Con Law Rule Statements Flashcards
(25 cards)
Justiciability Doctrine
The justiciability doctrines are a set of principles that detmerine whether a court has the authority to hear and decide a particular case. The primary justiciability doctrines include: standing, ripeness, mootness and the policatal question doctrine. To have standing, the plaintiff must show: (1) an injury-in-fact, (2) causation, and (3) redressability. Injury in fact is a concrete and particularizd harm that is actual and imminent, not speculative or conjectural. Causation means a causal connection between the inury and conduct complained of. The causation should be fairly traceable to the defendant’s conduct. Redressability is the likelihood that a favorable court decision will remedy the injury. Courts are prohibited from issuing advisory opinions, which are opinions on legal questions that do not resolve an actual dispute. Ripness ensures that all elements of the cause of action are established. Mootness bars courts from hearing a case where the issue has already been resolved or has become irrelevant by the time the court hears the case. Exceptions to mootness are: volunrary cessation, wrongs capable of recognition but evading review, and class actions. The political question doctrine holds that certain issues are more appropriately handled by the exectuive and legislative brances and not the judiciary. A political question is found where it is textuall committed to another branch or there is a lack of judicially manageable standards for resolving it. Knonw political questions include; political gerrymandering, the gaurantee clause, where wars begin and end or the president’s command of armed forces, issues concerning treaty ratification or the recognition of foreign governments, and presumably vetos, impeachments, pardons, and other processes committed to other branches.
Judicial Review
In Marbury v. Madison, Chief Justice Marshall wrote “it is emphatecially the province and duty of the judicial department to say what the law it.” The holding in Marbury claimed judicial review for the federal judiciary over other federal branches and officers, thereby reorientating the sepearation of powers between them. Judicial review refers to a court’s power to review the actions of other branches or levels of government and invalidate these actions as being unconstitutional. Marshall pointed to Article III which grants federal courts subject matter jurisdiction over all cases arising under the Consitution, which entails interpreting the Constitution, thus implying judicial review.
Necessary and Proper Clause
The Necessary and Proper clause (also known as the elastic clause) is found in Article 1, Section 8, Clause 18 of the Consitution and grants Congress the power to enact laws that are necessary and proper for carrying out its enumerated powers. Chief Justice Marshall famously stated that “necessary” does not mean “absolutely necessary”, but rather means that the law must be convenient or appropriate to achieve the goal. Exercise of the necessary and proper clause must be linked to one of the enumerated powers and cannot be used as a basis for laws that are completely unrelated to those powers. Additionally, the clause cannot be used to violate other constitutional principles or rights.
Commerce Clause
The Commerce Clause, found in Article 1, Section 8, Clause 3 of the Constitution grants Congress the power to regulate interstate commmerce. The Lopez Test, extablished in United States v. Lopes, limits the scope of Congress’ authority under the Commerce Clause. The Lopez test provides that Congress’ commerce power extends only to activities that implicate (1) channels of interstate commerce, (2) instrumentalities of interstate commerce, or (3) intrastate activities having a subtantial affect or substantial relation to interstate commerce. To determine whether intrastate activities have a substantial affect or substantial relation to interstate commerce the court will look at the following factors: (1) is the activity economic or non-economic?, (2) Did Congress include a jurisdicitional element?, (3) Are there sufficient legislative findings?, or (4) Does it unnecessarily encroach upon state police power?
Taxing Clause
The Taxing Clause, found in Article 1, Section 8, Clause 1 of the Consitution grants Congress the power to levy taxes to provide for the common defense and general welfare, as long as the taxes comply with other constitutional limits. Congress is not permitted to use its taxing power as a penalty. To determine whether an act is considered a tax or a penalty the court will consider the following factors: (1) is it an exceedingly high burden?, (2) is it applied only to knowing violates?, or (3) is it enforced by the IRS or others?
Spending Clause
The Spending Clause, found in Article 1, Section 8, Clause 1 of the Constitution grants Congress the power to allocate federal funds for the general welfare. In South Dakota v. Dole, the Court set out a five-part test (the Dole Test) for when federal conditions on state spending are valid: (1) spending must be for the general welfare, (2) the conditions must be unambiguous, (3) the conditions must relate to the federal interests in the program, (4) the conditions must not violate other constitutional provisions, and (5) cannot be coercive. The court will consider the following factors when determining coercion; if there is a significant change to the existing program, state relience on settled expectations, and overall amount the state stands to lose.
