Constitutional Law Flashcards
What power derives from Article III?
Federal judicial power; including cases involving interpretation of the Constitution/statutes and disputes
Justiciability
Federal courts can hear a matter only if there is a “case or controversy”
- What the case is requesting (is it an advisory opinion?)
- When it is brough (is it ripe or moot?)
- Who is bringing it (does the plaintiff have standing?)
What is an advisory opinion? Can federal courts issue them?
Federal courts cannot issue advisory opinions, which are decisions that lack:
1. An actual dispute b/w adverse parties; or
2. Any legally binding effect on the parties
Ripeness
Courts cannot issue pre-enforcement reviews of laws or policies.
However, a plaintiff can establish ripeness before a law or policy is enforced by showing two things:
1. The issues are fit for a judicial decision; and
2. The plaintiff would suffer substantial hardship in the absence of review
Fitness = legal, not factual issues; not fit if unlikey to occur
Mootness
A plaintiff must suffer from an ongoing injury except:
- 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
- Class actions in which the class representative’s controversy has become moot but the claim of at least other class member is still viable
Standing
- Injury in Fact
a. particularies injury; and
b. concrete injury - Causation
a. causal connection b/w the injury and the conduct complained of - Redressability
a. a decision in the litigant’s favor must be capable of eliminating their harm
Is there “citizenship” or “taxpayer” standing?
People have no standing merely as “citizens” or “taxpayers” to claim that government action violates federal law or the Constitution
Can a claimaint have standing on behalf of a 3rd party?
A claimaint with standing in their own right may assert the rights of a 3rd party if:
1. It is difficult for the 3rd party to assert their own rights; or
2. A close relationship exists between the claimant and the 3rd party
Can an organization have standing?
An organization has standing to sue 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
Can a claimaint have standing for free speach overbreadth?
A person ahs standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary, even if that person’s own speech would not be protected under the 1st Amendment.
However, this rule does not apply to restrictions on commercial speech.
May Congress confer standing?
No, Congress cannot eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury.
Sovereign Immunity
Sovereign immunity bars claims against a state in federal and state courts.
Exceptions:
1. Express Waiver
2. Implicit Consent
a. A federal power is complete in itself; and
b. The state implicitly consented to the federal government exercising that power as part of the plan of the Constitution
3. Actions Against Local Governments
4. Suits by Other States or the Fed Gov’t
5. Bankruptcy
6. Certain Actions Against State Officers
a. Damages personally; or
b. Enjoin the official from future conduct that violates the Constitution or fed law
7. Congress Removes the Immunity
Politicial Questions
Political questions will not be decided. These are issues:
1. Constitutionally commited to another branch of gov’t; or
2. Inherently inacpable of judicial resolution
Necessary and Proper Clause (Article I, Section 8)
Congress can exercise the powers enumerated in the Constitution plus any necessary and proper to carry out its enumerated powers.
Does Congress have general police power?
No, Congress has no general police power (i.e., no general power to legislate for the health, safety, and welfare of the nation).
Taxing and Spending Power
Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution.
May Congress impose conditions on the grant of money?
Yes, Congress can impose conditions on the grant of money to state or local gov’ts. These conditions are valid if they:
1. Are clearly stated
2. Related to the purpose of the program
3. Are not unduly coercive; and
4. Do not otherwise violate the Const.
When are taxes imposed by Congress valid?
Most federal taxes will be upheld if they bear some reasonable relationship to revenue or to promoting the general welfare.
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:
1. Regulate the channels of interstate commerce
2. Regulate the instrumentalities of interstate commerce; or
3. Regulate activities that have a substantial effect on interstate commerce
Can Congresss regulate intrastate commerce?
Congress may regulate intrastate commerce if there is a rational basis on which the activity in the aggregate substantially affects interstate commerce.
However, this rule DOES NOT apply when the regulated intrastate activity is **not commercial or economic. **
May Congress regulate commercial inactivity?
No, the Commerce Clause gives Congress power only to regulate existing commercial activity; it does not give Congress power to compel activity.
