Constitutional Law Flashcards
Defamatory Speech
First Amendment requires plaintiff to prove all the elements of defamation plus falsity and actual malice, if the defamatory statement is about a public official/figure.
Actual Malice means
- Knowledge it was false, or
- Reckless disregard as to its truth/falsity
(Public Officials = electeds or public importance, e.g. prosecutor, cop, principal.)
(Public figure = role of prominence in society, fame/notoriety, or thrust themselves into controversy)
Commercial Speech
Some is not protected if it is:
- False
- Misleading, or
- About illegal products/services.
Regulation of Commercial Speech
…will be upheld only if it:
- Serves a substantial government interest;
- Advances that interest; and
- Is narrowly tailored to serve that interest.
Content-Based Restriction
Strict Scrutiny
Advisory Opinions
No
Ripeness requires:
- Issue is fit for a judicial decision and
- Plaintiff would suffer substantial hardship in the absence of review
Mootness
remember it
Standing
- Injury in Fact (particularized and concrete)
- Causation
- Redressability
…no standing merely as citizens, except for tax bills and the Establishment Clause.
Standing to Assert Rights of Others
yes if,
- Difficult for 3rd Party to assert their own right, or
- Close relationship between claimant and 3rd Party
Standing of Organizations
- Injury to Members
- Members Injury is Related to the Organization’s Purpose
- Individual Member Participation in the Lawsuit is Not Required (not seeking individualized damages)
Standing to Enforce Government Statutes
Yes if they are within the “zone of interests” Congress meant to protect with that statute.
Sovereign Immunity
Can’t sue the state or the federal government
- States can sue other states
- Unless state waives
- CAN sue local governments
- U.S. can sue states
- States cannot sue U.S.
Political Question Doctrine
The court cannot decide the issue if it is a political question, which means the issue is:
- Constitutionally committed to another branch of government; or
- Inherently incapable of judicial resolution
E.g. President’s conduct of foreign policy, partisan legislative apportionment, etc.
Adequate and Independent State Grounds
No jurisdiction if there is an independent and adequate state ground for the lower state court decision. Michigan case.
Federal Police Power
None. Congress has no general police power except over federal land.
Taxing and Spending Power
Congress has it; may use for any public purpose not prohibited by the Constitution.
Spending Power Conditions
For Congress to impose conditions on the grant of money, the conditions must be:
- Clearly stated;
- Relate to the purpose of the program;
- Not be unduly coercive; and
- Do not violate the Constitution.
Commerce Power
Congress may regulate interstate commerce, including,
- Channels of Commerce, e.g. rivers/waterways/telephone lines/Internet
- Instrumentalities of Commerce, e..g planes/trains/automobiles
- Activities that Have a Substantial Effect on Interstate Commerce, e.g. FDR grain quota program.
War Powers
Congress has power to declare war, raise and support armies, and provide for and maintain a navy.
Investigatory Power
Congress has
Delegation of Legislative Power
Congress may delegate powers to administrative agencies as long as it does so with an intelligible principle behind it.
Major Question Doctrine
SCOTUS-made doctrine in which administrative agencies cannot decide “major questions” without pointing out clear congressional authorization for it.
Speech/Debate Clause
Immunity for Federal Legislators
Bicameralism and Presentment
remember
Impoundment
No power - cannot impound. Remember John Oliver clip.
Veto
Veto
Veto Override
Pocket Veto
Executive Agreements - Conflict with Other Laws
- Trumps State Law
- Subordinate to Federal Law
Executive Privilege
President has executive privilege to keep certain presidential communications secret.
Exception: In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is demonstrated.
Executive Immunity
President has absolute immunity from civil damages based on any action taken while exercising official responsibilities.
Tenth Amendment
All powers not granted to the federal government or prohibited to the states are reserved to the states or the people.
State Police Power
Tenth Amendment = States have General Police Powers
Anti-Commandeering Principle
Congress cannot commandeer the states by requiring them to enact state laws or to enforce federal laws.
Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, the Court may use 10A to prohibit that tax.
Does not apply when Congress regulates an activity in which both states and private actors engage. E.g. minimum wage laws.
Intergovernmental Immunity Doctrine
States cannot interfere with or control the operations of the federal government.
Supremacy Clause
Express Preemption: Federal law may just say outright the state cannot adopt laws on this subject matter.
Implied Preemption:
- If a state/local law prevents achievement of a federal objective, it is impliedly preempted.
- Field Preemption: A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if that law is nonconflicting.
- But note that there is a presumption against preemption.
Interstate Compact Clause
If an agreement between states increases the states’ power at the expense of federal power, congressional approval is required.
Privileges and Immunities Clause
- Prohibits state discrimination against nonresidents. (not corporations/aliens) in commercial activities or fundamental rights.
- May be allowed if the law is necessary to achieve an important government purpose and there are no less restrictive means available.
Dormant Commerce Clause
States may not unduly burden or discriminate against interstate commerce.
If Congress has not enacted laws on the subject, state/local government can regulate aspects of interstate commerce.
Discriminatory Regulations by a State Against Other States
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid (for example, New York cannot ban California wines or tax them at a higher rate than local wines).
Unless needed for an important state interest. E.g. State could prohibit importation of live bait fish because parasites could harm their own fish population.
Nondiscriminatory State Commerce Law
If a nondiscriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available.
Example: An Iowa statute banning trucks over 60 feet was held to be invalid because the state showed no significant evidence of increased safety and the burden on commerce was substantial.
State as Market Participant
A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses (for example, when hiring labor, buying or selling products, or giving subsidies).
Process for Interstate Commerce and State Questions
Federal Law Questions.
- Does the question refer to any federal legislation that might supersede the state regulation or preempt the field?
- …or that might authorize state regulation otherwise impermissible?
State Law Questions.
- If neither, does the state regulation discriminate against interstate or out-of-state commerce? If yes, invalid unless:
- Furthers an important, noneconomic state interest and there are no reasonable alternatives; or
- State is a market participant - Does it place an undue burden on the free flow of interstate commerce? If yes, invalid if the burden on commerce outweighs the state interest.
