Constitutional Law Flashcards

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1
Q

May courts issue advisory opinions?

A

Federal courts cannot issue advisory opinions, which are decisions that lack (1) an actual dispute between adverse parties, OR (2) any legally binding effect on the parties.

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2
Q

What are the rules regarding Ripeness?

A

To avoid issuing advisory opinions, courts wait until laws and policies have been formalized and can be felt in concrete ways. This means that PRE-ENFORCEMENT REVIEWS of laws or policies are generally not ripe. However, a plaintiff can establish ripeness before a law or policy is enforced by showing two things: (1) The issues are fit for a judicial decision (legal issues not requiring factual development) AND (2) The plaintiff would suffer substantial hardship in the absence of review.

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3
Q

What is Mootness and its exception(s)?

A

A LIVE CONTROVERSY must exist at all stages of review. Therefore, the plaintiff needs to be suffering from an ONGOING INJURY, or else the case will be dismissed as moot. A case becomes moot when they can no longer be affected by the statute that they are challenging.
- EXCEPTION(S): A claim is not considered to be moot, even if the injury has passed, when (1) the case is capable of repetition but evading review; (2) D voluntarily stops but can resume; or (3) the class representative’s controversy has become moot but the claim of at least one other class member is still viable.
- NOTE: Avoid questions going to the merits of the dispute.

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4
Q

What are the components of Standing?

A

A person must have standing at all stages of litigation, including on appeal.
ELEMENTS:
- Injury in Fact: To have standing, a person needs to show an injury in fact, which requires both (1) A particularized injury (affects P in a personal and individual way) AND (2) A concrete injury (one that actually exists—not hypothetical).
- Causation: There must be a causal connection between the injury and the conduct complained of (injury traceable to the defendant).
- Redressability: A decision in the litigant’s favor must be capable of eliminating their harm (EX: through money damages or an injunction).

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5
Q

What is the No Citizenship Standing rule?

A

People have no standing merely as “citizens” or “taxpayers” to claim that government action violates federal law or the Constitution. The injury is too generalized.

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6
Q

What are exceptions to the No Citizenship Standing rule?

A
  • Challenging tax liability.
  • Tenth Amendment: A person may have standing to allege that federal action violates the Tenth Amendment by interfering with powers reserved to the states as long as the person has a redressable injury in fact (EX: deputy sheriffs required to do handgun checks under federal law challenging the law as a violation of the 10A).
  • Congressional Spending: TAXPAYERS have standing to challenge congressional spending (not executive spending) measures on First Amendment Establishment Clause grounds as a violation of taxing and spending powers (EX: congressionally approved federal expenditures to aid parochial schools).
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7
Q

When must injury occur for Standing purposes?

A

Under the Injury in Fact prong, the injury must have already occurred or imminently will occur. In a suit for pre-enforcement relief (by injunction or declaratory judgment), look to see whether there is a likelihood of future harm.

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8
Q

May a third-party claimant stand in for another party that has suffered an injury?

A

Generally, there is no third-party standing. The plaintiff must be the one who suffered the injury.
EXCEPTIONS:
- Asserting Rights of Others: A claimant with standing in their own right may assert the rights of a third party if: (1) it is difficult for the aggrieved party to assert their own rights, OR (2) a close relationship exists between the claimant and the third party.
- Organizations: An organization has standing to sue on behalf of its members if (1) there is an injury in fact to the members, (2) the members’ injury is related to the organization’s purpose, and (3) individual member participation in the lawsuit is not required (EX: they’re not seeking individualized damages).
- Free Speech: A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary (in other words, that the restriction was overbroad), even if that person’s own speech would not be protected under the First Amendment. Essentially, the plaintiff can bring a claim on behalf of others whose speech would be protected under the First Amendment. However, this rule does not apply to restrictions on commercial speech.

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9
Q

What is Congressional Conferral of Standing?

A

Congress can’t eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury. However, a federal statute may create new interests, injury to which may be sufficient for standing.

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10
Q

When does a plaintiff have Standing to Enforce Federal Statutes?

A

A plaintiff may have standing to enforce a federal statute if they are within the “zone of interests” Congress meant to protect (that is, a court is likely to find standing if it concludes that Congress intended the statute to protect such persons and also intended to allow private persons to bring federal court actions to enforce the statute).

