Constitutional Law Flashcards
State Action
Can bring suit re violation of IR only if violation committed by state actor. Private actors can violate IR.
EXCEPTION - 13th Amendment: racial discrimination. Can bring suit v. private actor
EXCEPT- private actor becomes state actor when (1) performs traditional & exclusive G role or (2) G is significantly involved in private actor’s activities (i.e., mutually beneficial relationship, G creates nexus by affirmatively facilitating or authorizing private action, G pervasively intertwined in private entity’s management or control)
15th Amendment
racial discrimination related to voting
Privileges & Immunities
Residency. State A passed a law that discriminates v. State B residents based on residency status
Equal Protection Clause
Affects a group of people.
Three Standards:
o Strict Scrutiny – Race, Alienage, National Origin. (1) G has burden; (2) law is necessary to achieve;
(3) a compelling interest
(Citizenship-> F Law = rational basis; S law = Strict scrutiny or political-function exception aka direct participation in formulation/execution/review of broad public policy or exercise of broad discretion [jury, G employment like popo or public school teacher, voting])
o Intermediate Scrutiny – Gender, Illegitimacy (illegitimate kids). (1) G has burden; (2) law is substantially related; (3) to an important governmental interest
o Rational Basis – Everyone else. (1) P has burden; (2) law is not rationally related; (3) to any legitimate interest
Procedural Due Process
No person shall be deprived of life, liberty, or property w/o DP. (1) Notice (2) Hearing.
Property Rights/Interests –
Jobs, licenses, benefits, public education
Extends to rights and privileges
Test - (1) Weighing private interest affected by deprivation + (2) risk of erroneous deprivation & value of safeguards; (3) G’s interest (admin & fiscal burdens)
If one is stronger, then insufficient process. If 3 is stronger, then sufficient process.
Substantive Due Process
Affects everyone.
Fundamental Rights–> Strict Scrutiny
(1) Right to interstate travel (≠ intrastate);
(2) Right to vote;
(3) Right to privacy (CMPER) - Contraception, Marriage, Procreation, private Edu, Raise your family; (4) Right to free speech
Abortion = no longer a FR under right to privacy. Left to states to regulate.
Non-Fundamental Rights–>Rational Basis (e.g., retroactive civil laws)
5th Amendment
Federal G or Congress passes law/takes action affecting EPC or DP
14th Amendment
State passes law/takes action affecting EPC or DP
Taking
G can take private property for public use (e.g., highway) if they pay just compensation [FMV].
Taking = physical or doing something to economically reduce/eliminate value of property down to nothing.
Exaction occurs when a local G conditions the issuance of a building or development permit on a landowner’s promise to dedicate part of the property for public use. Exaction = a taking unless the G shows (1) substantially advances a legitimate G interest and (2) individualized & quantifiable findings show that impact on community is proportional to impact on landowner
Establishment Clause (FoR)
G cannot make law which establishes a religion. Separation of church & state. Lemon test
(1) statute must have a secular purpose;
(2) statute cannot advance or inhibit a religion;
(3) statute is not excessively entangled to a religion.
Excessively Entangled – money/grants/scholarships/accreditation. Giving $$ to a private religious school doesn’t automatically violate establishment clause if statute lists a secular reason.
Endorsement Test (displays) - government displays of religious symbols violate the establishment clause when the overall context of the display would cause a reasonable person to conclude that the display endorses religion
Free Exercise Clause (FoR)
Every citizen has the right to freely exercise religion any way they choose (except: breaking law. e.g., killing lamb, peyote). G cannot take a position or make comment about religion = neutral.
direct –> strict scrutiny
Incidental effect – rational basis. if statute’s purpose is unrelated to religion but effect interferes with ability to practice religion = statute is constitutional. E.g., bball team + no metal jewelry + Jewish kids’ yamakas
Freedom of Speech
Cannot ban speech. Can regulate speech.
