Constitutional Law Flashcards
The Requirements for Cases and Controversies (Justiciability Requirements)
- Standing (Most important)
- Ripeness
- Not Moot
Standing
Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
- Injury
- Causation
- Redressability
- No Third Party Standing
- No Generalized Grievances
Injury
The plaintiff must allege and prove that he or she has been INJURED or IMMINENTLY will be injured.
Plaintiff may only assert injuries that they personally have suffered.
Plaintiff seeking injunctive or declaratory relief must show a likelihood of future harm.
Causation and Redressability
The Plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury.
What about third Party Standing?
A plaintiff cannot assert claims of others, of third parties, who are not before the court.
Exceptions to Third Party Standing
- If there is a close relationship between the plaintiff and the injured third party.
- If the injured third party is unlikely to be able to assert his or her own rights.
- An organization may sue for its members if:
- members would have standing
- the interest are germane to the organization’s purpose
- Neither the claim nor relief requires participation of the individual members
What about generalized grievances for meeting the Standing requirements?
The Plaintiff must not be suing solely as a “citizen” or as a “taxpayer” interested in having the government follow the law.
Look for this to render it generalized.
What is the exception to the generalized grievances?
Taxpayer have standing to challenge government expenditures pursuant to federal, state, or local statutes as violating the Establishment Clause.
Ripeness
The question whether a federal court may grant pre-enforcement review of a statute or regulation.
Case or Controversies
Tip: Whenever you have a request for declaratory judgment, look for a ripeness issue.
What are the factors to consider for Ripeness?
- The hardship that will be suffered without pre-enforcement review;
AND - The fitness of the issues and the record for judicial review.
Mootness
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.
Exceptions to Mootness
- Wrong capable of repetition but evading review.
- Voluntary cessation. If the D voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot.
- Class action suits.
- so long as a member is still being injured.
Political Question Doctrine
Refers to constitutional violations that the federal courts will not adjudicate.
Examples of Political Question Doctrine and Dismissed
- The Republican Form of Government Clause
- look for this language, answer is it is not justiciable - Challenges to the President’s conduct of foreign policy
- Challenges to the impeachment and removal process
- Challenges to partisan gerrymandering.
What do you do for questions that ask about standing?
Look for the one that was injured directly.
The correct answer the is the plaintiff that suffered a monetary harm.
What type of cases are available for Supreme Court Review?
- All cases from state courts come to the Supreme Court by Writ of Certiorari.
- All cases from the United States courts of appeals that come from Writ of Certiorari
- Appeals exist for decisions of three-judge federal district courts
- Original and Exclusive jurisdiction for suits between state governments.
**After final judgment from the three mentioned venues - FINAL JUDGMENT RULE - exhaust state and federal appeals
Lower Federal Court Review
- Federal Courts (and state courts) may not hear suits against state governments. (Sovereign Immunity)
- Abstention. Federal Courts may not enjoin pending state court proceedings.
**All justiciability requirements need to be met.
The Principle of Sovereign Immunity
- The 11th Amendment bars suits against states in federal court.
- Sovereign immunity bars suits against states in State Courts or federal agencies.
Exceptions to when States may be sued
- Waiver
- States may be sued pursuant to federal laws adopted under Section 5 of the 14th Amendment.
- The federal government may sue state governments.
- Bankruptcy proceedings
What about suits against State officers?
They are allowed:
- Sued for injunctive relief
- Sued for money damages to be paid out of their own pockets.
**May not be sued if it is the state treasury that will be paying retroactive damages.
Federal Legislative Power
Federal Legislative Power
Congress’s Authority to Act
- There must be express or implied Congressional power.
- MILD (Military, Indian, Land, DC) - The necessary and proper clause
- The taxing/spending power.
- Commerce power
Taxing and Spending Clause
Congress may tax and spend for the general welfare.
The Commerce Power
- Congress may regulate the channels of interstate commerce.
- Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce.
- Congress may regulate economic activities that have a substantial effect on interstate commerce.
-
Is there any limit on Congressional Powers?
- 10th Amendment. (most important)
AND - Section 5 of The 14th Amendment
10th Amendment Limit on Congressional Powers
All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
- Congress cannot compel state regulatory or legislative action. CAN PUT STRINGS ON GRANTS AS LONG AS NOT UNDULY COERCIVE.
**Congress may prohibit harmful commercial activity by state governments.
Section 5 of the 14th Amendment Limit on Congressional Powers
Congress may not create new rights or expand the scope of rights.
Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations.
Delegation of Powers
- No limit exists on Congress’ Ability to delegate legislative power.
- Legislative vetos and line-item vetos are unconstitutional
- Must go through Bicameralism and Presentment (i.e. checks and balances
**Obviously cannot delegate executive or judicial power to itself.
The Federal Executive Power
- Foreign Policy
2. Domestic Affairs
What does Foreign policy contain?
- Treaties
- Executive Agreements
- Broad powers as Commander-in-Chief to use American troops in foreign countries.
Treaties
Agreements between the US and a foreign country that are negotiated by the President and are effect when RATIFIED by the Senate.
Effectiveness of Treaties
- Treaties prevail over conflicting state laws.
- If a treaty conflicts with a federal statute, the one adopted last in time controls. GOING TO BE ON EXAM
- If a treaty conflicts with the US Constitution, it is invalid.
Executive Agreements
An agreement between the US and a Foreign Country that is effective when signed by the President and the head of the foreign nation.
No need for Senate Ratification
Effectiveness of Executive Agreements
- Executive Agreements can be used for any purpose.
- Executive Agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.
What domestic affairs are handled by the Executive Branch?
The appointment and removal power.
Power to pardon those accused or convicted of federal crimes.
- NOT STATE LAW CRIMINAL CONVICTIONS - ONLY FOR CRIMINAL
Privilege for presidential papers and conversations.
The Appointment Power under Executive Branch
The president appoints ambassadors, federal judges and officer of the US.
Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts.
Congress may not give itself or its officers this power.
The Removal Power
Unless removal is limited by statute, the President may fire any executive branch office.
How can Congress limit the Removal Power?
- It must be an office where independence from the President is desirable
- Independent Counsel, Prosecutor
- Not cabinet members
AND - Congress cannot prohibit removal, it can limit removal to where there is good cause.
Impeachment and Removal
The President, the VP, Federal judges and officers of the US can be impeached and removed for: 1. Treason 2. Bribery 3. High crimes AND 4. Misdemeanors
Impeachment
Does not remove a person from office.
Impeachment by the House of Representatives requires a majority vote.
Conviction in Senate requires a 2/3 vote.
Presidential Immunity
Absolute immunity to civil suits for money damages for any actions while in office.
No immunity for actions that occurred prior to taking office.
FEDERALISM
FEDERALISM
Preemption (4-6 questions on Multistate)
The Supremacy Clause of Article 6 provides that the Constitution and laws and treaties made pursuant to it, are the supreme law of the land.
- Express preemption
- Implied preemption
- States may not tax or regulate federal government activity (Inter-governmental immunity - refers to immunity federal government from unwanted state taxation)
- Can tax mom and pop store
- Cannot tax federal army surplus stores
Express Preemption
If a federal statute explicitly says that federal law is exclusive in a field.
Implied Preemption
- If the federal and state laws are mutually exclusive, federal law preempts state law.
- not possible to simultaneously comply - If state law impedes the achievement of a federal objective, federal law preempts state law.
- If Congress evidences a clear intent to preempt state law, federal law preempts state law.
-
* *Environmental standards can be stricter unless clearly preempted by Congress.
* *Federal Government does not have to comply with State Pollution Laws.
Dormant Commerce Clause
Negative implications of the commerce clause.
The principle that a State or local law is unconstitutional if it places an excessive burden on Interstate Commerce.
Limit on what a State or Local government can do.
The Privileges and Immunities of Clause of Article 4
No State may deny citizens of other States of the privileges and immunities that it accords its own citizens.
Anti-discrimination provision.
The Privileges and Immunities Clause of the 14th Amendment
Must involve the right to Travel.
No State shall deprive any Citizen of United States Citizenship.
Question to Ask when dealing with a law’s application to citizens of a different state
Does the state law discriminate against out-of-states?
Analysis if the law does NOT discriminate
- The privileges and immunities clause of the Article 4 does not apply.
- If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.
- If the benefit exceeds the burden, the law is upheld
Analysis if the Law Discriminates against out-of-staters
- If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve the important government purpose.
Exceptions: - Congressional Approval, - Market Participant Exception- No other less restrictive way.
- If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the privileges and immunities clause of Article 4 UNLESS it is necessary to achieve important government purpose.
**Corporations and Aliens cannot use the privileges and immunities and clause.
GREAT COMPARISON CHARTS ON PAGE 16, 17
GREAT COMPARISON CHARTS ON PAGE 16, 17
Market Participant Exceptions
A state or local government may prefer its own citizens in recieving benefits from government programs or in dealing with government programs or in dealing with government owned business.
