Constitional Law Flashcards
What are the 4 requirements or limits of Justiciability Doctrine
- Standing
- Ripeness
- Mootness
- Political Question
4 requirements of standing
- injury
- causation and redressability
- NO 3rd party
- No general grievances
STANDING
- what 2 types of injury
ex. sierra club
ex. LAPD
- Plaintiff suffers actual injury
- Plaintiff is seeking injunctive relief needs to show likelihood of future harm
ex. sierra club sued but not one member had walked on mountain they tried to protect
ex. plaintiff could not show likelihood he would be held in choke hold again
- RIPENESS: ?
- Criteria (2) ?
ex. fda
- Weather a federal court will grant pre-enforcement review of a statute
- a. hardship will be suffered without review
b. does court have all the info to render a decision
ex. fda says all drugs need generic name on label, could not prove a and b
- Mootness: ?
2. 3 exceptions:
- If events after plaintiffs lawsuit end injury the case is moot
- a. wrong capable of repeating
ex. rowe v. wadeb. Voluntary cessation
ex. co just “says” they will quite descrimantionc. class action
ex. named plaintif in suite becomes moot matter not moot as long as one in class is still being injured
What is the difference between Ripeness and Mootness?
Ripeness bars claims BEFORE they have developed
Mootness bars claims AFTER they have been resolved.
4 Political questions:?
- Republican Form of Gov.Clause
- Presidents Foreign Authority
- impeachment and removal
- partisan gerrymandering
Abstention: ?
ex. barbri
Federal courts may not enjoin pending state court proceedings.
ex. state prosecution for new statuet that makes barbari lecture illegal, the federal court may not enjoin in the middle of that trial
What does the 11th Amd. prohibit: ?
What does Sovereign Immunity prohibit:?
Suits by private party / foreign gov against states in federal court.
Suits against states in state courts even on federal statute
4 exceptions where sates may be sued:?
- Waiver
- Federal Laws / 14th Amd. (civil right matters)
- Federal Gov can sue State Gov
- Bankruptcy proceedings
11 And, prohinits _____ from hearing claims for damages against _____ unless:
a)____
b____
c)____
federal court state government (not officers)
a) consent
b) plaintiff is another state or US gov
c) congress created authority
Abstention: ?
ex. barbri
Federal courts may not enjoin pending court proceeding.
ex: state prosecution for new statute that makes teaching barbaric illegal. Federal court may not enjoin during hearing
- Congress can act act under what 2 type of powers?
2. What does Congress NOT have?
- Express or implied
2. Police power
- Presedentail Removal Power:
2. Who can the president always fire:
- Unless removal is listed by statute the president may fire any executive branch office
- Cabinet officers
- For Congress to limit Presedentila Removal ?
2. So what is the most Congress can do in regards to President removal?
- Must be an office where independence from President is desirable?
ex. like a special prosecutor - Congress can limit removal to show “good cause” but can’t prohibit
- What is Federalism?
- Preemption
- Where doe power come from
- Limit on state / local power because of national power
- laws, treaties and constitution are supreme law of the land
- Supremacy clause / Article VI
What is Implied Preemption: ?
3 ways:?
Even if a statute is silent preemption can impiled
- Mutually exclusive laws
- Impedes achievement
- Congress clear intent
- Can states tax or regulate government activity?
- What type iof immunity is this called?
ex: us banks
- NO
- Inter-Govermental Immunity
ex. states tried to tax US banks, not allowed
- Dormant Commerce Clause:
- Privileges and Immunities Clause of Article IV states:?
ex.
3.Privileges and Immunities Clause of 14th Amd only deals with?
ex.
4, Why is example in 3 not a matter under P and I Clause Article IV?
- A state or local law is unconstitutional if it places an UNDUE BURDEN on interstate commerce.
- No STATE may deprive an individual of another state of the Privileges and Immunities it affords its own citizens
ex. AZ cannot discriminate CA - right to travel wrong answer unless involves right to travel
ex. mississippi citizen moves to CA and told only Mississippi benefits until after a year = unconstitutional chills travel - Because Plaintiff was moving to CA not just visiting
What is the first question you always ask when dealing Dormant Commerce Clause and Privileges and Immunities Clause of IV.
ex. Trash
ex. Wine
Does the law discriminate against out of staters.
ex. Philadelphia v. NJ, no state can bring trash into NJ = violated PI of IV
ex. Minnesota wineries could sell wine via mail but out of state wineries could not + violated PI of IV.
- So what does the Privilege and Immunities Clause IV need to be triggered that Dormant Commerce Clause does not ?
- So what does the Dormant Commerce Clause need to be triggered?
- Discrimination against an out of staters
2. Burden on interstate commerce.
What are the 2 exceptions to violations of Dormant Commerce Clause?
