Constitutional Law Flashcards
When do federal courts have party-based jurisdiction?
- When the US is a party
- When two states are parties
- When a citizen sues a different state
- Diversity cases
- Ambassadors and consuls
What is the 11th amendment sovereign immunity?
Private individuals cannot sue states for money damages.
What are the exceptions to 11th amendment sovereign immunity?
- Federal suits brought by one state against another state
- Suits brought by the federal government against a state
- Subdivisions of a state
- Express waiver
- If the suits requests an injunction
- Congress can authorize suits for money damages relating to violations of the 13th, 14th, and 15th amendments
What must be shown for the case and controversy requirement?
- Standing
- Ripeness
- Abstention
- Mootness
- Political question
What is required to show standing?
- Injury in fact
- Causation
- Redressability
When does a 3rd party have standing?
Can assert the rights of a 3rd party when:
1. the litigant has an injury
2. special relationship between the litigant and the 3rd party because their interests are connected
3. the 3rd party is unable to bring suit on their own
When does an organization have standing?
An organization has standing to assert the claims of its members, even if the association has not suffered any injury itself, if:
1. The members would have standing to sue in their own right;
2. The interest asserted is germane to the association’s purpose; and
3. Neither the claim asserted nor the relief requested would require the individual members to participate in the lawsuit.
What is the exception to the mootness requirement?
Capable of repetition, yet evading review
When does the political question doctrine apply?
Constitution suggests decision-making authority is given to another branch.
Political, rather than legal decision required.
Foreign affairs is often political.
What is abstention for the case and controversy requirement?
A federal court can abstain from hearing a particular case when the case includes undecided issues of state law.
What is Adequate and Independent State Grounds?
SCOTUS can refuse to take jurisdiction over a case, even if a federal question is involved, when the state court judgement can be supported on an adequate and independent state ground.
What does SCOTUS have jurisdiction over?
Original over cases involving states, ambassadors, foreign diplomats.
Appellate when the constitution or federal law is at issue.
Can Congress enlarge or restrict SCOTUS original jursdiction?
No.
What are Congress’s enumerated powers?
- collect taxes and spend money for general welfare
- borrow money on the credit of the US
- regulate interstate commerce
- declare war
- raise and support army, navy, militia
- foreign commerce
- immigration and naturalization
- investigatory power
- power over federal property
- bankruptcy, post office, copyright and patent
What does the commerce clause include?
- channels of interstate commerce
- instrumentalities of interstate commerce
- activities that substantially affect interstate commerce —> cumulative effect, comprehensive scheme
When will a tax passed by Congress be upheld?
- raises revenue
- was intended to raise revenue (even if it doesn’t)
- congress has the power to regulate the activity that’s being taxed
When can Congress place a condition on the receipt of federal funds by a state?
- Spending serves the general welfare
- Condition is unambiguous
- Condition is related to the federal program
- State is not required to undertake unconstitutional action, and
- The amount in question is not so large as to be coercive
What is the 13th amendment?
Bans slavery. Applies to private individuals.
What is the 14th amendment?
Prohibits states from violating due process, equal protection, and privileges and immunities
What is the 15th amendment?
Prohibits states from discriminating with respect to race in voting rights
How can Congress enforce the post-civil war amendments?
Can only regulate states, not private individuals.
States must have engaged in widespread violations
Remedy must be congruent and proportional to the violations.
When can Congress delegate power to an executive agency?
So long as there is an intelligible principle to guide the agency.
What powers does the executive have?
- veto
- appointment
- pardon
- enforcement
- removal
To whom can Congress delegate appointment of inferior officers?
- president
- judiciary
- the head of an executive department
When can the President remove executive officials?
Without cause, unless they have fixed terms or perform judicial or quasi-judicial functions.
What is executive privilege?
Absolute privilege to refuse to disclose information related to national security.
Confidential communications between President and advisors are presumptively privileged
Do executive agreements prevail over federal law?
No, but they do prevail over state law.
What are the constitutional limits on state police powers?
- exclusive federal powers
- individual rights
- preemption
When is a state immune from federal taxation?
If the tax is applied to unique state activities or essential government functions.
When is a state law that discriminates on its face against out of state goods or economic actors valid?
The state must show:
- regulation serves a compelling state interest
- the regulation is necessary to achieve the compelling interest
—> strict scrutiny
What is the dormant commerce clause test for facially non-discriminatory state laws?
Will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the benefits of the regulation.
When states act as market participants, can they discriminate against out-of-state businesses?
Yes.
When can private action be treated as state action for purposes of individual rights?
- when a private entity is carrying on activities traditionally performed by the government
- when a private party’s action is closely encouraged and supported by the state
How is the bill of rights invoked against the states for discrimination?
The 14th amendment due process clause.
Doesn’t apply to 5th amendment right to a grand jury, or the 7th amendment right to a jury trial in civil cases
What rights does procedural due process protect?
Life
Liberty
Property
Includes
1. Public education
2. Public employers (if fixed term or only for cause)
3. Welfare benefits
4. Driver’s licenses
Without notice and hearing
What is the rational basis review standard?
Rationally related to a legitimate government interest. Burden is on plaintiff.
What is strict scrutiny?
Government must show that the regulation is necessary to further a compelling government interest (narrowly tailored).
What is intermediate scrutiny?
Government must show the regulation is substantially related to an important government interest.
What rights are considered fundamental and are subject to strict review?
