Constitutional Law Flashcards
Ripeness
Ct won’t hear a case unless P’s been harmed or there’s an imminent threat of harm
Mootness
Issue has already been resolved
Individual Standing
1) Concrete and particularized injury;
2) Causality; and
3) Redressable
Third-Party Standing
1) P has individual standing; and either
2) 3rd party has difficulty asserting own rights; or
3) P’s injury adversely affects P’s relationship with 3rd party
Organizational Standing
1) Individual member has standing;
2) Injury is related to the organization’s purpose; and
3) Neither the nature of the claim nor the relief requires participation of the members
11th Amendment bars the following cases:
(1) Action against state gov’t for damages;
(2) Action against state gov’t for injunctive or declarative relief where the state is named as a party;
(3) Action against state gov’t officers where the effect of the suit is that retroactive damages will be paid from the state treasury or where state land would be taken away; and
(4) Action against state gov’t officers for violating state laws
For interstate commerce, Congress may regulate:
1) Use of channels of interstate commerce;
2) Instrumentalities of interstate commerce; and
3) Activities having a substantial effect on interstate commerce, even if purely intrastate
10th Amendment & Commerce Clause -
Coercion
Can’t require states to act in a certain way or impose a substantial penalty for failing to act
10th Amendment & Commerce Clause -
Commandeering
Can’t require state officials to act in aid of federal law without providing federal funding
Dormant Commerce Clause - State or local commerce law is invalid if it:
1) Discriminates against out of state competition to benefit local economic interests; or
2) Is unduly burdensome (the legitimate local benefits don’t outweigh the incidental burden on interstate commerce)
Dormant Commerce Clause Exceptions - A discriminatory state or local law may be upheld if:
1) It furthers an important non-economic interest and there aren’t reasonable nondiscriminatory alternatives;
2) Gov’t agency is a market participant;
3) Congress exempts state/local gov’t from DCC; or
4) Traditional public function
Article IV Privileges & Immunities Clause
Prohibits discrimination by a state against citizens (people) of other states as to fundamental rights
Article IV Privileges & Immunities Clause Exception
Discrimination against nonresidents requires that 1) nonresidents are part of the problem to be solved; and 2) there are no less restrictive means to solve the problem
Taxing Power
A tax is valid if it is reasonably related to revenue raising or is an activity Congress can regulate
13th Amendment - Involuntary Servitude
Congress can enact laws banning racial discrimination in private and public transactions
Contracts Clause
Applies against state/local law
Law may not substantially impair an obligation under private Ks unless it is 1) reasonably and narrowly tailored to promote 2) a legitimate and important state interest
Public Ks - if gov’t is a K party, look for K clause or provision of law authorizing the K and reserving the right to amend or revoke the K
Legislative Veto
Congress can’t attempt to overturn an executive agency action without bicameralism and presentment
Preemption
Federal law supersedes all conflicting state/local regulations
Express Preemption
Congress explicitly states that the law preempts all state/local regulations
Implied Preemption
1) Actual conflict between the laws
2) State law interferes with a valid federal objective
3) It appears Congress intended to occupy the entire field such that the federal law is comprehensive in scope and the federal gov’t creates an administering agency
Presidential Authority - Domestic Affairs
1) President acts with express/implied authority of Congress - act valid
2) Congress is silent - act valid if it doesn’t aggrandize or encroach another branch
3) Congress expressly declines to authorize - act invalid
Regulatory taking denies a landowner of all economic use
Total taking
Regulation that decreases the value of property by denying its most beneficial use but leaves an economically viable use
Not a partial taking unless Penn Central factors:
Social goals sought to be promoted, diminution in value to the owner, and owner’s reasonable expectations regarding use of the property
Temporary Moratorium on All Economic Use
Length of delay, planner’s good faith, economic effect of delay, and owner’s reasonable investment-backed expectations
Exactions as a Condition to Permit Approval
Partial taking unless legitimate gov’t interest and adverse impact is roughly proportional to loss caused to property owner
Zoning Ordinance Taking
May be a taking if ordinance physically appropriates property, denies all economic use, or unreasonably interferes with distinct, investment-backed expectations
