Constitutional Law Flashcards
Judicial Review
The power of federal courts, particularly the Supreme Court, to decide cases
Scope of Power of Judicial Review
Review Acts of Congress
Review of Federal Court Decisions
Review of State Court Decisions
Case and Controversy Requirement
The judicial power shall extend to all cases and controversies
Standing
In order to obtain relief, a plaintiff must have a personal stake in the outcome of the case that is likely to be redressed by the relief sought
What happens if a party is only indirectly affected by some action?
They may or may not have standing.
The injury must be “distinct and palpable” and be able to allege personal injury “fairly traceable” to the conduct and “likely to be redressed by the requested relief”
Tax Payer Standing
Most frequently asserted to challenge laws that distribute federal funds to groups with a religious affiliation in possible violation of the Free Exercise and Establishment Clauses
“Double nexus” test for Tax Payer Standing
1) the legislation must be an exercise of Congress’ taxing or spending power
AND
2) The regulation must be alleged to violate a constitutional limitation that affects the taxpayer other than those limitations inherent to the taxing and spending power
Citizen Standing
Standing as a citizen requires that the plaintiff allege some particular injury connected to his or her status as a citizen
Ex: Challenges to state laws that discriminate against citizens from other states in violation of the Privileges and Immunities Clause
Mootness
A court will not grant relief when the controversy ceases to exist
Two Exceptions to Mootness
1) The nature of the controversy means that is necessarily would become moot before a final decision could be rendered and the controversy is likely to recur
2) When the defendant voluntarily ceases the challenged conduct the case does not become moot automatically, the defendant has the burden of showing that it is unlikely that challenged conduct will recur
Ripeness and Concreteness
Threat of a constitutional violation cannot be hypothetical. Courts will not decide the constitutionality of a statute or criminal prosecution unless there is a substantial likelihood that the statute will be enforced or the prosecution will be undertaken
Political Questions
The courts will not review the wisdom of policy decisions entrusted by the Constitution to either of the other two branches of government
Two-Step Political Question Analysis
1) Is there a “textually demonstrable constitutional commitment of the issue to a coordinate political department of government?”
If so,
2) What is the scope of the commitment?
If the Constitution specifically commits the question to a coordinate branch of government, the court will not decide the question
11th Amendment and Sovereign Immunity
Prohibits the exercise of the federal judicial power in suits against a state by citizens of any state or foreign country
Ex Parte Young Doctrine
A federal court can enjoin state action that violates the Constitution or federal law
Can a state waive its 11thA immunity?
Yes
Abstention on Constitutional Issues
A federal court should abstain from unnecessarily deciding a constitutional issue
Where an unsettled question of state law may dispose of the case, a federal court should abstain from deciding the constitutional issue
Scope of National Executive Power
Executive power is vested in the President by Article II
Important Executive Powers
-Sign or veto legislation
-Commander in Chief of the Armed Forces
-Grant reprieves and pardons
-Make treaties
-Appoint ambassadors, judges, and all other offices of the United States subject to Senate approval
-Convene special sessions of Congress
-Enforce and execute all laws of the United States
Powers Granted to Congress (Art I)
-Impose taxes
-Regulate interstate commerce
-Declare war
-Raise and support armies
-Maintain a Navy
*To make all laws necessary and proper to carry out any other power granted by the Constitution
Commerce Power
Art I grants Congress the power to regulate commerce among the states
Issue: Whether the federal regulation is a necessary and proper exercise of that power?
Scope of the commerce power
Federal regulation is permitted even if the activity merely “affects” interstate commerce
What does the commerce power not justify?
Federal legislation affecting purely local activity
Does not grant Congress the power to compel activity, even if the absence of that activity might affect interstate commerce
Taxing and Spending Powers
Congress has the power to tax and to spend for the payment of national debts and for the general welfare
16thA authorizes the imposition of a federal income tax without apportionment among the states or by population
“General welfare”
The limitation that spending be for the general welfare does not require that it be in furtherance of one of the other enumerated powers
War and Treaty Powers
Various specific powers concerning war, treaties, and foreign relations are granted constitutionally to the President and to Congress, respectively
How is the regulatory process of Congress viewed during times of war in support of the war effort?
Expansively
What Articles grant powers to the three branches of the national government?
Art. I, II, III
Will a legislative delegation of power to the executive branch or judicial branch violate separation of powers?
Yes, unless the delegation includes sufficient standards that the delegetee’s action can be judged for its fidelity to the legislative will
What happens when there is a broad congressional delegation on a “major question”?
The Court will examine whether the agency has historically asserted such power and whether there is clear congressional authorization for the power
Powers Reserved to the States
10thA: the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States
Can Congressional action be limited by the 10thA?
Yes, Congressional action upon States which it is no compelled to do can be found a violation of state sovereignty under the 10thA
State Police Power
States possess the police power to regulate and promote the health, safety, morals and welfare of their citizens
How are state powers structurally limited?
