Constitutional Law Flashcards
Are there cases and controversies? To avoid dismissal in federal court, go up…
RAMPS
Ripeness, abstention, mootness, political question, standing
Standing
RIC- redressability, Injury and causation)
Rule: Eleventh Amendment bars a private party’s suit against a state in federal and state courts. Similarly, sovereign immunity bars claim against a state in federal and state agencies. Exceptions:
CEIBASS - Congress removes the immunity, Express waiver, Implicit consent/Structural, bankruptcy, Actions by local governments, states or the federal government, State officers.
Congress Powers
CREATES DICE: civil rights, elections, admiralty, taxation, eminent domain, spending, defense, interstate commerce, citizenship and external (foreign affairs). Congress can also control the appellate jurisdiction of the Supreme Court, but not cases that are from supreme courts original jurisdiction.
Article I, Section 8
States power - 10A police power, anti-commandeering doctrine, States has the power to legislate for the…
public welfare through this clause, public health, safety, welfare or morals.
all powers not granted to the federal government or prohibited to the states are reserved to the states or the people
President is acting? Check President’s domestic, international affair, and military powers.
The President always wears…
his VETS’ CAPS:
V – VETO power over Congressional acts (Executive Powers are shared with congress)
E – EXECUTIVE power to “take care” that laws of the U.S. are faithfully executed
S – STATE of the Union recommendation to Congress for proposed legislation
T – TREATY Power
C – COMMANDER in Chief of the armed forces (Congress can declare war and appropriate military funding, yet the president is commander in chief of the armed forces)
A – APPOINTMENT power over ambassadors, judges of the Supreme Court, and other
“superior officers” of the U.S. w/ senate advice
P – PARDON power over federal crimes
S – Power to call a SPECIAL Session of Congress
- Ex post facto laws
- Ex post facto laws- The federal and state governments may not enact criminal laws with retroactive punitive effect.
- Bills of attainder-
Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial. Both federal and state/local governments are prohibited from passing bills of attainder.
Strict Scutiny
Substative due Process
Strict Scrutiny- The law is upheld if it is necessary (that is, the least restrictive means) to achieve a compelling government interest. Will be invalidated if there is a less burdensome alternative to achieve the government’s goal.
Strict Scutiny: Suspect classes
Substative due Process and Equal Protection clause
RIO: based on race, immigrant (alienage if state ruling about, if congress will be rational basis) national origin (at the state and local levels
Strict Scrutiny: privacy related rights and…
Substantive due process
CAMPERS: contraception, marriage, procreate, education (right to decide for child, private), Relations (family), sexual (lawrence v tx))
all first amendment rights-religion, speech, press, assembly petition, interstate travel, voting, privacy related rights
Intermediate Scrutiny
Substantive due process and Equal Protection clause
The law is upheld if the government proves that is narrowly tailored to achieve an important government purpose. For gender case must demonstrate EXCEEDINGLY PERSUASIVE – STILL INTERMEDIATE.
gender and legitimacy
Rational Basis
The law is upheld if it is rationally related to a legitimate government purpose. This is a very easy standard to meet; therefore the law is usually valid—unless it is arbitrary or irrational.
law do not affect fundamental rights or involve suspect, quasi-suspect
Establishment Clause: analysis
Discriminatory: strict scrutiny
Neutral: The government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion. Discuss God is the CHIF – coercion, history, intent (founders), focus on neutrality.
Privileges and immunities, privileges or immunities
helpful to remember privileges AND immunities vs privileges OR immunities—“OR is from the fOuRteenth” and “Privileges AND Immunities deal with other states (their citizens) and so does the full faith AND credit clause in Art. 4”
Congress requires a 2/3 vote only when drinking a…
V.I.P. TEA:
V – For Congress to override a Presidential VETO
I – For the Senate to convict an IMPEACHED official (2/3 of those present)
P – Dispute between PRESIDENT and Vice President whether the President is able to carry on his duties (2/3 vote in each house)
T – For the Senate to ratify a TREATY
E – To EXPEL a member from either House of Congress
A – To propose an AMENDMENT to the Constitution (2/3 vote in each House)
silence of President for 10 days - automatic veto
States Limitations:
Dormant commerce clause
Supremacy clause
Privileges and Immunities IV
Full Faith and credit
PReemption
express
conflicts
field
Note: under field the supreme court will consider that it was not preempted, especially as if the state law involves health safety and welfare of the people.
Deprivation of life, liberty, or property. Due process clause issue 14th and 5th.
What Type of process required?
Notice, and opportunity to be heard and neutral decision maker. Hearing type will be weight accordingly: 1. The importance to the individual, and the value of specific procedural safeguards, risk of wrong deprivation to that interest, against the government interest.
