Constitutional Law Flashcards
Justicibility (SPAR ME)
Standing, Political Question, Abstention, Ripeness, Mootness, Eleven Amendments Sovereign Immunity
Justicibility: Standing
P must show 1) an actual injury (or imminent threat), 2) caused by D, that is 3) redressable by the court. Here,
Justicibility: Standing - Third Party Standing
Generally, a person may not assert the claims of another, however, the court will allow third party standing if: 1) there is a special relationship between the claimant and the third party (i.e. doctor/patient) or 2) it is difficult for the claimant to assert his own right, or 3) if claim is on behalf of an organization.
An organization may assert claims of their members so long as 1) members of the org have suffered actual injury, 2) injury related to the org’s purpose, and 3) individual member participation in the lawsuit is not required. Here,
Justicibility: Standing - Taxpayer/Citizen
Tax payers usually do not have standing to challenge government expenditures, although a narrow exception exists allowing challenges under the Establishment Clause. Here,
Justicibility: Political Question
Political questions are issues constitutionally committed to other branches or inherently incapable of judicial resolution. Here,
Justicibility: Abstention
Federal courts will abstain from resolving constitutional questions hinging on unsettled matters of state law. However, in instances of proven harassment or bad faith prosecutions, the federal court may step in. Here,
Justicibility: Ripeness
The courts will not grant a pre-enforcement ruling on a statute or regulation unless P will suffer harm or is under threat of immediate injury. Here,
Justicibility: Mootness
If the matter has already been resolved, the case will be dismissed as moot. P must present a live case in controversy during all stages of the proceeding unless: 1) the controversy is capable of repetition but evading review, 2) D voluntarily stops conduct but is free to resume, or 3) in a class action, so long as at least one member of the class still has a viable claim. Here,
Justicibility: Eleventh Amendment - Sovereign Immunity
The 11th A prohibits a citizen from suing a state without a state’s express consent. However, if P sues the appropriate state official, or a subsidiary like a town or city, the suit will not be barred by the 11th Amendment. Here,
Executive Power: Foreign Powers
The President has authority to represent the U.S. in foreign relations, including the ability to make treaties, appoint ambassadors, and act as commander in chief of the armed forces.
Executive Power: Foreign - Treaty Power
The President can negotiate treaties with foreign countries, but they must be ratified by 2/3 senate approval. Treaties prevail over conflicting state laws and older federal statutes. Here,
Executive Power: Foreign - Executive Agreements
The President may enter into agreements signed by the head of a foreign country, without senate approval. Executive agreements can be used for any purpose and they prevail over conflicting state laws, but not federal laws. Here,
Executive Power: Foreign - Warn and Foreign Releations
The President has broad powers as Commander in Chief to act militarily in foreign hostilities. However, only Congress can make a formal declaration of war. Here,
Executive Power: Domestic - Appointment Power
The President has the power to appoint ambassadors, federal judges, and other high-level officers with the advice and consent of the Senate. Here,
Executive Power: Removal Power
The President can remove high level, purely executive branch officers at will, without the interference of Congress. However, Congress may place limitations on the removal power where independence from the President is desirable (i.e. remove only for cause). Here,
Executive Power: Pardon Power
The P can grant pardons for all federal criminal offenses but not for state crimes, civil liabilities, or impeachment. Here,
Executive Power: Veto Power
If P vetoes an act of Congress, the act may still become a law if the veto is overridden by 2/3 of EACH house. Here,
Executive Power: Veto Power - Pocket Veto
The P has 10 days to exercise the veto power. If he fails, the bill will automatically be vetoed if Congress is NOT in session. If congress IS in session, it will become law. Here,
Executive Power: Veto Power - Line-Item Veto
P may not cancel part of a bill and sign the rest into law. All or nothing. Here,
Executive Power: Chief Executive
The President must “take care that laws be faithfully executed”. However, the President’s authority depends on if he’s acting with congressional approval as decided in Youngstown:
If P acts with express or implied congressional authority, his action is at its highest authority.
