Immunity
Abstention
Federal Executive Powers - Essay Headings
Foreign Policy
Treaties
Executive Agreements
Executive Orders
Military Powers
Domestic Powers:
Presidential Immunity
Executive Privilege
Pardoning Power
Appointment Power
Removal Power
Impeachment and Removal
Federal Legislative Powers - Essay Headings
Enumerated and Implied Power
Federal Police Power
10th Amendment
Section 5 of the 14th Amendment
Taxing and Spending Powers
Commerce Power
Channels of Interstate Commerce
Instrumentalities of Interstate Commerce
Activities with a substantial effect on interstate commerce
Other Powers
Delegation of Powers
Preemption Essay Verbiage
Generally, Congress has the power to regulate the channels and instrumentalities of interstate commerce. Federal legislation that 1) supersedes the state regulation or preempts the field, or 2) authorizes state regulation otherwise impermissible makes it impermissible for state’s to regulate in certain areas.
Dormant Commerce Clause- Non-Discriminatory Test
Two-Part Test:
i. Undue Burden -Not discriminatory but places an undue burden on interstate commerce
ii. Further an important governmental interest
Exception: Market Participation
* Example: State universities can charge more to out-of-state students.
Standing
The plaintiff must show a “personal stake” in the outcome of the litigation. This requires a showing of injury, causation and redressability.
Injury
The plaintiff must allege and prove that they have been direct injured or will be imminently injured. To seek injunctive relief, one must show a likelihood of future harm.
Causation
The plaintiff must prove that the injury is fairly traceable to the defendant’s allegedly unlawful conduct.
Redressability
It must be likely that the plaintiff’s injury will be remedied by a favorable court decision.
Third Party Standing
Generally, one cannot assert the claims of others who are not before the court but there are exceptions. 1) If there is a close relationship between the plaintiff and the injured third party (eg Doctor/Patient), or 2) if the injured party is unlikely to be able to assert his or her own rights
Organizational Standing
Organizations may sue for their members if:
A) a member of the organization would have standing to sue,
B) the interests are germane to the organization’s purpose and
C) neither the claim nor relief requires participation of individual members. The organization can only seek equitable relief.
Ripeness
Ripeness questions when a party may seek pre-enforcement review of a statue or regulation. Factors include, 1) The hardship that will be suffered if no pre-enforcement review is granted and 2) the fitness of the issues (enough information to make a decision) and 3) the record for judicial review.
Mootness
An actual controversy must exist at all times otherwise it will be dismissed
Advisory opinions
There must be specific present harm or threat of specific future harm.
Political Question
Questions that involve matters assigned to other governmental branches by the constitution will not be heard.
11th Amendment
The 11th Amendment prohibits cases in federal courts against the states.
Preemption
Generally, Congress has the power to regulate the channels and instrumentalities of interstate commerce. Federal legislation that 1) supersedes the state regulation or preempts the field or 2) authorizes state regulation otherwise impermissible makes it impermissible for state’s to regulate in certain arenas. However, if Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. However, it may not discriminate against or unduly burden interstate commerce.
Dormant Commerce Clause
Where Congress has not regulated a particular subject matter, states are free to regulate interstate commerce on that matter as long as they do not 1) Directly discriminate against out of state commerce or 2) Unduly burdens interstate commerce.
Dormant Commerce Clause - Direct Discrimination Explanation
If a law is facially discriminatory against out-of-staters then the law is presumed to be invalid as violating the Dormant Commerce Clause unless 1) it is necessary to achieve an important non-economic purpose and 2) there are no less discriminatory alternative means available. Such laws will also be presumed valid where the state is acting as a market participant or there is congressional approval.
Dormant Commerce Clause - No Discrimination Explanation
If a law is not facially discriminatory it may still violate the dormant commerce clause if it unduly burdens interstate commerce.
Dormant Commerce Clause - Undue Burden
Law is invalid if the burden on commerce outweighs the local interests protected or benefited by the legislation (balancing test). Even if it does burden commerce, it may still be valid if the state is acting to further an important interest or acting as a market participant.
