Constitutional Law Flashcards
What are the two determinations to a Con Law question?
1) To whom does the clause apply?
2) What does the clause do?
Commerce Clause: Art. 1, Section 8
Applies to: federal gov’t
Source of Power
What 4 categories can congress regulate under commerce clause?
1) channels of interstate commerce
2) instrumentalities of interstate commerce
3) articles moving in interstate commerce
4) activities “substantially affecting” commerce.
Congress can regulate activity under commerce clause if:
1) activity is commercial; and
2) activity “substantially affects” interstate commerce OR activity is part of the general class of activities that! Collectively, substantially affect interstate commerce.
What is the case and controversy requirement?
Federal court adjudication requires an actual and definite dispute between parties having adverse legal interests.
What is the rule for STANDING?
Plaintiff must show a concrete personal state in the outcome.
Constitutional Standard:
1) Injury in Fact (economic, aesthetic, environmental)
2) Causation
3) Redressibility
What is Justiciability?
RAMPS
Ripeness Advisory Opinions Mootness Political Questions Standing
What is ripeness?
For a cause to be ripe, there must be a genuine, immediate threat of harm.
What is mootness?
a case is moot unless an actual controversy exists at all stages of review unless the injury is capable of repetition, yet evading review.
What is abstention?
1) Federal court will refuse to review a case based on an unsettled issue of state law (Pullman).
2) Federal court review prohibited where there are pending state criminal proceedings (Younger).
What is the statutory regulation of appellate jurisdiction?
1) by certiorari (discretionary);
2) by appeal.
What is the appoint clause of art.2, section 2?
1) President appoints “principal officers” with Senate consent (cabinet members, heads of departments);
2) Congress delegates appointment of “inferior officers” to
* the president;
* heads of departments and/or
* the judiciary.
What is the hierarchy of laws?
1) Constitution
2) Act of Congress
3) Treaty
4) Executive agreement - foreign policy/affairs
5) Executive order - domestic policy.
6) State law
What is the Supremacy Clause?
1) Suppression Doctrine: a federal law wills supersede any state law in direct conflict;
2) Preemption Doctrine: any state law in an area where Congress intends to occupy the field is unconstitutional.
What is the 11th Amendment?
A state may not be sued in federal court by its own citizens or citizens of another state without consent.
EXCEPT:
1) State officials may be sued personally for
a) money damages or
b) enjoined for federal law violations.
2) A state may be sued by another state or by the US.
3) Congress may waive a state’s 11th Amendment immunity under the Enforcement Clause of Sec. 5 of the 14th Am.
What is the Property Power?
Congress has the power to dispose of the territory or other property belonging to the US.
How to approach a con law question?
1) Underline WHO is passing the law.
2) Determine the SUBJECT MATTER of the question.
3) Match the APPROPRIATE POWER of regulation.
Ways to uphold a federal statute?
1) supremacy clause;
2) any enumerated power of congress; and
3) federal property power.
Ways to uphold a state statute?
1) Dormant Commerce Clause
a) non-discriminatory
b) no undue burden on interstate commerce - use a balancing test.
2) Police Power - health, safety, welfare, morals and aesthetics.
What is the affection doctrine?
Congress may regulate any activity which has a “substantial economic effect” on interstate commerce.
What is “state action?”
A threshold requirement of government conduct which must be satisfied before private discrimination can be restricted under the 1st, 4th, 14th, or 15th Amendments (public function, significant state involvement or “encouragement”).
How do you show a state statute is neutral on its face? (Think installing shower).
1) Discriminatory effect; and
2) Discriminatory purpose.
To raise the burden of persuasion above rational basis.
What are the fundamental rights of privacy? (CAMPER)
Contraception Abortion Marriage Procreation Private Education Family Relations (child birth, child rearing, families living together)
What is SDP?
A term used to classify the source from which the fundamental rights (vote, travel, privacy) derive.
What is article 4 of P&I Clause?
Prevents economic discrimination by one state against citizens or resident of another state UNLESS a substantial gov’t interest exists.
What is PDP?
