Constitutional Law Flashcards
What are the three branches of government?
The federal judicial power, the legislative power, and the executive power
What is federalism?
The limits placed on state/local governments because we have a federal government
What is the requirement for cases & controversies?
Federal Courts must decide actual cases and controversies and cannot render advisory opinions
What is standing?
The issue of whether the plaintiff is the proper party to bring the matter to court.
Four requirements of standing?
- Plaintiff must prove injury
- Plaintiff must prove causation and redressability
- There can be no 3rd party standing. Injuries must be personally suffered
- There can be no generalized grievances. Plaintiff must not sue solely as a citizen or taxpayer interested in having the government follow the law
How must a plaintiff prove injury?
Plaintiff must allege and prove that he or she has been injured or imminently will be injury. Not established with mere ideological objection–must assert injuries they personally have suffered.
Plaintiffs seeking injunctive or declaratory relief must show?
Likelihood of future harm
When must standing be met?
At all stages of litigation, including on appeal
What is causation and redressability?
Where the plaintiff must prove that the defendant caused the injury so that a favorable court decision is likely to remedy the harm.
What is the rule against third party standing?
A plaintiff cannot assert claims of others, of third parties who are not before the court. A plaintiff must present personally suffered injuries.
Exceptions to the third party standing rule? (Hint: There are 3)
If there is a close relationship between the plaintiff and the injured third party where plaintiff can be trusted to adequately represent the interests of the third party.
(Ex: Doctor-Patient relationship)
If injured party is unlikely to assert their own rights.
(Ex: prospective juror knocked off jury–Batson challenge)
Where an organization sues for its members? But need
1) Individual members must have standing
2) Interests are german to organization’s purpose
3) Neither the claim nor relief requires participation by individual members
Exceptions to generalized grievance rule?
Taxpayers have standing to challenge government expenditures pursuant to federal (or state/local) statutes for violating the Establishment Clause (no standing to challenge tax credits to persons who contribute to groups that provide scholarships for students attending private schools).
A person has standing as a citizen to allege that a federal action violates the Tenth Amendment by interfering with powers reserved to the States.
What is Ripeness?
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
We look at the hardship that will be suffered without pre-enforcement review and the fitness of the issues and the record for judicial review.
What is Mootness?
If events after the filing of the lawsuit end plaintiff’s injury, the case must be dismissed as moot.
Why must a case be dismissed if there is no injury?
Plaintiff must present a live controversy, though a non-frivolous money damages claim will keep the case alive
Exceptions for mootness?
If the wrong is capable of repetition but evades review because of its inherently limited time duration. (ex: abortion cases)
Voluntary cessation of the injury (ex: employer briefly removing racially discriminatory hiring test)
Class action suits (as long as one person has standing)
What is the political question doctrine?
Refers to constitutional violations that the federal courts will not adjudicate
Cases dismissed as non-justiciable political questions?
Guarantee clause cases (guaranteeing each state a republican form of government)
Challenges to President’s conduct of foreign policy
Challenges to the impeachment and removal process
Challenges to partisan gerrymandering
Most cases come to the Supreme Court by?
Writ of certiorari
-All cases from state court
All cases from US Ct of Appeals
When can the Supreme Court hear case?
After the final judgment of the highest state court, of a US Court of Appeals, or a 3 judge federal district court.
Final Judgment Rule
Supreme Court has original and exclusive jurisdiction where?
For suits between state governments
Only place Supreme Court has to take a case?
Appeals of decisions of 3-judge federal district courts
The Supreme Court cannot review a state court decisions when?
When there is an independent and adequate state law ground–when the Supreme Court’s reversal on the federal law ground will not change the result in the case, the S. Ct. cannot hear it.
Lower federal courts and state courts may not hear suits against whom? Based on what principle?
State governments. Based on the principle of sovereign immunity from the 11th Amendment. State governments generally cannot be named as defendants in federal court cases.
Sovereign immunity also bars suits against states in…?
State courts or federal appeals and even on federal law claims
What are the exceptions on suing state governments?