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11
Q

What result for Standing when a plaintiff knowingly triggered the application of a legal rule?

A

Standing isn’t defeated simply because the plaintiff wanted to bring a case to test the constitutionality of a particular rule. The injury is still traceable to the government, even if the plaintiff knowingly triggered the application of the rule.

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12
Q

What is Sovereign Immunity regarding the 11A?

A

The private parties cannot sue states in federal or state courts (this includes tribes and foreign governments).
EXCEPTIONS:
- Express Waiver: States can be sued if they consent to it (that is, by waiver). Most states have expressly waived sovereign immunity, at least to a limited extent, in their tort claims acts.
- Implicit Consent / Structural Waiver: When they joined the federal union, states implicitly agreed that their sovereign immunity would yield to certain federal powers (EX: eminent domain and military-related powers). Structural waiver applies when: A federal power is complete in itself AND The states implicitly consented to the federal government exercising that power as part of the plan of the Constitution.
- Local Governments/Entities: Local governments (EX: a city or county) are not protected by sovereign immunity. Neither are entities like police departments. So these entities can be sued.
- Federal government can sue states.
- A person can sue a state in relation to a bankruptcy proceeding.
- A person can sue a state official (1) for damages personally suffered or (2) to enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state.
- Congress Abrogates: Congress can remove a state’s immunity as to actions created under the Fourteenth Amendment power to prevent discrimination, but it must be unmistakably clear that Congress intended to remove the immunity.

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13
Q

What is the Adequate and Independent State Grounds doctrine?

A

The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds—even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. If the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.

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14
Q

What police powers does Congress have?

A

Congress generally does not have general police powers, but they do have police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations.

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15
Q

What is the Necessary and Proper Clause?

A

Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of the legislative ENUMERATED POWERS in Article I (EX: raise and support armies), as long as that law doesn’t violate another provision of the Constitution.
- This is a low hurdle—laws can be foolish, just not irrational.

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16
Q

What is the Taxing and Spending power?

A

Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution.
- The federal government can tax and spend for the general welfare, but Congress can’t directly legislate for the general welfare.

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17
Q

What are the conditions for Congress’ use of the Spending power?

A

Under the spending power, Congress can impose conditions on the grant of money to state or local governments. These conditions are valid if they (1) are clearly stated, (2) relate to the purpose of the program, (3) are not unduly coercive, and (4) do not otherwise violate the Constitution.

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18
Q

What is the Commerce power?

A

Congress has the power to regulate all foreign and interstate commerce, as well as commerce with Indian tribes.
To be within Congress’s Commerce Clause power, a federal law regulating interstate commerce must either:
- Regulate the channels of interstate commerce (EX: highways, waterways, telephone lines, the internet).
- Regulate the instrumentalities of interstate commerce (EX: planes, trains, automobiles) and persons and things in interstate commerce.
- Regulate activities that have a substantial effect on interstate commerce.

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19
Q

Can Congress regulate purely intrastate activity?

A

When Congress attempts to regulate intrastate/local commercial activity as having a substantial effect on interstate commerce (3rd prong) the Court will uphold the regulation if it can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.
- The rule detailed above applies only when the regulated intrastate activity is economic or commercial in nature. If the regulated intrastate activity is not commercial or economic, the Court generally will not aggregate the effects and will uphold the regulation only if Congress can show that it nonetheless has a direct substantial economic effect on interstate commerce, which Congress generally won’t be able to do.

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20
Q

What limits apply to Congress’ Commerce power?

A
  • 10A: Congress can’t regulate non-economic activity traditionally regulated by the states.
  • Congress can’t compel activity.
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21
Q

What is the Delegation Doctrine?

A

Typically, Congress can delegate rulemaking or regulatory power to the executive branch (including administrative agencies) or judicial branch as long as intelligible standards are set and the power isn’t something that is uniquely confined to Congress (EX: the power to declare war or impeach). A general standard will usually suffice as an intelligible principle.

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22
Q

What is the Major Questions Doctrine?

A

When an agency adopts regulations that have extraordinary economic and political significance (“major questions”), it must be able to point to clear congressional authorization for the exercise of such power. Modest, vague, or subtle language in the act delegating power to the agency is not sufficient to support agency action adopting a major change. Absent a clear delegation of power to effect a major change, if an agency adopts a policy or regulation effecting a major change, it will be struck down as being beyond the agency’s delegated authority.