Appointment Power
The Appointments Clause in Article II, Section 2 of the Constitution outlines the scope and procedures for appointments in the federal government. The Principal v. Inferior Officer disctinction determines how federal officers are appointed and their level of authority. Principal officers must be appointed by the President with Senate confirmation and have significant authority and independence. Principal officers can be fired at will by the President. Inferior officers may be appointed one of the following four wars: by the President alone (if Congress approves), by nomination from the President and Senate approval, by courts, or by heads of departments Inferiors officers typically have more limited authority, subject to supervision by higher officials. Inferior officiers can only be fired for cause. The Supreme Court uses factors like the officer’s duties, supervision, and level of authority to determine whether an officer is principal or inferior, as seen in cases like Morrison v. Olson.
Treaty Power
The President’s foreign policy powers are primarily outlined in Article II, Section 2, Clause 2, of the Constitution, known as the Treaty Clause. Treaties are the law of the land under the Supremacy Clause and come in two types: self-executing, which become automatically binding without futher legislation and non-self-executing, which require implementing legislation from Congress. In addition to treaties, the President can enter into executive agreements with foreign governments. These agreements do not require Senate approval and are binding under the President’s consitutional authority to conduct foreign relations.
Executive Privilege
Exectutive privilege is rooted in the seperation of powers and the need for presidential confidentiality, but is not absolute and can be challenged in certain circumstances. The court will look to the Nixon balancing test when there is a question whther or not executive privilege appleis. The Nixon balancing test requires weighing executive interest against the public interest. The executive’s interest in general privacy is not given much deference, while military or diplomatice secrets are given much more. As for the public interest, if the matter is a criminal investigation it will be given more weight than if it is a civil litigation.
The youngstown test
The Youngstown Test is the framework use by the court to determine the limits of executive power. It consists of three distinct zones: Zone 1, where the president’s pwer is at its maxium. The President acts pursuant to an express or implied authorization from Congress. Zone 2 is known as the twilight zone. The President acts in the absence of either a grant or denial of authority from Congress. The President’s power is uncertain and will be evaluated based on the circumstances. Zone 3, Presidential Power is at its weakest. The Presdient acts in opposition to the will of Congress. In this zone, the President must rely on one of his inherent powers or great deference will be given to Congress’ intent.
10th Amendment
The tenth amendment provides that any powers not expressly granted to the federal government by the Consitution, nor prohibited by the Consitution to the states, are reserved for the states or the people. The anti-commandeering doctrine is derived from the tenth amendment. Under the anti-commandeering doctrine Congress cannot; order a state legislature to pass a law that is does not want to pass, order a state law enforcement or executive officers to enforce a law that they don’t want to enforce, or order a state legislature not to pass a law that it otherwise wants to pass. Congress may still regulate matters within its own direct jurisdiction and thereby preempt any contrary state laws.
Preemption
Federal law may preempt state law under the Supremacy Clause (Article VI of the Constitution.) Preemption occurs in two main forms: express preemption and implied preemption. Express preemption occurs when the higher-level law expressly states that the intent is to preempt this subject matter entirely to the higher authority. Implied preemption has two subcategories: field and conflict. Field preemption occurs when the scope of legislation is so broad that there appears to be no room left for the lower level to legislate the same subject matter Conflict preemption occurs when the lower level and higher level law are in conflict to the entent that is either impossible for a person to satisfy both laws at the same time, or more controversially the lower law frustrates a legitimate federal objective. When a state law conflicts with federal law, or when federal law occupies an area to the exclusion of state law, the state law is invalid, and federal law prevails.
