Constitutional law Flashcards
Levels of scrutiny-EP
The Supreme Court has developed three levels of scrutiny for equal protection claims: strict,
intermediate, and the lowest, “rational basis.” The Court has consistently applied rational basis
scrutiny to age-based classifications. Under the rational basis test, the issues are whether State A has a “legitimate interest” that is served by the discriminatory classification and whether the
means used to achieve this legitimate state interest are “reasonably related” or “rationally
related” to that state interest. The Court generally applies this test with substantial deference to
legislative judgment.
Congress’ powers under Constitution
Congress’s powers are limited to those expressed or implied in the Constitution. To enact a law
on a particular topic, Congress must rely on some identified grant of legislative authority in the
Constitution. Section Five of the Fourteenth Amendment is one such grant of authority.
Equal protection and imposition of a mandatory age for retirement
While a mandatory retirement age for firefighters does not violate the Equal Protection Clause of
the Fourteenth Amendment “[l]egislation which deters or remedies constitutional violations can
fall within the sweep of Congress’[s] enforcement power even if in the process it prohibits
conduct which is not itself unconstitutional . . . .” Congress’s power, however, is remedial. It has
been given the power “to enforce,” not the power to determine what constitutes a constitutional
violation. In drawing “the line between measures that remedy or prevent unconstitutional actions
and measures that make a substantive change in the governing law,” the Court, in City of Boerne v. Flores, stated that the constitutional question is whether there is a “congruence and
proportionality between the [constitutional] injury to be pre- vented or remedied and the means
adopted to that end.” Lacking such a connection, legislation may become substantive in
operation and effect.
The proportionality requirement of Flores allows Congress to outlaw conduct that courts likely
would hold unconstitutional under existing judicial precedent. Congress may also outlaw a
broader range of conduct to prevent constitutional violations. But Congress cannot rely on its
Fourteenth Amendment enforcement power to prohibit a kind of behavior that is unlikely to
involve a constitutional violation at all. Because age is not a suspect classification under the
Equal Protection Clause, states may discriminate on the basis of age without offending the
Fourteenth Amendment if the age classification in question is rationally related to a legitimate
state interest. The proposed federal statute would prohibit mandatory retirement requirements
that courts likely would find constitutional.
Burdens on interstate commerce
State laws that discriminate against out-of-state commerce in favor of in-state commerce—either on their face or in practical effect—are subject to strict scrutiny and thus a nearly per se rule of invalidity.
Even if not discriminatory, state laws that affect interstate commerce can also be invalidated if
the burden on interstate commerce is clearly excessive in relation to the putative in-state benefits.
Discriminatory Impact Test
In Exxon the Court read the Hunt discriminatory-impact test to apply to a direct impact on
out-of-state firms in the primary market (apples) regulated by the state. In Exxon, the
discriminatory impact was in a market (refining) different from the one regulated by the state
(service stations), and so the state law was not found to be discriminatory.
Permit denial discriminating against out-of-state consumers
City of Philadelphia v. New Jersey, where the Court invalidated a New Jersey law prohibiting the disposal of out-of-state waste in New Jersey landfills, effectively precluding the export of waste disposal services and preferring in-state consumers. In City of Philadelphia, the Court made clear that it does not matter whether the law has a legitimate environmental purpose; the state may not use discriminatory means to accomplish it. Insofar as the law is discriminatory, it is invalid unless it is narrowly tailored to meet a legitimate, nonprotectionist purpose.
Market participant exception
The state may discriminate in favor of residents when buying or selling goods and services because the state is acting as a “market participant” rather than as a regulator of an economic activity.
Sovereign Immunity and the 11th Amendment
The Eleventh Amendment provides that “the Judicial power of the United States” does not
extend to “any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State . . . .” As “one of the United States,” State A is immune from suit
unless it agrees to be sued. While this immunity of States from suits has been described as an
“anachronistic survival of monarchical privilege,” it is nonetheless firmly established. While a
state may waive its immunity,there is no evidence that State A has done so in this case.
Doctrine of Ex parte Young
“Official-capacity actions [against state officials] for prospective relief are not treated as actions
against the State.” Thus, even when a damages claim against the state is barred under the
Eleventh Amendment, a suit against public officials in their official capacity seeking an
injunction may be maintained.
Dormant commerce clause
The Supreme Court of the United States has long held that the Constitution’s grant to Congress
of the power to regulate interstate commerce also limits, by implication, the right of state or local
governments to adopt laws that regulate interstate commerce. This is often referred to as
“dormant commerce clause” analysis. A state law that discriminates against interstate commerce in a way “that operates as . . . a tariff or trade barrier against out-of-state interests” is subject to strict review and is virtually per se unconstitutional. A nondiscriminatory state law that imposes an “incidental” burden on interstate commerce will nonetheless be unconstitutional if the burden it imposes is “clearly excessive in relation to the putative local benefits.”
Content-neutral or content-based regulation of speech
Whether a municipal sign ordinance violates the First Amendment’s guarantee of freedom of
speech depends heavily on whether the ordinance is content-based or content-neutral. A law is
content-based if it “applies to particular speech because of the topic discussed or the idea or
message expressed.” Reed v. Town of Gilbert. The City ordinance treats time and temperature
signs differently from all other signs, which could be viewed as a distinction based on the
content of the sign. Reed stated that any ordinance which is content-based on its face is subject
to strict scrutiny irrespective of the “innocent motives” of the regulation. Reed could be read to
support the argument that any distinction or exemption in a law, however small, based on
content means that the statute is content-based and thus subject to strict scrutiny.