If P acts where congress is silent, his action will be upheld unless it usurps power from another branch.
If P acts against express congressional will, he has little authority. Here,
Executive Power: Domestic War Power
The President has extensive military powers during times of war, including the power to act over domestic affairs involving military necessities. Here,
Executive Power: Executive Privilege
The P has privilege to keep certain communications secret, particularly communications with regards to national security. However, in criminal proceedings, presidential communications will be available where the prosecution shows a need for such communications. Here,
Executive Power: Executive Immunity
The P has absolute immunity from civil damages for acts while in office. However, this immunity does not extend to actions before P took office. Here,
Executive Power: Impeachment
The President, VP, and all civil officers are subject to impeachment for treason, bribery, high crimes, and misdemeanors. Impeachment requires a majority vote in the House. Conviction and removal from office requires 2/3 vote of the Senate. Here,
Legislative Power:
There is no general federal police power over states (does for Indian res, military bases, etc.) For Congress to act, it must have express or implied authority through one if its “sources of power”. Congress also has no limits on delegating its powers. Here,
Legislative Power: Necessary and Proper Clause
Congress may take any action, not prohibited by the Constitution, that is necessary and property to execute ANY power granted to ANY branch of the federal government. This power alone cannot support federal law, rather, it must work in conjunction with another federal power. Here,
Legislative Power: Commerce Clause
Congress has the exclusive power to regulate all foreign and interstate commerce. Federal law may regulate the 1) channels, 2) instrumentalities, and 3) economic activities that have a substantial effect on interstate commerce. Here,
Commerce Clause - Channels of Interstate Commerce
Congress may regulate the channels of interstate commerce such as roads, rivers, and the internet. Here,
Commerce Clause - Instrumentalities, Persons, and Things of Interstate Commerce
Congress may regulate all instrumentalities, persons, and things directly related to interstate commerce. Here,
Commerce Clause - Economic Activities that have Sub Effect on Interstate Commerce
Congress may regulate intrastate economic activities that, in the aggregate, have a substantial effect on interstate commerce. Here,
(noneconomic activities can NOT be based on cumulative impact)
Legislative Power: Taxing Power
Congress has the power to tax so long as the tax bears some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. However, neither Congress nor the states may tax exports to foreign countries. Here,
Legislative Power: Spending Power
congress may spend for the “general welfare”, which means spending can be for any public purpose. Here,
Legislative Power: Citizenship
Congress may establish uniform rules of citizenship. This gives Congress plenary power over aliens to grant or take away citizenship. Aliens have no right to enter US, but resident aliens are entitled to a hearing before deportation. Here,
Legislative Power: Civil Rights
Congress may restrict state activities that violate civil rights. Here,
Legislative Power: Property
Congress may dispose of federal properties and make rules territories and property of the United States. Here,
Legislative Power: War
Congress has the power to declare war, raise and support armies, and provide for and maintain a navy. Here,
Preemption/Supremacy Clause
While it is possible for states and the federal government to pass legislation on the same subject, the Supremacy Clause provides the Constitution, and federal laws, are the SUPREME LAW of the land and preempt all conflicting state and local laws. Preemption can be express, implied, or by impeding on a federal objective/intent. Here,
Supremacy Clause - Express Preemption
If a federal statute expressly says that federal law is exclusive, then state and local laws are preempted. Here,
Supremacy Clause - Implied Preemption
If complying with both federal and state law is impossible, then federal law preempts state law. Here,
Supremacy Clause - Federal Objective
If state law impeded the achievement of a federal objective, federal law preempts state law. Here,
Supremacy Clause - Congressional Intent
If Congress evidences a clear intent to preempt state law, federal law preempts state law. Here,
(ex. Immigration and bankruptcy law “did congress intend to occupy the field?”
