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Flashcards in Con Law Deck (98):

Justiciable Case or controversy defn

-CorC - facts developed such that actual & definite dispute exists between parties having adverse legal interests

-Ripeness – already harmed or Immediate threat of harm -
(1) P will suffer some harm or immediate threat of harm,
(2) issue fit for judicial review, and
(3) there is a record for judicial review.

-Standing - concrete personal stake in outcome
1,2,3 (see below)

To get into federal court: go up the RAMPSE
- Ripeness – Immediate threat of harm
- Abstention – No standing for unsettled state law, Will not enjoin state criminal proceeding
- Mootness – Live CorC, Except: Class Action, Repetition evading review
- Political Question – Const delegates to another branch
- Standing: Injury, Causation, Redressability
- Eleventh Amendment – Sovereign States



P must establish concrete personal stake in outcome. (MORE than just theoretical suffering from an Unconstitutional act in existence);

Constl. Standard:
1. Injury -
P has been or will imminently be PERSONALLY Injured (usually economic, but can be environmental or aesthetic)
2. Causation
betw injury/conduct
3. Redressability -
favorable decision will eliminate the harm alleged (redressability)

Standing of ORGanizations -
1) injury in fact to its members that would give standing on their behalf
2) injury related to organization's purpose; and
3) neither the nature of claim nor the the relief requires participation of the indiv. members

TP STANDING on behalf of another ok only if
1) claimant has own standing
2) Special relationship (doctor, family)
and 3) Vic unlikely/difficult to assert own rights
4) P has suffered injury that adversely affects her relationship w/ TPs (roller skates ex.Indirect Violation)

NO general standing to claim actions violate law or constitution if no personal standing; taxpayer has no genera l standing to challenge gov taxes or expenditures, but can sue for her own tax bill
suits attacking specific enactments of congressional spending/taxing on 1A Establishment clause grounds



relief sought must eliminate the harm alleged


Plenary defn



Privileges OR Immunities Clause of 14th Amend:
(I want to travel to 14 states....)

Applies to STATES!! not Fed.
Applies to CITIZENS only, not aliens

Protects rights of NATIONAL Citizenship
(right to petition congress for redress, right to use navigable waters, right to travel, right to vote for fed officials)
-often wrong answer

-(waiting period for benefits) normally subject to strict scrutiny and will lose


Sec 5 of 14th Amendment, Enforcement/Enabling Clause –

Enforcement/Enabling Clause –
• enabling sections giving Congress rights to enforce provisions using appropriate legislation in state/local action.
(CANNOT use to enforce against PRIVATE action which needs 13th A)


General Welfare Clause –

only correct when used as LIMITATION on taxing/spending
NOT indie source of power


Property Power -

Congress has power to make all needful rules and regulations re: territory or other property belonging to US


supersession doctrine –

a federal law will supersede any state law in direct conflict


11th Amend.

states or fed agencies can’t be sued in Fed ct; by its OWN citizens or citizens of another state

exceptions - CONSENT; 1 state can sue other state, sue US, or congress can waive per sec 5 14th A.; bankruptcy
can sue official if state treasury is not one paying damages


10th Amend violation

Congress cannot Commandeer states to enact/enforce federal regulatory statute.

All powers not reserved by Fed Gov are w/in state power.

Generally wrong answer on MBE. Ct has abandoned former holdings that 10th A precludes Congress from regulating areas involving tradl functions of state/local gov


Affectation Doctrine

congress has broad power to regulate any activity local or interstate, which has substl econ effect on interstate commerce; (National Econ Significance)

-Congress can regulate wages/hours of local EEs under commerce power


Dormant Commerce Clause:

"negative implications of CC"
STATE Reg of Interstate commerce – Must be
1. Non discriminatory (can’t favor out of stators)
2. Cannot create undue burden on Interstate commerce (burden must not outweigh benefits balance)
3. does not require nationally uniform regulation

test: State interest Must be necessary to achieve important gov purpose. IS

UNLESS congressional Consent/approval or Market participant


Congressional authorization –

Congress has huge power to delegate

delegation by congress of its plenary commerce power to the president, w/ guidelines

