Constitutional Law Flashcards
Justiciability
Jx of fed courts is limited to cases or controversies. The matter must be 1) ripe, 2) not moot, AND 3) P must have standing.
Ripeness
Ripeness requires there be an actual or imminent threat of harm, otherwise it is too soon to bring suit.
Mootness
Mootness requires the case not be too late, meaning the legal proceedings will have no effect.
Exceptions to Mootness requirement
class actions or an issue capable of repetition but evading review
Standing elements
1) Injury, 2) Causation, 3) Redressability
Standing rule for taxpayers
Taxpayers cannot challenge gov’t expenditures generally. Taxpayers only have standing if they 1) challenge legislation enacted under Congress’s taxing & spending power, AND 2) allege a violation of the establishment clause on that power.
3P Standing rule
3rd parties do not have standing UNLESS they are unable to assert their own rights, there’s a special relationship between them and P, or P’s injury affects relationship with 3rd party
Organizational standing rule
Organization has standing if its individuals 1) have standing, 2) germane to org’s purpose, AND 3) neither claim no relief requires participation of the individuals
11A State Sovereign Immunity
Under state sovereign immunity, a state is generally immune from suit for money damages by its own citizens in state or fed court.
Exceptions to 11A State Sovereign Immunity
State consents
Fed gov’t can sue states in fed court
Express waiver
Congress clearly removes immunity
Suits against state official for enforcing an allegedly unconstitutional statute, only injunctive relief available
State v. State
Commerce Clause elements
Congress can regulate 1) channels, 2) instrumentalities, AND 3) activities with substantial economic effect on IC
Commerce Clause - What is substantial economic effect?
Substantial economic effect means Congress can regulate any activity, intra or interstate, that has a substantial economic effect on IC measured in the aggregate.
Taxing Power
Congress has the power to tax if it is reasonably related to raising revenue.
Exports exception to the Taxing power
Congress cannot impose taxes on exported goods/services, or on services/activities closely related to the export process.
Spending Power
Congress has the power to spend for the general welfare and can use its spending power to regulate activity by conditioning federal funding on such activity
Spending Power - Requirements for conditional federal funding
Conditional federal funding is binding only if the conditions are clearly stated and unambiguous.
Necessary & Proper Clause
N&P Clause enables Congress to legislate to execute its powers.
10A Anti-Commandeering Limitation
Congress is prohibited from requiring state or local gov’t to 1) enforce a fed law, OR 2) enact a state/local law.
Congress’s other misc. powers
War
Property
Elections
Noncitizens
Naturalizations
Militia Clause
Congress can authorize the President to deploy the Natural Guard w/o approval of the state governor to execute fed laws, suppress insurrections, or repel invasions.
Property Clause
Congress has the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands.
Enforcement Clause Powers
Congress is empowered to enact legislation to enforce civil rights guarantees of the Civil War Amendments (13A, 14A, 15A).
14A Protections
Equal protection
Due process (substantive & procedural)
Privileges/Immunities
Pardon power
President may pardon at any time after commission of the federal offense; does not apply to impeachment.
Veto power
President has 10 days to act on proposed legislation to sign the bill, veto the bill, or do nothing
How may Congress override a presidential veto?
Congress can override by ⅔ vote in each house.
What happens if President does nothing with a bill?
Result depends on whether Congress is in session at the end of the 10-day period:
If Congress is in session at the end of the 10-day period, the bill becomes law.
If Congress is adjourned at the end of the 10-day period, the bill does NOT become law.
Take Care Clause
President has the duty to faithfully execute laws.
Commander in Chief powers
President can take military action w/o a declaration of war in the case of actual hostilities against the US.
Presidential Treaty power
President has the exclusive power to negotiate treaties; a treaty may only be ratified by approval of ⅔ vote of Senators present.
Presidential executive agreements power
President has the power to enter into executive agreements w/ foreign nations; Senate approval not required.
Congressional Impeachment
House may impeach by majority vote; Senate tries the impeached official and conviction requires ⅔ vote.
If Congress explicitly mandates expenditure of funds…
the President can’t refuse to spend them.
Can Congress attempt a legislative veto of an executive action?
