Constitutional Law Flashcards
How can a plaintiff establish ripeness before a law of policy is enforced?
by showing two things:
- The issues are fit for a judicial decision, and
- (i.e. involves legal rather than factual questions)
- The plaintiff would suffer substantial hardship in the absence of review
What are the exceptions to mootness?
- Controversies capable of repetition but that evade review because of their inherently short duration
- Cases where the defendant voluntarily stops the offending practice but is free to resume it and
- Class actions in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable
What are the components of standing?
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Injury in Fact
- To have standing, a person needs to show an injury in fact, which requires both:
- (1) a particularized injury— an injury that affects the plaintiff in a personal and individual way; and (2) a concrete injury—one that actually exists (that is, not hypothetical).
- To have standing, a person needs to show an injury in fact, which requires both:
- Causation
- Redressability
What is the exception to the rule that there is no general “citizenship standing”?
People have standing to challenge congressional spending measures on First Amendment Establishment Clause grounds
What are the exceptions to state sovereign immunity from suit under the Eleventh Amendment?
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Certain Actions Against State Officers
- The following actions can be brought against state officers: (1) actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state (the state cannot be made to pay retroactive damages); and (2) actions for damages against an officer personally.
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Congress Removes the Immunity
- Congress can remove a state’s immunity as to actions created under the Fourteenth Amendment power to prevent discrimination, but it must be unmistakably clear that Congress intended to remove the immunity.
What is the test for determining whether a spending provision imposing conditions on the grant is constitutional?
Congress can impose conditions on the grant of money to state or local governments (so-called “strings” attached). Such conditions are valid if they
(1) are clearly stated,
(2) relate to the purpose of the program,
(3) are not unduly coercive, and
(4) do not otherwise violate the Constitution.
What is the adequate and independent state grounds doctrine?
The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds—even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. If the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
How to determine if a tax is valid?
Most federal taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare.
Rarely, a tax may be regarded as an impermissible regulatory ‘penalty’—for example, if it seeks to compel rather than simply influence behavior.
What are valid exercises of Congress’s Commerce Power?
Congress has the power to regulate all foreign and interstate commerce, as well as commerce with Indian tribes. To be within Congress’s Commerce Clause power, a federal law regulating interstate commerce must either:
Regulate the channels of interstate commerce (for example, highways, waterways, telephone lines, the internet)
Regulate the instrumentalities of interstate commerce (for example, planes, trains, automobiles) and persons and things in interstate commerce or
Regulate activities that have a substantial effect on interstate commerce
When can Congress regulate intrastate commerce (and what exceptions exist)?
The Court will uphold the regulation if it can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.
Exceptions:
- Tenth Amendment Limitation
The Court has interpreted the Tenth Amendment to preclude Congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local governments.
- Activity vs. Inactivity
The Commerce Clause gives Congress power only to regulate existing commercial activity; it does not give Congress power to compel activity.
When can Congress delegate authority to an administrative agency?
Legislative power can generally be delegated to the executive branch (including agencies) or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (for example, powers to declare war, impeach).
When can a state tax federal instrumentalities?
- With consent of Congress
- Nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government (for example, state income tax on federal employees).
Neither may states regulate the federal government or its agents while performing their federal functions (for example, a state cannot require a member of the armed forces to have a driver’s license to drive military equipment in the state).
Aside from express preemption (which will be narrowly construed), what are the other types of preemption?
Forms of Implied Preemption
Conflict Between State and Federal Law Requirements
If a state law conflicts with federal law requirements, such that it would be impossible to follow both laws, the state law will be held to be impliedly preempted.
State Prevents Achievement of Federal Objective
If a state or local law prevents achievement of a federal objective, it will also be held to be impliedly preempted. This is true even if the state law was enacted for some valid purpose and not to frustrate the federal law.
Field Preemption
A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if the state or local law is nonconflicting. The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field
What is the starting presumption in preemption cases?
Courts will start with the presumption that the historic state police powers (i.e. regulations involving health, safety, or welfare) are not to be superseded unless that was the clear and manifest purpose of Congress.
What is the difference between the Privileges and Immunities Clause of Art. IV and that of the Fourteenth Amendment?
The Article IV Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents.