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23
Q

What are the different levels of Presidential Power? What are their strengths?

A
  • President’s power is strongest when authorized by Congress to do it.
  • If the president acts where Congress is silent, then the president is in a “twilight zone.” If supported by tradition and history, the actions will likely be upheld.
  • When Congress has said that the president cannot do something, his power is at its lowest ebb and is least likely to be upheld as constitutional.
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24
Q

What Foreign Powers does the president have?

A

Commander-in-Chief Power: Can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property.
Treaty Power: The President has the power to enter into treaties with the consent of two-thirds of the Senate.
- Constitution > Federal Law = Treaties > State Law
- Conflicts among federal laws = first in time rule

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25
Q

What is an Executive Agreement?

A

Agreements made by the president with foreign nations. No Senate Approval is needed for these.
- Constitution > Federal Law > Executive Agreements > State Law

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26
Q

When can a state regulate interstate commerce?

A

A state’s regulation of interstate commerce in an area where Congress has not already acted is valid if the regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce.

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27
Q

What are the exceptions to the general rule under the Commerce Clause prohibiting states from discriminating against out-of-state competition?

A
  • Congressional approval.
  • When the state acts as a market participant (state is itself a buyer or a seller in a relevant market).
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28
Q

What does the 10A say?

A

Powers not granted to the federal government are reserved to the states or to the people.

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29
Q

What limits are there on state police powers?

A

The fact that the Tenth Amendment reserves all other powers to the states means that states have general police powers—that is, they can regulate the health, safety, and welfare of their people. Such regulations will be upheld if they are rational, unless they burden a fundamental right or involve a suspect or quasi-suspect classification.

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30
Q

What effect does the Supremacy Clause have?

A

When there is a conflict between federal law and state law, the federal law prevails and the state law is preempted.

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31
Q

What are the types of Preemption?

A
  • Express: A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation. Express preemption clauses will be narrowly construed.
  • Conflict Between State and Federal Law (Implied): If a state law conflicts with federal law requirements, such that it would be impossible to follow both laws, the state law will be held to be impliedly preempted.
  • State Prevents Achievement of Federal Objective (Implied): If a state or local law prevents achievement of a federal objective, it will also be held to be impliedly preempted. This is true even if the state law was enacted for some valid purpose and not to frustrate the federal law (for example, state law providing for suspension of driver’s license of persons who fail to pay off an auto accident case judgment, regardless of the person’s discharge in bankruptcy, is invalid).
  • Field Preemption (Implied): A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if the state or local law is nonconflicting. The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field (for example, if federal laws are comprehensive or an agency was created to oversee the area, preemption may be found).
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32
Q

What presumptions regarding state police power apply to preemption?

A

In all preemption cases, but especially in cases involving a field traditionally within the power of the states (for example, regulations involving health, safety, or welfare), courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.

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33
Q

What is the Privileges and Immunities clause?

A

This prohibits states from discriminating against out-of-state citizens. This prohibits discrimination by a state against nonresidents of the state when the discrimination concerns either IMPORTANT COMMERCIAL ACTIVITIES (EX: pursuit of a livelihood) OR FUNDAMENTAL RIGHTS.
However, the Clause applies only if the discrimination is intentionally protectionist in nature (EX: state cannot charge nonresident commercial fishermen substantially more for a commercial fishing license than resident commercial fishermen).
- Applies only to US citizens.
- There must be a substantial justification (least restrictive means standard). “Necessary to achieve a compelling government interest.”

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34
Q

What is the Dormant Commerce Clause?

A

DISCRIMINATORY: State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid. A discriminatory state or local law may be valid if (1) it is necessary to achieve an important, noneconomic state interest and (2) there are no reasonable nondiscriminatory alternatives available.
- In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem.
- EXCEPTIONS: Market participant; congressional approval; involves government action regarding the performance of a traditional governmental function.
UNDUE BURDEN: If a nondiscriminatory state law (a law that treats local and out-of-state interests alike) burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest.
- Laws that on their face are neutral are presumptively valid, but if their effects are unduly burdensome to out-of-state commerce, then they will be invalid.