The procedural safeguards of notice and a hearing are available whenever there is a serious depravation of any life, liberty or property interest.
What is a bill of attainder?
Legislative punishment of a named group or individual without judicial trial.
What is an Ex Post Facto clause?
It INVALIDATES retroactive criminal laws that:
1) make criminal conduct that was NOT a crime when committed; or
2) Decrease the amount of evidence needed to convict/change the procedures for conviction.
What are the 4 facial attacks?
1) Overbreath
2) Vagueness
3) Prior Restraint
4) Unfettered Discretion: one person has too much power.
What is the test for “content neutral” regulation of time, place, manner?
Regulation must:
1) Further a significant gov’t interest;
2) Be narrowly tailored; and
3) Leave open alternative channels of communication.
What is the obscenity test (Miller v. Calif.)?
To be obscene the material must:
1) appeal to the prurient interest in sex;
2) depict sexual conduct in a patently offensive way; AND
3) lack serious literary, artistic, political or scientific value.
What is the Central Hudson (vice advertising) test?
Gov’t can regulate, BUT the regulation must:
1) directly advance;
2) a SUBSTANTIAL gov’t interest; AND
3) be “narrowly tailored.”
What is PDP?
The procedural safeguards of notice and a hearing are available whenever there is a serious depravation of any life, liberty or property interest.
What is a bill of attainder?
Legislative punishment of a named group or individual without judicial trial.
What is an Ex Post Facto clause?
It INVALIDATES retroactive criminal laws that:
1) make criminal conduct that was NOT a crime when committed; or
2) Decrease the amount of evidence needed to convict/change the procedures for conviction.
What are the 4 facial attacks?
1) Overbreath
2) Vagueness
3) Prior Restraint
4) Unfettered Discretion
What is the test for “content neutral” regulation of time, place, manner?
Regulation must:
1) Further a significant gov’t interest;
2) Be narrowly tailored; and
3) Leave open alternative channels of communication.
What is the obscenity test (Miller v. Calif.)?
To be obscene the material must:
1) appeal to the prurient interest in sex;
2) depict sexual conduct in a patently offensive way; AND
3) lack serious literary, artistic, political or scientific value.
What is the Central Hudson (vice advertising) test?
Government regulation must:
1) directly advance;
2) a SUBSTANTIAL gov’t interest; AND
3) be “narrowly tailored.”
What is the test for establishment clause? (Lemon v. Kurtzman)
In order NOT to violate establishment clause:
1) The primary PURPOSE must be secular;
2) Primary EFFECT must neither inhibit nor advance religion.
3) No EXCESSIVE gov’t entanglement with religion.
The only time you analyize state statutes’ impact on interstate commerce under the Commerce Clause is when?
There is NO relevant federal legislation.
** If relevant FEDERAL LEGISLATION exists, then the analysis falls under the SUPREMACY clause.
Under the Supremacy Clause, what two questions do you ask?
1) Did Congress expressly authorize or prohibit state regulation? If so, that controls. If NOT:
2) Does the federal law preempt the state law? If the state law directly contradicts the federal law, it will be preempted. If there’s no direct conflict, you have to determine if Congress intended the law to occupy the entire field.
What 4 factors do you look at to see if Congress intended the law to occupy the entire field?
1) whether the subject matter is traditionally classified as local or federal;
2) how pervasie the federal regulation is;
3) how similar the state and federal laws are; and whether there’s a need for uniform federal regulations.
(PUSH - Pervasiveness, Uniformity, Similarity, History).
NOTE - preemption is an issue ANY time a state law conflicts with a federal law.
Welfare clause; art I, Section 8 is?
Applies to federal government
Source of power.
What does the Welfare Clause do?
Gives congress the power to tax and spend for the general welfare. ANY federal legislation reasonably related to this power will be valid.
REMEMBER: STATES do have the power to legislate for the general welfare under the POLICE power. There is NO federal police power.
.
Contracts Clause; Art. I, Section 10
Applies to STATES only
Prohibition on power.
What does the contracts clause do?