NO
Legislative veto and delegation
Once Congress delegates power to an executive agency, it cannot interfere w/ the agency’s functions w/o satisfying the legislative-action process (bicameralism & presentment). Any attempt to bypass this process is an unconstitutional legislative veto.
Exception to legislative veto and delegation
Congress’s delegation can include a provision permitting legislative veto.
Judicial immunity
Judge has absolute immunity from civil liability for damages resulting from official judicial acts.
Legislative privilege
Members of congress cannot be subject to civil/criminal liability for statements or conduct made in the regular course of the legislative process. This is true even if the speech is NOT germane to pending legislative business.
This immunity extends to legislative aides who engage in conduct that would be immune if performed by a member of Congress.
Executive privilege
Executive branch is generally privileged with respect to the disclosure of confidential info to the judiciary or Congress.
Executive immunity
President cannot be sued for civil damages w/ regard to any acts performed as part of their official responsibilities.
Delegation of legislative power
Congress can delegate authority to the executive branch if Congress specifies “intelligible principle” to guide the delegate.
Non-delegable powers of the Legislature
non-delegable powers include the power to declare war and the impeachment power.
What constitutes an intelligible principle for a delegation of legislative power?
Clear statement defining policy, agency, and scope of authority.
Dormant Commerce Clause
In the absence of fed regulation, state regulation of commerce is valid if there is 1) no discrimination against out of state commerce AND 2) no undue burden on IC. This applies to both out of state citizens and corporations.
No other nondiscriminatory means exception to DCC No Discrimination rule
A discriminatory regulation will be upheld if an important local interest is being served and no other nondiscriminatory means are available.
Market participant exception to DCC No Discrimination rule
Under the market participant exception, a state can discriminate if it is acting as a market participant e.g., buying/selling.
This includes a state that sells permits for a particular purpose.
Traditional gov’t function exception to DCC No Discrimination rule
Under the traditional gov’t function exception, regulations can favor state/local gov’t for performance of a traditional gov’t function e.g., waste disposal.
Rule for Undue Burden on IC under the DCC
A nondiscriminatory regulation can still be struck down for undue burden on IC if the burdens outweigh the benefits; analysis should also evaluate whether there are less restrictive alternatives.
Can a state regulate conduct that occurs wholly beyond its borders?
NO
Privileges & Immunities (PI) Clause
Under Article 4, states cannot deprive an out of state citizen the privileges & immunities it accords to its own citizens by impacting a fundamental right or essential activity.
Under the 14A, states cannot interfere with its own citizens’ right of national citizenship. This clause does not include corporations.
Under the PI Clause, what do fundamental rights/essential activities include?
Private employment
Does NOT include recreational activities
Exception to PI Clause
A substantial reason may justify the discrimination if nonresidents caused or are part of the problem and the discrimination is substantially related to that problem.
Rule for State Taxation of Commerce
If Congress hasn’t already acted in the area, a state can tax IC if 1) substantial nexus, 2) fair apportionment, 3) nondiscriminatory, AND 4) fair relationship.
State Taxation of Commerce - What is substantial nexus
Substantial nexus means the taxed activity must have some significant contact within the state.
State Taxation of Commerce - What is fair apportionment
Fair apportionment means that the tax on IC should be equal to the tax on local commerce.
State Taxation of Commerce - What is nondiscriminatory
Nondiscriminatory means that there is no direct commercial advantage to local businesses over out of state competitors.
State Taxation of Commerce - What is fair relationship
Fair relationship means that the tax must be fairly related to the services provided by the taxing state.
State Taxation of the federal gov’t
The fed gov’t, its agencies, & its instrumentalities are immune from direct taxation by states unless Congress expressly consents.
Preemption
Under the Supremacy Clause, federal law and regulations overrides inconsistent state constitutional provisions or law.
Express preemption
Express preemption exists where Congress explicitly prohibited state laws in the area or the Constitution gives the fed gov’t exclusive power.
Implied preemption
Implied preemption arises where Congress intended fed law to occupy the field or a state law is in conflict.
Implied preemption - Direct conflict
A direct conflict exists when it is impossible to comply with both laws simultaneously.
