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Constitutional Law Flashcards

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1
Q

Justiciability: Case/controversy

A
  • There must be an actual case/controversy in dispute
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2
Q

Justiciability: Political questions

A

may not be heard by federal courts. If the issue is committed to another branch of the federal government or if there are no manageable standards by which court can resolve issue, federal court won’t hear it.

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3
Q

Justiciability: Standing (individual) (address for each P if there are multiple)

A

Ind. standing requires:
(1) actual or imminent injury,
(2) injury caused by D,
(3) injury can be redressed by favorable decision.

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4
Q

Justiciability: Standing (third party standing) (address for each P if there are multiple)

A

Parties are generally limited to asserting their own right. but an injured P may assert a 3P’s rights when:
- (1) the parties share an inextricably close relationship and
- (2) third party can’t assert their own rights.

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5
Q

Justiciability: Standing (org standing) (address for each P if there are multiple)

A

Org can bring action when it suffered injury, can also sue on behalf of members if:
(1) Members have standing in their own right,
(2) interests are related to org’s purpose

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6
Q

Fed taxpayer standing

A

has standing to sue over a federal tax or spending program that violates Establishment Clause.

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7
Q

Timeliness: ripeness (not too early)

A

A case will not be heard if there is not yet a live controversy or immediate threat of harm (future wrong).

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8
Q

Timeliness: mootness (not too late)

A

A case will not be heard if a live controversy existed at the time the complaint was filed but has since been eliminated.

*Exceptions (case will not be moot if):
- Controversy is capable of repetition yet evading review (same complaining party will be subjected to the same action again) or
- Voluntary cessation of activity by D (there is no reasonable expectation that the wrong will be repeated)

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9
Q

11th Amendment

A

(can’t sue state) Provides immunity to the states from any federal suit against an out-of-state citizen or a foreign state.
- Citizens can’t sue their own state in court w/o state’s consent

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10
Q

Permissible 11A actions

A
  • States against states;
  • fed gov’t against states;
  • private suits against counties or cities;
  • suits seeking injunctions (NOT money damages) against state officials
  • suits seeking damages against state official IN INDIVIDUAL CAPACITY
  • congressional abrogation if express and in furtherance of Civil War Amendments
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11
Q

State Action rule (Put at top of every essay)

A

Con. only governs governmental conduct, not private conduct.

*Action of a private actor can qualify as state action if:
- Traditional public function
- State is heavily involved / entangled

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12
Q

10th Amendment

A

Provides that powers not delegated to the fed. gov’t are saved for states. Thus, Congress can’t compel a city or state to pass a law.
(comes up with Spending Power bc gov’t can’t force states to enact seatbelt laws but it can condition fed funds to persuade state to do so)

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13
Q

Limits on State Powers: Supremacy Clause

A

Rule: If state law conflicts with federal law, the federal law governs.
- Conflict preemption: where a state law expressly or directly conflicts with a federal law covering the same subject matter, state law is invalid.
- Field preemption: where Congress passes a federal law intending to “occupy the entire field,” states cannot regulate that field.

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14
Q

Limits on State Powers: Dormant Commerce Clause

A

Limits states’ ability to regulate interstate commerce if reg. is (1) discriminatory or (2) unduly burdensome (do both in analysis)

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15
Q

Limits on State Powers: Dormant Commerce Clause, Reg is Discriminatory (S.S.)

A

If state law is discriminatory (on its face) against out-of-state commerce or out-of-towners, state must show:
(1) Necessary to achieve
(2) Important noneconomic gov’t interest
(3) No reasonable alternative

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16
Q

Limits on State Powers: Dormant Commerce Clause, Reg is Unduly Burdensome (RB plus balancing)

A

If state law is not discriminatory on its face, may still be invalid if it causes “undue burden on interstate commerce.

  • Reg. that unduly burdens will be permitted if
    (1) it’s rationally related to a legitimate government interest, and
    (2) the benefits to the state outweigh burden imposed on interstate commerce (rational basis plus balancing).
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17
Q

DCC Market exception

A

when the state is not acting as a regulator, but rather OWNS or OPERATES a business, it may favor local interest s over nonlocal ones.

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18
Q

DCC Congress exception

A

Congressional consent to the regulation makes it permissible.

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19
Q

Privilege and Immunities Clause of Article IV (usually tested with DCC)

A

prevents a state or city from intentionally discriminating against out-of-state citizens regarding fundamental rights or essential activities (corps and noncitizens do not apply).

