Constitutional Flashcards
How to establish standing
must show
1) Injury in fact (often economic)
2) causation
3) Redressability
Congress’ Commerce Power
1) Channels of interstate commerce
2) Instrumentalities of interstate commerce
3) Any activity which has a substantial economic effect on interstate commerce
If intrastate activity is ECONOMIC in nature -> upheld if rational basis exists to conclude activity substantially affects interstate commerce
If intrastate activity is NON-ECONOMIC in nature -> upheld if Congressional finding that activity substantially affects interstate commerce
Dormant Commerce Clause
State regulations on interstate commerce will be upheld only if:
- Regulation is non-discriminatory
- Regulation does not unduly burden interstate commerce
State Action
- Must be governmental conduct
- May apply to private conduct if state is significantly involved in the conduct of private party
No state action where: grant of a state license; grant of a monopoly to utility company; grant of state land or funds
Equal Protection issues
Applies when similarly situated people are being treated differently
Determine what level of scrutiny to apply to the discrimination:
1) strict scrutiny
2) intermediate scrutiny
3) Rational basis
Equal Protection: Strict Scrutiny requirement (just for state?)
applies when: 1) discrimination is based on suspect classification (RAN) Race; Alienage; and National origin
2) Fundamental right is implicated
Right to vote
Right to travel
Right to privacy
Test:
Government must show
1) Law is necessary to achieve compelling interest (i.e. no less restrictive means)
2)Compelling government interest (i.e. necessary or crucial for society)
Right to privacy:
CAMPERS
Contraception Abortion Marriage Procreation Education, private Relations, family Sexual relations
Equal Protection: Intermediate Scrutiny requirement
Applies when:
1) Discrimination is based on gender
2) Discrimination is based on child being born to unwed parents
Test:
GOVERNMENT MUST SHOW
1) Law is substantially related (i.e. close “fit” needed – not necessarily least restrictive means)
2) Important government interest
- Something less than compelling; something more than legitimate
- Gender discrimination – requires “exceedingly persuasive justification”
Equal Protection: Rational Basis Scrutiny requirement
Applies When:
1) Neither strict scrutiny nor intermediate scrutiny apply
Rational basis is applied if discrimination is based on:
- age
- poverty/wealth
- mental incapacity
- necessities for life
Test:
Plaintiff must show
1) law is not rationally related
2) to any legitimate government interest
Public Forum / Designated Public Forum Regulation
Regulation must:
1) Further important government interest
2) be narrowly tailored
3) Leave open alternative channels of communication
Nonpublic forums / Limited Public forum regulation
Regulation must:
1) be viewpoint neutral
2) be reasonably related to legitimate government purpose
FEDERal JuDiCial PowER generally
- Source: Article III
- Limit: Actual cases and controversies
- Doctrine: Justiciability, whether a lawsuit is capa- ble of judicial resolution as a case or controversy; depends on:
- What it requests (no advisory opinions),
- When it is brought (ripe and not moot), and
- Who brings it (someone with standing).
Federal Judicial Power: WHAT: NO ADVISORY OPINIONS
Rule: Federal courts may not render advisory opinions, which lack:
• An actual dispute between adverse parties, or
• Any legally binding effect on the parties.
Federal Judicial Power: WHEN: RIPENESS AND MOOTNESS
Ripeness (too early)
• Rule: Federal courts may only decide controver- sies that are ripe for judicial review.
• Application: Pre-enforcement review of laws (declaratory judgment actions) are generally not ripe, unless,
• Substantial hardship in absence of review (the more the better), and
• Issues and record are fit for review (the more legal than factual the better).
Mootness (too late)
• Rule: Federal courts may only decide live controversies, i.e., plaintiff suffers ongoing injury.
- Application: Live if:
• In suit for injunctive or declaratory relief, challenged law or conduct continues to injure.
• In suit for damages, plaintiff not made whole.
- Exceptions: Though injury has passed, not moot if:
• Injury is capable of repetition yet evades review
because of inherently limited duration.
• Defendant voluntarily ceases challenged activi- ty, but may restart at will, or
• In class actions, one plaintiff suffers ongoing injury.
Federal Judicial Power: STANDING
- Rule: Plaintiff must have standing to sue.
