Constitutional Law Flashcards
Standing
1) injury in fact; 2) causation; 3) redressability
Exceptions to no third party standing
1) close relationship; 2) allowed if third party unlikely to be able to assert own rights; 3) organizational standing (note plaintiff must independently meet all other standing requirements)
Organizational standing
1) members have standing; 2) interests germane to organization’s purpose; 3) neither claim nor relief requires participation of individual members
Generalized grievances
No. Plaintiff cannot be suing solely as citizen or taxpayer
Exception to prohibition of generalized grievances
Taxpayers have standing to challenge expenditures pursuant to fed statutes as violating Establishment Clause
Ripeness
1) hardship that will be suffered without preenforcement review; 2) fitness of issues and the record for judicial review.
Mootness
If events after filing end plaintiff’s injury then case dismissed as moot (live controversy at all stages of review)
Exceptions to mootness
1) wrong capable of repetition but evading review; 2) voluntary cessation and free to resume at any time; 3) class action suits (so long as at least one member still has live controversy, ok)
Political question doctrine
1) republican form of government; 2) challenges to President’s conduct in foreign policy; 3) challenges to impeachment and removal process; 4) challenges to partisan gerrymandering
Supreme Court review without writ of cert
1) appeals for three judge district court panels; 2) original and exclusive jx for suits between state governments
Final judgment rule
SCOTUS may hear cases only after there’s been final judgment of highest state court/fed ct. of appeal, or 3 judge fed district court; generally no interlocutory review
Independent and adequate state law ground of decision
If state court decision rests on two grounds, one state one fed, if SCOTUS reversal of fed law ground wouldn’t change outcome in case, SCOTUS can’t hear it
Can federal courts and state courts hear suits against state governments?
no
Sovereign immunity (11th Amendment)
Bars suits against: 1) states in fed court; 2) states in state courts or fed agencies
Exceptions to sovereign immunity
1) Waiver (explicit); 2) states sued pursuant to section 5 of 14th Amendment (only, no other Constitutional provisions); 3) fed government sues state governments; 4) bankruptcy proceedings
Suits against state officers
allowed. Can be sued for injunctive relief and money damages (so long as paid out of own pockets and not from state treasury that will be paying retroactive damages)
Abstention
Fed courts may not enjoin pending state court proceedings
Congress’s authority to act
Must be express or implied power (no general police power but can tax/spend for police power and can legislate under exceptions to police power - military, Indian reservations, fed land/territories, D.C.)
Necessary and proper clause
Congress may make all laws necessary and proper to carry out authority, ALWAYS attached to other Constitutional provisions
Taxing and spending for general welfare
Congress can act
Congressional Commerce Power
1) regulate channels of interstate commerce; 2) regulate instrumentalities of interstate commerce and persons or things in interstate commerce; 3) may regulate economic activities that have substantial effect on interstate commerce (in area of non-economic activity, a substantial effect cannot be based on cumulative impact)
Tenth Amendment
Limits Congressional powers - all powers not granted to U.S. nor prohibited to states, are reserved to states or people
Can Congress compel state regulatory or legislative action?
No (e.g., conscripting state officials), but CAN induce action by putting strings on grants, so long as conditions are expressly stated and related to the purpose of the spending program (can’t be unduly coercive)
Can Congress prohibit harmful commercial activity by state governments?
