Constitutional Law Flashcards
Justiciability Requirements
No advisory opinions Must be ripe Not moot Standing No PQ
No Advisory Opinions
Rule: federal courts may not render advisory opinions, which lack:
- an actual dispute between adverse parties; or
- any legally binding effect on the parties
Ripeness
Rule: federal courts may only decide controversies that are ripe for JR
Pre-enforcement review of laws (not DJ) are generally not ripe UNLESS:
- substantial hardship in absence of review
- issues and record are fit for review
Mootness
Rule: federal courts may only decide live controversies
Live if:
- in suit for declaratory and injunctive relief, challenged law or conduct continues to injure
- in suit for damages, πis not made whole
EXCEPTIONS:
- capable of repetition & evading review
- ∆ voluntarily stops and can resume
- class action – 1 π suffers ongoing injury
Standing
π must have:
- injury (any harm, but not ideological objections or generalized grievances; already or imminently occurring; personally suffered by π or one of the 3P exceptions)
NOTE: taxpayer standing OK if challenging own tax liability; challenge to congressional spending in violation of Establishment Clause ok, but not executive spending.
- causation (fairly traceable to ∆)
- redressability (favorable court decision can remedy harm)
Third Party Standing
Close Relationship:
- π injured
- 2P unable or unlikely to sue
- π can adequately represent 3P
Organizations (on behalf of members):
- Members have standing
- Members’ injury related to purpose of organization
- Members’ participation not required
Free Speech Overbreadth (party whose speech can be censored sues on behalf of those whose speech cannot)
- Substantial overbreadth in terms of law’s legitimate and illegitimate sweep
- Not commercial speech
Legislative Standing
Legislators may challenge acts that injury them personally, rather than the legislature generally
Political Question Doctrine
Rule: federal courts will not decide political questions
- committed by Constitution to political branches of gov
- incapable of or inappropriate for judicial resolution
Examples:
a. Guarantee Clause: challenges to state’s gov as not republican form of gov
b. Foreign Affairs: challenges to P’s conduct of foreign policy and command decisions
c. Impeachment Process: challenges to procedures used by Senate to remove officials
d. Partisan Gerrymandering
e. Qualifications of Members of Congress
f. Seating of Delegates at national political convention
Sovereign Immunity
Barred: state ∆ in fed/state court (and agencies)
EXCEPTIONS:
1. waiver
2. π = other state/fed
3. BR proceedings
4. 14th Am abrogation by Cong to prevent discrim
Not barred: injunctive relief and money damages from own pocket against:
- state officers
- local gov (city, county, etc.)
Abstention
- Unsettled question of state law
2. Cannot enjoin state judicial/admin proceedings
Final Judgment Rule
SCOTUS only hears cases after there has been a final judgment by the highest state court capable of rendering a decision or federal COA
Independent and Adequate State Grounds
SCOTUS will not review a federal question if the state court decision rests on an independent and adequate state law ground. Outcome would be the same regardless of how the federal question is decided.
Congress generally has no police powers to pass laws except…
- Native American reservations
- Federal land
- DC
Necessary and Proper Clause
NOT a basis of leg. power
Allows Cong to choose any rational means to carry out an enumerated power, as long as the means are not prohibited by the Cost.
Tax and Spend Power
Rule: Cong may tax and sped to provide for the general welfare
- Includes any public purpose not prohibited by Const, even if not within an enumerated power
Spending Conditions:
- strings must be linked to purpose of spending and not violate Const.
- strings cannot be unduly coercive
Commerce Power
Congress may regulate commerce with:
- foreign nations
- Native American tribes
- among the states (channels, instrumentalities, and substantial effect on IC in aggregate)
LIMITS: Cannot regulate–
- Noneconomic activity in area traditionally regulated by states
- . compel participation in commerce, even if lack of participation substantially affects IC
Can prevent discrim under the Congress power in addition to the 14A EPC
Delegation of Legislative Power
To Agencies: may broadly delegate leg. power as long as some intelligible principle guides exercise of delegated power
To President: no line item veto (violates bicameralism)
To Congress: no legislative veto to void duly enacted laws without bicameralism and presentment
Speech or Debate Clause
Members of Cong enjoy immunity from civil and criminal liability for legislative acts
NOTE: not bribes, tweet, town halls, speeches, and publications outside of Cong
P’s Appointment Power
Ambassadors, federal judges, and officers of the US
- P appoints
- S gives advice/consent by majority vote
Recess Appointments – permissible for vacancies arising before or during S recesses of 10+ days and valid until end of next S session
Inferior Officers –Cong may vest appointment power in P. department heads, or judiciary (but not Cong.)