Supremacy Clause - Foreign Commerce
The regulation of foreign commerce is exclusively a federal power - states cannot place a labeling requirement on foreign goods. Here,
10th Amendment
All powers NOT granted to the federal government, nor prohibited to the states, are reserved to the states or the people. States have police power to enact laws for the health, safety, and welfare of its citizens so long as the laws do not conflict with federal law and interstate commerce. Congress can induce state action by putting strings on grants, so long as the conditions are stated and they relate to the purposes of the spending program. Here,
Dormant Commerce Clause
The state or local laws that place an undue burden on out-of-state commerce to protect local economic interests are almost always unconstitutional. This is because of the implied negative implications of the Commerce Clause. Discrimination can appear on the face of the law, or it can be discriminatory in its impact. Here,
DCC - Facial Discrimination
If a law discriminates against out of state competition in its face, then the law is invalid unless it furthers an important non-economic government purpose AND there is no less-discriminatory alternative. Here,
Narrow Exception: State is acting as a market participant or Congressional approval.
DCC - Non-Facial Discrimination
If the law does NOT facially discriminate against out of state competition, then it will violate the DCC if 1) the law burdens interstate commerce and 2) its burden on commerce exceeds its benefits. Here,
Privileges and Immunities Clause of Article IV (always raise with DCC)
No state may deny citizens of other states the privileges and immunities it affords its own citizens. If a state law discriminates against out of staters regarding their ability to earn their livelihood (economic interest or fundamental rights) then the law is unconstitutional, unless it is necessary to achieve an important government interest. Corporations and aliens are NOT protected by this clause. Here,
Privileges and Immunities Clause of 14th Amendment
States may not deny their citizens the privileges or immunities of national citizenship (right to interstate travel). Here,
Full Faith and Credit
A judgment from one state court is entitled to full faith and credit in other state courts. This clause applies only if 1) the court that rendered the judgment had jurisdiction over the parties, 2) the judgment was on the merits, and 3) the judgment was final. Here,
Individual Rights: State Action (ALWAYS raise 1st)
The individual rights protected by the Constitution apply to state action, not private conduct. State action applies to all governments and government officials at all levels. The two situations where private conduct must comply with the constitution are Public Function activities and Government Entanglement situations. Here,
Individual Rights: State Action - Public Function
Activities that are traditionally under the exclusive control of the state are state action no matter who performs them. Here,
(e.g. running a town, conducting an election)
Individual Rights: State Action - Significant Gov Entanglement
State action exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. Here,
(e.g. enforcing racially discriminator neighborhood CCRs through the court, BUT gov subsidy not sufficient for entanglement)
1st Amendment Freedoms: Speech
1A prohibits congress from abridging the freedom of speech. This prohibition is applicable to the states through the 14th A. Here,
1A Speech - Facial Challenge: Prior Restraint
A PR restricts speech before it occurs, rather than punish it afterwards. The G must show some special societal harm would result if the speech were allowed to go forward. To be valid, a system for prior restraint must provide the following procedural safeguards: 1) standards must be narrowly drawn, reasonable, and definite, 2) an injunction must promptly be sought, and 3) there must be prompt and final determination of the validity of the restraint. Here,
1A Speech - Facial Challenge: Overbreadth
A law is overbroad if the law regulates both protected and unprotected speech. Here,
1A Speech - Facial Challenge: Vagueness
A law is vague if a reasonable person cannot tell what speech is prohibited and what is allowed. Here,
1A Speech - Facial Challenge: Unfettered Discretion
A regulation cannot give officials unfettered discretion over speech issues. There must be defined standards for applying the law. If a statute gives unbridled discretion, then it is void on its face and the speaker need not even apply for a permit. Here,
1A Speech - Content Based Regulation
Restrictions on the content of speech must be necessary to achieve a compelling government interest (strict scrutiny). However, there are certain types of speech that re not protected under 1A. Here,
1A Speech - Content Based Regulation: Obscenity Exception
G may regulate obscenity. Speech is obscene if it : 1) appeals to the prurient (unwholesome) interest in sex (community standard), 2) is patently offensive (community standard), and 3) lacks serious scientific, literary, artistic, or political value (national standard). SLAP. Here,
Obscenity - Child Pornography
To protect minors, the G may prohibit the possession and sale of child pornography. Here,
Obscenity - Zoning
G may use zoning to regulate obscenity-type speech or conduct. Here,
1A Speech - Content Based Regulation: Commercial Speech Exception
Commercial speech that is false or misleading or concerns illegal activity is unprotected commercial speech and may be regulated. Here,
Otherwise, commercial speech has only limited 1A protection. For G to limit commercial speech, it must directly advance a substantial G interest, and be narrowly tailored to serve that purpose. Here,
1A Speech - Content Based Regulation: Incitement Exception
G may punish speech if there is a substantial likelihood the speech will bring about imminent illegal activity and 2) the speech is aimed at causing imminent illegality. Here,
NOTE: very difficult to satisfy. It must be very narrowly tailored.
