Constitutional Law Flashcards
What are advisory opinions?
Decisions that 1) lack an actual dispute between adverse parties and 2) lack any binding effect on the parties.
How can a plaintiff establish ripeness?
By showing that:
- The issues are fit for judicial decision and
- The plaintiff would suffer substantial hardship in the absence of review.
What are the exceptions to mootness?
- Controversies capable of repetition but that evade review because of their inherently short duration
- Cases where the defendant voluntariliy stops the offending practice but is free to resume it.
- Class actions in which the class representatives controversy has become moot but the claim of at least one other class member is still viable.
Difference between ripeness and mootness?
Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after.
Requirements for standing to assert the rights of others
1) it is difficult for the third party to assert their own rights, or 2) a close relationship exists between the claimant and the third party.
What is the Necessary and Proper Clause?
Congress has the power to make all laws necessary and proper to carry out any of the legislative powers enumerated in Article I, as long as that law does not violate another provision of the constitution.
Spending Power Conditions
Under the Spending Power, Congress can impose conditions of the grant of money to state or local governments. These conditions are valid if they are (1) clearly stated (2) relate to the purpose of the program and (3) are not unduly coercive and (4) do not otherwise violate the constitution.
To be within the commerce clause, a federal law regulating interstate commerce must either:
(1) Regulate the channels of interstate commerce
(2) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce OR
(3) Regulate activities that have a substantial effect on interstate commerce.
Regulating Intrastate Activity with Commerce Clause:
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.
Tenth Amendment Limitation on Commerce Clause:
10th amendment precludes Congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local governments.
Hierarchy of US Law
- US Constitution prevails over
- Treatises and Federal Statutes (if conflict, last in time prevails), prevails over
- Executive Agreements, prevails over
- State law
Express Preemption
A federal law expressly says taht the states may not adopt laws concerning the subject matter of the federal legislation. Express preemption clauses will be narrowly construed.
Implied Preemption
- Conflict between state and federal law requirements
- State prevents achievement of federal objective
- Field preemption
Presumption against pre-emption
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.
Privileges and immunities clause
Prohibits discrimination by a state against non-residents (corps and aliens are not protected by this clause).
Limitations of Privileges and Immunities clause:
- Only important commercial activities and fundamental rights are protected
- If violated, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.
Dormant commerce clause
Even where congress has not acted, the Commerce clause restricts state regulation of interstate commerce.
Exceptions to Dormant Commerce Clause:
- Congressional Approval
- State as “market participant” (states many prefer its own citizens when receiving benefits from government programs or dealing with government owned businesses.)
- Favoring Government Performing Traditional Government Functions (more likely to be influenced by legitimate reasons and not state protectionism).
Use Tax
1) Defintion
2) Validity under commerce clause
1) Tax on goods purchased outside the state, but used within it.
2) Valid unless higher than sales tax
Sales Tax
1) Defintion
2) Validity under commerce clause
1) Tax on the sale of goods consummated within the state
2) Generally valid if there is a substantial nexus to the taxing state and the tax is properly apportioned (if more than one state can tax the sale)
Ad Valoreum Tax
1) Defintion
2) Validity under commerce clause
1) Tax on the assessed value of some property
2) Commodities –> valid only if property is no longer in interstate commerce. Instrumentalities –> Valid if instrumentality has “taxable situs” in state and tax is fairly apportioned. Full tax by domicillary state valid unless taxpayer can prove a defined part has acquired taxable situs elsewhere.
State Action Requirement
Because the constitution generally applies only to governmental action, to show a constitutional violation, state action must be shown.
State action can be found in actions of seemingly private individuals who
- perform exclusive public functions or,
- have significant state involvement.
Rational Basis Test
The law is upheld if it is rationally related to a legitimate government interest (easy standard, the law is usually valid unless it is arbitrary or irrational).
The person challenging the law has the burden of proof.
What test is used to review classifications that are not suspect or quasi-suspect?
Rational Basis
Level of Scrutiny for quasi-suspect classifications?
Intermediate scrutiny
Intermediate scrutiny
The law is upheld if it is substantially related an important government purpose.
