Constitutional Law Flashcards
Organizational Standing
Organizations can assert standing when (1) their members have standing, (2) when the injury or interests at stake are germane to the organization’s purpose, and (3) when individual members are not necessary to adjudicate
Procedural Due Process (Intro)
The 14th amendment prohibits states from depriving persons of “life, liberty, or property” without due process.
In assessing whether a procedural due process (PDP) violation exists, courts will first determine if there has been a deprivation of a fundamental right to life, liberty, or property. If there is such a deprivation, courts will then determine the amount of due process required for such a deprivation and whether sufficient due process was afforded. In general, due process requires a pre-termination notice and a hearing
PDP - Public Employment
Public employment may constitute a property interest in some cases.
In general, the Supreme Court has held that employees possess a property interest in continued employment if there is an employment contract providing as such, or if they can only be fired for-cause.
In contrast, at-will employees have no right to continued employment unless (a) they have been given assurances of continued employment, (b) their employment contract limits the grounds of their termination, or if (c) the grounds for their termination are constitutionally impermissible.
PDP format
(1) Discuss whether there was a legitimate property or liberty interest (i.e. wages, continued employment, first amendment or other liberty rights)
(2) Discuss whether that interest was deprived by the state
(3) What due process should be afforded
(4) What due process was afforded
First Amendment Rights of Government Employees
At-will government employees cannot be fired for having engaged in speech protected by the First Amendment.
In general, government employees may avail of first amendment free speech protections when speaking as a private citizen on matters of public concerns. When speaking pursuant to official duties, however, public employees may not avail of First Amendment protections
PDP - What process is due
PDP generally requires the imposition of certain procedural safeguards, including The Supreme Court has delineated a 3-pt. balancing test to determine what due process should be afforded upon a deprivation of life, liberty, or property. Courts generally look at (1) the private interest at stake, (2) the government’s interest, and (3) the risk of erroneous deprivation with current procedural safeguards, and the burden or value of additional or substitute safeguards.
(1) private interests at stake
- talk about why public employment or wages are important (people depend on their jobs for their livelihood, a salary cut would make it harder for people to support themselves or dependents, etc.)
- people have a right to voice concerns re: public matters
(2) government’s interest
- talk about cost and burdens of requiring more process
- government’s objective in depriving of LLP interest
TRO
A TRO is generally sought at the first stage of a plaintiff’s request for an injunction, and is primarily issued to maintain the status quo. Under the FRCP, TROs are not to exceed 14 days.
TROs are generally issued with a hearing and without notice so long as the movant’s attorney can certify that irreparable harm would result if the TRO were not immediately issued, and either good-faith efforts were made to notify the other party or notice to the other party would be harmful.
In issuing TROs, courts generally assess (1) whether irreparable harm will ensue, and (2) a balance of equities (though this is often not evaluated at the TRO stage).
Preliminary injunctions
Preliminary injunctions are issued before a trial on the merits in order to enjoin a law or activity while awaiting trial. Unlike TROs, PIs are not ex parte, and thus require notice and a hearing.
Elements:
(1) likelihood of success on the merits
(2) irreparable harm
(3) balance of equities (plaintiff’s hardships if injunction is not issued will be substantially greater than D’s if injunction is issued)
Declaratory judgment
A declaratory judgment is a special type of lawsuit in which the court rules on the rights and obligations of the parties involved in an actual case or controversy. Declaratory judgments are permissible and are distinct from advisory opinions. To obtain declaratory relief, the challenged action must involve an actual dispute and must pose an actual injury to plaintiff’s interests.
Eleventh Amendment
The Eleventh Amendment bars citizens from suing their own state in federal court without the state’s consent. Thus, such suits are generally prohibited.
However, a state official may be permissibly enjoined if the official’s acts violate federal law or the federal constitution. But, such suits are only valid as to injunctions, not damages.
Commerce Clause
The Commerce Clause grants Congress the authority to regulate (1) instruments of interstate commerce, (2) channels of interstate commerce, and (3) inter- and intra-state activities that, in aggregate, have a substantial effect on interstate commerce.
Spending Power
Under the spending clause, Congress has the power to spend for the general welfare. The spending clause allows Congress broad authority to accomplish regulation indirectly by conditioning federal funding
Executive Order
The president has the authority to issue executive orders within the scope of his presidential powers.
President’s powers include:
Appointment and Removal
Pardon power
Commander in Chief
Duty to Execute Laws
Foreign affairs
Deploy Troops
Supremacy Clause
When the federal government has authority to promulgate a law, that law is supreme over state law
Preemption
Express Preemption - federal law explicitly states that it is the only law allowed
Implied Preemption - The state law conflicts with a federal law (conflict preemption) or the federal law is intended to occupy a field (field preemption)