yes
Congress’s power under section 5 of 14th Amendment
Can’t create new rights or expand scope of rights; can act to prevent or remedy violations of rights recognized by courts and laws must be proportionate and congruent to remedying proven violations (narrowly tailored)
Limits on Congressional delegation of powers
none on ability to delegate legislative power; legislative/line item vetoes unconstitutional (need bicameralism and presentment); may not delegate executive power to itself or officers
Executive foreign policy power
1) enter into treaties with advice and consent of Senate; 2) make executive agreements w/o Senate input; 3) broad powers as Commander-in-Chief to use American troops in foreign countries even if not necessarily military in nature (e.g., humanitarian aid)
Executive domestic affairs power
1) appointment power (ambassadors, fed judges, officers of U.S. - Congress can vest appointment of inferior officers in President, heads of departments or lower fed courts, can’t give itself or officers appointment power); 2) removal power (unless removal limited by statute, President may fire any executive branch office); 3) Executive privilege (may yield to other important governmental interests); 4) Pardon power over those accused of or convicted of federal crimes
Ability of Congress to limit removal of executive branch officers
1) must be an office where independence from President is desirable; and 2) Congress cannot prohibit removal, can only limit removal to showing good cause
Impeachment of POTUS, VPOTUS, federal judges/officers
impeached and removed from office for treason, bribery, high crimes and misdemeanors. Impeachment by majority of House (doesn’t remove from office); conviction by 2/3 vote in Senate
Presidential immunity from civil suits
Absolute immunity from civil suits for money damages for actions while in office, no immunity for actions that occurred prior to taking office
Preemption
Supremacy Clause provides Constitution and laws/treaties made pursuant to it are supreme law of land and preempt state law
Express preemption
Fed statute expressly says it’s exclusive in an area, then state/local laws preempted even if they don’t directly conflict
Implied preemption (even if fed statute silent)
1) if fed/state laws mutually exclusive, fed law preempts; 2) if state law impedes achievement of fed objective, fed law preempts; 3) if Congress evidences clear intent to preempt state law (wholly occupies field) - fed law preempts
Intergovernmental immunity
States may not tax or regulate federal government activity
Dormant Commerce Clause (Negative implication of Commerce Clause)
State/local law unconstitutional if it places undue burden on interstate commerce
Privileges and Immunities Clause of Article IV
No state may deprive other states’ citizens privileges and immunities it gives its own citizens (only applies when state discriminates against out of staters))
Privileges and Immunities Clause of 14th Amendment
Only applies to right to travel
When does a state law discriminate between in state and out of state?
When does not apply the same way to in state and out of state residents
Analysis if state law does not discriminate between in state and out of state
1) Privileges and Immunities of article IV doesn’t apply; 2) If law burdens interstate commerce, it violates dormant commerce clause if burdens exceed benefits
Analysis if state law discriminates between in state and out of state
1) If law burdens interstate commerce then dormant commerce clause violated unless necessary to achieve important government purpose (bop on government, exception of Congressional approval and market participant); 2) If law discriminates against out of staters with regard to ability to earn livelihood (or civil liberties/important economic activities), violates P&I clause of Article IV, unless necessary to achieve important government purpose. Corps/aliens can’t use P&I clause.
State taxation of interstate commerce
1) may not use tax systems to help in state business; 2) may only tax activities if substantial nexus to state; 3) state taxation of interstate commerce must be fairly apportioned (i.e., fairly connected to in state activity)
Full faith and credit
courts in one state must give full faith and credit to judgments of courts in another state so long as: 1) rendering court had jx; 2) on merits; 3) final
Congress’s power under the 13th Amendment
Can be used to prohibit private race discrimination
Applying Constitutional norms to private conduct
13th Amendment to prohibit private race discrimination; commerce power (e.g., Ollie’s BBQ); canNOT use section 5 of 14th Amendment to regulate private behavior
Situations where private conduct must comply with Constitution
1) Private entity is performing a task traditionally, exclusively done by government (public function exception); 2) government affirmatively authorizes, encourages, or facilitates unconstitutional activity (entanglement; ex - courts can’t enforce racially restrictive covenants; government leases premises to restaurant that racially discriminates; state provides books to schools that racially discriminate; private entity regulates sports within a state; no state action where: private school funded < 99% by government fires teacher based on speech; NCAA orders suspension of basketball coach at state university; private club with liquor license from state that racially discriminates)
Application of Bill of Rights
Only applies to fed government
How are the Bill of Rights applied to state/local government?
