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Flashcards in Con Law Deck (24):

Substative Due Process or Equal Protection Questions Approach


Due Process: regulation affects everyone

No fundamental rts. involved à rational basis

Burden = challenger

Fundamental rt. involved (privacy, interstate travel, voting, 1st Amend.) à strict scrutiny

Burden = govt.


Equal Protection: regulations affects certain person or class of people

Suspect class involved (race, nat’l origin, sometimes alienage) à strict scrutiny

Burden = govt.

Quasi-suspect class (gender, legitimacy) à intermediate scrutiny

Burden: govt.



Equal Protection

What are the 3 levels of scrutiny?

3 Levels of Scrutiny


Strict Scrutiny = law must be necessary to achieve a compelling govt. purpose.
Intermediate Scrutiny = law must be substantially related to an important govt. purpose.
Rational Basis Test = Law must be rationally related to a legitimate govt. interest.



        Substantive Due Process

Protection of economic liberties – Contracts Clause.

Contracts CL (I§10): applies ONLY to state/local substantial interference w/ existing Ks


State interference w/ PRIVATE Ks à intermediate scrutiny.

Does the legislation substantially impair a party’s rights under an existing K?
If so, is the law a reasonably & narrowly tailored means of promoting an important & legitimate public interest?

State interference w/ GOVT Ks à strict scrutiny.
Ex Post Facto Clause – only applies to CRIMINAL cases
Retroactive civil liability à rational basis



     Equal Protection

Chart for scrutiny levels per classification.

A image thumb

Procedural Due Process

Step 2 – If there is a deprivation, what DP procedures are required?

3 Part Balancing Test:


The Importance of the interest to the individual


Ability of add’l procedures to increase the accuracy of fact-finding


Govt. interest in administrative efficiency




Substantive Due Process

Protection of economic liberties – Takings Clause.

Economic Liberties (employment, trade, minimum wage, consumer protection): RATIONAL BASIS REVIEW.


Takings: (1) taking for public? (2) just comp paid?

Possessory taking = physical taking
Regulatory = leaves NO reasonable economic use
Public Use = broadly defined
Just compensation = reasonable market value terms, loss to owner, NOT govt. gain important


Govt. conditions on property – benefit roughly proportionate to burden, otherwise taking
Existing regulations @ time acquired – can still challenge (e.g. zoning, environmental)
Temporary denial of use of property – NOT a taking if govt. action reasonable



        Procedural Due Process

Step 1 - Has there been a deprivation of life, liberty or property?

Liberty – loss of sig. freedom provided by Cons or statute

No deprivation – prisoners, harm to reputation, parent institutionalizing child
Deprivation – adult institutionalization requires notice & hearing

Property – entitlement (reasonable expectation to a continued receipt of  a benefit) not fulfilled
Govt negligence à not enough for DP violation – must be intentional or reckless

Exception: emergency situations – behavior that “shocks the conscience”

Govt. fails to protect people from privately inflicted harms à no denia of DP

Exception: in govt. custody or govt. literally created the harm



         Procedural Due Process

Deprivations of property protected by the DPC.

Notice & hearing nec.:

Before persons welfare benefits terminated
Before parent’s custody rights terminated
Pre-judgment attachment or govt. seizure of assets


Other requirements:

Student disciplined by public school à notice, opportunity to explain
Social security disability benefits termination à post-termination proceeding
Punitive damages à instructions to jury, judicial review
Exigent circumstances & pre-judgment attachment or govt. seizure à notice & hearing after seizure


Violate DP:

grossly excessive punitive damages
American citizen, foreign country, enemy combatant



Federal Executive Power

Appointment & Removal Power

Appointment power:  POTUS appoints ambassadors, federal judges & officers of the US

Congress may vest appointment of inferior officers in the President, the heads of depts or the lower fed. cts. BUT not in itself.


Removal power:  unless limited by statute – POTUS can fire any executive branch officers.

For Congress to limit removal à must be an office where independence from the President is desirable, and it is limited to where there is good cause. (i.e. cannot prohibit all removal)



Federal Executive Power

Civil Liability, Executive Privilege, Pardon, Impeachment

Impeachment and removal:  Pres., Vice-Pres., Fed. judges & officers of the US - for treason, bribery or high crimes & misdemeanors.

Only can be impeached by the House of Reps (majority) & then Senate must convict by a 2/3 vote to be removed.


Absolute immunity to civil suits for money damages for any actions while in office.


Executive privilege for presidential papers & conversations, but such privilege must be yield to other important govt interests. (e.g. need for evidence in criminal trial )


Power to pardon those accused or convicted of federal crimes but NOT crimes that led to impeachment, civil actions, state crimes.



