Constitutional Law Flashcards
Justiciability
Whether a federal court can decide a lawsuit as an actual case or controversy. Three prongs:
-(1) What does a lawsuit request? Can’t be seeking advisory opinions –> lack actual dispute b/w adverse parties or legally binding effect.
-(2) Ripeness: no pre-enforcement (before a challenged law is applied against the challenger) review unless: fit for decision (legal issue, not factual) and substantial hardship suffered by challenger.
-Mootness: need live controversy + ongoing injury. Exceptions: capable of repetition but evading review; D voluntarily stops activity but can resume; class actions with one live claim (i.e. a P whose claim is moot is the named P in a certified class action + the claims of the unnamed Ps in that class action are still viable).
-(3) P must have standing to bring an Art. III lawsuit:
-Injury: any concrete & particularized harm (rather than general & speculative). Common exceptions:
-No standing for citizens or taxpayers based on
ideological objections or generalized grievances.
-Taxpayers CAN challenge their own tax liability
(e.g. tax being applied discriminatorily to you).
-Establishment Clause violations (only applies to
legislative spending, not exec).
-Has occurred or imminent; pre-enforcement review: likelihood of future harm.
-No-third party standing except:
-Claimant w/ standing AND difficult for 3rd party to
assert own rights (e.g. doctor and patient) OR close relationship b/w P and
3rd party (e.g. parent suing on behalf of their
child).
-Organizations: need to show injury to members;
members’ injury related to purpose; member
participation not needed.
-Free speech overbreadth. A speaker can bring free
speech claims on behalf of a third party, even if
gov’t could censor that speaker’s own speech, as
long as the speaker can show that the challenged
law is substantially overbroad (but doesn’t apply to
restrictions on commercial speech).
-Causation: injury traceable to D.
-Redressability: win can remedy injury.
Sovereign immunity (11A)
Under 11A, private parties can’t sue states (either in federal or state courts). Includes actions in which state is party or in which sate must pay retroactive damages.
Exceptions:
-Waiver: express or structural.
-Local gov’ts and entities.
-States can sue other states.
-Federal gov’t can sue states.
-Bankruptcy.
-State officials (can bring action to enjoin officer from future conduct that violates Constitution or federal law.
-Congress abrogates state sovereign immunity (but only in narrow circumstances = acting to enforce the Civil War Amendments). I.e. Congress can enact appropriate remedial legislation expressly subjecting the states to private suits for damages in federal court.
SCOTUS jurisdiction
No review of state court decision if adequate & independent state grounds to decide the case. SCOTUS doesn’t want to hand out decisions that wouldn’t change the outcome of the state interpretation.
E.g. if state supreme court decides a case based on independent state constitution decision and does not rely on federal law in reaching that decision, SCOTUS cannot exercise jurisdiction to review these decisions.
Original (i.e. can’t be altered or added to by Congress) jurisdiction over:
-Cases involving foreign ambassadors, public ministers, or consuls and
-Cases in which a state is a party
Under Article III, Congress has the power to regulate and make exceptions to SCOTUS’s appellate jurisdiction.
Federal legislative power
Congress can only pass laws as enumerated in the Constitution; no general police powers (exceptions: federal lands; Native American reservations, and D.C.)
Necessary and proper clause
Congress can use any rational, constitutional means to exercise an enumerated power (low bar). Law must be in furtherance of an enumerated power.
Taxing & spending power
Congress may tax and spend to promote general welfare. Any public purpose that’s not otherwise prohibited by Constitution. These rights are limited by individual rights.
-Taxing –> must bear some reasonable relationship to revenue production or be within Congress’s regulatory power. Under the export clause, Congress cannot tax exported goods (goods leaving the US to foreign countries) and services and activities closely related to the export process.
-Spending –> based on the general welfare.
Spending conditions (“strings”). Congress can attach as long as:
-The conditions are clearly stated
-Related to purpose
-Constitutional
-Not unduly coercive
E.g. because the federal government has the power to tax, and because spending for education is for the general welfare, the government may attach any reasonable conditions to the expenditure it desires.
Though the fed gov’t is generally immune from direct taxation by the states, states can tax the federal gov’t affiliates, including persons or entities employed by or doing business with the federal gov’t (e.g. contractors). This is true even if the cost of the tax is ultimately passed on to the federal gov’t. As a result, an affiliate must pay these taxes unless:
-Congress has granted the affiliate immunity
-The tax discriminates against the fed gov’t or the affiliate, or
-The tax substantially interferes with the affiliate’s federal purpose or duties
Commerce power
Congress can regulate commerce with foreign nations, with Native American tribes, and among states (most commonly tested).