GRIP- government, risk, importante, procedural safeg.
Substantive due process explain
concerned with the fairness of laws or government action restricting the liberty interests. Then, will apply the scrutiny methods.
State Discrimination against out of state citizens
clause?
Interstate privileges AND immunities clause art. IV (prevents from discriminating against of other states in favor of its own) – like not selling for out of state citizens.
one group single out
equal protection clause under (14A EPC for states / 5A DPC for federal) and substantive due process (check if there is a fundamental right)
State of Fed. denies rights to everyone?
substantive due process (5th amendment and 14th amendment - states).
Rights to travel
require a person to live in the state for one-year, strict scrutiny. The best choice will be 14th amendment privileges or immunities (citizens of the United States) better than equal protection. – for time-based requirements.
Neutral Speech: Traditional Public and designated forum
Freedom of speech explain
Regulations are valid if (i) content neutral and (ii) reasonably related to IMPORTANT/SUBSTANTIAL government purpose and (iii) cannot be accomplished by less restrictive means and allow for adequate alternative channels.
Designated- not historically been open to speech-related activities, but which gov has thrown open for public for such activities on a permanent or limited basis
Neutral Speech: Limited and non-public
Freedom of speech
Regulations are valid if (i) viewpoint neutral and (ii) reasonably related to the purpose of the forum. Rationale – here, the plaintiff must show.
Limited public forums are government forums not historically open generally for speech and assembly but limited range and opened for specific speech activity only.
Commercial speech - not neutral
Freedom of speech
Commercial – intermediate scrutiny but they use substantial/instead of important.
not protected if it is (1) false, (2) misleading, or (3) about illegal products or services.
Congress does have general welfare power. T or F
False: it has SPENDING power for the welfare!!!
CONGRESS police power only:
Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capital and its property power).
Ripeness
A case is not ripe if there is not a law or policy in place, just a notice that will be published it is not formalized and enforceable. The court can hear a case that is not ripe if: 1. The issues are fit for decision, it involves more legal issues than factual, and 2. The plaintiff will suffer substantial hardship if the court does not hear the case.
Mootness
Plaintiff needs to be suffering from an ongoing injury. Exceptions: class actions where at least one class member claim is still viable, cases where the defendant stops the offending practice but can return any time, controversies capable of repetition.
Political questions
Political questions will not be decided. These are issues (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution.
Eleventh Amendment…
Eleventh Amendment bars a private party’s suit against a state in federal and state courts. Similarly, sovereign immunity bars claim against a state in federal and state agencies.
Instead of suing the state, the person may sue…
sue a state official (1) for damages personally or (2) to enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state. NO RETROACTIVE
Commerce clause
Congress - explain
Congress has the power to regulate all foreign and interstate commerce, and Indian tribes. It can regulate the channels, instrumentalities and activities that have substantial effect on interstate commerce. – it’s the basis for civil rights laws. eg discrimination
Taxing clause
congress
Congress has the power to tax and spend to provide for the general welfare (not general welfare power). Can impose conditions on the grant of money to state or local governments (so-called “strings”). Conditions: clearly stated, relate to the purpose, not coercive, do not violate constitution.
War and Related Powers. Who has the power?
The Constitution gives Congress power to declare war, raise and support armies and provide for and maintain a navy.
Necessary and Proper Clause - enumerated powers
Congress
create law to carry out any of the legislative powers enumerated in art. I. this clause must be used in conjunction w/ another power.
Property clause Power
Congress
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.” This power would encompass a regulation such as the air bag statute.
IF Congress tries to legislate beyond its powers, it violates the …
Tenth Amendment – all powers not delegated to Congress are reserved to the states and to the people.
Supreme Court’s original jurisdiction
Article III, Section 2, Clause 2:
Suits between two or more states
Suits between a state and a foreign government
State against citizens of another state or against aliens
Cases affecting ambassadors, other public ministers, and consuls
Supreme Court can also hear lower cases decided a matter of federal law in:
a. Appeals from a state highest court (cases where a state’s highest court has held a federal/treaty invalid or held a state statute valid in the face of a claim of invalidity under the constitution or federal law.
**b. Appeals from a lower federal court. **
Exception from the above: The Supreme Court cannot hear a case if there was an “independent and adequate” state-law ground for the decision.
preemption test If relevant federal legislation exists
- Did Congress expressly authorize or prohibit state regulation? If so, that controls. If not…
- determine if the state law contradicts the federal law. It will be preempted.
- If there is no direct conflict, you have to determine if congress intended the federal law to occupy the entire field. Four factors to determine: PUSH
a. Whether the SM is traditionally federal or local (history)
b. How pervasive the federal question is
c. How similar the state and federal laws are, and
d. Whether there is a need for uniform regulation
Dormant Commerce Clause
if no federal law, states may regulate. It is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce. *No discrimination: *State law treating local and out-of-state interests the same that (i) burdens interstate commerce is valid unless the burden outweighs the promotion of a (ii) legitimate local interest.
