Constitutional Law Flashcards
Under Article III, Section 2, federal courts have the jurisdiction to hear which types of cases and controversies?
- Arising under the Constitution, laws, and treaties of the United States;
- Affecting foreign countries’ ambassadors, public ministers, and consuls;
- Involving admiralty and maritime jurisdiction;
- When the U.S. is a party;
- Between two or more states, or between a state and citizens of another state;
- Between citizens of different states or between citizens of the same state claiming lands under grants of different states; or
- Between a state, or its citizens, and foreign states, citizens, or subjects
Define
adequate and independent state grounds rule
Supreme Court will not hear an appeal from a state court decision that is supported by adequate and independent state grounds
What are the exceptions to the 11th Amendment?
Lawsuits against states are allowed if:
- State has consented;
- Suit is for prospective relief (injunctive) against a state officer;
- United States or another State is the plaintiff;
- Suit involves enforcement of laws under the violations of 13th, 14th, and 15th Amendments and Congress has expressly removed immunity
Requirements for a case to be justiciable (i.e. can be heard by the federal courts)
- Standing;
- Ripeness;
- Mootness; and
- Not a political question
Elements required for standing
- Injury-in-fact: P must show a direct and personal injury caused by alleged action;
- Causation: D’s conduct must have caused the claimant’s injury;
- Redressibility: Harm must be one the Court can remedy through their resolution of the case
When may a litigant have standing to assert the rights of a third party?
- There is a special relationship between P and the injured party (e.g. doctor-patient, lawyer-client, parent-child), and the injured party finds it difficult to bring suit themselves; or
- There is standing via association: an association may have standing to bring suit if (1) any one of its members would have standing, (2) the issue is germane to the association’s purpose, and (3) individual member participation is not required.
Do organizations have standing to sue?
Only if:
- At least one member of the organization would have standing to sue;
- Interest asserted is germane to purpose of the organization; and
- Neither claim nor relief requires individual participation of members
What are the exceptions to the mootness requirement?
- Capable of repetition yet evading review: although P’s particular injury will likely become moot before litigation is complete, it is highly likely injury will be repeated in the future;
- Voluntary cessation: D voluntarily ceases behavior once litigation starts, but could resume at any time; or
- Class action: As long as one member of class has a ripe claim, resolution of one P’s injury will not defeat mootness
What are the sources of Congressional power in the Constitution?
- Enumerated powers (Article I, Section 8)
-
Implied Powers
- Necessary and Proper Clause (Article I, Section 8)
- Taxing and Spending Power (Article I, Section 8, Clause 1)
- Commerce Clause (Article I, Section 8, Clause 3)
Does Congress have federal police power to promote the general welfare?
No, it does not have this power.
The answer to any question about whether Congress has federal police power to promote the general welfare will always be “no” on the MBE.
Define
Necessary and Proper Clause
Allows Congress to enact any legislation necessary to carry out its enumerated powers
⚠️ Not an independent source of power, only to be used in conjunction with an express Congressional power. Never pick this as a free-standing power of Congress on the MBE.
What does the Commerce Clause give Congress the authority to regulate?
Two broad categories:
-
Interstate commerce:
- Channels (highways, waterways);
- Instrumentalities (cars, ships, trucks, airplanes);
- Articles moving in interstate commerce; and
- Activities that affect interstate commerce
-
Intrastate commerce:
- Economic: local, instrastate activities that in the aggregate “substantially affect” interstate commerce
- Non-economic activities: must substantially and directly affect commercial activity (higher burden)
More info: Commerce Clause
What is Congress’ spending power under Article I, Section 8?
Power to “pay the debts and provide for the common defense and general welfare of the United States”
Can Congress regulate via its spending power (i.e. place conditions on funding)?
Yes, but the conditions:
- Must be related to the general welfare;
- Expressly stated; and
- Not going to coerce the states into unconstitutional behavior
Can Congress pass laws under the General Welfare Clause that are not related to taxing or spending?
