Themis Essay - Con Law Flashcards
Summary of Issues
Justiciability
Legislative Powers
Executive Power
State Powers
Takings and Zonings
Procedural Due Process
SDP
Equal Protection
Free Speech
Freedom of Religion
Justiciability
- Standing
a. Individual Standing
1) Injury in fact;
2) Causation; and
3) Redressability
b. Organizational Standing
1) Individual members have standing;
Exam Tip 1: In addressing organizational standing, you must first analyze individual standing to meet the first requirement.
2) Claim is related to the purpose of the organization; and
3) The individual members are not necessary to adjudicate the claim
- Mootness
No live controversy because already adjudicated or the harm no longer exists - Ripeness
- Political Question
Commerce Clause
oCongress has the power to regulate interstate commerce:
1) The channels of interstate commerce (e.g., highways, waterways)
2) The instrumentalities of interstate commerce (e.g., planes, trains, and automobiles)
3) Activities that have a substantial effect on interstate commerce
b. Substantial Effect
▪Economic activity may be considered in the aggregate
Spending Power
o Congress can condition federal funds and require states to implement certain regulations
o Permitted as long as the condition is related to the purpose of the funds
COMMANDEERING
Exam Tip 2: As long as Congress is validly using its spending power, conditions placed upon funding will not be viewed as commandeering. But if spending power is an issue on an essay, think about having another IRAC explaining why commandeering is or is not an issue.
Delegation of Legislative Power
Congress may delegate its power to an agency.
Executive Powers
The President has the power to issue executive orders within the scope of his presidential powers.
- Domestic Affairs
The President has appointment and removal powers, the pardon power, the commander in chief power, and the duty to execute the law. - Foreign Affairs
The President has the power to conduct foreign negotiations, to deploy troops overseas, and to make executive agreements.
State Powers
Supremacy Clause
Privileges and Immunities Clause
10th Amendment and Commandeering
DCC
Supremacy Clause
If state law conflicts with federal law, the federal law governs.
a. Preemption
1) Express Preemption
The federal law explicitly states that it is the only law allowed in that area
2) Implied Preemption
*Congress passes a federal law intending to “occupy the field”
*The state law directly conflicts with federal law
*The state law indirectly conflicts with federal law
Note 1: A state can pass more stringent laws than the federal law, so long as they do not conflict.
Privileges and Immunities Clause
o Prohibits states from discriminating against citizens of other states
o Exception: A state can discriminate against out-of-state citizens if there is a substantial justification for the discrimination
Note 2: This protection only applies to individuals; corporations and noncitizens cannot claim this clause.
10th Amendment and Commandeering
o All powers not expressly given to the federal government are reserved to the states.
o The federal government cannot “commandeer” state legislatures and force them to pass laws.
Exam Tip 3: This concept often arises with the Spending Power. The government cannot force the state legislature to enact seatbelt laws, but it can condition federal funds to persuade the state legislature.
DCC
o The Commerce Clause enables Congress to regulate interstate commerce.
o The Dormant Commerce Clause limits the states’ ability to regulate interstate commerce, an area that Congress already regulates.
a. Discriminatory or Nondiscriminatory
▪If the state law is discriminatory against out-of-state commerce, the state must show:
a) It has an important state interest; and
b) There is no other non-discriminatory means available to achieve that interest
▪Market Participant Exception
Editorial Note 1: In addition to the Market Participant Exception, there are three additional exceptions to consider: (1) the traditional government function exception, (2) the subsidy exception, and (3) the congressionally permitted discrimination exception.
b. Undue Burden on Interstate Commerce
▪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 the purpose of the statute against the burden on interstate commerce and whether there are less restrictive alternatives.
5th Amendment - Takings Clause
The government may not take private property for public use without just compensation.
- Government Action
Federal, state, or local government “taking” property by physically taking, or rezoning, prohibiting development, etc. - Private Property
Usually involves land, but can be other property - Public Use
Must be taken for public use, including health, safety, economic development, etc. - Type of Taking
a. Physical Taking
Government physically occupies the land
b. Regulatory Taking
A law has the effect of decreasing the value of the plaintiff’s property
1) Total Taking—the regulation leaves no economically viable use of the property
2) Partial Taking—the regulatory taking affects some economic use of the land, but there is still some economic use available
a) Economic impact—how much value was lost due to the regulation
b) Reasonable expectations—the owner’s reasonable expectation of return on investment
c) Character of the regulation—does the regulation impact a few owners or the entire community?
- Just Compensation
If a taking has occurred, the property owner is entitled to the fair market value of the property at the time of the taking.
Due Process
Exam Tip 4: The Due Process Clause includes both procedural and substantive due process. These concepts are often tested together.
- Procedural Due Process
o The Due Process Clause provides certain protections (i.e., procedures) before the government can take a person’s life, liberty, or property.
o Examples of procedures: notice, hearings, appeals, neutral decision maker
a. Amount of Process Due
1) Interest Affected—life, liberty (including fundamental rights), or property
2) Value of Additional Safeguards
3) Burden/Cost of Additional Process
- Substantive Due Process
o Whether the government’s action (such as a law or regulation) impermissibly infringes on an individual’s rights
a. Standard of Review
1) Fundamental rights (life, liberty, and property)
* Strict scrutiny—only valid if necessary to achieve a compelling governmental interest
2) Non-fundamental rights
* Rational basis—valid if rationally related to a legitimate government interest
Equal Protection Clause
Exam Tip 5: Government treating classes of people differently
- Discrimination requirement
o The plaintiff must show discrimination
o In order to apply a stricter standard of review, must show discriminatory intent
Exam Tip 6: The law in the fact pattern will often be facially discriminatory; it will favor one group of people over another.
- Standards of Review
o Fundamental right or suspect classification (race, ethnicity, national origin)—Strict scrutiny
o Gender or nonmarital children—intermediate scrutiny
o Other rights and classifications—rational basis
Exam Tip 7: If the classification involves more than one category, different provisions in the statute may be evaluated under different levels of scrutiny.
a. Strict Scrutiny
▪Fundamental rights and classifications based on race, ethnicity, and national origin
▪Government must show the law is:
a) The least restrictive means
b) To achieve a compelling government interest
b. Intermediate Scrutiny
▪ Applies to laws involving gender and non-marital children (i.e., born outside of marriage)
▪ Government must show the law is:
a) Substantially related
b) To an important government interest
▪ For gender, must also demonstrate an exceedingly persuasive justification for the law—i.e., intermediate scrutiny with bite
c. Rational Basis
▪ Applies to all other rights and classifications
▪ Plaintiff must show the law is not:
a) Rationally related
b) To a legitimate government interest
Symbolic Speech
o The government regulation of expressive speech is upheld if:
▪ (1) The regulation furthers an important governmental interest;
▪ (2) The interest is unrelated to the suppression of speech;
▪ (3) The burden on speech is not greater than necessary; and
▪ (4) The regulation is within the government’s authority to enact.
Editorial Note 2: The professor skipped item (4) above: the regulation must also be within the government’s authority to enact.