  • Fund. rights = right to support yourself/pursue employment, civil liberties. NOT recreational activities.
  • Test = State can’t discriminate against noncitizens unless (1) sub. justification for discrim. and (2) no less discrim. means available (HARD test to meet)
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20
Q

K Clause

A
  • Private ks: if state is substantially impairing private Ks, law must be rationally related to a legitimate public purpose
  • Public ks: if state law is substantially impairing a public K, law must be necessary to important public purpose (stricter)
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21
Q

Congress’ Power: Commerce Clause (interstate commerce)

A

Congress can regulate commerce between states including:
- Channels of interstate commerce,
- Instrumentalities (boats, cars),
- Persons and things moving in interstate commerce,
- Activities that substantially affect interstate commerce. Economic activity can be considered in the aggregate

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22
Q

Congress’ Power: Commerce Clause (intrastate)

A

Congress can regulate local activity if:
- Commercial or economic activity that causes a sub. effect on interstate commerce (can be met by aggregate)
- Noneconomic or noncommercial activity that has a direct and sub. effect on interstate commerce (less deference for noncommercial activity)

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23
Q

Congress’ Power: Taxing and Spending Clause

A

Congress has broad power to tax and spend on the general welfare of the U.S.
- A TAX by Congress will generally be upheld if it has a reasonable relationship to revenue production.
- Congress can condition FED. FUNDS and require states to implement certain regulations so long as condition is (1) related to purpose of funds and (2) not excessively coercive.

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24
Q

Congress’ Powers: War

A

Congress has power to declare war and raise and support armed forces

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25
Q

Congress’ power: Naturalization and Bankruptcy

A

Congress has the power to establish uniform laws of naturalization and bankruptcy.

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26
Q

Congress’ Powers: Post Civil War Amendments

A

Congress has power to enforce Post Civil War Amendments (13, 14, 15)

27
Q

Congress’ Powers: N&P Clause

A

Congress the broad authority to enact laws that shall be necessary and proper to execute any of their enumerated powers. Law need only be rationally related to the implementation of a constitutionally enumerated power.

28
Q

Judiciary’s Powers: what cases can courts review

A

Arising under Constitution or U.S. laws; admiralty; between two or more states; between citizens of different states; between state or its citizen and foreign country/citizen.

29
Q

Judiciary’s Powers exception: Ind. and Adequate state grounds

A

SCOTUS will not review a case where there are independent (not based on federal law) and adequate (fully resolve the matter) state law grounds for the state court’s decision, even if there is a FQ involved.

30
Q

Executive Branch: Powers of President

A

P has the power to issue executive orders within the scope of his presidential powers.
- Domestic affairs
- Appt and remove officers
- foreign affairs
- Executive privilege: P has a qualified right to refuse to disclose confidential information related to performance of his duties. (gov’t interest might outweigh this)

31
Q

Improper delegation of leg. power

A

Congress may delegate some of its authority to other branches of gov’t so long as Congress specifies an “intelligible principle” to guide the delegate.

32
Q

Freedom of religion starting rule

A

The First Amendment protects the freedom of religion and is applicable to the states through the 14th Amendment. There are two clauses: Free Exercise Clause and Establishment Clause.

33
Q

Free exercise Clause analysis

A

(1) State rule
(2) Is the gov’t regulating/ targeting Religious belief? (S.S.)
(3) Is the gov’t regulating/targeting Religious conduct? (Could be SS OR RB)

34
Q

Free exercise clause starting rule

A

The First Amendment prohibits state action that interferes with the free exercise of religion, including both the freedom to believe and the freedom to act.

35
Q

Free exercise clause: Religious belief

A
  • The freedom to believe is absolute, gov’t may not deny benefits or impose burdens based on religious belief.
  • Gov’t may only determine the sincerity of one’s beliefs, not whether it is traditional or long-standing.
  • Gov’t reg. of one’s beliefs may be upheld if it passes strict scrutiny:
  • Compelling interest and why? (national security)
  • Regulation necessary to achieve interest and why?
  • Narrowly tailored? Other alt. means?
36
Q

Free exercise clause: Religious conduct

A

Religious conduct, on the other hand, is not absolutely protected. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an incidental impact on religious conduct are subject only to the rational basis test.
- Is it a state law that intentionally targets/directly interferes religious conduct? If yes, S.S.
- Is it a law of general applicability? If yes, RB. (rationally related to legit. gov’t interest)
- Exception: even neutral laws of general applicability are subject to S.S. if they substantially burden the free exercise of religion.

