Constitutional Law Flashcards
Ripeness
Court won’t hear a case unless P’s harmed or there’s an imminent threat of harm
Mootness
Issue has already been resolved before or during pendency of the case
Individual Standing
1) Concrete & particularized injury; 2) causal connection; & 3) favorable ruling will eliminate the harm
Third-Party Standing
1) P has individual standing; & either
2) 3rd parties find it difficult to assert their own rights, or
3) P’s injury adversely affects P’s relationship with the 3rd party
Organizational Standing
1) Individual members have standing;
2) Injury is related to the organization’s purpose; &
3) Neither the nature of the claim nor the relief requires participation of the members
11th Amendment bars the following suits against states in federal court
1) Action against state gov’t for damages;
2) Action against state gov’t for injunctive or declarative relief where the state is a named 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 state land would be taken away; &
4) Action against state gov’t officers for violating state law
Sec. 5 of the 14th Amendment
Congress can enact remedial legislation in connection with EPC/DPC violations
In regard to interstate commerce, Congress may regulate
1) Use of channels of interstate commerce;
2) Instrumentalities of interstate commerce; &
3) Activities having a substantial economic effect on interstate commerce, even if purely intrastate
10th Amendment - Coercion
Can’t require state to act in a certain way or substantially penalize it for failing to act
10th Amendment - Commandeering
Can’t require state official to act in aid of federal law without providing federal funding
Dormant Commerce Clause
State or local law is invalid if it 1) discriminates against out of state competition to benefit local economic interests; or 2) is unduly burdensome
Dormant Commerce Clause Exceptions
1) It furthers an important non-economic state interest (health & safety) & 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 out of state citizens as to fundamental rights (1, 2, 4-6 As, right to earn a living)
Privileges & Immunities Clause Exception
1) Nonresidents are part of the problem to be solved; & 2) There are no less restrictive means to solve the problem
Taxing Power
Congress can tax any activity it can otherwise regulate, or where there is a revenue-raising purpose
13th Amendment - Involuntary Servitude
Congress can enact laws preventing racial discrimination in private & public transactions
Contracts Clause
State/local law may not substantially impair an obligation under private K, unless it 1) serves a legitimate & important state interest, & 2) is reasonable and narrowly tailored to promote that interest
Legislative Veto
Unconstitutional for Congress to veto an Executive action without bicameralism & presentment
Preemption
Federal laws/Executive Orders supersede all conflicting state/local regulations
Express Preemption
Congress explicitly states that the law preempts all state/local laws
Implied Preemption
1) Actual conflict between the laws;
2) State law interferes with a valid federal objective; or
3) It appears Congress intended to occupy the entire field such that the federal law is comprehensive in scope & the federal gov’t creates an agency to administer the law
Presidential Authority - Domestic Affairs
President acts with express/implied authority of Congress - act valid
Congress is silent - act valid if it doesn’t aggrandize or encroach another branch
Congress expressly declines to authorize - act invalid
Total Taking
All of owner’s property is appropriated
Partial Taking
Less than all of owner’s property is appropriated
Taking Denies Landowner of All Economic Use
Total taking
Taking Denies Most Beneficial Use but Leaves Viable Alternatives
Not a partial taking unless (balance Penn Central factors):
Social goals sought to be promoted, diminution in value to the owner, & owner’s reasonable expectations
Temporary Moratorium on All Economic Use
Penn Central factors plus length of delay
Exactions as a Condition to Permit Approval
Partial taking unless there is a legitimate gov’t interest & the adverse impact is roughly proportional to owner’s loss
Zoning as a Taking
May be a taking if the ordinance physically appropriates property; denies all economic use; or unreasonably interferes with distinct, invest-backed expectations
14th Amendment Procedural Due Process - General
1) Notice & opportunity to be heard before a neutral party; &
2) Punishment isn’t excessively disproportionate to the crime
14th Amendment Procedural Due Process - Applies When