Examples:
- The University of California can charge less to admission for instaters. Public
- State owned cement factory charging more for out of staters, it was a state owned business. Government Owned.
State Taxation of Interstate Commerce
- States may not use their tax systems to help in-state businesses.
- A state may only tax activities if there is a substantial nexus to the state.
- State taxation of Interstate businesses must be fairly apportioned.
What is a States requirement in regards to Full Faith Credit to Other States Judgments?
Courts in one state MUST give full faith and credit to judgments of courts in another state so long as:
1. The court that rendered the judgment had jurisdiction over the parties and the subject matter.
- The judgment was on the merits
- The judgment was final.
Limitations of the Constitution and Congress Over Individuals
- The Constitution applies only to government action. Private conduct need not comply with the Constitution.
- Congress, by statute, may apply constitutional norms to private conduct.
- The 13th Amendment can be used to prohibit private race discrimination: slavery, indentured servitude.
- The Commerce power can be used to apply constitutional norms.
**No used of Sec. 5 of 14th Amendment to regulate private behavior.
Exceptions to the Limitations of Congress and the Constitution (Where Private Conduct Must Comply with Constitution)
- Public Function Exception
2. The Entaglement exception
Public Function Exception
The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government
- Voting companies holding elections
- Company owned town
Entanglement Exception
The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
Examples of Entanglement Exception
- Courts cannot enforce racially restrictive covenants.
- There is state action when the government leases premises to a restaurant that racially discriminates.
- There is state action when a state provides books to schools that racially discriminate.
- There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech.
- There is no state action when the NCAA orders the suspension of a basketball coach at a state university.
- There is state action when a private entity regulates interscholastic sports within a state.
- There is not state action when a private club with a liquor licences from the state racially discriminates.
The Application of the Bill of Rights
- The Bill of Rights applies directly only to the federal government.
- The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment.
Exceptions to the Application of the Bill of Rights
- The 3rd right to no have a soldier quartered in a person’s home;
- The 5th right to grand jury indictment in criminal cases;
- The 8th right against excessive fines.
Contract Clause
Limits the ability of States to enact laws that retroactively impair contract rights.
**Only applies to States
Impairment Levels and Standards Applied
- Private Contracts - Intermediate Scrutiny
- important and legitimate public interest
- Reasonable and narrowly tailored means. - Public Contracts - Stricter Scrutiny
Ex Post Facto Laws
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.
1. Makes criminal an act that was innocent when done;
OR
2. Prescribes greater punishment for an act than was prescribed for the act when it was done;
OR
3. Reduces the evidence required to convict a person of a crime from what was required when the act was committed.
**Only applies to CRIMINAL CASES
Bills of Attainder
Legislative acts that inflict punishment on individuals without a judicial trial.
Federal and State Government are prohibited from passing bills of attainder.
Takings Clause
“Nor shall private property be TAKEN for PUBLIC USE without JUST COMPENSATION”
Rational Basis
Takings Clause: Private Property
Owned by an individual under State Law
Two Types of Takings
- Physical Invasion
2. Regulatory
Takings Clause: Just Compensation
Fair Market value
Termination of regulation and pay temporary taking damages.
**Loss determined by LOSS TO THE OWNER
Takings Clause: Physical Invasion
The government takes the property from you and title has been transferred
OR
Government mandates access to the property.
- *Per se - a taking and compensable and taking can be de minimis
- *Eminent Domain
Takings Clause: Regulatory
The government has regulated your use of your property leaving no reasonable economic viable use of the property.
Zoning, Destruction of Trees
Compensation: Reciprocity of advantage.
Factors to Consider Constitutionality of Regulatory Taking
- Economic impact of the regulation on the claimant.
- Extent to which the regulation has interfered with distinct, REASONABLE, investment backed expectations.
- Character of the governmental action.
Others. Degree of harm to land, social value of wanted activities AND the ease the alleged harm can be avoided by other means.
Three Ways Individual Rights are Protected
- Procedural Due Process
- Substantive Due Process
- Equal Protection
Procedural Due Process
Procedures Government must follow when taking away life, liberty, property.
- Notice, type of hearing
Substantive Due Process
Government has an adequate reason to take away life, liberty, property.
- Depends on relationship between Right and Scrutiny
Equal Protection
Government distinction drawn on how it treats people.
