rule statements Flashcards
private actor exception to state action
-carrying out traditional govt function
-state entanglement: mutually beneficial contacts
-state facilitated or endorsed private action affirmatively
standing: individual
-particularized injury in fact
-causation
-redressability
organizational standing
-individual members have standing
-claim related to purpose of org
-individual members not necessary to adjudicate b/c org is adequate rep
taxpayer standing
-challenge own tax assessment OR
-establishment clause violation
-through congress’ expenditure powers
mootness
live controversy
exception: capable of repetition yet evading review. subjected to same action but too short to live through case
11th amendment
cannot sue state or state agencies for money damages, UNLESS
-state consents
-congress expressly abrogates through 13-15th amendments
-structural waiver in constitution
abstention
-unsettled case law
-pending state crim cases unless clearly unconstitutional
-injunctive relief to interfere with complex state regulations
-substantially similar to state court case
commerce clause
-channels
-instrumentalities
-economic activities with substantial effect in aggregate (rational basis)
-if noneconomic activities: cannot aggregate, need detailed factual findings that it has substantial effect
spending power
for general welfare
-congress can condition fed funds to get states to do something IF they (1) are unambiguous, (2) relate to the funded program’s purpose, and (3) are not unduly coercive.
delegation of legislative power
need intelligible principle
preemption
express: explicit
implied:
-field preemption
-state law directly conflicts with state law and impossible to follow both
-state law indirectly conflicts
privileges and immunities clause 14th am
states can’t discriminate against citizens of other states with respect to national citizenship rights
UNLESS substantial justification and substantial state interest
commandeering
10th amendment
-fed can’t force states to pass laws
-fed can’t force states to enforce fed laws
DCC
states cannot regulate interstate commerce or unduly burden
-discrimination on its face or in application: states must show important state interest and no other non-discriminatory means available to achieve it
-undue burden: balance purpose of statute against burden on IC and whether there is less restrictive alternatives
-regulating conduct wholly outside state borders
DCC exceptions
-market participant
-necessary to serve state interest and no other ways to do it
-subsidy exception
-traditional govt function
-permisison from congress
takings elements
-government action
-Property interest: intangible property, tangible property, nonpossessory interests
-taking??
-for a public use
–> need just compensation: FMV at time of taking. loss to owner, comparable sales at time of taking
types of takings
Physical occupation even if portion of land
Regulatory: total or partial
-total: no economically viable use of property
-partial: regulatory takings affects some economic use of land. courts balance
–> economic impact: value lost
–> reasonable expectations of return on investment
–> character of regulation: the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership
procedural due process
does it apply? Procedural due process only applies in quasi-judicial or adjudicatory settings, and not with respect to the adoption of general legislation
elements:
-interest affected: life, liberty, property. liberty can be fundamental rights. property can be expectation through statute, contract, custom.
value of additional safeguards for accuracy
burden/costs of additional process. efficiency.
fundamental rights
first amendment
voting
interstate travel
privacy (family, sex, parental rights, contraception, marriage)
bear arms
substantive DP
fundamental rights: strict scrutiny
nonfundamental rights: rational basis review
regulation of symbolic speech
-regulation furthers important government interest
-interest is unrelated to suppression of speech
-burden on speech is not greater than necessary
-regulation is within government’s authority
Interesting Understood Bye Asshole = important interest, unrelated, burden not greater, authority
overbreadth
regulates more speech than necessary for compelling govt interest
vagueness
fails to provide person of ordinary intelligence with fair notice of what is prohibited
prior restraint
prohibiting speech before it occurs
only ok if:
-particular harm govt seeking to avoid
-specific procedural safeguards
–> narrowly drawn, reasonable, definite standards
–> must be prompt review of validity of restraint
unfettered discretion
if permitting or licensing process allows govt officials to regulate or restrict speech, then officials cannot have unfettered discretion
need definite standards
traditional public forum or designated public forum
content-based restrictions:
-narrowly tailored
-necessary to achieve govt interest
-compelling govt interest
content-neutral, time/place/manner:
-narrowly tailored
-significant government interest
-leave open ample alternative channels for communications
nonpublic forum
-regulation must be viewpoint neutral (can be content based)
-reasonably related to
-legit govt interest
commercial speech
not protected if false/misleading
protected otherwise, regulations must be:
-govt interest is substantial
-regulation directly advances interest
-narrowly tailored
obscenity
-appeal to prurient interest
-depict sexual content in patently offensive way
-lack serious literary, artistic, political, scientific value (LAPS)
establishment clause
facially religious preference: religion over another, religion over nonreligion –> strict scrutiny
no facially religious preference: impact of favoring religion
-long standing practice, historical practices and understanding
-strict scrutiny
free exercise clause
religion: can assess genuineness
belief: absolutely protected, can only assess if genuine
conduct: intentionally targeting religious conduct. then strict scrutiny
neutral: rational basis
continuing nonconforming use
nonconforming use may continue until
(1) the owner enlarges, changes, or abandons that use or
(2) if provided in the zoning law, an amortization period has passed or the use has not been registered.