- The standing requirements are:
- Injury
- Causation
- Redressability
Injury
What Constitutes Injury
Almost any harm that is concrete (not hypothetical) and particularized (not general).
- Not: ideological objections or generalized grievances as citizen or taxpayer.
• Citizen may not sue to force government to obey laws. (Lujan, 1992)
• Taxpayer may not sue over how govern- ment spends tax revenues.
• Official proponents of ballot initiative may not defend enacted measure. (Perry, 2013)
• Exceptions:
• Taxpayer challenge to own tax liability.
• Congressional spending in violation of Establishment Clause.
• Not executive spending.
When Injury Must Occur
Injury must have occurred or will imminently occur.
• Injunctive or declaratory relief: must show likeli- hood of future harm.
Who Must Suffer Injury
Injury must be personally suffered by plaintiff rather than those not before court.
• No third-party standing.
Third-Party Standing Exceptions:
Close Relationship (e.g., parent on behalf of child) • Plaintiff and third party injured. • 3P unable or unlikely to sue. • Plaintiff can adequately represent 3P.
Organizations (on behalf of members)
• Organization and mem- bers have standing.
• Members’ injury related to purpose of organiza- tion.
• Members’ participation not required (e.g., not seeking individualized damages).
Free Speech Over-breadth (party whose speech can be censored sues on behalf of those whose speech cannot)
• Substantial overbreadth in terms of law’s legit- imate to illegitimate sweep.
• Not commercial speech.
-Causation and Redressability
Causation
Plaintiff must show that the injury is fairly traceable to the defendant.
Redressability
Plaintiff must show that a favorable court decision can remedy the harm (e.g., through money damages or an injunction).
Federal Judicial Power: SOVEREIGN IMMUNITY (ELEVENTH AMENDMENT/FEDERALISM)
Defendant Lawsuit
~Barred~
Defendant: states
Lawsuit: federal and state courts (and agencies)
~Exceptions~ Defendant: states Lawsuit: • waiver • plaintiff = states or feds • bankruptcy proceedings • clear abrogation by Congress under Fourteenth Amendment powers to prevent discrimination
~Not Barred~ Defendant: state officers Lawsuit: • injunctive relief • money damages from own pocket
Defendant: local governments
Lawsuit: any
Federal Judicial Power: SUPREME COURT REVIEW
-Final Judgment Rule
Supreme Court only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a three-judge district court.
-Independent and Adequate State Grounds (IASG)
Supreme Court will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground. IASG exists if the outcome would be the same regard- less of how the federal question is decided.
Federal Legislative Power Overview
Source
Article I, Section 8
Limit
Enumerated powers. Unlike states, Congress has no general police power to pass laws.
• Exceptions: federal land, Indian reservations, D.C.
Necessary and Proper Clause
• Not a basis of legislative power.
• Allows Congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution.
Federal Legislative Power: ENUMERATED POWERS
Taxing and Spending Powers
Rule
Congress may tax and spend to provide for the general welfare.
• Includes any public purpose not prohibited by Constitution, even if not within an enumerated power.
Spending Conditions
• “Strings” must relate to purpose of spending and not violate Constitution.
• Strings cannot be “unduly coercive.”
Commerce Power
Rule Congress may regulate commerce with: • Foreign nations • Indian tribes • Among states
Interstate Commerce
Broadest and most common basis for regulation. IC includes:
• Channels of IC: highways, waterways, tele- phone lines, Internet
• Instrumentalities of IC: planes, trains, automo- biles, persons in interstate commerce
• Substantial effect on IC in aggregate (even purely local activities)
• E.g., growing wheat in backyard for home consumption. (Wickard, 1942)
Limits
• Noneconomic activity in area traditionally regulated by states.
• Compelling participation in commerce (even if lack of participation substantially affects IC).
Federal Legislative Power: DELEGATION OF POWER
To Agencies
May broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power.
To President
No line-item veto.
• Rationale: violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to President to sign or veto).
To Congress
No legislative veto to void duly enacted laws without bicameralism and presentment. (Chadha, 1983)
Federal Executive Power Overview
Source: Article II
-Domestic Powers:
Enforcement
President has power (and duty) to execute laws.