1A Speech - Content Based Regulation: Fighting Words Exception
G may punish speech if it is likely to cause an immediate violent response against the speaker. Here,
NOTE: Fighting words statutes are unconstitutionally vague and overbroad.
1A Speech - Content Neutral Regulation (Time,Place,Manner)
A content neutral regulation does not forbid communication of specific ideas, but rather regulates the conduct associated with speaking such as the time, place or manner of speech. To determine the appropriate test, we must first determine the forum. Here,
1A Speech - Content Neutral Regulation: Public Forum
Public forums are G property that the G is constitutionally required to make available for speech. To regulate speech in a public forum, the regulation must be 1) content neutral, 2) narrowly tailored to serve an important G interest, and 3) leave open alternative means of communication. Here,
1A Speech - Content Neutral Regulation: Designated Public Forum
A DPF is public property not traditionally open to speech related activities, but which the G has held open for such activities in the past, such as a public classroom. To regulate speech in a DPF, the standard is the same as a public forum. Here,
1A Speech - Content Neutral Regulation: Limited Public Forum
A LPF is a G property opened up for expressive activities on a particular topic, such as a school gymnasium for a debate. To regulate speech in a LPF, the regulation must be 1) viewpoint neutral and 2) rationally related to a legitimate government interest. Here,
1A Speech - Content Neutral Regulation: Non-Public Forum
NPF are properties that are not open to the public, such as military bases, sidewalks outside post offices, and prisons. To regulate speech in a NPF, the regulation must be 1) viewpoint neutral and 2) reasonably related to a legitimate government purpose. Here,
1A Speech - Content Neutral Regulation: Private Property
There is no 1A right of free speech on private property. Here,
1A Speech - Symbolic Speech Exception
Speech can also be symbolic acts undertaken to communicate an idea. The G may regulate symbolic speech so long as it has 1) an important interest in the regulation that 2) is independent of the speech and 3) the limitation on the speech is not greater than necessary. Here,
1A Freedom: Association
The G may not prohibit or punish group membership unless the law meets strict scrutiny. Here,
Freedom of Association: Laws Criminalizing Membership
The G must prove that the D 1) actively affiliated with a group involved with illegal activities, 2) had knowledge of the groups illegal activities, and 3) acted with the specific intent of furthering those activities. Here,
Freedom of Association: Small Groups
Small intimate groups have ABSOLUTE freedom of association. Here,
1A Freedom: Religion
The 1A prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the 14th A.
Religion - Establishment Clause
The establishment clause prohibits the G from enacting laws respecting the establishment of religion.
