Constitutional Law Flashcards
Judicial Powers
“Case or Controversy Requirement”: Federal courts can hear a matter only if there is a “case or controversy”
For there to be a “case or controversy” there must be:
1. No advisory opinion
2. Must be brought when it is ripe and before it is moot
3. The plaintiff must have standing
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
A case must be ripe for review before it may be heard
Rule: Pre-enforcement reviews of law 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 judicial decision; AND
2. The plaintiff would suffer substantial hardship in the absence of review.
Mootness: A live controversy must exist in all stages of review, thus the plaintiff needs to be suffering from an ongoing injury, or else the case will be dismissed as moot.
Exceptions: A claim is not considered to be moot in the following situations, even if the injury has passed:
1. Controversies capable of repetition but that evade review because of their inherently short duration
2. Cases where the defendant voluntarily stops the offending practice but is free to resume it
3. Class actions with one live claim
Standing has three major components:
1. Injury In Fact: To have standing a person needs to have an injury in fact, which requires both:
A. A particularized injury: An injury that affects the plaintiff in a personal and individual way; and
B. A concrete injury: One that actually exists(not hypothetical)
Timing: The injury must have already occurred or imminently will occur
Who Must Suffer The Injury: Generally there is no third party standing, and the plaintiff must have suffered the injury. However there are exceptions:
Standing To Assert 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 third party to assert their own rights; or (2) A close relationship exists between the claimant and the third party
Standing of Organization: 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 organizations purpose; and (3) Individual members participation in the lawsuit is not required
Free Speech: A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary(restriction was over broad). In other words, plaintiff can bring a claim in behalf of others whose speech would not be protected under the First Amendment. However this rule does not apply to restrictions on commercial speech
- Causation: There must be a casual connection between the injury and the conduct complained of.
Injury traceable to defendant - Redressability: A decision in the litigants favor must be capable of eliminating their harm
Sovereign Immunity
The Supreme Court has held that the doctrine of sovereign immunity in the 11th Amendment bars a private party suit against a state in federal and state court.
There are several exception to state sovereign immunity:
1. Express Waiver: States can be sued if they consent to it by waiver. They have often waived it in their tort claims act(please sue us if were being negligent)
2. Implied Consent/Structural Waiver: States implicitly agreed that their sovereign immunity would waive to certain federal powers, thus 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
3. Local Governments: Local governments(city or county) are not protected by sovereign immunity
4. States can sue other states
5. Federal government can sue other states
6. Bankruptcy: States lack sovereign immunity in bankruptcy proceedings
7. State Officials: A person can sue a state official: (1) for damages personally; or (2) to enjoin the official from future conduct that violates the constitution or federal law.
8. Civil Rights Acts: Congress can remove a states immunity as to actions created under the Fourteenth Amendment power to prevent discrimination
Jurisdiction of Supreme Court
Original Jurisdiction: The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party
Concurrent Jurisdiction: Congress has given concurrent jurisdictions to lower federal courts in all cases except those between states
Final Judgment: when exercising its appellate jurisdiction, generally the Supreme Court will hear the case only after there has been a final judgement by the lower court. Cases can come to the Supreme Court by one of two ways:
1. Writ of Certiorari: Cases from the highest state court capable of providing a decision where (1) the constitutionality of a federal statue, federal treaty, or state statue is in issue, or (2) A state statue allegedly violates federal law
2. All cases from federal court.
Adequate and Independent State Grounds: The Supreme Court will not exercise jurisdiction if the state court judgement is based on adequate and independent state law grounds-even if federal issues are involved
Article 2 Executive Powers
Appointment Power:
The president appoints ambassadors, justices of the Supreme Court, and other officers of the United States whose appointments are not otherwise provided for in the constitution, with the advice and consent of the senate
Congress, however, can vest the appointment of interior officers in the president alone, the courts, or the head of departments.
War Power:
The president has no power to declare war, but the President as commander in chief, can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property.
Challenge’s to the President conduct as commander in chief are likely to be views as nonjusticiable political question.