The Fourteenth Amendment P&I Clause provides that States may not deny their citizens the privileges or immunities of national citizenship
(Neither protects business entities, such as corporations)
When does the Art. IV Privileges and Immunities Clause apply?
The Interstate Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns either important commercial activities (such as the pursuit of a livelihood) or fundamental rights. However, the Clause applies only if the discrimination is intentionally protectionist in nature.
What test is used for determining the validity of a state law that burdens an important commercial activity or fundamental right in violation of the Art. IV Privileges and Immunities Clause?
If the state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.
(Consider this standard alongside any dormant commerce clause issues)
What does the “Dormant Commerce Clause” (AKA the “Negative Commerce Clause”) prohibit?
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. To do so, however, the state or local government must not discriminate against or unduly burden interstate commerce.
What is the test for when a state may validly discriminate against interstate commerce?
If it is necessary to achieve an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.
Strategy Tip: When faced with a state law that discriminates against interstate commerce, you should remember:
Discriminatory laws may violate the Dormant Commerce Clause as well as the Privileges and Immunities Clause of Article IV (see chart below) or the Equal Protection Clause.
What is the test for assessing the validity of nondiscriminatory state laws that nonetheless burden interstate commerce?
it will be valid unless the burden outweighs the promotion of a legitimate local interest.
The court will consider whether less restrictive alternatives are available.
What are the exceptions to the prohibitions of the Dormant Commerce Clause?
Congressional Approval
Congress may permit state regulations that would otherwise violate the (Dormant) Commerce Clause.
State as “Market Participant”
A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses. However, once a state sells state-owned resources, it cannot control what happens to the resource after that.
Favoring Government Performing Traditional Government Functions
The Supreme Court applies a more lenient standard when a law favors government action that involves the performance of a traditional government function (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.
What is the test for assessing the validity of nondiscriminatory state taxes?
Substantial Nexus
To be valid, the tax must apply to an activity having a substantial nexus to the taxing state. A substantial nexus exists when a business avails itself of the privilege of doing business in the state. A physical presence in the state is not necessary.
Fair Apportionment
To be valid, the tax must be fairly apportioned according to a rational formula. However, the taxpayer has the burden of proving unfair apportionment. (An unfairly apportioned tax may also violate equal protection.)
Fair Relationship
To be valid, the tax must be fairly related to the services or benefits provided by the state.
What must Congress show to enact a law under the Fourteenth Amendment?
The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law.
To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (that is, narrowly tailored) to solving the identified violation.
What is the test for “state action” as to non-government actors?
State action can be found in actions of seemingly private individuals who:
- Perform exclusive public functions, or
- Have significant state involvement
When is there significant state involvement to qualify an action by a private party as “state action”?
State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens
OR where there is sufficient entwinement between the state and private party (e.g. when a court would have to enforce a discriminatory covenant)
(granting licenses is not enough)
What is the rational basis standard, when does it apply, and who has the burden?
Standard: The law is upheld if it is rationally related to a legitimate government purpose.
Application: The rational basis standard is used to review regulations involving classifications that are not suspect or quasi-suspect, such as age, disability, and poverty.
Burden: The person challenging the law has the burden of proof.
What is the intermediate scrutiny standard, when does it apply, and who has the burden?
Standard: The law is upheld if it is substantially related to an important government purpose.
Application: Regulations involving quasi-suspect classifications (that is, gender and legitimacy) are reviewed under the intermediate scrutiny standard
Burden: Usually, courts place the burden on the government.
What is the strict scrutiny standard, when does it apply, and who has the burden?
Standard: The law is upheld if it is necessary (that is, the least restrictive means) to achieve a compelling government purpose.
Application: Regulations affecting fundamental rights (for example, interstate travel, voting, and First Amendment rights) or involving suspect classifications (that is, race, national origin, and alienage)
Burden: Government
(For bar exam purposes, keep in mind that “narrowly tailored to achieve an overriding government purpose” and “necessary to achieve a compelling government purpose” mean the same thing.)
What do the Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide?
A person has a right to a fair process when the government deprives the person of life, liberty, or property.
Government negligence is insufficient to state a procedural due process claim. Instead, there generally must be an intentional or reckless government action.
