Constitutional Law Flashcards
Justiciability
Justiciability, whether a lawsuit is capable of federal judicial resolution as a case or controversy
Advisory Opinions
Rule: Federal courts may not render advisory opinions that lack (1) an actual dispute between adverse parties or (2) any legally binding effect on the party
Ripeness (Too Early)
Rule: Federal courts may only decide controversies that are ripe for judicial review
(1) the fitness of the issues for judicial decision
(2) the hardship to the parties of withholding court consideration
Exceptions: - substantial hardship in absence of review - issues and record are fit for review (more legal than factual issues = better)
Mootness (Too Late)
Rule: Federal courts may only decide live controversies, i.e. plaintiff suffers ongoing injury Look for: Plaintiff is still suffering or if it has passed Exceptions: - injury is capable of repition but inherently limited duration (pregnancy)- D voluntarily ceases challenged activity, but may restart at will - in class action, P suffers ongoing injury
Standing
Rule: Plaintiff’s must have standing to sue, and the requirements are (1) injury (2) causation, and (3) redressability
Injury
Rule: Injury as almost any harm constitutes as injury, as long as it is concrete and particularized (ex. physical, economic, environmental, loss of constitutional or statutory rights)
Exceptions:
- Taxpayer challenge to own tax liability
- Congressional spending in violation of the Establishment Clause (but not executive spending)
When Must “Injury” Occur
Rule: Injury must have occurred or will imminently occur Injunctive or declaratory relief: must show likelihood of future harm
Who Must Suffer Injury
Rule: Injury must be personally suffered by P rather than those not before court. No third-party standing
Third-Party Standing Exceptions
(1) Close Relationship
(2) Organizations (on behalf of members, injury must be related to purpose of organization)
(3) Free Speech Over-breadth (party whose speech can be censored sues on behalf of those whose speech cannot) (non-commercial only)
Causation
Rule: Plaintiff must show that the injury is fairly traceable to the Defendant
Redressability
Rule: Plaintiff must show that a favorable court decision can remedy the harm
Sovereign Immunity (11th Amendment/ Federalism) - Generally
Rule: Individuals are generally barred from suing states.
Exceptions: (1)You can sue a state if a state has waived sovereign immunity (2) states can sue states (3) bankruptcy proceedings (4) clear abrogation by Congress under 14th amendment (5) can sue state officers for injunctive relief and money damages (6) can sue any local government
Final Judgment Rule - Supreme Court Review
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)
Rule: Supreme Court will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state grounds
- Exists if the outcome would be the same regardless of how the federal question is decided
- No IASG if just a sham to bar claims for discriminator
Federal Legislative Power (Congressional Power)
Rule: Article I of Constitution, Limit is only enumerated power. Unlike states, Congress has no general police power to pass laws
Exceptions: Federal land, Indian reservations, D.C.
Necessary and Proper Clause
Rule: N & P Clause allows Congress to choose any rational means to carry out an enumerated power, as long as means is not prohibited by Constitution, and it is not a basis of legislative power.
Taxing and Spending Powers - Enumerated Powers
Rule: Congress may tax and spend to provide for the general welfare, including any public purpose not prohibited by Constitution, even if not within an enumerated power
Conditions on Spending - Congressional Spending Power
Rule: Conditions (“Strings”) must relate to purpose of spending and do not violate the Constitution. Additionally, strings cannot be “unduly coercive”
Commerce Power**
Rule: Congress may regulate commerce with (1) foreign nations, (2) Indian tribes, and (3) among states
Interstate Commerce
Rule: Interstate Commerce includes:
(1) Channels of IC: highways, waterways, telephone lines, Internet
(2) Instrumentalities of IC: planes, trains, automobiles, persons in interstate commerce
(3) Substantial effect on IC in aggregate (even if purely local activities)
Limits of Power on Interstate Commerce
Rule: Interstate commerce power may not interfere with:
(1) noneconomic activity in an area traditionally regulated by states and
(2) they cannot compel participation in commerce (even if lack of participation substantially affects IC)
Enforcement Power (Commerce Power)
Rule: Commerce power allows Congress to indirectly ban private discrimination.