Implied preemption - Indirect conflict
An indirect conflict exists when a state law frustrates the fed law’s purpose.
State Action is a prerequisite to?
State Action is a prerequisite to triggering constitutional protections.
State Action - Traditional gov’t function
A state action occurs when a private person carries on activities traditionally performed exclusively by the state (e.g., running primary elections).
State Action - Significant state involvement
A state action occurs, despite private conduct, if the gov’t is pervasively entwined with the private party’s conduct (e.g., facilitating private discrimination).
State Action - NO significant state involvement situations
Insignificant state involvement where the private conduct belongs to a business that the gov’t substantially regulates or to which it grants a monopoly.
Gov’t funding (however substantial) or licensing also does not trigger state action.
State Action - Guidelines
Mere licensing or regulation of a private party is not a state action, the state must act affirmatively to facilitate, encourage, or authorize the activity.
Procedural Due Process
An individual cannot be deprived of life, liberty, or property w/o due process of the law. Due process requires notice and an opportunity to be heard.
Elements of Procedural Due Process
Court must balance 1) the private interest affected, 2) the risk of wrongful deprivation, AND 3) the government’s interest.
Deprivation under Procedural Due Process must be based on?
Intentional conduct
Deprivation of liberty is based on?
Deprivation of liberty is based on a significant restraint of physical freedom or exercise of a fundamental right.
Deprivation of property includes?
Deprivation of property includes a legitimate entitlement to continued receipt of a benefit.
How are employment Ks with the gov’t considered under procedural due process?
Employment Ks w/ gov’t can be considered property rights, although at-will gov’t employees have no right to continued employment unless they’ve been given assurances by the gov’t of continued employment or the grounds for termination violate the Constitution.
Procedural Due Process requires a neutral decision-maker, meaning a judge must recuse if…
Judges must recuse if 1) interest in matter, OR 2) serious objective risk of bias.
Substantive Due Process
Gov’t action that infringes a fundamental right is subject to strict scrutiny. Gov’t action that infringes a non-fundamental right is only subject to rational basis review.
Fundamental rights under SDP and EPC include?
(FIRST VIP)
First Amendment rights
Voting
Interstate travel
Privacy (family, marriage, parental rights, sex, contraceptives)
Non-fundamental rights under SDP include?
social or economic interests (taxation/zoning/business)
Strict scrutiny
The court asks whether the regulation is necessary to achieve a compelling gov’t interest. This requires the gov’t to use the least restrictive means. The burden is on the gov’t to prove the law is necessary.
Rational basis review
The court asks whether the regulation is rationally related to a legitimate state interest. The burden is on the challenger to show the law is irrational.
How are civil laws retroactively impairing ordinary rights challenged?
Civil laws retroactively impairing ordinary rights can be challenged on SDP grounds and are reviewed under rational basis review; usually constitutional
Takings Clause
Private property may not be taken for public use w/o just compensation.
What is public use and just compensation under the Taking Clause?
Public use means there is a rational relation to a conceivable public purpose, and just compensation means the fair market value at the time of the taking.
Takings can also apply to?
Takings can also apply to non-possessory interests (e.g., easements, liens).
Per se taking
A regulation is a per se taking if it 1) involves permanent physical occupation, OR 2) leaves no economically viable use of the property.
Partial taking
If a regulation is not a per se taking but denies an owner of nearly all economic value, courts will consider factors 1) character of gov’t action, 2) economic impact on property owner, and 3) interference of owner’s investments
Takings Clause and Use Limitations
Regulations that merely limit use (e.g., zoning) is not a taking.
Equal Protection Clause
Discriminatory laws can be challenged under EPC and are generally subject to rational basis review, unless the law impairs a fundamental right or intentionally discriminates against a suspect class/quasi-suspect class.
Suspect classification under the EPC includes?
Race
Ethnicity
National origin
Citizenship (state law only)
Voting Exception under the EPC
14A Section 2 permits states to prohibit felons from voting in elections.
National Origin exception under the EPC
FED laws based on US Citizenship must only satisfy rational basis review; most will pass b/c Congress has a legitimate interest in providing benefits only to US citizens.