Alternatively, an argument can be made to distinguish Reed. There, the Court struck down a
municipal sign regulation that generally prohibited outdoor signs without a permit, while
exempting 23 categories of signs from the requirement. Focusing on three such exemptions, the
Court found the regulation content-based on its face. The three exemptions allowed posting of
ideological, political, and temporary directional signs, while subjecting each to detailed
restrictions relating to size, location, and duration of placement. The Reed ordinance thus delved deeply into the contents of the signs and imposed an intricate scheme of differential treatment based on content.
Reed might be distinguished on the ground that the City ordinance imposes a scheme banning a well-defined category of highly visually distracting electronic signs, with one narrow exception
for time and temperature displays. Three justices in concurrence opined that this type of general
“manner” prohibition (albeit without the exception in this question) should not be treated as
content-based. In addition, the ordinance’s narrow exception for time and temperature signs
comports with older cases that are still good law. In City of Ladue v. Gilleo, the Court suggested
that exceptions to a general sign regulation that are justified on non-content-related grounds do
not trigger strict scrutiny. And in Members of City Council of Los Angeles v. Taxpayers for
Vincent, the Court applied intermediate scrutiny to uphold a municipal ordinance against
posting signs on public structures, finding the ordinance content-neutral notwithstanding an
exception for historic landmark signs.
Time place and manner restrictions
The Court clarified the scope of the narrowly tailored element for time, place, and manner
analysis in Ward v. Rock Against Racism:
[T]he requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes
a substantial government interest that would be achieved less effectively absent the
regulation.” . . . To be sure, this standard does not mean that a time, place, or manner
regulation may burden substantially more speech than is necessary to further the
government’s legitimate interests. Government may not regulate expression in such a
manner that a substantial portion of the burden on speech does not serve to advance its
goals. So long as the means chosen are not substantially broader than necessary to
achieve the government’s interest, however, the regulation will not be invalid simply
because a court concludes that the government’s interest could be adequately served by
some less-speech-restrictive alternative. “The validity of [time, place, or manner]
regulations does not turn on a judge’s agreement with the responsible decisionmaker
concerning the most appropriate method for promoting significant government interests”
or the degree to which those interests should be promoted.
Taking of property under the Fifth Amendment
The Supreme Court has not developed a precise formula for determining when the government
regulation of the use of private land becomes a taking. Its somewhat vague guiding principle
announced in 1922 remains more or less the guiding principle today: The general rule at least is
that while property may be regulated to a certain extent, if regulation goes too far it will be
recognized as a taking. Pennsylvania Coal suggested that regulation has gone “too far” “when it
reaches a certain magnitude.” Subsequent case law has not afforded clarity about when regulation has gone “too far” and thus constitutes a taking.
The Supreme Court first developed, but more recently has abandoned, a disjunctive two-part test: “The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests . . . or denies an owner economically viable use of his land.” The first part of this test was expressly abrogated in Lingle v. Chevron U.S.A. Inc., which held that the ‘substantially advances’ formula is not a valid takings test and has no proper place in our takings jurisprudence.
The Lingle Court divided regulatory, non-physical takings into three categories: (1) a “total
regulatory taking” (i.e., regulations that completely deprive an owner of all economically beneficial use of her property as described in Lucas v. South Carolina Coastal Council, (2) “a Penn Central taking” (for which courts will consider several factors such as the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct
investment-backed expectations, and whether it amounts to a physical invasion or instead merely affects property interests through some public program adjusting the benefits and burdens of economic life to promote the common good), and (3) a “land-use exaction” (more specifically, a government demand that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit) evaluated under the standards of Nollan v. California Coastal Comm’n, and Dolan v. City of Tigard.
Physical occupation authorised by government is taking
In Loretto v. Teleprompter Manhattan CATV Corp., the Supreme Court held that a permanent
physical occupation authorized by government is a taking without regard to the public interests that it may serve.
The Fifth Amendment applies to states through the Fourteenth Amendment
The Fifth Amendment to the Constitution, as applied to the states by operation of the Fourteenth
Amendment, guarantees that private property not be taken for a public use without just
compensation.
Article III Standing
Federal court jurisdiction is limited by Article III of the Constitution to “Cases” and “Controversies.”
To establish standing, a plaintiff must show (1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a favorable judicial decision.
In Spokeo, 136 S.Ct. at 1549, the Supreme Court concluded that “Article III standing requires a concrete injury even in the context of a statutory violation.” In Spokeo, inaccurate information about a plaintiff was included in a credit-reporting database, but there was no evidence that the plaintiff had been harmed by that fact. The Supreme Court held that there was no “injury” for standing purposes, despite the fact that a state law would have awarded the plaintiff statutory damages based on the presence of the inaccurate information alone. The Court emphasized that the “injury in fact” element of the Court’s standing test required a showing that the plaintiff suffered “an invasion of a legally protected interest” that is “concrete” as well as “particularized.” The mere fact that a defendant has acted improperly toward a particular plaintiff (e.g., by including inaccurate information about the plaintiff in a credit-reporting database) is not enough; nor is it enough that the defendant’s conduct violated a state statute. For the plaintiff to have standing to bring a claim in federal court, the defendant’s statutory violation must have “concretely” injured that plaintiff.
The Court in Spokeo also said that actual monetary harm to a plaintiff isn’t required for standing: an “intangible” injury can nonetheless be a “concrete injury.” Moreover, the Court indicated that a legislative judgment that certain intangible harms constitute injury in fact would be “instructive.” But the Court made clear that a plaintiff does not satisfy the injury-in-fact requirement merely because a statute has granted the plaintiff a statutory right and the defendant has allegedly violated that statute.
In cases decided since Spokeo, several federal courts have held that an invasion of privacy is, in and of itself, a concrete injury, even when extensive damages cannot be proved.