Market Participant Doctrine:
a state is not subject to the Dormant Commerce Clause if the state is acting as a buyer or seller and not as a regulator making rules for the market as a whole.
Privileges & immunities clause art. IV.
The Article IV Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents, concerning “essential activities” and basic rights.
Discrimination of state against corporation or alien triggers:
the Equal Protection, Due Process Clauses, and they can also claim a law violates the Dormant Commerce Clause
State discriminates againt its own citizens rights as natural citizens (old vs new)
Privileges or Immunities of the 14th amendment violation. Ex. Minimum years living in the state to get benefits.
States impairs Contracts? retroactive law
The Contracts Clause provides that no state may pass a law that impairs existing contracts. States can regulate contract formation prospectively. May be permissible if: : 1. serve an important and legitimate public interest, 2. It’s necessary to achieve it and 3. The contract impairment is **reasonable **under the circumstances. (intermediate) if public contracts: strict scrutiny.
If a retroactive law doesn’t violate the Contract, Ex Post Facto, or Bill of Attainder Clauses it must pass…
The due process clause, if does not violate a fundamental right, then rational basis analysis.
What is a discriminatory law?
it must be found discriminatory in one of the following ways: DUI
1. **Discriminatory **in its face, or
2. Facially neutral but unequally administered, or
3. Have an impermissible motive – the intent to discriminate. (the statute will not be invalid just because of its impact).
When a private entity can be sued for Constitutional violations?
A private entity generally does not owe a duty to abide by the constitution, but a private entity that undertakes a (i) traditional and exclusive public function and (ii) the state is significantly involved is limited by the constitution or owes individual constitutional rights.
e.g. whether the gov. encourages or benefits from the private conduct
enabling clause in the 13th amendment
The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.
Due Process clause explain:
provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property. There generally must be an intentional or reckless government action (not negligence).
Takings clause
The Fifth Amendment (fed) and 14amd. (states) provides that private property may only be taken (1) for public use and (2) the government must pay just compensation. the Taking Clause is not a source of power for taking, but rather is a limitation. Analysis: the government’s action is rationally related to a legitimate public purpose.
Physical or Regulatory
Regulatory Taking
explain
If a government regulation denies a landowner of ALL economically viable use of their land (for example, a regulation prohibiting any building on the land), the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.
Regulatory taking, DEISI court analysis:
balancing test: 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.
Diminution, expectation,interests, gov.substantially interferes
Freedom of speech explain
The First Amendment prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion. The First Amendment is applicable to the states through the due process clause of the 14th Amendment.
Freedom of speech analysis steps:
First: Analyze facial attacks—prior restraint, overbreadth, vagueness, unfettered discretion - POVU
Second: Content regulation: Strict scrutiny. Exceptions: unprotected speech. Obscenity, defamation, unlawful advocacy, hostile audience, fighting words- that will result in danger, true threats. DHUFUS speech
Third: Neutral? May be a valid time, place, manner (TPM) regulation.
Gerrymandering
Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny.
Election boundaries reqs.
State and local elections; substantially equal, deviation is reasonable and tailored to promote a legitimate state interest. 10% variance is presumed valid.
Congressional elections - exact mathematical, 0.7% invalid
Districts: can be measured using total population. “one person one vote
Free exercise clause
The Free Exercise Clause prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct.
Is it genuine belief? When deciding whether a person holds a religious belief or even just whether the belief qualifies as religious, courts can* question the sincerity of a person’s belief*, but not the truthfulness of the belief.
Neutral: Rational basis
Made to Interfere: Strict scrutiny.
Freedom of association test
It’s not explicitly in the CF, but is implied. This right is absolute
Strict Scrutiny - To punish membership gov. must prove (i) Actively affiliated with the group (ii) Knowing of its illegal activities (iii) With the specific intent to further those illegal activities.
A statute limiting election campaign contributions to a candidate is subject to intermediate scrutiny.
Advisory Opinion
If the result of the federal court would no legal effect on the parties then it is an advisory opinion. State courts are allowed to, not federal courts.
8th amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Line in Veto
The United States Supreme Court ultimately held that the Line Item Veto Act was unconstitutional because it gave the President the power to rescind a portion of a bill as opposed to an entire bill, as he is authorized to do by article I, section 7
Symbolic conduct under the freedom of speech
Intermediate scrutiny: the government must demonstrate a substantial government interest that is unrelated to suppressing expression and it is no greater than necessary to achieve that interest; Texas v. Johnson.