The Supremacy Clause
The Supremacy Clause and the laws and treaties made pursuant to it are the supreme law of the land via the Supremacy Clause of Article IV of the US Constitution.
Dormant Commerce Clause Exceptions
Market Participant and Congressional Approval
Substantive Due Process
The government needs an adequate reason for taking away a life, liberty and/or property.
Procedural Due Process
If the government deprives on of their rights to life, liberty or property interest, then they must first give that individual proper due process, which consists of notice and the opportunity to be heard.
Deprivation of Liberty (Procedural Due Process)
A deprivation of liberty occurs if there is a loss of significant freedom provided by the constitution or a statute.
A bill of attainder
is a legislative act that inflicts punishment without a judicial trial upon individuals who are designated
either by name or in terms of past conduct. Past conduct acts to define who those particular persons are. Both the federal and state governments are prohibited from passing bills of attainder.
Vagueness
A law is void for vagueness if it does not provide individuals with fair and reasonable notice of the boundaries between lawful and unlawful conduct, in violation of the Due Process Clause
DCC - Undue Burden Test
A law violates the DCC if its burden on interstate commerce outweighs the local interest protected or benefited by legislation. However, if the law unduly burdens interstate commerce, it may still be valid if the state is acting to further an important interest.
Privileges and Immunities Clause
If a law discriminates against out of staters with regard to their ability to earn a livelihood, it violates the privileges clause unless it is necessary to achieve an important government purpose.
DOES NOT apply to corporations or non-citizens
Equal Protection Clause and Analysis
The Equal Protection Clause of the 14th Amendment proves that no personal shall be denied equal protection of the laws. Courts apply different levels of scruitiny for different classifications. Classifications that burden fundamental rights, race, national origin, and alienage receive strict scrutiny. Classifications based on illegitimacy and gender receives intermediate scrutiny. All others receive rational basis review. Here, ________ exists, and thus the levels of scrutiny to be analyzed are _______.
In order for a classification to be subject to scrutiny there must be discriminatory intent. Mere discriminatory impact is not enough to establish an equal protection violation.
Since the classification is _____, the level of scrutiny to be applied is _____.
Substantive Due Process Clause
The government needs an adequate reason (substantive justification) for taking away a life, liberty and property. If the right infringed upon is a fundamental right then strict scrutiny applies but if not then rational basis.
Procedural Due Process
IF the state or federal government deprives one of his or her life, liberty, or property interest then they must first give that individual proper due process which consists of notice and opportunity to be heard.
Procedural Due Process Balancing Test
- The private interest will be impacted by the government.
- The risk of erroneous deprivation of the interest due to the procedural process used, and
- The government’s interest.
Commerce Clause
Congress has the exclusive power to regulate all foreign and interstate commerce under Article 1 of the US Constitution. To fall within Congress’ power under the Commerce Clause, a federal law regulating commerce must either 1) regulate the channels of interstate commerce, the instrumentalities of commerce, or regulate economic activities that have a substantial effect on interstate commerce.
Necessary and Proper Clause
Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.
Tenth Amendment and Grants
All powers not granted to the United States nor prohibited to the states are reserved for the states or the people. Congress cannot compel state regulatory or legislative action, however, they may put conditions on grants if, 1) the spending serves the “general welfare”, 2) the condition placed on the funds is unambiguous, 3) the condition relates to the federal programs, 4) the state is NOT required to take unconstitutional action, 5) the amount of funds is not so great as to be considered coercive.
The Eleventh Amendment
Generally, Federal and state courts may not hear suits against state governments.
Delegation of Powers
There are no limits on Congress’s ability to delegate legislative powers but Congress may not delegate executive power to itself or its officers.
14th Amendment
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny any person within its jurisdiction the equal protections of the law.
Liberty Interests
Physical Liberty: Imprisoned or placed in some similar situation where you do not have physical freedom of movement.
Intangible Rights: A person has a liberty interest in being able to do certain intangible things not related to physical freedom of movement such as 1) right to drive, 2) right to practice one’s profession, 3) raise a family, etc.
