Constitutional--other Flashcards
what does the ban on ex post facto laws ban?
Constitution bans ex post facto laws in both state and federal gov
Prohibit enactment of retroactive criminal laws that:
- criminalize previously legal conduct
- increase punishment
- eliminate defenses
- decrease P’s burden of proof
How to decide if a CIVIL ex post facto law is allowable
Ex post facto ban generally does not apply to civil laws.
However, a civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.
factors:
- imposes an affirmative disability or restraint (e.g., imprisonment) (not seen here)
- has historically been regarded as punishment (e.g., public shaming)
- promotes the traditional aims of punishment (e.g., retribution)
* *4. is rationally related to its nonpunitive purpose** (this is the most important)
can you sue a judge if they screw up during your case?
generally no.
Judges possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—
UNLESS the court clearly lacked subject-matter jurisdiction at the time the action was taken.
This ensures that judges are free to issue decisions during judicial proceedings without fear that they will later be personally liable for them.
field preemption
when Congress intended to completely occupy a particular field by legislating so thoroughly that it left no room for supplementary state regulations
tenth amendement
reserves to the states all powers that the Constitution does not expressly grant to the federal government—including the police power to enact and enforce laws that protect the public’s health, safety, and welfare.
4 types of preemption of state law (1 and 3)
Express preemption: C or federal law explicitly bars state regulation.
Implied preemption:
Field: when there is no room for state regulation because the fed gov intended to occupy the whole field with its scheme
Direct Conflict: it is nearly impossible to comply with both laws, OR
Frustrationo of Purpose: the state law frustrates the federal law’s purpose
deprivation of public employment: due process requirements
applies if there was a property right to job: contract, tenure, NOT nonrenewable of K or at will employment
termination:
notice of allegations,
pre-termination opportunity to respond to allegations
post-termination evidentiary hearing
suspension without pay:
notice of allegations of misconduct
prompt post-suspension evidentiary hearing
2 things must consider when reviewing under strict scrutiny
- is there a compelling government interest?
- are there less restrictive means of achieving that interest?
Can the government ban press coverage of a jury trial?
It must pass strict scrutiny, as this is a content regulation on free speech (from the press) about a matter of public significance.
The 6th Amendment makes trials public, so again, must pass the 2 part test under strict scrutiny
when has a regulatory taking occurred?
when the government
(1) substantially restricts the use of private property (based on totality of circumstances) OR
(2) deprives an owner of all economically beneficial use of the property but the owner retains possession of it.
can a civil law be applied retroactively?
So long as it does not affect fundamental right, but instead an ordinary right (like raising S0L as a defense to a civil suit),
it only need pass the rational basis test–rationally related to a legitimate government interest.
can the President send the National Guard into a state without permission from the state’s governor?
If Congress authorizes it! (think Ruby going to school)
Under the militia clauses, Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.
4 part test for commercial speech
(1) the speech must be lawful and not misleading, to get protection from 1A
(2) the statute must serve a substantial governmental interest,
(3) the statute must directly advance that interest, and
(4) the statute must be narrowly tailored.
TPM restrictions on speech must be:
traditional or designated public forum (but not public schools students)
- -content neutral
- -narrowly tailored to service an important government interest (basically strict scrutiny)
- -leave open alternative channels of communication
in nonpublic forum (airports, gov workplaces)
- “rational basis scrutiny plus viewpoint neutrality”
- -viewpoint neutral
- -reasonably related to legitimate govt interest (rational basis scrutiny)
free speech rights in public schools
students do have free speech rights BUT
may be regulated so long as reasonably related to legitimate educational concerns
“rational basis with education”
What happens to a law deemed a prior restraint on speech
prior restraint is stopping speech before it occurs
presumption against such laws
vague or overbroad laws are unC
free speech rights of the press
press has no greater free speech rights than a person.
Maybe publish info that is lawfully obtained and is matter of public concern.
