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Bar Prep > Essay 10. Constitutional Law > Flashcards

Essay 10. Constitutional Law Flashcards

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1
Q

Issue Overview

Constitutional Law

MEE

A
  1. Justiciability
  2. Legislative Powers
  3. Executive Power
  4. State Powers
  5. Takings & Zoning
  6. Procedural Due Process
  7. Substantive Due Process
  8. Equal Protection
  9. Free Speech
  10. Freedom of Religion
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2
Q

Justiciability
(AKA: Judicial Review)

Constitutional Law

MEE

A
  1. 11th Amendment Limitation
  2. Standing
  3. Ripeness
  4. Mootness
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3
Q

Justiciability

11th Amendment Limitation

Constitutional Law

MEE

A
  • Citizens of one state cannot sue another state in federal court and cannot sue their own state in federal court
  • Abrogation = Congress may expressly repeal state immunity if acting to enforce rights under the 13th, 14th, and 15th Amendments
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4
Q

Justiciability

Standing

Constitutional Law

MEE

A
  1. Individual Standing
  2. Organizational Standing
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5
Q

Justiciability > Standing

Individual Standing

Constitutional Law

MEE

A
  1. Injury in fact
  2. Causation
  3. Redressability
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6
Q

Justiciability > Standing

Organizational Standing

Constitutional Law

MEE

A
  1. Individual members have standing (injury, causation, redressability)
  2. Claim is related to the purpose of the organization
  3. The individual members are not necessary to adjudicate the claim

When can an organization sue in court?

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7
Q

Justiciability

Mootness

Constitutional Law

MEE

A

Must have a live controversy

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8
Q

Justiciability

Ripeness

Constitutional Law

MEE

A

Injurty must have occurred or not be speculative

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9
Q

Legislative Powers

Constitutional Law

MEE

A
  1. Commerce Clause
  2. Spending Power
  3. Delegation of Legislative Power
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10
Q

Legislative Powers

Commercie Clause

Constitutional Law

MEE

A

Congress has the power to regulate interstate commerce:
1. Channels of interstate commerce (e.g., highways, waterways)
2. Instrumentalities of interstate commerce (e.g., planes, trains, automobiles)
3. Activities that have a substantial effect on interstate commerce

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11
Q

Legislative Powers > Commerce Clause

Substantial Effect

Constitutional Law

MEE

A
  • Economic activity is presumed to have a substantial effect
  • Aggregation = economic activity occurring within a state (i.e., intrastate activity) Congress can regulate activity that, in the aggregate, has an effect on interstate commerce
  • Non-economic activity CANNOT be aggregated; the activity itself must have a substantial impact on interstate commerce
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12
Q

Legislative Powers

Spending Power

Constitutional Law

MEE

A
  • Congress can condition federal funds to states and require states to implement certain regulations
  • Permitted as long as the condition is related to the purpose of the funds
  • Condition must not be coercive
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13
Q

Legislative Powers > Spending Power

Commandeering

Constitutional Law

MEE

A

States might claim that Congress is violating the 10th Amendment by forcing the state legislature to pass specific legislation.

NOTE: A valid exercise of the Spending Power does NOT constitute commandeering

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14
Q

Legislative Powers

Delegation of Legislative Power

Constitutional Law

MEE

A

Congress may delegate its powers to an agency as long as it provides reasonably intelligible standards

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15
Q

Executive Powers

Issue Executive Orders

Constitutional Law

MEE

A
  • Domestic Affairs = President has appointment and removal powers, the pardon power, the commander in chief power, and the duty to execute the law
  • Foreign Affairs = President has the power to conduct foreign negotiations, to deploy troops overseas, and to make executive agreements
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16
Q

State Powers

Constitutional Law

MEE

A
  1. Supremacy Clause
  2. Preemption
  3. Privileges and Immunities Clause
  4. 10th Amendment & Commandeering
  5. Dormant Commerce Clause
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17
Q

State Powers

Supremacy Clause

Constitutional Law

MEE

A

If state law conflicts with federal law, the federal law governs

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18
Q

State Powers

Preemption

Constitutional Law

MEE

A
  1. Express Preemption
  2. Implied Preemption
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19
Q

State Powers > Preemption

Express Preemption

Constitutional Law

MEE

A
  • The federal law explicitly states that it is the only law allowed in that area
  • Any state law addressing that issue is invalid
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20
Q

State Powers > Preemption

Implied Preemption

Constitutional Law

MEE

A
  1. Congress passes a federal law intending to “occupy the field”;
  2. The state law conflicts directly with federal law; OR
  3. The state law conflicts indirectly with federal law

NOTE: A state can pass MORE STRINGENT laws than the federal law, so long as they do not conflict

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21
Q

State Powers

Privileges and Immunities Clause

Constitutional Law

MEE

A

Prohibits states from discriminating against nonresidents, unless it is necessary to acheive an important government interest.

