constitutional law Flashcards
potential issues with a free speech restraints (3)
*vagueness
*overbreadth
*prior restraint
considerations for government speech
*if the speech is within government control, viewpoint discrimination is allowed
*employees are not protected if speaking within the scope of their duties OR if speaking as a private citizen on a matter of public concern if the government’s interest in efficient functioning outweighs the employee’s 1A rights
are regulations on campaign contributions and expenditures allowed?
*contribution restrictions must be “closely drawn” to correspond with a sufficiently important interest (generally allowed)
*expenditure restrictions are subject to strict scrutiny
expressive conduct may be restricted when
*the regulation furthers an important government interest
*the regulation is unrelated to the expression
*the burden is no greater than necessary
what type of 1A restriction is presumptively unconstitutional?
viewpoint discrimination
exceptions (6) to the ban on content-based restrictions
*obscenity: about sex, offensive to the average person, obscenity is clearly defined, the content provides no value
*incitement: advocate for imminent force or illegality
*fighting words / true threats: advocates for an immediate breach of the peace or violence
*defamation
*commercial speech: for lawful activity (not false/misleading), restriction must be a reasonable fit (narrowly tailored/no greater than necessary) for substantial interest
*clear and present danger exists
types of free speech restrictions
*content-based: prohibits speech based on subject matter
*content-neutral: restricts the time, place, or manner of speech
types of free speech restrictions
*content-based
*content-neutral
when can speech be restricted in a public forum?
when the restriction
*is neutral on its face and as applied
*leaves open alternate channels of communication
*reasonable fit (narrowly tailored/no greater than necessary) for a significant/substantial state interest
*is content and viewpoint neutral
*otherwise subject to strict scrutiny (content-based)
when can speech be restricted in a nonpublic forum?
when the restriction is
*viewpoint neutral (but could be content-based)
*rationally/reasonably related to a legitimate government interest
types of religious clauses
*Establishment Clause: government must be neutral as to religion (can’t prefer one religion over another or religion over non-religion)
*Free Exercise Clause: freedom to sincerely believe in anything and to act on those beliefs
standard of review for religious clauses
strict scrutiny
when is state action that infringes on the free exercise clause not subject to strict scrutiny?
*generally applicable
*neutral on their face
*incidentally impact on religious conduct
five considerations for the establishment clause
*financial aid if the aid is secular in nature and purpose, and neutral as to religion if distributed among secular and religious institutions (e.g., tax deductions)
*access to public facilities must be equal
*public schools (prohibited vs. permitted actions)
*religious displays must have a generally secular message
*legislative prayers are acceptable
two privileges and immunities clauses
*14A: states can’t infringe on the privileges and immunities related to national citizenship
*Art. 4: no out-of-state discrimination preventing private job access
elements of taking
*taking property: modify, destroy, occupy, give to 3rd party, require specific use, cause total loss of economic value, eliminate property interests (ability to alienate)
*any conceivable public purpose
*just compensation provided
when does a regulatory taking occur?
the regulation
*substantially restricts the use of the property (totality of circumstances: character or nature of government action, economic impact on property, interference with owner’s reasonable investment-backed expectations) OR
*deprives the owner of all economically beneficial use (but possession retained)
types of prohibited laws
*Bills of Attainder
*ex post facto laws
*obligations of contract (can’t interfere with private contracts)
EP: protected classes for each level of judicial review
*strict scrutiny (presumptively unconstitutional): race, ethnicity, national origin
*intermediate scrutiny (presumptively unconstitutional): gender, legitimacy
*rational basis with bite: sexual orientation
*rational basis (presumptively constitutional): everything else
required proof for discrimination based on a protected class and related considerations (3)
discriminatory intent
*face of law
*application/motive: context and history, stats
specific instances where race may be implicated (2)
*public school segregation: de jure (by law) only
*affirmative action: race can no longer be determinative for college admissions
when can a state restrict noncitizens’ actions?
when related to participation in government functions (rational basis)
type of review for substantive due process
strict scrutiny
fundamental rights protected by substantive due process
*right to travel (but states can enact reasonable residency requirements to receive non-essential benefits)
*right to vote (severe/discriminatory and subject to strict scrutiny: racial gerrymandering and poll taxes VS. reasonable/nondiscriminatory and subject to rational basis: felons’ inability to vote and photo ID)
*right to privacy: to marry, to intimate associations, to contraceptions, to parental rights
*to bear arms (2A)
types of judicial review
*strict scrutiny: action must be necessary (narrowly tailored / least restrictive means) to achieve a compelling government interest (presumed invalid until disproven by government)
*intermediate scrutiny: action must be substantially related to an important government interest (presumed invalid until disproven by government)
*rational basis: action must be rationally related to a legitimate government interest (presumed valid until disproven by challenger)
considerations for procedural due process (3)
*is the threatened interest protected?
