Constitutional Law Flashcards
Judicial Power
Federal Courts have the right to DENY a case if it DOESNT MEET the following criteria:
1) Standing
2) Mootness
3) Ripeness
4) Political Question
Standing
A person bringing the claim must have a concrete stake in the outcome of the case at all stages of review. This is met if claimant shows 1) an injury, 2) causation, and 3) redressability.
Mootness
A real controversy must exist at all stages of review. An exception applies if a controversy is moot, but is capable of repetition and will otherwise evade review.
(Look for a claim after harm has been resolved)
Ripeness
Must be an actual or imminent legal dispute.
Look for a claim before any harm has occurred
Political Question
Federal courts will not hear a case if it challenges:
- “republican form of government” clause,
- foreign policy,
- impeachment and removal process, or
- partisan gerrymandering (manipulation)
11th Amendment
prohibits FEDERAL COURTS from hearing claims against a state government.
EXCEPTION: when claim is brought by by the U.S. Government or another state.
Legislative Powers
The federal government has limited powers traced back to the Constitution.
Necessary and Proper
Congress can exercise all powers enumerated in the Constitution, as well as any auxilary powers NECESSARY AND PROPER to carry out all powers vested in federal government.
–> invalid by itself, Congress must have additional support
Taxing/Spending Powers
Congress has the power to tax if there is a REASONABLE RELATIONSHIP TO REVENUE PRODUCTION, and may spend for ANY PUBLIC PURPOSE for common defense and general welfare.
Commerce Power
Congress has the power to regulate all foreign and interstate commerce, so long as it:
1) regulates the channels,
2) regulates the instrumentalities, or
3) regulates activities that have a substantial effect on interstate commerce.
Police Powers (limited)
There is NO general police powers. However, they do have powers to police (FIDM):
- Federal lands,
- Indian lands,
- District of Columbia, and
- Military bases.
Domestic Powers of the President
The President has the power to appoint and remove executive officers, grant pardons for federal offenses, VETO an act of Congress (in totality, not line item), and otherwise act with express or implied authority from Congress.
Foreign and External Powers of the President
The President has the power over foreign relations, and may enter into TREATIES and EXECUTIVE AGREEMENTS.
Order of Law Constitution Treaties = Federal Law Executive Agreements State Law
Federalism and State Powers
All powers not delegated to the federal government are reserved to the states.
Preemption
State laws are invalid where:
1) they are mutually exclusive with federal laws,
2) they impede a federal objective, or
3) there is a clear Congressional intent to preempt.
Dormant Commerce Clause
State laws are unconstitutional if they place an undue burden on interstate commerce. This can be shown by:
- Non-discriminatory against Interstate commerce: burden on interstate commerce is greater than benefit to the state.
- Discriminatory laws: State must show a necessary and important government interest.
Privileges and Immunities Clause of Art. IV
State laws violate the P&I Clause if discriminatory against an out-of-state citizen’s civil liberties or important economic activities.
-State must show a necessary and important government interest; otherwise unconstitutional.
State Tax on Interstate Commerce
Can be Constitutional if:
1) there is a substantial nexus to the state, and
2) the tax is fairly apportioned.
Full Faith and Credit Clause
A court in one state MUST give credit to a prior judgment in another state if:
1) court had jurisdiction,
2) valid judgment on the merits,
3) and final.
State Actions
If a public representative is acting, or a private entity that is either performing a traditionally public task or a task that is entangled with the state government, then individual guarantees are applicable (due process, equal protection and 1st Amendment Freedoms).
Rational Basis
Challenger must prove that the action is NOT RATIONALLY RELATED to a LEGITIMATE government interest.
Intermediate Scrutiny
State must prove that the action is SUBSTANTIALLY RELATED to an IMPORTANT government interest.
Strict Scrutiny
State must prove that the action is NECESSARY to ACHIEVE a COMPELLING government interest.
Procedural Due Process
A FAIR PROCESS is required for a government agency to individually take a person’s “LIFE, LIBERTY, or PROPERTY” (must be found on the face of the law).
To determine process, Courts weigh:
i) importance of the interest, and
ii) value of SPECIFIC PROCEDURAL SAFEGUARDS, against
iii) GOVERNMENT INTEREST in efficiency.
Substantive Due Process
the government must have an adequate reason for taking away a person’s life, liberty, or property (found in the substance of the law ~ discriminatory affect).
If a fundamental right (i.e. privacy) - Strict Scrutiny Applies
All other rights (i.e. economic liberties) - Rational Basis Applies
Retroactive Legislation
Ex Post Facto - cannot retroactively punish after a law has passed, or increase punishment, for a past CRIME.
Bill of Attainder - Congress cannot pass a law punishing a group or persons without a trial.
Equal Protection
Categories:
Strict Scrutiny - Race, National Origin, Alienage, Religion
Intermediate Scrutiny - Children, Gender
Rational Basis - Alienage for Gov’t Jobs, Age, Disability, Sexuality, all others.
1st Amendment
prohibits Congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly.
Facial Attacks
Overbreath - if a regulation of speech or speech-related conduct punishes a SUBSTANTIAL AMOUNT OF PROTECTED SPEECH, it is facially invalid.
Vagueness - if a regulation fails to give persons reasonable notice of what is prohibited, it is facially invalid.
Prior Restraints - preventing speech before it occurs (must meet Strict Scrutiny).
Unfettered Discretion - A regulation cannot give officially broad discretion; there must be DEFINED STANDARDS, otherwise it is facially invalid.
Symbolic Speech
Restrictions on SYMBOLIC acts (i.e., flag burning) are unconstitutional unless:
1) Necessary, and
2) Important Government Interest
Content-Based Restrictions
Any restriction of the CONTENT of speech must must Strict Scrutiny unless one of the following categories:
- CLEAR AND PRESENT DANGER (incite lawlessness)
- FIGHTING WORDS (likely to provoke violence)
- OBSCENE (must i) appeal to prurient interests, ii) be patently offensive, and iii) lack serious artistic, literary, political, or scientific value)
- COMMERCIAL SPEECH (Intermediate Scrutiny - but no falsity or deception)
Content-Neutral Restrictions
Any time, place, and manner restriction on speech (that doesn’t discriminate on content) is constitutionally valid depending on location:
Public Forum: Intermediate Scrutiny applies, and must leave open an alternate location for speech.
Limited Public Forum: same as Public Forum IF HELD OUT AS A PUBLIC PLACE.
Non-Public Forums: must be viewpoint neutral, and Rational Basis applies.
Freedom of Association
Any restriction on the association with a specific group is unconstitutional (use Strict Scrutiny) unless:
- Punishing 1) active members 2) of a group furthering illegal activity, 3) and individuals have knowledge of illegal acts.
- requiring a group to disclose membership (use Strict Scrutiny)
- prohibiting a group from being discriminated against (however, if this interferes with intimate association or freedom of expression, it is invalid)
Freedom of the Press
The press generally has the same First Amendment freedoms that a private citizen does. Press can attend trials and publish in newspapers.
-Broadcast and Cable Television regulations are allowed to be more restrictive.
Freedom of Religion
The First Amendment prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the 14th Amendment.
Free Exercise Clause
A government must not punish an individual on the basis of their religious beliefs. A law that PROHIBITS CONDUCT of ALL people is valid unless it is specifically designed to interfere with a religion.
Establishment Clause
A government must not entangle itself with religion; any regulation of religious speech is help to a Strict Scrutiny standard.
Entanglement Test (SEX):
- Secular Purpose
- Effect (neither advances or hinders religion)
- No excessive entanglement with religion