Dormant Commerce Clause
The Dormant Commerce Clause refers to the implied restriction on state power that prohibits staates from enacting laws or regulations that unduly burden or discriminate against interstate commerce, even in the absence of federal legislation on the matter. The doctrine is derived from the Comerce Clause (article 1, section 8, clause 3), which grants Congreess the power to regulate interstate commerce. A state law discriminates against interstate commerce if the law: discriminates against outside competition, discriminates to hoard resources, or discrimiantes to prevent burdens from entering the state. A state law demonstrating overt (facial) discrimination against interstate commerce is presumptively invalid but can be salvaged by surving a strict scrutiny anaylsis, that is the law pursues a compelling government interest and the law is narrowly tailored to achieve that purpose. A state law without overt (facial) discrimination, but that nonetheless burdens interstate commerce is also presumptively invalid. However it can be saved via a simple balancing test (the Kassel balancing test), comparing the local benefit and the relative burden on interstate commerce. There are two exceptions to the Dormant Commerce Clause: the quarantine exception and the market participant expception. The quaratien exception is either a bone fide medical emergency or an item so dangerous it needs to be destroyed immedialty. The state cannot treats it’s own dangerous matter in a different manner than anyone else’s. The market participant exception applies where states are acting as market participants by buying and selling products, or running commercial enterprises. States can go too far by trying to dictate downstream uses of product that they sell, because that is more akin to market regulation, not market participation.
State Action Doctrine
The state action doctrine holds that the protections and gaurantees providing by the 14th Amendment apply only to governmental actions and not to private conduct. There are two common exceptions to the state action doctrine: the entanglment exception and the public functions exception. The entanglement exception applies where the government authorizes or facilitates discriminatory conduct in the private sphere. Either the government must stop what its doing or the private conduct must comply. Simply possesing a government license or recieving government subsidy isnt enough. The public functions exception applies if the private entity performs a traditional, exclusive governmental task. The Consitution will apply to regulate the task. Private utlities and private shopping centers are not considered under the public functions exception.
Due Process Clause (procedural due process)
Due Process under the fifth (governmental) and fourteenth (state) amendments guarantee that no person shall be deprived of “life, liberty, or property” without due process of law. The Due Process Clause has two primary components: procedural due process and substantive due process. Procedural due process requires that the government follow fair procedures before depriving an individual of life, liberty, or property. Substantive due process concerns whether the government has a sufficient justification to infringe upon an individual’s right to life, liberty, or property. When determine whether or not there has been procedural due process, the court asks: (1) is there state action?, (2) has the state caused a deprivation of life, liberty, or property?, and (3) if so, what process is due to the plaintiff? When determining the process due to the plaintiff the court will apply the Matthew balancing test where they will weigh the private interest that will be affected, the fairness of the procedure, and the governmental interest.
Due Process Clause (substantive)
Due Process under the fifth (governmental) and fourteenth (state) amendments guarantee that no person shall be deprived of “life, liberty, or property” without due process of law. The Due Process Clause has two primary components: procedural due process and subtatnive due process. Procedural due process requries the government follow fair procedures before depriving an individual of life, liberty, or property. Substantive due process concerns whether the government has sufficient justification to infringe upon an individual’s right to life, liberty, or property. To determine if a law complies with substantive due process the court will apply either strict scrutiny or rational basis scurtiny. Strict scrutiny requires the law serve a compelling governmental interest via narrowly tailored means. Rational basis scrutiny requires the law serve a legitimate governmental interest via rationally related means. Strict scrutiny is applied to fundamnetal rights and rational basis scrutiny is applied to all other rights. Identificaiton of a substantive due process right requires a subjective inquiry into whether the right is deeply rooted in American history or tradition.
Equal Protection Clause
The Equal Protection Clause of the 14th Amendment provides that “no state shall deny to any person within its jurisdiction the equal protections of the law.” This clause is incorporated to the federal government via the fifth amendment. The application of the Equal Protection Clause is governed by varying levels of scrutiny, depening on the classification involved. The levels of scrutiny applied to Equal Protection are strict scrutiny, intermediate scrutiny, and rational basis scrutiny. Strict scrutiny is applied when a law or government action classifies individuals based on a suspect classification such as, race, national origin, religion, or impinges on a fundamental right. Under strict scrutiny, for the law to survive it must serve a compelling governmental interest via narrowly tailored means. Intermediate scrutiny is applied when a law or government action classifies based on a quasi-suspect classification such as, gender or sexual orientation. Under intermediate scrutiny for the law to survive it must serve an important government interest via substantially related means. The government bears the burden to prove both prongs when evaluting a law under strict scrutiny and intermediate scrutiny. Rational basis scrutiny is applied when a law or govenrment action involves a classification not included in strict or intermediate scrutiny analysis. Under rational basis scrutiny, for the law to survive it must serve a legitimate government interst via rationally related means. The plaintiff bears the burden to prove both prongs when applying rational basis scrutiny. Generally, strict scrutiny is fatal in fact for the government while rational bassis scrutiny is relatively easier for the government to abide by. Intermediate scrutiny is somewhere in the middle.