Foreign affairs reg is SHARED Cong/Exec, Fed Exclusive power


Contracts Clause

Art 1, sec 10 - only applies to STATE action;

prohibits states from retroactively impairing obligation of an existing public or private K
o unless important/legit gov interest exists AND is reasonable and narrowly tailored means

States impairing their own Ks are subject to SS.


state police power regs...

regs any health safety morals welfare or aesthetic interests


Fundamental Rights (4)

– Strict Scrutiny applies!
• Protected 1st amend rights
• Right to vote
• Right to Travel
• Right to Privacy (CAMPER)


Suspect Classes – SS

Suspect Classes – SS (RAN)
R - Race
A - Alienage (exception for significant gov function - teacher, police, jury)
N – Natl Origin


SS - Necessary

no Less restrictive alternative is available


Equal Protection Analysis -

14th Amend - STATE only
(also protects against vote dilution, no significant variance permitted)!

DPC of 5th Amend - FED

USED when affects SOME persons, not all
• Trigger – persons similarly situated, but treated differently
• Protects fundamental rights


Substantive due Process –

prohibits the government from infringing on fundamental constitutional liberties.

used where law affects ALL persons


Intermediate scrutiny categories

• Gender discrim
• Illegitimacy
• Comm’l speech
• Content neutral TPM restrictions


Alienage - -

• State discrim against alienage gets SS

EXCEPT when functioning of Gov is involved…(police, teachers, jury) – STATE MAY discrim here – RBR

• FED discrim against alienage ONLY gets RBR bc Federal plenary power over immigration/aliens

Undocumented Alien children - get IS


Power to Pardon

Exclusive PRESIDENT power for FED CRIMINAL offenses only; Art II sec 2;

avail for all offenses against US, EXCEPT Impeachment. Not subject to control by Congress


Art 1, sec 1

vests all legislative power in congress


Bill of Attainder

(prohibited) legislative act that inflicts punishment w/o a judicial TRIAL upon person who is designated either by name or in terms of past conduct


Establishment Clause Tests

Sect Preference? apply SS - "Narrowly Tailored" to promote Compelling Gov Purpose, often fails

NO sect preference? Lemon Test - must have
1) have secular purpose (accommodation of relig ok)
2) have primary effect that neither advances nor inhibits religious,
and 3) not produce excessive gov entanglement w/ religion.

*long history of legislative prayer found OK!


5th Amendment DPC applies to state or fed?

applies (equal protection ) to Federal government, not states



so unclearly defined that persons of ordinary intelligence must guess at its meaning.


inter-governmental immunity

STATE gov cannot tax or regulate activities of the FED gov w/o Congressional Consent; Thus instruments and agents of fed gov are immune to state regs


inter-governmental immunity

STATE gov cannot tax or regulate activities of the FED gov w/o Congressional Consent; Thus instruments and agents of fed gov are immune to state regs

BUT, STATE NON discriminatory INDIRECT taxes on FED Gov or its property: permissible if they do not unreasonably burden the federal government


8th Amend

Right against cruel & unusual punishment


TPM reg in public forum valid if

1. content neutral
2. narrowly tailored to important interest and
3. leaves open altv channels of communication

• 1. Signif/impor gov interest
• 2. Narrowly tailored
• 3. Leaves open altv channels


Property clause (art 4, sec 3)

grants Congress power to make all needful rules and regs respecting the territory or other prop belonging to the US (acquire/dispose of Prop, and protect prop w/ regs)


TPM reg in public forum valid if

1. content neutral
2. narrowly tailored to IMPORTANT gov interest and
3. leaves open altv channels of communication


for Cause gov EE fired, required response?

