Constitutional Law Flashcards
Federal Judicial Power:
-Justicability (A SPERM)
-Abstention
-Standing
-Political Question
-11th Amendment/Sovereign Immunity
-Ripeness
-Mootness
Abstention
fed can’t enjoin a pending state court proceeding
Standing
requirements: (Pickled Doughnuts Cause Reflux)
-Personal & Direct Inquiry; Causation; Redressibility
-no 3rd party standing EXCEPT close relationship;
-injured 3rd party unlikely to assert his own rights;
-associational standing: individuals have standing; germane to organization’s purpose; neither claim nor relief requires the participation of individuals
Political Question
will not adjudicate challenges to Amendments; foreign policy; repub form of government; impeachment; partisan gerrymandering
11th Amendment / Sovereign Immunity
states can’t be sued in federal court UNLESS Federal government sues; Express waiver; or Congress clearly removes immunity; suits against state official for enforcing unconstitutional statute; or state v. state
Ripeness
some violation of law or when nothing to be gained with actual violation
Mootness
live controversy
-EXCEPT: wrongs capable of repetition but evading review; voluntary cessation; or class actions
Federal Legislative Power:
-police power
none except MILD: Military; Indian reservations; Land (fed); and DC
general welfare
may only tax and spend
commerce power:
(1) channels of interstate commerce;
(2) instrumentalities of IC;
(3) substantial effect on IC (cumulative impact for economic activity only)
limitation
-10th Amendment: can’t compel a state to regulate or act, but may induce with strings on grants if expressly stated & related to purpose
-14th Amendment: Congress can’t create new or expand existing rights. Only prevent or remedy violations of existing rights if proper/congruent to violation
Federal Executive Power:
-treaties
-must be ratified by the Senate but no Senate approval required to void
-Conflicts: State law is invalid
-federal law: last adopted controls
-US Constitution (“Q”): the treaty is invalid
executive agreements
-No Senate approval needed
-Conflicts: State law is invalid.
-Ex Agreement never valid over conflicting fed law or Q
Appointments
President appoints ambassadors, federal judges, officers w/ Senate confirmation
-Congress may vest appointment authority, but may not give itself appointment power
removal
-unless limited by statute, the President can fire executive officers.
-Federal judges removed only if impeached
-Congress may limit if independence from President desirable AND may only limit removal with good cause
pardon
-only for federal crimes, not state
-Only criminal liability, not civil and not for impeachment
veto
-Within 10 days or pocket veto (if cong term changing during timeframe, President does nothing and bill dies)
-No line item veto
-2/3rds vote by House and Senate to override veto
impeachment
-removed for treason, bribery, and high crimes & misdemeanors.
-requires majority House vote and conviction in Senate by 2/3rds
Federalism:
-preemption
-Supremacy Clause: Constitution and laws/treaties made pursuant to it are supreme
-Express or Implied (with Federal/State law is mutually exclusive; state law impedes on federal objective; or Congress evidences clear intent to preempt)
*tax: can’t pay state tax out of fed treasury, but can tax private store on federal land.
dormant commerce clause
state or local law is unconstitutional if it places excessive burden on interstate commerce.
privileges and immunities clause of Article IV (4)
state may not deny citizens of other states of the privileges and immunities it accords its own citizens
Dormant CC & Privileges and Immunities Clause:
see the grid
Individual Liberties:
-state action
-required before the Constitutional provisions applied to private entities. Occurs if excessive state financial entanglement or where entity performs public function.
-entanglement: the government authorizes, encourages, or facilitates the activity.
*Bill of Rights: Selected incorporation to states under the 14th Amendment
Scrutiny:
-rational basis
rationally related to legitimate government interest
Intermediate scrutiny
the law must be substantially related to an important governmental interest. Must be narrowly tailored to achieve the objective.
strict scrutiny
the law must be necessary to achieve a compelling state interest. Least restrictive means necessary to achieve objective.
Due Process:
-procedural due process
Deprivation of life, liberty, or property (only if entitlement).