11A says… and how to get around it
State A’s (or foreign) citizens cannot sue State B’s government for $ damages or equitable relief in federal court UNLESS state waives immunity
CAN sue a state official in their job capacity to get an injunction against breaking a federal law (like by enforcing a state law that breaks fed law)
what if gov does something with property that is not a physical occupation OR a total economic loss from a regulation?
Subject to 3-factor balancing test:
- impact of regulation on property owner
- extent reg interferes with reasanable, investment-backed expectations re: use of property, AND
- the character of the regulation: benefits to society, fairness of burdens/benefits to different property owners, or violation of essential attributes property ownership (like right to exclude others)
when may a local government force a developer to submit to conditions in exchange for development permits?
When there is:
- when the conditions substantially advance a legitimate state interest, i.e. essential nexus between legitimate state interests and the conditions imposed on the property owner, AND
- rough proportionality between burden/impact (the burden imposed by the conditions on property owner and the impact of the proposed development).
when gov may constitutionally punish you for associating with a “terrorist” organization (despite freedom of association)
can punish (i.e., deny public employment to or criminally prosecute) persons who:
- are active members of a subversive organization
- know of the organization’s illegal objectives AND
- specifically intend to further those objectives.
3 requirements for standing
injury in fact
causation
redressability
when may a U.S. taxpayer get standing based only on their status as a taxpayer?
- generally no taxpayer standing UNLESS:
- challenging legislation enacted under taxing & spending power AND
- legislation exceeds limits imposed by establishment clause
- (or challenging the amount owed on your own personal taxes)
the political question doctrine prohibits federal courts from hearing a case if…
it presents issues that
(1) are reserved for the executive or legislative branch or
(2) lack judicially manageable standards for resolution.
the court must determine if the plaintiff has standing before addressing the substance of her claim.
when may a federal court decline to hear a dispute? (abstention doctrine)
- unsettled issue of state law in the case that may make fed issue moot
- avoid complex state reg scheme or important state matter
- to keep away from enjoying sate action on:
(1) individual punishment for criminal activity or contempt of court or
(2) imposition of civil fine - To make sure that substantially similar state and fed proceedings are uniform and don’t needlessly duplicate.
what is the ministerial exception?
The Free Exercise Clause protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.
This exception applies to any employee whose primary function is to advance the organization’s religious mission (e.g., pastor, parochial school teacher).
what does the 11thA ban and what are the exceptions?
11A: private parties and foreign governments from suing a state gov in fed court without state’s consent, even for a federal law violation.
• Includes immunity for state officials who violate state law
EXCEPTIONS:
- state’s consent to suit
- 13,14,15A waived immunity (=P, voting violations)
- state official sued for injunctive or declaratory relief
- if damages to be paid personally by state officer
- state official to be sued for prospective (not retroactive) damages that state treas. will pay
NOT IMMUNE: US. state or other state can sue state, can sue local gov, bankruptcy
what might require that a federal curt abstain from hearing a case involving an injunction or declaratory judgment?
The Younger abstention doctrine: if doing so would interfere with a pending state criminal, or particular civil, proceeding that
(1) involves an important state interest (including prosecution of criminals) and
(2) provides an adequate opportunity to litigate federal issues.
“particular” civil” akin to a prosecution (e.g., termination of parental rights) AND
help state court judicial functions (e.g., contempt)
can a state government regulate foreign commerce?
The commerce clause gives Congress plenary (i.e., exclusive) authority to regulate foreign commerce
can courts charge a mandatory fee for appealing one’s criminal conviction?
Not likely. A right to appeal is a fundamental right, and taking that away based on ability to pay is a wealth-based restriction to access that right. It is therefore subject to strict scrutiny. (doesn’t pay for atty though)
“State laws that discriminate against individuals based on wealth are generally subject to rational basis scrutiny. But strict scrutiny will be used when a state law prohibits the exercise of a fundamental right based on an individual’s wealth.”
when must a judge recuse themselves from a case, and what part of the constitution guarantees the right to the recusal?