PRE termination hearing to respond required bc property interest (entitlement) (DPC)


Congress may tax if:

Congress has plenary power to tax if:
1. bears some reasonable relationship to revenue production or
2. congress has power to regulate taxed activity


at will EE fired, property interest?



Standard for Age Discrimination?



commercial speech Regs

No right to: Unlawful, misleading, fraudulent - but But even true statements can be limited – IS
IF -
1. Regulation serves a SUBSTANTIAL government interest,
2. directly advances the interest, and is
3. narrowly tailored to serve that substantial interest

-does not require least restrictive means, but must be reasonable fit between ends/means


Standard for Gender Discrimination?



The Free Exercise Clause:

prohibits government regulation that is specially designed to punish someone on the basis of their religious beliefs.

Ex. cannot force religious oath, exclude clerics from public office, or declare belief to be false.

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.

invalid Unless survives SS, but it never has....

Exception - State cannot deny unemployment if person quit for religious reasons; Amish education exception until 16


True threats—

statements meant to communicate an intent to place an individual or group in fear of bodily harm—may be sanctioned;


Fighting words—

words or epithets that, when addressed to an ordinary citizen are inherently likely to incite immediate physical retaliation—may also be sanctioned; and FW statutes are often struck down for overbreadth.


Incitement Test -

clear and present danger test of Imminent Lawless Actions - TEST

invalid when it is directed to producing or inciting imminent lawless action and is likely to produce such action.

a. Imminent Lawless Action
. .i. Clear and present danger – imminent illegal conduct likely
. .ii. Speaker intended to cause


Requirements for Prior Restraint

Any governmental action that would prevent a communication from reaching the
public. (not prior restraint if altv means)
1) Standards must be narrowly drawn and definite;
2) the restraining body must promptly seek an injunction;
and 3) there must be a prompt and final judicial determination of the validity of the restraint.
restriction on speech prior to publication
• Usually struck down
• Ex. Gag order on press


Requirements for Prior Restraint

Any governmental action that would PREVENT a communication from reaching the
public. (not prior restraint if altv means)
1) Standards must be narrowly drawn and definite;
2) the restraining body must promptly seek an injunction;
and 3) there must be a prompt and final judicial determination of the validity of the restraint.

To justify a prior restraint, the government must show that some special societal harm will otherwise result.


For congress to act need:

bicameralism: passage by both house and the senate


Deprivation of PROPERTY occurs when: (due process)

there is a legitimate claim or entitlement to benefit under law, and it is not fulfilled; mere expectancy or need is not enough.

entitlement - reasonable expectation to continue receipt of benefit.



giving bill to president to sign or veto


Procedural Due Process Test

Has there been [intentional] deprivation of
liberty (Signif. Freedom), or
property (entitlement not fulfilled)?
notice and hearing

The courts consider:
(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.


deprivation of LIBERTY is (due process)

when there is a loss of a significant freedom provided by Constitution or statute


ex post facto law

CRIMINALLY punishes conduct that was lawful when it was done or increases punishment after it was committed;

legislation that retroactively alters the CRIM law in substantially prejudicial manner.



no live controversy anymore;
1. wrong capable of being repeated to P;
2. D voluntarily gave up
3. class action


validity state tax affecting Interstate commerce:

1. MUST BE NON Discriminatory or INVALID!
state may impose taxes on companies doing interstate commerce as long as it does not discriminate against or unfairly burden interstate commerce.
Factors -
1. substantial nexus between activity and taxing state;
2. fair apportionment based on extent of taxable property or activity in state
3. fair relationship between tax and the services provided by state.


Legislative Vetos and Line-item vetos are...

always unconstitutional! need bicameralism or presentment


bill of attainder

A bill of attainder is a legislative act that punishes an individual, who is identified either by name or in terms of past conduct, without a judicial trial. Like ex post facto laws, bills of attainder are constitutionally prohibited.

law directs punishment of person w/o a trial


use tax

tax imposed on users of goods purchased OUT OF STATE; imposed by state in which buyer resides

Permisslbe if:
1. non discriminatory
2. does not otherwise unfairly burden Interstate commerce.
-USE tax burden on the goods purchased out of state is equivalent to the sales tax burden on goods purchased w/in the state.