Quasi-suspect classifications under the EPC
Sex/Gender
Legitimacy
Scrutiny/Review of Quasi-suspect classifications under the EPC
Intermediate Scrutiny
Intermediate scrutiny
The court asks whether the law is substantially related to an important gov’t interest. The burden is generally on the gov’t.
What does intentional discrimination include under the EPC?
Discrimination on its face
In its application
Motive
Discrimination on its face under the EPC
Language of the law distinguishes between different classes (intent is presumed)
Discrimination in its application under the EPC
Facially neutral law is purposefully applied differently to different classes
Discrimination in its motive under the EPC
Neutral law was enacted to disproportionately impact a protected class
EPC Rule for Gerrymandering
Race cannot be the predominant factor used to draw boundary lines for state or federal legislative districts; if it is, then it’s subject to strict scrutiny and is usually struck down.
First Amendment Freedoms
Freedom of Religion
Freedom of Speech
Freedom of Association
Freedom of the Press
Establishment Clause
Laws that discriminate against religious speech or among religions are subject to strict scrutiny. Courts presume constitutionality for longstanding monuments, symbols, and practices.
Free Exercise Clause
Freedom to believe in a religion is absolutely protected. However, freedom to ACT on a religious belief is less protected.
Free Exercise Clause - Treatment of neutral law of general applicability
A neutral law of general applicability impacting religious conduct will be upheld if it satisfies rational review.
Free Exercise Clause - Treatment of law that intentionally targets religious conduct
Laws that intentionally target religious conduct are instead subject to strict scrutiny.
Ministerial exception to the Free Exercise clause
Religious orgs are protected from liability for employment discrimination when they hire/fire employees whose primary function is to advance the org’s religious mission.
Freedom of speech protects?
1A protects the freedom of speech and the freedom not to speak.
Under the 1A, speech is defined as?
Speech is defined as verbal communication and expressive conduct.
1A - Treatment of prior restraints
Prior restraints, which are regulations that stop speech before it occurs, are generally presumed unconstitutional.
What is content-based regulation and how is it treated?
Content-based regulation applies to specific speech, conduct, or viewpoint. Courts apply strict scrutiny to content-based regulations.
Categories of content-based regulations
Symbolic speech/Expressive conduct
Political speech
Commercial speech
Obscenity
Incitement
Treatment of Symbolic speech/Expressive conduct
Regulation is upheld if it 1) furthers an important gov’t interest unrelated to speech suppression, AND 2) burden on speech is no greater than necessary.
Political speech includes?
Political speech includes political speakers, campaign finance, and contributions. 1A protections for political speech apply to both individuals and corporations.
Treatment of regulations on campaign contributions
Regulations on campaign contributions are subject to intermediate scrutiny
Treatment of regulations on campaign expenditures
regulations on campaign expenditures are subject to strict scrutiny.
Treatment of commercial speech
Regulation must directly advance the gov’t interest. Regulation can suppress commercial speech if it is false or misleading.
What is obscenity under the 1A
Obscene speech means it 1) appeals to prurient interest, 2) offensive by community standards, AND 3) lacks serious value by national standards.
Treatment of obscene speech
Regulations can generally suppress obscene speech
Exception to general treatment of obscene speech
Regulations of pornography are subject to strict scrutiny.
Treatment of regulations for incitement
Regulations forbidding “fighting words” are usually vague/overbroad.
Lawfulness of a time, place, manner restriction depends on?
Type of forum
Regulation of speech in public forums
In public forums (streets, parks, designated public forums), regulation must be 1) content and viewpoint neutral, 2) narrowly tailored to a significant interest, AND 3) leave open alternative channels of communication.
Treatment of content-based restrictions in public forums
Strict scrutiny
Regulation of speech in nonpublic forums
In nonpublic forums (all other public property), regulation is permitted if 1) viewpoint neutral, AND 2) reasonably related to a legitimate gov’t interest.
1A Void for Vagueness
A regulation is void for vagueness if it fails to give sufficient notice as to what is prohibited.
1A Void for Overbreadth
A regulation is void for overbreadth if it burdens a substantial amount of speech or other conduct protected by 1A; not applicable to commercial speech.