- type of discrimination
Process for Procedural Due Process Question
- Has there been a deprivation of life, liberty, or property?
- What procedures are required?
Deprivation of Life
Obvious
Deprivation of Liberty
If there is the loss of a significant freedom provided by the Constitution or a Statute.
**Not reputation, prisoners lose these.
Examples:
- Adults being institutionalized without hearing/notice
Deprivation of Property
If there is entitlement and that entitlement is not fulfilled.
Examples:
- Government worker fired middle of term, need due process
- Contract said no expectation, no due process.
An answer choice that is always wrong???
“… as the rights and privileges distinction.”
“government negligence is not enough for deprivation of the process.
failure to protect people from privately inflicted harms
Deprivation
- Intentional government action
OR - At least reckless action for liability to exist.
What about deprivation under emergency?
Government only liable for conduct that “shocks the conscience”
What procedures are required?
Judicial Discretion in determining using these factors:
- The importance of the interest to the individual
- The ability of additional procedures to increase the accuracy of the fact-finding
- The government’s interest.
**Notice and Hearing
Examples of Procedural Due Process Being Required
- Welfare termination
- Social Security Disability
- Child at Public School
- Custody of Child Termination
- Punitive Damages
- American Citizen Held Enemy Combatant
- Pre-Judgment attachment/ Government Seizure
Levels of Scrutiny
- Rational Basis
- Intermediate Scrutiny
- Strict Scrutiny
Rational Basis
Minimal Scrutiny
Upheld if law is RATIONALLY RELATED to a LEGITIMATE government purpose.
BOP on Challenger
**Classes - Age, Disability, Poverty, Sexual Orientation
Intermediate Scrutiny
Regulations involving quasi-suspect classifications
Upheld if law SUBSTANTIALLY RELATED to an IMPORTANT government purpose.
BOP on Government (probably but unclear)
**Classes - Gender and Legitimacy
Strict Scrutiny
Regulations involving fundamental rights OR involving suspect classifications
Upheld if the law is NECESSARY to achieve a COMPELLING government purpose.
BOP on Government
**Classes- race, national origin, and alienage
Rights Triggering Strict Scrutiny
- Marry
- Procreate
- Custody of Children
- Keep Family Together
- Control Raising of Children
- Purchase and Use Contraceptives
- Travel (not Foreign)
- Vote (excluding residence, age, and citizenship restrictions)
- Freedom of Speech
- Freedom of Association
- Free Exercise of Religion
Rights Triggering “Undue burden test”
Right to abortion.
Viability Analysis
Not a Fundamental Right (Rational Basis Review)
- Right to practice a trade or profession
- Right physician-assisted death
- Right to education
Situations Where Level of Scrutiny is Unknown
- Right to engage in private consensual homosexual activity.
- Right to refuse medical treatments
- Right to possess firearms
Approach to Equal Protection
- What is the classification?
- What level of scrutiny should be applied?
- Does this law meet the level of scrutiny?
Constitutional Provisions Concerning Equal Protection
- 14th amendment - only to state and local governments
2. 5th Amendment - Federal Government
How is the existence of a classification proven?
- The classification is on the face of the law;
OR - If the law is facially neutral, proving a racial classification requires demonstrating both:
- Discriminatory impact
AND
- Discriminatory intent.
**Education may use race as A FACTOR in admissions to help minorities PLUS no other neutral alternative.
Valid or Invalid? Gender-based death benefits
Invalid
Valid or Invalid? Gender-based peremptory strikes
Invalid
Valid or Invalid? Alimony for women only
Invalid
Valid or Invalid? State-supported all-mall or all-female schools
Invalid
Valid or Invalid? Discriminatory minimum drinking age (women 18, men 21)
Invalid
Valid or Invalid? Discriminatory statutory rape laws
Valid
Valid or Invalid? All-male draft
Valid
Valid or Invalid? Requiring American fathers (not mothers) to prove their parentage of nonmarital children born abroad in order to obtain U.S. Citizenship for them.
