Constitutional Law Flashcards
Case or Controversy
There must be an ongoing dispute across all review levels. To present a case or controversy, a dispute must satisfy the requirements of:
(1) standing,
(2) ripeness, and
(3) mootness.
The case must not present a political question.
Standing
A party has standing if three requirements are met:
(1) an injury or imminent injury,
(2) caused by the defendant’s actions, and
(3) the court can provide a remedy.
Statutes create legal rights, not standing. Citizens can sue the government in Establishment Clause disputes.
Third-Party Standing
A party cannot assert another’s claims without third party standing. Third party standing is granted if:
(1) a special relationship exists,
(2) the injured party cannot or will not assert their rights, or
(3) they have organizational standing.
Organizational standing: the organization has suffered, or
(a) members individually have standing,
(b) the injury is germane to the organization’s purpose, and
(c) neither claim nor relief requires individuals.
Ripeness
A dispute has developed enough to:
- Warrant a DECISION
- Include concrete ISSUES
- Potential ENFORCEMENT, and
- Presence of HARM or immediate threat of harm.
Commerce Clause
Congress has the authority to regulate Interstate commerce, including:
(1) channels,
(2) instrumentalities, and
(3) economic activities with substantial effects on commerce.
Congress can regulate intrastate non-economic activities, if it individually and substantially affects interstate commerce.
Dormant Commerce Clause
State & local laws are unconstitutional if they put an undue burden on interstate commerce.
Facially discriminatory laws: burden interstate commerce, and are not necessary to achieve an important government purpose.
Hidden discrimination: the law violates the ICC, and the burdens of the law outweigh the benefits.
Such laws are valid if:
(1) they have express approval from Congress, or
(2) the state is a market participant in the regulated area.
State Taxation and Intergovernmental Immunity
A tax imposed by a state imposes an unfair burden unless:
(1) the taxed activity has a substantial nexus to the state;
(2) the tax is fairly apportioned; and
(3) the tax fairly relates to services provided by the state.
NO taxing federal activity
Appointments Clause
The President, with the advice and consent of the Senate, may appoint principal officers. Congress can empower the President, courts, or department heads to appoint minor officers.
Police Power
Congress has no general police power. Congress can legislate for military bases, reservations, federal land, and Washington DC. States do retain the police power within their boundaries.
Supremacy Clause
Federal law trumps conflicting state or local laws.
Express preemption: exclusive authority provision, narrowly construed, overrides the state law.
Implied preemption: courts presume the state law is valid unless Congress intended to supersede state law by:
(1) mutual exclusivity,
(2) the state law is impeding a federal objective, or
(3) there was a clear intent to legislate exclusively.
Article IV Privileges & Immunities
No discrimination by states against “fundamental rights.” A state can show substantial justification by no less restrictive means to solve a problem. If the law is non-discriminatory, still check whether it violates the interstate commerce clause or the dormant commerce clause.
State Action vs Private Action
Constitutional rights are enforceable against government entities. Private action can be considered government action if:
(1) the government is significantly involved in the private action, or
(2) the private action is traditionally and exclusively government action. Essential services are not state action.
Equal Protection Clause
EPC protects against government discrimination. Facially discriminatory laws draw distinctions. Facially neutral laws are discriminatory only if there is discriminatory impact and intent.
Strict Scrutiny: racial & national origin discrimination.
Intermediate scrutiny: gender and illegitimate children.
Rational Basis: all other issues.
Rational Basis Review
A law will be upheld if it is rationally related to a legitimate government purpose. “Legitimate” may be any conceivable, permissible purpose (needn’t be actual purpose).
Challenger has burden of proof.
Intermediate Scrutiny
(Substantial Relation)
A law will be upheld only if the government shows it is substantially related to an important government purpose.
The government has the burden of proof. It must be the actual purpose, with means narrowly tailored to achieve the purpose.
Strict scrutiny
The government must show that a law was:
(1) necessary,
(2) to achieve a compelling government purpose; and
(3) it was the least restrictive means of achieving the government’s goal. The government has the burden of proof.
Alienage (Citizenship)
Discrimination based on citizenship is subject to strict scrutiny. Exceptions are:
(1) if there is a congressional law regarding immigration, or
(2) if the state law is related to self-government or democratic process.
Right to Travel
Subject to Strict Scrutiny.
Durational residence requirements can be allowed in certain cases:
(1) right to vote = 30 days,
(2) get a divorce = 1 year.
Substantive Due Process
Shields from government encroachment on fundamental rights. Subject to strict scrutiny.
Categories of fundamental rights include: marriage, procreation, custody and upbringing of children, contraceptives, homosexual activity, refuse medical treatment, bear arms, travel, or vote.
Education is NOT a fundamental right.
Procedural Due Process
In order for the government to deprive someone of life, liberty, or property, there must be a fair process (notice & a hearing).