Interstate commerce:
-Channels (e.g. roads).
-Instrumentalities (planes, trains, cars).
-Local activities with aggregate effects.
Interstate commerce limitations:
-10A –> can’t regulate noneconomic activity traditionally regulated by states.
-Can’t compel activity (e.g. forcing people to buy health insurance under ACA); but CAN tax the failure to buy health insurance to incentivize people to buy it, but this falls under the taxing power). Congress can only regulate activities that people already choose to engage in.
Delegation of legislative authority
Congress can delegate power but must include intelligible standards. Usually, general standard suffices.
Exception: major questions doctrine - regulation of extraordinary economic and political significance. Need clear congressional authorization for agency to be able to regulate.
Separation of powers
POTUS: no line item veto. Can only sign or veto the entire bill. Need bicameralism and presentment to enact laws.
Pocket veto: when Congress presents a bill to the President, the President has 10 days to act. If the President takes no action and Congress is adjourned (not in session) during that 10-day period, the bill does not become law and the President’s inaction cannot be overriden. If Congress is in session, the bill automatically becomes law.
No legislative veto.
Presidential power
Article 2 of Constitution.
President must faithfully execute the laws.
Implied presidential powers:
-Strongest when authorized by Congress.
-If the president acts where Congress is silent (Congress has neither authorized nor prohibited POTUS from doing it), POTUS is operating in constitutional twilight zone. In that case, if the action is supported by history or necessity and is not a usurpation of another branch –> will likely be upheld.
-if POTUS acts against the express will of Congress –> lowest ebb, most likely to be held as unconstitutional.
Foreign powers: Commander-in-Chief, POTUS can deploy troops. But Congress has power to declare war.
Treaties:
-Negotiated by POTUS; approved by 2/3 Senate.
-Constitution > (Federal law = treaties) > state law.
-Conflicts with federal law = Last-in-time rule.
Executive agreements:
-No Senate approval.
-Constitution > federal law > executive agreements > state law.
10A
Powers not granted to federal government and not prohibited to the states are reserved to states or people.
-States enjoy general police powers (public safety, health, welfare): rational basis, legitimate purpose.
-Anti-commandeering: Congress cannot compel states to enact legislation or to administer federal programs. But can incentivize states (e.g. with federal dollars) to administer federal programs.
Supremacy Clause
Federal law = supreme. In a conflict b/w federal law and state law, federal law wins.
Preemption:
-Express: Congress says federal law trumps on a certain subject.
-Implied: federal law doesn’t expressly claim to be the only permissible source of regulation, but nonetheless, impliedly preempts state law.
-if conflict, you follow federal law.
-if state law impedes federal law.
-field preemption –> there is such extensive federal
regulation in this area that Congress has impliedly
preempted the entire field, barring any state or
local laws, whether conflicting or not.
Privileges and immunities (Article IV)
Prohibits STATES (not the federal gov’t) from discriminating against OOS citizens with respect to:
-Important commercial activities and the ability to earn a living
-Fundamental rights (the right to petition Congress for redress of grievances, the right to interstate travel, the right to enter public lands).
-Only applies to US citizens.
But not absolute:
-Can discriminate against OOS citizens if (i) the state law is necessary to achieve an important purpose and (ii) there are no less restrictive alternatives.
Privileges and immunities (14A)
Applies when a state denies its own citizens (including newly arrived residents) rights of national citizenship.
E.g. A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest. Thus, a law limiting medical licenses to persons who have resided in the state for a year runs afoul of the clause –> burden the right to travel.
-When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test. This is because durational residency reqs burden the fundamental right to travel (b/c they discourage people from moving into the state).
Interstate commerce
Federal law preempts conflicting state law.
Dormant commerce clause
State law can’t unduly burden interstate commerce.
Discriminatory state law = presumptively invalid. BUT valid if:
-Necessary to achieve noneconomic purpose unrelated to protectionism (e.g. health, safety).
-No non-discriminatory alternatives.
Nondiscriminatory state law = presumptively valid. BUT invalid if:
-Burden outweighs benefit (law is essentially irrational). E.g. state law banning all trucks longer than 60 ft (for both state and out-of-state drivers). Effectively outlawing double trailers, w/o any safety benefits.
Exceptions:
-Congressional approval –> can choose to give states permission to discriminate/burden OOS citizens.
