Con Law Flashcards
(80 cards)
1
Q
What article does federal judicial power come from?
A
Article III
2
Q
Justiciability: When can a federal court hear a matter?
A
- What the case is requesting (Is it an advisory opinion?)
- Decisions that lack (1) an actual dispute between adverse parties, or (2) any legally binding effect on the parties - When it is brought (ripe or moot)?
- Who is bringing it (does the plaintiff have standing)
3
Q
How can a plaintiff establish ripeness before a law or policy is enforced?
A
- The issues are fit for a judicial decision AND
- The plaintiff would suffer substantial hardship in the absence of review
If they can’t prove either, then it would be moot.
4
Q
Mootness
A
A live controversy must exist at all stages of review. The plaintiff needs to be suffering from an ongoing injury.
Exceptions
-capable of repetition but evades review
(f the issues may arise again and will often or always face timing challenges)
-D voluntarily stops but can resume
-class actions with one live claim
5
Q
Three major components of Standing
A
- Injury (any concrete and particularized to the plaintiff harm)
-has occured or imminent
-likelihood of future harm - Causation: injury traceable to defendant
- Redressability: win can remedy injury
6
Q
Citizenship Exception to Standing
A
- No citizenship standing based on general claim that the government violates fed law or constitution unless there is a particularized injury
-Can challenge tax spending from the legislative branch and not the executive branch
The major exception to this rule 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.
7
Q
May a claimant have standing to assert the right of a third party?
A
Yes only if
1. It is difficult for the third party to assert their own rights, or
2. a close relationship exists between the claimant and third party.
no commercial organizations
8
Q
Standing of organizations to sue on behalf of its members
A
Yes, if there is:
- An injury in fact to the members
- The member’s injury is related to the organization’s purposes, and
- members participation not needed (not seeking individualized damages)
9
Q
Standing for free speech overbreadth claims
A
A person has standing to bring a free speech claim if the government’s restriction was overbroad even if that person’s own speech would not be protected under the first amendment. P can bring a claim on behalf of others whose speech would be protected under 1st amendment.
(e.g. publisher of pornhub (not constitutionally protected challenges an internet indecency ban on behalf og those with non-obscene websites)
10
Q
Exceptions to Sovereign Immunity
A
- Waiver
-Express (state has waived it)
-Structural (when a fed power is complete in itself AND the states implicity consented to the fed gov exercising that power as part of the plan of the constitution) - States can sue other states
- Fed gov can sue states
- Bankruptcy
- State officials
- Congress removes the immunity
11
Q
Supreme Court jurisdiction over state court decision
A
no review of state court decision if adequate and independent state ground
12
Q
Exceptions to general police powers for congress
A
fed alnds, native american rez and DC
13
Q
Necessary and Proper Clause
A
Congress can make laws that are needed to carry out its other powers listed in the Constitution. It’s like saying, “Congress can do what it needs to do to get the job done.”
14
Q
Taxing and Spending Power
A
Congress may tax and spend to promote general welfare. May be for any public purpose not prohibited by the Constitution
Can impose conditions on the grant of money to state or local governments if
1. clearly stated
2. relate to the purpose (highway spending for schools not allowed)
3. not unduly coercive AND
4. constitutional
15
Q
Commerce Power
A
Congress can regulate commerce w/ foreign nations, with Native American tribes and among states
Can only regulate not compel
Can prohibit private discrimination in activities that might have a substantial effect on interstate commerce
16
Q
What does interstate commerce include?
A
- Channels (internet, telephone lines, highways, etc.)
- Instrumentalies (how they move from one place to another, planes, cars, etc.)
- Local activities with aggregate effects
(how is your local prices going to affect the national price for example)
17
Q
Interstate commerce limitations
A
10th Amendment, can’t regulate or compel noneconomic activity traditionally regulated by states
18
Q
Delegation Doctrine
A
congress can delegate power but must include intelligible standards (usually general standard suffices)
But Major Questions Doctrine: bars agencies from resolving questions of “vast economic and political significance” without clear statutory authorization
-it’s a principle used to decide whether Congress has delegated a big enough authority to an agency to interpret major questions of law. So, it’s like deciding who gets to make the big decisions when it comes to important rules or laws.
