Constitutional Law Flashcards
Con Law - Standing
Individual
- Injury
- Causation
- Redressability
Third Party Standing Exceptions
- Plaintiff and injured party have close or special relationship
- Injured party cannot easily assert their own rights
Note: Plaintiff must still have standing
Organizational Standing
- Members having standing
- Interests germane to organization’s purpose
- Neither claim nor relief require participation of individual members
Con Law - Sovereign Immunity
- Federal and state courts may not hear suits against state governments absent consent. This does not apply to suits against local governments, actions by the U.S. or other states, or federal bankruptcy proceedings.
- Exceptions: A state may be sued if the explicitly waive immunity, Congress abrogates under section 5 of 14th A, or where suit is prospective injunctive relief against state officer
Con Law - Taxing and Spending
Taxing: Congress may levy any tax that is reasonably related to raising revenue, or where Congress has the power to regulate the taxed activity
Spending: Congress may spend for the general welfare
Con Law - Commerce Clause
Congress can regulate:
- the channels of interstate commerce,
- the instrumentalities, persons and things in interstate commerce, and
- economic activities that have a substantial effect on interstate commerce (if economic, cumulative effect okay—if non-economic, cannot be based on cumulative effect),
Con law - §5 of 14th Amendment
Congress can prevent or remedy violations of existing rights recognized by the courts, but its means must be congruent and proportional to remedying the proven constitutional violations.
Conlaw - Executive Powers
- Treaties
- Executive Agreements
- War
- Chief Executive
- Appointment
- Removal
- Impeachment
- Immunity
- Privilege
- Pardon
Conlaw - Dormant Commerce Clause
- Cannot discriminate against out-of-state competition
- Cannot unduly burden interstate commerce
Unless:
- Congress approves;
- law furthers important non-economic state interest and no reasonably discriminatory alternative, or
- market participant
Conlaw - Priveleges AND Immunities (Art. 4)
Cannot discriminate against non-citizens of state as to civil liberties and important commercial activities, unless there is a substantial justification and no less restrictive alternative.
Conlaw - Individual Liberties
The Constitution applies only to government conduct—private conduct need not comply, except where Congress can regulate under the 13th Amendment or Commerce Clause.
Conlaw - Levels of Scrutiny
- Rational Basis Test: Government action is upheld if it is rationally related to a legitimate government purpose.
- Intermediate Scrutiny: Government action is upheld if it is substantially related to an important government purpose. The court often uses narrowly tailored language here.
- Strict Scrutiny: Government action is upheld if it is necessary to achieve a compelling government purpose. The means must be narrowly tailored and the least restrictive alternative.
Conlaw - State Regulation of Interstate Commerce and/or Discrimination Against Out-of-State Business
- Dormant Commerce Clause: A state cannot discriminate against out-of-state competition to benefit local economic interests or unduly burden interstate commerce unless (1) Congress approves, (2) the law furthers important non-economic state interests and there’s no reasonably nondiscriminatory alternative, or (3) the state is a market participant.
- Facially Discriminatory: If the law is facially discriminatory, there’s no balancing of legitimate local benefits against the incidental burden on interstate commerce
- Privileges and Immunities of Article IV: A state cannot discriminate against non-citizens of state as to civil liberties and important commercial activities, unless there is a substantial justification and no less restrictive alternative.
- Contracts Clause of Article I, § 10: Prohibits state and local governments from substantially impairing the obligations of existing private contracts, unless there is an important government interest and the regulation is narrowly tailored (intermediate). If the contract is with the government, there must be a compelling government interest and the regulation must be necessary (strict).
- Equal Protection: If the classification does not involve a suspect class or fundamental right, it’s subject to rational basis scrutiny.
- Substantive Due Process: If the right is a mere economic liberty, it’s subject to rational basis.
Conlaw - Takings
- Generally: The federal government may take private property for public use if it provides just compensation
- Possessory: Government confiscation or physical occupation (unless emergency)
- Regulatory: Government regulation is a taking if it leaves no reasonable economically viable use (but not where it just deceases value). A court will look to whether regulation interferes with owner’s distinct, investment-backed expectations.
Conlaw - Procedural Due Process
- Generally: Guarantees that when one is deprived of life, liberty or property, one is entitled to notice and an opportunity to be heard before a neutral magistrate.