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35
Q

Does the Constitution apply to private parties?

A

Only the 13th amendment applies to private parties. The Thirteenth Amendment simply provides that neither slavery nor involuntary servitude shall exist within the United States and gives Congress the power to adopt appropriate legislation to enforce the proscription.
- SCOTUS has allowed Congress to prohibit any private conduct that Congress deems to be a “badge” or “incident” of slavery andF has upheld statutes regulating private contracts.

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36
Q

Do the Amendments apply restrictions to the states?

A

The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law. The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or color.

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37
Q

What is the State Action doctrine?

A

Government action is needed for the constitution to apply (EX: law; acts of government officials in official capacity). Generally, private action won’t trigger this rule, but activities which are traditionally and exclusively performed by government will trigger the rule.
- Significant state involvement in private conduct will also trigger.
- State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is sufficient entwinement between the state and private party.

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38
Q

What is Rational Basis Review and when is it applied?

A

Regulations that DO NOT AFFECT FUNDAMENTAL RIGHTS or involve SUSPECT or quasi-suspect CLASSIFICATIONS (most laws) are reviewed under the rational basis standard: The law is upheld if it is rationally related to a legitimate government purpose. This is a very easy standard to meet; therefore the law is usually valid—unless it is arbitrary or irrational.
- Law promoting public health, safety, or welfare generally sufficient.
- The law’s challenger has the burden of proof.
- The rational basis standard is used to review regulations involving classifications that are not suspect or quasi-suspect, such as age, disability, and poverty.

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39
Q

What is Intermediate Scrutiny and when does it apply?

A

Intermediate Scrutiny means that the challenged law must (1) further an important government interest (promoting public health, safety, or welfare) and (2) do so by means that are substantially related to that interest.
Regulations involving quasi-suspect classifications (gender and legitimacy) are reviewed under the this intermediate scrutiny standard.
- Unclear who has the burden of proof. Usually, courts place the burden on the government.
- An “exceedingly persuasive justification” is needed. The interest must be “genuine and not hypothesized” for litigation, and the government may not rely on overbroad generalizations about males and females).

40
Q

What is Strict Scrutiny and when does it apply?

A

Regulations AFFECTING FUNDAMENTAL RIGHTS (EX: interstate travel, privacy, voting, and First Amendment rights) or involving SUSPECT CLASSIFICATIONS (race, national origin, and alienage) are reviewed under the strict scrutiny standard: The law is UPHELD IF IT IS NECESSARY (the least restrictive means) to achieve a COMPELLING GOVERNMENT PURPOSE.
- This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated— especially if there is a less burdensome alternative to achieve the government’s goal.
- Government has the burden of proof.

41
Q

What is Procedural Due Process?

A

An individual has a right to fair process before the government deprives them of life liberty, or property.

42
Q

What is Deprivation for Due Process purposes?

A

Intentional government conduct that deprives the person of life, liberty, or property.
- Government negligence is insufficient to state a procedural due process claim.

43
Q

What is Liberty?

A

Liberty includes freedoms included by statute or the constitution, like physical and legal freedoms.
- Does not include mere harm to reputation.

44
Q

What kinds of property are protected by procedural due process?

A

Real or person, tangible or intangible. Includes government benefits which an individual has a “reasonable expectation of continued receipt” to.

45
Q

If an individual is to be deprived of life, liberty or property, what process are they entitled to?

A

Notice, a hearing, and a neutral decision-maker. Generally, the greater the deprivation, the more process will be required.
- The notice must be reasonably calculated to inform the person of deprivation.
- Typically, the claimant should be given a pre-deprivation hearing, unless that would be impracticable.
- The decisionmaker is provided by the government and cannot have any actual bias (EX: having a financial interest in the decision or a relative that is a party to the case) or a serious risk of actual bias.

46
Q

What result for standard of review when fundamental rights are burdened?

A

Strict scrutiny is applied.

47
Q

What are the fundamental rights protected under the constitution?