37
Q

Establishment Clause approach

A

The Establishment Clause prohibits laws respecting the establishment of religion. The government can’t endorse or favor specific religious groups.
- Does the law facially show a preference to religion or does it directly impact religion? If so, SS.
- Is there no facially religious preference? If yes, apply historical practices and understandings test (has law been longstanding practice of govt? Does it serve a valid secular purpose?)

38
Q

Freedom of speech general rule

A

The First Amendment protects an individual’s right to free speech and is applicable to the states through the Fourteenth Amendment.

39
Q

Two classes of speech

A
  • Content-based (only upheld if it passes S.S.). Law is content based if it applies to certain speech bc of subject or idea expressed
  • Content-neutral upheld if survives I.S. (must serve an imp. gov’t interest, be narrowly tailored to achieve that interest, leave open alt. channels of comm.). Law content-neutral bc doesn’t apply to specific subject or ideas
40
Q

Unprotected speech: Obscenity

A

Speech is considered obscene if it describes or depicts sexual conduct that, taken as a whole
- Appeals to prurient interest (comm. std.)
- Patently offensive (comm. std)
- Lacks serious LAPS (reas. person std)

41
Q

Unprotected speech: Misrepresentation and defamation

A

Misrepresentation:
- False statement of material fact
- Known to be false
- Intent to induce
- Actual / justifiable inducement
- Causation
- Damages

Defamation:
- Statement is of or concerning P
- Published to 3P who understands
- Damages P’s rep.

42
Q

Unprotected speech: imminent lawless action

A

(1) intended to incite or produce imminent lawless action and
(2) is likely to produce such action.

43
Q

Unprotected speech: fighting words

A

Words that are likely to cause the listener to commit an act of violence. However, causing another to be angry alone is insufficient (must be likelihood of imminent violence).

44
Q

Time place and manner regulations: general rule

A

Laws that seek to regulate speech based on time, place and manner in which the speech may be communicated. Rules differ depending on type of forum in which speech or conduct occurs but ALL must be viewpoint neutral.

45
Q

Time place and manner regulations: public forum and designated (unlimited) public forums (I.S.)

A

Public forums are forums that are generally open to the public. Designated public forums are opened up to the public at large for a specific purpose. Speech restrictions in both must (I.S.):
- be content and viewpoint neutral
- serve an imp. gov’t int.
- narrowly tailored to achieve that int.
- leave open alt. channels of comm.

46
Q

Time place and manner regulations: limited public forum and nonpublic forums (RB)

A

Limited public forums are forums that are opened for limited use by certain groups or discussion of certain subject. Nonpublic forums are forums that are closed to the public. Speech restrictions in both must:
- viewpoint neutral
- serve a legit. gov’t int.
- Reasonably related

47
Q

Commercial speech (sdn)

A

Gov’t may restrict commercial speech (advertising) only if the regulation
- serves a substantial gov’t interest
- directly advances that interest
- narrowly tailored such that there is a reasonable fit to serve that interest

48
Q

Symbolic speech

A

The freedom not to speak or the freedom to communicate an idea by use of a symbol or communicative conduct. Gov’t may restrict symbolic speech if:
- within constitutional power of gov’t to enact,
- furthers an important governmental interest unrelated to suppression of speech
- prohibits no more speech than necessary

49
Q

Limitations on free speech regulations: Vagueness

A

fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

50
Q

Limitations on free speech regulations: Overbreadth

A

bans both protected speech and unprotected speech.

51
Q

Limitations on free speech regulations: Unfettered discretion

A

If a permitting or licensing process allows a government official to regulate or restrict speech, the official cannot have unfettered discretion. There must be definite standards in place as to how to apply the law.

52
Q

Prior restraints

A

A prior restraint prohibits speech before it occurs (rarely allowed). Government must show
- irreparable/serious harm to public will occur
- narrowly drawn std’s
- final determination of validity of restraint

53
Q

Freedom of association

A

First Amendment case law recognizes an individual’s right to freely associate.
- Gov’t can only prevent freedom of association or require individuals to associate if it shows S.S.
- Gov’t can’t deny job or public benefit based on someone’s associations.

