Constitutional Law Flashcards
Article III Courts have power to hear
(1) Interpret constiutiton
(2) Fed laws
(3) Treaties
(4) Admirality
(5) Maritime
(6) Disputes between states/diverse citizens/foreign citizens
Judicial Review
Review constiutionality of acts of other branches of government
Article I courts have power to hear
Tax courts
Original jurisdiction of supreme court
(1) Ambassadors
(2) Public ministers
(3) consuls
(4) suites against states
Cases come to Supreme court by
(1) Writ of Certioari - DISCRETION
(2) Appeal - must hear it
Requirements for a fed court to hear a case
(1) must be a “case or controversy”
(2) No advisory opinions
(3) Ripeness (bars claim BEFORE developed)
(4) Mootness (bars claim AFTER resolved)
(5) Standing
Components for Standing
(1) Injury
(2) Causation
(3) Redressability
Common Standing Issues
(1) Congress cannot confer standing w/o injury
(2) P has standing to enforce statute if within “zone of interest” of statute
(3) Assert rights of others
(4) Standing of organizations
(5) No citizenship standing
(6) No tax standing
Standing of organizations elemetns
(1) injury to members that would give right to sue on own behalf
(2) injury related to org’s purpose
(3) individual member participation not required
Will Supreme court exercise jurisidction if state court judgment based on adequate and independent state law grounds - even if fed issues involved?
NO - unless it is unclear that the decision was based only on state law grounds.
What’s a political question
matter that is not capable of judicial decision. Some PQ include:
(1) gerrymandering
(2) partisan leg appointment
(3) procedures for ratifying constitutional amendments
(4) President’s foreign policy
11th Amendment Bars
Fed Coruts from hearing private or foreign party’s claims against a state government.
Doctrine of sovereign immunity
bars suits against a state government in state court, even on fed claims, unless the state consents
Doesn’t bar suit against an officer whose act violates constitution or fed law, even if state has to pay, and actions against the officer personally
Congress’s Powers
(1) Necessary and Proper power (attached to another fed power)
(2) Tax Power
(3) Spending power
(4) Commerce
(5) War
(6) Investigation
(7) Property
(8) Bankruptcy
(9) Postal
(10) Citizenship
(11) Admiraility
(12) Coin money
(13) Patent/Copyright
Necessary and Proper Power
Power to make all laws necessary and proper for executing any power granted to any branch of the federal government
Tax Power
Only needs to be reasonable related to revenue production
Spending Power
Any public purpose
Commerce Power
(1) Regulate CHANNELS of interstate comerce
(2) Regulate the INSTRUMENTALITIES, or
(3) Regulate activities that have a SUBSTANTIAL EFFECT
If congress relies on commerce power to regulate interstate activities that have a substantial effect, then a court will uphold it if…
(1) Economic: rational basis that it effects interstate commerce
(2) Noneconomic: congress must show a direct substantial economic effect on interestate commerce
Property power
No limits to dispose property
Takings must be for purpose of an enumerated constitutional power
is there police power by congress?
NO - unless you’re in the terrible place known as DC
Alien rights
Alien: no rights
Resident alien: notice and hearing before deportation
Speech and Debate clause
Can say anything and not be prosecuted
Can delegate legislative power when…
Congress provides intelligible standards
Can congress veto an executive action?
NO
Appointment powers
Congress cannot appoint
Requires advice of senate unless it’s an inferior officer
Removal of appointees
President: can remove exec high level without intereference from Congress. Congress can put limits on President’s power to remove all other executives (ex. good cause only).
Congress: Can remove exec officers through impeachment only.
Pocket veto
President has 10 days to veto - if congress is not in session the bill is automatically vetoed. If congress is in session it becomes law.
Line item veto
unconstitutional - all or nothing
President’s power as chief
(1) President acts with express or implied authority of congress - likely valid
(2) President acts where congress silent - likely uheld unless it usurps the power of another branch
(3) President acts against congress - he has little authority
Treaty power
President can enter into treaties with 2/3 vote of senate
Veto requires what in congress
2/3 in each house
Executive Agreement vs. Treaty
Exec agreement do not require consent of congress - treaties do
Executive Agreement priority of authority
(1) Exec agreement trumps state law
(2) Exec agreement does not trump federal law
Impeachment requirements
Majority vote in house to invoke charges
2/3 in senate to convict and remove
Preemption
Fed law supersedes state law either expressly or implicitly
Preemption by Operation of the entire field
State law can be preempted even if there isn’t a conflict in the laws if congress intended to operate the entire field
Can US sue States?