A
  • Marriage [Privacy-Related right]
  • Procreation [Privacy-Related right] (NOTE: The Supreme Court has held that a state may not force sterilization on repeat offenders of crimes of “moral turpitude”)
  • Use of Contraception [Privacy-Related right]
  • Rights of Parents [Privacy-Related right]: including the companionship, care, custody, and upbringing of children.
  • Right to (interstate) travel (equal treatment in new state–some residency restrictions are okay).
  • Right to vote (one person, one vote; racial gerrymandering = strict scrutiny; partisan gerrymandering = nonjusticiable)
  • Right to bear arms (self-defense in home and in public; gov must establish that regulations are consistent with the historical tradition of firearm regulation)
  • Sexual intimacy (standard of review unclear)
  • Refusal of medical treatment (standard of review unclear)
    NOTE: laws restricting abortions are entitled to a strong presumption of validity (rational basis review).
48
Q

Which amendment applies Equal Protection duties to the federal government, and which one applies them to the states?

A

14th Amendment Equal Protection Clause = States
5th Amendment Due Process Clause (Applying Equal Protection) = Federal Government

49
Q

What are the applicable standards of review for Equal Protection analysis?

A

If a fundamental right or suspect classification (EX: race) is involved, the strict scrutiny standard is used to evaluate the regulation. If a quasi-suspect classification is involved (EX: gender), intermediate scrutiny is the applicable standard. If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, the rational basis standard applies.
- The EPC prohibits governmental entities from treating similarly situated people in a dissimilar manner without adequate justification.

50
Q

Does state regulation of an industry make the industry’s action state action? What about state licensing? What about when a private party provides essential services?

A

SCOTUS has found that state regulation of an industry (even heavy regulation) does not make the industry’s action state action. Also found that state licensing or providing essential services (EX: police or fire protection) does not make private action state action.

51
Q

What result when private actors require judicial action to enforce procedures/practices or when private and public officials are working side-by-side?

A

This is sufficient entwinement such that the 14A applies to the private actor.

52
Q

What are the ways in which discriminatory classification may be determined?

A

For strict or intermediate scrutiny to be applied, there must be intent on the part of the legislature to discriminate. Intent may be shown by: (1) A law that is discriminatory on its face against a protected class of people (facial discrimination), (2) A discriminatory application of a facially neutral law (issue with executive instead of legislature???), or (3) A facially neutral law with a disparate impact on a protected class of people (EX: minorities).
- Discriminatory application or effect (1 & 2) are NOT enough on their own to show discriminatory intent

53
Q

What are the suspect classifications?

A

Classifications are suspect if they are based on race (and ethnicity), national origin, (at the state and local levels) alienage, or religion.

54
Q

Is integration (EX: busing) to remedy past segregation constitutional?

A

Yes (state has compelling interest in remedying past segregation), but it must be narrowly tailored to remedy past segregation.
- Racial balancing doesn’t count (sending kids to schools based on their race).

55
Q

What is the level of review applied when Congress passes laws that discriminate based on alienage?

A

Rational basis (Congress has plenary power over immigration).

56
Q

What is the level of review applies when state/local governments pass laws that discriminate based on alienage?

A

Strict scrutiny. However, rational basis review is applied for positions and activities essential to self-government (jury service, voting, being a public school teacher, etc).

57
Q

What is the level of review applied to laws passed discriminating against children of undocumented aliens?

A

Probably rational basis, but look for irrational animus (prejudice).

58
Q

What are the Quasi-Suspect Classifications? How are they analyzed?

A

INTERMEDIATE SCRUTINY APPLIED (must be substantially related to an important government interest)
Gender: An exceedingly persuasive justification is required.
Non-Marital Children (discriminating against entire class more likely invalid, while laws distinguishing within the class are more likely to be valid)

59
Q

To what kinds of cases is Rational Basis Review applied?

A

All non-suspect or quasi-suspect classifications get rational basis review. Animus is NOT rational.

60
Q

What is the general rule for Takings under the Constitution?

A

The government may take property for public use but must pay just compensation.
- Physical confiscation.
- Permanent, regular occupation.
- Temporary occupation = case-by-case analysis
EXCEPTIONS:
- Development conditions
- Public emergency

61
Q

What are Regulatory Takings under the Constitution?