No; Congress only has the power to promote the general welfare via its taxing and spending power
What are Congress’ war and defense powers?
- Declare war;
- Raise and maintain Armies, Navy, and a militia; and
- Establish military courts and rules governing military
⭐️ Extremely broad power: allows Congress to take whatever action is necessary to provide for the national defense
What is Congress’ plenary power over aliens?
Power to admit or exclude aliens for any reason from entering the country
⭐️ Since this is a sovereign power, federal alienage classifications will likely be upheld as long as they aren’t arbitrary
What is Congress’ tax power?
General Welfare Clause gives Congress the power to “lay and collect taxes” for any public purpose (Article I, Section 8). Government has no burden to show compelling purpose for the tax.
What are the Enabling Clauses in the 13th, 14th, and 15th Amendments?
Gives Congress the power to enforce the 13th, 14th, and 15th Amendments via “appropriate legislation”
How can Congress enforce the 14th Amendment?
Congress has the power to override 11th Amendment state immunity and pass laws enforcing due process and equal protection as long as:
- Congress shows historical and widespread discrimination by the state; and
- Law is “congruent and proportional” to remedying discrimination
Define
Anti-commandeering doctrine
Prohibits the federal government from “commandeering” state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns, see Printz v. U.S.)
Can Congress delegate its powers to other branches?
Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress specifies an “intelligible principle” on which to base regulations. Very low bar, almost always upheld.
⚠️ Note: Congress cannot delegate its war or impeachment powers
What are the main powers of the President?
- Enforcement of laws;
- Commander in chief;
- Appointment powers;
- Removal powers;
- Pardons; and
- Veto
What are the President’s appointment powers?
Can appoint high-level officers with advice and consent of the Senate
What is the President’s authority as Commander in Chief?
- Can only take military action to defend a sudden, hostile attack
- Cannot declare war (only Congress)
⚠️ The extent of the President’s military authority is much contested and unclear. For more info, see Commander in Chief Powers
What is the impeachment process?
Step 1: House of Representatives votes to impeach (majority vote); then
Step 2: Senate conducts a trial and votes to convict and remove from office (2/3 vote)
Police powers are reserved to the _______
States. Grants broad authority to enact legislation for the general welfare.
What is the Supremacy Clause?
Holds that if a federal law directly or indirectly conflicts with a state law, federal law will prevail (and state law declared void). Federal laws can either expressly or impliedly preempt state law.
When does a state regulation violate the Dormant Commerce Clause?
If regulation:
- Discriminates against out-of-state commerce;
- Unduly burdens interstate commerce; or
- Regulates wholly out-of-state activity
Under the Dormant Commerce clause, when are regulations that discriminate against out-of-state actors valid?
If:
- Regulation is necessary to achieve important government interest and no reasonable, non-discriminatory alternatives are available;
- State is a market participant (i.e. acts like a business or consumer); or
- Regulation involves traditional government function (e.g. trash collection), or
- Congress has expressly authorized regulation (i.e. Congress explicitly states that regulation violates Dormant Commerce, but will allow it anyways)
If you see a question about a possible discriminatory interstate tax, what different provisions of the Constitution could it violate?
- Commerce Clause;
- Privileges and Immunities Clause of Article IV (Comity Clause);
- Equal Protection; and
- Due Process of the Fourteenth Amendment
What is the 4-part test to decide whether a state tax on interstate commerce is valid?
Tax must satisfy the Complete Auto test:
- Tax must have substantial nexus to taxing state (i.e. activity being taxed must have significant relationship with the state);
- Tax must be fairly apportioned;
- Tax cannot discriminate against interstate commerce; and
- Tax must be fairly related to the services provided by the state
What is the Privileges and Immunities Clause under Article IV?