Valid
THE FIRST AMENDMENT
THE FIRST AMENDMENT
General Rules of Constitutional Protection Found in the 1st Amendment
- Content based v. content-neutral restrictions
- Prior Restraints
- Vagueness and overbreadth (fighting words)
- Symbolic Speech (flag burning, contribution limits, non-threatening cross burning)
- Anonymous Speech
- Speech by Government
- Profane and indecent speech (not schools or broadcast media)
Content Based Restrictions
Must meet Strict Scrutiny
- Subject matter (topic)
- Viewpoint (ideaology)
Content Neutral Laws
Must meet intermediate scrutiny
Prior Restraints
Before it occurs
Court orders suppressing must meet Strict Scrutiny (Collateral bar rule)
Valid IF:
1. The standards must be narrowly drawn, reasonable, and definite;
2. Injunction must promptly be sought;
AND
3. There must be prompt and final determination of the validity of the restraint.
Restraints Through Licenses
Valid IF:
- Important reason
- Clear criteria
- Judicial Review available
Limit on Symbolic Speech
Valid if:
1. Important interest unrelated to suppression of the message
AND
2. impact on communication is no greater than necessary to achieve the government’s purpose.
What speech is unprotected or less protected by the First Amendment?
- Nude Dancing
- Draft Card Burning
- Expenditure limits
- Incitement of illegal activity
- Obscenity and Sexually-Oriented speech
- Commercial Speech
- Defamation
- Speech by Government employees on the job in the performance of duties
Test for “Incitement of Illegal Activity”
Not protected IF:
1. Substantial likelihood of imminent illegal activity
AND
2. If the speech is directed to causing imminent illegality.
Test for “Obscenity and Sexually-oriented speech”
Not Protected IF:
- The material must appeal to the prurient interest
- The material must be patently offensive under the law prohibiting obscenity
- Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value.
Test for “Commercial Speech”
- Commercial Speech with inherently risk of deception can be prohibited.
- Intermediate scrutiny for the rest.
Upheld IF:
1. Serves a substantial government interest
2. Directly advances that interest
AND
3. Is narrowly tailored to serve that interest.
Defamation of Public Official
Liability Standard: Actual Malice
Damages: Compensatory Presumed/Punitive
BOP: Plaintiff must prove falsity
Defamation of Public Figure
Liability Standard: Actual Malice
Damages: Compensatory Presumed/Punitive
BOP: Plaintiff must prove falsity
Defamation of Private Figure, Matter of Public Concern
Liability Standard: Negligence and Actual Injury
Damages: Compensatory for Actual Injury; Presume or Punitive Damages Require Actual Malice
BOP: Plaintiff must prove falsity
Defamation of Private Figure, Matter of Private Concern
Liability Standard: Unclear - Negligence
Damages: Compensatory for Actual Injury; Presumed or Punitive Damages Do Not Require Actual Malice
BOP: Unclear - Burden on Defendant to Prove Truth
What places are available for speech?
- Public Forums
- Designated Public Forums
- Limited Public Forums
- Non-public forums
**No first amendment right to use private property for speech purposes.
Restrictions On Speech in Public Forums
Must be:
- Subject matter neutral
- Viewpoint neutral
- Method of time, place manner
- Serve important government purpose
- Leaves open adequate alternative places for communication
Examples: sidewalks, parks
Restrictions on Speech in Designated Public Forums
Must be:
- Subject matter neutral
- Viewpoint matter neutral
- Method of time, place, and manner
- Serve important government purpose
- Leaves open adequate alternative places for communication
Examples: non-public forums that the government opens to speech
Restrictions on Limited Public Forums
Must be:
- Viewpoint neutral
- Method of reasonable regulation
- Legitimate government purpose
Restriction on Non-Public Forums
Must be:
- Viewpoint neutral
- Method of reasonable regulation
- Legitimate government purpose
Freedom of Association
Laws that prohibit or punish group membership must meet strict scrutiny.
Laws that require disclosure of group membership, where such disclosure would chill association, must meed strict scrutiny.
Laws that prohibit a group for discriminating are constitutional unless they interfere with intimate associate or expressive activity.
How to punish membership in a group?
Must be proven that the person: 1. Actively affiliated with the group; 2. Knowing of its illegal activities; AND 3. With the specific intent of furthering those illegal activities.
Aspects of Freedom of Religion
- The Free Exercise Clause
2. The Establishment Clause
Free Exercise Clause Prohibits
- State governments from requiring office holders or employees to take a religious oath.
- State from excluding clerics from holding public office
- Courts from declaring a religious belief to be false.
Exceptions: Picking a Minister, Unemployment Compensation Cases after quitting b/c religion, Right of Amish no to educate children)
Establishment Clause
Government action challenged under the Establishment Clause will be found invalid UNLESS:
- has a secular purpose
- Has a primary effect that neither advances nor inhibits religion;
AND - Does not produce excessive government entanglement with religion.