A

Laws or regulations that interfere with the use, enjoyment, or disposition of property to such an extent that it is effectively a taking of the property.
- First Way: The regulation leaves no economically viable use.
- Second Way: When a law/regulation decreases the economic value, a balancing test is used that considers: (1) economic impact on property, (2) investment-backed expectations for property; and (3) public interest sought by the law/regulation. Regulations that merely decrease the value of property (EX: prohibit its most beneficial use) do not necessarily result in a taking, as long as they leave an economically viable use for the property.

62
Q

What is the Public Use requirement in the Takings context?

A

The government may only take property for a public use (not for a private one). Public use is defined broadly to encompass any public purpose. As long as the taking is rationally related to public health, safety, or welfare, the taking is considered to be for public use.

63
Q

What is Just Compensation in the Takings context?

A

Just Compensation must be paid for Takings. It is the FMV of the property when taken.

64
Q

What is the Contract Clause and what does it do?

A

The Contract Clause limits the ability of state and local governments to enact laws that retroactively impair contract rights. It doesn’t affect contracts not yet made.
- Private party contracts: Legislation that substantially impairs an existing private contract is invalid unless the legislation: (1) Serves an important and legitimate public interest, and (2) Is a reasonable and narrowly tailored means of promoting that interest.
- Public contracts (heightened scrutiny): Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation reduces the contractual burdens on the state.

65
Q

What are Ex Post Facto laws and what analysis is used to determine whether a law is an Ex Post Facto law?

A

These are laws that retroactively alter criminal liability. Neither the states nor the federal government may pass an ex post facto law, which is 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. A statute retroactively alters a law in a substantially prejudicial manner if it:
- Makes criminal an act that was innocent when done,
- Imposes a greater punishment for an act than was imposed for the act when it was done, or
- Reduces the evidence required to convict a person of a crime from what was required when the act was committed.

66
Q

What are Bills of Attainder? How are they analyzed?

A

Legislation that punishes individuals without trial. These are unconstitutional.

67
Q

What is Speech for purposes of the 1A?

A
  • Words
  • Symbols
  • Conduct that is: inherently expressive OR intended to convey and reasonably likely to be seen as conveying a message.
68
Q

When is Speech unprotected by the 1A?

A
  • Incitement: Speech can be censored as incitement if it is (1) INTENDED to produce IMMINENT LAWLESS ACTION and (2) LIKELY to produce such action.
  • Fighting Words: Speech can be censored if it constitutes fighting words (personally abusive words that are LIKELY to incite IMMEDIATE PHYSICAL RETALIATION in an average person). Words that are merely annoying won’t do.
  • True Threats: The First Amendment also does not protect true threats, which are words that are INTENDED to CONVEY to someone a SERIOUS THREAT of bodily HARM. To qualify as a true threat, the speaker must have had some subjective understanding that their threats were of a threatening nature, but a mental state of recklessness is sufficient (the speaker is aware that others could regard the statements as threatening violence and delivers them anyway).
  • Obscenity: Obscene speech is not protected. Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person: (1) Appeals to the prurient interest in sex, using a contemporary community standard (“trying too much to turn you on in an unwholesome way”); (2) Is patently (grossly) offensive under contemporary community standards AND (3) Lacks serious social value (literary, artistic, political, or scientific), using a national (not local), reasonable person standard.
69
Q

What exception(s) apply to the obscenity restriction on unprotected speech?

A

In-home possession and consumption of obscene materials is protected, except for child pornography (must be actual children).

70
Q

What is Defamation?

A

Elements are (1) A false statement purporting to be fact; (2) Publication or communication of that statement to a third person; (3) Fault amounting to at least negligence; and (4) Damages or harm caused to the reputation of the person or entity who is the subject of the statement.
Defamatory statements can be subject to tort liability. If the defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault in order to recover.
If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is ACTUAL MALICE (falsity + actual malice (knowledge of falsity OR reckless disregard for truth)).

71
Q

What are matters of public concern for 1A purposes? How do courts determine whether a defamatory statement is on a matter of public concern?

A

Matters of public concern are issues important to society or democracy. The courts decide on a case-by-case basis whether the defamatory statement involves a matter of public concern, looking at the content, form, and context of the publication.
- Political, social, or other matters important to the community.

72
Q

What can a private person recover when they are suing for Defamation on a matter of public concern?

A

If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintiff only shows negligence. To recover punitive damages or presumed damages they need to show actual malice (falsity + actual malice (knowledge of falsity OR reckless disregard for truth)).