Congress may directly ban state discrimination under its 14th Amendment power to enforce the guarantee of equal protection
Congressional Delegation of Power - Agencies
Rule: Congress may broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power, i.e. Authority to EPA
Congressional Delegation of Power - President
Rule: Congress may not allow line-item veto because it violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to President to sign or veto)
Congressional Delegation of Power - Congress
Rule: Congress may not allow legislative veto to void duly enacted laws without bicameralism and presentment
Source of Federal Executive Power
Article II
Federal Executive Power - Domestic Powers (Enforcement)
Rule: President has power (and duty) to execute laws
Federal Executive Power - Domestic Powers (Inherent (Implied) Presidential Powers)
Rule:
- Highest where authorized by Congress
- Lowest where prohibited by Congress
- Gray area where neither
Federal Executive Power - Foreign Powers (War)
Rule: 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
- Challenges are likely non-justiciable as a political question
Federal Executive Power - Foreign Powers (Treaties)
Rule: President negotiates, and treaties are as good as, but no better than federal statutes (but not future) and trumps existing and future state law
- 2/3 Senate vote to approve
Federal Executive Power - Foreign Powers (Executive Agreements)
Rule: President negotiates, and executive agreements will never trump federal statutes, but trumps existing and future state law
- No senate vote required to approve
Federalism - Tenth Amendment
Rule: Powers not granted to U.S. gov, or prohibited to the states, are reserved to the states or the people.
- General Police Powers: reserved to states, i.e. 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 programs
Supremacy Clause
Rule: Supremacy Clause of Article VI makes federal law preempt inconsistent state and local laws. Federal law is “the supreme Law of the Land”
- Federal law = Constitution, statutes, regulations, treaties, executive agreements
Preemption
Rule: Preemption is the idea that federal law supersedes conflicting state laws.
- Express: Congress expressly says so.
- Implied:
(1) Conflict: (i) Impossible to follow both federal and state law; or (ii) state law impedes federal law
(2) Field: Extensive federal regulation indicates congressional intent to “occupy the field.”
Dormant Commerce Clause
General Rule: (“Negative Commerce Clause”) prohibits state laws that discriminate against or unduly burden interstate commerce
Privileges and Immunities Clause of Article IV
<p>Rule: (“The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the severalStates”) prohibits state laws that discriminate againstout-of-state U.S. citizens re:• important commercial activities (earning livelihood), or• fundamental rights.Note: Not applied to aliens or corporations</p>
Dormant Commerce Clause Test
(1) Discriminatory laws (favoring in-state over out-of-state commerce) are invalid unless:
• necessary to achieve important gov purpose (unrelated to economic protectionism), and
• no less discriminatory alternatives
(2) Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are valid unless burden on IC clearly outweighs non-protectionist benefits.