-
Procedures: Type and extent of procedures determined by balancing
- (1) the importance of the individual’s interest,
- (2) the ability of additional procedures to increase the accuracy of fact finding, and
- (3) the government’s interest
Conlaw - Substantive Due Process
Generally: Guarantees that when one is deprived of life, liberty or property, one is entitled to an adequate reason. SDP also protects various privacy interests.
Conlaw - Fundamental Rights (Strict Scrutiny)
- Right to Marry
- Right to Procreate
- Right to Custody of One’s Children (state may create a rebuttable presumption a married woman’s husband is the father of her child)
- Right to Keep a Family Together (including extended family)
- Right to Control the Upbringing of One’s Children (government cannot order grandparent visitation or choose a child’s school);
- Right to Purchase and Use Contraceptives
- Right to Abortion
- Right to Engage in Private Consensual Homosexual Activity
- Right to Refuse Medical Treatment
- Right to Read Obscene Material in One’s Home (except for child pornography)
Conlaw - Equal Protection
Generally: Ensures the government’s differential treatment of people is adequately justified. Applies directly to state and local governments, and to the federal government through the 5th Amendment Due Process Clause (reverse incorporation).
Conlaw - Classifications
- Suspect: Race, National Origin and Alienage (except self-government, democratic process, congressional discrimination)
- Quasi-Suspect: Gender and Legitimacy (Non-Marital Children)
- Non-Suspect: Age, Disability, Wealth, Economic Regulations, Sexual Orientation, etc.
Conlaw - Prior Restraints
If Special Societal Harm, Must Be:
- Narrowly Drawn
- Prompt Injunction
- Prompt and Final Determination
Conlaw - Symbolic Speech
- Regulation Within Constitutional Power
- Important Interest Unrelated to Suppression
- Impact No Greater Than Necessary
Conlaw - Obscenity
Taken as a Whole by Average Person:
- Appeals to Prurient Interests (Community)
- Patently Offensive (Community)
- Lacks Serious Artistic, Literary, etc. Value (National)
Conlaw - Commercial Speech
If Lawful, Non-Misleading and Non-Fraudulent, Can Burden If:
- Substantial Government Interest
- Directly Advances Interest
- Narrowly Tailored
Conlaw - Defamation
- Public Official: Public official must prove falsity and actual malice
- Public Figure: Public figure must prove falsity and actual malice
- Private Figure/Matter of Public Concern: Private figure must prove falsity and at least negligence, but can recover punitive or presumed damages if malice shown
- Private Figure/Private Matter: Entitled to presumed or punitive damages without showing malice
Conlaw - Speech Analysis
- 1st A Free Speech Rule Statement
- What is the Actor Seeking to Restrict?
- Who is Restricting?
- Private Party –> No Protection
- Government –> (see below)
- What Level of Government?
- Federal –> 1st A
- State –> 1st A through 14th A (and mention 11th A)
- In What Forum?
-
Public or Designated Public –> SS, unless Time, Place, Manner
- (1) Content-Neutral,
- (2) Important Gov’t Purpose,
- (3) Leaves Open Adequate Alternatives (Least Restrictive)
- Limited or Non-Public –> (1) Viewpoint-Neutral and (2) RBT
- Private Property –> No Right to Access
Conlaw - Free Exercise + Establishment Analyses
Free Exercise Analysis
Bring Establishment and Free Exercise Challenges Together
- 1st A Free Exercise Rule Statement
- Characterize Regulation
- What Level of Government?
- Federal –> 1st A
- State –> 1st A through 14th A (and mention 11th A)
- Strict Scrutiny Analysis
- (Challenger’s Argument):
- Compelling Interest to Punish/Impose Burden on Religious Beliefs? (No)
- Regulation Necessary to Achieve Compelling Interest?
- (Challenger’s Argument):
- But, Rational Basis Analysis if Neutral Law of General Applicability
- (Government’s Argument):
- Does Regulation Serve Purpose Unrelated to Punishing Religion?
- Are the Means Reasonably Related to Achieving a Secular Purpose?
Establishment Analysis
- 1st A Establishment Rule Statement
- Characterize Regulation
- What Level of Government?
- Federal –> 1st A
- State –> 1st A through 14th A (and mention 11th A)
- Facial Sect Preference -> Strict Scrutiny
- Compelling Interest to Punish/Impose Burden on Sect? (No)
- Regulation Necessary to Achieve Compelling Interest?
- No Sect Preference –> Lemon Test
- Law Must Have Secular Purpose
- Primary Effect Must Be Neither to Advance Nor Inhibit Religion
- No Excessive Gov’t Entanglement