Incorporation through Due Process Clause of 14th Amendment
Exception to incorporation of bill of rights to states through 14th Amendment
3rd A right to not have soldier in house; 5th A right to grand jury indictment in criminal cases; 7th A right to jury trial in civil cases; 8th A right against excessive fines
Levels of Scrutiny
Rational basis, intermediate, strict
Rational Basis test
bop on plaintiff; law upheld if rationally related to any legitimate governmental interest
Intermediate Scrutiny
bop probably on government; law upheld if substantially related to important governmental purpose (only look at actual purpose); means must be narrowly tailored to meet objective
Strict Scrutiny
bop on government; law upheld if necessary to achieve a compelling governmental purpose (has to be crucia/vital, only look at actual purpose); means must be necessary and narrowly tailored to meet goal…least intrusive means. Government usually loses.
Procedural due process
procedures that govern government action taking away life, liberty, property (what kinds of notice)
Substantive due process
whether government has adequate reason for taking away L/L/P (primarily economic liberty and privacy)
Equal protection
Whether government’s differences in treatment of people is justified
When is there a deprivation of liberty?
Loss of significant freedom provided by Constitution or statute
4 notes about deprivation of liberty
1) except for emergency, before adult institutionalization, need notice and a hearing; 2) when parent institutionalizes a child, need screening by neutral fact finder (e.g., doctor); 3) harm to reputation by itself not loss of liberty; 4) prisoners rarely have liberty rights
When is there a deprivation of property?
if there is an entitlement and that entitlement not fulfilled
Standard for government action depriving due process
Generally must be intentional or at least reckless action; however, in emergencies government liable only if action “shocks the conscience”
Deprivation of due process if government fails to protect people from privately inflicted harms?
Generally, no…only if person is in government custody or government literally creates danger
Test for procedures required under procedural d.p.
Balance: 1) importance of interest to individual; 2) ability of additional procedures to increase accuracy of fact-finding; 3) government’s interests
Types of takings
1) possessory taking - government confiscation or physical occupation (no matter how small); 2) regulatory taking - reg leaves no reasonable economically viable use
Takings clause
Government can take private property for public use if it provides just compensation; no level of scrutiny, separate test
Types of takings
1) possessory taking - government confiscation or physical occupation (no matter how small); 2) regulatory taking - reg leaves no reasonable economically viable use
Takings clause
Government can take private property for public use if it provides just compensation; no level of scrutiny, separate test
When are government conditions on development of property not a taking?
When justified by benefit roughly proportionate to burden imposed…otherwise, taking
What is public use?
Government can take only for public use; taking for public use if government acts based on reasonable belief that taking for public benefit (usually any taking satisfies this)
What is just compensation?
Measured in terms of loss to owner in reasonable market value terms. Gains to taker irrelevant.
Contracts clause
no state or local government may impair the obligations of existing contracts; only applies to state/local government, not the fed
Level of scrutiny for right to privacy
Strict, protected under substantive due process
Rights under rights to privacy falling under strict scrutiny
1) right to marry; 2) right to procreate; 3) right to custody of one’s children (state may, however, create presumption that married woman’s husband is father of child); 4) right to keep family together (must be related); 5) right to control upbringing of one’s children; 6) right to purchase and use contraceptives; 7) right to engage in private homosexual activity; 8) right to refuse medical treatment (may require clear and convincing evidence that person wanted treatment terminated and may prevent family members from terminating for each other NOTE…NO constitutional right to physician assisted death)
Rights under rights to privacy falling under strict scrutiny
1) right to marry; 2) right to procreate; 3) right to custody of one’s children (state may, however, create presumption that married woman’s husband is father of child); 4) right to keep family together (must be related); 5) right to control upbringing of one’s children; 6) right to purchase and use contraceptives; 7) right to engage in private homosexual activity) NOTE…NO constitutional right to physician assisted death
Right to abortion
protected under right to privacy, but different standard of review: 1) prior to viability - states may not prohibit but may regulate so long as don’t create undue burden on ability to obtain abortion; 2) after viability - states my prohibit abortions unless necessary to protect woman’s life or health.