"private" Action attributed to Government IF:

14A makes provisions of Bill of Rights applicable to states, does NOT apply to purely PRIVATE conduct that interferes with these rights.

1) if the activity is an EXCLUSIVE and traditional public function
Significant state involvement -
2) greatly intertwined or
3) if the government affirmatively facilitates the activities
(e.g., court enforcement of a race-based restrictive covenant, Authorization/encouragement)
NOT SUFFICIENT: state granted monopoly or state regulation, state grant of land


ad valorem tax

tax based on % of assessed value of property in question; ok if at LAST destination of stream of commerce


Contracts Clause

applies only to STATES, and only to legislation.

Considerations-Whether the legislation
(i) substantially impairs a party’s rights under an existing contract,
(ii) serves an important and legitimate public interest, and
(iii) is a reasonable and narrowly tailored means of promoting the public interest are factors courts will consider in determining whether legislation is valid under the Contract Clause.


ex post facto law

An ex post facto law is a statute or ordinance that retroactively changes the criminal law in such a substantially prejudicial way that an individual is deprived of a right he previously had, for a punitive purpose. constitutionally prohibited.


may Congress regulate local NON Economic/Commercial local activities?

Yes, under Commerce Power, IF Congress can factually show a Substantial Economic Effect on interstate commerce.
However, if the activity regulated is economic or commercial, such a showing by Congress is not necessary. Only need to show a rational basis to believe it has aggreagte effect.


Free Exercise Clause

Prevents government regulation that punishes conduct just because it is religious.
1. the INTENT of the law is to interfere with religion, or if 2. the law PUNISHES conduct solely because it is religious, the law is invalid.

(Former test: balancing - wrong! answer)


Ipso facto

Ipso facto is a Latin term that means "the fact itself." It usually is used to describe a situation when a fact itself has some legal consequence or effect.


Pari delicto

Pari delicto also is a Latin term. It simply means "equal fault." It often is used in contracts, criminal law, and equity as a description of a defense—where parties are of equal fault one should not be given a remedy against the other.


Enabling Laws

Laws enacted under the Enabling Clause of the Fourteenth Amendment must be
congruent AND proportional
to preventing or remedying the violation in question


may Congress regulate local YES Economic or Commercial local activities?

Yes, only if the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce


Public Forum

TPM restriction in public forum must be
1) Content Neutral (if Not, SS)
2) narrowly tailored to serve an IMPORTANT government interest, and
3) leave open alternative channels of communication.



punishes a substantial amount of protected speech in relation to its plainly legitimate sweep - facially invalid.

can't be enforced against anyone,
-NOT even if person is doing act NOT constitutionally protected.


Executive Power

Power to select ambassadors;
broad power over treaties and foreign relations and executive agmts; Needs advice/consent to enter treaty, but not to void treaty
-supersedes conflicting state laws


Congress Exclusive powers

Postal Service; Regulation of foreign Commerce (Import/export)


IS for 1A

advance important interests unrelated to the
suppression of speech and must not burden substantially more speech than necessary to further those interests


SS for 1A

regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.


Preemption, supremacy

State law may fail under the supremacy clause even if there is no direct conflict -
Where Fed Gov intends to Occupy WHOLE field, Fed law is applied and state law is void.

Congress will indicate INTENT through Statute's express language or through its structure and purpose (implied).