Content-Based Regulation – G says blanket no (e.g., march, parade, speaking, ads) Strict Scrutiny
Content-Neutral Regulation – G allows message to get out but regulates time, place, and manner (how, where, when) [e.g., zoning ordinances for adult-entertainment businesses] –> narrowly tailored to serve a substantial G interest & leaves open alt measures of communication
Public Forum – streets, parks. narrowly tailored to serve a substantial G interest & leaves open alt measures of communication
Designated (limited) public forum - public property opened for specific types of expression (classrooms, civic auditoriums)–> if used for designated purpose (strict scrutiny). If used for unintended purpose (rational basis)
Non-Public Forum – ads on busses & billboards. Reasonably related to a legitimate interest
Unprotected Forms of Speech
Obscenity – (1) Objective person applying local community standards finds work appeals to the prurient interest in sex; (2) work in question depicts sex in a patently offensive manner; (3) work lacks any serious literary, artistic, political, or scientific value
Fighting Words – Harsh language that is likely to incite the average person to commit violence
Threats of Violence - intended to intimidate recipient (regardless of whether speaker acts on threat or intents to carry it out)
Defamation
Commercial Speech – commercials/ads. Can be regulated if a (1) reasonable fit to (2) a substantial governmental interest + (3) it’s narrowly tailored.
False, Misleading, or Illegal Advertising
Prior Restraint – Trying to stop/ban speech before ever published (gag orders, restraining orders)
Unfettered Discretion – G cannot choose 1 form of speech over another (allows poli ads, but not x ads).
Vague Statute – Statute cannot be overbroad (e.g., “any form/kind of this”), must list specific speech
Mail - (1) containing unprotected speech or (2) false/misleading/unlawful commercial speech
Unconstitutional Laws
Bill of Attainder – State/Fed law that punishes a named individual or group of people civilly/criminally without a trial
Ex Post Facto – State/Fed law that retroactively makes something criminal that was legal when you did it
Contracts Clause – State [not feds] law that impairs a contractual obligation (your ability to enter a contractual relationship)
Supreme Court Jurisdiction
Article 3.
How Case Gets to SC – (1) Original Jx (C cannot enlarge or restrict OG jx) & (2) Appellate Jx (Congress may regulate scope of appellate jx)
SC v. Federal Lower Courts – SC: Congress cannot tell SC what to do. Fed Lower Courts: Congress has jx over FLC. Can create new courts and control subject matter they listen to.
Prevents a Case from Going to Federal Court
Mootness – if a case is over/has been resolved (“no case/controversy”) [except: class action]
Ripeness –nothing has occurred/not ready (“no case/controversy”) (e.g., cannot sue statute if hasn’t been passed)
Standing – Present or imminent injury at stake. Has to be something for person to lose (generally economic). Not future/distant harm.
Independent & Adequate State Ground – If a case has been decided by a state SC correctly based on independent & adequate state ground it will not go to federal court bc no federal issue to be resolved
Justiciability
Political Question.
Fed courts will not hear cases re Pres or Congress
Federal Immunity
(1) states cannot sue fed govt;
(2) states cannot tax fed govt (except: can tax private businesses working for fed govt and can tax employees);
(3) individuals cannot sue fed govt (except: when fed govt consents via statute)
State Immunity
(1) fed govt & other states may sue an individual state;
(2) fed govt cannot tax a state if the tax is applicable to a govt activity or function (except: can tax private businesses, e.g., gift shop in govt building)
11th Amendment
Citizens of one state cannot sue its own state or another state for damages in federal court
EXCEPTIONS- (1) GO; (2) Municipality/City; (3) state consents via statute; (4) Civil War Amendments (13th, 14th, 15th) - C can enact appropriate remedial legislation expressly subjecting states to private suits for damages in fed court
Supremacy Clause
Fed law trumps state law when conflict. Hypos: F & S conflict? F. F & S, no conflict, but S harder? Yes, via police power. F & S, no conflict, but S easier? No.
Police Power
“General Welfare Clause”
Under the 10th Amend, any power that Congress doesn’t have is reserved to the states. States can pass any law for the health, safety, and welfare of its citizens. No federal police power.
Commandeering
Fed govt cannot require/demand/obligate/compel a state to act
Dormant Commerce Clause
State passes a law regulating business. A state cannot pass a law regulating business if it discriminates against out-of-state business interests or unduly burdening interstate & foreign commerce.