-if yes, balance: (1) the importance of the interest to the individual; (2) the ability of additional procedures to increase the accuracy of fact finding; (3) the government interest in fiscal and administrative efficiency
substantive due process:
-economic libterties
rational basis, limited protection
contract clause
-state/local law effecting already existing contracts: intermediate scrutiny
(1) substantial impairment of contract relationship;
(2) whether the law is designed to promote a significant and legitimate public purpose and narrowly tailored to that purpose.
takings: Amendment wording
5th Amendment provides that private property may not be taken for public use without just compensation
takings: definition of a taking
(1) denial of all economic value or
(2) decrease of economic value that leaves no economically viable use for the property
-the Court considers: the social goals; diminnuation in value to the owner; and the owner’s reasonable expectations
*if the reduction in value is > than promotion of the public welfare = then there was a taking
takings: what is a public use
-rationally related to a legitimate public purpose .
-does not need to actually be used by the public. Purpose is key
takings: remedy
if not, government must pay for land or give land back + damages
Fundamental Rights: Strict Scrutiny (CARP SPERM)
Contraception; Abortion; Right to privacy; Procreation; Speech
-parenting/custody; extended family together; Right under 1st Amendment; Marriage
Abortion (undue burden)
-before viability: no prohibition, but regulation is ok so long as not an undue burden
-after viability: states may prohibit unless neccessary to protect teh life of the mother
-no partial birth abortion
-spousal notice/consent: unconstitutional
-parental notice/consent for minors is ok, but only if alt judicial approval process
unknown scrutiny
refuce medical treatment adn homosexual activity
no right
physician assisted suicide; practice trade; education
Equal Protection:
-Constitutional Provisions
-State/Local: 14th Amendment
-Federal: 5th Amendment DP Clause
Race/National Origin
-exists if: discriminatory on its face or discriminatory impact + intent
-scrutiny: strict scrutiny
-set asides/quotas: requires clear proof of past discrimination and congruent remedy
-college admissions: race can be a factor bc of compelling interest of diversity, but may not simply add pts or have a set aside. *not ok in public secondary schools
-apportionment: consideration ok but can’t be predominant
gender discrimination
-exists if: discriminatory on its face or discriminatory impact + intent
-scrutiny: Intermediate
-Role Stereotypes: not ok
-remedial measures: ok if designed to address past discrimination and different opportunity
alienage
-general: strict scrutiny. *but re: self government/demo process: rational basis (eg. voting, jury service, being police or elemen/sec teacher)
-Undoc Alien Children: Intermediate scrutiny (right to education)
Non-marital children
-scrutiny: Intermediate
Right to travel
-scrutiny: strict scrutiny; eg. preventing people from moving or residency requirements
Right to Vote
scrutiny: strict scrutiny; at large election ok unless proof of discriminatory purpose
political candidacy
fee can’t preclude indigent. Ballot access regulations must be reasonable and non discriminatory means of promoting important state interest
all else
-rational basis (eg. age, disability, wealth/economics, sex orientation, education)
First Amendment:
-restriction on speech: content based and content neutral
-content based: Strict Scrutiny. 2 types:
—subject matter: the law restricts the topic of speech;
—viewpoint: the law restricts specific ideologies
-content neutral: generally intermediate scrutiny
First Amendment: prior restraints
-definition; preliminary injunction; licenses/permits
-prior restraint: a judicial order or admin system stopping speech before it occurs
First Amendment: prior restraints:
preliminary injunction; (1), (2), (3)
-strict scrutiny; requirements:
(1) standard is narrowly drawn;
(2) the injunction promptly sought;
(3) prompt and final determination
-Person must act according to injunction until overturned.
-if in violation, no challenge
First Amendment: prior restraints:
Licenses/Permits
-no discretion in licensing authority
-must contain procedural safeguards like prompt determination of requests for licenses and judicial review.
First Amendment: Facially invalid regulations:
-vagueness; overbreadth; unfettered discretion
-vagueness: reasonable person can’t tell what is prohibited/allowed
-overbreadth: regulates substantially more speech than the Constitution allows
-unfettered discretion: too much power is given to the licensing authority
*Note: fighting words bans are unconstitutional as vague and overbroad
First Amendment: Symbolic Speech:
-definition; test (1, 2); types
-conduct that communicates
-test: (1) important state interest independent of suppression of message; and (2) impact on community is no greater than necessary (Intermediate scrutiny)
-types: flag burning protected; draft card and nude dancing not protected; burning cross protected unless done with the intent to threaten; contribution limits ok; expenditure limits are unconstitutional
First Amendment: Lesser Protected Speech:
-incitement of illegal activity
incitement of illegal activity is punishable if (1) substantial likelihood of imminent illegal activity and (2) speech directed to causing imminent illegality.
