Constitutional Law Flashcards
(33 cards)
What makes a claim justiciable?
Not an Advisory Opinion: Federal courts cannot issue advisory opinions, which are decisions that lack (1) an actual dispute between adverse parties, or (2) any legally binding effect on the parties.
Ripeness (before claims developed): Pre-enforcement reviews of laws and general policies are not ripe unless (1) the issues are fit for a judicial decision (i.e., the more the case involves legal issues) AND (2) the plaintiff would suffer substantial hardship in the absence of review.
Mootness (after claims developed): The plaintiff must be suffering from an ongoing injury. However, there are several exceptions: (1) controversies capable of repetition that escape review because of their inherently short duration, (2) cases where the defendant voluntarily stops the offending practice but is free to resume it, and (3) class action in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable.
Standing: A plaintiff has standing if he has suffered (1) a concrete and particularized injury in fact, (2) a causal connection between the injury and the alleged conduct, and (3) a likelihood that a favorable decision will eliminate their harm. A plaintiff can claim standing on behalf of a third party if (1) it is difficult for the third party to assert their own rights OR (2) a close relationship exists between the claimant and the third party. Corporations can claim standing on behalf of their members if (1) there is an injury in fact to the members, (2) the member’s injury is related to the organization’s purpose, and (3) individual members participating in the lawsuit is not required.
What are the exceptions to standing?
There are several exceptions to standing: (1) taxpayers challenging their tax bills, (2) violation of the 10th Amendment (as long as the person has a redressable injury in fact), and (3) challenges to congressional spending measures on First Amendment Establishment Clause grounds.
What are the rules for sovereign immunity?
The 11th Amendment’s doctrine of sovereign immunity bars suit against a state in federal and state courts. However, there are several exceptions: (1) express waiver, (2) structural waiver, (3) actions against local governments, (4) suits by other states or the federal government against states, (5) bankruptcy, (6) suits against state officers in their personal capacity or for acts that would violate the Constitution or federal law, and (7) instances where Congress allows plaintiffs to sue states for anti-discrimination violates under the 14th Amendment.
What is the Necessary and Proper Clause?
Congress has the power to make all laws necessary and proper to carry out any of the legislative powers enumerated in Article 1, as long as that law doesn’t violate another provision of the Constitution.
What are the rules for the Taxing and Spending Power?
Congress has the power to tax and spend to provide for the general welfare. This may be used for any constitutional public purpose.
Spending Power Conditions: Congress can impose conditions on the grant of money to state or local governments to encourage states to pass certain laws if (1) they are clearly stated, (2) they relate to the purpose of the law, (3) they are not unduly coercive, and (4) they do not otherwise violate the Constitution.
Taxes Generally Valid: Most federal taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare. However, a tax may be an unconstitutional penalty if it seeks to compel rather than influence behavior.
What are the rules for the Commerce Clause power?
Congress has the power to regulate (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) intrastate activities that have a substantial effect on interstate commerce (this only applies to commercial activities). This power allows Congress to prohibit private discrimination in places of public accommodation. However, under this power, Congress cannot regulate noneconomic intrastate activity in areas traditionally regulated by state or local governments and Congress cannot use it to compel activity.
What are the rules for Congress’s delegation of legislative power?
Congress can delegate rulemaking power to the executive branch or judicial branch as long as intelligible standards are set and the power isn’t something that is uniquely confined to Congress. However, under the Major Questions Doctrine, agencies that adopt regulations with extraordinary economic and political significance must have clear congressional authorization in exercising such power.
What are the rules for implied presidential powers?
If the President acts with the express or implied authority of Congress, his actions are likely valid. If the President acts where Congress is silent, the Court will consider the circumstances and any relevant history to determine whether his actions are valid. Usurping power from another branch or interfering with their tasks likely makes the act invalid. If the president acts against the express will of Congress and Congress had the authority to act, his actions will likely be invalid.
What are the rules for the 10th Amendment?
Under the 10th Amendment, powers not granted to the federal government are reserved to states or people. Under this Amendment, Congress cannot require the states to enact legislation or enforce federal laws.
What are the rules for preemption?
Express Preemption: A federal law may expressly say a state cannot adopt laws concerning the subject matter of federal legislation.
Implied Preemption: Implied preemption arises when (1) there is a conflict between state and federal law requirements that would make it impossible to comply with both laws, (2) a state law prevents the achievement of a federal objective, or (3) a federal law impliedly occupies the entire field.