19
Q
Separation of Powers
A
- No line item veto (President can’t amend bill by crossing out lines, sign or veto only)
-Needs bicameralism and presentment - No legislative vetoes
20
Q
What source of power: Congress prohibits hunting on federal lands?
A
Property power
21
Q
What source of power:congress bars racial discrimination at places of public accomodation?
A
Commerce clause
22
Q
What source of power: congress enacts divorce laws for DC
A
General fed police power for dc
23
Q
What article does presidential power derive from?
A
Article II
24
Q
What are implied presidential powers?
A
Implied presidential powers are authority granted to the President that isn’t explicitly stated in the Constitution but is inferred from the President’s role as the head of the executive branch. These powers are based on the President’s duty to execute the laws and manage the affairs of the government effectively.
-Strongest when authorized by Congress
-Twilight Zone: when President acts where Congress is silent, constitutionality is silent
-Acts against congress’ will, action likely is invalid
25
President's appointment powers
ambassadors, scotus justices, and other officers of the US whose appointments are not otherwise provided for in the constitution
can remove high level, purely executive officers at will (congress can only do so through an impeachment process)
26
Treaty Power
1. Negotiated by President
2. Approved by 2/3 Senate
3. if doesn't need legislation implemented by senate then it is a self executed treaty then it will trump state law
-if it conflicts with fed law, last in time rule
-but constitution trumps it all
27
Executive Agreements
No senate approval
way for the President to make agreements with other countries without needing formal approval from the Senate, which is required for treaties. These agreements can cover things like trade, security, or other important issues. While they're not as formal as treaties, executive agreements still carry weight and are legally binding.
Constitution > fed law > exec agreements > state law
28
10th Amendment
powers not granted to fed gov are reserved to states or power
-state police power: rational basis, legitimate purpose
-anti-commandeering: federal government can't force state governments to carry out or enforce federal laws or regulations.
-can use spending power to entice local officials to enforce fed law (immigration)
29
Supremacy Clause
provision in the United States Constitution that establishes the Constitution, federal laws enacted pursuant to it, and treaties as the "supreme law of the land." This means that if there is a conflict between federal and state laws, the federal laws prevail
30
Preemption (Express and Iplied )
Express: preemption refers to a situation where a federal law explicitly states that it overrides or preempts state or local laws on the same subject matter. In other words, when a federal statute contains language expressly stating that it preempts any conflicting state or local laws, those state or local laws are invalidated to the extent of the conflict. This can occur when Congress explicitly intends to regulate a particular area comprehensively, thereby displacing any inconsistent state regulations.
Implied preemption: when a federal law doesn't explicitly state that it overrides state or local laws, but its purpose or scope suggests that it should take precedence over conflicting state laws. Essentially, it's when the federal law's existence or nature implies that it should be the ultimate authority in a certain area, even if it doesn't expressly say so.
31
Privileges and Immunities Article IV
Prohibits states from discriminating against out-of-state citizens. a promise to treat everyone fairly no matter where they come from.
-important commercial activities and ability to earn a living
-Only U.S. citizens (not corps)
-Not absolute (can discriminate if the state law is to achieve a necessary purpose and there's no alternate route)
32
14th Amendment
Equal Protection: This means that all citizens are entitled to equal treatment under the law. States cannot discriminate against individuals based on characteristics such as race, ethnicity, gender, or religion.
Due Process: This guarantees that individuals have the right to fair treatment and legal procedures. It ensures that people cannot be deprived of life, liberty, or property without proper legal processes.
Citizenship Rights: The 14th Amendment defines citizenship and ensures that all persons born or naturalized in the United States are citizens, with equal rights and protections.