Government duty to subsidize abortions/provide in public hospitals
none
Spousal consent/notification laws
unconstitutional
Parental notice/consent laws
State may require parental notice/consent for unmarried minor’s abortion so long as it creates an alternative procedure where minor can go before a judge who can approve abortion by finding 1) in minor’s best interests or 2) minor is mature enough to decide herself
Level of scrutiny related to 2nd Amendment right to bear arms
None articulated but states may regulate where/who/types
Right to travel level of scrutiny
Fundamental right under 14th A/P&I clause - strict scrutiny
Durational residency requirements
Must meet strict scrutiny under right to travel - where person must live in jx for certain amount of time prior to receiving benefits
Restrictions on foreign travel scrutiny
rational basis (a.k.a. international travel)
Right to vote levels of scrutiny
Laws that deny some citizens right to vote must meet strict scrutiny (under both EP and Fundamental right of DP), but regulations of electoral process to prevent fraud only need to be on balance desireable
Is there a fundamental right to education?
No
Level of scrutiny for classification on race/national origin
Strict scrutiny
Proving existence of classification based on race/national origin
1) classification exists on face of the law or 2) if facially neutral, must demonstrate both discriminatory impact and discriminatory intent
Scrutiny for classifications benefiting minorities
strict scrutiny
Numerical set-asides of minorities
Require clear proof of past discrimination
How may educational institutions use race for applications?
Quota/add points = no. As one factor = yes
Level of scrutiny for public school systems using race as a factor for assigning students to schools
strict scrutiny
Level of scrutiny for gender classifications
intermediate (adding on requirement of “exceedingly persuasive justification”
Proving existence of gender classification
1) exists on the face of the law; 2) facially neutral - then must prove discriminatory impact and intent
Scrutiny for gender classifications benefiting women
intermediate; based on role stereotypes not allowed, but ones designed to remedy past discrimination and differences in opportunity will be allowed
Level of scrutiny for alienage classifications
Strict scrutiny, except: 1) alienage classifications that concern self-government and democratic process (e.g., voting, jury, police officer, teacher at primary/secondary school, probation officer) - rational basis; 2) Congressional discrimination against aliens - rational basis; 3) discrimination against undocumented alien children - seemingly intermediate
Level of scrutiny for discrimination against non-marital kids
intermediate; laws denying benefit to all non-marital kids, but grant to all marital children always unconstitutional; benefit to some marital kids but not non-marital - intermediate (interest in preventing fraud)
When is rational basis review used?
Any other law not previously covered (e.g., age, disability, wealth discrimination as well as economic regs and sexual orientation discrimination)
Types of content-based restrictions on speech
1) subject matter restrictions (application of law depends on topic of message - e.g., protest allowed if labor related, otherwise not); 2) viewpoint restrictions (application of law depends on ideology of message - e.g., pro-war allowed, anti-war not)
Level of scrutiny for content base regs
strict
What is a content neutral law regulating speech?
if law applies to all speech the same no matter the content
Level of scrutiny for content neutral regulation
intermediate
Prior restraint
Judicial or administrative system for stopping speech before it occurs
Level of scrutiny for court orders suppressing speech (as prior restraint)
strict scrutiny, however, procedurally proper court orders must be complied with until vacated or overturned…person who violates it barred from later challenging it
Ability of government to require license for speech (as prior restraint)
only if important reason for licensing and clear criteria leaving almost no discretion to licensing authority. Must contain procedural safeguards such as prompt determination of requests for licenses and judicial review
Vagueness
law unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
Overbreadth
law unconstitutionally overbroad if it regulates substantially more speech than constitution allows to be regulated
Fighting word laws
Unconstitutionally vague and overbroad
Symbolic speech
conduct that communicates
When can government regulate symbolic speech?
Government can regulate such conduct if it has an important interest unrelated to suppression of message and if impact on communication no greater than necessary to achieve the government’s purpose
Is anonymous speech protected?
yes
Protection of government speech
Cannot be challenged as violating First Amendment
Regulation of political donations
contribution limits to one candidate ok, expenditure limits not
Is burning a flag protected?
yes
Draft card burning protected?
no
Nude dancing protected?
no
burning a cross protected?
protected unless done with intent to threaten
Speech not/less protected under 1st A
1) incitement of illegal activity; 2) obscenity and sexually oriented speech; 3) commercial speech; 4) defamation
What is obscene/sexually oriented non-protected speech?
