Constitutional Law Flashcards
Tax and Spend Power
1) Congress can tax and spend for the general welfare.
2) If there is any conceivable rational basis for the exercise of that power, it will be upheld.
3) Congress can attach conditions to its grants of money, and the condition only has to relate to a federal interest.
Commerce Clause
Federal legislation
1) Channels (highways, waterways, Internet)
2) Instrumentalities
3) Activities that have a substantial effect on interstate commerce
- If economic –> can aggregate
- If noneconomic –> cannot aggregate
Dormant Commerce Clause
State legislation
1) Can pass laws that affect interstate commerce.
2) Cannot have laws/regs that place an undue burden, or an impermissible restraint, on interstate commerce. (negative implication of the commerce clause).
- Can’t pass a law that affects interstate commerce to protect local economic interests.
- Can’t totally bar exports of its natural resources.
- Can only ban imports of harmful products if there is no other way to deal with the problem.
Does law discriminate against out-of-staters?
- If no –> Does the burden on interstate commerce outweigh the benefits of the law?
- If yes –> Is the law necessary to achieve an important government purpose?
Preemption
If Congress passes a statute and has preempted the field, state legislation in that field is unconstitutional under the Supremacy Clause.
When has Congress preempted the field?
1) If Congress says so.
2) If the congressional statute is silent on the point of preemption, court will attempt to determine the intent of Congress.
If the purpose of the federal and state legislation is different –> no preemption, unless federal statute says that there is
Standing
1) Injury, or threat of injury
2) D is the cause of the injury
3) If the P wins, there will be no further injury
Organization on Behalf of Members
1) Members would have standing; AND
2) Interests are germane to the organization’s purpose
3) Neither the claim nor relief requires participation of individual members
Abstention
If a state court decides a case, based both on the US Constitution and an independent state law theory, SCOTUS will not hear that case.
Advisory Opinions
1) Federal courts cannot issue an advisory opinion.
2) Congress cannot authorize the court to issue an advisory opinion.
3) State courts can decide to issues advisory opinions.
* **4) If the federal court’s decision is subject to review by a different branch of gov’t before it will be implemented, it’s an advisory opinion.
Third-party Standing
Generally not recognized.
Exception: Seller of goods, or provider of services, has standing if he has also suffered harm, to challenge a law that adversely affects his customers.
Ripeness
Not ripe if there is no threat of immediate harm.
Full Faith and Credit
A judgment in State A must be given full faith and credit in State B if:
1) A had jurisdiction
2) A’s judgment was on the merits
3) A’s judgment was final
Pardon Power
President does not have power to pardon state prisoners
Takings
Gov’t may take private property for public use, but only if it provides just compensation or terminates the regulation and pays the owner damages.
Step 1: Is it a taking?
- Is there a government confiscation or physical occupation of property? (Possessory)
- Does the government’s regulation leave no reasonable economically viable use of the property? (Regulatory)
Step 2: Is it for public use?
- If Yes –> Gov’t must pay economic market value of property in hands of owner.
- If no –> Gov’t must return the property
When the gov’t statute/regulation simply reduces the value of the property, upheld provided it promotes an important government purpose.
Equal Protection Clause - Strict Scrutiny
When to Use: race, religion, national origin, alienage if done by States (except for citizenship for gov’t position), and statutes that impact fundamental rights (e.g., travel and vote)
The Standard: unconstitutional unless gov’t can establish it was necessary to achieve a compelling gov’t interest
Burden of Proof: gov’t
Equal Protection Clause - Intermediate Scrutiny
When to Use: sex, legitimacy
The Standard: unconstitutional unless gov’t can establish it was substantially related to an important gov’t interest
Burden of Proof: gov’t
Equal Protection Clause - Rational Basis
When to Use: anytime you don’t use strict/intermediate scrutiny, alienage if Congress does it
The Standard: constitutional unless challenger can show it has no rational basis
Burden of Proof: challenger
State Action
Whenever a nongovernmental org is being sued for a constitutional claim, must decide if there is enough of a tie-in. Except involuntary servitude
Rules of Thumb
1) Licensing an activity, or receipt of gov’t assistance in the form of land/money/both will NEVER be enough.
2) Once you have concluded that there is no gov’t action, then the answer choice that says the constitution does not apply, will always be the winning answer.
Equal Protection Source (State and Federal)
State Law? –> EPC of the 14th Am.
Federal Law? –> There is no equal protection clause in the 5th Amendment that applies to the federal government.
But SCOTUS has held that the DPC of the 5th Am. protects all citizens from a denial of equal protection by the federal government.