NOTE: This protection only applies to individual citizens, NOT corporations or noncitizens

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22
Q

State Powers

10th Amendment & Commandeering

Constitutional Law

MEE

A
  • All powers not expressly given to the federal government are reserved to the states
  • Federal government cannot “commandeer” state legislature and force them to pass regulation
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23
Q

State Powers

Dormant Commerce Clause

Constitutional Law

MEE

A
  • The Commerce Clause enables Congress to regulate interstate commerce
  • Under the Dormant Commerce Clause, a state may not discriminate against out of state commerce or unduly burden interstate commerce
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24
Q

State Powers > Dormant Commerce Clause

Discrimination

Constitutional Law

MEE

A

Must be discriminatory, either on its face or by its impact.

IF a state statute discriminates against out-of-state commerce, the state must show:
1. It has an important state interest; AND
2. There is no other non-discriminatory means available to achieve that interest

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25
Q

State Powers > Dormant Commerce Clause > Discrimination

Market Participant Exception

Constitutional Law

MEE

A

If state is acting as a buyer or seller, it can favor local business

NOTE: Other exceptions include:
1. The traditional government function exception
2. The subsidy exception
3. The congressionally permitted discrimination exception

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26
Q

State Powers > Dormant Commerce Clause

Unduly Burdens Interstate Commerce

Constitutional Law

MEE

A

If a statute is not discriminatory, the law may still be invalid if it causes an “undue burden” on interstate commerce.

A court will balance:
1. The purpose of the statute;
2. The burden on interstate commerce; AND
3. Whether there are less restrictive alternatives

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27
Q

State Action

Constitutional Law

MEE

A
  • The constitution protects against wrongful conduct by the government, not private entities
  • A private entity may be treated as a state actor and subject to the constitution when: 1) carrying out an act or activity traditionally performed by government; OR 2) intwined with state actor
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28
Q

5th Amendment Takings Clause

Constitutional Law

MEE

A

Government may not take private proeprty for public use without just compensation

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29
Q

5th Amendment Takings Clause

Government Action

Constitutional Law

MEE

A
  • Protects from government “taking” of private property
  • Incudes physically taking land and also regualtory takings by rezoning, prohibiting development, etc.
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30
Q

5th Amendment Takings Clause

Private Property

Constitutional Law

MEE

A
  • Usually involves land or other real property
  • Can be other property such as contract and patent rights or trade secrets
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31
Q

5th Amendment Takings Clause

Public Use

Constitutional Law

MEE

A
  • Must be rationally related to a conceivable public purpose
  • Includes health, safety, economic development, etc.
32
Q

5th Amendment Takings Clause

Type of Takings

Constitutional Law

MEE

A
  1. Physical Taking
  2. Regulatory Taking
  3. Exaction
33
Q

5th Amendment Takings Clause > Types of Taking

Physical Taking

Constitutional Law

MEE

A

Government physically takes or occupies the land

34
Q

5th Amendment Takings Clause > Types of Taking

Regulatory Taking

Constitutional Law

MEE

A

A law has the effect of decreasing the value of the property
* Total Taking = the regulation leaves no economically viable use of the property
* Partial Taking = the regulation affects some economic use of the land, but there is still some economic use available

Partial Taking Analysis:
1. Economic Impact = how much value was lost due to the regulation (more loss = more likely to be partial taking)
2. Reasonable Expectations = the owner’s reasonable expectation of return on investment (more investment = more likely to be partial taking)
3. Character of the Regulation = does the regulation impact a few owners or the entire community? (only a few = more likely to be partial taking)

35
Q

5th Amendment Takings Clause > Types of Taking

Exaction

Constitutional Law

MEE

A

Local government may exact (i.e., compel) promises from a developer in exchange for construction permits

Does NOT constitute a taking if there is:
1. An essential nexus between legitimate state interests and the conditions imposed; AND
2. A rough proportionality betwen the burden on the owner and the impact on the community

36
Q

5th Amendment Takings Clause

Just Compensation

Constitutional Law

MEE

A
  • Property owner is entitled to the fair market value of the property at the time of the taking
  • If only a portion has been taken –> owner entitled to compensation for land actually taken and any loss in value of the land still owned
37
Q

5th Amendment Takings Clause

Zoning

Constitutional Law

MEE

A

Local governments have the power to pass zoning ordinances, so long as they are reasonably related to a legitimate government purpose (health, safety, morals, and general welfare)

