Constitutional Law Flashcards
Procedural Due Process
The 5th and 14th amendments afford individuals with procedural due process, which requires states to act with adequate and fair procedure before depriving a person of life, liberty, or property. Proper process involves: (1) notice; (2) and opportunity to respond before the termination of that interest; and (3) a neutral decision maker.
Taxing and Spending
Congress may tax and spend for the general welfare, but they may not regulate the general welfare. They can, however, add conditions to such taxing and spending so long as the conditions are: (1) clearly stated, (2) relate to the purpose, (3) constitutional, and (4) not unduly coercive.
Privileges and Immunities of Article IV
Protects state residents from being discriminated against by other states in the realm of fundamental rights or other essential activities (commercial/right to make a living).
- has the state discriminated against out of staters with regard to the privileges and immunities it affords its own citizens?
- if yes, if the discrimination justified in that it is necessary to achieve an important government interest and no less restrictive means are available.
Takings Clause
The fifth amendment provides that the government cannot take property from an individual for public use without paying just compensation. The compensation must be the fair market value at the time of the taking.
The taking can be physical. If temporary then consider the degree, length, intention, foreseeability of result, the severity, and the character.
Exceptions include emergency or when a municipality conditions building or development permits.
Taking can also be regulatory to where it denied the owner of all economically viable use. If f just decreasing it, then usually not a taking, but consider: (1) economic impact, (2) investment-backed expectation, and (3) public interest.
Levels of Authority
Constitution > Federal law/Treaties > Executive Agreements > State law.
If the federal law and treaty conflict, then the last in time trumps
Rational Basis Review
Applies when there is no fundamental right or suspect/quasi-suspect class involved – including wealth. The standard of review is whether the law is rationally related to a legitimate government interest
Strict Scrutiny
When there is a fundamental right or suspect class involved (race, national origin, or alienage), then the law must be necessary to achieve a compelling government interest
Intermediate Scrutiny
When a quasi-suspect class is involved (legitimacy or gender), then the law must be substantially related to further an important government interest
Sovereign Immunity
state is forbidden from suing the US without its consent. Congress can pass legislation permitting the US to be sued by states in given situations. Although officers may sometimes be sued, this will only be granted if the officer acts beyond his statutory powers, or the valid power was exercised in an unconstitutional manner.
Dormant Commerce Clause
State law cannot unduly burden interstate commerce.
If a state law facially discriminates against out of staters therefore burdening interstate commerce, then it is presumptively invalid unless it is shown to be necessary to achieve an important, non-economic state interest and there are no reasonable, non-discriminatory alternatives available.
If the law does not discriminate against out of staters but still burdens interstate commerce, then it will be valid unless the burdens outweigh the benefits and there are no less restrictive alternatives available.
Delegation of Congressional Authority
Congress can delegate their rule-making authority to federal agencies through statutes that provide intelligible principles governing the exercise of that authority. The Supreme Court has been very deferential in applying the intelligible principle requirement.
Federal Police Powers ??
There is no such thing as a federal police power (health, safety, and general welfare). Rather, this is reserved for the states. However, Congress does have police powers over federal lands, Native American reservations, and Washington, D.C.
Commercial Speech Test
In determining whether a regulation on commercial speech is valid, consider:
1. whether the commercial speech concerns lawful activity that is not misleading or fraudulent
2. whether the regulation serves a substantial government interest
3. whether the regulation directly advances that interest
4. whether it is narrowly tailored to serve the substantial interest (this does not have to be the least restrictive mean, but rather must be a reasonable fit)
Solicitation of Victims
Supreme Court has held that a law barring the solicitation of accident victims for a limited period of time following an accident is narrowly tailored to serve the state’s substantial interest in protecting the privacy of the victims.
Anti-Commandeering under the Tenth Amendment
Congress may not force state or local governments to create or enforce laws. They may encourage states to pass certain laws by conditioning receipt of federal funding on passing laws
Appellate Jurisdiction
The Supreme Court has complete discretion to hear cases that come to it by writ. These include: (1) cases from the highest state court where the constitutionality of a federal statute, federal treaty, or a state statute is called into question or (2) a state statute allegedly violates federal law. This also includes all cases from federal courts of appeals.