Establishment Clause - Sect Preference
If a law prefers one sect over another, it is invalid unless the G can show that is is necessary to promote a compelling interest. Here,
Establishment Clause - No Sect Preference LEMON TEST
If a law does not involve sect preference, it is valid ONLY if it 1) has a secular purpose, 2) has a primary effect that neither advances nor inhibits religions, and 3) does not produce excessive governmental entanglement with religion. Here,
Lemon Test - Secular Purpose
A law must have a purpose that is not based on faith or religion. Here,
Lemon Test - Secular Effect
A law’s primary effect must neither advance nor inhibit religion. Here,
Lemon Test - Excessive Entanglement
A law must not excessively entangle the G and religion. Here,
Religion - Free Exercise Clause
The FEC prohibits G from punishing someone on the basis of her religious belief. Here,
Free Exercise Clause - Strict Srutiny
Technically, the G may impose a burden on someone baed on his religion if it is necessary to achieve a compelling interest. However, the USSC has NEVER found an interest so compelling that is justifies such action. Here,
Free Exercise Clause - General Applicability
A law of general applicability, which incidentally burdens religious practices, will not be subject to invalidation. The FEC cannot be used to challenge a G regulation unless the regulation was specifically designed to interfere with religion. Here,
Free Exercise Clause - General Applicability: Unemployment Benefits
The G cannot refuse unemployment benefits if the person quit their job for religious reasons. Here,
5A Equal Protection Clause
The EQP clause of the 5th A is applied to the states by the 14th A. It prohibits the G from unreasonably treating similarly situated people in a dissimilar manner. Whether discrimination is reasonable under the Constitution depends on the class of person: Suspect, Quasi-Suspect, or Non-Suspect. Classification can be on the face of the law, or if it is facially neutral, there must be a showing of discriminatory intent and impact. Here,
5th A EQP - Suspect Class (Strict Scrutiny)
A suspect class includes race, alienage, or national origin. Whenever there is a suspect class being discriminated against, the court will apply strict scrutiny, which requires that the law be necessary to achieve a compelling government interest. Here,
Suspect Class (Strict Scrutiny) - Affirmative Action
G action that favors a suspect class is subject to the same strict scrutiny standards as is G action that discriminates against the suspect class. Here,
Suspect Class (Strict Scrutiny) - Remedying Past Discrimination
The G has a compelling interest in remedying past discrimination against racial or ethnic groups. However, the past discrimination must have been persistent and readily identifiable, not just a general past “societal discrimination”. Here,
Suspect Class (Strict Scrutiny) - Diversity in Public Schools and Universities
Diversity in public schools is NOT a compelling government interest, however, a diverse student body is a compelling G interest with regards to colleges and universities. Admissions officers may consider race as a FACTOR, but may not impose a quota or a “plus point” system based on a student’s race or ethnicity. Here,
Suspect Class (Strict Scrutiny) - Voting Districts
Race can be considered when drawing voting districts, but CANNOT be the predominate factor. Here,
5th A EQP - Quasi-Suspect Class (Intermediate Scrutiny)
A QSC includes gender, illegitimacy, and undocumented alien children. Whenever there is a quasi-suspect class being discriminated against, the court will apply intermediate scrutiny test which requires the law to be substantially related to an important government interest and there is an exceedingly persuasive justification (with gender). Here,
5th A EQP - Non-Suspect Class (Rational Basis)
A non-suspect class is all classes that do not involve race, national origin, ethnicity, gender, or legitimacy. Whenever there is a non-suspect class being discriminated against, the court will apply the rational basis test which requires the regulations be rationally related to a legitimate government purpose. The burden is on the challenger. Here,
Procedural Due Process (Has G deprived citizen of life, liberty, or property?)
PDP protects the rights of individuals by requiring the G to conduct a fair procedure/process (notice and a hearing) before depriving a citizen of life, liberty, or property (“entitlement”). Here,
E.g. terminating G benefits, separating child from parents, punitive damage awards, etc.
Procedural Due Process - Fair Process
The type and extend of required procedures are determined by a three part balancing test that weighs 1) the importance of the interest to the individual, 2) the ability of additional procedures to increase the accuracy of the fact findings, AGAINST 3) the G’s interests. Here,
Procedural Due Process - Waiver
Due process rights may be waived so long as the waiver is voluntary and made knowingly. Here,
Substantive Due Process
SDP protects rights of ALL persons engaged in some activity by requiring the government to show an adequate reason for taking away life, liberty, or property. The DPC of the 5th A applies to the federal G, whereas the DPC of the 14th A applies to state and local Gs. Here,
SDP - Fundamental Rights - Strict Scrutiny
Fundamental rights include travel, voting, privacy (procreation), parenting, marriage (contraception), and First Amendment. The burden is on the government to show that the law is necessary to achieve a compelling government purpose. Here,
SDP - Right to Vote
The right to vote is a fundamental right. Restrictions on the basis of residence, age, and citizenship are invalid unless they can pass strict scrutiny.