What are the rules for the Privileges and Immunities Clauses?
Article IV: Article IV’s Privileges and Immunities Clause prohibits discrimination related to commercial activities or fundamental rights by a state against nonresidents. This Clause only applies to laws that are intentionally protectionist. If the state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.
14th Amendment: States may not deny their citizens the privileges or immunities of national citizenship (for example, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel).
Note: A Commerce Clause analysis will usually include a Privileges and Immunities Clause analysis.
What are the rules for the Dormant Commerce Clause?
Under the Dormant Commerce Clause, states cannot discriminate against or unduly burden interstate commerce.
Discriminatory Laws: Laws that discriminate against interstate commerce to protect local interests are invalid unless the law is necessary to achieve an important, noneconomic state interest and there are not reasonable nondisriminatory alternatives available.
Nondiscriminatory Laws: If a nondiscriminatory state law (that is, a law 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.
Exceptions to Discriminatory Laws: (1) Congress permits state regulations that would otherwise violate the Dormant Commerce Clause, (2) a state prefers its own citizens in receiving benefits from government programs or in dealing with government owned businesses, and (3) a law that favors government action involves the performance of a traditional government function (e.g., waste disposal).
What types of state action fall within the purview of the Constitution?
(1) Actions by private individuals who perform exclusive public functions or have significant state involvement, (2) activities that are traditionally the exclusive prerogative of the states, or (3) a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens or where there is sufficient entwinement between the state and private party.
What are the tiers of scrutiny?
Rational Basis: A law that does not affect fundamental rights or involve suspect or quasi-suspect classifications is upheld if it is rationally related to a legitimate government purpose. The law will be valid unless it is arbitrary or irrational. The person challenging the law bears the burden of proof that the law does not survive rational basis .
Intermediate Scrutiny: A law involving quasi-suspect classifications (i.e., gender and legitimacy) is upheld if it is substantially related to an important government purpose. Usually, courts place the burden on the government to show that the law survives intermediate scrutiny.
Strict Scrutiny: A law affecting fundamental rights (i.e., interstate travel, voting, and the First Amendment) or involving suspect classifications (i.e., race, national origin, and alienage) must be necessary (i.e., least restrictive means) to achieve a compelling government purpose. The law will be invalidated, especially if there is a less burdensome alternative. The government has the burden of proof to show that the law survives strict scrutiny.
What are the rules for procedural due process?
Procedural due process under the Fifth and Fourteenth Amendments protects life, liberty, and property. A liberty deprivation occurs if a person (1) loses significant freedom of action or (2) is denied a freedom provided by the Constitution or a statute. Property includes personal and real property as well as government benefits to which there is an entitlement.
Procedural due process requires (1) notice of a deprivation, (2) a hearing, and (3) a neutral decisionmaker. The type and extent of hearing are determined by a test that balances (1) the importance of the interest to the individual and (2) the value of specific procedural safeguards to that interest against (3) the government interest in fiscal and administrative efficiency. The claimant should ordinarily be given a pre-deprivation hearing. A neutral decisionmaker cannot have any actual bias or a serious risk of actual bias.
What are the rules for substantive due process?
Fundamental rights are subject to strict scrutiny.
Privacy Rights: Various privacy rights including marriage, procreation, contraception, childrearing, and keeping families together are fundamental rights. Exception: Abortion restrictions are subject to rational basis review.
Interstate Travel: An individual has a fundamental right (1) to travel from state to state, and (2) to be treated equally after moving into a new state. Exception: International travel is not a fundamental right.
Right to Vote: The right to vote is a fundamental right. As a result, restrictions on that right, other than on the basis of residence, age, and citizenship, are invalid unless they can pass strict scrutiny. For state and local elections, the populations of voting districts must be substantially equal, but a deviation is allowed if it is reasonable and tailored to promote a legitimate state interest (Note: A 10% deviation is presumptively valid). For Congressional elections, the populations of voting district must be almost exactly the same. However, Congress has deference to apportion representatives among the states.
Right to Bear Arms: If a regulation burdens an individual’s right to keep and bear arms, then the government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation.
Right to Intimate Sexual Conduct: No clear standard. Does not pass rational basis.
Right to Refuse Medical Treatment: Part of an individual’s “liberty” interest under the Fifth and Fourteenth Amendment Due Process Clauses.
What are the rules for Equal Protection?