Treaty Power:
The President has the power to enter into treaties with the consent of two-thirds of the senate
Executive Agreements: Signed by the President and the head of a foreign country and can be used for any purpose that treaties can be used for
Constitution > Federal Law(treaties) > Executive Agreements > State Law
Foreign Relations Power:
The president has paramount power to represent the United States in day to day foreign relations
Legislative Powers
Congress can exercise the powers enumerated in the Constitution(Art. 1, Sec. 8) plus any powers necessary and proper to carry out any of its enumerated powers.
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 1, as long as that law doesn’t violate another provision of the Constitution
Enumerated Powers:
Taxing and Spending Power: Congress has the power to tax and spend to provide for the general welfare
Spending Conditions: Under the spending power, Congress can impose conditions on the grant of money to state or local governments. These conditions are valid only if they:
1. Are clearly stated
2. Relate to the purpose of the program
3. Not unduly coercive
4. Do not otherwise violate the constitution
Taxing Power: Most federal taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting general welfare.
Delegation: Congress can delegate rule-making or regulatory power to the executive branch or judicial branch as long as intelligible standards are set and the power isn’t something uniquely confined to Congress(declare war or impeach).
Property Clause: Under Article IV, Section 3, Congress has the power “to make all needful rules and regulations respecting the territory or other property belonging to the United States.
State Action
State action is required in order to sue under the First, Fourteenth, or Fifteenth Amendment.
General rule: If a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech, due process, Equal Protection Clause issues, or voting rights) the plaintiff needs to find a government actor or action “fairly attributable to the government.” (One cannot sue a business or a private individual
for, say, violating one’s free speech rights under the First Amendment.)
Private Individuals: State action can be found in actions of private individuals who:
1. Perform exclusive public functions; or
2. Have significant state involvement
Article IV Privileges and Immunities Clause
The Article IV Privileges and Immunities Clause prohibits discrimination by a state against nonresidents when the discrimination concerns either:
1. Important commercial activities(such as the pursuit of a livelihood); or
2. Fundamental rights.
Important State Interest Required: If the state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.
Fourteenth Amendment Privileges of National Citizenship: State may not deny their citizens the privilege or immunities of national citizenship such as:
The right to petition Congress for redress of grievances
The right to vote for federal officers, and
The right to interstate travel
Federalism
Tenth Amendment: Under the Tenth Amendment, all powers not granted to the federal government or prohibited to the states are reserved to the states or the people.
States Have General Police Powers: This means they can regulate the health, safety, and welfare of their people.
These regulations will be upheld for any rational basis, unless they burden a fundamental right or involve a suspect or quasi-suspect classification
Anti-Commandeering: Congress can’t commandeer states by requiring them to enact state law or to enforce federal law.
Similarly, if Congress passes a tax, that does not apply to private businesses but merely taxes states government entities, its possible the Court will use the Tenth Amendment to prohibit the tax
Exception: Non-Coercive Spending Conditions: Non-coercive spending conditions don’t violate the anti-commandeering principle
Supremacy Clause
Supremacy Clause: A federal law may supersede or preempt state or local law
Federal Law includes: Constitution, federal statues and regulations, treaties, and executive agreements
Express Preemption: 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
Implied Preemption: Few different types:
1. Conflict: 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 Law Impedes Federal Law: If a state or local law prevent achievement of 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 - Field Preemption: 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
Procedural Due Process
The Due Process Clause of the Fifth Amendment(Federal Government) and the Fourteenth Amendment(State Government) provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property
A deprivation of liberty occurs if a person:
1. Loses significant freedom of action; or
2. Is denied a freedom provided by the Constitution or statue
Property: “Property” includes both personal and real property whether its tangible or intangible. Property also includes government benefits to which there is a reasonable expectation of continued receipt under state or federal law.
Property interests include: Welfare benefits, public education, government licenses, and tenured government employment or term employment for the duration of the terms but not at-will employment
Procedural Due Process requires:
1. Notice
The notice must be reasonably calculated to inform the person of deprivation
2. An opportunity to be heard
The type an extent of the hearing are determined by a balancing test that weighs:
A. The importance of the interest to the individual; and
B. The value of specific procedural safeguards to that interest(the risk of current procedures used and benefits of additional procedures); against
C. The government interest in fiscal and administrative efficiency(the burden on the government from using additional procedures)
Typically the claimant should be given a pre-deprivation hearing unless that would be impracticable
3. A neutral decision-maker
The decision-maker cannot have any actual bias or a serious risk of actual bias
Substantive Due Process
Substantive due process guarantees that laws will be reasonable and not arbitrary.
