Constitutional Flashcards
Original jurisdiction of SC?
Cases between states
and others which have concurrent jurisdiction
SC as appellate level?
3-judge Federal District Court panels
granting/denying injunctive relief
Standard for “justiciability”?
“case and controversy”
Mootness (claim resolved)
2 exceptions?
(1) Controversies capable of repetition but evading review (pregnancy)
(2) Class action (if claims of other class members still viable)
Standing -
3 components?
(1) Injury - direct or personal (not only economic)
(2) Causation between injury and conduct
(3) Redressability - decision capable of eliminating grievance
Standing to enforce government statute?
If P is within “zone of interests” Congress intended to protect
Standing of organization - 3 conditions
(1) Injury to member (i.e. who can sue independently) (not mere ideological objection)
(2) Injury related to org’s purpose
(3) Individual member participation not required
No “citizenship” standing - exception?
10th amendment violation - interference with power reserved for states
No “taxpayer” standing - exception?
Establishment clause (when spending power is involved)
When disposition rests on unsettled question of state law?
SC abstains
Pending state proceedings?
SC abstains.
EXC: proven harassment or bad faith prosecution
11th amendment restriction on claims against state government - what is not barred
- State waives
- Claims against local government
- Federal bankruptcy court
- Against state officers
- 14th amendment - if Congress intended to remove state immunity
No 3rd party standing - 2 exceptions?
(1) Close relationship: doctor-patient (OK)
(2) Injured party unlikely to assert own rights
(3) Organization (see 3 conditions)
Ripeness - considerations for exception?
(1) Hardship suffered w/o pre-enforcement review
2) Fitness of issues and records (enough for review even though no enforcement yet?
Examples of non-justiciable political Qs
“Guarantee clause” - republican form of government guaranteed
Foreign policy
Impeachment/removal processes
Gerrymandering
Conditions for review of state law decision
No “independent and adequate state law ground”.
(resolving federal matter won’t help outcome)
AND
Final judgment rule.
LEGISLATION
Congress’s “necessary and proper” power?
Cannot support federal law alone. Only with another federal question
Standard to uphold taxation
Reasonable relationship to revenue production OR Congress has power to regulate taxed activity
Spending power
Any public purpose
Commerce power - law must:
Regulate channels OR instrumentalities of OR activities that have substantial effect on
No Federal Police Power - exceptions?
Military bases
Indian reservations
Federal Lands
DC
Cong can regulate existing commercial activity, cannot:
Compel it! (Obamacare)
But can “induce” by putting strings on grants - if expressly stated
Delegation of legislative powers standard?
“Intelligible standards” set for delegate to follow (almost anything passes!)
Can Cong prohibit “harmful commercial activity”?
Yes.
Legislative veto of executive action?
No, without:
Bicameralism OR presentment to Pres
Appointment of inferior officers - to whom?
Anyone, but not Cong.
Removal of officers - by whom and how?
High level - by President at will
By Congress through impeachment
Lower level - by President subject to Congressional limitations
Treaty / Executive Agreement - Senate approval?
Only for treaty
Treaty / Executive Agreement - conflict with state law
Both supersede state law
Treaty / Executive Agreement - conflict with fed law
Treaty - whichever was adopted last (is same as Fed Law)
Exec Agreement - loses to fed law
Impeachment of officer
Majority of House to invoke charges, 2/3 of Senate to convict and remove
Suit by state against US?
Only with US approval (including suit against officer for payout from public treasury).
Taxation or regulation of state activity?
May be limited by 10th (except civil rights and econ. inducements)
MBE: Never stricken by 10th!!
Interstate Privileges and Immunities clause
Prevents discrimination by state against non-resident
EXC: non-fundamental rights, substantial justification (if no less restrictive means
Dormant commerce clause - prohibits:
Discrimination against interstate commerce
Unduly burden interstate commerce
Dormant commerce clause - 2 exceptions
(1) Important state interest – noneconomic! No alternatives!
(2) State is “market participant” - hiring, subsidizing?.
