Federal Con Law Flashcards
to assert standing…
a plaintiff must have a concrete personal stake in the outcome, to do that the plaintiff must establish (1) injury –in fact and (2) causation: the relief sought must eliminate the harm alleged, also known as redressability.
Generally, one cannot assert the constitutional rights of others to obtain standing, but…
a claimant with standing in her own right may also assert the rights of a third party if: (1) it is difficult for the third party to assert her own rights or (2) a special relationship exists between the claimant and the third party
Under the Federal Constitution, in order for an individual to assert that their rights have been violated under the 14th Amendment, they must show…
their rights have been violated by a state actor.
Federal state action implicates the 5th amendment.
Government funding does not automatically implicate state action, the question is…
how involved the state is, and if they are advancing the actors denial of certain rights or simply taking a neutral stance on it
Under the Federal Constitution, the 1st Amendment grants…
grants citizens the freedom of speech, which is a basic and fundamental right to the Constitution
1st Amendment rights are applicable to the states through…
federal through…
Due Process Clause of the 14th Amendment
federal 5th amendment
The freedom of speech is not absolute. The following categories of speech are considered “unprotected” under the 1st Amendment and thus, the government is free to regulate these forms of speech.
words that invite imminent lawless action, fighting words, obscenity, defamation and commercial speech.
Imminent lawless action exists when…
speech poses clear and present danger meaning the speech invites imminent and violent action and the speech is likely to produce such action.
Fighting words are usually…
directed a specific person, this type of speech insights violence and aggression
Normally, any restriction on a person’s freedom of speech that is based on the person’s expressive conduct is judge under the standard of…
Strict Scrutiny means which that in order for a law to be found constitutional, it must be narrowly tailored to achieve a compelling state interest and be the least restrictive means possible.
Content Neutral restrictions are based on…
time, place and manner of the expression, also known as content-neutral restrictions which are subject to intermediate scrutiny.
These restrictions must be content neutral and must be substantially related to an important government interest. They need not be the least restrictive means and must leave open alternative forms for the expression to take place.
Content neutral regulations cannot be…
vague or overboard, the regulations must give reasonable notice of what is prohibited and cannot prohibit more speech than necessary to achieve its goal.
Name the test for:
1- Public forum
2- Non-public forum
1- Public forum: intermediate type scrutiny
2-Non-public forum: rational basis type scrutiny
Content Based: content-based regulations…
restrict speech based on its subject matter and/or viewpoint
E.g.: ordinance banning political protests – restricts speech based on its subject matter (politics)
E.g.: city grants a rally permit to a liberal group, but denies a rally permit for a conservative group – restricts speech based on viewpoint (ideology of the message)
In analyzing whether a breach of a person’s freedom of expression has taken place, it is necessary to first evaluate…
where the speech has taken place. Case law has drawn a distinction between public forum, limited public forum, and nonpublic forum
Name the test:
In nonpublic areas, such as someone’s front lawn and billboards, these restrictions must be…
reasonably related to a legitimate government interest.
What place are people afforded the most protection under the constitution under the 1st Amendment?
public areas, which are known and historically popular for being a place where people express themselves, such as at a park or a courthouse, where citizens are afforded the most protection under the constitution.
In public areas, the government must meet the same burden described above for content-neutral restrictions (intermediate scrutiny - These restrictions must be content neutral and must be substantially related to an important government interest. They need not be the least restrictive means and must leave open alternative forms for the expression to take place).
commercial speech is afforded First Amendment protection if…
it is truthful.
However, commercial speech that poses unlawful activity or that is misleading or fraudulent may be burdened. Regulation of commercial speech will be upheld if it (1) serves a substantial government interest, (2) directly advances that interest and (3) is narrowly tailored to serve that interest.
Regulation of commercial speech will be upheld if it…
(1) serves a substantial government interest, (2) directly advances that interest and (3) is narrowly tailored to serve that interest.
