Constitutional Law Flashcards
Master constitutional law for the California Bar
Case and controversies requirement
Core of Art III is no advisory opinions! Standing Ripeness Mootness (Political question doctrine)
Case and controversies requirement - standing
Injury
- Personal; no generalized grievances
- For injunction, likelihood of future harm
Causation
- D caused injury
Redressability
- Favorable court decision likely to remedy injury
Case and controversies requirement - standing - Congress’ power to create
Congress cannot grant standing to someone w/o injury, but statute can create new interests, violation of which may be injury. P must be in “zone of interests.”
Case and controversies requirement - standing - third-party
P cannot assert claims of others to gain standing, but if P meets standing requirements, can also assert rights of others if:
- Close relationship between P injured 3P; OR
- Injured 3P unlikely to be able to assert own rights
Case and controversies requirement - standing - organizational
Organization may sue for its members, if:
- Members would have standing to sue;
- Interests are germane to organization’s purpose;
- Neither claim nor relief requires participation of individual members
Case and controversies requirement - standing - taxpayer
No citizenship standing. But taxpayers have standing to challenge under Establishment Clause government expenditures pursuant to federal statutes
- Standing only exists for expenditures pursuant to a federal statute (or state/local statute)
- No standing for distributions of property, spending from general executive funds, or tax credits.
Case and controversies requirement - ripeness
Generally, no pre-enforcement review of a statute or regulation unless threat of immediate harm.
Two-part inquiry:
- Hardship that will be suffered without pre-enforcement review
- Fitness of issues and record for judicial review
Case and controversies requirement - mootness and exceptions
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.
Exceptions:
- Wrong capable of repetition yet evading review
- Voluntary cessation by D
- Class action suits in which rep’s claim is moot but class members’ claims are not
Case and controversies requirement - political question doctrine
Federal courts will not adjudicate:
- The “republican form of government” clause
- Challenges to President’s conduct of foreign policy
- Challenges to impeachment and removal process
- Challenges to partisan gerrymandering.
Supreme Court - original jurisdiction
Cases affecting ambassadors, public ministers, consuls, those in which state is party.
Congress has given concurrent jurisdiction to all except those btwn states.
Supreme Court - appellate and certiorari jurisdiction
Appellate: decisions by three-judge panels that grant/deny injunctive relief
Cert: all other cases; need four votes to grant
Supreme Court - certiorari jurisdiction - adequate and independent grounds
If a state court decision rests on two grounds, one state law and one federal law, and if the Supreme Court’s reversal of the federal law ground will not change the result in the case, Court cannot hear it.
Limits on suits against states - Eleventh Amendment and sovereign immunity
Eleventh Amendment bars suits against states in federal court
Sovereign immunity bars suits against states in state courts or federal agencies
Limits on suits against states - Eleventh Amendment and sovereign immunity - exceptions
- Waiver/consent
- Pursuant to federal law adopted under Sec. 5 of 14th Amend, as long as intent to remove immunity clear
- Federal government and states may sue state governments
- Bankruptcy proceedings
Limits on suits against states - Eleventh Amendment and sovereign immunity - suits against state officials
State officers may be sued:
- For injunctive relief;
- For money damages to be paid out of their own pockets (suit not allowed if state treasury will be paying retroactive damages)
Abstention
Federal court will abstain from hearing:
- Case involving unsettled question of state law
- Case challenging pending state court proceedings
Congressional power - police power
No general, federal police power. Federal government has police power only concerning: military bases, Indian reservations, federal lands and territories, and D.C. (MILD).
Congressional power - Necessary and Proper Clause
Necessary and Proper Clause alone does not support action, but Congress may act to support any power granted to any branch of federal government.
Congressional power - Taxing and Spending Clauses
Congress may create any tax to raise revenue and any spending program to expend it that Congress believes will serve general welfare.
Neither Congress nor states may tax foreign exports.
Congressional power - Commerce Clause
Congress may regulate:
- Channels of interstate commerce
- Highways, waterways, Internet, etc. - Instrumentalities of interstate commerce and persons or things in interstate commerce
- Trucks, planes, telephones, Internet.
- Also: electricity, radio waves, cattle, people, etc. that cross state lines. - Activities that have a substantial effect on interstate commerce.
- In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.
Congressional Power - 10th Amendment Limit
Powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
Congress cannot compel state regulatory or legislative action
Congress may prohibit harmful commercial activity by state governments
Congressional Power - Sec. 5 of 14th Amendment
Congress may not create new rights or expand the scope of rights.
Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations.