- Congressional Approval
2. Market Participant
Market Participation Exception: (dormant commerce clause)
ex university
ex. ut cement - with comparison
A state or local government may prefer its own citizens in receiving benefits from government programs or dealing w/ government owned businesses.
ex. CA can give in state tuition for CA residents attending state school
ex. UT cement company charges less for UT citizens compare - unconstitutional if private UT company.
- If the Privileges and Immunities Clause is triggered by discrimination what must it affect for the out of stater? (2)
- What can the state show to avoid violation ?
- Ability to earn a living
- Fundamental right
Important Government Purpose
Who cannot use Privileges and Immunities Clause IV? (2)
- Aliens (Non-US Citizen)
2. Corporations
- Generally what must you have in order for Constitution to apply ?
ex. university speech
2.What can Congress do?
- Violation of Race
a. gov. =
b. private co. =
- Government Action.
ex. speech given by Duke professor vs. U.C. Irvine professor. - Pass statutes that make constitutional norms apply
- a. 14 amd.
b. statute
2 exceptions when private conduct must comply with constitution?
- Public Function
2. Entanglement
- Entanglement Exception:
**
Constitution applies if government affirmatively authorizes, encourages or facilitates unconstitutional activity.
- the law is confusing so just memorize examples
2 WORDS
Rational Basis Test:
Intermediate Scrutiny:
Strict Scrutiny:
- Rational Legitimate
- Substantially Important
- Necessary Compelling
Rational Basis Test:
- Purpose
- Least Restrictive:
- Burden:
Law is rationally related to a government purpose
- legitimate conceivable purpose
- NO
- Challenger
Intermediate Scrutiny:
- Purpose
- Least Restrictive:
- Burden:
Law is substantially related to an important government purpose.
- important actual purpose
- NO
- Government
Strict Scrutiny:
- Purpose
- Least Restrictive:
- Burden:
Law is necessary to achieve a compelling government purpose.
- compelling actual purpose
- Yes
- Government.
Procedural due process:
Typically what is this:
The procedures the gov, must follow when it takes away life liberty or property
Notice and / or hearing
Deprivation of liberty occurs if:
ex.
a. what do you need to institutionalize someone?
b. what does parent need to institutionalize a child;?
Loss of significant freedom provided by the Constitution or statute.
a. notice and a hearing
b. screening by neutral fact finder
Deprivation of Property occurs if (2):
ex.
a. job for a year
b. contract w/ gov. renewed
- A person has an entitlement and that entitlement is not fulfilled.
- A reasonable expectation to continue to receive a benefit
a. person is promised a job for a year and is fired prior to year plaintiff entitled to due process
b. no due process claim, not entitled to renewed.
What is the first question to ask if violation ion procedural due process?
Did the gov. deprive a person of life, liberty or property
- How does the gov. deprive life and liberty ?
- How does gov. deprive property?
- If gov. has deprived life, liberty or property then what is the question and what is the test?(2)
- deprive significant freedom by constitution or statute
- deprive entitelment or continued receipt of benefit
- what procedures were used
Balance tet
- If gov. puts conditions on development of property what must it be?
- Who is aways putting conditions on development?
- Benefit of regulation must be roughly proportionate to burden imposed
- local gov … needs to be “roughly proportionate”
- Test / level scrutiny if state or local interfere with private contracts:
- What do you ask: (2)
- Test / level scrutiny if state or local interferes with gov. contracts:
- Intermediate
a. does legislation significantly impair rights under existing contract
b. reasonably tailored to achieve legitimate public interest
- Strict scrutiny
Right to Vote
- What in constitution protects the Right to Vote? (2)
- What type of Right?
- What level of scrutiny?
ex. poll tax
ex. school board vote
- 15th Amd. and Equal Protection 14th
- Fundamental
- Strict
ex. charge to vote unconstitutional
ex. need child in school or own property to vote unconstitutional
Freedom of Religion
2 Clauses Freedom off Religion?
- Free exercise clause
2. Establishment clause
- Establishment Clause:
2. 3 Prong test:
- Gov. will make no law respecting the establishment of religion
1) law must have secular purpose
2) niether advance or inhibit religion
3) no excessive entanglement
- Can gov. allow non-religion speech only?
- Can give. allow speech from certain religions but not others?
- If government passes laws that do the above, what level scrutiny?
- NO - can’t discriminate against religious speech
- NO
- Strict scrutiny
- What does the gov. do when it creates an equal protection issue?
- 3 Prong approach for equal protection question?
- draws a distinction among people
a. what is the class (race, age, gender)
b. what level scrutiny
c. law meet scrutiny
- What constitutional provision provides Equal Protection:
A. Federal:
B. State: - What never applies to the Federal Gov.
Federal = 5th Amd.