-State acts as market participant. E.g. can favor local firms in awarding construction contracts or give discounts to local producers. If state is buying or selling something (e.g. permits) = market participant, & can charge OOS more.
State action doctrine
Gov’t action needed for Constitution to apply:
-Laws
-Acts of gov’t officials in official capacity
-NOT private action. Exception: traditionally and exclusively performed by gov’t.
-Significant state involvement in private conduct (varies by degree).
Private entity is bound by the Constitution when the gov’t is so pervasively intertwined in its control or management that the private entity is essentially a gov’t actor.
-Mere fact that an org has some members who are gov’t actors doesn’t convert the org into the government.
Levels of scrutiny
Rational basis review: default test; applies to laws that do not burden fundamental rights and do not discriminate against a suspect class such as race or a quasi-suspect class such as gender.
-Rationally related to legitimate gov’t purpose.
-Burden on challenger.
-E.g. Tax assessments that treat similarly situated properly differently can be challenged under the equal protection clause and will generally be subject to rational basis review.
Intermediate scrutiny: applies to laws that discriminate based on a quasi-suspect class, such as gender.
-Gov’t must show that law substantially related (or narrowly tailored) to important (or significant) gov’t purpose.
-Burden (likely) on gov’t; outcome varies.
Strict scrutiny: applies to laws that burden a fundamental right or discriminate based on a suspect class, such as race.
-Gov’t must show that law is necessary to a compelling state interest or interest of the highest order + is least restrictive alternative. E.g. Desegregation, diversity.
-Burden on gov’t; gov’t almost always loses.
Procedural due process
An individual has a right to fair process before gov’t deprives them of life, liberty, or property.
-Deprivation: intentional gov’t conduct (not merely neglect).
-Liberty: physical freedom; legal freedoms (e.g. parental rights, right to vote); but NOT mere harm to reputation.
-Property: real or personal property; intangibles (e.g. stocks); some gov’t benefits (those to which person has reasonable expectation of continued receipt / a legitimate claim or entitlement to the benefit). E.g. welfare benefits, public education, but not at will employment.
Process for when violated:
-Notice
-Hearing
-Neutral decisionmaker: gov’t provided; no actual or serious risk of bias.
Generally, the greater the deprivation, the more process is required, unless there are other interests on the government side that are especially weighty. Courts consider factors like:
-(i) The importance of the individual’s interest that is involved,
-(ii) The value of specific procedural safeguards of the individual’s interest, and
-(iii) The government’s interest in fiscal and administrative efficiency.
The gov’t cannot condition public employment on a person’s political views or affiliations UNLESS these factors are required for effective job performance.
E.g. A public employee who is subject to removal only for “cause” under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law. The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges. The employee must also be given a subsequent evidentiary hearing regarding the termination (with reinstatement if the employee prevails).
Substantive due process
The source of individual rights in the Constitution. Unless the Court has said that a right is fundamental, we assume that it is not and rational basis is the default.
Fundamental rights burdened –> strict scrutiny is triggered. Fundamental rights include most of the Bill of Rights (including all of 1A), some privacy-related rights, interstate travel, and voting.
Gov’t denies everyone –> due process claim only (no discrimination).
Gov’t denies targeted group –> due process AND equal protection claim.
Types of substantive due process rights:
(1) Privacy related rights: marriage (but rational basis applies to regulations that do not substantially burden the right to marry, such as minimum age requirements [ie. you have to wait till you’re 16 to marry]); procreation (e.g. forcible sterilization of criminals); use of contraception; parental rights; living with extended living (at the very least, the state cannot prevent you from living with your nuclear family or extended family); parents’ rights to control their children’s upbringing and education (e.g. choose b/w private and public schools).
-Abortion: no fundamental right in Constitution, so states may regulate. Restrictions entitled to strong presumption of validity (rational basis review).
(2) Right to (interstate) travel. Embedded in this is equal treatment in new state, but some residency restrictions OK (e.g. 30 day residency requirement for voting to prevent people from temporarily moving from one state to another to try to tilt an election.
-No fundamental right to international travel.
(3) Right to vote. Some lesser burdens only subject to rational basis: reasonable residency requirements; gov’t-issued ID; disallowing write-in voting. One person, one vote.
-Racial gerrymandering –> strict scrutiny.
-Partisan gerrymandering –> nonjusticiable.
-Other strict scrutiny burdens: poll tax; disallowing 3rd party candidates.
(4) Right to bear arms (self-defense in home and in public).
-Regulations abridging the right –> must be consistent with historical tradition of firearm regulation.