Executive power - order of precedence of constitution, federal statutes, treaties, executive agreements, and state statutes
Order of precedence:
- Constitution
- Last in time of federal statute or treaty
- Executive agreement
- State statute
Executive power - pardon power
President may pardon for all federal offenses but not impeachment, civil contempt, or state offenses.
Executive power - immunity
President has absolute immunity to civil suits for money damages for any actions while in office. However, the President does not have immunity for actions that occurred prior to taking office.
Executive power - executive privilege
President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests.
- United States v. Nixon: need for evidence in criminal trial outweighs executive privilege.
Preemption
- Express preemption
- If federal law specifies it’s exclusive, express preemption. - Implied preemption
- If federal and state laws are mutually exclusive, federal law preempts state law
- If state law impedes the achievement of a federal objective, federal law preempts state law
- If Congress evidences a clear intent to preempt state law, federal law preempts state law
- Presumption against preemption in fields traditionally within power of state (health, safety, welfare)
Full faith and credit
Judgment entitled to FFC in sister state if:
- The court that rendered the judgment had jurisdiction over the parties and the subject matter. 2. The judgment was on the merits.
- The judgment is final.
State taxation of interstate commerce
- States may not use their tax systems to help in-state businesses
- A state may only tax activities if there is a substantial nexus to the state
- State taxation of interstate businesses must be fairly apportioned
Dormant commerce clause and Art IV Privileges & Immunities Clause - analysis if law DOES NOT discriminate against out-of-staters
Art IV Privileges & Immunities Clause does not apply
If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits
Dormant commerce clause and Art IV Privileges & Immunities Clause - analysis if law DOES discriminate against out-of-staters
If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose
If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the Art IV Privileges & Immunities Clause unless it is necessary to achieve an important government purpose
Means by which Congress can apply constitutional norms to private conduct
The Thirteenth Amendment can be used to prohibit private race discrimination
Commerce Clause can be used to apply constitutional norms to private conduct
Sec 5 of the 14th Amend cannot be used to regulate private behavior; only state and local governments
State action requirement - exceptions
Public functions (e.g., running an election or a town)
Entanglement
- There is state action when:
- Courts are asked to enforce racially restrictive covenants
- The government leases premises to a restaurant that racially discriminates.
- A state provides books to schools that racially discriminate.
- There is state action when a private entity regulates interscholastic sports within a state
- There is no state action when:
- A private school that is over 99% funded by the government fires a teacher because of her speech.
- The NCAA orders the suspension of a basketball coach at a state university.
- A private club with a liquor license from the state racially discriminates.
Provisions of the Bill of Rights - which incorporated
All except:
Third Amendment right to not have a soldier quartered in a person’s home.
Fifth Amendment right to grand jury indictment in criminal cases.
Seventh Amendment right to jury trial in civil cases.
Eighth Amendment right against excessive fines (but other provisions of amendment are incorporated)
Levels of scrutiny
Rational basis test
A law will be upheld if it is rationally related to a legitimate government purpose.
Challenger has BOP: either no conceivable legitimate purpose or law is not rationally related to it.
Intermediate scrutiny
A law will be upheld if it is substantially related to an important government purpose.
Gender discrimination allowed only if “exceedingly persuasive” justification.
“Substantially related” is synonymous with “narrowly tailored”
Gov has BOP: must convince court of substantial relationship and importance of purpose. Court considers only government’s actual purpose, not any it can think of.
Strict scrutiny
A law will be upheld if it is necessary to achieve a compelling government purpose.
Means must be necessary; court uses least restrictive alternative analysis. Court also uses “narrowly tailored” here, but action must be necessary and least restrictive.
Gov has BOP; Court looks only at actual purpose.
Art IV Privileges & Immunities Clause - exceptions
Does not apply to corporations and aliens
Dormant commerce clause - exceptions
Congressional approval
Market participant
Procedural due process - test
Balance:
- The importance of the interest to the individual
- The ability of additional procedures to increase the accuracy of the fact-finding
- The government’s interests in fiscal and administrative efficiency
Takings Clause - test
Is there a taking?
- Possessory (does not matter how small)
- Regulatory (must be no viable use on non-temporary basis)
Is it for public use?
- Construed broadly; must be rationally related to a legitimate public purpose
It’s just compensation paid?
- Compensation based on loss to owner, not gain to taker
Contracts Clause - test
Private K:
- Does the legislation substantially impair a party’s rights under an existing contract?