Privileges and Immunities: prohibits states from unfairly treating citizens from other states. It ensures that citizens have certain basic rights and protections regardless of where they live.
Right to federal protection on the high seas
33
Dormant commerce clause
implicit restriction on states' ability to pass laws that unduly burden/discriminate against interstate commerce.
implies that states cannot enact laws that interfere with or excessively burden interstate commerce, even in the absence of federal legislation on the same issue.
Valid if:
1. necessary to achieve purpose unrelated to protectionism (california fruit ban)
2. no non-discriminatory alternatives
34
dormant clause exceptions
1. congressional approval
2. market participant: states can favor local firms
35
Difference between Privileges or Immunities Clause of the Fourteenth Amendment and the Privileges and Immunities Clause of Article IV
the Privileges or Immunities Clause of the Fourteenth Amendment focuses on protecting the rights of U.S. citizens from state infringement,
the Privileges and Immunities Clause of Article IV ensures equal treatment of citizens among the states.
36
State Action Doctrine
Government action is needed for the Constitution to apply
-e.g. laws and acts of gov officials in official capacity
-not private action UNLESS activities traditionally and exclusively performed by government (private prisons)
-significant state involvement in private conduct (look at degree of state involvement, has to be significant or sufficient entwinement)
37
Levels of scrutiny
Strict Scrutiny
Intermediate Scrutiny
Rational Basis Scrutiny
38
Strict Scrutiny
-Highest level of scrutiny
-fundamental right or discriminates against a suspect classification (race/national origin)
-Gov must show that the law serves a COMPELLING STATE INTEREST and is narrowly tailored to achieve that interests
BURDEN OF PROOF: strict scrutiny
39
Intermediate Scrutiny
-Quasi suspect classification (gender, laws that impact fundamental rights such as the right to vote)
-Substantially related to important or significant gov purpose
BURDEN OF PROOF: on the government
40
Rational Basis (Minimal Scrutiny)
-No fundamental rights
-no suspect classification (race, gender)
-gov just has to show that the law is rationally related to legitimate government purpose
BURDEN OF PROOF: Person challenging and will lose if gov can show rationally related gov purpose
41
When is there a deprivation of life liberty or property?
Intentional or reckless government conduct
42
What does procedural due process require?
notice, and opportunity to be heard, and a neutral decisionmaker
43
Procedural due process: how is a the type and extent of a hearing determined?
(i) The importance of the individual's interest that is involved,
(ii) The value of specific procedural safeguards of the individual's interest, and
(iii) The government's interest in fiscal and administrative efficiency.
44
Substantive Due Process
implies that certain rights are so fundamental that the government cannot infringe upon them, regardless of the procedures followed.
If fundamental rights are burdened then strict scrutiny
45
When the gov denies everyone vs. a targeted group
When the gov denies everyone a fundamental right that raises a due process issue
If the gov denies targeted group then due process and equal protection
46
Privacy-Related Rights
1. Marriage (interracial, same sex, age, prison, etc.)
-unless gov can demonstrate that the law is narrowly tailored to promote a compelling/important interest
2. Procreation (right to reproduce)
3. Use of contraceptives
4. Rights of parents
5. Keeping extended family together
6. Obscene reading material
7. Right to (interstate) travel (but states can charge tolls)
-right to equal statement in a new state (some residency restrictions ok)
8. Right to Vote
-racial gerrymandering (strict scrutiny)
-partisan gerrymandering (not a right)
-one person, one vote (regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required)
9. Right to bear arms
-self defense in home and in public
-regulation has to be consistent w/ historical tradition of firearm regulation
NO PRIVACY RIGHTS
1. Abortion (state right; rational basis)
2. Collection and distribution of personal data
3. International Travel
47
What If government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved,
law will be upheld unless it is arbitrary or irrational. A rational basis standard applies.
48
Difference between 5th and 14th
5th Amendment: fed gov
14th: applies to state and local governments
49
How discriminatory classification proven?