TPM Restrictions
To be reasonable, must be:
1) content-neutral
2) narrowly tailored to serve an important gov’t interest
3) leave open alternative channels of communication
Compelling gov’t interest if: restrictions that are content-control in a public forum
Free Exercise Clause
Gov’t can’t punish someone for their religious belief, or require them to hold a particular religious belief.
A law of general application, that was not intended to interfere with religion, can be applied to a person even if it requires conduct contrary to that person’s religious belief, or condemns conduct that person’s religious belief requires.
Establishment Clause
Government may make no law affecting the establishment of a religion.
Lemon Test to be constitutional (SEX)
1) Must be a secular purpose for the law – Secular
2) Effect of the law can neither advance nor inhibit a particular religion – Effect
3) Law must not result in excessive government entanglement with religion – eXcessive
Mootness
If events after the filing of lawsuit end P’s injury.
Exceptions:
1) Wrong is capable of repetition but evades view because of inherently limited time duration
Political Question
Examples
1) Republican Form of Gov’t
2) President’s foreign policy
3) Impeachment and removal process
4) Partisan gerrymandering
Congressional Federal Police Power
Is MILD
M = Military I = Indian Reservations L = Lands (Federal) D = District of Columbia
Executive Foreign Policy
Treaties
- Senate approval required
- Controls over state law
- Equal ground with federal statutes (last in time)
- Constitution controls
Executive Agreements
- No senate involvement
- Controls over state law
- Federal statute controls
- Constitution controls
Impeachment and Removal
Justified for: treason, bribery, or high crimes and misdemeanors
Majority of House (Impeachment); 2/3 of Senate (Conviction)
Article IV Privileges and Immunities Clause
Relevant if law discriminates against out-of-staters’ fundamental rights or important economic activities.
Rule: Is the law necessary to achieve an important government purpose?
State Taxation of Interstate Commerce
- Cannot use taxes to help in-state businesses
- Must be a substantial nexus between the product or activity to be taxed and the state
- Taxation of interstate businesses must be fairly apportioned
Procedural Due Process
Has the government (intentionally or recklessly) deprived a person of life, liberty (a significant freedom secured by the Constitution or Statute), or property (an entitlement to a continued receipt of a benefit)?
If yes, what procedures?
- Importance of interest to the individual
- Ability of additional procedures to increase the accuracy of the fact finding
- Government’s interest in administrative efficiency
Substantive Due Process
Asks whether the government has an adequate reason for taking away a person’s life, liberty, or property?
1) Affecting economic liberties? Rational basis test.
2)
Contract Clause
Limits states from retroactively impairing contract rights.
- Does the legislation substantially impair a party’s rights under an existing contract?
- If so, is the law a reasonably narrowly tailored means of promoting an important and legitimate public interest? (Intermediate Scrutiny)
If interference with a gov’t contract –> Strict Scrutiny
Fundamental Rights
Strict Scrutiny
- To marry
- To procreate
- To custody of children
- To keep family together
- To control raising of children
- To purchase and use contraceptives
- To domestic travel (EPC)
- To vote (EPC)
- Freedom of speech (1st Am.)
- Freedom of association (1st Am.)
- Free exercise of religion (1st Am.)
Undue Burden Test
- To abortion (prior to viability)
Rational basis (not a fundamental right)
- To practice a trade or profession
- To physician-assisted death
- To education
Unknown!
- To engage in private consensual homosexual activity
- To refuse medical treatments
- To possess firearms
TPM
Public Forums
- Content-based –> Strict Scrutiny
- Content-neutral –> Intermediate Scrutiny (important gov’t purpose, leaves open alternative channels)
Nonpublic forums
- Reasonable and viewpoint neutral
Symbolic Speech
Gov’t can regulate conduct that communicates if it has an important interest unrelated to suppression of the message, and if the impact on communication is no grater than necessary to achieve the government’s goal.
Incitement of illegal activity
Substantial likelihood of imminent illegality
Obscenity
1) The material appeals to the prurient interest
2) The material is patently offensive
3) The material lacks serious redeeming artistic, literary, political, or scientific value (national standard)
Commercial speech
Is it protected?
- Not if it advertises illegal activity, or if it’s false and deceptive
If so, intermediate scrutiny –> Must be narrowly tailored, but NOT least restrictive alternative.
Freedom of Association
Prohibit or punish group membership –> Strict scrutiny
- Actively affiliated with the group
- Has knowledge of the group’s illegal activities
- Has the specific intent of furthering those illegal activities or objectives
Require disclosure of group membership –> strict scrutiny