1) appeals to prurient interest (shameful or morbid interest in sex) - community std; 2) patently offensive - community std; 3) taken as whole, lacks serious redeeming artistic, literary, political, or scientific value - national std
What is obscene/sexually oriented non-protected speech?
1) prurient interest
Can government use zoning ordinances to regulate location of adult bookstores and movie theaters?
yes
Ability to regulate child porn
may be completely banned, even if not obscene. Child porn = children used in production of material (if CGI or adults dressed as kids, then not porn)
Ability to regulate private possession of obscene materials
government may not punish private possession of obscene materials but may punish private possession of child porn
Is profane and indecent speech protected under 1st A?
generally, yes. Exceptions: over broadcast media; in schools
Types of commercial speech that can be prohibited or are not protected
1) advertising for illegal activity, and false and deceptive ads not protected; 2) true commercial speech that inherently risks deception can be prohibited
Level of scrutiny for regulation of commercial speech
intermediate scrutiny (must be narrowly tailored but doesn’t need to be least restrictive alternative)
Defamation of public official or one running for public office, or a public figure
falsity of statement plus actual malice. Malice is either defendant knew false or reckless
Defamation of private figure and matter of public concern
falsity of statement plus at least negligence on part of defendant
Can government punish for truthful reporting of information lawfully obtained from government?
no, even if media broadcasts a tape of illegally intercepted call if media didn’t participate in illegality and it involves matter of public importance
Is speech by government employees on the job in performance of duties protected?
no
Government restrictions based on content of speech must meet what scrutiny standard?
strict
Places available for speech
public forums; designated public forums; limited public forums; non-public forums; private property
Government reg of speech in public forums
must be subject matter and viewpoint neutral AND regs must be a time, place or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication (need not be least restrictive alternative but must be narrowly tailored - intermediate scrutiny), city officials cannot have discretion to set permit fees for public demonstrations; if not neutral then strict scrutiny must be met
Public forum
government properties that government constitutionally required to make available for speech. E.g., sidewalks and parks
Designated public forums
government properties that government could close to speech, but chooses to open to speech. E.g., public school facilities on evenings and weekends
Government reg of speech in designated public forums
same as public forums
Non-public forums
government properties that government constitutionally can and does close to speech (e.g., military bases, areas outside jails, sidewalks on post office property, airports)
Government reg of speech in non-public forums
Can regulate speech so long as regulation is reasonable and viewpoint neutral
First amendment right of access to private property for speech
none
Scrutiny of laws that prohibit or punish group membership (freedom of association)
strict scrutiny
To punish membership in a group it must be proven that the person:
1) actively affiliated with group; 2) knowing its illegal activities; 3) with specific intent of furthering those activities
Level of scrutiny for laws that require disclosure of group membership
Where such disclosure would chill association must meet strict scrutiny
Laws that prohibit a group from discriminating are:
constitutional unless interfere with intimate association or expressive activity (e.g., dinner party or member of Nazi party)
Can free exercise clause be used to challenge neutral law of general applicability?
no (e.g., peyote)
Can government deny benefits to individuals who quit jobs for religious reasons?
no
Establishment clause
Government can make no law establishing a religion
Test for laws under establishment clause (Lemon Test)
(SEX) - 1) must be a SECULAR purpose for law; 2) primary EFFECT must be neither to advance nor inhibit religion; 3) can’t be eXcessive entanglement with religion
Level of scrutiny for government discrimination of religious speech or among religions
Strict
Constitutionality of government sponsored religious activity in public schools
Unconstitutional BUT religious student and community groups must have same access to school facilities as non-religious groups AND government may give assistance to parochial schools so long as not used for religious instruction, also may provide parents with vouchers to use in parochial schools