Supreme Court Review of State Decisions
The Court may review decisions from whether a state court has reached a decision that is not in conformity with the US Constitution, but it may not review state court decisions that merely adjudicate questions of state law (decided on independent and adequate state grounds). This would make that opinion advisory.
Commerce Clause
Congress has the power to regulate interstate commerce. This includes: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, (3) and activities that have a substantial effect on interstate commerce.
Congress cannot compel activity.
Eleventh Amendment
Bars any federal suit against any one of the states by private citizens or foreign governments. However, states can be sued by the US government. The 11th amendment typically only bars suits involving damages, not injunctive relief.
Exceptions: (1) consent, (2) they are a local government and not a state, (3) they are sued by another state or the federal government, (4) bankruptcy proceeding, (5) the suit is brought against a state official for personal damages or injunction, (6) congress removed the immunity under the 14th amendment Equal Protection
Necessary and Proper Clause
Congress has the power to make all laws necessary and proper for caring into execution any power granted to any branch of federal government. So long as the means is rationally related to the constitutionally-specified ends, then the means are constitutional.
Obscenity
Unprotected speech includes obscenity. Obscenity is defined as a description or depiction of sexual conduct that the average person would find: (1) appeals to the prurient interest in sex based on contemporary community standards, (2) portrays sex in a patently offensive way based on contemporary community standards, and (3) does not have any serious literary, artistic, political or scientific value based on national reasonable person standards
- Nudity, porn, and dirty words are not obscene
- Person can have obscene material in home for private use
- Child porn is obscene and any visual depictions of sex involving minors can be prohibited
Speech and Debate Clause
Members of congress are shielded from civil or criminal suits relating to their legislative actions (their conduct and the motivation behind it) and grand jury investigations relating to those actions. This immunity extends to aides who engage in acts that would be immune if performed by a legislator.
Bill of Attainder
a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct
Original Jurisdiction
Cases and controversies (1) affecting public ambassadors, public ministers, and consuls; (2) In which the US is a party; or (3) Between two or more states
Standing
(1) injury-in-fact, (2) causation, and (3) redressability
Injury-in-fact
must be concrete and particularized, actual and imminent, and not conjectural or hypothetical
Third-Party Standing
a claimant with standing can assert the rights for a third party if: (1) it is difficult for the third party to assert their own rights, or (2) a close relationship exists between the third party and the claimant in that the injury suffered by the plaintiff adversely affects the relations with the third party
Organization Standing
organization can have standing to bring suit on behalf of its members if: (1) there is an injury in fact to the members, (2) the members’ injury is related to the organization’s purpose, and (3) individual member participation in the lawsuit is not required
Advisory Opinion
federal courts cannot issue decisions that lack (1) an actual dispute between adverse parties, or (2) a legally binding effect
Mootness
there must be an actual, live controversy. look for whether the harm is ongoing or likely to be repeated to the plaintiff or others in the future.
Exceptions to when a case is moot include: (1) capability of repetition, (2) defendant voluntarily stops the alleged harm but can resume at any time, or (2) the case is a class action with at least one live claim
Ripeness
In order to defeat ripeness, the plaintiff must allege that she (1) already suffered a harm, (2) is faced with a specific present harm, or (3) is under a threat of specific future harm
Political Question Doctrine
Cannot decide issues that are constitutionally committed to another branch or are inherently incapable of judicial resolution.
However, when it comes to the constitutionality of a federal statute concerning foreign affairs, then the court may review that.
Abstenation
federal courts can abstain from hearing and issue when the disposition rests on an unsettled question of state law.
Congress War Powers
Power to declare war and raise armies and provide for and maintain a navy
Congress Treaty Powers
Ratifies and confirms treaties and ambassadors
Bankruptcy Power
congress has the power to establish uniform laws on the subject of bankruptcies throughout the united states
Investigatory Power
Broad implied power to investigate to secure information for potential legislation or other official action. Congress can subpoena presidential personal information if it advances a legitimate legislative interest.
Witness rights for Investigation → (1) 5A privilege against self-incrimination; (2) elicited oral or written testimony must be pertinent information; (3) witnesses generally get procedural due process (right to counsel, right to cross); (4) the witness can be held in contempt for refusing to appear
Property Powers
Dispose of and make rules for territories and other properties in the united states