Discrimination on its face – blatantly says in law STRICT SCRUTINY
Incidental Discrimination – not overtly/intentionally, but has discriminating effect Law must serve imp govt interest & the burden on commerce should not be excessive
EXCEPTION: (1) Congress passes law or (2) State is market participant [state controls/monopolizes whole industry]
Congressional Powers
Enumerated Powers [powers given by Constitution]
Taxing/Spending/Appropriating Funds – Plenary. Tax citizens to raise federal revenue + spending money for general welfare of citizens [EXCEPT- no tax on exports or closely related services]
Commerce Power – plenary/broadest power. Can do anything as long as effect on interstate and foreign commerce. Related to manufacturing, moving, retailing, marketing any object made/sold/distributed by a business.
War Power – declare war & whatever necessary to provide for the defenses of the country
Foreign Affairs – primary authority over foreign affairs but shares some power w P (e.g. treaties, exec agreements)
Aliens – make laws and regulate activities of non-citizens. immigration and naturalization
Coin & Borrow Money – printing money
Bankruptcy
Mail- establish post offices & roads, including regulating/restricting what may be sent by mail
Copyright & Patent Law
DC
Federal Land – regulating federal land & activity on it (national parks, monuments, DC, underdevel fed property)
Delegation Power – can delegate some powers to P but it must include guidelines/limitations to cap that power
Necessary & Proper Clause – must be linked to enumerated power. C can do anything n & p to execute its enumerated powers (e.g., coin money, tax, spend, declare war, etc.).
Presidential Powers
Veto – C passes legislation, P can veto bill. Only P has this power. Congressional vetoes are always invalid
Appointment Power – ambassadors, justices, & other heads of cabinets [positions w regulatory/executive power] (except: C can appoint inferior office members & committee/commission members)
Removal Power – removing someone from office.
Pardon Power – only for federal offenses. Absolute power, cannot be contested.
Commander-in-Chief – Command armed forces. Moving troops, seizing property, anything done for military (except: C has power to declare war)
Treaty Power – enter into treaties. Treaty conflicts w fed law? Last in time always prevails.
Executive Order – domestic affairs
Executive Agreement – international affairs. Agreement w another country. Agreement ≠ treaty. Executive Orders/Agreements cannot conflict/change/expand federal law – Federal law trumps
Exclusive official representatives of the U.S. in foreign affairs–> communicate/negotiate w foreign governments
Media (First Amendment Protections)
- No civil/criminal liability for publishing lawfully obtained private facts (e.g., crime victim’s identity) and other truthful info involving matters of public concern (newsworthy events)
- No civil/criminal liability for publishing truthful info that is unlawfully obtained by a third party if (1) the info involves a matter of public concern [newsworthy event] and (2) the publisher neither obtained it unlawfully nor knows who did
- Prohibits G from restricting right to publish lawfully obtained, truthful info about matters of public significance. G action abridging this right is presumptively unconstitutional –> strict scrutiny = least restrictive means (i.e., narrowly tailored) to achieve compelling G interest
First Amendment Freedoms
(1) Expression - right to communicate info & ideas thru speech/conduct
(2) Association - right to form or participate in any group or org
(3) Press - Right to publish truthful info
(4) Religion - free exercise & establishment
Regulating Campaign Contributions
A statute that restricts campaign contributions –> Intermediate scrutiny
State election regulations
must comply with (1) First Amendment freedom of association and (2) fourteenth amendment equal protection
standard to review depends on whether burden is ordinary (rational basis) or severe (strict scrutiny)
Regulating Private Speech by Public Employee
when speaking as a private citizen = can restrict if interest in efficient govt function > employee’s right to free speech
when speaking as public official = G has greater latitude to regulate that speech
Presidential Immunity & Privilege
Immunity –> absolute immunity from civil suits seeking damages for official executive actions (Exceptions: actions before office, actions unrelated to executive functions, criminal subpoena)
Privilege via docs & communications –> national security, civil, and criminal (in that order of hierarchy re deference)
Conditional federal funding
-clearly stated and unambiguous
-reasonably related to federal interest in funded program
-not require states to engage in unconstitutional activity AND
-cannot be unduly coercive
Freedom of Association + Subversive group
G cannot inquire about a person’s associations for the sole purpose of withholding a right or benefit bc of that person’s beliefs. Inquiry must be necessary to protect a legitimate state interest.