Treatment of restrictions impacting the freedom of association
Regulations prohibiting participation in a group or require disclosure of participation must meet strict scrutiny.
Decision to deny public employment or regulation threatening criminal punishment based on political association requires?
1) active membership, 2) knowledge of group’s subversive nature, AND 3) intent to further group’s illegal objectives.
Rule for Restricting Freedom of the Pres
Gov’t is generally prohibited from restricting the right to publish lawfully obtained, truthful matters about matters of public significance. Such restrictions are presumptively unconstitutional and must survive strict scrutiny.
Adequate & Independent state ground
SCOTUS may exercise appellate jx over final state-court decisions that present a federal question, UNLESS they are based on adequate and independent state grounds. Adequate grounds exist when state law fully resolves the matter. Independent grounds exist when no federal precedent was used to reach the decision.
When may a federal court stay (suspend) a suit?
To either force a party to comply w/ a court order or to protect a party’s rights
When must a federal court dismiss a suit?
a fed court must dismiss a suit when it does not present a justiciable case or controversy (i.e., plaintiff doesn’t have standing).
When does SCOTUS have original jx?
SCOTUS has original jx in 1) cases involving an ambassador, public minister, or consul, and 2) cases in which a state is a party
When should a federal court abstain from a hearing a case?
A federal court should abstain from hearing a case that involves an unsettled issue of STATE law so that state courts can sort out the issue
Exception to the rule of federal courts abstaining from hearing a case about unsettled state law
A federal court can hear a case when it concerns whether a state law violates the federal Constitution
Constitutional taxing power - Direct taxes
Direct taxes are taxes on person/property
Permitted so long as they are 1) apportioned evenly among states, and 2) reasonably related to revenue raising
Constitutional taxing power - Indirect taxes
Indirect taxes are taxes on sales, excise, and income taxes
Permitted so long as they are 1) uniformly applied in every state, and 2) reasonably related to revenue raising
Presidential Appointments Clause
Appointments clause gives the President the power to appoint ambassadors, SCOTUS justices, and other principal federal officers with the advice & consent of the Senate.
Congress CANNOT limit the President’s plenary power to select nominees, and the Senate can only choose to consent to the nomination by majority vote.
Contracts Clause
The contracts clause restricts state laws that substantially impair existing contracts. Plaintiff must have had an existing K and the new state law substantially impairs that K.
If it is a private K, more deference is given to the state. If it is a public K, less deference is given to the state.
Either way, the state law is evaluated based on intermediate scrutiny.
Procedural Due Process requirements for public colleges/universities dismissing a student
PDP requires public colleges/universities to provide notice & a meaningful opportunity to be heard before dismissing a student for disciplinary reasons.
However, PDP does NOT require public colleges/universities to provide a meaningful opportunity to be heard when a student is dismissed for academic reasons.
Exception to Takings Clause just compensation requirement
just compensation is NOT required when the gov’t destroys private property in response to a public peril.
What is the EPC “one person, one vote” principle?
EPC “one person, one vote” principle requires the populations in state legislative districts to be approximately equal. A deviation of 10% or less between the populations of legislative districts is minor and does not violate EPC absent evidence of discrimination.
Can the gov’t force a group to accept members who would significantly burden its views?
Under the 1A freedom of association, the gov’t cannot force a group to accept members who would significantly burden its views UNLESS that interference is necessary to achieve a compelling gov’t interest (strict scrutiny)
Unprotected categories of speech include?
(FIDO)
Fighting words
Incitement
Defamation
Obscenity
Rule for gov’t restriction of unprotected categories of speech
The gov’t can prohibit unprotected categories of speech, but it cannot be based on the speaker’s viewpoint (i.e., even regulation of unprotected speech must be viewpoint neutral).
When may criminal trial proceedings be closed to the press and public under the 1A?
criminal trial proceedings may be closed when the court demonstrates that the closure satisfies strict scrutiny.
What is the minimum burden of proof a state must prove its case to terminate parental rights in compliance with PDP?
At least clear and convincing evidence
Do durational residency requirements burden the fundamental right to travel?
YES, therefore subject to strict scrutiny