Intermediate Scrutiny
Substantially related to an important government purpose
Rational Basis
Rationally related to a legitimate government interest
Strict Scrutiny
Law must be necessary to achieve a Compelling government interest.
Ripeness and Takings
Takings claims regarding the application of highly discretionary local regulations to particular property, will not be reviewed on the merits until it is clear to the federal judiciary how far the regulating government will go to limit the use of the privately held property.
Physical Taking
Physical takings occur when the government occupies part or all of a piece of land. If there is a taking and its for public use, the government must pay just compensation. Temporary deprivations are not takings if the government’s actions are reasonable.
Regulatory Taking
Occurs when a government regulation removes the economic value from property. A per se taking removes all economic value leaving no viable economic use. Must consider 1) the nature of the government action, 2) the property owners reasonable investment -backed expectations and the 3) the level of diminution of value. Any regulation must be justified by a benefit that is roughly proportionate to the burden imposed or there has been a taking.
Level of Diminution of Value for Regulatory Taking
The measurement is the loss to the owner for the fair market value.
Partial Taking
When a government regulation does not remove all of the value of a property there is a partial taking.
Partial Taking Remedy
The difference between the Fair Market Value of the whole property before the taking and the Fair Market Value of the remainder after the taking.
Procedural Due Process and Property
Property: A deprivation of property occurs if there is an entitlement that is not fulfilled. An entitlement is a reasonable expectation to continued receipt of a benefit.
Sovereign Immunity
The 11th Amendment prohibits federal courts from hearing a private party’s or foreign government’s claims against a state government. Generally, Federal and state courts may not hear suits against state governments. Exceptions include Waiver if the suit falls under Section 5 of the 14th Amendment, the federal government may sue states, and bankruptcy proceedings. Suits against state officers are allowed if they are for injunctive relief, money damages to be paid directly from the officer unless the treasure will retroactively pay.
Sovereign Immunity Exceptions
Waiver if the suit falls under Section 5 of the 14th Amendment, the federal government may sue states, and bankruptcy proceedings. Suits against state officers are allowed if they are for injunctive relief, money damages to be paid directly from the officer unless the treasure will retroactively pay.
Public Use Defined (Takings)
In Kelo - Any government action taken to serve any public purpose.
The Free Exercise Clause
Applicable to the states via the 14th Amendment, the Free Exercise Clause refers to the US Constitution’s First Amendment that states Congress shall make no law respecting an establishment of religion or prohibit the free exercise of religion. A neutral law of general applicability does not implicate the Free Exercise Clause. The Government is prohibited from punishing someone on the basis of his or her religious beliefs. Free Exercise of Religion is a fundamental right and a law restricting a fundamental right must pass a strict scrutiny analysis in order to determine its lawfulness. Strict Scrutiny means the government’s actions must be necessary to fulfill a compelling government interest.
Establishment Clause
Applicable to the states via the 14th Amendment, the Establishment Clause prohibits the government from creating any law that respects an establishment of religion. This includes establishing an official religion, unduly favoring one religion over another, or unduly preferring religion over non-religion. The Lemon Test is used to determine if a law violates the 1st Amendment’s Establishment clause and requires 1) that there be a secular purpose for the law, 2) the effect may be to neither advance nor inhibit religion and 3) there must not be excessive entanglement with religion.
Laws of General Applicability and religion impact
A neutral law of general applicability that doesn’t impair the free exercise of religion is allowable if rationally related to a legitimate government interest. Here, the rule/policy specifically denies displays which are religious in nature, thus it is not a rule of general applicability.
See Freedom of Restoration Act
Religious Freedom Restoration Act
Allows a person to challenge a law of general applicability when the law places a substantial burden on exercise of religion. Again, this wont apply because the rule is not one of general applicability.
Establishment Clause
Applicable to the states via the 14th Amendment, the Establishment Clause prohibits the government from creating any law that respects an establishment of religion. This includes establishing an official religion, unduly favoring one religion over another, or unduly preferring religion over non-religion. The Lemon Test is used to determine if a law violates the 1st Amendment’s Establishment clause and requires 1) that there be a secular purpose for the law, 2) the effect may be to neither advance nor inhibit religion and 3) there must not be excessive entanglement with religion.