Lesser Protected Speech: Obscenity:
-test
-test: PIPS: Prurient Interest; Patently offensive; Serious value (lack of).
-prurient interest: local standard of shameful/morbid interest in sex
-patently offensive: local standard
-serious value: no redeeming artistic, literary, political, or scientific value based on national reasonable person standard
*zoning regulations: ok to regulate the location and size of adult bookstores and movie theaters in order to target secondary effects
*child porn may be completely banned, even if not obscene but actual children must be used in the production
profane and indecent language
generally protected, EXCEPT
-broadcast media: radio station/free network tv bc of intrusiveness into home and accessibility by kids
-schools: responsibility of teaching civilized discourse
commercial speech
-truthful commercial speech always protected
-false and deceptive ads NOT protected
-test: Intermediate Scrutiny: (1) serves a substantial governmental interest; (2) directly advances that interest; (3) narrowly tailored to serve that interest (need not be least restrictive means)
defamation
-libel and slander are not protected
-public official: must show falsity of the statement and actual malice
-public figure: same as public official
-private figure: if the matter is of a public concern, must show falsity and negligence. If the matter is NOT of a public concern, no malice showing is necessary
freedom of press / privacy:
-truthful public info
-illegally intercepted calls
-access to government
-government papers
-criminal trials
-truthful public info: no restrictions so long as ingo was lawfully obtained by government records
-illegally intercepted calls: media no liability so long as media didn’t participate in illegality and re: matter of public importance
-access to government: government may limit the dissemination of info to protect privacy
-government papers: no requirement for public accessibility
-criminal trials: public and press have the right to attend, but MAY BE LIMITED by an overriding interest determined by the judge based on intermediate scrutiny
forums for speech: public forums
-public forums: (parks, sidewalks, etc.) regulations must be subject matter and viewpoint neutral. If not: then strict scrutiny
-regulations must serve an important government purpose and leave open adequate alternative places for communication
forums for speech: designated public forums
government properties which the government allows open for speech. Same as public forums
forums for speech: limited public forums
-government properties limited to certain groups or dedicated to the discussion of limited topics
-regulation ok if reasonable and viewpoint neutral
forums for speech: non-public forums
-(military bases, outside of prisons, sidewalks on post office property, ad space on city buses, airports)
-regulations are ok if reasonable and viewpoint neutral
freedom of association:
-prohibit / punish group membership
-strict scrutiny
-requirements: AAA: (knowing + specific intent) (1) actively affiliated with the group; (2) knowing of illegal activities; (3) specific intent of furthering those illegal activities
freedom of association: disclosure of group membership
if chilling effect: then strict scrutiny
freedom of association: unrelated to suppression of ideas
strict scrutiny
freedom of association: prohibition of discrimination
Constitutional unless interferes with intimate association (small groups) or expressive association (discrimination integral to expressive activity of the group eg. KKK)
freedom of religion:
-free exercise clause <-
-Establishment clause
-free exercise clause: no punishment on the basis of religious beliefs
—but free exercise can’t be used to challenge neutral laws of general applicability, EXCEPT denial of unemployment benefits if person quit for religious reasons or Amish who have right not to educate children
*if not generally applicable OR enacted to discriminate: then strict scrutiny
freedom of religion:
-establishment clause
-establishment clause: the Lemon test: SEX:
(1) Secular purpose; (2) Effect neither advances no inhibits religion; (3) No eXcessive entanglement with religion
*no discrimination against religious speech or among religions unless strict scrutiny
*BUT religious groups must be given the same access to school facilities
public employment
-public concern
-not public concern
-public concern: balance the employee’s rights as a citizen against the governmental interest in efficient performance of the public service
-not a public concern: then wide deference is given to employer’s judgment
-if within employee’s duties: then punishment is ok
*no firing for party affiliation UNLESS in policy making position