States may not enact regulations that are inconsistent with federal law or in areas that have been committed to federal authority
The Supremacy Clause
Federal laws made pursuant to the Constitution and U.S. treaties shall be the supreme law of the land
How can a congressional intent to preempt state action be seen?
1) the scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room to the States to supplement it
2) the federal legislation may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the subject
3) The federal legislation’s object and the character of obligation imposed by it may reveal a dominant federal interest
4) the state policy may produce a result inconsistent with the objective of the federal statute
*Dormant Commerce Clause
Does state action burden the flow of interstate commerce and thereby unconstitutionally interfere with the federal commerce power?
What kind of state laws regarding interstate commerce are unconstitutional?
Only those placing “undue” burdens on interstate commerce
What state’s interest has been found to be sufficiently important to justify a burden?
Health and safety of its citizens
When will a burden on interstate commerce generally not be upheld?
If there is a less burdensome alternative available to the state
What about a state law or action that serves primarily to protect or promote the state’s own economic interests?
Generally will not be upheld
What about a state law or action that discriminates against interstate commerce in favor of intrastate commerce?
Is almost always invalid
Dormant Commerce Clause Analysis
1) Does the law discriminate against interstate commerce?
2) If not, does the law burden interstate commerce?
a) How substantial is the burden?
b) What is the purpose of the law?
c) Is the law’s purpose important enough to justify the burden?
d) Is there a less burdensome alternative?
Privileges and Immunities Clause
The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states
The clause only applies to those privileges and immunities that are “fundamental”
So, must have a citizen and must have a fundamental right
Examples of fundamental rights
Travel, own property, right to transact business or carry on a trade
*Does not apply to non-fundamental rights, such as the right or privilege to hunt elk or engage in other recreational activities
Limitations on State Taxation Power: Commerce Clause
State taxation that unduly burdens or discriminates against interstate commerce violates the Commerce Clause
Can a state tax movable property?
Yes, if it has come to rest and thereby acquired a tax situs within the state
Income Taxes
A state may impose a tax on net income derived by a domestic corporation from interstate transactions so long as the tax does not discriminate against interstate commerce and is fairly apportioned to activities within the taxing state to avoid multiple taxation
Sales and Use Taxes
1) A state cannot impose a sales tax on a sale occurring entirely in another state or on an interstate sale if the effect is to discriminate against interstate commerce
2) A state can require a foreign seller to collect a use tax on goods shipped into the state only if the seller has a sufficient nexus with the taxing state
3) A sales or use tax can be defeated by showing the risk of multiple taxation
State Tax Privileges and Immunities Clause Limitations
If a state tax restricts access to a protected privilege or immunity and is discriminatory against citizens of other states, it is unconstitutional
State Tax Due Process Clause Limitations
If the taxpayer has no minimum contacts with the state, the tax will violate the due process clause
State Tax Equal Protection Clause Limitations
Q: Whether the classification in the taxing scheme employed has a rational basis
Contract Clause
Art. I prohibits any state law impairing the obligation of contracts
SC has used the contract clause to invalidate state laws that effected a severe change in contractual obligations
Ex: A state may not pass a law to undo its own contractual obligations.
Ex: A state may not pass a law that retroactively effects a severe change in contractual circumstances unless the law is necessary to serve an important and legitimate public interest or to address a broad economic or social problem
Takings Analysis
- Was there a taking?
- Was the taking for a public purpose?
- What constitutes “just compensation”?
What constitutes a “taking”?
- A physical occupation of property by the state or condemnation of property
- The denial of all rights in land or substantially all use of land
A substantial regulation of property will not be viewed as a taking that requires just compensation when it is closely related to a substantial public purpose.
Is the taking supported by a public purpose?
States are given wide latitude
The purpose must be closely related to the state regulation in order to support the regulation
The government must reasonably believe the taking will benefit the public
Just Compensation
Ordinarily money damages
Calculation begins from the time the use of the property was denied, not when it was ruled a taking
*Procedural Due Process (CIVIL)
When a person’s liberty or property interests are effected by government or state action the person is entitled to be heard
Three elements of Procedural Due Process
- The presence of state action
- An adverse effect on a recognized liberty and property interest
- Notice and a meaningful opportunity to be heard
*Substantive Due Process
5th A and 14th A prohibit the government and states from depriving a person of life, liberty, or property without due process of law
Economic and Business Regulations
Valid as long as the regulations imposed are rationally related to a valid police power purpose
Punitive Damages and Due Process
Can violate Due Process if the award is grossly excessive” in relation to the state’s legitimate interests in punishing unlawful conduct
An award more than 10x actual damages may be constitutionally excessive
Privacy and Personal Rights
Laws that infringe upon “fundamental rights” may be invalid under Due Process. Determined on a case by case basis.
ex: personal privacy
Rights specifically not enumerated but deeply rooted in the nation’s history and tradition and is essential to the concept of ordered liberty can be protected
When is a state permitted to regulate the exercise of a fundamental right?