Strict Scrutiny: When a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard.
Fundamental Rights include:
1. All First Amendment rights
2. The right to interstate travel
3. Privacy-related rights
4. Voting
Unenumerated Fundamental rights: Unenumerated rights are fundamental if its deeply rooted in the nations history and tradition and essential to the concept of ordered liberty (Also Strict Scrutiny)
Commerce Clause
Commerce Power: Congress has the power to regulate all foreign and interstate commerce, as well as commerce with Indian tribes.
Test: To be within Congress’s Commerce Power, a federal law regulating commerce must either:
1. Regulate the channels of interstate commerce (highways, waterways, telephones lines, internet)
2. Regulate the instrumentalities of interstate commerce (planes, trains, automobiles) and persons and things in interstate commerce; or
3. Regulate activities that have a substantial effect on interstate commerce
Intrastate Activity: When Congress attempts to regulate intrastate(local) commercial activity under the third 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
Congress cannot, however, “commandeer” states and force states to enforce federal laws. Congress will either have to regulate directly (if within its commerce power) or regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress’s spending power).
Dormant Commerce Clause: States lack the power to discriminate against interstate commerce or unreasonably burden it.
If a law discriminates against interstate commerce, it is invalid unless the state can show that the law was necessary to serve a compelling state interest and there is no reasonable nondiscriminatory alternative (strict scrutiny).
If a state law is nondiscriminatory on its face(i.e.,it imposes the same burden on those in-state and out-of-state) but it still burdens interstate commerce, it is valid only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce
Dormant Clause Exceptions: There are two Dormant Clause Exceptions:
- Congressional Approval: Congress may permit state regulations that would otherwise violate the Dormant Commerce Clause. Likewise Congress may prohibit state regulations that could otherwise be upheld under the Commerce Clause
- 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.
Equal Protection Clause
The Equal Protection Clause of the 14th Amendment is limited to states
The Due Process Clause of the 5th amendment contains an Equal Protection component and applies to the federal government
The Equal Protection Clause has three standards to be aware of:
Strict scrutiny: The government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest.
1. Race
2. National Origin
3. Alienage(state)
Affirmative Action: Government action that favors racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discrimination against racial or ethnic minorities
Remedying Past Discrimination: The government has a compelling interest in remedying past governmental discrimination against a racial or ethnic minority. However, the past discrimination must have been persistent and readily identifiable and a race based plan cannot be used to remedy past “societal discrimination”
Intermediate scrutiny: The government must prove the law is substantially related to an important government interest.
1. Gender
2. Illegitimacy.
Rational basis: The plaintiff must prove that the law is not rationally related to a legitimate government interest.
This applies to every other classification—poverty, wealth, age, education, etc.
For strict or intermediate scrutiny the government must have intent to discriminate
Intent may be shown by:
1. A law that is discriminatory on its face
2. A discriminatory application of a facially neutral law; or
3. A facially neutral law with a disparate impact on a protected class of people
Exam Tip: For the second and third form, a discriminatory applicable or effect alone is not enough but there must also be discriminatory intent
Substantive Due Process: If a law limits the rights of all persons to engage in some activity, on the MBE it is usually a Substantive Due Process question
Equal Protection: If a law treats a person or class of persons differently from others, on the MBE it is usually an equal protection clause(analyze under both though)
Retroactive Legislation
Contract Clause: Limits the ability of state and local governments to enact laws that retroactively impair contract rights.
Does not affect contracts not yet made
Does not apply to the federal government
Private Contracts: Intermediate Scrutiny
Public Contract(state is party): Heightened Scrutiny
Ex Post Facto Laws: 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
Test: A statute retroactively alters a law in a substantially prejudicial manner if it:
1. Makes criminal an act that was innocent when done,
2. Imposes a greater punishment for an act than was imposed for the act when it was done; or
3. Reduces the evidence required to convict a person of a crime from what was required when the act was committed
Bills of Attainder: Legislative acts that inflict punishment on individuals without a judicial trial.
Both federal and state/local governments are prohibited from passing bills of attainder
Freedom of Speech
The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.” Remember, there must be a government regulation of private speech.
Strict scrutiny means that the government must show that the regulation is necessary and narrowly tailored to serve a compelling state interest.
