MBEConLaw Flashcards
Exceptions to Eleventh Amendment State Immunity
- Injunctive relief v. state official
- Damages v. state official if he will have to pay bc acting illegally
- Congress may abrogate immunity to enforce rights protected by 13-15th As if does so expressly
3 Elements of Standing
- Injury in fact (concrete + particularized; future injury only if actual + imminent, not hypothetical/conjectural)
- Causation
- Redressability
Mootness + D’s Voluntary Cessation of Illegal Activity
Ct will not dismiss as moot unless “no rsnble expectation wrong will be repeated”
Younger Abstention
Ct will not enjoin state criminal/civil enforcement proceeding (like contempt) in absence of bad faith, harassment, or patently invalid state statute
Taxing Power
Rational relationship to public purpose
Spending Power
Congress has power to spend for “general welfare,” ie, any public purpose + can use conditional spending to accomplish regulation that would otherwise exceed powers
Congressional Power to Enforce 13th A
Broad authority to adopt legislation rationally related to eliminating racial discrimination (“badges or incidents” of slavery), including regulation of purely private conduct
14th A, s 5 Enabling Clause
- permits Congress to pass legislation to enforce rights guaranteed by amendment, but not to expand those rights or create new ones
- must be a “congruence + proportionality” between injury to be prevented or remedied and means adopted to achieve that end
Pres Authority to Act in Domestic Affairs
- Action presumed valid when Congress has implicitly or expressly authorized
- Authority diminished in face of Congressional silence
- Action presumed invalid when Congress has spoken to contrary
Speech or Debate Clause
- Members of Congress + aides have civil + criminal immunity for sttmts made in “regular course of legislative process” (speeches, hearings, reports)
- DN cover speeches out of Congress or “repub” of defamatory sttmt originally made in Congress
Dormant Commerce Clause: General Rule
If no fed legislation on point, state free to regulate so long as dn: (i) discriminate v. out of state commerce, (ii) unduly burden I-S commerce, or (iii) regulate wholly out of state activity
Dormant Commerce Clause – Undue Burden on Interstate Commerce
Consider (i) importance of state interest, (ii) likelihood law will achieve, (iii) alternatives
Federal Preemption of State Law: Implied Preemption
- Congress intended that fed law *occupy field* (even complimentary state leg invalid)
- direct conflict
- indirect conflict b/c state law frustrates purpose of fed law
When Private Conduct = State Action
- Engaged in activity traditionally performed exclusively by state (includes use of peremptory challenges by private litigants)
- Gov’t so *pervasively entwined* w/ private actor that con’l standards should apply; mere licensing/regulation insufficient, state must act affirmatively to facilitate, encourage, or authorize activity (NOT utility co.s)
Due Process: Minimum Process Due
- Notice + opp to be heard before neutral DM’er
- hearing need not necessarily occur b4 denial of interest (yes for welfare benefits, no for disability benefits)
Fundamental Right to Interstate Travel
Includes right to become perm res of state + to be treated equally to native-born w/r/t state benefits; rsnble residency restrictions can be imposed on receipt of govt benefits, but once you qualify as res, right to be treated equally
Restrictions on Right to Vote
- State/local may impose brief residency reqts
- Property ownership only for elections involving special-purpose entities
- Voter ID subject to rational basis test
Equal Protection Challenges: Proving Discrimination
Disparate impact insufficient; discriminatory intent must be shown facially, as applied, or discriminatory motive
Equal Protection and National Origin
- Laws restricting alien’s participation in state gov’t function need only pass rational basis test
- Congress has plenary authority over aliens
Article IV Privileges + Immunities Clause (Comity Clause)
- Prohibits state discrimination v. non-residents w/r/t fundamental rights (ie: professional license, not recreational)
- Exception = non-res cause or are part of problem + no less-restrictive means
- Always consider w/ Dormant CC
Exaction as Taking
Govt may exact promises from developer as condition for permits so long as: (i) nexus b/w state interest + condition imposed; and (ii) rough proportionality b/w burden imposed + impact of proposed development
Establishment Clause: Public Prayer, Religious Displays
- Prayer before legislative session ok due to tradition + lack of coercion
- Display no if *predominantly religious purpose,* but ok if also communicates secular moral message or context conveys historical/social meaning
- Holiday displays ok unless rsnbl observer would view as endorsement of religion
Free Exercise Clause: Religious Belief v. Religious Conduct
- Belief absolutely protected so long as sincerely held
- Laws that intentionally target religious conduct subject to strict scrutiny; generally applicable = rational basis
Free Speech: Compelled Financial Support
- Can be compelled to join/pay dues to group w/r/t employment (ie: union, bar ass’n)
- Student can be req’d to pay activity fee, so long as fee allocated based on viewpoint-neutral scheme
Government Employee Speech
- Speech can be regulated if ordinarily w/in scope of employee’s duties
- If speaking as citizen on matter of public concern, 1st A interest of employee balanced v. interest of state-employer in effective + efficient management of internal affairs
Regulation of Speech in “Non-Public Forum”
- NPF = public property that is not traditional or designated public forum (ie: gov’t offices, schools, jails, airports + military bases)
- Reg must be: (i) viewpoint neutral + (ii) rsnbly related to legit interest
Incitement to Violence
(i) directed to inciting or producing imminent lawless action +
(ii) likely to incite or produce such action
Fighting Words
Words that by their very nature are likely to incite an immediate breach of peace (not merely annoying or offensive)
Restrictions on Commercial Speech
- Can ban if illegal product or false/misleading
- substantial interest + reasonable fit
Art. 1, s 10 Contract Clause
- state law impairs existing K
- if private K, impt interest + narrowly tailored
- if gov’t party to K, impt interest + necessary
Freedom of Association–Membership in Subversive Org
(i) active member
(ii) knowledge of illegal activities +
(iii) specific intent to further illegal objectives
Ad Valorem State Taxes
- Commodities: only when come to rest in state, not while in transit
- Instrumentalities: each state can tax (home state gives credit)
Process due b4 for cause gov’t employee can be fired
- generally, should get opp to be heard by DM’er before termination (dn have to be formal evidentiary hearing)
- exception: if significant reason for immediately removing, prompt post-suspension hearing w/ reinstatement + back pay if employee prevails satisfies
Cognizable property interest implicating DP
must be a “legitimate claim of entitlement”
Prior restraint (almost always struck down)
- particular harm to be avoided (like publication of troop movements); and
- procedural safeguards provided to speaker