The Establishment Clause prohibits laws respecting the establishment of religion. If a government regulation or action includes a preference for one religious sect over another, it is invalid unless…
it is narrowly tailored to promote a compelling interest.
It is unlikely that the government could ever have a compelling interest in preferring one religious group
If a government regulation or action does NOT prefer one religious sect over another the compelling interest test is NOT used. Instead the _____ test will be used. Explain the test.
Lemon Test
if a government regulation or action contains no sect preference, it is valid under the Establishment Clause if it:
(1) has a secular purpose,
(2) neither advances nor inhibits religion, and
(3) does not produce excessive government entanglement with religion [Free Exercise Clause]
Religious freedom does not justify practices inconsistent with the public peace or safety
The Due Process provisions of the 14th Amendment provide that the government cannot deprive a person of…
life, liberty, or property without due process of law.
There are two kinds of due process:
(1) procedural due process and (2) substantive due process.
Under procedural due process in order to deprive someone of life, liberty, or property, there must be…
(1) notice and (2) a hearing.
Property interests include:
jobs, licenses, benefits, and public education. Liberty interests include: right to contract and right to gain rightful employment
Substantive due process acts as a limitation on the actions that the state can undertake. The government has violated a persons substantive due process rights when they have…
impaired one of their fundamental rights. These rights include: (1) the right to vote, (2) the right of interstate travel, (3) the freedom of speech and (4) the right to privacy. The right to privacy encompasses: the right to use contraception, the right to have an abortion, the right to marry, the right to procreate, the right private education and the right to raise a family. The court imposes strict scrutiny review on laws that impair a persons fundamental rights, thus unless the government can show that the law is necessary to promote a compelling interest, it will not be upheld.
Fundamental rights include…
What test does the government impose when a fundamental right is violated?
(1) the right to vote,
(2) the right of interstate travel,
(3) the freedom of speech and
(4) the right to privacy. The right to privacy encompasses: the right to use contraception, the right to have an abortion, the right to marry, the right to procreate, the right private education and the right to raise a family.
The court imposes strict scrutiny review on laws that impair a persons fundamental rights, thus unless the government can show that the law is necessary to promote a compelling interest, it will not be upheld.
The United States Constitution prohibits the government from discriminating between…
similarly situated persons. The court must review the legitimacy of governmental actions and it has three standards of review: strict, intermediate, and rational
strict scrutiny
Regulations affecting fundamental rights or involving suspect classifications (race, national origin and alienage) are reviewed under the strict scrutiny standard: the law will be upheld if the government can show it is necessary to achieve a compelling government purpose
intermediate scrutiny
(2) Regulations involving gender and illegitimacy are reviewed under the intermediate scrutiny standard: the law is upheld if the government can show it is substantially related to an important government purpose.
rational basis
(3) Regulations that do not affect the above classifications are reviewed under the rational basis standard: the law will be upheld if the petitioner can prove that it is rationally related to a legitimate government purpose.
The 5th Amendment’s Taking Clause prohibits…
How is the prohibition is applicable to the states?
governmental taking of private property for public use without just compensation.
The prohibition is applicable to the states through the 14th Amendment
Physical appropriations almost always amount to takings, even if the amount of property taken is small UNLESS…
Exceptions: emergencies and nuisances (the state can destroy diseased trees to prevent spread of the disease)
Use restrictions that deny all economic value of land amount to a taking but a regulation that
merely decreases the value of property will not amount to a taking if the regulation leaves an economically viable use of property
A regulation that merely decreases the value of property will not amount to a taking if the regulation leaves an economically viable use of property. The court will consider:
No clear formula, courts will consider:
o Social goals sought to be protected
o The diminution in value to the owner
o Owners reasonably expectations regarding property
The normal remedy for a taking is…
just compensation… Fair market value ordinarily is measure by the loss to the owner (rather than the gain to the taker) based on the condition and nature of the property at the time it was taken
Intro to Standing: Standing is the issue of whether…
Standing must be…
the plaintiff is the proper party to bring a matter to court for adjudication.
met at all stages of litigation, including on appeal.