      Federal Executive Power

What are the 6 executive federal powers & liabilities?


POTUS:  Federal Powers & Liability


Civil Liability
Executive Privilege



     State Regulation of  

      Interstate Commerce

State Taxation of Interstate Activity

State may not use their tax systems to help in-state businesses. (e.g. charge more for using out-of-state products in your goods).


May only tax activities if there is a substantial nexus to the state.


State taxation of interstate businesses must be fairly apportioned.

Ex: if a truck only is in your state for a little, you could tax that percentage of their revenue.  Only taxing that which is connected to it.



Federal Legislative Power

§5 of 14th Amendment

Congress’ Authority to Act


§5 of 14th Amendment: Congress may not create new rights or expand the scope of rights


May act only to prevent or remedy violations of rights recognized by the courts & such laws must be “proportionate” and “congruent” to remedying the Cons violations.


Ex: Congress passed religious freedom restoration act & sought to restore religious freedom by statute when previously been in the Cons - unconstitutional b/c Congress was creating new rights, expanding scope of rights.



Federal Legislative Powers

Legislative vetoes &

line-item vetoes.

Legislative vetoes and line-item vetoes are unconstitutional.


For Congress to act, there must always be bicameralism (passage by both the House and the Senate) and presentment (giving bill to President to sign or veto). 


Legislative veto: when Congress attempts to overturn executive action w/o bicameralism and/or presentment


Line item veto: when president attempts to veto part of bill while signing the rest into law (either has to sign whole bill or veto the whole bill)



       Federal Legislative Power

Commerce Clause

Congress’ Authority to Act


The Commerce Power – Congress can regulate:


The channels of interstate commerce (highways, waterways, internet)


The instrumentalities of interstate commerce & persons or things in interstate commerce

Instrumentalities: things that facilitate commerce such as trucks, phones, planes, internet
Persons or things (stocks, insurance, cattle, people)


Congress may regulate activities that have substantial effect on interstate commerce (cumulative effect – must be economic)



        Federal Legislative Power

What limits exist on Congress’ ability to delegate its powers to the executive/judiciary?



No limit exists on Congress’ ability to delegate legislative power to executive agencies or even to the judiciary.


Congress may not delegate executive power to itself or its officers


e.g. Act struck down à required that if executive doesn’t cut budget, Comptroller (congressional officer) would impose across-the-board cuts.


EXAM TIP: Answer choice saying “fed law unconstitutional as excess of delegation” is always wrong.



Federal Legislative Power

Does Congress have police power?

Congress’ Authority to Act


There must be express or implied power.
No police power (only state & local govt.)


EXAM:  What is Congress’ authority to adopt particular law?  Police power is usually wrong b/c Congress doesn’t generally have police power (must have explicit power to act) except if: (M-I-L-D)

Legislated for Military
Indian reservation
Federal Lands & territories
District of Columbia



Federal Legislative Power

Taxing & Spending

Congress’ Authority to Act


Spending & Taxing Power: may tax and spend for the general welfare


EXAM TIP: it is proper to say that Congress has the police power to act for the “general welfare” when taxing & spending.



    Federal Legislative Power

What are the 5 congressional powers?

Congress’ Authority to Act


Police Power (M-I-L-D)
Necessary & Proper
Tax & Spending Power
Commerce Powers
§5 of 14th Amendment




    Federal Legislative Power

Necessary & Proper Clause


Congress’ Authority to Act


Necessary & Proper Clause: Congress may choose ANY means, not prohibited by the Constitution to carry out something in its authority.


I.e. can create any law to execute any power granted to any branch of the federal govt.




What are the 4 doctrines for standing?

Is P the proper party to bring the action?


Injury – must allege & prove that P has personally been injured or will imminently be injured (for injunction)
Causation & redressibility – P must allege that D caused the injury so that a favorable ct. decision will redress the injury
No 3rd party standing of those not before the court
No generalized grievances.







Rule: if events after the filing of a lawsuit end the P’s injury, the case must be dismissed as moot



Wrong capable of repeating itself but evading review (to that P again)
Voluntary cessation by D of the action, but is free to resume it at any time
Class actions – as long as 1 member has an ongoing injury





What are the 4 justiciability doctrines that must be met for a P to have standing?



Ripeness – pre-enforcement review of statute or regulation before its enforcement b/c imminent threat of harm


Mootness – is the injury still in place


Political question



Supreme Court Review

What is the final judgment rule?

Final Judgment Rule


SC may hear cases only after there has been a final judgment of  the highest state court, of a US Ct. of Appeal or of a 3-judge federal District Court.


I.e. no interlocutory review in fed ct – all fed appeals must be tried before SC can hear it