(also called the “Comity Clause”)
Mandates that states cannot discriminate against the fundamental rights or esssential activities of out-of-state residents
⚠️ Note: Privileges and Immunities does not apply to corporations. If you see discrimination against an out-of-state corporation, think Dormant Commerce Clause
If a state is discriminating against an out-of-state corporation, does the Dormant Commerce Clause or Privileges and Immunities apply?
Dormant Commerce Clause → Privileges and Immunities applies to persons, not corporations
When is discrimination against out-of-state residents valid under Privileges and Immunities?
If:
- There is a substantial justification for the discrimination (e.g. protectionism or residents are the “peculiar source of evil” law was intended to fix:); and
- No less-discriminatory alternatives are available
Distinguish Privileges and Immunities under Article IV vs. the 14th Amendment
Article IV: Prevents states from discriminating against non-residents
14th Amendment: prevents states from denying citizens the right to interstate travel (narrowly construed)
Does the Constitution protect against wrongful conduct by the government or private citizens?
The government, not private individuals.
⚠️ Exceptions:
- Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or
- Individual and gov. are excessively intertwined
- Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement
Test for strict scrutiny
Law will be upheld if:
- It is necessary to achieve a compelling/crucial government interest; and
- Is the least restrictive means possible to achieve that interest
When is strict scrutiny triggered?
if law involves a suspect classification or fundamental right
Test for intermediate scrutiny
Law will be upheld if it is substantially related to an important government interest
Test for rational basis review
Law will be upheld if rationally related to a legitimate government purpose
⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn’t completely arbitrary
What does procedural due process require (generally)?
If government is depriving an individual of life, liberty, or property, individual must be given:
- Notice;
- Opportunity to be heard (i.e. hearing); and
- Decision by a neutral arbitrator
What is substantive due process?
Asks whether government has an adequate reason to deprive someone of their life, liberty, or property (i.e. substantive rights). If fundamental right, deprivation must pass strict scrutiny. If non-fundamental right, must only pass rational basis review.
More info: Substantive Due Process
What is the Contracts Clause?
Prohibits states from substantially impairing existing contract duties.
Source: Article I, Section 10
⚠️ Congress can still restrict contracts that will be made in the future
Define
Takings Clause
Prohibits government seizure of property without just compensation (Fifth Amendment). Also called “eminent domain.”
Two types: possessory and regulatory.
What is an ex post facto law?
Unconstitutional criminal law that either:
- Criminalizes conduct that was legal at the time it was done;
- Imposes a harsher penalty after crime is committed;
- Decreases prosecution’s burden of proof for crime; or
- Eliminates a defense available to D when crime was committed (ex. changing statute of limitations)
List the fundamental rights
- Right to travel (nationally);
- Right to vote; and
- Right to privacy
- Marriage
- Sexual relations
- Child-rearing/parenting
- Family members to live together
- Contraception
How do you determine whether regulation of a fundamental right violates substantive due process or equal protection?
- If right is infringed for all people → Substantive due process
- If right is only infringed for certain classes of people → violates equal protection
What are 3 main powers Congress can use to limit discrimination by private citizens?
- 13th Amendment;
- Commerce Clause; and
- Federal purse power
What is the Equal Protection Clause?
Holds that no state shall make or enforce any law that denies its citizens equal protection of the laws (i.e. similarly situated persons should be treated similarly under the law)
Source: 14th Amendment
More info: Equal Protection
What are 4 steps to analyzing equal protection questions?
-
Is there a classification by the government?
- P must prove classification was made with discriminatory intent
-
What is the classification?
- Suspect, quasi, or other
- What level of scrutiny applies?
- Suspect = strict
- Quasi = intermediate
- Other = rational basis
- Does the government action satisfy the level of scrutiny?
What are the suspect classifications?
- Race;
- Religion;
- Alienage; and
- National origin
⭐️ Strict scrutiny. Classifications will almost always be fatal.
What are quasi-suspect classifications?
- Gender; and
- Legitimacy
⭐️ Intermediate scrutiny
What are non-suspect classifications?