YES
Can States sue US?
NO - unless US consents
Can State sue a state?
Yep - even without other’s consent - SC has exclusive jurisdiction.
Is a tax applying to both state and private actors valid?
YES,
Flip side: it is not valid if it only applies to the state or local government activity based on tenth amendment - BUT COURTS HARDLY DO IT SO DON’T CHOSE THIS ANSWER
Can congress indirectly control a state through its spending power
YES - congress can add conditions on the grant of money, if conditions
(1) clearly stated
(2) relate to the purpose of the program
(3) not unduly coercive
Fourteenth Amendment - National citizenship privilege
State cannot deny citizen privilege and immunities to national citizenship
Can a state regulate/tax commerce in absence of congressional action?
Yes, as long as it doesn’t discriminate or unduly burden interstate commerce
State action DISCRIMINATES against nonresident - Privileges and immunities clause
invalid UNLESS state has a substantial justification and there are no other less restrictive means
This only protects fundamental rights
Alein or corporation CANNOT be Plaintiff
NO MARKET PARTIPCIATION EXEMPTION
State action DISCRIMINATES against nonresident - Commerce Clause
If there is no applicable fed legislation and it burdens interstate commerce, then invalid, UNLESS
(1) important noneconomic state interest
(2) state is a market particpant
(3) usual government function
Alien or corporation MAY be Plaintiff
State action does NOT discriminate against nonresident - both privilege and immunities and commerce clause
PI does not apply because you need discrimination.
Under commerce clause, if the law burdens interstate commerce and it outweighs the state interest then it is invalid
Does the state need to be involved to show a constitutional violation?
YES - must be a public function or a significant state involvement.
The Contract Clause
Limits states ability to enact laws that retroactively impair contract rights. Private contract given intermediate scrutniy and public contracts given strict scrutiny
DOESN’T APPLY TO FEDS
Ex Post Facto Laws
No alteration of criminal offenses or punishments retroactively - only applies to criminal world not civil
Procedural due process definition
Fair process required for government to take a persons life, liberty or property
Property includes more than just personal belongings or relaty - also includes legitimate claims or entitlements to the benefit under state/fed law
What constitutes fair process
Weighing
(1) importance of the interest
(2) procedural safeguards
(3) government interest
Can you waive due process?
YES - must be “voluntary and made knowingly”
Fifth amendment taking clause (applicable to states via 14th amendment)
private property cannot be taken for PUBLIC USE without just compensation.
It doesn’t matter how small the taking is - must be given compensation
What burden of proof for fifth amendment taking?
rationally related to a legitimate public purpose
Is it a taking if no physical invasion but impacts economic use?
Depends
Denies all economic value - taking
Temporary denied - no taking
lowers economic value but still economically viable - no taking
What is just compensation
fair market value at the time of the taking
Substantive due process vs equal protection on MBE
If limits liberty of ALL - due process question
If limits a class/race - equal protection question
Strict Scruitny
Affects fundamental rights or suspect classifications
Law upheld if it is necessary to achieve a compelling interest. Government has burden
What are the classifications subject to strict scrutiny
Race National origin Alienage (state only) Interstate travel Privacy Voting First Amendment
Intermediate Scrutiny
Quasi-suspect classifications
Law upheld if it is substantially related to an important interest. Unclear who has the burden but likely government
What are the classifications subject to intermediate scrutiny
Gender
Legitimacy of children
Rational Basis
All other classifications and laws
Law upheld if it is rationally related to a legitimate interest. Plaintiff has burden of proof
Substantive due process 5th vs. 14th amendment
5th amendment - federal government
14th amendment - state government
Substantive due process analysis
Fundamental right - strict scrutiny
All others - rational basis
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Ways you can show intent:
(1) law discriminatory on its face
(2) discriminatory application
(3) discriminatory motive
Race and nationa origin - school integration
only intentional segregation violates constitution.
Remedying past discrimination ok?
YES - but general past societal discrimination is not
Race OK to be considered in drawing up districts?
YES - but it cannot be the predominant factor
Is diversity of a student body in primary/second school a compelling interest under strict scruitny?
NO - but court has deferred to higher education, except the court has not endorsed higher ed schemes for assuring diversity - the school must show that no workable race-neutral alternative would assure diversity sought
Alienage rules between fed and state
If fed action - its’ valid if it isn’t unreasonable
If state action - strict scrutiny applies. UNLESS it’s participation in self-government or non-elective offices servicing the people (police, teachers), then rational basis applied
Fundamental right - right to privacy - abortion rules
Strict scruitny but slightly modified to include a (1) pre-viability and (2) post viability analysis.