*is the threat intentional?
*if yes to both, what process is due?
interests protected by procedural due process
*life
*liberty: restrictions of fundamental rights
*property: must have a legitimate claim to the property, includes employment
factors for balancing what procedure is due
*individual interest at stake
*risk of erroneous deprivation using current procedures + probable value of other safeguards
*government interest: burden in providing the additional safeguard
when is a state responsible for the actions of a private actor
*was the private actor carrying out traditional government functions? normally performed exclusively by the state?
*is the state entangled with the private actor? mutually beneficial contacts? hard to delineate between the two?
*is the state facilitating or endorsing the private action?
types of preemption
*express preemption: explicitly stated by Congress
*conflict preemption: impossible to comply with federal and state law at the same time or state law frustrates the purpose of federal law
*field preemption (rare): Congress legislated so much they are considered to occupy the area
types of interstate relationships
*interstate compact clause: states can enter into agreement with each other; require congressional consent if changing the federal and state power balance
*full faith and credit clause: a state must respect and acknowledge the final judgment on the merits of another state that had proper jurisdiction
requirements for a state to tax interstate commerce
the tax
*is not discriminatory or unduly burdensome
*has a substantial nexus to the state
*provides for fair apportionment among the states
*is fairly related to the benefits/services provided by the state
dormant commerce clause rule
if there is no federal legislation in a particular area, the states can regulate commerce in that area
exceptions to the dormant commerce clause
*discrimination against out-of-state commerce
*necessary (no reasonable
alternative) to serve a legitimate
noneconomic state interest
*state is acting as a market
participant / conduct involves a
traditionally local government
function
*Congress authorizes such action
*unduly burdensome on interstate commerce
*purpose of regulating wholly out-of-state activity
four federal government privileges and immunities
*executive immunity: from civil liability for official acts (NOT from before president or in a private capacity)
*judicial immunity: from civil liability for all judicial acts, unless it is clear the judge did not have jurisdiction
*legislative immunity: from civil or criminal liability for anything said in the regular legislative process (inc. aides)
*executive privilege: for certain confidential information BUT can be outweighed by demonstrated need
four things aiding separation of powers
*impeachment: by majority of House + convict by 2/3 of Senate
*impoundment: President has discretion to withhold funds unless the statute requires spending for certain purposes
*no legislative veto for executive decisions
*nondelegation doctrine: can only delegate incidental powers and must include an intelligible principle to guide actions
presidential powers
*domestic
*to enforce the law
*to pardon for fed. convictions
*to veto (10 days to sign)
*to appoint and remove
*foreign
*commander in chief
*chief diplomat: negotiate and enter into treaties, recognize foreign governments
congressional powers
*to regulate commerce: regulate channels of interstate commerce for any reason regulate economic intrastate activity if have substantial effect on interstate commerce in the aggregate (NOT noneconomic intrastate activity or requirements to engage in activity)
*to tax: rationally related to raising money
*to spend for the general welfare
*to provide for national defense (even indirectly)
*to dispose of and regulate federally owned land (inc. regulating private property if necessary to protect land)
*to limit appellate jurisdiction of Supreme Court
*13A: to regulate public and private action to end slavery and related badges
*14A: to regulate EP and DP if congruent and proportional (reasonable fit)
*15A: to prohibit the denial of the right to vote based on race
types of abstention (4)
*Pullman abstention: unsettled state law + federal constitutional claim
*Younger abstention: pending state cases + important state interest + opportunity to litigate federal issues
*Burford abstention: complex regulatory scheme + interfering injunctive relief
*Colorado River abstention: substantially similar to state case
types of cases and controversies to be heard in federal court (2)
*diversity
*federal question
types of things not justiciable
*advisory opinions
*cases involving a political question: issue reserved for other branch or lacks judicially manageable standards for resolution
*cases subject to abstention
timeliness issues for justiciability
*ripeness
*mootness (unless capable of repetition yet evading review)
elements for standing (3)
*injury-in-fact: concrete and particularized
*causation
*redressability: relief can prevent or remedy the injury
four standing doctrines
*taxpayer standing: only for own tax assessment
*organizational standing: if members would have standing and the interests at stake are germane to the organization’s purpose
*legislative standing: a legislature has standing if related to institutional functions
*third party standing: special relationship exists like doctor/patient, school/students, parent/child, bartender/patron, assignor/assignee
types of Supreme Court jurisdiction
*original jurisdiction: between states
*appellate jurisdiction: grant a writ of certiorari
how is the Supreme Court’s jurisdiction limited?