Where a state waives its right not to be sued
When a plaintiff sues pursuant to federal laws adopted under Section 5 of the 14th Amendment
When the federal government is a plaintiff
Where the claim is a bankruptcy proceeding.
When are suits against state officers allowed? What may they be sued for
Always allowed even if the state government cannot be named as a defendant.
Can be sued for:
- Injunctive Relief
- Money damages paid out of pocket
When must a federal court abstain from a claim?
Federal states may not enjoin pending state court proceedings.
Congressional power must be…?
Expres or implied
Congress has no federal police power, except in issues pertaining to…?
Military
Indian Reservations
Lands (Federal)
District of Columbia
3 Big Powers of Congress?
Taxing, Spending, and Commerce Power
These all fall under the MILD police powers
Congress may spend and tax for?
The general welfare (comes from preamble to Constitution)
How to decide whether a legislative enactment imposes a tax?
Determined by “function”
Commerce Power allows Congress to regulate commerce with…?
Foreign nations, Indian tribes, and among the States
Supreme Court has ruled hat Congress may act under the Commerce clause in which situations?
Channels of interstate commerce
Instrumentalities of interstate commerce and persons or things in commerce
Economic activities that a substantial effect on interstate commerce (cumulative impacts count as well)
Congress can regulate existing commercial activity but it cannot….
It cannot regulate inactivity
Tenth Amendment as a limit on Congressional powers states which principle?
All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people
Congress cannot compel what kind of state action?
State regulatory or legislative action
Congress can induce state government action by putting strings on grants, so long as…
Conditions are expressly stated, and relate to the purpose of the spending program so long as they are not unduly coercive
Congress may prohibit what kind of activity by state governments?
Harmful commercial activity
Fifteenth Amendment is a limitation on states and federal government because it prevents them from denying any citizen….? Amendment allows Congress and federal courts to do what?
The right to vote based on race or color
Congress can adopt legislation protecting the the right to vote from discrimination
Federal Courts has some freedom to regulate state voting–but can only treat states differently if there is extraordinary justification. Decades old data is not sufficient.
No limit exists on Congress’ ability to…
Delegate legislative power
What type of vetoes are unconstitutional?
Legislative vetoes and line-item vetoes.
For Congress to act on certain legislation, there must be…?
Bicameralism and presentment. President must sign or veto the bill in its entirety.
Congress may not delegate what power?
Executive power to itself to itself or its officers
What is a treaty?
Agreements between the United States and a foreign country that are negotiated by the President and effective when ratified by the Senate.
State laws that conflict with treaties are…
Invalid
Federal laws that conflict with treaties are…
Valid unless the treaty is last in time
A treaty that conflicts with the US Constitution is…
Invalid
What is an executive agreement?
An agreement between the US and a foreign country that is effective when it is signed by the President and the head of a foreign nation.
Executive agreements prevail over what? Don’t prevail over?
Executive agreements prevail over conflicting state laws, but never prevail over conflicting federal laws or the US Constitution.
What is the President’s Appointment power?
The President appoints ambassadors, federal judges, and officers of the U.S., although the Senate must approve the nomination.
Congress may vest appointment of inferior officers in…?
The President, Heads of Departments, or lower Federal Courts.
Unless removal is limited by statute, the President may fire…
Congress may, by statute, limit removal, but only if:
Any executive branch official.
1) The office is one where independence from the President is desirable
2) Can show good cause
Who can be impeached removed, and for what?
The President, Vice-President, federal judges and all officers of the US
For treason, bribery, or high crimes and misdemeanors
Impeachment alone does not . . . a person from office
Remove
Impeachment by the House requires….?
Conviction in the Senate….?
Impeachment requires a majority vote.
Conviction requires a 2/3 vote
President has absolute immunity to….?
Civil suits for money damages for any actions while in office
President has executive privilege for…?
Presidential Papers and conversations, but such privilege must yield to important interests
President can pardon anyone…?
Accused or convicted of federal crimes, except where the person to be pardoned has been impeached by the House.
Power does not apply to civil liability (ex: could not pardon someone convicted of civil contempt)
Express preemption?