An equal protection claim arises wheever the government treats some people differently from others. Equal protection guarantees apply against the states under the Fourteenth Amendment and against the federal government under the Fifth Amendment.
Standard: For strict or intermediate scrutiny to apply, there must be discriminatory intent. Intent may be shown by (1) a law that is facially discriminatory, (2) a discriminatory application of a facially neutral law, or (3) a facially neutral law with a disparate impact on a protected class of people.
Suspect Classifications: Classifications based on race, national origin, or alienage are subject to strict scrutiny. The government has a compelling interest in remedying past governmental discrimination, but promoting diversity is not a compelling government interest. Federal laws can discriminate against aliens, but state laws that discriminate against aliens are subject to strict scrutiny. The only exception is that state laws can discriminate against alien participation in state government and important public policy positions so long as the laws pass rational basis. Undocumented aliens are not part of a suspect classification, so rational basis applies to laws related to this class of people.
Quasi-Suspect Classifications: Classifications based on gender and whether children are marital or non-marital are subject to intermediate scrutiny.
Other Classifications: Classifications based on age, disability, and wealth are subject to rational basis.
Note: An Equal Protection analysis should include a substantive due process analysis.
What are the rules under the Taking Clause?
The Fifth Amendment provides that private property may only be taken (1) for public use and (2) the government must pay just compensation. This applies to personal property, real property, and certain intangible property.
Taking Generally: A taking occurs if there is a confiscation of a person’s property or a permanent or regular physical occupation of a person’s property by the government.
Taking - Temporary Occupation: Temporary occupations by the government may also be a taking, depending on factors like the degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property.
Taking - Development Exception: The government cannot condition a land permit on a taking unless (1) the government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest) and (2) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.
Taking - Denial of All Economic Value: If a government regulation denies a landowner of all economically viable use of their land, the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.
Taking - Decreasing Economic Value: In determining whether a decrease in economic value (e.g., prohibiting the most beneficial use) amounts to a taking, courts will consider (1) the government interests sought to be promoted; (2) the diminution in value to the owner; and (3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.
Public Use: If the government’s action is rationally related to a legitimate public purpose, the public use requirement is satisfied.
Just Compensation: Measured by the fair market value of the property taken at the time of the taking.
What are the rules for the Contract Clause?
The Contract Clause limits the ability of state and local governments to enact laws that retroactively impair contract rights. Legislation that substantially impairs an existing private contract is invalid unless the legislation satisfies intermediate scrutiny. Legislation that substantially impairs an existing public contract is invalid unless the legislation satisfies a heightened scrutiny.
What are the Rules for Ex Post Facto Laws?
The government cannot pass an ex post facto law, a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing someone for a past activity. This occurs if the law (1) makes criminal an act that was innocent when done, (2) imposes a greater punishment for an act than was imposed for the act when it was done, (3) reduces the evidence required to convict a person of a crime from what was required when the act was committed.
What are the types of protected speech?
The First Amendment protects words, symbols, and expressive conduct. Expressive Conduct is any kind of conduct that is either inherently expressive, or conduct that is (1) intended to convey a message and (2) reasonably likely to be perceived as conveying a message.
What are the types of unprotected speech?
Incitement: Speech is incitement if (1) it is intended to produce imminent lawless action and (2) likely to produce such action.
Fighting Words: Speech is fighting words if the speech contains verbally abusive words that are likely to invite immediate physical retaliation in an average person.
True Threats: True threats are words intended to convey to someone a serious threat of bodily harm. The speaker must have had some subjective understanding that their treats were of a threatening nature, but a mere mental state of recklessness is sufficient.
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 under a contemporary community standard, (2) is patently offensive under contemporary community standards, and (3) lacks serious value under a national, reasonable person standard.
What are the rules for defamation and other privacy torts?
Public Officials and Figures: If the plaintiff is a public official or figure, the plaintiff must show the defendant acted with actual malice–that is, the statement was made with knowledge that it was false or with a reckless disregard as to its truth or falsity. It does not matter whether the plaintiff was speaking on a matter of public or private concern.
Private Figure: If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintiff shows negligence. To recover punitive damages or presumed damages, they need to show actual malice. If the plaintiff is a private figure suing on a matter of private concern, the First Amendment is not involved.
What are the rules for commercial speech?
Commercial speech is not protected if it is (1) false, (2) misleading, or (3) about illegal products or services. Other regulations will only be upheld if they (1) serve a substantial government interest, (2) directly advance that interest, and (3) are narrowly tailored to serve that interest.