Can’t eliminate existing non-conforming uses
14th Amendment Procedural Due Process
Notice and opportunity to be heard before a neutral party; and punishment isn’t excessively disproportionate to the crime
Procedural Due Process Factors
1) Importance of individual interest deprived;
2) Value of procedural safeguard to protecting that interest; and
3) Importance of gov’t interest in fiscal and administrative efficiency
14th Amendment only applies to state/local gov’t actions that involve deprivations of 14th A:
1) A law, ordinance, or regulation
2) A gov’t actor
3) A private actor engaged in traditionally exclusive public function
4) A private action with significant and ongoing state involvement, encouraging or facilitating the private action
Equal Protection Clause - Race/National Origin/Alienage/ Fundamental Liberty
Strict Scrutiny
Classification is necessary to achieve a compelling gov’t interest
Equal Protection Clause - Gender/Illegitimacy
Intermediate Scrutiny
Classification is substantially related to achieve an important gov’t interest (close fit between means and ends)
Equal Protection Clause - All other classifications
Rational Basis
Law is rationally related to a legitimate gov’t interest
Substantive Due Process
If it’s a fundamental right, use strict scrutiny
(Travel, privacy, voting, family rights of association, 1st Amendment, abortion)
If it’s a non-fundamental right, use rational basis
Free Speech - Content-Based Restrictions
Ban or regulation based on content of speech is subject to strict scrutiny
Discuss vagueness and overbreadth
Free Speech - Content-Neutral Restrictions
Regulation upheld if gov’t shows that 1) it advances important issues unrelated to speech, and 2) doesn’t burden substantially more speech than is necessary to further those interests
Free Speech - Symbolic Speech Restrictions
Regulation upheld if:
1) It is within the constitutional power (health and safety) of the gov’t;
2) It furthers an important gov’t interest;
3) The gov’t interest is unrelated to the suppression of speech; and
4) The incidental burden on speech is no greater than necessary
Public Forum
Historically open to speech-related activities
Designated Public Forum
Not historically open to speech-related activities but gov’t has opened to such activities on a permanent or limited basis
Limited Public Forum
All other public property other than a non-public forum
Nonpublic Forum
Jails and gov’t buildings
Free Speech - Public Forum and Designated Public Forum Test
Gov’t may regulate speech in these forums if the regulation 1) is content-neutral, 2) is narrowly tailored to serve a significant interest, and 3) leaves open alternative channels of communication
Free Speech - Limited and Nonpublic Forum Test
Gov’t may regulate speech in these forums if the regulation is 1) viewpoint neutral, and 2) reasonably related to a legitimate purpose
Free Speech - Speech in Prisons
Restrictions upheld if reasonably related to a legitimate penological interest
Free Speech - Funding
When gov’t funds speech to promote its own policy goals, it may be content-based. If it funds private speech, it must be viewpoint neutral
Free Speech - Commercial Speech
Regulations of commercial speech involving lawful activity that isn’t misleading or fraudulent is valid if it 1) serves a substantial gov’t interest, 2) directly advances that interest, and 3) is narrowly tailored to serve the substantial interest (reasonable fit)
Free Speech - Unprotected Speech
1) Clear and present danger
2) Fighting words
3) Defamation of private persons
4) Obscenity - appeals to prurient interest in sex, portrays sex in a patently offensive way, and lacks serious literary, artistic, political, or scientific value (using national standard)
Free Speech - Prior Restraint
Allowed if 1) the standards are narrowly drawn, reasonable, and definite; 2) gov’t promptly seeks an injunction if required; and 3) must be a prompt right of appeal
Freedom of Religion - Free Exercise Clause
Prohibits gov’t from punishing someone, either by imposing burdens or denying benefits, because of their religious beliefs, absent it being necessary to achieving a compelling interest
BUT a GAL that incidentally burdens free exercise is upheld if reasonably related to achieving the secular purpose
Freedom of Religion - Establishment Clause with sect preference
Strict scrutiny
Freedom of Religion - Establishment Clause without sect preference
Law is valid if it 1) has a secular purpose, 2) has a primary effect that neither advances nor inhibits religion, and 3) doesn’t produce excessive gov’t entanglement with religion
Freedom of Press
Right to publish lawfully obtained truthful info absent strict scrutiny compliance
Right to have access to trial
Freedom of Association
Right to join together for political or expressive activity
May be infringed only if necessary to achieve a compelling gov’t interest