When Congress has authority to act, it can state that its power is exclusive in a field–if a federal state says that a federal law is exclusive in a field, then state and local laws are preempted.
Implied preemption?
Even if a federal statute is silent about preemption, implied preemption can by found if:
- It is not possible for someone to simultaneously comply with both federal and state laws
- Congress’ intent shows that the federal laws are comprehensive or a federal agency was created to oversee the area
States cannot charge state tax to be paid where…?
The federal treasury
What is the dormant commerce clause?
The principle that state or local laws are unconstitutional if they place an undue burden on interstate commerce
What is the privileges and immunities clause of Article IV?
No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens.
What is the privileges and immunities clause of the Fourteenth Amendment?
Preserves a person’s right to travel from state to state
What is the analysis if a law does NOT discriminate against out-of-staters?
- Privileges and immunities clause of Art. IV does not apply.
- If law incidentally burdens interstate commerce, it violates the dormant clause if its burdens outweigh the benefits of the law
What is the analysis if a law discriminates against out-of-staters?
-It violates the dormant commerce clause unless it is necessary to achieve an important government purpose (almost never upheld)
- If Congress approves it: or
- Citizens are market participants receiving benefits from government programs
-Violates privileges and immunities clause (if about ability to earn a living) unless it is necessary to achieve an important government purpose. The discrimination must be with regard to fundamental rights or important economic activities
Who CANNOT invoke the privileges and immunities clause?
Corporations or Aliens
(Rarely tested) States may not use tax systems to help…?
In-state businesses
A state may only tax activities if there is….?
A substantial nexus between the product or activity to be taxed and the state
State taxation of interstate businesses or companies must be….
Fairly apportioned
Courts in one state must give….to all judgments of courts in another state? So long as what?
Must give full faith and credit (or enforce)
As long as
- The court that rendered or issued the judgment must have personal or subject matter jurisdiction
- Judgment was a judgment on the merits
- Judgment was final
The Constitution only applies to what kind of action, and not what other kind?
Constitution applies to government or state action. Not private conduct.
How can Congress apply constitutional norms to private conduct?
By statute
Congress can prohibit private race discrimination by which Amendment or parts of the Constitution?
The Thirteenth Amendment (slavery, involuntary servitude)
Commerce Clause (interstate commerce)
What is the “public functions exception”?
Where the Constitution applies to private action because the private entity is performing a task traditionally and exclusively done by the government
What is the “entanglement exception”?
Constitution applies where the government affirmative authorizes, encourages or facilitates unconstitutional activity (restrictive covenants)
Key Examples of exceptions where the Constitution applies or does not apply to private conduct (7 examples)?
Racially restrictive covenants
Government leases premises to a racially discriminatory restaurant
State providing books to private schools that racially discriminate
Private entity regulating interscholastic sports within a state
No state action where a private school funded 99% by the government fires a teacher because of her speech
No state action when the NCAA orders the suspension of a basketball coach at a state
No state action when a private club with a liquor license from the state racially discriminates
Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment except for which Amendments?
Third Amendment right not to have a soldier quartered in your home
Fifth Amendment right to a grand jury indictment in criminal cases
Seventh Amendment right to jury trial in civil cases
Eighth Amendment right against excessive fines
What is the rational basis test?
A law is upheld if it is rationally related to a legitimate government purpose.
What is the standard for intermediate scrutiny?
A law will be upheld if it is substantially related to an important government purpose. Government has burden of proof.
What is the standard for strict scrutiny?
Law will be upheld if it is necessary to achieve a compelling government purpose. Government has burden of proof.
What is necessary for a deprivation of procedural due process by the government?
An intentional government action or at least reckless action
What is the standard for a deprivation due process in an “emergency situation?”
Must shock the conscience
Is the government’s failure to protect people from privately inflicted harms a denial of due process?
No. (Ex: Lack of DDS response to abuse complaints)
What is the 3-part balancing test if there is a procedural due process violation?