May punish individuals who are active members of SO + have specific intent to further orgs illegal activities
Export Clause
C cannot tax exported goods or closely related services
Compact Clause
States may generally enter into agreements w each other without permission of fed G. However, if interstate compact increase the compacting states’ political power at the expense of federal G, need C’s consent.
Compact Clause
States may generally enter into agreements w each other without permission of C. However, if interstate compact increase the compacting states’ political power at the expense of federal G, need C’s consent.
Public Universities & First Amendment
G cannot compel individuals to endorse, include, or financially support private speech w which they disagree (e.g., student org rejecting float for parade that doesn’t meat its mission). However, a public university can compel its students to pay an activity fee if the funds are allocated in a view-point neutral manner
Third-Party Standing
an injured P may assert a third party’s right when
(1) the parties share an inextricably close relationship and
(2) genuine obstacles prevent the third party from asserting his/her rights
Right to open courtroom in criminal trials
strict scrutiny if judge trying to close –> must show that the closure is the least restrictive means to serve a compelling G interest
includes voir dire
Removal of Article III Judges
F district court, circuit appellate court, SCOTUS
life tenure during good behavior & undiminished pay. ONLY BY IMPEACHMENT (HOR articles of impeachment by majority vote & Senate 2/3rd vote)
Federal G Immunities
Legislative (civil & criminal): (1) Member of C = absolute immunity for official legislative acts (2) Aid = absolute immunity for acts that would be immune if performed by member of C
Executive (civil): (1) P = Absolute immunity for official executive acts; BUT No immunity for acts before taking office or unrelated to executive function (2) Aid = Qualified immunity for discretionary acts
Judicial (civil): (1) Judge/Prosecutor = absolute immunity for official judicial acts unless clearly lacks SMJ; (2) Officer/Employee = Absolute immunity for acts pursuant to court order & qualified immunity for discretionary acts
Religious Inquiries
E.g., avoiding draft bc religion
Do you sincerely believe? ALLOWED
Is your belief reasonable or true? NOT ALLOWED
C’s Taxation Power
Direct (persons/property) –> (1) apportioned proportionately among states and (2) reasonably related to revenue production
Indirect (goods, excise, sales, income) –> (1) identical taxation in every state and (2) reasonably related to revenue production
Export -(goods/services leaving country) –> NOT ALLOWED
BROAD POWER. C has broad discretion in choosing the subjects of its taxation and may impose taxes on subjects that have no relation to the purpose for which those tax funds will be expended
C subpoenas
(1) necessary; (2) limited in scope; (3) not unduly burdensome
C’s Delegation Power + Federal Agency
Once delegates some of its powers to a Federal Agency–> cannot interfere w the agencies’ functions unless it complies with the legislative-action process. Any attempt to bypass this process (bicameralism + presentment) = unconstitutional legislative veto
State-election restrictions
Ordinary/Nondiscriminatory: voter registration, photo-ID requirement, disallowing write-in voting –> rational basis
Severe/Discriminatory: poll tax, disallowing third-party candidacies, property-ownership requirement –> strict scrutiny
State Legislator Immunity
Absolute Immunity (civil/criminal)–> actions taken pursuant to legislative functions (e.g., making a speech in legislature)
No immunity – federal criminal action
Supreme Court OG Jx
Disputes b/w states
Cases involving ambassadors
Cases b/w U.S. and a state
SCOTUS Appellate Jx
Review decisions by lower federal courts and the highest state courts that concern important and substantial issues of federal law
State Tax on Interstate Commerce
DCC - cannot unduly burden interstate commerce. Determined by:
Substantial nexus b/w state & taxed person/activity
fairly apportioned pursuant to rational formula
Cannot discriminate against interstate commerce
fairly related to state services/benefits
Equal Protection Clause x Citizenship
5th Am - Rational Basis
14th Am - Strict Scrutiny (exc. government function exception)
Federal Funding
C can insist that federal funds be used for an authorized purpose, but it cannot restrict a funding recipient’s right to engage in constitutionally protected conduct that is unrelated to the funding’s purpose or scope
Exaction
Condition to obtain building/development permit
essential nexus
rough proportionality