For the plaintiff to have standing, four requirements must be met:
1- injury in fact
2- causation and redressability
3- cannot assert 3rd parties
4- no generalized grievances
Explain injury in fact.
(1) injury in fact which requires both a particularize injury that effects the plaintiff in a personal way and a concrete injury that exists in fact,
Explain causation and redressibility
(2) causation and redressability where the plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the harm. However, if a federal court ruling would have no effect, then it’s an advisory opinion and therefore it is not allowed.
(3) A plaintiff cannot assert the claim of third parties not before the court because plaintiff must present personally suffered injuries UNLESS the following exceptions apply:
(a) close relationship exists between the plaintiff and the injured third party that allows for the third parties interest to be adequately presented,
(b) if the injured third-party is unlikely to be able to assert his or her own rights, or
(c) an organization may sue for its members if:
(i) the members would have standing to sue,
(ii) the interests are germane to the organization’s purpose, and
(iii) neither the claim or relief requires participation of individual members (it is allowed if members have actual injuries related to the organization).
Standing element (3)… A plaintiff cannot assert the claim of third parties not before the court because plaintiff must present personally suffered injuries UNLESS the following exceptions apply:
(a) close relationship exists between the plaintiff and the injured third party that allows for the third parties interest to be adequately presented,
(b) if the injured third-party is unlikely to be able to assert his or her own rights, or
(c) an organization may sue for its members if: (name the three elements…)
(i) the members would have standing to sue,
(ii) the interests are germane to the organization’s purpose, and
(iii) neither the claim or relief requires participation of individual members (it is allowed if members have actual injuries related to the organization).
Takings (4) No generalized grievances are allowed. The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law UNLESS the following exceptions apply:
(a) the taxpayer has standing to challenge government expenditures pursuant to federal (or state and local) statutes violating the Establishment Clause.
Ripeness is the question of whether…
a federal court may grant pre-enforcement review of a statute or regulation.
Ripeness two factors:
The court considers two factors
(1) the greater the hardship that will be suffered without pre enforcement review, the more likely it is the court will hear the matter and
2) The fitness of the issues, which are certain not contingent upon future events that may not occur as anticipated and the record before the court.
Mootness
A real controversy must exist at all stages of the review. If the matter has already been resolved, the case will be dismissed as moot UNLESS the following exceptions apply:
(1) controversies capable of repetition, but evading review due to short duration or (2) a defendant who voluntarily stops the offending practice but it’s free to resume it, or (3) a class action suit if claims of the members are still viable.
RIPENESS AND MOOTNESS EXTRAS
Ripeness bars consideration of cases _____ they have _____; Mootness bars their consideration _____ they have been _______.
Ripeness bars consideration of teams before they have developed; Mootness bars their consideration after they have been resolved.
Congress can regulate interstate commerce with…
foreign nations, with Indian tribes, and among states
To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either Regulate the…
(1) channels (roads, rails, waterways, phones, The Internet, etc),
(2) instrumentalities and persons and things (trucks, trains, planes, etc), or
(3) activities that have a substantial economic effect on interstate commerce.
The court will uphold the regulation if it is of ______ economical commercial activity and the court can conceive ______ on which Congress could conclude that the activity, ______ Interstate Commerce.
The court will uphold the regulation if it is of economical commercial activity and the court can conceive a rational basis on which Congress could conclude that the activity, in the aggregate, substantially effects Interstate Commerce.
If the regulated Interstate activity is ______ or and _____, the court entity will not aggregate the effects and the regulation will be upheld only if…
If the regulated Interstate activity is noncommercial or and noneconomic, the court entity will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on Interstate Commerce which is generally difficult to do.
The Commerce Clause gives Congress power only to regulate…
existing commercial activity; It does not give Congress power to compel activity.
The 10th amendment act as…
a limit on congressional power states that all power not granted to the United States, nor prohibited to the states, are reserved to the states for the people.