1) Importance of interest to the individual
2) Ability of additional procedures to increase the accuracy of fact-finding
3) Government’s interest in administrative efficiency and saving money
Where is substantive due process applied?
To protect economic liberties, to safeguard property
Procedural due process asks what?
Has there been a deprivation of life, liberty or property?
Substantive deprivation asks what?
Whether the government has an adequate reason for taking away a person’s life, liberty or property?
Government may take private property for public use, but only if?
It provides just compensation, or terminates the regulation and pays the owner damages
What is the test for the takings clause?
Is there a taking (either possessory or regulatory)?
Is there a public use (reasonable belief that taking will benefit public)?
Is just compensation paid? (Loss to the owner in reasonable market value terms–gain to government is irrelevant)
Contracts clause limits what ability of states?
To enact laws that retroactively impair contract rights.
State and local governments may interfere with existing private contracts if….scrutiny is met?
Intermediate scrutiny
- Does the statute substantially impair a party’s rights?
- If so, is the law reasonably and narrowly tailored to promote an important and legitimate public interest?
State interference with government contracts must meet…what scrutiny?
Strict scrutiny
Ex post facto clause (that neither federal nor state governments can adopt ex post facto laws) applies in what kind of cases?
Only in criminal cases, not in civil cases
What is the standard used for interference with privacy rights?
Strict scrutiny
Laws that prevent people from moving into a state or put requirements on durational residency must meet….scrutiny?
Strict scrutiny
Restrictions on international travel must meet…scrutiny?
Rational basis
The right to vote is a…..kind of right?
A fundamental right
Laws that deny some citizens the right to vote must meet what kind of scrutiny?
Strict scrutiny
Use of race in drawing election district lines must meet….scrutiny?
Strict scrutiny
Is there a fundamental right to education under EP or the US Constitution?
No, there is no fundamental right to education
When is there a basis for an equal protection challenge?
Whenever the Government draws a distinction
Steps in an Equal Protection analysis?
1) What is the classification?
2) What level of scrutiny must be applied?
3) Does the law/classification meet the level of scrutiny?
Equal Protection clause of Fourteenth Amendment applies which governments?
State and local governments
How is equal protection applied to the federal government?
Through the Fifth Amendment due process clause
Level of scrutiny for government discrimination on the basis of race?
How is discrimination proven?
Strict scrutiny?
Either the classification exists on the face of the law, or if the law is race-neutral, then it demonstrates discriminatory impact and discriminatory intent
What is the level of scrutiny applied to gender classifications? What is the standard?
Intermediate scrutiny–discrimination on the basis of gender can only be allowed if there is an exceedingly persuasive justification
How is gender discrimination proven?
If the classification exists on the face of the law, or if the law is gender-neutral, then it has to demonstrate discriminatory impact and intent
What kind of gender classifications benefiting women are allowed/not allowed?
Gender classifications based on role stereotypes are not allowed.(Ex: Alimony discrepancy)
Gender classifications that are designed to remedy past discrimination in opportunity are allowed. (Ex: Social Security benefits)
What is the level of scrutiny applied to laws that discriminate against non-citizens?
Strict scrutiny
What privileges may be reserved for citizens and restricted to non-citizens?
What test is used for this analysis?
Voting, serving on a jury, working as a probation officer
Rational basis
When Congress discriminates against aliens, what test is used? For discrimination against undocumented alien children?
The rational basis test
Intermediate scrutiny
What standard is used for discrimination against non-marital children (legitimacy classifications)?
What about laws that deny a benefit to all non-marital children, but grant it to all marital children?
Intermediate scrutiny
All laws like this are unconstitutional. Intermediate scrutiny is the test.
A regulation seeking to forbid communication of….is less likely to be upheld than a regulation of…..?
A regulation of content is less likely to be upheld than a regulation of conduct incidental to speech
Content-based regulations generally must meet what type of scrutiny?
Strict scrutiny
Content neutral laws burdening speech must meet what type of scrutiny?
Intermediate scrutiny
How do we figure out if a law is content-based?
It is either a specific subject matter restriction or a viewpoint restriction
Prior restraints on speech (ex: a court order) must meet what type of scrutiny?