use variance
a showing of a unique hardship by the owner and
it is not contrary to the public welfare or it doesn’t deviate from zoning plan
The hardship must arise from the characteristics of the property itself (such as the size, shape, location, topography, or surroundings), not the financial circumstances of the owner, and the owner may not have created the need for the variance.
hardship not created by owner
unusual situation?
exaction
when a local government conditions the issuance of a building or construction permit on a landowner’s promise to dedicate part of the property for public use, the government must show:
(1) an essential nexus between the imposed condition and a legitimate government interest and
(2) a rough proportionality between the condition’s impact on the landowner and the proposed development’s impact on the community.
taking of property interest
For a person to challenge a governmental action as an unconstitutional taking, the person must have a property interest. Property interest is liberally construed but typically must be vested
examples:
1) A property owner who applies for a building permit under the existing regulations is entitled to consideration under that ordinance according to the vested rights doctrine
2) allows projects to be completed in accordance with land use plans and regulations in effect when the projects were approved.
Congress’ pwr over SCOTUS appellate jurisdiction
Article III grants Congress the power to regulate and make exceptions to SCOTUS’s appellate jurisdiction. But when exercising this almost unlimited power, Congress cannot violate:
the separation-of-powers doctrine—usurping judicial power to decide cases
other constitutional provisions—eg, giving only men the right to appeal, in violation of the equal protection component of the Fifth Amendment.
federal property clause
Article IV, Section 3 gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
contracts clause
Under the contracts clause, state laws that substantially impair existing private contracts are valid if the impairment is (1) reasonable and narrowly tailored (2) to achieve an important state interest
congressional pwr to regulate activity that substantially affects interstate commerce
To determine if Congress can regulate, consider whether:
activity is economic in nature (then substantial effect presumed)
jurisdictional element limits reach to activities with direct connection to interstate commerce
express congressional findings that activity substantially affects interstate commerce and
strong link between activity & effect on interstate commerce
when must pres appoint and senate confirm
A federal officer is someone who (1) holds a continuing public office and (2) has significant discretionary authority to administer or enforce laws. Principal federal officers are supervised solely by the President and must be appointed by the President, with the Senate’s advice and consent.
zoning types
Cumulative zoning: The traditional approach in which residential use is permitted
everywhere, commercial use is restricted to some areas, and industrial use is allowed in the
fewest areas.
o Mutually exclusive zoning: Some jurisdictions have developed an approach where only one
type of use is permitted by zone.
AISG
SCOTUS can’t review if AISG
but can review to determine if there is an AISG
congress subpoenaing the president
A congressional committee seeking the President’s personal information must provide detailed evidence that a subpoena (1) is necessary to obtain the information, (2) is limited in scope to a valid legislative purpose, and (3) does not unduly burden the President’s time and attention.
when can state impose residency reqs for benefits
While reasonable residency restrictions may be imposed on the receipt of some governmental benefits, durational residency requirements burden the right to interstate travel when they deny basic necessities of life to newcomers of the state
bankruptcy clause
Although Congress, acting pursuant its Article I powers, generally cannot abrogate state immunity, the Bankruptcy Clause gives Congress the power to subject states to its provisions.
procedural DP state employees
When a public employee can only be fired for cause, procedural due process generally requires that the employee receive (1) notice of any alleged misconduct, (2) a pre-termination hearing to respond to the allegation, and (3) a post-termination evidentiary hearing to determine if the dismissal was warranted.
origination clause
Origination Clause of Article I, Section 7 requires that a bill for raising revenue originate in the House, rather than the Senate.
presentment clause
The Presentment Clause requires any bill that has been passed by Congress to be presented to the President.
line item vetoes
executive powers
EOs: can do so within scope of presidential power
Domestic affairs: appointment/removal powers, pardon power, commander in chief power, duty to execute the law
Foreign affairs: power to conduct foreign negotiations, to deploy troops overseas, executive agreements by himself
free speech: less protections
Less protections: C FIDO:
Commercial Speech,
Fighting words/threats,
Inciting crime,
Defamation,
Obscenity
Elections Clause of Art. I
The Elections Clause of Art. I explicitly empowers Congress to override state laws concerning federal elections. This express provision makes irrelevant general principles of federalism embodied in the “commandeering” cases
bivens claims / implied causes of action
The following implied causes of action permit the recovery of damages against a federal official: (1) a Fourth Amendment claim for unlawful search and seizure, (2) a Fifth Amendment claim for sex-based employment discrimination, and (3) an Eighth Amendment claim for failure to provide medical treatment.
expenditures vs contributions
The First Amendment protects political speech, including campaign contributions and expenditures.