SDP - Right to Vote: Residency Requirement
Reasonable time periods of residence are valid, so long as they are under 30 days. Here,
SDP - Right to Vote: Property Ownership
A restriction on voting based on property ownership is usually invalid. Here,
SDP - Right to Vote: Poll Taxes
Poll taxes are unconstitutional. Here,
SDP - Right to Travel
An individual has a fundamental right to migrate from state to state and be treated equally after moving into a new state. Here,
International travel is NOT a fundamental right, and a rational basis standard applies to all international travel regulations. Here
SDP - Privacy Rights (CAMPERS)
Various privacy rights including contraception, abortion, marriage, procreation, abortion, education of children, relations with family members are fundamental rights subject to strict scrutiny. Here,
SDP - Privacy - Contraceptives
A state may NOT prohibit the distribution of non-medical contraceptives to adults. Here,
SDP - Privacy - Abortion
Abortion is a fundamental right, however, G regulation is subject to different tests depending on the viability of the fetus.
SDP - Privacy - Abortion: Pre-Viability (Undue Burden Test)
The G may not prohibit abortion before the fetus is viable. However, it may regulate abortion so long as the regulation does not place an “undue burden” on the mother. Here,
SDP - Privacy - Abortion: Post-Viability
The G may prohibit abortion after the fetus is viable unless the mother’s health is threatened. Here,
SDP - Privacy - Marriage
The right to marry is a fundamental right, but only between a man and woman. Here,
SDP - Privacy - Procreation
The right to have as many children as a person chooses. Here,
SDP - Privacy - Education/Care of Children
Parents have a fundamental right to make decisions concerning the are, custody, and control of their children. Here,
SDP - Privacy - Relations w/Family
Regulations that prevent family members from living together are invalid. Here,
SDP - Privacy - Sexual Conduct
Adults have a fundamental right to private consensual sexual conduct. Here,
Economic Liberties
Non-fundamental rights are typically economic or social rights. The burden is on the challenger to show that the law is not rationally related to a legitimate government purpose. Here,
Taking Clause
The G may take private property for public use if the G pays the owner/occupant “just compensation”
Taking Clause - Possessory Taking
Actual or physical appropriation of property will almost always amount to a taking, unless it is an emergency situation. Here,
Taking Clause - Regulatory Taking
If a regulation denies the landowner of ALL economic use of his land then the regulation amounts to a taking. Regulations that merely decrease the value of the property do not amount to a taking if they leave an economically viable use of the property. Here,
Takings Clause - Regulatory Taking: Moratoriums
Temporarily denying an owner of all economic use of property does NOT constitute a per se taking. Instead, the court will carefully examine and weigh all the relevant circumstances to determine whether “fairness and justice” require just compensation. Here,
Takings Clause - Public Use
The G is justified in its taking so long as the G acts out of a reasonable belief that its action will benefit the public. Here,
Takings Clause - Just Compensation
The G must pay fair market value for any property taken through eminent domain. The compensation measured in the hands of the owner, not as to the benefit the G will receive. Here,
Contract Clause
The contract clause prohibits STATE AND LOCAL GOVERNMENTS from enacting any law that retroactively impairs current contract rights. Here, (not federal government)
Contracts Clause - Private Contracts (Intermediate Scrutiny)
State laws that substantially impair an existing private contract is invalid unless the law: 1) serves an important and legitimate public interest and 2) is narrowly tailored to promote that interest. Here,
Contract Clause - Public Contracts (Strict Scrutiny)
Laws that impair a K to which the state is a party will receive SS, especially if the legislation reduces the contractual burdens on the state. Here,