Three principles emerge from the 10th:
(1) Congress cannot compel state regulatory or legislative action, but it can place conditions on grants as long as they are: (a) clearly stated (b) related to the purpose of the grant and (c) not duly coercive.
(2) Congress may prohibit harmful commercial activity by state governments, and
(3) The 15th amendment is a limitation on both the states and the federal government by prohibiting them from denying any citizen the right to vote based on race of color. The amendment has an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination. The 15th amendment does not give the federal courts complete freedom to regulate state voting - Treating some states more harshly than others requires extraordinary justification and decade old data is not sufficient.
Congress may delegate its power to the executive or judicial branch as long as…
intelligible standards are set, which almost anything suffices, (2) the power is not uniquely confined to Congress such as declaring war or impeachment, and (3) does not violate separation of powers. Congress may not appoint members of a body with administrative or enforcement powers.
Commandeering State Officials
The Supreme Court has held that Congress may not require state executive officials (such as the police) to
enforce federal laws because such a requirement would upset the constitution’s dual sovereignty structure.
The Privileges and Immunities Clause of Article 4 protects against…
state and local laws that deny out-of-state persons important economic interests such as livelihood or civil liberties and the discrimination is intentionally protectionist in nature
The Privileges and Immunities Clause of Article 4 protects against state and local laws that deny out-of-state persons important economic interests such as livelihood or civil liberties and the discrimination is intentionally protectionist in nature, the laws is invalid unless…
the state has a substantial justification and there are no other less restrictive means. It must show that nonresidents either cause or are part of the problem that the state is attempting to solve and there is no less restrictive means to solve the problem.
When Congress regulates Interstate Commerce, conflicting state laws are…
superseded and even non-conflicting state or local laws in the same field may be preempted.
State regulation of Interstate Commerce prompts a Dormant Commerce Clause analysis.
(1) State regulations affecting an activity addressed by federal legislation is invalid if…
(2) State regulations discriminating against Interstate Commerce to protect local economic interests are invalid UNLESS…
(3) if the state regulation is nondiscriminatory, that is, a law that treats in-state and out-of-state persons alike, but burdens Interstate Commerce it is invalid UNLESS….
(1) State regulations affecting an activity addressed by federal legislation is invalid if the federal law preempts the field or the state law conflicts with the federal law. However, state regulation is valid if the Federal law authorizes state law;
(2) State regulations discriminating against Interstate Commerce to protect local economic interests are invalid UNLESS (i) the law furthers an important, noneconomic state interests and there are no reasonable nondiscriminatory alternatives; (ii) the state is acting as a market participant such as when buying or selling, hiring labor, or giving subsidies; or (iii) it involves government action regarding the performance of a traditional government function such as waste disposal.
(3) if the state regulation is nondiscriminatory, that is, a law that treats in-state and out-of-state persons alike, but burdens Interstate Commerce it is invalid UNLESS the state’s interest in the regulation outweighs the burden on interstate commerce.
T or F
The Commerce Clause does protect corporations or an alien.
True
T or F
The Privileges and Immunities Clause of Article 4 does not protect corporations or aliens.
True
Under the Privileges and Immunities Clause of the 14th Amendment states may not
deny their citizens the privileges or immunities of national citizenship, the right to petition Congress for redress of grievances, the right to and vote for federal officers, the right to Interstate travel.
T or F
Corporations and aliens cannot use or invoke the Privileges and Immunities Clause of the 14th Amendment
True
The 14th Amendment prevents state and local government from depriving any person of life, Liberty, or property without due process and equal protection of law. Generally, private conduct is not prohibited by this amendment (or the 15th) only where…
some state action is involved.
State Action
Because the constitution generally applies only to governmental action, to show a constitutional violation “state action” must be involved. State action can be found in actions of seemingly private individuals who:
(1) perform exclusive public functions, such as running a town or elections, or
(2) show significant state involvement and the state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens such as official encouragement or use of judicial machinery, but mere regulation, provision of public services, or licensing not enough.
