Constitutional Law Flashcards
PRIVATE ENTITY
Any Action
Constitution does not apply to private actors unless: Private Actor
- significantly (excessive) entangled with government or
- performing a traditional gov’t/public function
CONGRESS
taxing and spending
General Welfare Clause
CONGRESS
prohibiting public and private discrimination against black people
Sec 2 (Enforcement clause) of 13th amendment
CONGRESS
prohibiting states from denying equal protection or due process
Sec. 5 (Enforcement clause) of the 14th Amendment
CONGRESS
regulating
1. channels of interstate commerce
2. instrumentalities (goods/people) traveling through interstate commerce
3. commercial activities that substantially impact interstate commerce in the aggregate
Article I
section 8
Commerce Clause
CONGRESS regulating 1. District Columbia 2. military bases 3. Native American lands 4. fed property and territories
Congress’s Police Powers
CONGRESS
Forcing states to pass laws/engage in regulatory conduct on congress’ behalf
10th Amendment
Congress cannot compel state regulatory action (Congress cannot commandeer state legislature)
*CONGRESS may incentivize states to pass laws, but not mandate that they do so
CONGRESS
Regulating the appellate jurisdiction of the US Supreme Court
Art III- allowed
CONGRESS
Regulating the jurisdiction of the lower federal courts
Art III- allowed
CONGRESS
regulating the original jurisdiction of the US Supreme Court
Art III- NOT allowed
EXECUTIVE
doing something in the best interest in the US
Power over domestic affairs- Valid so long as does not violate a Congressional act or the Constitution
EXECUTIVE
doing something in the best interest of the US
Power over foreign affairs- Valid so long as does not violate the Constitution
FEDERAL JUDICIARY
hearing a case
Art III Standing (part of Art III Case/ Controversy requirement)
1. injury 2. causation 3. redressability
Power to hear cases- must be a live case or controversy and involve a federal question or diversity jurisdiction
Ripeness= a case is only ripe if the government action has already been taken Mootness= a case is moot if the remedy provided by the court will not redress the injury
FEDERAL JURISDICTION
Hearing a case against a state by a private citizen
11th Amendment (Sovereign Immunity)
Exception:
- Congress using its powers under Sec 5 Enforcement Clause of the 14th Amendment
- Seeking injunctive relief against state officials
- Suing state officials in their official capacity for $$$
STATE
Any action
10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
STATE
action that violates congressional act, a treaty or an executive order
Supremacy Clause (supreme law of the land)
STATE
imposing burden on interstate commerce
Dormant Commerce Clause
Facially Discriminatory law = strict scrutiny review
Facially neutral law =burdens cannot exceed benefits
Exceptions
- market participant
- congressional approval
STATE
state discriminates against out of state citizens in their ability to EARN A LIVING or EXERCISE A FUNDAMENTAL RIGHT
Privileges AND immunities clause of Art IV
STATE
state imposes a durational residency requirement
Privileges or immunities clause of the 14th amendment
STATE
impairment of obligations under an existing contract
Contracts Clause
- private contracts= intermediate scrutiny
= public contracts= strict scrutiny
State or Congress
Person or specific group is punished in the text of the law
Bill of Attainder
State or Congress
Imposing retroactive criminal liability
Ex Post Facto
State or Congress
Intentional discriminate on the base of race, ethnicity, or religion (suspect class)
5th Am Equal protection (14th Am States I 5th Am Fed Gov
Strict scrutiny
State
Intentional discrimination on the basis of alienage (US citizenship)
5th Am Equal protection (14th Am States I 5th Am Fed Gov
Strict scrutiny
Unless: 1. serve on a jury, 2. be a public teacher, 3. vote, 4. probation/police officer
State Or Congress
Intentional discrimination against a quasi-suspect class (gender and sex, non-marital children, against children of undocumented immigrants)
5th Am Equal protection (14th AM States I 5th AM Fed Gov)
Intermediate Scrutiny
State or Congress
intentional discrimination against a non-suspect class (everyone else; age, disability wealth)
5th Am Equal protection (14th Am States l 5th Am Fed Gov)
Rational Basis
State or Congress
Restricting a Fundamental Right
- Privacy: marry, procreate, custody and control of child’s upbringing, live w/ family, purchase contraceptives, privately use obscene materials
- individual protections: freedom of association, religion, speech right to bear arms and right to travel
5th Am Substantive due process
strict scrutiny
State or Congress
Restricting a non-fundamental right (economic and/or social welfare regulations)
5th AM Substantive due process
Rational basis
State or Congress
Restricting abortion rights
5th Am substantiative due process|Undue burden test: Gov cannot place an undue burden on a woman’s right to receive an abortion prior to viability
State or Congress
Failing to provide adequate procedures before taking away a person’s life, liberty or property
5th Am Procedural due process
State or Congress
physically taking a person’s property
5th Am Takings clause
needs to be fo a public purpose (broadly interpreted) and gov needs to give just compensation
State or Congress
Taking an action that would deprive a person of the most beneficial use of their property
5th Am takings clause- only a taking if the action deprives the person of all economically viable use of the property
State or Congress
Imposing a condition on zoning or building approval
5th Am Taking clause- there must be a rough proportionality between the condition and the impact of the proposed use will have on the community
State or Congress
government intertwines itself with religion
1st Amendment Establishment Clause: Lemon test
Gov must show 1. there is a secular purpose for the law 2. the effect of the law is neither to advance nor inhibit religion and 3. the law does not create excessive entanglement with religion
State or Congress
Interfering with the ability to practice religion
1st Amendment free exercise clause
Action must be neutral and generally applicable
If not neutral and generally applicable (the action intentionally discriminates against religious practices) then strict scrutiny applies
State or Congress
Content-based restriction on speech
First Amendment Freedom of Speech
Strict Scrutiny
State or Congress
Content-neutral restriction on speech
1st Amendment freedom of speech
Intermediate Scrutiny
