Con Law Flashcards
(42 cards)
Standing
Fed cts will not hear a case unless the party bringing the suit has standing. To have standing, the πmust prove an actual or imminent injury, the injury is caused by the conduct complained of, and it is likely that the injury will be redressed by a favorable decision. The injury mb specific and more than theoretical. However, the injury need not be economic.
Ripeness
A case wont be heard if theres not yet a live controversy or immediate threat of harm (future wrong).
Mootness
A case will not be heard if a live controversy existed at the time of the complaint was filed but has since been eliminated.
Except: (1) Controversy is capable of repetition, yet evading review; or (2) voluntary cessation of the activity by ∆.
Organizational Standing
An org will have standing to challenge gov action that causes injury to its members if the org can show:
(1) an injury to ind members that would give the ind a right to sue on their own behalf;
(2) the injury is related to the org’s purpose; and
(3) neither the nature of the claim nor the relief requested reqs participation of the ind members in the lawsuit.
Third Party Standing
Third party standing reqs the π to prove he has ind standing, and a special relationship between the π and the 3rd party, or that its difficult for the 3rd party to assert his own rights.
State Action
For an action to vio the const, there mb gov involvement w/ the challenged action. The action of a private actor can qualify as state action if the private actor performs functions that are traditionally and exclusively public functions or the state is heavily involved in the activity.
Powers of Congress
C has power to (1) reg commerce; (2) taxing and spending for the gen welfare of the US; (3) war powers to declare war and raise and support armed forces; (4) est laws re naturalization and bankruptcy; (5) enforce 13th, 14th, 15th amendments; and (6) N&P powers to execute any of enumerated powers.
Powers of President
P has power to execute laws made by C; supervise the exec branch; make treaties w/ foreign nations subject to 2/3 approval by Senate; speak for US in foreign policy and nego exec agts; appoint ambassadors; appoint top-level fed officers subject to Senate approval; issue pardons for fed offenses; veto a bill passed by C; and refuse to disclose confidential info re to perf of his duties.
Supremacy Clause
The Supremacy Clause makes fed law the supreme law of the land. Under the Supremacy Clause, state laws can be preempted by fed law expressly or impliedly.
Preemption
There are 3 ways a fed law may impliedly preempt a state law:
(1) conflict preemption - where state law conflicts w/ the reqs of a valid fed law
(2) conflict w/ purpose - where state law interferes w/ the objective of a valid fed law
(3) field preemption - where C has evidenced an intent to occupy the entire filed over which it has power
Dormant Commerce Clause
DCC restricts the states and local govs from reg activity that affects IC if the reg is (1) discriminatory, or (2) unduly burdensome.
Laws designed to protect local bus against interstate competition, laws reqing local operations, and laws limiting access to state products have been held to disc against IC.
Exceptions to the DCC
Exceptions: (1) When the state is not acting as a regulator but rather owns or operates a bus, a market participant, it may favor local interests over nonlocal interests. (2) Congressional consent to the regulation.
Free Exercise Clause
Free exercise bars any law that prohibits or seriously burdens the free exercise of religion, unless there’s a compelling gov interest. Except laws of gen applicability. Est clause prohibits laws respecting est of religion. Gov can’t endorse or favor specific religions
1st Amendment
1st Amendment protects an ind’s right to free speech and is applicable to the states through the 14th Am. Speech prohibitions can be content based or content neutral, and the rules vary depending on this distinction.
Content-based Speech Regulations
Content-based speech regs are those that forbid the communicative impact of the expression. Strict scrutiny applies to content-based restrictions, meaning the reg mb nec to achieve a compelling gov interest.
Content-neutral Speech
Content-neutral speech regs are those where the regulation is aimed at something other than the communicative impact of the expression.
Standard:
(1) serve an important gov interest,
(2) are narrowly tailored to serve that interest,
(3) and leave open alternate channels of communication.
Time, Place, Manner Regulations
TPM regs seek to reg speech based on the external factors of the TPM in which the speech may be communicated. The rules differ depending on the type of forum in which the speech or conduct occurs. All mb viewpoint neutral.
Public/Designated Public Forums
Public forums are forums historically open for speech activities, including sidewalks and public parks.
Designated public forums are forums not historically open for speech activities but are opened up to the public at large for a specific purpose.
Standard: mb content neutral and viewpoint neutral, serve a important gov interest, be narrowly tailored to serve that interest, and leave open alt channels of comm.
Limited/Nonpublic Forum
Limited public forums are forums that are opened for limited use by certain groups or discussion of certain subjects.
Nonpublic forums are forums that are closed to the public.
Standard: mb viewpoint neutral and reasonably related to a legit gov purpose.
Vague and Overbroad
A speech reg is unconst vague if it is so unclearly defined that a RP would have to guess at its meaning. DP clause reqs laws to give ppl reas notice of what is prohibited.
A speech reg is unconst overbroad if it bans both protected speech and unprotected speech. A reg, licensing scheme, or permit reg is unconst if it leaves unfettered discretion to the decisionmaker by not setting forth narrow and specific grounds for the denying a permit, or where the permit mechanism is not closely tailored to the reg’s objective.
Substantive Due Process
SDP limits the gov’s ability to reg certain areas of human life, such as the subst interest in life, liberty, or prop. Rights are either fund or nonfund, and diff rules apply to each.
Fund rights are rights relating to marriage, living w/ one’s fam, child bearing, child rearing, domestic travel, voting, and other 1st rights.
Standard of Review: SS applies to fund rights under SDP. The gov action mb nec to achieve a compelling gov objective.
Nonfund rights everything else but typically social and econ regs. Rational basis applies to nonfund rights. The gov action need only be rationally related to achieve a legit gov objective.
Procedural Due Process
PDP reqs gov to use fair process before intentionally depriving a person of LLP. Liberty interest include physical liberty as well as intangible liberties, such as the right to drive, raise a fam, etc. Prop interest includes real prop, personal prop, public ed, gov empl, gov licenses, and gov benefits that one is already rec’ing.
Equal Protection Clause
EPC of the 14th prohibits the gov from treating similarly situated persons differently. A vio is on its face exists when the gov treats ppl differently in a statute or reg. A vio as applied occurs when the gov treats ppl diff through the administration of a statute.
Fundamental rights under EPC are subject to SS.
Suspect Class Standard of Review - Equal Protection
Sus classifications include only those based on race, nat origin, and state alienage, and are subject to SS. SS reqs the gov to prove that the classification is nec to achieve a compelling gov interest.