Court more liberal with traditional government function.
Exception to burdening interstate commerce:
State’s interest in regulation outweighs burden.
DISTINGUISH:
Commerce clause (wider but weaker)
Interstate Privs and Immunities clause (narrow but stronger)
Different exceptions:
Commerce: important non-economic state interest / market participant / traditional
Privs: Substantial justification
Commerce always applies, Privs only applies for discrimination against outastater
Alien/corporation cannot be plaintiff in Privs (yes in Commerce)
Market participation exception only in Commerce
Nondiscriminatory taxes affecting state commerce OK if:
(1) Substantial nexus to state
(2) Fair apportionment
(3) Fair relationship to services/benefits given by state
MBE question on commerce or taxation, ask:
(1) Federal statute supersedes/preempts/authorizes?
(2) If not, look at “undue burden” or “discrimination”
Ad valorem taxation of commerce instrumentalities?
OK if it has a “taxable situs” in state
Constitution applies only to state action.
EXC - when does it apply to private action?
(1) Private entity performing task traditionally done exclusively by government;
(2) Entanglement: When gov affirmatively authorized, encourages or facilitates
Examples of private action subject to Const (13th, commerce):
** State must be significantly involved **
Court won’t enforce racist covenant
Gov lease to racist restaurant
Free books to racist private school
Private entity regulates interscholastic activity in state
Examples of private action NOT subject to Const:
Private school w gov funding fires teacher because of speech
NCAA suspends coach as state uni
Private club with liquor license discriminates
Granting utility monopoly
Granting name ot corporation
How does Bill of Rights apply to state and local gov?
Incorporation in due process clause of XIV
Bill of Rights - provisions not applying to states:
Quarter soldiers
5th Am right to grand jury indictment in crim court
7th Am right to jury trial in civil cases
8th Am right against excessive fines
Contract clause - how applies?
To states.
Fed gov - through Due Process clause
Ex post facto clause (criminal only!!)
(1) Makes an act criminal when “innocent when done”
(2) greater punushment
(3) reduces evidence needed
Due process - when is life, liberty, property deprived?
(1) Loss of significant freedom provided by Const or statute
(2) Person has “entitlement” (reasonable expectation of continued receipt of benefit) and it is not fulfilled
Due process liability in emergency?
Only if conduct “shocks the conscience”
3-part balancing test for due process procedure:
(1) Importance of interest to individual
(2) Ability of additional procedures to safeguard interest
(3) Gov interest in fiscal/admin efficiency
[Eg. Hearing+notice / post hearing / jury instructions / ability to challenge detention / habeas corpus]
Takings clause (gov may take private property for public use if it pays just compensation) - test used instead of scrutiny level:
(1) Taking? (even gov regulation qualifies, if it leaves no reasonable economically viable use)
(2) Public use? (gov acts out of reasonable belief that taking will benefit public)
(3) Just compensation paid? (loss to owner in reasonable market terms)
SCRUTINY LEVEL: Rational basis
Rationally related to legit government purpose.
Challenger has burden of proof.
[Laws not affecting fundamental rights or quasi-suspect classifications]
[Laws affecting non-suspect classifications - age, disability, poverty]
SCRUTINY LEVEL: Intermediate
Substantially related to important government purpose.
Gov usually has burden of proof
[Quasi-suspect classifications - gender and legitimacy]
SCRUTINY LEVEL: Strict
Necessary to achieve compelling gov purpose.
Lease restrictive alternative analysis.
Gov has burden of proof
[Fundamental rights, suspect classifications - race, origin, alienage]
Contract clause - scrutiny levels?
Private contract: INTERMEDIARY
Public contract: “stricter”
Privacy - level?
Strict
Durational residency (before getting benefit) - level?
Strict
For voting - max 50d.
For welfare payments - no limits!
Divorce - 1y OK
Due process - constitutional source
5th - Fed.
14th - State and local
Irrebutable presumption - person cannot demonstrate qualification for a right - ?
Not invariably invalid.