Con Law Essay Approach

1. Justiciable Case or Controversy
2. Governmental Power/Act
3. Indiv Rights


political Question

1. issue committed to political branch
2. or inherently incapable or judicial resolution

Ex. Republican form of Gov Clause, Challenges to President's conduct in foreign policy, challenges to impeachment/removal, challenges to partisan gerrymandering


Commerce power to reg:

1. channels of interstate commerce
2. Instrumentalities of IS commerce (persons/things)
3. Activities that have a substantial effect on interstate commerce
Fed plenary power to reg IS power and commerce w/ foreign nations



Federal Law will supersede a conflicting state law that is directly in conflict (or if field is preempted)

Exception - state police power for health, safety, welfare: state allowed to regulate things in even safer way than Fed unless CLEAR intent to preempt


full faith and credit

every STATE must honor decision of other STATE decision IF:
1. orig ct had jurisdiction (pj and smj)
2. Judgment was on the merits
and 3. Judgment was final



little children saying "PPs!)
Speech is obscene when the work, taken as a whole appeals to the prurient interest, as determined under contemporary community standards, depicts or describes, in a patently offensive way, sexual conduct, as defined specifically by state law, and the work as a whole lacks substantial scientific, literary, artistic, or political value.
. .i. Appeals to the prurient interest – local
. .ii. Patently offensive – local
. .iii. Lacks serious (literary, artistic, political, scientific) – natn’l


War powers

President orders/sends troops (Comm Chief)

• broad emergency powers as commander and chief, humanitarian or war purpose

Congress cannot make president send troops, but raises and supports armed forces, congress power to declare war

Pres needs congressional approval for treaty or declaration of War

NO Presidential PLENARY power… limited by checks/balances



Taking of private property for PUBLIC use

Possessory or Regulatory that Denies property owner of ALL or partial economic use requiring GOV pay JUST compensation;

Reg taking - Deprives owner of any reasonable economically Viable use

Partial Taking? Consider:
Economic Impact on Claimant
Interference with investment backed objectives
Character of Gov Action (public interest)


SS and IS - BOP on



RBR - BOP on



Fundamental Rights - SS

Privacy (CAMPERS - Contraception, Abortion, Marriage, Procreation, Education (private choice), Relations of Family, Sexual Relations)


Statute of Limitations

K obligation barred by SOL is enforceable when NEW promise to pay is 1. IN WRITING or 2. there has been Part Performance


To impeach an officer

House impeaches w/ majority
senate conducts trial and convicts w/ 2/3 vote


pass normal law

majority of the house


Right to vote

fundamental right, BUT laws prohibiting NONresidents from voting are generally valid, provided they meet the minimal scrutiny or Rational Basis Test.
Law upheld IF: rationally related to a legitimate gov interest. (efficiency, representation)


Employee Speech

NO 1A protection for speech of Gov EES on the job w/in scope of duties, even if touches on a matter of public concern!

gov EES = if say something NOT w/in scope of duties - weigh matter of public concern issue against gov interest in Efficiency


Appointments Clause

permits Congress to vest appointments of inferior officers only in the President, courts, or heads of dept. Enforcement is an executive act, so Congress CANNOT appoint members of a commission that exercises enforcement powers.





SCOTUS Orignal Juris

Must take -
-Appeals exist for decisions of 3 judge Fedderal District Courts
-Suits between State Governments

by cert - state sup ct case; US Ct of appeal case

TO review State decision - must NOT be a decision on INDEPENDENT & Adequate state grounds


treaty !!!!

amgt betw US and foreign country
1. negotiated by Pres
2. ratified by Senate
3. prevail over conflicting state laws

BUT - if Treaty conflicts w/FED statute - Last adopted in time controls!!!!

Executive Agmt -
signed by PRes and head of foreign nation
-no senate required
-prevail over STATE laws, but NOT fed



Congress may NOT give itself or officers appointment power

may vest in inferior officers or Pres; or Pres appoints exec officers and senate confirms


impeachment crimes

treason, bribery, high crimes and misedemeanors


Privileges and I Clause Art 4 -

prohibits discrimination by state against nonresidents. Does NOT apply to aliens or corp.

ONLY fundamental Rights commercial and civil liberties.

Law valid if state has substantial justification for different treatment AND LRM

(ie nonresidents cause or are part of problem state is trying to solve.)