Constitutional Law Flashcards
1
Q
Justiciable cases by federal courts
A
- 11A - sovereign litigation
- US can sue state w/o its consent
- states can’t sue US w/o its consent
- individuals can’t sue states, but cities and counties ok
- suing fed officer ok if seeking specific relief (not $)
- state v. state ok, S.Ct has exclusive jurisdiction - No advisory opinions
- need specific present harm - Ripeness
- must be immediate threat of harm - Mootness, except:
- wrong capable of repetition but evading review
- D stops
- class actions - Standing - individuals
- injury: actual or imminent
- causation: D caused injury/harm
- redressability: CT decision could remedy the harm - Standing - organizations
- members would have standing to sue
- interests are germane to org’s purpose
- participation of individual members not required - Standing - for 3rd party
- claimant has standing; AND
- difficult for 3rd party to assert own rights; OR
- special relationship b/w claimant and 3rd party (i.e., doctor/patient) - Adequate and independent state grounds
- Abstention
- unsettled question of state law
- pending state proceedings - No political questions
2
Q
Congress powers
A
- Taxing
- tax must bear some reasonable relationship to revenue production; OR
- Congress has power to regulate activity taxed - Spending
- can for general welfare (any public purpose) - Conditioning receipt of fed money if conditions:
- clearly stated
- relate to purpose of program
- not unduly coercive - Fed govt cannot commandeer state officials
- Interstate commerce
- regulate channels
- regulate instrumentalities
- regulate activities that have substantial effect - Intrastate commerce
- rational basis activity in the aggregate has subs economic effect on interstate commerce - Supremecy clause
- fed law is supreme and prevails over conflicting state and local law
- direct conflict - state law invalid
- express preemption: fed law says no state laws
- implied preemption: undermines/impedes fed objectives
- field preemption: state law does not conflict but fed law comprehensive OR agency created to oversee area - Police power
- only in DC, federal lands and military bases - Property power
- can only take property under an enumerated power - Power to declare war
- Impeachment
- majority in House to invoke charges
- 2/3 Senate to remove from office
3
Q
Executive powers
A
- Appointment and removal power
- appoint ambassadors, S.Ct. justices w/ Senate confirmation
- can remove executive officers w/o Congress - Veto
- override by 2/3 of each house (House of Reps and Senate) - Internal affairs
- valid if w/ express/implied authority of Congress
- upheld if Congress silent, unless usurps power from another govt branch
- invalid if acting against express will of Congress - Treaty power
- need consent of 2/3 Senate
- if conflict w/ fed laws - last in time - Executive agreements w/ heads of state
- no approval by Congress needed
- prevail over state laws, but not fed laws
4
Q
State regulation of interstate commerce
A
- Discrimination of out-of-staters
- A. Privileges and immunities clause
- prohibits state discrimination against nonresidents
- corporations and aliens not protected
- only applies to fundamental rights
- exception: state’s substantial justification (no less restrictive means)
- B. Dormant commerce clause (DCC)
- corporations and aliens protected
- exception: important, noneconomic state interest and no reas nondiscriminatory alternative
- exception: state as market participant
- exception: involves performing traditional govt function
- Nondiscriminatory burden on interstate commerce
- DCC applies
- balance state interest v. burden, less restrictive alternatives
5
Q
Retroactive legislation
A
- Contract clause
- law cannot retroactively impair contract
- private Ks: intermediate scrutiny - can’t substantially impairs existing private K unless 1. important and legitimate public interest, and 2. reasonable and narrowly tailored means of promoting interest.