- Contraceptives
- Marriage
- Family relations - living with family
- Private education
- Possession of obscene material
- Right to travel
- Right to vote
What restrictions on the right to vote are constitutional?
- reasonable registration and residency requirements
- reasonable regulations on time and manner of voting
- restricting right of felons to vote
What is the 5th amendment takings clause?
Federal government (and states through the 14th amendment) cannot take private property for public use without just compensation.
When does a regulatory taking fall under the 5th amendment?
- requires the property owner to suffer some permanent physical invasion
- deprives the owner of all economically beneficial use of the land
OR - balance the economic v physical impact, and the duration and character of the government action
When is a conditional permit permissible under the 5th amendment?
- logical nexus between the condition and the governmental purposes
- there is rough proportionality between the impact on the proposed development and the governmental objectives served by the condition
Situations of disparate impact are subject to what level of review?
Rational basis.
When are situations of disparate impact subject to strict scrutiny?
- intended to have disparate impact
- neutral standard applied in a discriminatory way
What classifications does rational basis review apply to?
Age, disability, alienage, sexual orientation, undocumented immigrant children, wealth, state law against illegal immigrants.
Anything not strict or intermediate scrutiny
What classifications are subject to intermediate scrutiny?
Gender, illegitimacy
What classifications are subject to strict scrutiny?
Suspect classifications.
- race
- voting
- national origin
- domestic travel
- alienage (at state level)
- preference to one religion over another
- content based discrimination on speech
What are the privileges or immunities under the 14th amendment that apply to the state?
- Travel across state lines and changing residency
- Petition Congress
- Vote for federal offices
- Assemble
- Enter public land
What is the privileges and immunities under Art. 5?
Prohibits state from discriminating against non-residents.
Can’t:
- require non-residents to pay a higher fee for commercial licenses
- commuter taxes that apply only to non-residents
- state laws requiring hiring preference to state residents
Subject to intermediate scrutiny.
What are exceptions to the freedom of expression?
- child pornography
- unprotected or low value speech
- government as speaker
- content-neutral conduct regulation
- content-neutral time, place, and manner regulation
What is unprotected speech?
- Speech that advocates violence or unlawful action
- Fighting words
- Hostile audience speech
- Obscene speech
- Defamatory speech
What standard of review applies to unprotected speech?
Rational basis review.
What are fighting words?
likely to incite an ordinary citizen to acts of immediate physical retaliation.
What is unprotected obscene speech?
- Average person applying local community standards would find it salacious/prurient
- offensively depicts or describes sexual conduct that is specifically described by state law
- The work, taken as a whole, lacks serious literary, artistic, political, or scientific value
When does speech advocate violence or unlawful action?
When it is directed toward inciting violence or unlawful action, and is likely to actually incite that violence or unlawful action
What is low-value speech?
- Commercial speech
- Sexual or indecent speech
When can secondary effects of sexual or indecent speech be regulated?
The regulation must serve a substantial government interest and leave open alternative channels of communication.
When is commercial speech protected?
When it is not false or deceptive and does not relate to unlawful activity.
What is the 3 part test to regulate commercial speech?
Regulation must:
1. Serve a substantial government interest
2. Directly advance the substantial governmental interest
3. Not be more extensive than is necessary to serve that interest
When are laws that regulate conduct and have an incidental effect on speech permissible?
- regulation furthers an important or substantial government interest that is unrelated to the suppression of free speech
- the incidental restriction of speech is no greater than necessary to further that interest
When can the government place time, place, and manner restrictions on speech in public forums?
Public forums
- content neutral, both subject matter and viewpoint
- narrowly tailored to serve important government interest
- leave open alternative channels of communication
What is the standard for time, place or manner restrictions on speech in non-public forums?
Rational basis review.
When can public employees be fired or disciplined for speech?
- speech is not a matter of public concern, or
- speech is potentially disruptive to the workplace
What factors are considered in determining whether a restraining order against pretrial publicity?
- nature and extent of publicity
- availability of other measures to mitigate the effects of pretrial publicity
- the likely effectiveness of the restraining order
What standard of review is applicable to neutral, generally applicable laws that have incidental effects on religion?
Rational basis review.
Who is not protected by 14th amendment privileges and immunities?
Corporations and aliens.
When is a hearing required for welfare benefits?
Before termination.
Most other types of benefits only need post-termination hearing.
Can the state force an individual to promote speech?
No.
Which amendment expressly applies to private action?
The 13th amendment is the only one.
What interests in property get compensation for takings?
All - including profits.
What is the contracts clause?
Prevents the states (not the federal government) from retroactively impairing obligations of existing contracts.
When can federal courts create common law?
- Federal or Constitutional issues are at stake
- Congress has inadequately addressed the issue
and - the application of individual state laws in various jurisdictions would create unacceptable levels of diversity or uncertainty
Federal common law is confined to what fields?
- maritime law
- foreign relations
- commercial rights and liabilities of the federal government
- property rights and liabilities of the federal government
When can the government regulate prisoner’s speech?
When the regulation is rationally related to a legitimate penological objective.
What are the types of 5th amendment takings?
- Direct government appropriation
- Regulatory taking
- Temporary restrictions
- Conditional permits
What standard is applied to state laws that discriminate against aliens?
Strict scrutiny
Unless: rational basis scrutiny is appropriate when alienage classifications restrict the right to participate in functions that are central to self-government, such as voting, running for office, or serving on a jury.