The government faces strict scrutiny if it engages in:
1. Content-based discrimination (forbidding communication about certain ideas) or
2. Viewpoint- based discrimination (forbidding communication about a certain viewpoint).
Symbolic speech: A law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is narrowly tailored to an important governmental interest and is unrelated to the suppression of the speech.
Commercial Speech: Commercial speech: The law must meet the Central Hudson test, which states that 1. The speech must be lawful and not misleading,
2. The statute must serve a substantial governmental interest that is narrowly tailored to directly advance that interest,
Unprotected speech: A law regulating unprotected speech needs to pass rational basis scrutiny.
The following categories of speech are not protected under the First Amendment:
True threats: Words that are intended to convey to someone a serious threat of bodily harm
Fighting words: Words that are likely to incite immediate physical retaliation in an average person
Incitement: Speech can be censored as incitement if it is:
1. Intended to produce imminent lawless action; and
2. Likely to produce such action
Obscenity: Speech is obscene if it describes or depicts sexual conduct specified by statue that, taken as a whole, by the average person:
1. Appeals to the prurient interest in sex, using a contemporary community standard
2. Is patently offensive under contemporary community standards; and
3. Lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard
Sexual or indecent speech: The law must serve a substantial governmental interest and leave open reasonable alternative channels of communication.
Time-place-or-manner restriction: A restriction in a public forum, one historically associated with free speech rights, or a designated public forum (e.g., a school that opens its doors to after-school activities) must be:
1. Content neutral,
2. Narrowly tailored to serve an important governmental interest, and
3. Leave open alternative channels of communication.
A restriction in a nonpublic forum (e.g., airports, government workplaces, etc.) must be:
1. Viewpoint neutral and
2. Reasonably related to a legitimate governmental interest.
Speech in Public Schools: Students have free speech rights; however, speech in schools may be regulated so long as the regulations are:
1. Reasonably related to legitimate pedagogical (educational) concerns.
-Off campus likely cant be censored
- On campus only regulated if it causes substantial disruption or involves illegal drugs use
Vagueness Doctrine: If a criminal law or regulation fails to give persons reasonable notice of what is prohibited it may violated the Due Process Clause
This principle is applied more strictly when First Amendment activity is involved
Overbreadth Doctrine: A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary
Prior Restraints: Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards.
These are not favored and rarely allowed
For exam purposes, ask whether there is some special societal harm that justifies the restraint
Strict scrutiny for content-based prior restraints
Intermediate scrutiny for content neutral prior restraints
Rights of the press: The press has no greater free speech rights than anyone else. The press may publish information that is:
1. Lawfully obtained and
2. Is a matter of public concern.
Rights of corporations: Independent political expenditures by a for-profit corporation constitutes free speech protected by the First Amendment.
Taking
The critical issue here is whether governmental action is a taking(requiring compensation) or merely a regulation(no compensation).
Fifth Amendment: Provides that private property may only be taken:
1. For public use; and
2. The government must pay just compensation
Temporary Occupation: May also be a taking, depending on factors like the degree of invasion, the duration, the governments intention, the foreseeability of the result, the character of the property
Regulatory Taking: If a government regulation denies a landowner of all economically viable use of their land, the regulation amount to a taking unless principles of nuisance or property law make the use prohibitable
Decreasing Economic Value Balancing Test: Generally, regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use.
The court will consider:
1. The government interests sought to be promoted
2. The diminution in value to the owner; and
3. Whether the regulation substantially interferes with distinct, investment-backed expectations of the owner
Freedom of Religion
The Free Exercise Clause: Prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct
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. Facially discriminatory based on religion; or
2. Facially neutral but not generally applicable(by design)
Ministers Exception: Religious organizations must be granted an exemption from suits alleging employment discrimination by ministers against their religious organization(Catholic churches can choose to only hire men). This exception has been extended to religious school teachers.
Establishment Clause: Prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion
Neutrality Principle: A government must remain neutral with respect to religion, neither favoring nor disfavoring it
Coercion Prohibited: The government may not directly or indirectly coerce individuals to exercise or refrain from exercising their religion
History and Traditions Approach: The Court has often stated that the Establishment Clause must be interpreted by reference to historical practices and understandings.