73
Q

Is Commercial Speech protected under the 1A?

A

Commercial speech (advertisements, promotions of products and services, brand marketing) is not protected if it is (1) false, (2) misleading, or (3) about illegal products or services.
Any other regulation of commercial speech will be upheld only if it: (1) Serves a substantial government interest, (2) Directly advances that interest, and (3) Is narrowly tailored to serve that interest (NOT least restrictive means! Just a reasonable fit between means and ends). [This is a form of intermediate scrutiny]
- The greater the restriction on speech, the less likely it will be deemed to be reasonable.

74
Q

What is the standard of review used to analyze content-based restrictions on speech? What are content-based restrictions?

A

Strict scrutiny (must be the least-restrictive means of satisfying a compelling government interest). These restrictions limit speech based on a subject matter or viewpoint.

75
Q

What is the standard of review used to analyze content-neutral restrictions on speech? What are content-neutral restrictions?

A

Intermediate scrutiny. Content-neutral restrictions limit speech on some basis other than subject matter or viewpoint (they often focus on the time, place, or manner of speech). The restriction must advance important government interests (unrelated to the suppression of speech) and cannot burden speech substantially more than necessary.
- Substantially related to an important government interest.
- Will also work if it meets strict scrutiny, of course.

76
Q

What are the restrictions/standards for speech on Traditional Public Forums and Designated Public Forums?

A

Public property (government-owned property) that has historically been open to speech-related activities (EX: streets, sidewalks, and public parks) is called a public forum.
Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (for example, a town hall open for use by social, civic, or recreation groups), is called a designated public forum.
Valid if: (1) Content Neutral, (2) Narrowly tailored to serve an important government interest (cannot burden substantially more speech than is needed, but need not be the least restrictive means), and (3) there are alternative channels of communication left open.
STANDARD: SAME AS GENERAL PUBLIC SPEECH RULES (CONTENT-BASED VS. CONTENT-NEUTRAL)

77
Q

What are the restrictions/standards for speech in Limited Public Forums and Nonpublic Forums?

A

Speech and assembly can be more broadly regulated in limited public forums and nonpublic forums. Limited public forums are government forums not historically open generally for speech and assembly but opened for specific speech activity, like a school gym opened to host a debate on a particular community issue, or a public university’s funding of student publications. Nonpublic forums are government property not historically open generally for speech and assembly and not held open for specific speech activities, such as military bases or government workplaces.
The government can regulate speech in such forums to RESERVE THE FORUM FOR ITS INTENDED USE. In such locations, regulations are valid if they are: (1) Viewpoint neutral and (2) REASONABLY RELATED to a legitimate government purpose (tie to the forum’s purpose). If the regulation is viewpoint based, it will be subject to strict scrutiny.

78
Q

In public schools, how is personal student speech handled for 1A purposes?

A

In public schools (public primary and secondary schools) a student’s own personal speech (their expression of themselves as individuals) on campus cannot be censored absent evidence of SUBSTANTIAL DISRUPTION. EXCEPTION: Speech promoting illegal drug use does not require showing any disruption or credible threat of disruption.

79
Q

Off campus, how is personal student speech handled for 1A purposes?

A

When the student’s personal speech occurs off campus, it will be harder to censor. Schools will be limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citizens.

80
Q

How is student’s speech related to school analyzed for 1A purposes?

A

Restrictions on speech related to the school’s teaching (EX: speech by school faculty and by students as part of curricular or extracurricular activities) must be reasonably related to legitimate pedagogical concerns.
- Deferential to schools as educators.
- Applies also to students’ speech as part of a lesson or activity.

81
Q

What is Unprotected Employee speech for government employees?

A

If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment. A government employer may also punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern. There is no First Amendment protection in either situation.

82
Q

What is protected Employee speech for government employees?

A

If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will use a balancing test. The courts must balance the value of the speech against the government’s interest in the efficient operation of the workplace. For speech on matters of private concern outside of the workplace, the test is unclear, but this speech appears protected absent a detrimental effect on the workplace.

83
Q

What is the Vagueness Doctrine?

A

The Due Process Clause invalidates laws that don’t give reasonable notice of what’s prohibited. When in the free speech context, this is applied more strictly.