Balancing test, between:
- The importance of the individual interest;
- The value of procedural safeguards; and
- The government’s interest.
Takings Clause
Government can take private property for a public purpose, but it must provide fair compensation to the owners of that property.
Possessory taking = confiscation or occupation
Regulatory taking = NO reasonable economically viable use of the property remains.
Compensation is based on loss incurred by the owner in terms of reasonable market value.
First Amendment: Prior Restraint
Prevents speech before it occurs. The government must show that the restraint is narrowly tailored to achieve a compelling or significant government interest.
First Amendment: Vagueness
If a regulation fails to give people reasonable notice of what is permitted, it may violate the due process clause.
First Amendment: Overbroad
Regulation is overbroad and facially invalid if it penalizes a significant portion of protected speech compared to legitimate applications.
Content-Based Discrimination
Subject to strict scrutiny.
The government must show that the regulation is necessary to serve a compelling government interest and is narrowly drawn to achieve that end.
Content-Neutral Discrimination
Subject to intermediate scrutiny.
Must:
(1) advance an important government interest unrelated to suppression of speech, and
(2) not unduly burden substantially more speech than necessary.
Symbolic Speech
Government can regulate symbolic speech if:
(1) the regulation furthers an important government interest;
(2) the interest is unrelated to suppression, and
(3) the impact on speech is no greater than necessary.
Commercial Speech
Commercial speech is not protected if false, misleading, deceptive, or illegal. The government can regulate protected commercial speech if:
(1) there is a substantial government interest,
(2) the regulation directly advances the interest, and
(3) the regulation is no more extensive than necessary.
Obscenity
The government can regulate obscenity when:
(1) it appeals to a prurient interest, based on community standards,
(2) is patently offensive, and
(3) taken as a whole, the material lacks literary, artistic, political, or scientific value based on a national standard.
Incitement
The government can regulate speech inciting imminent unlawful activity if:
(1) there is a substantial likelihood that the speech will bring about imminent illegal activity, and
(2) the speech is aimed at causing imminent illegality.
Fighting Words
The government may regulate fighting words. Fighting words include direct personal insults to incite a breach of the peace, likely to cause immediate violent retaliation against the speaker.
Time, Place, and Manner Restrictions
Speech conduct can be regulated by a content-neutral time, place, or manner restriction. In a public forum, the restriction must be content-neutral, narrowly tailored to support an important government interest, and leave alternate channels of speech open.
Public Forum
Government property held for use by the public, constitutionally required to be open for purposes of exercising rights of speech and assembly. (sidewalks and parks).
Restrictions must be content-neutral, narrowly tailored to support an important government interest, and leave alternate channels of speech open.
Permit fees that vary depending on speech are content-based, unconstitutional.
Limited/Designated Public Forum
Government properties open for speech, but can be closed at any time. Follows the same rules as public forum restrictions, but only when open for speech.
Nonpublic Forum
Government property that can be closed to speech. Military bases and airports.
Government can regulate if the regulation is: (1) reasonably related to a legitimate purpose; and
(2) viewpoint neutral.
Free Exercise Clause
Government cannot punish religious beliefs unless necessary to achieve a compelling interest. This applies only if the law’s purpose is to limit or interfere with religious practice. Laws of general applicability are valid.
Establishment Clause
The government cannot:
(1) establish a national religion,
(2) show preference for one religion over another, or
(3) favor religion over non-religion (or vice versa). This is guided by “historical practices and understandings.”
Executive Powers
The president has the power to:
(1) grant pardons (unqualified - Congress cannot limit) - Art II, sec. 2, cl. 1
First Amendment: Freedom of the Press
The First Amendment protects the right to publish lawfully obtained, truthful information about matters of public significance and the right to attend a criminal trial.
Government actions that abridge those rights must survive STRICT SCRUTINY.
(least restrictive means, to achieve a compelling government interest)
First Amendment: Freedom of Association
The government can interfere with the First Amendment freedom of association by punishing persons who:
(1) are active members of a subversive organization,
(2) know of the organization’s illegal objectives, and
(3) specifically intend to further those objectives.
Eleventh Amendment: State Immunity to Prosecution
The Eleventh Amendment bars private parties and foreign governments from suing a state in federal court without the state’s consent.
This immunity extends to suits against state officials for a violation of state law, regardless of the type of remedy that is sought (damages vs. injunctive relief).
Race-based classifications
All race-based classifications imposed by the government must survive strict scrutiny.
This requires the government to prove that these classifications are necessary to achieve a compelling government interest—e.g., to remedy its own history of racial discrimination.
Fifteenth Amendment
The Fifteenth Amendment prohibits state and federal governments from denying any citizen the right to vote based on race.
Courts have held that the right to vote is the right to have the vote meaningfully counted.