P’s Removal Powers
May remove high-level executive officers at will
Cong. may limit P’s removal of other exec. officials to good cause
Cong. may not remove exec. officials except through impeachment process
P’s Pardon Powers
P may pardon anyone accused or convicted of a federal crime.
EXCEPTION: no power to pardon crimes underlying impeachment by HOR
NOTE: does not cover civil liability
P’s Foreign Powers
War: power to declare war; CIC – broad discretion to deploy troops internationally (challenges may be PQ; Cong. checks through power of purse)
Treaties/Exec Agreements
Similar: P negotiates; trumps existing/future STATE law
Differences: 2/3 S to approve treaty (not EA); treaty trumps existing fed law (not future, and EA does not trump any federal law
Impeachment
Cong may impeach P, VP, federal judges, and all officers of the US for treason, bribery, or other high crimes and misdemeanors
Process:
- HOR passes articles of impeachment by majority
- S convicts by 2/3 vote
- Removal requires both
Presidential Immunity and Executive Privilege
Absolute Immunity: civil damages for any actions arguably within official responsibilities
No immunity: private suits, even while in office, for conduct prior to taking office
Executive Privilege: protects confidentiality of presidential communications, but may be outweighed by other important gov interests
Inherent Presidential Powers
- highest when authorized by Cong.
- lowest when against Cong.
- Twilight zone where neither
Federalism/10th Am
- 10th Am: Powers not granted to the US, or prohibited to the states, are reserved to the states or the people
- general police powers reserved to states
- Cong. cannot compel states to enact/administer federal programs (Anti-Commandeering Principle)
- Supremacy Clause: fed law preempts inconsistent state and local laws
- DCC
- P&IC Art. IV
- P or I C 14th Am
Preemption
Express: Cong expressly says so
Implied:
1. Conflict – impossible to follow both; state law impedes fed law
2. Field – extensive fed regulation indicates cong. intent to occupy the field
Dormant Commerce Clause
Prohibits state laws that discriminate or unduly burden interstate commerce
Discriminatory Laws (favor in-state over out-of-state commerce): INVALID unless:
1. necessary to achieve important gov. purpose
2. no less discrim. alternative
EXCEPTIONS: (a) cong. approves (b) market participant
Non-discriminatory Laws (evenly applied to in-state and out-of-state commerce): VALID unless burden on IC clearly outweighs non-protectionist benefits
Privileges and Immunities Clause of Art. IV
Prohibits state laws that discriminate against out of state US citizens re:
- important commercial activities (i.e., livelihood)
- fundamental rights
Discriminatory Laws (favor in-state over out-of-state citizens): INVALID unless:
- necessary to achieve import gov purpose
- no less discrim alternative
Privileges or Immunities Clause of 14th Am
Prohibits state laws that interfere with:
- interstate travel (fund. right to travel; equal treatment upon becoming permanent resident of state)
- petitioning the government
NOTE: not the BOR (thats the DPC)
NOTE: no fundamental right to int’l travel; no right to petition fed. government
State Taxation of Interstate Commerce
Discriminatory Taxes: generally invalid
Non-discriminatory Taxes: generally valid if:
- substantial nexus between taxpayer and state
- fair apportionment to business done or benefits received in state
NOTE: states may not tax or regulate the federal government (including agents/activities) without its consent
State Action
- State law
- State officials acting officially (even if unlawfully)
- Private party performing what is traditionally and exclusively a function performed by the government
NOTE: significant state involvement in challenged private conduct may count as state action
Procedural Due Process
5th Am –> fed gov
14th Am –> state gov
General Rule: individual has a right to fair process when gov acts to deprive life, liberty, or property.