Pre viability - state can put a regulation in place if it doesn’t place an “undue burden” on right to get an abortion (only undue burden is notifying spouse).
Post viabilie - state’s interst in fetus overrides woman’s right to abortion, unless her health at risk
Fundamental right - right to privacy - extended fmaily together
Zoning regs that prevent it are invalid. Does not extend to unrelated people
Fundamental right - right to vote - congressional election mapping
States must use almost exact mathematical equality in creating congressional district. Congress does not have this high of burden when apportioning representatives
Freedom of speech - government speech elements
Only restricts government regulation of private speech. Does not prevent government from voicing its views or funding its views (but look for government trying to regulate speech by attaching stipulations to grant receiver).
Government speech need only be rationally related to a legitimate interest
Content regualation of speech - restrictions
Presumptively unconstitutional - must be necessary to achieve a compelling interest
Conduct regulation of speech
CAN be regulated by content-netrual time, place and manner
Void for Vagueness doctrine
law gives no reasonable notice as to what is prohibited (ex. prohibit “lewd” speech).
Four types of forums for conduct regulation
Public forum
Designated public forum
Limited public forum
Nonpublic forum
Public forum
Streets/sidewalks/parks - any area that has been historically open to speech. To regulate on time/place manner, it must be
(1) content neutral
(2) narrowly tailored to serve an important interest
(3) Leave open alternative channels
Designated public forum
Not historically open to speech-related activities but government allows on a limited basis. To regulate on time/place/manner, it must be
(1) content neutral
(2) narrowly tailored to serve an important interest
(3) Leave open alternative channels
Limited or nonpublic forums
Generally not open to speech-based activities. Regulations for time/place/manner restrictions valid if
(1) viewpoint neutral
(2) reasonably related to a legitimate interest
What areas CAN government regulate speech
(1) Inciting imminent lawless action (likely that it will happen)
(2) Fighting words (true threats)
(3) Obscenity
(4) Defamatory speech
(5) Some commercial speech
Speech is obscene when…
(1) Appeals to the prurient interest using a community standard
(2) Patently offensive using a community standard
(3) Lacks serious value using a national standard
Obscene business can be regulated, but…
Cannot be an all out ban -
Regulation of commercial speech upheld when..
(1) Serves a substantial government interest
(2) Directly advances that interest
(3) narrowly tailored
Prior Restraint is…
restricting speech before it happens - hard for government to do unless it shows
(1) narrowly drawn, reasonable and definite
(2) Injunction my promptly be sought
(3) Prompt and final determination on validity of restraint
Freedom of Association
Government must show a compelling interest unrelated to suppression of ideas, if restrictions are least restrictive means.
Limits on contributions
Subject to intermediate scrutiny
Can limit amount of money to a political candidate, but may NOT to a ballot referrendum
CANNOT limit the aggregate amount of one person or entity
CANNOT limit amount one person can spend on expenditures not contributed to the candidate
Religious regulation
Government cannot interefere with BELIEFS (or target religious groups)
but government can interfere with CONDUCT if it is rationally related to a legitimate government interest and netural toward regligion.
If the law is not netural toward religion, then must pass strict scrutiny.
Government action toward religion is found invalid, unless
Lemon test
(1) it has a secular purpose
(2) primary effect that neither advances or inhibits religion
(3) No excessive entaglement with religion
Fighting Words
Inciting imminent lawless action is not protected speech
Bona Fide State resident protections (ex. colleges)
rational basis standard if it (1) applies to all, (2) doesn’t involve a suspect class and (3) doesn’t involve a fundamental right.
Trial and pretrial hearings - what standard to close out public?
can only be closed if necessary to preserve an overriding interest
When is a matter considered moot?
must be a real, live controversey AT ALL STAGES OF THE PROCEEDING.
Class action exception: if named member no longer satisifying, class will.
Power of state to tax under commerce clause
(1) tax does not discriminate against interstate commerce
(2) nexus between activity taxed and taxing state
(3) fairly approprined
(4) relates to services or benefits provided by the state
Continued Public Employment - Due Process Requirements
Property interest if
(1) statute or ordinace that creates a public employment K, or
(2) clear practice that employee can only be terminated for “cause”
What type of process usually required when government depriving life, liberty, property?
Generally, notice and a hearing before termination of interest (welfare, suspension from public school
In some cases - notice and a post termination (disability
In some cases - must give all three notice pre and post termination hearing (public employee for cause,