It prohibits states from passing any law that impairs the obligations of contracts. It’s usually CORRECTLY applied when the state seems to be trying to ESCAPE its own obligations.
What is the most important thing to remember about the Contracts Clause?
A prerequisite for protection under this clause is that the CONTRACT must have existed WHEN THE STATUTE WAS PASSED.
** States CAN regulate contract formation PROSPECTIVELY*** If the contract DOES NOT predate the offending statute, the CC is irrelevant.
Atate modifications of contracts WILL be permissible if the modifications?
1) Serve an IMPORTANT and LEGITIMATE PUBLIC INTEREST; and
2) are NECESSARY to achieve that public interest; and
3) the contract impairment is REASONABLE under the circumstances.
Contracts Clause Example: State makes it a misdemeanor to have more than 5 stories without sprinkles. Fed. building 10 stories high has not sprinklers. State prosecutes.
The requirement violates the supremacy clause because the contract DOES NOT predate the statute.
P & I of the 14th Amendment
Applies to States
Is a Limitation on power.
What does the P & I of the 14th Am. do?
It voids state enactments which clearly infringe on the privileges of NATIONAL CITIZENSHIP. Limited tot he fundamental rights shared by all citizens.
HINT: Usually the P&I of the 14th is not the right answer. There is better protection from DP and EP.
.
P&I, Art. 4, Section 2 “Interstate”
Applies to States
Limitation on Power.
What does the interstate P&I clause do?
Prevents states from discriminating against out-of-state citizens and residents in matters concerning “essential activities” and “basic rights” UNLESS the discrimination is closely related to a SUBSTANTIAL state purpose and there are NO LESS RESTRICTIVE means available to achieve the purpose.
** REMEMBER: this only applies to US citizens **
11th Amendment?
Applies to Individuals
Limitation on Power
** VERY NARROW**
What does the 11th Amendment do?
It forbids most actions in federal court by private citizens for damages against the states.
It DOES NOT prevent suits by the federal gov’t against states, or suits by anyone against state subdivisions, or equity suits in federal court where a state official has violated the claimant’s federal constitutional rights or suits against a state official for money damages.
13th Amendment
Applies to ANYONE
Limitation on power
What does the 13th Amendment do?
Outlaws “badges or incidents” of slavery. Gives Congress the pwer to prohibit virtually any discrimination against blacks or whites.
**Its the ONLY constitutional provision EXPLICITLY LIMITING PRIVATE ACTS BY INDIVIDUALS **
How do you determine the validity of a statute?
1) Determine first if the statute is a federal or state statute?
2) Analyze the validity of federal statutes or actions.
3) Determine the validity of state statutes.
How to analyze the validity of federal states or actions?
Congress can act only pursuant to its enumerated powers. Thus, any valid federal statute must be RATIONALLY related to an enumerated power
- OR -
must be NECESSARY and PROPER to effectuate an enumerated power.
What are the MAJOR powers of Congress?
CREATES DICE Civil Rights Elections Admiralty Taxation Eminent Domain Spending/Taxing for General Welfare Defense Interstate Commerce Citizenship External (Foreign) Affairs
What does the 10th Amendment do?
It reserves to the states (and the people) those powers not expressly delegated to Congress by the Constitution, nor prohibited to the States.
REMEMBER: THERE IS NO FEDERAL POLICE POWER
Only the states have police power. Congress can use its commerce power to do “police-like” things.
How do you determine the validity of state statutes?
In order for a state statute to be valid, a state enactment must meet a three part test:
1) The law must be enacted within the state’s power’s (police power).
2) It must not violate any person’s Constitutional rights; and
3) It must not unduly burden interstate commerce.
** If a state statute passes this test, it’s valid. **
What state legislation is enacted under the police powers?
If it involves PUBLIC HEALTH, SAFETY, WELFARE or MORALS.
** The POLICE POWERS are the most significant **
What are the two most common ways that states can violate the Constitution?
Equal Protection and Due Process
Can a state place a burden on interstate commerce?
YES, so long as it’s not an UNDUE burden.
