Con Law Flashcards
(40 cards)
Standing of Members of Congress
Supreme Court has held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto, reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress
Congressional Spending - Exception to “no citizenship standing”
In general a taxpayer has no standing to challenge the expenditure of funds.
The major exception is where the taxpayer alleges that the expenditure was enacted under Congress’s taxing and spending power and exceeds some specific limitation on that power, in particular the Establishment Clause.
A state’s regulation in an area where Congress has not already acted is valid if the regulation:
Does not discriminate against out-of-state commerce and does not unduly burden interstate commerce (i.e. the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation)
Discriminatory Regulations - almost always invalid
- upheld only if it is necessary to achieve and important, NONECONOMIC state interest and there are no reasonable alternatives (ex: a state could prohibit IMPORTATION of live bait fish because parasites could have a detrimental effect on its own fish population - but a state could not prohibit EXPORT of live bait fish when no major state interest was involved)
Non-Discriminatory Laws - Balancing Test
- If a non-discriminatory law (one that treats local and out-of-state interests alike) burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available. (ex: an Iowa statute banning trucks over 60 feet was held to be invalid because the state showed no significant evidence of increased safety and the burden on commerce was substantial)
For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has:
A legitimate claim or entitlement to the benefit
Factors a court considers in determining the type of procedural due process that is required
the importance of the individual’s interest that is involved and the value of specific procedural safeguards of the individual’s interest against
the government’s interest in fiscal and administrative efficiency
Privileges and Immunities Clause of Article IV
states may not discriminate against nonresidents regarding fundamental rights - i.e., those involving important commercial activities (such as pursuit of a livelihood) or civil liberties - absent a substantial justification - i.e., the state shows that nonresidents either cause or are part of the problem the state is attempting to solve, and that there are no less restrictive means to solve the problem
“substantial justification” = “necessary to achieve an important government purpose”
Privileges or Immunities Clause of 14th Amendment
prohibits states from denying their citizens the rights of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the US Government
Under the clear and present danger test, speech may be sanctioned whenever it___
is directed to producing or inciting imminent lawless action and is likely to produce such action
Regulation of speech in a public or designated public forum
To avoid strict scrutiny and be upheld, a regulation must be content-neutral, narrowly tailored to serve an important government interest, and must leave open alternative methods of communication
It does not have to be the least restrictive method of achieving the government interest
To be valid, a time, place and manner regulation of a Nonpublic/Limited public forum must be ___
viewpoint-neutral and rationally/reasonably related to a legitimate government purpose
Regulation can be based on content - but not based on viewpoint
To valid, a time, place and manner regulation of a Public/Designated Public Forum must be ___
content-neutral, or else they will be subject to strict scrutiny
if the regulation is content neutral, it only needs to meet intermediate scrutiny, which in this context means it must:
- be narrowly tailored to serve an important government interest (however, it need not be the least restrictive means for accomplishing the interest) and
- leave open alternative channels of communication
Free Exercise Clause
Prohibits government from punishing conduct just because it is religious
- if the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid
For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens
The Free Exercise Clause does NOT require laws of general applicability to have an exception for religiously motivated conduct. Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions with two historic exceptions: the Amish must be exempted from mandatory schooling beyond eighth grade, and workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.
Generally applicable laws or other government action that burdens religious practices will be upheld under the Free Exercise Clause unless it can be shown that the law or action was motivated by a desire to interfere with religion (in which case, it will be upheld only if it passes strict scrutiny).
A law or government program that contains a preference for one or some religious groups over others will be invalid unless ___
it is necessary to serve a compelling government interest - must meet strict scrutiny to be valid under the Establishment Clause
Factors in the test for the validity of government action under the Establishment Clause when no sect preference is involved
In determining whether government action is valid under the Establishment Clause, courts will consider
(1) whether the action is neutral with regard to religion
(2) Next, courts will consider whether the government action accords with history and
(3) faithfully reflects the understanding of the Founding Fathers.
If so, the action is unlikely to violate the Establishment Clause.
One Person, One Vote Principle (Dilution of Right to Vote)
Regarding Congressional Districts, almost exact mathematical equality between the congressional districts within a state is required (even a 0.7% variance was invalidated)
Regarding State Government Districts, the variance from district to district may not be unjustifiably large (almost exact mathematical equality is NOT required - even a 16% variance has been found valid) - state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest (for example, preserving political subdivisions)
*One person, one vote principle is generally inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes)
Delegation
Legislative power may be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (for example, the power to declare war or to impeach). A general standard will usually suffice as an intelligible priniciple
Commander in Chief Power
The President as Commander in Chief of the Armed Forces has broad discretion to use American troops in foreign countries. In fact, never in all of American history has a presidential use of troops in a foreign nation been declared unconstitutional.
Government Employee Oaths /First Amendment
The Supreme Court has upheld oaths requiring government employees to oppose the VIOLENT/UNLAWFUL overthrow of the government and to support the Constitution. However, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds
Restrictions on Right to Vote (Residency Requirements)
A restriction on the right to vote is subject to strict scrutiny and if valid only if it is necessary to achieve a compelling state interest (otherwise the restriction violates the EPC by treating new residents differently from old residents). Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to promote the compelling interest of assuring that only bona fide residents vote. However, the SC has struck down longer durational requirements for lack of a compelling justification. (impinges on right to vote and travel)
However, laws prohibiting nonresidents from voting are generally valid, provided they meet rational basis (ex: limiting the voters in a city’s mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting)
- Bona fide resident requirements are subject to rational basis
State Action - Private Entity
For the actions of a private entity to satisfy the “state action” requirement, the state must be “significantly involved” in the private entity. Merely granting a license or providing essential services is insufficient.
Obscenity
Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
(1) appeals to the prurient interest in sex, using a contemporary community standard;
(2) is patently offensive under a contemporary community standard; and
(3) lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard
Access to Trials
The 1st Amendment guarantees the public and press a right to attend criminal (and probably civil) trials. But, the right might be outweighed by an overriding interest stated in the trial judge’s findings.
**Supreme Court has held that trails and pretrial proceedings can be closed only if closure is necessary to preserve an overriding interest and the closure is narrowly tailored to serve the overriding interest
Original Jurisdiction of Supreme Court
The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states
Does Congress have the power to add to the Supreme Court’s original jurisdiction?
NO, Congress lacks the constitutional power to add to the Supreme Court’s original jurisdiction. Under Article III, Congress may only make exceptions and regulations regarding the Court’s appellate jurisdiction, not its original jurisdiction.
*Congress can define the original and appellate jurisdiction of Article III courts, but is bound by the standards set forth in Article III concerning subject matter and party jurisdiction and the requirement of a “case or controversy”
*Congress can also create courts under Article I (for example, tax courts)