-
Alienage if:
- Federal alienage classification; or
- State restriction on alien’s participation in government functions
- Age
- Wealth
- Sexual orientation
- Disability
- Any other classification not governed by strict or intermediate scrutiny
⭐️ Rational basis review. Almost always survives equal protection challenge unless motivated by animus towards the group
To trigger intermediate or strict scrutiny, P must show that the classification was made with __________
Discriminatory intent. Showing of disparate impact without intent will trigger rational basis review.
For affirmative action to survive strict scrutiny, what must the government prove?
Action is necessary to remedy past discrimination by specific department or agency engaging in affirmative action. Past discrimination by private actors and/or society is not sufficient.
Must show evidence of past discrimination.
⚠️ Exception: quotas are almost never allowed
Alienage classifications trigger strict scrutiny unless:
- Classification is pursuant to Congress’ plenary powers to regulate immigration; or
- Classification is related to essential government functions and/or processes. Valid restrictions include:
- Voting and jury membership
- Working as public school teacher
- Working as police officer
- Working as probation officer
⭐️ If based on either circumstance, rational basis will apply
What is the test applied to non-resident discrimination?
There must be a substantial connection between the discrimination and a substantial state interest.
More Info: The Privileges and Immunities Clause
Voting legislation is subject to what level of scrutiny?
If based on anything other than age, residency, or citizenship → strict scrutiny
List 4 examples of voting regulations that have been upheld
- Reasonable residency requirements;
- Reasonable registration requirements;
- Reasonable time and manner regulations; and
- Denial of voting rights to felons
When can someone be fired or prevented from gaining public employment for association with a group?
- D is active member of subversive organization;
- D knows about the group’s illegal activities; and
- D has specific intent to further illegal activities
What does the First Amendment protect?
Freedom of expression (speech, press, assembly, & association)
When can the government regulate symbolic speech?
- Regulation furthers important gov. interest;
- Interest is unrelated to suppression of the message; and
- Impact on speech is no greater than necessary to achieve interest
Define
content-based restriction
Restriction based on subject matter of expression; i.e. disagreement with the viewpoint or message it contains. Can be either content-based on its face or as applied.
⭐️ Subject to strict scrutiny ⭐️
Define
content-neutral restriction
Applies neutrally to all content regardless of viewpoint or subject matter.
Ex. time, place, or manner restriction
⭐️ Subject to intermediate scrutiny
What 5 types of speech can be regulated on the basis of content?
- Obscenity;
- Incitement;
- Fighting words;
- Defamation; and
- Commercial speech
⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny
Define
viewpoint neutral restriction
One that restricts entire categories of speech, but not viewpoints within a category
Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed
When is a prior restraint on speech allowed?
Only allowed in extremely rare circumstances such as:
- During wartime or national security crisis to protect troops/citizens; or
- To prevent incitement of violence
When can the government regulate speech that is incitement to violence?
Regulation must be narrowly tailored and only aimed at:
- Speech that promotes or directs imminent illegal action; and
- Creates a “clear and present danger” of such action
What is the 3-prong test to determine whether speech is obscene?
- Appeals to “prurient interests;” (community standard)
- Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and
- Lacks serious artistic, literary, political, or scientific value as determined by national standards
⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.
What is the four-part test to determine whether regulation of commercial speech is constitutional?
Must satisfy Central Hudson Test:
- Speech is not false, misleading, or illegal;
- Regulation serves substantial government interest;
- Regulation directly advances interest; and
- Regulation is not more extensive than necessary to serve that interest
More info: Central Hudson Test
Are attempts to limit fighting words constitutional?
Limitations will almost always fail for being either overbroad, vague, or content-based and thus failing strict scrutiny
⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad
3 requirements needed for a valid time, place, or manner restriction in a public forum
Restriction is:
- Content-neutral;
- Leaves open ample, alternative channels of communication; and
- Narrowly tailored to serve significant government interest (not compelling gov. interest)