14A due process (on states) -procedural due process
requires that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property.
A judge must recuse when
(1) the judge has a direct, personal, substantial, pecuniary interest in it or
(2) a serious, objective risk of actual bias exists.
A failure to recuse under these circumstances violates due process.
The USCT can review this action from a state court judge
abstention doctrines (4)
Abstention doctrines are when a federal court will abstain from hearing a state claim
Pullman: Resolution of unsettled state law in state court would moot federal constitutional issue
Burford: Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy & provides timely & adequate judicial review
Colorado River: Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources
Younger: Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims
Examples: Pullman abstention does not apply here since the state law is settled. Burford abstention does not apply because there is no indication that the state’s health insurance scheme is complex. And Colorado River and Younger abstention do not apply since there is no pending state proceeding.
when does mere status as a taxpayer give a person standing to challenge how the government is getting/spending tax money?
A plaintiff-taxpayer has standing to challenge government taxing and spending only under the First Amendment establishment clause
What about laws involving DC?
The enclave clause gives Congress plenary (i.e., exclusive) legislative power over the District of Columbia.
As a result, a federal statute that prohibits the District of Columbia from imposing an income tax on persons who work there but reside elsewhere is likely to be found constitutional.
what is the export clause?
- the C forbids Congress from taxing exports:
- exported goods, which are goods leaving the U.S. and shipped to foreign countries and
- services and activities closely related to the export process.
Can Congress impose a higher income tax on people from State A than state B? How about higher sales taxes or tariffs in certain states?
No, Congress must apportion or apply its tax and spend power mostly equally between states.
It must also show that the tax/tariff etc. is reasonably related to raising revenue
affirmative action analysis
Affirmative action is always subject to strict scrutiny. It may pass when:
- minority set-asides for gov Ks TO remedy that specific gov’s history of discrimination
- race-based school bussing TO remedy past intentional segregation in pub schools
- policies that consider race among several factors for college admissions TO promote diversity in student body for benefit of all
civil forfeiture–what is it? what does PDP require?
gov seizes property allegedly used in political activity
PDP usually requires that gov provide: reas notice of seizure and meaningful opportunity to be heard in front of neutral decisionmaker
EXCPETION: personal property may be seized w/o notice and hearing when:
- serves a significant government interest
- which would be frustrated by advance notice of seizure and
- t performed by the government.
Civil forfeiture: to determine whether real property may be seized by the government prior to providing notice and a hearing, the court must balance three factors
- private interest affected by deprivation (homeowner no place to stay)
- the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards and
- the government’s interest, including the fiscal and administrative burdens that other safeguards would entail
what kind of property must be “taken” to trigger takings considerations?
A taking occurs when the government destroys private property or property rights—including possessory and nonpossessory interests in land and stuff (e.g., easements, liens).
If gov decides to “take” property, what does it have to do?
Under the Fifth Amendment,
a taking must be for a public use (e.g., fighting forest fires), and
the government must justly compensate the owner for the property’s fair market value.
list of powers C grants president exclusively
- nominate principal officers
- veto bills
- prosecute/pardon federal offenses
- communicate/negotiation with foreign governments
- recognize foreign governments (congress cannot override)
- enter executive agreements
does the 10thA grant plenary power to the states to construct their tax systems?
no. It just reserves powers to the states that are not given to the federal government in the Constitution.
“plenary” means “absolute,” and states don’t have plenary power over there tax systems because they still must comply with the Consistution
when is the press shielded from civil liability for publishing unlawfully obtained documents?
1A shields the media from liability for publishing information that was unlawfully obtained by a third party if:
- truthful
- the information involves a matter of public concern and
- the publisher neither obtained it unlawfully nor knows who did.
what are the restrictions on congressional conditions on spending fed funds
Conditions must meet all the following criteria:
- clearly stated & unambiguous
- reasonably related to federal interest in funded program
- do not require states to engage in unconstitutional activity
- do not unduly coerce states into accepting