38
Q

5th Amendment Takings Clause > Zoning

Variance

Constitutional Law

MEE

A
  • May be granted to allow the owner to continue the nonconforming use of the land
  • The owner must show an undue burden if the variance is not granted
39
Q

5th Amendment Takings Clause > Zoning

Takings Clause Claim

Constitutional Law

MEE

A

Must show that the zoning ordinance amounts to a regulatory taking

40
Q

Individual Rights

Constitutional Law

MEE

A
  1. Due Process
  2. Equal Protection Clause
  3. Enabling Clause
41
Q

Individual Rights

Due Process

Constitutional Law

MEE

A
  1. Procedural Due Process
  2. Substantive Due Process
42
Q

Individual Rights > Due Process

Procedural Due Process

Constitutional Law

MEE

A
  • The government shall not deprive a person of life, liberty, or property without due process of law
  • Process includes notice, a hearing, a neutral decisionmaker, and right to an appeal
43
Q

Individual Rights > Due Process > Procedural Due Process

Amount of Process Due - Factors

Constitutional Law

MEE

A
  1. Interest affected = life, liberty (including fundamental rights), or property;
  2. Value of additional safeguards; AND
  3. Burden or cost of additional process
44
Q

Individual Rights > Due Process

Substantive Due Process

Constitutional Law

MEE

A

Whether the government’s action impermissibly infringes on an individual’s rights

45
Q

Individual Rights > Due Process > Substantive Due Process

Standard of Review

Constitutional Law

MEE

A
  • Fundamental right (life, liberty, property, voting, travel, privacy, choice) = strict scrutiny (valid if necessary to achieve a compelling governmental interest)
  • Non-Fundamental right = rational basis (valid if rationally related to a legitimate government interest)
46
Q

Individual Rights

Equal Protection Clause

Constitutional Law

MEE

A

Involves the government treating classes of people differently

  • Discriminatory intent = strict or intermediate scrutiny (Depending on classification)
  • Disparate impact (no discriminatory intent) = rational basis review
47
Q

Individual Rights > Equal Protection Clause

Standards of Review

Constitutional Law

MEE

A
  1. Strict Scrutiny
  2. Intermediate Scrutiny
  3. Rational Basis
48
Q

Individual Rights > Equal Protection Clause > Standards of Review

Strict Scrutiny

Constitutional Law

MEE

A

Applies to any law involving classifications based on race, ethniticy, and national origin OR a law that implicates fundamental rights

The government must show it is:
1. The least restrictive means
2. To achieve a compelling government interest

49
Q

Individual Rights > Equal Protection Clause > Standards of Review

Intermediate Scrutiny

Constitutional Law

MEE

A

Applies to laws invovling gender and non-marital children

The government must show it is:
1. Substantiall related
2. To an important government interest
3. Gender discrimination = must also show an “exceedingly persuasive justification”
4. IF multiple and separate facilities = must also show that facilities are substantially equivalent

50
Q

Individual Rights > Equal Protection Clause > Standards of Review

Rational Basis

Constitutional Law

MEE

A

Applies to all other rights and classifications (e.g., age, wealth, etc.)

The plaintiff must show that law is not:
1. Rationally related
2. To a legitimate government interest

51
Q

Individual Rights

Enabling Clause

Constitutional Law

MEE

A

Under the 14th Amendment, Section 5 = Congress may pass legislation to enforce equal protection and due process rights (overriding state statutes)

52
Q

Freedom of Speech

Constitutional Law

MEE

A
  1. Symbolic Speech - Expressive Conduct
  2. Overbreadth
  3. Vagueness
  4. Prior Restraints
  5. Right NOT to Speak
  6. Content
  7. Less-Protected and Unprotected Speech
  8. Speech in a Government Forum
53
Q

Freedom of Speech

Symbolic Speech - Expressive Conduct

Constitutional Law

MEE

A

Regulation is valid if:
1. It furthers an important government interest;
2. The interest is unrelated to the suppression of ideas; AND
3. The burden on speech is no greater than necessary

54
Q

Freedom of Speech

Overbreadth

Constitutional Law

MEE

A

A statute regulates more speech than necessary to protect a compelling government interest

55
Q

Freedom of Speech

Vagueness

Constitutional Law

MEE

A

A statute fails to provide a person of orginary intelligence with fair notice of what is prohibited (e.g., “mean” or “rude”)