DEPRIVATION: intentional/reckless (not neg)
LIBERTY: physical freedom or const’l/stat. rights
PROPERTY: real/personal/tangible/intangible; gov. entitlement to which individual has reasonable expectation of continued receipt
Process Due:
1. Notice – reasonably calculated to inform person of deprivation
- Opportunity to be heard
- Pre-Deprivation hearing: required unless gov. shows highly impracticable
- Balancing test determines nature/extent of procedures, considering: (a) importance of interest to individual, (b) risk of error through procedures used, (c) accuracy gain from additional procedures, (d) burden on gov - Before neutral decisionmaker – no actual or serious risk of bias
Levels of Scrutiny
RB: legitimate interest, rationally related means, BOP on challenger, presumptively valid (NOTE: animus is not rational)
IS: important state interest, substantially related means, BOP on state, no presumption of validity
SS: compelling state interest, narrowly tailored/least restrictive means, BOP on state, presumptively invalid
Equal Protection Clause
14th AM EPC: states/localities
5th AM DPC: EP component applying to fed
Trigger: government treating people differently
- What is the classification? (suspect, quasi-suspect, none?)
(a) facial
(b) disparate impact + discriminatory intent
(c) if neither, RB review - What is the level of review?
Suspect Classifications
Race
National origin
Alienage classifications by state generally
Denial of fundamental rights to some
Quasi-Suspect Classifications
Gener
Illegitimacy
Undocumented alien children by state
Classification based on alienage
Congressional classification: rational basis
State classification: strict scrutiny
EXCEPTION: state and local governments may reasonably require US citizenship for activities and positions integral to democratic self-governance
Classification based on gender
Test: intermediate scrutiny
Important government interest requires exceedingly persuasive justification, not a mere role stereotype
Classification based on legitimacy
Test: intermediate scrutiny
Laws based on prejudice (typically denying benefits to all non-marital children) and invalid, but laws that distinguish among non-marital children are more likely to be upheld
Substantive Due Process
14th Am DPC –> states and localities
5th Am DPC –> federal government
Fundamental Right if:
- Deeply rooted in nation’s history and tradition
- Implicit in concept of ordered liberty
DPC/EPC
- Denying EVERYONE a fundamental right is a SDP issue ONLY.
- Denying SOME a fundamental right is a SDP AND EPC issue.
Levels of scrutiny:
- Fundamental right –> SS
- Non-fundamental right –> RB
Fundamental Rights
- Marriage – substantial interference w/right to marry is necessary to trigger SS; reasonable requirements to protect rather than hinder may be upheld under RB (e.g., age requirements)
- Procreation
- Contraception
- Custody, care, and upbringing of children
- Living w/extended family
- Interstate Travel (P&I)
- Voting (RB for reasonable requirements [age, residence, citizenship requirements]; SS for onerous or potentially discriminatory restrictions (poll tax, literacy test)
- Abortion (but undue burden test)`
Right to Abortion
Pre-viability: State may regulate (but not prohibit) abortions to protect mother’s health or life of fetus.
TEST: undue burden (substantial obstacle) on access to abortion
Post-viability: state may prohibit abortions unless necessary to protect mother’s life or health
Not Undue Burden:
- Requiring licensed physician
- Requiring informed consent
- Requiring 24 hour waiting period after informed consent
- Requiring parental consent for minor (with judicial bypass option)
- Banning partial-birth abortions
- Not funding abortions
Undue Burden:
- Requiring spousal notification or consent
- Requiring extensive recordkeeping and reporting of abortions (not directed at maternal health or not sufficiently protective of privacy)
Right to Refuse Medical Treatment
Competent adult may refuse lifesaving medical treatment, but state may require CCE of indicidual’s intent and prevent family members from terminating treatment.
No right to physician assisted suicide.
State may compel vaccination against contagious diseases.
Takings
Fed gov (5th Am) and state (14th Am) may not take property unless:
- For public use
- There is just compensation
Physical Taking – confiscation, regular or permanent occupation, temporary occupation if interference is enough.
DEVELOPMENT EXCEPTION: traditional conditions on property development are not takings if benefits are roughly proportional to burdens
EMERGENCY EXCEPTION: taking less likely to be found if pursuant to public emergency (like war)
Regulatory Taking – regulations on use that not merely diminish but leave no economically viable use
Public Use – any legitimate public purpose; i.e., any purpose the government reasonably believes will benefit the public
Just Compensation – FMV at time of taking
Contract Clause
No state shall pass any law impairing the obligation of contracts
Applies to state and local laws only, not federal laws or judicial opinions.