*if Congress creates exceptions
*if adequate and independent state grounds exist
when is adequate and independent state grounds relevant? (5)
the case
*is in the Supreme Court
*arises through a writ of certiorari
*has already been decided by a state court, where
*adequate state law controls the
decision
*the decision does not depend on
an interpretation of federal law
how does 11A limit judicial power?
*an individual can’t sue a state for money damages in federal court
*applies only to state government and agencies
*states can consent to a lawsuit (implied by ratifying the Constitution)
*Congress abrogates this immunity to enforce certain individual rights (Civil War Amendments only)
what is not barred by 11A?
*suing local government
*suits initiated by the federal government or another state
*bankruptcy proceedings impacting state finances
*injunctions against state officials
what are examples of direct vs. indirect taxes?
taxes on persons or property
vs.
on goods or transactions
what is required for direct vs. indirect taxes to be constitutional?
apportioned among the states and reasonably related to revenue production
vs.
uniform across the states and reasonably related to revenue production
four considerations in determining whether Congress can regulate the activity per commerce clause
*activity economic in nature?
*regulation contains a jurisdictional element?
*Congress made express findings on the activity’s effect on commerce?
*strong link between the activity and effect?
when can’t states tax those affiliated with the federal government?
*immunity has been extended to them
*the tax discriminates against them or the federal government
*the tax substantially interferes with their duties
what procedure is due for terminating welfare benefits?
notice + pre-termination hearing
what procedure is due for terminating disability benefits?
notice + post-termination hearing
required contents for intelligible principle
*policy to be advanced
*agency in charge
*scope of authority
if protection of an interest is subject to another’s discretion, is process due?
no, no “legitimate claim of entitlement” (e.g., enforcement of a restraining order subject to police discretion)
what procedure is due to a public employee who can only be fired for cause?
*notice
*pre-termination hearing
*post-termination hearing
permissible restrictions on 2A
*banning unusually dangerous firearms
*imposing conditions and qualifications on commercial firearm sales
*forbidding possession by felons and the mentally ill
*prohibiting open/concealed carry in public places
permissible restrictions on parental rights (SDP)
imposition of reasonable education standards
is disadvantaging a group solely based on animus going to survive rational basis review
no
how does voting factor into EP?
*one person, one vote principle must be upheld
*less than 10% deviation in population between districts
what property does the taking clause apply to?
*property or property rights
*including possessory and non-possessory interests in land
does the government have to provide just compensation when destroying private property in response to a public peril (e.g., preventing the spread of parasites)?
no
when is a civil law an ex post facto law and therefore not allowed?
the retroactive effect is so clearly punitive that it overrides the law’s non-punitive purpose
tests for establishment clause
*indirectly impacts religion: comports with historical practices and understanding of establishment?
*directly impacts (benefits/burdens): strict scrutiny
even if a person cannot challenge a restriction on free speech as applied to them, when can they successfully challenge the restriction on its face?
*law is overly broad (covers too much speech)
*restriction is unduly vague (notice)
public vs. nonpublic forums
*property historically used for and associated with speech (e.g., sidewalks)
*property opened for specific types of speech (e.g., school classrooms)
vs. everything else
when are restrictions on the freedom of the press subject to strict scrutiny?
impact the
*right to publish lawfully obtained, truthful information (if unlawfully obtained, didn’t obtain unlawfully itself or know who did) about matters of public significance
*right to attend a criminal trial
if the government conditions the issuance of a building permit on dedication of part of the land to public use, a taking has occurred unless
*essential/logical nexus: the condition substantially advances a legitimate government interest
*rough proportionality: proposed development’s impact is roughly proportional to the imposed condition’s burden
who has the burden of proof for strict scrutiny?
the state
who has the burden of proof for rational basis?
the challenger
can a federal grant be contingent on a condition that limits free speech?
yes, as long as the government is not requiring the adoption of a position (particularly when the position is unrelated to the purpose of the grant)
are restrictions on adult content stores (obscenity) valid?
maybe, as valid time, place, and manner restrictions if the stores can still effectively operate in the community