1. facial discrimination (a law on its face)
-then heightened scrutiny is triggered
2. discriminatory application (neutral on its face, doesn't use a suspect classification but is applied on a protected class)
-must show discriminatory intent to trigger heightened scrutiny
3. disparate impact (facially neutral law may have a disparate impact on a class bc of how its written)
-must show discriminatory intent to trigger heightened scrutiny
50
Suspect Classifications
1. Race
2. National Origin
3. Alienage (at state and local level)
51
Alienage Classifications
1. Fed government: rational basis
2. State/Local government: usually strict scrutiny
-Exception: Rational basis review for positions and activities essential to self government
3. Children of undocumented aliens: probably rational basis (not a protected class so rational basis)
-look for irrational animus
52
Quasi suspect classifications
-gender: exceedingly persuasive justification
-non-marital children: must be substantially related to an important government interest
53
Classifications evaluated under the rational basis standard
age, disability, wealth
Animus is NOT rational (if gov's only interest in denying a benefit/imposing a burden on a group of people is a dislike it is not rational obvi)
54
Taking Clause
Fifth Amendment
Gov may only take your property for public use (rationally related to public health, safety, or welfare BROAD) and must pay just compensation (fair market value)
States via the 14th Amendment
55
What constitutes a taking under the taking clause?
1. physical confiscation
2. permanent, regular occupation
3. temp occupation (case by case analysis)
-degree of invasion, duration, gov's intention, foreseeability, the property
4. EXCEPTIONS: (doesn't require just compensation)
-development conditions
-public emergency
56
Regulatory Takings
when government regulations restrict the use of private property to such an extent that it effectively deprives the property owner of economically beneficial use, leading to a requirement for compensation under the Fifth Amendment of the United States Constitution.
Regulation decreases economic value > apply balancing test and consider
-economic impact
-investment-backed expectation
-public interest
57
Contracts Clause
prohibits states from passing laws that impair the obligations of contracts.
1. Private party contracts: intermediate scrutiny
-legislation can interrupt if: reasonable & narrowly tailored means of promoting an important & legit public interest
2. Public contracts: heightened scrutiny
58
Ex Post Facto Laws
Can't retroactively alter criminal liability
-criminalizing conduct
-increasing punishment
-reducing evidence
59
Bills of attainder
legislation that punishes individuals without trial is unconstitutional
60
What is speech?
1. words
2. symbols (flags)
3. conduct that is
-inherently expressive (wink) OR
-intended to convey and reasonably likely to be seen as conveying a message
61
Unprotected Speech
1. Defamation (partial protection)
2. Commercial Speech (partial protection)
3. Incitement
-intended to produce imminent lawless action and likely to produce such action
4. Fighting words (true threats)
5. Obscenity (separate flashcard)
62
Unprotected Speech: Obscenity Definition
Obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole: (must meet all three)
1. Prurient Interest: must appeal to a prurient interest in sex (morbid, degrading, or unhealthy interest in sexual matters). COMMUNITY STANDARDS
2. Offensiveness: The material must be patently offensive according to COMMUNITY standards.
3. Lacks Serious Value (literary, artistic, political, or scientific) using a NATIONAL, reasonable person standard.
63
Partially protected speech, defamation and matters of public concern
Public Official/figure
-must show elements of defamation plus
-falsity
-actual malice
(a) knowledge of falsity OR
(b) reckless disregard for truth
Private figure
must show elements plus
-if public concern (important to society/democracy)
(a) actual damages =negligence
(b) punitive/statutory damages = actual malice
-if private concern
actual malice not needed
64
Partially protected speech, commercial speech
false, misleading, or promoting illegal product it is not protected speech
protected only if it
1. serves a substantial government interest AND
2. directly advances that interest and
3. narrowly tailored to serve that interest
65
Protected Speech (how is it scrutinized)
1. Content-based restrictions-strict scrutiny
*Rules that treat speech differently based on what it says.