Proving Discrimination
To prove discrimination, it must either be prima facie on the face of the law, in which the appropriate tier of scrutiny applied or invidious in application in which case it must first be proven that there is disparate impact and a discriminatory intent, and then the appropraite tier of scrutiny is applied. Disparate impact and discriminatory intent are proven by the totality of the circumstances, including statistics, legislative history, unusual context, etc.
Free Speech (TPM)
The First Amendment protects individuals’ rights to freedom of speech, press, assembly, and petition. The public forum doctrine distinguishes between two types of property: tradtional public forums and non-public forums. Traditional public forums include places like streets, parks, and sidewalks. In this forum, speech is given the highest protection and the government can generally only impose time, place, and manner restrictions that are content neutral. Nonpublic forums include governemen owned properties not traditionally open to the public expression, such as prisions or miliatry bases. In this forum the government can impose more restrictions. Government restrictions are classified based on their relationship to the content of the speech or viewpoint expressed. Content-neutral restrictions are regulations that do not target specific subject matters. These restrictions will recieve intermediate scrutiny and are upheld if they serve an important government interest and are substantially related to that goal, the restriction must also leave ample alternative channels for the speech that is restricted. Viewpoint based restrictions are regulations that are based on one viewpoint and discrimiante based on that partiuclar viewpoint. Content based retrictions are regulations that target specific subjet matter or content and only applies to certain group or certain view point. View point based and content-based restrictions must pass strict scrutiny. So they must serve a compelling government interest via narrowly tailored means.
Free Speech (Brandenburg)
The first amendment protects individuals’ rights to freedom of speech, assembly, press, and petition. Under the first amendment the government may restrict speech only if it passes the Brandenburg Test. The Brandenburg Test holds that speech can only be limited if it is intended to incite lawless action and the speech is likely to incite such action.
Free Speech (Obrien and Johnson)
The first amendment protects individuals’ rights to freedom of speech, press, assembly, and petition. When evaluating government restrictions on expressive conduct, courts will apply either the O’brien test or the Johnson test, depending on whether the conduct involves symbolic speech and its impact on government interest. Under O’brien a government regulation that incidentially affects expressive conduct is permissible if it meets the following four-part test: (1) the regulation is within the government’s constitutional authority, (2) the regulation advances an important or substantial government interest, (3) the government’s interest is unrelated to the suppression of free expression (content neutral), and (4) the regulation does not prohibit more speech than is essential to further that interest. If the conduct involves symbolic speech (such as flag burning) the court will apply the Johnson test. The Johnson test protects expressive conduct and holds that the government cannot prohibit expressive conduct unless the law passes strict scrutiny.
Free Exercise Clause
The first amendment protects an individuals’ rights to freedom of speech, press, assembly, and petition. The free exercise clause of the first amendment prohibts the government from interfering with an individual’s right to practice their religion. The Religious Freedom Restoration Act (RFRA) requires courts to apply strict scrutiny in cases where free exercise of religion is substantially burdened. SCOTUS has overturned RFRA as applied to the states, but the act still applies the federal cases involving a free exercise claim. A general law of neutral application that all must obey and has no evidence of being intended to impact a particular relgion will recive strict scrutiny in federal courts or states that have enacted a version of RFRA, but will recieve rational basis scrutiny in states that have not enacted a version of RFRA.
Establishment Clause
The Establishment Clause of the First Amendment prohibits the government from establishing, supporting, or favoring any religion. The courts will look to the corecion test to determine if a law is violating the establishment clause. The coercion test requires actual manifestation, not just exposure to something that makes an idividual unformtable. Manifestion requires physcial harm such as jailtime, penalites, fines, or reduced grade in school.
Bicameralism and Presentment
Under the Bicameralism and Presentment requirement of the Constiution, outlined in Articel 1, sections 1 and 7, before a bill can become law, it must be: passed by the house of representatives and the Senate and presented to the President for either approval or veto. If the preseident approves the bill, it becomes law; if the president vetoes the bill, Congress may override the veto with a two-thirds majority vote in both chambers.