Bicameralism/Presentment
Passage of a bill by both houses followed by presentment to the President for signature or veto.
Are line item vetos valid?
No, Congress cannot give the President a line item veto power. The President can only approve or reject a bill as a whole.
Levels of Executive Implied Power
- Likely Valid - President acts with express or implied authority of Congress
- Uncertain - President acts where Congress is silent (unlikely to be upheld if it usurps the power of another gov’t branch or prevents another branch from carrying out its tasks)
- Likely Invalid - President acts against the express will of Congress
Executive War Powers
The president has no power to declare war but the President, as commander in chief, can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property.
What happens if a state law conflicts with a treaty?
State laws that conflict with treaties are invalid.
What happens if a federal law conflicts with a treaty?
A conflict b/w a congressional act and a valid treaty is resolved by order of adoption: the last in time prevails.
What happens if a treaty conflicts with the Constitution?
Treaties are inferior to the Constitution and invalid if conflict.
What happens if an executive agreement conflicts with a state law?
The agreement prevails.
What happens if an executive agreement conflicts with a federal law?
The federal law prevails.
Supremecy Clause
A federal law may supersede or preempt state laws.
Two types of preemption:
1. Express Preemption
2. Implied Preemption
a. If a state law conflicts with federal law requirements, such that it would be impossible to follow both laws
b. If a state or local law prevents achievement of a federal objective
c. If a federal law impliedly “occupies” the entire field
Privileges and Immunities Clause
Prohibits discrimination by a state against nonresidents when the discrimination concers either their important commercial activities (pursuit of livelihood) or fundamental rights.
The clause ONLY applies if the discrimination is intentionally protectionist in nature.
Corporations and aliens are NOT protected by this clause.
Test for Privileges and Immunities Clause
If a state law burdens an important commercial activity or fundamental right, it will be invalid unless:
1. The law is necessary to achieve an important government purpose; and
2. **Least restrictive **means available
Privileges of National Citizenship
States may not deny their citizens the privileges or immunities of national citizenship.
Corporations are NOT protected by this clause.
Dormant Commerce Clause
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.
Dormant Commerce Clause Test
Discriminatory on it Face - State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid. However, a discriminatory state or local law may be invalid if it is necessary to acheive an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.
Non Discriminatory - If a nondiscriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of legitimate local interests.
Exceptions to Dormant Commerce Clause
- Congressional Approval
- State as Market Participant
- Favoring Government Perfoming Traditional Government Functions
State Action Requirement
To show a constitutional violation “state action” must be involved. However, state action can be found in actions of seemingly private individuals who:
1. Perform exclusive public functions
2. Have significant state involvement; or
3. Activities that are traditionally the exclusive prerogative of the state
Rational Basis Review
Regulations that DO NOT affect fundamental rights, suspect classes, or quasi-suspect classifications.
Upheld if rationally related to a legitimate government purpose. Usually valid unless it is arbitrary or irrational.
Person challenging the law has the burden of proof.
Intermediate Scrutiny
Regulations involving quasi-suspect classifications.
The law is upheld if it is substantially related to an important government purpose.
Burden of proof is on the government.
Strict Scrutiny
Regulations involving fundamental rights or suspect classifications.
The law is upheld if it is necessary (least restrictive means) to achieve a compelling government purpose.
Burden is on the government.
Procedural Due Process
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 must be an intentional or reckless government action.
Requires:
1. Notice
2. An opportunity to be heard; and
3. A neutral decisionmaker
What is “liberty” under Procedural Due Process?
- Physical freedom
- Loses significant freedom of action; or
- Denied a greedom provided by the Constitution or statute
What is “property” under Procedural Due Process?
- Personal property
- Real property
- Government benefits to where there is an entitlement (reasonable expectation of continued receipt)
What is a sufficient hearing under Procedural Due Process?