56
Q

Freedom of Speech

Prior Restraints

Constitutional Law

MEE

A
  • A prior restraint prohibits speech before it occurs
  • Must seek to avoid a particular harm
  • Must have procedural safeguards in place (standards must be narrowly drawn, reasonable, and definite)
57
Q

Freedom of Speech

Right NOT to Speak

Constitutional Law

MEE

A

Protected by the First Amendment (e.g., right to NOT recite the Pledge of Allegiance)

58
Q

Freedom of Speech

Content-Based Regulation

Constitutional Law

MEE

A

Strict Scrutiny

Government must show the regulation is:
1. Necessary to achieve
2. A compelling governmental interst and
3. Narrowly tailored to meet that interest

59
Q

Freedom of Speech

Content-Neutral Regulation

Constitutional Law

MEE

A

Intermediate Scrutiny

60
Q

Freedom of Speech

Time, Place, or Manner Regulation

Constitutional Law

MEE

A

Validity depends on the type of forum

61
Q

Freedom of Speech

Less Protected = Commercial Speech

Constitutional Law

MEE

A

Commercial speech may be prohibited if it is false, misleading, or unlawful

Protected commercial speech can only be regulated IF:
1. The government interest is substantial;
2. The regulation directly advances the interest; AND
3. The regulation is narrowly tailored

62
Q

Freedom of Speech

Unprotected Speech

Constitutional Law

MEE

A
  1. Obscenity
  2. Incitement
  3. Fighting Words
  4. Defamation
63
Q

Freedom of Speech > Unprotected Speech

Obscenity

Constitutional Law

MEE

A

The average person, applying contemporary community standards finds the speech:
1. Appeals to the prurient interest;
2. Depicts sexual conduct in a patently offensive way; AND
3. Lacks serious literary, artistic, political, or scientific value

64
Q

Freedom of Speech > Unprotected Speech

Incitement

Constitutional Law

MEE

A

Advocates use of force or unlawful action IF:
1. Directed to inciting or producing imminent lawless action; AND
2. Is likely to incite or produce such action (i.e., creates a clear and present danger)

65
Q

Freedom of Speech > Unprotected Speech

Fighting Words

Constitutional Law

MEE

A

By their very nature, likely to incite an immediate breach of the peace

66
Q

Freedom of Speech > Unprotected Speech

Defamation

Constitutional Law

MEE

A

There are constitutional limitations on defamation actions when the plaintiff is a public official or public figure, or the speech involves a matter of public concern

67
Q

Freedom of Speech

Government Forum

Constitutional Law

MEE

A
  1. Traditional Public Forum
  2. Designated Public Forum
  3. Non-Public Forum
68
Q

Freedom of Speech > Government Forum

Traditional Public Forum

Constitutional Law

MEE

A

Ex: Sidewalks, streets, parks

  • Content-based = strict scrutiny
  • Content-neutral = must be 1) narrowly tailored; 2) to serve a significant government interest; and 3) leave open amply alternative channels for communication

NOTE: avoiding liter is NOT a sufficient government interest under time, place, and manner

69
Q

Freedom of Speech > Government Forum

Designated Public Forum

Constitutional Law

MEE

A

Not historically used for speech-related activities but has been opened for such use (ex: subway station with a bulletin baord for public posting)

  • Content-based = strict scrutiny
  • Content-neutral = must be 1) narrowly tailored; 2) to serve a significant government interest; and 3) leave open amply alternative channels for communication
70
Q

Freedom of Speech > Government Forum

Non-Public Forum

Constitutional Law

MEE

A

Ex: Government offices, schools, jails, military bases, airport terminals

Government can regulate content in a non-public forum so long as it is viewpoint neutral

Government can regulate speech if:
1. The regulation is viewpoint-neutral; and
2. Reasonably related to
3. A legitimate government interset

71
Q

Religion Clauses

Constitutional Law

MEE

A
  1. Establishment Clause
  2. Free Exercise Clause
72
Q

Religion Clauses

Establishment Clause

Constitutional Law

MEE

A

Prohibits the government from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion

73
Q

Religion Clauses

Free Exercise Clause

Constitutional Law

MEE

A

Includes the freedom to believe and the feedom to act

NOTE: Must have a genuine belief in that religion

74
Q

Religion Clauses > Free Exercise Clause

Belief

Constitutional Law

MEE

A
  • A person’s beliefs are absolutely protected
  • A person’s belief must be genuine
  • Does NOT include philosophies or political beliefs
75
Q

Religion Clauses > Free Exercise Clause

Conduct

Constitutional Law

MEE

A
  • Laws that intentionally target religious conduct are subject to strict scrutiny
  • Laws that are generally applicable, but happen to impact religion, are subject to the rational basis test

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