Lemon Test
used to determine if a law violates the 1st Amendment’s Establishment clause and requires 1) that there be a secular purpose for the law, 2) the effect may be to neither advance nor inhibit religion and 3) there must not be excessive entanglement with religion.
The First Amendment
Provides that Congress shall make no law abridging freedom of speech.
Unprotected Speech
The government can completely prohibit 1) incitement of illegal activity 2) obscenity, 3) fighting words, 4) defamation.
Symbolic Speech
Symbolic Speech is one which 1) conveys a specific message, 2) those seeing the message understand a message is being conveyed. The government can regulate symbolic speech if there is an important interest unrelated to the suppression of the message and the impact on communication is no greater than necessary to achieve a government purpose.
Discriminatory Intent
In order for a classification to be subject to scrutiny there must be discriminatory intent. Mere discriminatory impact is not enough to establish an Equal Protection violation.
One shows discriminatory intent by the classification 1) being discriminatory on its face 2) having discriminatory application 3) having discriminatory impact.
Overbreadth
A law is void as overbroad if it prohibits protected speech and unprotected speech.
Unfettered Discretion
The First Amendment is violated when an official is given complete discretion regarding whether to allow or prohibit speech.
Abstention
A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law. In addition, federal courts may not enjoin pending state criminal proceedings unless there is proven harassment or bad faith.
Takings Clause EA
Takings Clause
Physical Taking
- Public Use
- Just Compensation
- Vested Rights
Regulatory Taking
- Nature of Gov Actions
- Investment- Backed Expenses
- Level of Diminution of Value
Partial Regulatory Taking
- Nature of Gov Actions
- Investment-Backed Expenses
- Remedy
Dormant Commerce Clause EA
Preemption
DCC
Direct Discrimination
- Important Non-Economic Interest
- No Less Discriminatory Alternatives
- Market Participant
- Congressional Approval
P&I of IV
Discrimination v. Out of Staters
- Discrimination re: Civil Liberty or Economic Activities
- Necessary to Achieve Important Gov Purpose
No Discrimination
- Undue Burden (on Interstate Commerce)
- Balancing Test
- Market Participant Exception
Equal Protection EA
Equal Protection
(Identify Classification and Level of Scrutiny)
Discriminatory Intent
Apply Level of Scrutiny
- Strict: Necessary/Compelling
- Intermediate: Substantially Related/Important
- Rational: Rationally/Legitimate
Fundamental Rights
Privacy Rights (Family/Reproductive, Child Bearing/Rearing, etc)
Right to Travel
Race and National Origin
Alienage
Gender (intermediate)
Illegitimacy (intermediate)
Right to Vote
Free Speech EA
Free Speech
Content Based
- Subject Matter Regulation
-Viewpoint Regulation
Unprotected Speech
Commercial Speech
Symbolic Speech
Content Neutral
- Significant Gov Interest
-Narrowly Tailored
-Alt Channels of Communication
Challenges:
- Vagueness
-Overbroad
Forums
Public Forum
- Content Based: Strict
- Content Neutral: Intermediate
Limited Public Forum
- Content Based: Strict
- Content Neutral: Intermediate
Nonpublic Forums
- Reasonable and viewpoint neutral
Prior Restraints
A judicial order which stops speech before it occurs. The court order must meet strict scrutiny
Licenses/Permits Before Speech
In order for a court to be constitutionally allowed to order a license or permit before certain speech occurs, the court must show: 1) restraint is necessary to prevent societal harm; and 2) there are sufficient procedural safeguards (unfettered discretion)
Freedom of Religion EA
Free Exercise
Establishment Clause
Lemon Test
- Secular Purpose
- Effect Cannot Advance Nor Inhibit Religion
- No Excessive Entanglement
Standard for Religious Freedom
Contracts Clause
Prohibits states from enacting any law that retroactively impairs contract rights. Applies only to state or local interference with existing contracts (not fed gov).
Private Contracts: Intermediate Scrutiny (substantially impair/narrowly tailored)
Government Contracts: Strict Scrutiny