State = 14th Amd.
- 14th Amd.
EDUCATION RACE and ADMISSIONS
- May education institutions use race as one factor in admission?
- What must they show?
- What about adding points to admission scores?
ex. Michigan - What must Public Schools do if they assign kids to schools to create diversity?
- Yes
- No alternative method to create diversity
- May NOT add points
ex. University added points to test score = unconstitutional - Meet strict scrutiny (seattle assigned based own race)
GENEDER CLASSIFICATIONS
- What level scrutiny and how phrased?
- What 2 ways does gender classification happen / shown?
ex. beer
ex. firefighter test
- Intermediate
“only if an exceedingly justification exists” - a. exist on face
ex. buy beer 18 years girl and 21 boyb. facially neutral ( intent and impact)
ex. firefighter need to be 5-4 and 150 half men meet 21% of woman
CLASSIFICATION BENEFIT WOMAN
- Scrutiny
- What benefit MUST benefit be based on?
- Strict (wether benefits or discriminates)
- Based on role NOT stereotype’
ex. AL law only woman could receive alimony = unconstitutional based on stereotype only woman are dependent
ex. law that say men must prove they relied on wife in order to get survival benefits
CLASSIFICATION BASED ON ALIENAGE
- What level scrutiny used off law made by congress?
- Why?
- What level scrutiny undocumented children?
ex. TX education
- Rational basis test
- Congress has plenary power to regulate immigration so can discriminate
- Intermediate Scrutiny (appears)
ex. TX children of undocumented must pay to go to school = unconstitutional
DISCRIMINATION Non-MARITAL CHILDREN
- Scrutiny:
ex. inheritance
ex. inheritance + test
- Intermediate Scrutiny
ex. only marital children could inherit from father = unconstitutional
ex. only non-martial children who had a paternity test could inherit + constitutional
EP
3 classifications triggering intermediate scrutiny?
- Gender
- Illegitimate Children
- Undocumented Children
EP
5 classifications triggering rational basis
- Alienage related to self-government
- Alienage laws by congress
- Age
- Disability
- Wealth
- When speech is regulated what 2 ways ?
2. What is the difference in scrutiny?
- Content based
- Content - Neutral
Content based = strict scrutiny
Content neutral = intermediate scrutiny
- Vagueness ?
ex. book - If law is Vague what clause does it violate?
- a law is unconstitutionally vague if a reasonable person can’t tell what is allowed
ex. city passes law that can’t sell any book that corrupts moral values = unconstitutionally vague - Due process clauses (5th and 14th amd)
- Symbolic Speech: ?
- Can gov. regulate? (2)
ex. bar examiner
- Conduct that communicates
- Yes if:
a. important interest unrelated to message
b. impact on communication no greater than needed
Obscenity and Sexuality Oriented speech protected?
Test: Obscene or Sexually - orientated (3) ?
How determined:
Unprotected
- appeals to purvaint interest (local)
- patently under law - clear law (local)
- lacks any redeeming value (national)
DEFAMANTION and 1st AMD.
Plaintiff can recover if:
- Public Official / candidate:
- Public Figure
a. public figure is: - Private Figure of Public Concern:
a. to get presumed or or actual damages? - Private Figure NOT Public concern:
a. presumed or actual damages
b. burden on
- false and actual malice
- false and actual malice
a. person who throws themselves into light or has access - false and negligence
a. must show actual malice - false statement
a. only need false statement
b. defendant to prove true
5 locations for potential speech?
- Public Forum
- Designated Public Forum
- Limited Public Forum
- Non Public Forum
- Private Property
- Public Forum is:
- Regulation here must (2):
- If not then:
- A place were the gov. is conditionally required to allow speech (sidewalk and parks)
- Subject matter and viewpoint neutral
- Must meet strict scrutiny
204 Cont. PUBLIC FORUM
- If regulation is subject matter and viewpoint neutral then regulation must be: (2)
ex. truck - What level is the above?
- Time, place or manner that saves an important gov. interest and leaves alternative paces for communication
ex. city lord that said no trucks 6p to 6a with music = sc constitutional - Intermedaite
- So what is the difference between Designated Public Forum and Limited Public Forum?
- How are the regulations different?
Designated gov. decides to open locations on a permanent or temporary basis.
Limited gov decides to open location for a specific purpose. (i.e. hold a debate)
Designated = Subject and Viewpoint Neutral Limited = Viewpoint Neutral
NON-PUBLIC FORUMS
- Non-Public Forums?
- What Rules apply?
- 4 examples
- gov. properties that the gov. constantly can and does close for speech.
- Regulation needs to be reasonable and viewpoint neutral.
- a. military bases
b. prisons / jails (areas outside)
c. post office (sidewalks)
d, airports (no-solicitation yes-handouts)