The burden is usually on the government
What level of scrutiny for fundamental rights?
Strict Scrutiny
Strict scrutiny standard
Necessary (least restrictive means) to achieve a compelling government purpose.
Procedural due process
A person has a right to a fair process when the government deprives the person of life, liberty, or property (violation requires intentional or reckless government action).
Deprivation of liberty occurs if a person:
- Loses significant freedom of action
- Is denied a freedom provided by the Constitution or a statute.
Property under procedural due process:
Includes not only personal and real property but also government benefits to which there an entitlement (reasonable expectation of continued receipt) under state or federal law. (abstract need or desire is not enough).
Procedural Due Process requires:
- Notice
- An opportunity to be heard AND
- A neutral decision maker
The test an extent of a hearing are determined by:
- The importance of the interest to the individual and
- The value of specific procedural safeguards to that interest (risk of error from the current procedures used and the benefits of additional procedures), against
- The government interest in fiscal and administrative efficiency.
*typically, the claimant should be given a pre-deprivation hearing, unless that would be impracticable.
Substantive due process:
Guarantees that laws will be reasonable and not arbitrary.
Substantive due process vs. equal protection:
If a law limits rights of all person to engage in some activity, on the MBE it is usually a die process question.
If a law treats a person or a class of persons differently from others , it is usually EP.
Is right to international travel a fundamental right?
No
What standard of review are regulations substantially burdening rights to marriage, procreation, contraception and childrearing subject to?
Strict Scrutiny
What restrictions on the right to vote are valid?
- Reasonable time periods for residency (e.g., 30 days) are valid.
- Identification
- States can require early registration to vote in primaries.
The population of voting districts in state and local elections must be:
Substantially equal. 10% variance of presumptively valid. A state can also show that a variance is valid bc it promotes a legitimate state interest.
When creating congressional districts within the state, states must have…
Almost exact mathematical equality.
However, don’t need mathematical equality when when Congress apportions representatives among the state.
How can districts be measured?
By total population, and not just eligible voters.
The apportionment requirement does not apply to officials who are…
appointed or elected at large
What must the government show to justify a restriction on the right to bear arms?
That it is consistent with the country’s history and tradition of firearm regulation. Just showing an important government interest is not enough.
The Equal Protection clause of the 14th amendment is limited to…
State action (however, due process clause of the 5th amendment contains an equal protection clause).
How can one prove discriminatory classification?
- A law that is discriminatory on its face
- A discriminatory application of a facially neutral law (with intent to discriminate)
- A facially neutral law with a disparate impact on a protected class (with intent to discriminate)
Are federal alienage classifications subject to strict scrutiny?
No.
Are state and local classifications subject to strict scrutiny?
Yes.
EXCEPTION - If a law discriminates against alien participation in state government, the rational basis standard is applied.
Classifications under intermediate scrutiny
- Gender classifications
- Marital vs. Non-marital classifications of children
What level of scruity are undocumented aliens subject to?
Not a suspect class, so rational basis.
HOWEVER, denial of free public education to undocumented alien children has been held invalid.
What are examples of fundametnal rights?
Right to interstate travel
Right to privacy
Voting
First Amendment Rights
Difference between equal protection and due process claims?
Equal protection = regulation affects a certain person or class of persons (strict AND intermediate scrutiny, plus rational basis test involved).
Due Process= Regulation effects everyone (only strict scrutiny and rational basis test involved)
Taking Clause
The Fifth Amendment provides that private property may only be taken 1) for public use and 2) the government must pay just compensation.
Property covered by the Taking Clause
personal property, real property, and certain intangibles (interest of attorney trust accounts and trade secrets, but NOT welfare benefits)
A taking will be found if there is:
- A confiscation of a personal physical property or
- A permanent or regular physical occupation of a person’s property by the government
Are regulations that decrease the economic value of property takings?
No, if they leave an economically viable use for the property.
Decreasing Economic Value Balancing Test:
1) the government interest to be promoted
2) the diminution in value to the owner
3) whether the regulation substantially interferes with distinct, investment backed expectations of the owner.
What is just compensation?
Measured by the FMV of the property taken at the time of the taking, bsed on the loss to the owner.