- govt Ks: stricter scrutiny - Ex post facto laws - can’t retroactively:
- create new crime
- increase punishment for crime
- reduce evidence required to convict - Bills of attainder - law can’t punish individuals w/o judicial trial
6
Q
State taxation of interstate commerce
A
- Taxes that discriminate out-of-staters violate Commerce Clause, Privilege and Immunities, Equal Protection
- Nondiscriminatory taxes:
- substantial nexus to state
- fair apportionment
- fair relationship to benefits provided by state - Use taxes
- seller must have sufficient nexus w/ state - Ad valorem property taxes (taxes based on value of property)
- valid if property no longer in interstate transit
- instrumentalities of commerce: a. taxable situs, and b. fair apportionment - “doing business” taxes (license, franchise)
- activity has substantial nexus to state
- tax fairly apportioned
- does not discriminate against interest commerce
- tax fairly relates to services provided by state
7
Q
State action
A
- affirmative state action
- activity is traditionally state act (running a town)
- state affirmatively facilitates, encourages, or authorizes action
8
Q
Procedural due process
A
- Life, liberty or property (govt entitlement)
- Process required, balance:
- importance of the interest to individual
- value of procedural safeguards to that interest
- govt interest in fiscal and administrative effciency
9
Q
Takings clause
A
- 5th A requires just compensation (fair market value at time of taking) for property taken for public use
- Public use = govt action rationally related to legitimate public purpose
- Takings (vs regulation w/ no compensation):
- actual appropriation or physical invasion, except emergencies
- denial of all economic value of land
- temporary denials of all economic use: weigh all relevant circumstances (planner’s good faith, length of delay, actual effect on property value, etc)
- decrease economic value: not a taking if leave an economically viable use for property:
- a. social goals to be promoted
- b. diminution in value to owner
- c. whether reg substantially interferes w/ distinct, investment-backed expectations of owner
- dedication to public in return for building permit, ok if:
- a. govt shows condition relates to legitimate govt interest; and
- b. adverse impact of proposed development proportional to loss caused to owner by forced transfer
10
Q
Standards of review
A
- Strict scrutiny - law necessary to achieve compelling govt purpose
- no less burdensome alternative
- govt has burden of proof
- fundamental rights: (interstate travel, privacy, voting, 1st A rights)
- suspect classifications: (race, national origin, alienage) - Intermediate scrutiny - law substantially related to important govt purpose
- govt has burden of proof
- quasi-suspect classifications (gender, legitimacy) - Rational basis - law rationally related to legitimate govt interest
- not arbitrary or irrational
- individual has burden of proof
11
Q
Substantive due process
A
- Fundamental rights - strict scrutiny
- All other cases - rational basis
- 5A - fed govt
- 14A - state and local govt
12
Q
Equal protection
A
- intent by govt to discriminate:
- law discriminatory on its face;
- discriminatory application of facially neutral law; OR
- discriminatory motive behind law - Race and national origin
- govt has compelling interest to remedy past discrimination; must be readily identifiable, not general past - Alienage classification
- fed govt: RB
- state govt: SS, except participation in self-govt (voting, jury service, elective office) and important offices (police, probation officer, school teacher)
- undocumented aliens not suspect class: RB - Gender classification: IS
- Legitimacy classification (nonmarital children): IS
13
Q
Freedom of speech
A
- Reasonableness of regulation
- overbroad: punishes both protected and unprotected speech
- vague: no clearly defined
- unfettered discretion: no defined standards - Time, place and manner
- public forum: reg must be
- a. content neutral
- b. narrowly tailored serve important govt interest
- c. leave alternative channels of communication
- designated public forum: open for a specific purpose (same test as public forum)
- limited public/nonpublic forum
- a. govt can reserve forum for its intended use
- b. viewpoint neutral
- c. rational basis - Content based: strict scrutiny
- Content-neutral: intermediate review
- serve a significant govt interest;
- narrowly tailored to serve that interest; and
- leave alternate channels of communitation - Obscenity
- appeals to prurient interest in sex, community standard;
- patently offensive, community standard; and
- lacks serious value, national reas person standard - Commercial speech
- substantial govt interest
- directly advanced
- reasonably tailored
- unlawful activity/misleading/fraud not protected - Fighting words - likely to cause listener to commit violence
- Inciting imminent lawless action
- Misrepresentation and defamation (torts)
- Prior restraint - stop speech before occurs; unconstitutional unless:
- serious public harm
- narrowly drawn
- prompt final determination of injunction - Freedom of association - SS
- Punishment of govt employee
- speech w/in official duties: can be punished/regulated based on content
- speech not w/in official duties and matter of public concern: balance govt interest in efficient service and employee’s 1A right
- wide deference to govt if speech disruptive to work environment
14
Q
Freedom of the religion
A
- Establishment clause: govt action invalid unless:
- has secular purpose;
- primary effect neither advances nor inhibits religion;
- no excessive govt entanglement w/ religion - Free exercise clause
- can’t burden religion unless compelling interest
- general applicability laws ok