- If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
Public K:
Same test but scrutiny is strict rather than intermediate
Applies only to state or local interference with existing contracts
Fundamental rights - those subject to strict scrutiny
Right to: Marry Procreate Keep custody of children Keep family together Control raising of children Purchase and use contraceptives Travel Vote Free speech Free association Free exercise
Fundamental rights - abortion
Prior to viability, states may not prohibit abortion, but may regulate as long as no “undue burden” on ability to obtain abortion.
- Spousal consent and notification laws unconstitutional
- Parental notice and consent laws for unmarried minor constitutional if override exists.
- Government has no duty to subsidize abortions or provide abortions in public hospitals
After viability, states may prohibit abortions unless necessary to protect the woman’s life or health.
Fundamental rights - those for which SCOTUS has not specified standard of review
Engaging in private homosexual activity
Refusing medical treatment
Possessing firearms
Equal protection - proving discriminatory classification
Law is
- Discriminatory on its face
- Applied in a discriminatory manner
- Motivated by a discriminatory purpose
Equal protection - exceptions to strict scrutiny for alienage classifications
Rational basis used for:
- Congressional discrimination against aliens
- State discrimination involving self-government/democratic process (voting, serving on a jury, being a police officer, a teacher, or probation officer.)
Intermediate scrutiny used for:
- Discrimination against undocumented alien children
Free speech - general approach
Content-based restrictions on speech generally must meet strict scrutiny
- subject matter restrictions
- viewpoint restrictions
Content-neutral laws burdening speech generally need only meet intermediate scrutiny
Free speech - vagueness, overbreadth, discretion
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
A law is unconstitutional if it gives officials unbridled discretion in restricting speech; there must be defined standards for its application
Free speech - symbolic speech
The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose
Free speech - definition and regulation of public forums and designated public forums
Public forums: government properties that government is constitutionally required to make available for speech, e.g., parks and sidewalks (BUT: sidewalks on post office property are non-public forums!)
Designated public forums: government properties that the government could close to speech, but chooses to open to speech
Test for subject/viewpoint regulations: strict scrutiny
Test for TPM regulations:
- Be content neutral
- Be narrowly tailored to serve important government interest (no need to be least restrictive)
- Leave open alternative channels of communication
Free speech - definition and regulation of limited public forums and non-public forums
Limited public forums: government properties that are limited to certain groups or dedicated to the discussion of only some subjects
Non-public forums: government properties that the government constitutionally can and does close to speech
Test for viewpoint regulations: strict scrutiny
Test for other regulations: government can regulate speech so long as regulation is reasonable and viewpoint neutral.
Free speech - prior restraint
Prior restraints are rarely allowed; government must show some special societal harm.
- Standards must be narrowly drawn, reasonable, and definite
- Injunction must promptly be sought
- Must be prompt and final determination of restraint’s validity
Free speech - unprotected speech
The First Amendment does not protect:
- Speech inciting imminent lawless action
- Fighting words
- But note fighting words statutes are almost certainly vague/overbroad - Obscenity
Free speech - unprotected speech - obscenity - test
Speech is obscene if it:
- Appeals to the prurient interest
- A “shameful or morbid interest in sex.” - Is patently offensive
- Under a community or local standard.
- EC: Under the law prohibiting obscenity - Lack serious redeeming artistic, literary, political or scientific value when taken as a whole
- Under a national standard
Free speech - unprotected speech - obscenity - regulation
The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
Child pornography may be completely banned, even if not obscene
The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography
The government may seize the assets of businesses convicted of violating obscenity laws
Free speech - profane and indecent speech
Profane and indecent speech is generally protected by the First Amendment
Exceptions: OTA broadcast media; schools
Free speech - commercial speech
Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment
Other commercial speech subject to intermediate scrutiny:
- Serves a substantial government interest
- Directly advances that interest
- Is narrowly tailored to serve that interest
Free speech - election law
Statute limiting contributions is subject to intermediate scrutiny. May limit contributions to candidates but not ballot referenda.
Statute limiting expenditures is unconstitutional.
Freedom of association
- Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person:
- actively affiliated with the group;
- knowing of its illegal activities; and
- with the specific intent of furthering those illegal activities. - Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny
- Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity
Free Exercise Clause
Regulation explicitly on the basis of religious beliefs is subject to strict scrutiny.
Neutral laws of general applicability are subject to rational basis review
- Exception: cannot deny benefits to individuals who quit their jobs for religious reasons
Establishment Clause
Sect preference or discrimination against religious speech: strict scrutiny
No sect preference: Lemon test
1. Secular purpose
2. Primary effect neither advances nor inhibits religion
3. Does not produce excessive government entanglement with religion