54
Q

DP: Substantive DP general rule

A

DP binds states through 14A and fed gov’t through 5A. SDP limits the government’s ability to regulate substantive interests in life, liberty or property (regulation of one’s personal autonomy and privacy).

*Fund. rights:
- Rights the encompass life, lib., prop
- Marriage
- Living with one’s fam
- Child bearing/rearing
- Domestic travel
- Voting

*ALL fund. rights subject to S.S.

*NON-fund. rights are everything else but typically social and economic rights (educ., private employment). Subject to RB

55
Q

DP: Procedural DP rule

A

Binds states through 14A and fed gov’t through 5A. PDP requires the government to use fair process before intentionally depriving a person of life, liberty or property.

56
Q

DP: Procedural DP approach

A

(1) State rule
(2) Ask: is there a protected lib or prop interest?
- Lib interest = physical liberty and intangible liberties (right to drive, raise fam.)
- Prop. interest: real prop., personal prop., public ed., gov’t employment or licenses or benefits, right to contract terms, right to wages
- Con. rights (1A freedom of speech, etc.)
(3) If an individual’s interest is protected, what type of process is due?
- Judicial proceedings: right to hearing, counsel, call witness
- Nonjudicial proceedings: involves a balancing test for court to weigh
(a) Ind. int. in right affect by gov’t action,
(b) risk of erroneous deprivation of that interest using current procedures and probable value of additional safeguards and
(c) gov’t’s interest in fiscal and admin efficiency.
- If all weigh in P’s favor, P was owed due process and should have received notice and hearing.

57
Q

EPC: Different treatment for similarly situated people examples

A
  • Violation on its face: law treats people differently.
  • Violation as applied (discriminatory intent AND impact): gov’t treats people differently through administration of statute.
  • P must show discrimination. Intentionally different treatment is required for heightened review (S.S. and I.S.) under EPC, and not just the incidental burdening effect (intent can be found by facial discrimination, discriminatory impact, or discriminatory motive).
58
Q

3 levels of review for EPC

A
  • S.S. = requires gov’t to prove classification necessary to achieve compelling gov’t int.
  • I.S. = requires gov’t to prove that the classification is substantially related to achieve an imp. gov’t int.
  • R.B. = requires classification to be rationally related to legit. gov’t int. (burden on P)
59
Q

Classification schemes

A
  • Suspect classifications: race, national origin, state citizenship (not a U.S. citizen). Subject to S.S.
  • Quasi-suspect classification: include those based on gender and illegitimacy, subject to I.S.
  • Nonsuspect classifications: include everything else (and nonfund. rights like economic and social welfare), subject to RB
60
Q

Takings Clause rule

A

The Takings Clause of the Fifth Amendment provides that private property may not be taken for public use without just compensation. The Fourteenth Amendment makes the Takings Clause applicable to the states. The power of the government to take private property for public purposes is known as eminent domain.

61
Q

Takings Clause approach

A

(1) State rule
(2) Is it gov’t action?
(3) Is it priv. property/does person have a privacy interest?
(4) Identify type of taking to determine person’s rights (is gov’t trying to take private prop for public use thru eminent domain? If yes, go to 5. OR is it a gov’t regulation that adversely affects a person’s interest to the point where it’s possible the regulation rises to level of taking, like a zoning ordinance. If yes, go to next card)
(5) If taking has occurred, prop owner is entitled to just compensation in form of FMV of prop at time of taking.

(LOOK AT FLASHCARD FOR MORE)

62
Q

Takings Clause analysis step 4

A

*Is it a total taking?
- A total taking occurs when there is permanent physical occupation of land for public use OR when a regulation results in permanent total loss of prop’s economic value.

*Is it a partial taking? Consider following factors:
- Character of gov’t action (does it impact a few owners or entire community?)
- Economic impact on prop. owner?
- Regulation’s interference with owner’s reasonable investment backed expectations (how much has owner invested in prop?

*Conclude and move to step 5.

63
Q

If there’s a zoning ordinance that amounts to a taking, talk about

A
  • Nonconforming use variance: (legal when it began but no longer allowed under current zoning laws). Permits pre-existing landowner to use land for same purpose in which it was used prior to current ordinance. Requires a showing that it would not be contrary to public welfare, and whether an owner is entitled to one depends on the jx’s zoning laws
  • Use variance: (request to use prop. in way that’s not permitted by local zoning rules) requires a showing of a unique hardship by the owner and it is not contrary to the public welfare, if city allows use variances.

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