TESTS:
Private Contracts –substantial impairment of existing rights is INVALID unless: (1) important government purpose (2) reasonably related means
Public Contracts – heightened scrutiny (IS or SS)
Ex Post Facto Laws
Rule: neither state nor federal government may pass legislation that retroactively alters criminal liability
- Makes illegal an act that was innocent when done
- Makes crime greater than when committed.
- Sets punishment greater than when the act was done
- Reduces evidence required to convict from what was required at time of act
Bills of Attainer
Neither the state or federal government may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial
Punishment – traditional sanctions and punitive measures
Freedom of Speech
- Is it speech?
- Is the speech protected or unprotected?
Speech: words, symbols, expressive conduct (inherently expressive or intended to convey a message and reasonably likely to be perceived as conveying a message)
Content Based: SS; Content Neutral: IS
Public Property: If public forum, CB/CN rules; if nonpublic forum, then SS (reasonable and not VP based)
Public School: student speech = substantial disruption (unless pro drug use); school speech = reasonably related to pedagogical concern
Public Employment: private concern or pursuant to job duties has no protection; public concern = balancing test of speech value vs. state interest in efficient operation
Unprotected Speech
- Incitement: Advocacy of lawless action that is (1) intended to produce imminent lawless action and (2) likely to produce imminent lawless action; mere advocacy of lawlessness is protected
- Fighting Words: words likely to provoke an immediately violent response
- True Threats: words intended to convey to someone a serious threat of bodily harm
- Obscenity: depiction of sexual conduct, taken as a whole by contemporary community standards: (1) appeals to prurient interest in sex; (2) is patently offensive; (3) lacks serious social value by national standards
- Child Pornography: depiction of children engaging in sexual conduct, whether or not obscene (must be actual children)
- Defamation with actual malice: defamation of public figures, public officials, or a matter of public concern with actual malice, i.e., (1) knowledge of falsity or (2) reckless disregard of the truth
- Commercial Speech (false, misleading, illegal): test – substantial government interest (e.g., consumer protection) that is narrowly tailored (reasonable fit rather than least restrictive)
Types of Public Forums for Speech
Traditional Public Forum: open to public as a free speech zone “from time immemorial” (e.g., parks, streets, sidewalks); cannot be undesignated as a public forum
Designated Public Forum: opened by policy or purposeful practice as free speech zone (e.g., college kiosks, college email systems); can be undesignated as public forum
Non-Public Forum: not opened by tradition or designation as free speech zone (e.g., classes, post offices, DMVs, airports)
Public Forums: CB –> SS; CN –> IS
Non-Public Forums: reasonable given nature of forum; SS if VP nased
Vagueness Test
Law is void for vagueness if persons of common intelligence cannot tell what speech is prohibited and what speech is permitted
Overbreadth Test
Law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress
Third party standing is allowed
Prior Restraints
Licensing schemes or injunctions that prevent speech before it occurs, rather than punishing speech afterward.
Historically, prior restraints have been greatly disfavored.
CB –> very SS
Licensing systems must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials
Free Exercise Clause
Religion: traditional religion as well as beliefs that play role in life of believer similar to the role that religion plays in the life of traditional adherents
To decide religious claims, gov may inquire into the sincerity of the religious beliefs, but not their truth
Test: Discriminatory Laws –> SS; neutral laws of general applicability are NOT subject to the FEC, EXCEPT that religious organizations are exempt from employment discrimination suits by their ministers
Establishment Clayse
Neutrality Test: government must remain neutral with respect to religion, neither favoring nor disfavoring it.
Coercion Test: government may not directly or indirectly coerce individuals to exercise or refrain from exercising religion
Lemon Test:
- Primary government purpose is sectarian; or
- Primary effect is sectarian; or
- Excessive entanglement between government and religion
Endorsement Test: from the standpoint of a reasonably informed observer, the government must not appear to endorse or disapprove of religion, making it seem relevant to a person’s standing in the community
However: sometimes the court sets aside the above principles and finds a state religious display or practice is a tolerable acknowledgement of the role religion has played in the history and tradition of the nation