Inherent (Implied) Presidential Powers
• Highest where authorized by Congress.
• Lowest where prohibited by Congress.
• Gray area where neither.
-Foreign Powers:
War
• Congress alone has power to declare war.
• President as Commander in Chief has broad discretion to deploy troops internationally to protect American lives and property (e.g., Vietnam).
• Challenges are likely non-justiciable as a political question.
- Treaties and Executive Agreements:
~President~
Treaties -> Negotiates
Executive Agreements -> Negotiates
~Senate~
Treaties -> 2/3 to approve
Executive Agreements - > n/a
~State law~
Treaties -> trump existing and future state laws
Executive Agreements -> trump existing and future state law
~Federal Law~
Treaties -> Trump existing (not future) federal law
Executive Agreements -> federal law always trumps
Federalism: 10th Amendment
Powers not granted to United States, or prohibited to the states, are reserved to the states or the people.
- General Police Powers: reserved to states.
- Local health, safety, and economic regulations receive rational-basis review unless they burden a fundamental right or involve a suspect or quasi-suspect classification.
- Anti-Commandeering Principle: Congress cannot compel states to enact or administer federal pro- grams.
Federalism: Supremacy and Preemption
Supremacy Clause
Supremacy Clause of Article VI makes federal law pre- empt inconsistent state and local laws.
• Federal law: Constitution, statutes, regulations, treaties, executive agreements.
Preemption
• Express: Congress expressly says so.
• Implied
• Conflict: (i) Impossible to follow both federal and state law; or (ii) state law impedes federal law.
• Field: Extensive federal regulation indicates congressional intent to “occupy the field.”
Federalism: DORMANT COMMERCE CLAUSE, PRIVILEGES & IMMUNITIES OF ARTICLE IV, PRIVILEGES OR IMMUNITIES OF 14A
Overview
Dormant Commerce Clause
(“Negative Commerce Clause”) prohibits state laws that discriminate against or unduly burden interstate commerce.
P&I Art. IV
(“The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States”) prohibits state laws that discriminate against out-of-state U.S. citizens re:
• important commercial activities (earning livelihood), or
• fundamental rights.
[SEE CHART STARTING PAGE 20 OF LECTURE]
Privileges or Immunities of 14A
• Fundamental right to interstate travel.
• Right to enter/leave a state.
• Equal treatment once become permanent resident of state.
• No fundamental right to international travel.
• Right to petition federal government.
Constitutional Framework for Protection of Individual Liberties: Application and Incorporation
- Except for 13A ban on slavery, Constitution applies only to government action, not private conduct.
- Bill of Rights originally applies only to federal government.
- Most protections have been incorporated against states (and their political subdivisions) through the Due Process Clause of the 14A.
- Not (Yet): 3A right not to have soldiers quartered in home, 5A right to grand jury indictment, 7A right to jury in civil cases.
Constitutional Framework for Protection of Individual Liberties: State Action
Easy Examples
• State law.
• State officials acting officially (even if unlawfully).
Other Examples
Public Function
• Rule: state action exists when private party per- forms function done by government
• traditionally and • exclusively.
State Involvement
• Rule: Significant state involvement in chal- lenged private conduct (e.g., assistance, en- couragement, supervision, entwinement, or approval) may count as state action.
Constitutional Framework for Protection of Individual Liberties: Levels of Scrutiny
Supreme Court often employs levels of scrutiny when laws are challenged as violations of Equal Protection, Substantive Due Process, and Free Speech.
[see chart pg. 26 of lecture]
Procedural Due Process: Provisions
- Fifth Amendment Due Process Clause applies to federal government.
- Fourteenth Amendment Due Process Clause ap- plies to states (and localities).
Procedural Due Process: General Rule
Individual has right to a fair process when government acts to deprive of life, liberty, or property.
It is a balancing test.
Procedural Due Process: WAS THERE A DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY?
Deprivation: intentional (or perhaps reckless) rather than negligent.
Liberty
• Physical freedom (e.g., from institutionalization, deportation).
• Constitutional rights (e.g., parental rights).
• Not: mere harm to reputation.
Property
• Real and personal, tangible and intangible.
• Government entitlement to which an individual has a reasonable expectation of continued receipt.