Consider whether affects fundamental right or suspect / quasi-suspect, then apply correct level.
Gender classification
Intermediate.
Allowed with exceedingly pervasive justification.
No role stereotypes (can’t limit alimony to women)
Remedy past discrimination - allowed
Facially neutral - how to prove discrimination?
Discriminatory intent (motive) and impact (application).
Alienage discrimination - levels?
State - strict.
Voting etc - rational
Congress - rational
Undocumented alien children - probably intermediate
Non-marital children discrimination - level?
Intermdiate.
Default level for other types of discrimination
rational.
What clause does intermediate apply to?
Only equal protection for quasi-suspect class. Due process is either rational or strict.
Affirmative action in public education
OK as one factor. Each applicant must be considered as an individual.
Valid gender discrimination examples
Statutory rape
All-male draft
Requiring fathers to prove parentage of non-marital children abroad..
[substantially related to important government interest under intermediate scrutiny]
Suspect classifications:
Race, national origin, alienage (Strict)
Quasi-suspect classifications:
gender and legitimacy (Intermediate)
everything else - rational
Fundamental rights:
Interstate travel, privacy, voting, 1st amendment
everything else - rational
Privacy - requirement to notify spouse about abortion?
Undue burden. Prohibited.
1st Am. Scrutiny?
Content based (subject mater / viewpoint): Strict scrutiny Content-neutral: Intermediate Prior restraint - Strict. No gag orders. Violator of court order cannot challenge it.
Symbolic speech - when may gov regulate?
Important interest unrelated to suppression of message AND
impact on communication no greater than necessary to achieve goal.
(Eg. flag burning, cross burning, campaign contribution limits OK,
draft card burning, nude dancing, campaign expenditure limits NOT OK)
Anonymous speech?
Protected.
But state may dislose ballot petition signatories to promote transparency.
Gov speech challenged as violating?
Upheld under rational test
Unprotected / less protected speech?
Incitement of illegal activity Obscenity, sexually oriented [appeals to prurient interest in sex AND patently offensive AND lacks literary, artistic, scientific meaning] Commercial speech (deceptive ads) Defamation
Falsity makes speech unprotected?
No.
Restriction on content of speech - standard?
Necessary to achieve compelling gov purpose. (Strict)
Regulation of commercial speech?
Must be narrowly tailored.
Does not need to be least restrictive alternative.
Regulation of speech in public
Content-neutral
Narrowly tailored to serve important gov interest.
Leaves open alternative channels
Reasonableness of free-speech regulation
Overbroad - invalid.
Vagueness - void.
No unfettered discretion for officials.
EXAM: Q if law is constitutional - examine these.
Cannot compel funding of speech. Exception?
University activity fees paid by students.
Defamation - public official / candidate
Prove falsity with clear and convincing evidence
Actual malice
(knew false, or acted with reckless disregard for the truth)
Defamation - public figure
Prove falsity + malice
Defamation - private figure + public concern
Prove falsity + negligence
For punitive damages - malice.
Defamation - private figure
Punitive damages without proving malice.
Sidewalk outside post office
Non-public! (Restriction must be viewpoint-neutral)
Restriction on freedom of association. Requirement to punish for membership:
Actively affiliated.
Knowledge of group’s illegal activities.
* Specific intent of furthering illegal activities/objectives.
When does freedom of association protect discriminatiom?
Intimate association
Discrimination integral to expressive activities of group
School sponsorship of extracurricular clubs (right of association) - standard?
Not “compelling interest” (strict)!
Instead - limited public forum speech –> OK if viewpoint neitral and reasonably related to legit gov interest (rational)
Freedom of religion - compelling interest - ever used by SC?
No.
Freedom of religion - challenge neutral law of general applicability?
No. (Peyote)
Unconstitutional only if specifically designed to prohibit religious practice.
Establishment clause - 3-part test:
(1) Secular purpose for law
(2) Primary effect neither advances nor inhibits religion
(3) No excessive gov entanglement with religion
[Eg. funding of parochial school activities for non-religious purposes]