Only if 1) serves a compelling state interest and 2) is narrowly tailored to achieve that interest with as little interference as possible on the fundamental right
(strict scrutiny)
Right to Travel
A classification must be deemed to penalize a person who exercises his or her right of interstate migration
ex: A one year waiting period for new residents seeking welfare infringes upon a person’s right to travel
Right to Vote
A law which places a severe restriction on the right to vote will be subject to strict scrutiny and invalid unless supported by a compelling state interest
A law which places a reasonable non-discriminatory restriction on voting will be reviewed to determine whether it is sufficiently justified by an important state interest
Campaign contributions
The govt. can limit the amount a person can donate to another’s campaign. The govt. may not limit the amount that a person expends on their own campaign.
Right to Bear Arms
Right to keep a handgun at home and to carry one outside of the home for self-defense
Standard of Review for the Right to Bear Arms
Regulation must be justified within the nation’s “historical tradition of firearm regulation” with particular attention given to the practices in place at the time that the relevant amendments were adopted
The Right to Education
SC has declined to hold as a fundamental right, judged under the rational relationship test
*Equal Protection
The EP Clause of the 14thA and the Due Process Clause of the 5thA prohibit the denial of equal protection of the laws
Basic concept of EP
Persons similarly situated sholud receive similar treatment
Degree of scrutiny in EP
Depends on whether a classification is characterized as a) burdensome to constitutionally protected rights b) inherently suspect c) quasi-suspect d) neither burdensome nor suspect
How are classifications analyzed that burden constitutionally protected rights or are inherently suspect?
Strict scrutiny. Must be narrowly tailored to a compelling state interest.
How are classifications analyzed that are quasi-suspect?
Varying degrees of scrutiny. Generally, a classification must be related to an important government interest
How are classifications analyzed that are neither burdensome nor suspect?
Rational basis. Must be rationally related to any conceivable government interest
Suspect Classification Types
1) facially discriminatory
2) discriminatory in application or have a discriminatory impact
3) discriminatory motive
Examples of suspect classifications
Race, national origin, state and local alienage classifications
Quasi-suspect classifications
Generally subject to intermediate scrutiny. (subst relationship to an important govt interest)
Examples of quasi-suspect classifications
Gender
Examples of rational basis standard classifications
wealth, age
1st A Rights
Question is whether and how the exercise of a right can be restricted by the government
“Political” Speech
Deserves the highest degree of protection
Speech advocating illegal or criminal acts can be subject to governmental control and punishment even in a political context, but has to be likely to produce such action
Factors: how serious is the advocated conduct? How much influence does the speaker have? Who is listening? Where is the speech occurring? Are there aggravating circumstances that would increase the likelihood of violence?
Commercial Speech
Govt may regulate commercial speech that is false or deceptive
Speech by Public Employees
1) Speech must relate to public concern
2) Govt must show its interest in efficiently delivering public services outweighs the employee’s free speech rights
3) Govt can also justify its action by showing that a negative employment decision would have been reached anyway for reasons unrelated to the employee’s speech
Obscentiy
Not protected by the 1st A
Fighting Words
Restrictions may be placed on public speech that is likely to create a breach of the peace
Speech in Public Places
The govt may place reasonable restrictions on the time, place, and manner of the speech in order to protect the public
Speech in limited public forum and non public forum
Most public property falls under this classification. Govt can reserve the forum for its intended use.
Must be viewpoint neutral and reasonably related to a legitimate government purpose
Speech on Private Property
A private property owner may prevent any form of expression on his property
Symbolic Speech
Conduct may receive 1st A protection if it is combined with protective speech
A state may not prohibit cross burnings if done as an act of political expression but can prosecute if it is meant to intimidate another
*Overbreadth
A statute is unconstitutionally overbroad if it restricts protected speech as well as unprotected speech aka broader than necessary to achieve its intended purpose
*Vagueness
A statute is unconstitutionally vague if it restricts 1st A expression but fails to provide an ascertainable standard of acceptable conduct
Freedom of Association
The right of the people to peacefully assemble and to petition the government for a redress of grievances
Freedom of association will not apply to non-political associations that lack a sufficient degree of privacy and intimacy
Freedom of the Press
Generally, the govt cannot place restraints upon the content of the printed press
Commercial content of news papers can be regulated in the same was as commercial speech
Press and Judicial Proceedings
Right of the press to attend trials, voir dire proceedings, and preliminary hearings in criminal cases. They may be excluded from suppression hearings.
Free Exercise Clause
Forbids the enactment of any law that prohibits the free exercise of religious beliefs
A state must act with neutrality toward religious beliefs and avoid any discrimination or punishment of a party based on religious beliefs
Burdening Religious Practice
A state may pass a law of general applicability even if it incidentally burdens a religious practice provided that it does not punish the practice because it is religious or displays a religious belief
Government policy that burdens a religious practice or belief that is not neutral or generally applicable must satisfy strict scrutiny
Establishment Clause
Prohibits enactment of laws “respecting an establishment of religion”
Requires the govt. to pursue a course of neutrality towards religion
Action that prefers one religious sect over others will violate the Establishment Clause unless the state can satisfy strict scrutiny