Strict scrutiny
What is vagueness in regards to a potentially speech-restrictive law?
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed.
What is overbreadth in regards to a potentially speech-restrictive law?
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
Can the government regulate symbolic speech? How?
Yes. May regulate conduct that communicates if:
- It has an important interest unrelated to the suppression of the message
- If the impact on the communication is no greater than necessary to achieve the government’s goal
How can the government regulate campaign spending?
Can put limits on contributions in election campaigns
Cannot put limits on expenditures in election campaigns.
Cannot limit the amount a person spends to get someone elected, so long as the expenditures are independent of the candidate and are not disguised contributions.
Is anonymous speech protected by the First Amendment?
Yes. Don’t have to identify yourself.
Can speech by the government by challenged as violating the First Amendment?
No. Will generally be upheld so long as it is rationally related to a legitimate government interest.
What is the 3-part test for obscene or sexually-oriented speech?
Material must appeal to a prurient interest, or a shameful or morbid interest in sex.
Material must be patently offensive under the law
Material must lack serious redeeming artistic, literary, political or scientific value (determined by a national standard)
What kind of obscene speech/material is completely banned? Is private possession punishable
Child pornography. Yes.
Profane/indecent speech is generally protected, except for….?
Free, over-the-air broadcast media
In Schools
Government regulation of commercial speech must be narrowly tailored, but how narrowly
Needs to be narrowly tailored but does not have to use the least restrictive means.
How can a public official recover for defamation?
Proving by clear and convincing evidence the falsity and actual malice of the state. Defendant must know of falsity or act with reckless disregard for the truth.
How can a public figure recover for defamation?
Same as a public official. Proving by clear and convincing evidence the falsity and actual malice of the state. Defendant must know of falsity or act with reckless disregard for the truth.
How can a private figure recover for defamation when the matter is of public concern?
If the matter is of private concern?
Proving falsity of the statement and negligence of the defendant, where the speaker was not as careful as a reasonable man would have been. Can only recover presumed or punitive damages by showing actual malice.
If matter is private concern, can recover presumed or punitive damages without proving actual malice
Where does the public have a right to attend government proceedings and have access to government papers?
Criminal trials and pre-trial proceedings
What places are available for speech?
Public forums
Designated Public Forums
Limited Public Forums
How can the Government regulate public forums, designated public forums, and limited public forums?
Regulations must be subject matter and viewpoint neutral–if not must meet strict scrutiny
Regulations must also be a time/place/manner regulation that serves an important government purpose
What is a designated public forum?
Government properties that the government could close off to speech, but chooses to voluntarily to open to speech. (Ex: a school)
What is a limited public forum?
Government properties that are limited to certain groups or dedicated to certain subjects (ex: City auditorium open for a candidate’s debate)
What is a non-public forum? How can it be regulated?
Government properties that the government constitutionally can and does close off to speech. Can regulate speech so long as the regulation is reasonable and viewpoint neutral (rational basis test).
Examples:
- Military bases
- Areas outside Prisons/Jails
- Schools
Laws that prohibit or punish group membership must meet….what type of scrutiny?
Strict scrutiny
To punish membership, must prove that:
1) Person is actively affiliated with the group
2) Has knowledge of the group’s illegal activities
3) Has specific intent of furthering illegal activities
Laws requiring disclosure of group membership must meet…what standard?
Strict scrutiny
Freedom of Association does not protect the right to discriminate, unless:
1) It’s an “intimate association” (ex: small dinner party)
2) Where discrimination is integral to the expressive activities of the group (ex: Ku Klux Klan)
Cannot use free exercise clause to do what two things?
Challenge a neutral law of general applicability (ex: drug law against peyote)
Deny benefits to individuals who quit their job for religious reasons
What is the 3-part test for the Establishment Clause?
S-E-X
Secular Purpose
Effect: Primary effect must be neither to advance nor inhibit religion
Excessive: Cannot have excessive government entanglement with religion
Government cannot discriminate against religious speech or among religions unless what standard is met?
Strict scrutiny