2. Content-neutral restrictions-intermediate scrutiny
*Rules that don't care what speech says, only how and where it's said. (often time, place, or manner)
66
Speech on government property (public forums)
Traditional public forums & designated public forums (e.g. streets, parks, etc.) (forum doctrine)
1. Content-based=strict scrutiny
2. content-neutral=intermediate scrutiny
*must leave ample alternative channels
67
Speech on government property (limited & non-public forums)
(e.g. courtrooms or school gym opened for a speech)
-can restrict speech to preserve spaces for intended use
-but can't engage in viewpoint discrimination (banning one view not another)
*viewpoint discrimination triggers strict scrutiny
68
How to evaluate a ban? (steps)
1. What is the forum type?
2. is the restriction/ban content based or content-neutral?
-what test governs? intermediate or strict?
3. Is it valid?
69
Speech in public schools (personal student speech on and off campus and school speech)
1. student speech on campus
-can't censor if there is a substantial disruption
-exception: can ban speech promoting illegal drugs
2. student speech off campus (limited restrictions)
-prevent bullying, cheating, and threats
-safety or educational concerns outweigh speech restrictions
3. school speech
-restrictions must be reasonably related to educational objectives
70
Speech in public employment (protected and unprotected)
Unprotected Speech
-workplace speech on matters of private concern
-speech pursuant to official duties
Protected
-speech as private citizen on matters of public concern (balance value of speech w/ interest in efficient workplace)
-speech as private citizen on matters of private concern (unclear, prob protected absent detrimental effect)
71
Vagueness Doctrine
1st Amendment, free speech context
requires laws, regulations, or policies to be clear and specific enough for individuals to understand what conduct is prohibited or required. It ensures that people are not subjected to punishment or sanctions based on overly ambiguous or unclear standards.
72
Overbreadth
invalid if bans substantially more speech than necessary
73
Prior Restraints (Free Speech)
Court orders/admin systems that prevent speech before it occurs rather than punish it afterwards (injunctions & licensing schemes)
1. Disfavored but treated under standard free speech doctrine
-content based v. content neutral (strict v. intermediate)
2. Content based prior restraints usually fail absetn special societal harm
-officials can't have unfettered discretion
74
System for prior restraints that must provide following safeguards
1. standards must be narrowly drawn, reasonable and definite
2. injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech) and
3. there must be prompt and final judicial determination of the validity of the restraint (e.g. a review of a permit denial)
75
Free exercise clause
prohibits gov from discriminating on basis of religious belief, status, or conduct
-religious beliefs covered based on role in believer's life
1. laws that discriminate on above-strict scrutiny
-facially discriminatory based on religion or
-facially neutral but narrowly tailored to target religion
76
What laws are not subject to the free exercise clause?
neutral laws of general applicability
(laws or regulations that are not specifically targeted at restricting religious practices or expression. These laws are neutral in the sense that they do not single out religion for special treatment, and they are of general applicability because they apply to everyone within their jurisdiction.)
77
Establishment clause
the government can't favor or promote any particular religion. A law or government program must be necessary to serve a compelling government interest if it includes a preference for some religious groups over others.
1. Neutrality principle
-gov must remain neutral
-neither favor/disfavor religion
2. Coercion
-cant coerce ppl to exercise/not exervise religion
3. History & Tradition
-must be interpreted by reference to historical practices/understandings
-can neutralize religious message, making non-neutral practice acceptable
78
What test is applied for determining the validity of government action under the Establishment Clause.
Strict scrutiny
In determining whether government action is valid under the Establishment Clause, courts will consider whether the action is neutral with regard to religion. Next, courts will consider whether the government action accords with history and faithfully reflects the understanding of the Founding Fathers. If so, the action is unlikely to violate the Establishment Clause.
79
Incitement to break the law (what amendment and what does it require?)
First Amendment
Speech must
-Advocate the use of force or illegality
-Intend to incite/produce imminent lawless action and
-Be likely to incite/produce such action
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