Balancing test that weighs:
1. Importance of interest to the individual and value of specific procedural safeguards to that interest; against
2. The government interest in fiscal and administrative efficiency
Fundamental rights include:
- First Amendment rights
- The right to interstate travel
- Private-related rights
- Voting
Abortion
The matter is left to the states to legislate. Laws restricting abortions are entitled to a “strong presumption of validity” under rational basis review.
Residency Requirements on the Right to Vote
Reasonable time periods for residency (< 30 days) are valid.
Applicability of “one person, one vote” principle to state and local elections
The populations of voting districts must be substantially equal. Variance in the number of persons included within the districts cannot be unjustifiably large (<10% variance) UNLESS reasonable and tailored to a legitimate state interest.
Applicability of “one person, one vote” principle to federal elections
States must use almost exact mathematical equality when creating congressional districtions within the state.
Standard of Review for Second Amendment
The government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation
Applicable Standards of Equal Protection
- Fundamental rights or suspect classes = strict scrutiny
- Quasi-suspect classes = intermediate scrutiny
- All others = rational basis
For strict or immediate scrutiny to be applied in Equal Protection, there must be _ on the part of the government to discriminate. _ may be shown by:
Intent
- A law that is discriminatory on its fact
- A discriminatory application of a facially neutral law; or
- A facially neutral law with a disparate impact on a protected class
Suspect Classes
- Race
- National Origin
- Alienage (state and local governments)
Alienage Classifications
- Federal = Rational basis
- State/Local = Strict
Exception: If a law discriminates against alien participation in state government, the rational basis standard is applied
Undocumented Aliens Classification
Rational Basis (not a suspect classification)
Exception: Denial of free public education to undocumented alien children applies both rational basis and intermediate scrutiny
Quasi-Suspect Classes
- Legitimacy
- Gender
Gender classifications based on role stereotypes are generally ___.
Invalid
Gender classifications designed to remedy past discrimiantion are _ likely to be upheld.
More likely
Equal Protection v. Due Process
- Equal Protection = regulation affects certain person or class of people (classifications)
- Due Process = regulation affects everyone (fundamental rights)
Taking Clause (5th Amendment)
Private property may only be taken:
1. For public use
2. The government must pay just compensation
When is there a phyiscal “taking”?
A taking will be found if there is:
1. A confiscation of a person’s property; or
2. A permanent or regular occupation of a person’s property by the government.
Temprorary occupations by the government may be a taking depending on factors like degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property.
When is there is an economic “taking”?
If a government regulation denies a landowner of all economically viable use of their land.
Generally, regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use for the proeprty. The Court will consider:
1. The government interests sought to be promoted
2. The diminution in value to the owner; and
3. Whether the regulation substantially interferes with distinct, investment-backed expectations of the owner
What is “just compensation” for a taking?
Fair market value of the proeprty at the time of the taking
Contract Clause
The Contract Clause limits the ability of state and local governments to enact laws that retroactively impair contract rights. It does not affect contracts not yet made.
Contract Clause - Private v. Public Contracts
- Private = Legislation that substantially impairs an existing private contract is invalid unless the legislation serves an important and legitimate public interest and is reasonable and narrowly tailored means of promoting that interest.
- Public = Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heighted scrutiny, especially if the legislation reduces the contractual burdens on the state
Ex Post Facto Laws
Neither states nor the federal government may pass an ex post facto law, which is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.
A statute retroactively alters a law in a substantially prejudicial manner if it:
1. Makes criminal an act that was innocent when done
2. Imposes a greater punishment for an act that was imposed for the act when it was doen; or
3. Reduces the evidence required to convict a person of a crime from what was required when the act was committed
What is speech?
Expressive conduct that is either
1. Inherently Expressive; or
2. Conduct that is:
a. Reasonably likely to convey a message; and
b. Reasonably likely to be perceived as conveying a message
Categories of Unprotected Speech
- Incitement
- Fighting Words
- Obscenity
- Defamatory Speech
Incitement
- Intended to produce imminent lawless action
- Likely to produce such action
Fighting Words
Personally abusive words that are likely to incite immediate physical retaliation in an average person
Merely annoying words won’t do
True Threats
Words that are intended to convey to someone a serious threat of bodily harm
Obscenity
Describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
1. Appeals to the prurient interest in sex, using a contemporary community standard
2. Is patently offensive under contemporary community standards
3. Lacks serious value, using a national, reasonable person standard
Defamatory Speech Against a Public Official
If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is actual malice.