A government restriction on campaign expenditures is unconstitutional unless the government satisfies strict scrutiny by showing that the restriction is the least restrictive means to serve a compelling government interest.
ex: support/opposition of candidate or candidate for themselves
contributions –> intermediate scrutiny
direct $ to candidates
original jx scotus
“All cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party
war and defense pwrs congress
- Provide for the national defense—in both wartime and peacetime (e.g., military draft and selective service)
- Military courts and tribunals—to try enemy soldiers, enemy civilians, and current members of the U.S. armed forces; no jurisdiction over U.S. civilians; not all constitutional protections apply (e.g., right to jury trial or grand jury indictment)
- National guard—power to authorize the president to call National Guard units to execute federal laws, suppress insurrections, and repel invasions; constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances (but limited by statute)
president pwr veto
act within 10 days or becomes law
unless congress not in session –> pocket veto
emoluments clause
prohibit a sitting president from receiving a change in compensation or receiving compensation from state, federal, or foreign governments
treaties
he president has the exclusive power to negotiate treaties; a treaty may only be ratified by approval of two-thirds vote of Senators present
impeachment
the House of Representatives may impeach (i.e., bring charges) by a majority vote; the Senate tries the impeached official (two-thirds vote is necessary for conviction)
pres immunity
o The president may not be sued for civil damages with regard to any acts performed as part of the president’s official responsibilities
o Civil action—no immunity from a civil action based on conduct alleged to have occurred before the president took office or completely unrelated to carrying out his job; the president may be subject to such a suit even while in office
o Criminal proceedings—no immunity from compliance with a subpoena in federal or state proceedings
o Congressional subpoena—executive privilege when the subpoena regards official duties; when the subpoena involves personal matters it is at the court’s discretion and subject to restrictions
state taxation of interstate commerce
Substantial nexus—between the activity being taxed and the taxing state;
o Fair apportionment—such that interstate commerce does not pay total taxes greater than local commerce;
o Nondiscrimination—no direct commercial advantage to local businesses over interstate competitors (even if neutral on its face); and
o Fair relationship—the tax must be fairly related to the services provided by the taxing state.
full faith and credit clause
must honor outside ct judgments if
- The court rendering judgment had jurisdiction over the parties and subject matter;
- The judgment was on the merits; and
- The judgment was final.
comity clause article iv
- Prohibits state discrimination against nonresident citizens—applies only to “citizens” (i.e., not corporations or noncitizens)
- Rights protected—prohibits one state from discriminating against citizens of another state with respect to fundamental rights or essential activities (e.g., pursuit of employment, transfer of property, access to state courts)
bills of attainder vs ex post facto
Bills of attainder—a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial; applies only to criminal or penal measures
Ex post facto laws—(i) criminalizes an act that was not a crime when it was originally committed; (ii) authorizes a more severe penalty after an act was committed; (iii) deprives D of a defense available when the act was committed; or (iv) decreases the prosecution’s burden of proof below that required when the act was committed
freedom not to speak
- The First Amendment protects not only freedom of speech, but also the freedom not to speak
- However, a state can compel a private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights when the private entity is open to the public and the message is not likely to be attributable to the private entity
- Although one may be compelled to join or financially support a group with respect to one’s employment, one cannot be forced to fund political speech by that group
regulation of media
- General considerations—regulation of the right to publish about matters of public concern is subject to strict scrutiny
* Gag orders—subject to prior-restraint analysis; rarely upheld
* Attending trials—the right to attend trials may be outweighed if the judge finds an overriding interest that cannot be accommodated by less restrictive means
* Illegally obtained private info—permitted to publish if third party (unknown to publisher) obtained info and involves matter of public concern * No constitutional privilege to protect sources - Broadcast
* Radio and television broadcasters are said to have a greater responsibility to the public; they can be more closely regulated than print and other media
* Broadcasters may be sanctioned for airing “patently offensive sexual and excretory speech,” even if such speech does not qualify as obscene
* Public access stations are not considered to be state actors - Cable television—content-based regulations of cable broadcasters are subject to strict scrutiny
- Internet—any regulation of Internet content is subject to strict scrutiny