84
Q

What is Overbreadth for 1A purposes?

A

A law is invalid if it bans substantially more speech than is necessary.

85
Q

How are Prior Restraints analyzed for 1A purposes?

A

Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punishing it afterwards (EX: licensing systems, injunctions). They are not favored and are rarely allowed (especially if they’re content-based). There isn’t any special test for prior restraints—content-based ones are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny—but the government’s burden in justifying a prior restraint is heavy.
- EXAM: ask whether there is some special societal harm that justifies the restraint.

86
Q

What procedural safeguards must be available for licensing schemes under the 1A?

A

To be valid, a system for prior restraint must provide the following safeguards:
- The standards must be narrowly drawn, reasonable, and definite,
- The injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech), and
- There must be prompt and final judicial determination of the validity of the restraint (for example, a review of a permit denial).
A number of other cases, especially in the area of movie censorship, require that the government bear the burden of proving that the speech involved is unprotected.

87
Q

What is the Free Exercise Clause and how does it apply?

A

This clause prohibits government from discriminating on the basis of religious belief, status, or conduct. Religious beliefs are covered based on the role in the believer’s life. Courts can question the sincerity of the believer’s faith, not the validity of the religion itself.

88
Q

What standard of review is applied to laws discriminatory on the basis of religion? How is it determined whether discrimination is happening?

A

A law or other government conduct that discriminates on the basis of religion is subject to strict scrutiny. A law is discriminatory if it is either: (1) Not neutral on its face (that is, the law expressly provides favored or disfavored treatment based on religious belief, conduct, or status) or (2) Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally or a religion in particular).
- A law that gives officials discretion to grant exemptions is NOT generally applicable.
- Refusing a religious exemption request may trigger strict scrutiny.

89
Q

What are the tests under the Establishment Clause?

A
  • Neutrality Principle: Under the Establishment Clause, the government generally must remain neutral with respect to religion, neither favoring nor disfavoring it. AS LONG AS IT’S A NEUTRAL LAW OF GENERAL APPLICATION, THE LAW WILL PREVAIL.
  • Coercion Prohibited: The government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion.
  • History & Tradition: The Court has often stated that the Establishment Clause must be interpreted by reference to historical practices and understandings. Religious practices and displays that have been around for a long time tend to get upheld because the Court sees them as a tolerable acknowledgment of the role that religion has played in the history and tradition of this country. More specifically, the Court also looks at the time when the Constitution was first adopted and tries to determine what the Founders intended to prevent by adopting the Establishment Clause and what they would have deemed acceptable. Overall, this approach is sometimes referred to as “an analysis focused on original meaning and history.”
90
Q

Is a statement made on the Senate floor always protected from defamation claims?

A

A senator’s statement made on the Senate floor is protected by the Speech or Debate Clause.

91
Q

In what cases will courts allow for the closure of a trial to the public?

A

The Supreme Court has held, at least in the context of criminal cases, that trials and pretrial proceedings can be closed only if closure is NECESSARY TO PRESERVE AN OVERRIDING INTEREST and the closure order is NARROWLY TAILORED to serve the overriding interest.

92
Q

Can governments use zoning to limit adult establishments?

A

A land use (or zoning) regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (EX: to protect children and unwilling adults from exposure, or to prevent neighborhood crime and decay). However, these regulations can’t ban such establishments altogether.

93
Q

When is a state tax valid despite the Dormant Commerce Clause?

A

A state tax is valid so long as it does not discriminate against or unfairly burden interstate commerce. A state tax is unfairly burdensome unless: (1) there is a substantial NEXUS between the activity taxed and the taxing state, (2) the tax is FAIRLY APPORTIONED (avoiding multiple taxation and taxing only the in-state component of the activity), and (3) the tax fairly RELATES TO SERVICES or benefits provided by the state.

94
Q

May a president issue a blanket pardon? What about if the pardon serves the president’s personal interests?

A

The pardon power is an unqualified power. Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision).

95
Q

What is a durational residency requirement? How does SCOTUS view this?

A

This is a requirement based on time before a state will begin dispensing benefits.
- Generally viewed as a burden on the fundamental right to travel. A state law designed to deter people from moving into the state is generally considered to violate the EPC.
- Should normally be subjected to strict scrutiny.