Gov’t intentionally acts to deprive an individual of life, liberty, or property
14th Amendment Procedural Due Process - If there’s a deprivation, balance
1) Importance of individual interest allegedly deprived;
2) Value of procedural safeguard to protecting that interest; &
3) Gov’t interest in fiscal & administrative efficiency
14th Amendment Procedural Due Process - Continued Right to Public Employment Rule
If a public employee is beyond the probationary period, there must be a pre-termination evidentiary hearing prior to firing them
14th Amendment Procedural Due Process - Must be a state/local action
1) A law, ordinance, or regulation;
2) A gov’t actor;
3) A private actor engaged in traditionally exclusive public function; or
4) A private action with significant state involvement that encourages the private action
14th Amendment Procedural Due Process - Equal Protection - Race/National Origin/Alienage (state laws only)/Fundamental Liberty
Strict scrutiny
Gov’t must prove the law is necessary to achieve a compelling gov’t interest (national security)
14th Amendment Procedural Due Process - Equal Protection - Gender/Illegitimacy
Intermediate scrutiny
Gov’t must prove the law is substantially related to achieve an important gov’t interest (traffic, public safety, parenthood)
14th Amendment Procedural Due Process - Equal Protection - All Other Classifications
Rational basis
Challenger must prove the law isn’t rationally related to a legitimate gov’t interest
14th Amendment Substantive Due Process
If a fundamental interest, use strict scrutiny. If not a fundamental interest, use rational basis
Fundamental interests - travel, privacy, voting, family rights of association, 1st A, abortion
Freedom of Speech - Content-Based Restriction
Gov’t must show the regulation is necessary to achieve a compelling state interest
Discuss vagueness and overbreadth
Freedom of Speech - Symbolic Speech Restriction
1) Regulation is within the constitutional power of the gov’t (health & safety);
2) It furthers an important gov’t interest;
3) The gov’t interest is unrelated to the suppression of speech; &
4) The incidental burden on speech is no greater than necessary
Freedom of Speech - Types of Forums
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
Limited Public Forum - all other public property other than nonpublic forum
Nonpublic Forum - jails & gov’t buildings
Freedom of Speech - Public Forum & Designated Public Forum Test
1) Content-neutral; 2) narrowly tailored to serve a significant interest; & 3) leaves open alternative communication channels
Freedom of Speech - Limited Public Forum & Nonpublic Forum Test
1) Viewpoint-neutral; & 2) reasonably related to a legitimate purpose
Freedom of Speech - Speech in Prisons
Restrictions upheld if reasonably related to a legitimate penological interest
Freedom of Speech - Funding & Speech
When gov’t funds speech to promote its own policy goals, it may be content-based
If gov’t funds private speech, it must be viewpoint-neutral
Freedom of Speech - Commercial Speech
Regulation 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; & 3) is narrowly tailored to serve that interest (reasonable fit)
Freedom of Speech - Campaign Contributions
Limits on contributions to candidates are valid
Limiting aggregate spending of one person is unconstitutional
Freedom of Speech - Unprotected Speech
Clear & present danger
Fighting words
Defamation of a private person
Obscenity - Description or depiction of sexual conduct that, taken as a whole, appeals to a prurient interest in sex, portrays sex in a patently offensive way, & lacks serious social value (national standard)
Freedom of Speech - Prior Restraint
1) The standards must be narrowly drawn, reasonable, & definite;
2) Gov’t must promptly seek an injunction if required; &
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 achieve a compelling interest
Freedom of Religion - Free Exercise Clause GAL
A generally applicable law that incidentally burdens free exercise is upheld if it’s reasonably related to achieving a secular purpose
Freedom of Religion - Establishment Clause
If there’s sect preference - strict scrutiny
If there’s not sect preference - Lemon test:
1) Secular purpose, 2) has a primary effect that neither advances nor inhibits religion, & 3) doesn’t produce excessive gov’t entanglement with religion
Freedom of Press
1) Right to publish lawfully obtained truthful information absent strict scrutiny
2) Right to have access to trials
Freedom of Association
Right to join together for political or expressive activity
May be infringed if necessary to achieve a compelling gov’t interest