Exceptions:
• congressional approval
• states act as a market participant (buyer or seller)
Privileges and Immunities Test
Discriminatory laws (favoring in-state over out-of-state citizens) are invalid unless: • necessary to achieve important gov purpose, and • no less discriminatory alternatives
No exceptions
Privileges or Immunities of 14th Amendment
- 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
Application and Incorporation of Individual Liberties
- 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 theDue Process Clause of the 14th Amendment
• Not (Yet): 3rdA right not to have soldiers quartered in home, 5thA right to grand jury indictment, 7thA right to jury in civil cases
State Action Doctrine (local and government) - Individual Liberties
Examples: state law and state officials acting officially (even if unlawfully)Public Function
Rule: state action exists when private party performs function done by government
traditionally and exclusively
State Action - Public Function Rule
Rule: State action exists when private party performs function done by government
traditionally and exclusively
State Action - State Involvement Rule
Rule: Significant state involvement in challenged private conduct (e.g., assistance, encouragement, supervision, entwinement, or approval) may count as state action
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
Individual Liberties - Rational Basis Scrutiny
Ends: rational or legitimate interest
Means: rationally or reasonably related
Burden: challenger
Presumption: valid
Individual Liberties - Intermediate Scrutiny
Ends: important or significant state interest
Means: narrowly tailored (substantially related or close fit, not least restrictive)
Burden: state
Presumption: none
Individual Liberties - Strict Scrutiny
Ends: compelling state interest
Means: narrowly tailored(least restrictive)
Burden: state
Presumption: invalid
Procedural Due Process Provisions
Rule: Individual has right to a fair process when government acts to deprive of life, liberty, or property
Provisions:
- Fifth Amendment Due Process Clause applies to federal government
- Fourteenth Amendment Due Process Clause applies to states (and localities)
Procedural Due Process - Deprivation
Definition: intentional (or perhaps reckless) rather than negligent
Procedural Due Process - Liberty
Applies to:
• Physical freedom (e.g., from institutionalization, deportation)
• Constitutional rights (e.g., parental rights)
Not: mere harm to reputation.
Procedural Due Process - Property
Applies to:
• Real and personal, tangible and intangible
• Government entitlement to which an individual has a reasonable expectation of continued receipt
Procedural Due Process - Requirements if Deprived
- Notice: Reasonably calculated to inform person of deprivation
- Opportunity to be heard: Pre-deprivation hearing generally preferred unless impracticable
• Balancing Test:(Mathews, 1976) determines nature and extent of procedures, considering (1) Importance of interest to individual, (2) Risk of error through procedures used (3) Accuracy gain from additional procedures, and (4) Burden on government (e.g., inefficiency and costs) - Neutral decision-maker - No actual or serious risk of bias
Substantive Due Process (Fundamental Rights)
Enumerated rights are specified in the Constitution or Amendments (e.g., “the freedom of speech”)
Unenumerated rights are substantive component of liberty protected by
• 14A DP Clause against states and localities
• 5A DP Clause against federal government
Fundamental Right Requirements
- Deeply rooted in this Nation’s history and tradition
- Implicit in the concept of ordered liberty, or
- Identified as fundamental by reasoned judgment and new insight
Note: Most rights in Bill of Rights have been deemed fundamental
Is it Due Process or Equal Protection?
Denying EVERYONE a fundamental right is Substantive Due Process only
Denying SOME a fundamental right is Substantive Due Process and Equal Protection
Levels of Scrutiny - Substantive Due Process
Strict Scrutiny = Fundamental Rights
Rational Basis = Non-fundamental Rights
Substantive Due Process - Fundamental Rights (Strict Scrutiny)
- Marriage
- Procreation
- Contraception
- Custody, care, and upbringing of children
- Living with extended family
- Interstate travel
- Vote
Undue Burden:
• Abortion
Substantive Due Process - Non-Fundamental Rights (Rational Basis Scrutiny)
- Economic rights
- Education
- Physician-assisted suicide
Unspecified:
• private consensual adult sexual intimacy
• refuse medical treatment
• bear arms
Unenumerated Fundamental Rights - Marriage (Divorce)
Rule: Substantial interference with right to marry is necessary to trigger strict scrutiny
• Interracial marriage: bans on interracial marriage trigger and fail strict scrutiny under due
process and equal protection analysis. (Loving, 1967)
• Same-sex marriage: fundamental right to marry extends to same-sex couples, denial of which violates due process and equal protection (Obergefell, 2015)
Note: Reasonable requirements to protect rather than hinder right to marry are upheld under rational basis.
Unenumerated Fundamental Rights - Interstate Travel (14A Privileges or Immunities)
Rule: (1) Right to enter and leave a state, (20 Equal treatment once become resident of state, and (3) No fundamental right to international travel