What is actual malice?
Defamatory Speech
To show actual malice, the plaintiff must prove by clear and convicing evidence that the alleged defamatory statement was made with:
1. Knowledge that it was false; or
2. Reckless disregard as to its truth or falsity
Who are public officials and public figures?
Defamatory Speech
Public official include people
1. Holding or running for elective office
2. Public employees in positions of public importance
Public figures include people who have
1. Assumed roles of prominence in society
2. Achieved persvasive fame and notoriety; or
3. Thrust themselves into particular public controversies to influence their resolution
What are matters of public concern?
Defamatory Speech
Matters of public concern are issues important to society or domocracy
Defamatory Speech Against a Private Figure
If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintiff shows negligence. To recover punitive damages or presumed damages, they need to show actual malice.
Commercial speech is not protected if it is:
- False
- Misleading; or
- About illegal products or services
Any regulation of commercial speech will be upheld only if it:
- Serves a substantial government interest
- Directly advances that interest; and
- Is narrowly tailored toserve that interest
Content-Based Regulations
Free Speech
Restricts speech based on the subject matter or viewpoint
Subject to strict scrutiny
Content-Neutral Regulations
Free Speech
Restricts speech but the restriction is subject matter-neutral and view-point neutral.
Subject to intermediate scrutiny (advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary)
Speech Restrictions on Government Property
- Public Property ( gov’t owned property historically open to speech-related activity) = strict for content-based and intermediate for content-neutral
- Designated Publis Property (gov’et owned property that has not been historically opened to speech-related activity but the gov’t has opened for a permanent/limited basis) = strict and intermediate for content-neutral
- Limited Public Forums (gov’t forums not historically open for speech but opened for specific speech activity) = strict for content-based and intended use for content-neutral
- Nonpublic Forum (gov’t property not held open for speech activities) = strict for content-based and intended use for content-neutral
Level of Scrutiny for Public Forums and Designated Public Forums
Free Speech
Content-based = strict
Content neutral = intermediate
1. Narrowly tailored to serve an important gov’t interest (does not need to be least restrictive means); and
2. Leave open alternative channels of communication
Levels of Scrutiny for Limited Public Forums and Nonpublic Forums
Free Speech
Content-based = strict
Content-neutral = intended use of forum
1. Viewpoint neutral; and
2. Resonably related to a legitimate government purpose
Personal Student Speech on Campus
Cannot be censored absent evidence of substantial disruption
Exception: speech promoting illegal drug use
Personal Student Speech on Campus
Limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outwiegh the speech interests of students as private citizens
School Speech
Restrictions must be reasonably related to legitimate pedagogical concerns
Speech in Public Employment
- Gov’t Employees:
a. Private Concern (on duty) = unprotected
b. Public Conern (on duty) = unprotected
c. Official Duties = unprotected - Regular Employees
a. Public Concern (off duty) = balance value of speech against gov’t interest in efficient operation of workplace
b. Private Concern (off duty) = protected absent detrimental effect on workplance
Press Access to Trials
Guarantees the public and press a right to attend criminal trials. However, the right may be outweighed by an overriding interest stated in the trial judge’s findings.
Free Exercise Clause
Prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct
What constitutes a religious belief?
A religious belief includes the tenents of traditional religons, as well as beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents
Can courts question the truthfulness of a religious belief?
No, courts can question the sincerity but not the truthfulness
A law is discriminatory to religion if it is either:
- Not neutral on its face; or
- Facially neutral but not generally applicable (i.e., by design, it targets religion generally or a religion in particular)
Establishment Clause
Prohibits government sponsorship of religion, meaning the gov’t cannot aid or formally establish a religion
