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Flashcards in Constitutional Law Deck (36)
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[CON LAW] • 2 • Legislative Powers • Commerce Clause •

The commerce clause grants the federal government authority to regulate commerce between the States (interstate commerce), and with foreign nations and Indian tribes. With regard to interstate commerce , the federal government may regulate the channels (i.e. highways) and instrumentalities (i.e. cars) of interstate commerce, AND activities that have a substantial effect on interstate commerce .


[CON LAW] • 1 • Legislative Powers • Commerce Clause • Intrastate Activity

Regulations regarding intrastate activities will be upheld if there is a rational basis to conclude that the cumulative impact of the activities have a substantial effect on interstate commerce . Where the activities are NOT commercial or economic in nature, the substantial effect cannot be based on cumulative impact.


[CON LAW] • 2 • Legislative Powers • Dormant Commerce Clause •

State and local laws are unconstitutional if they place an undue burden on interstate commerce. An undue burden exists when the law discriminates against out-of-state residents, UNLESS the burden on interstate commerce is necessary to achieve an important state objective. There is no undue burden if (1) the law was approved by congress ; OR (2) the state or local government is a market participant (a state may favor its own citizens regarding state programs and state businesses). An undue burden also exists when the burden on interstate commerce outweighs the benefits to the state government, even if the law does not discriminate against out-of-state residents.


[CON LAW] • 1 • Legislative Powers • Tax and Spending Powers •

Congress has the power to tax and spend for the general welfare . This power is interpreted broadly and allows congress to attach restrictions and conditions on federal funding in order to regulate areas it would otherwise have no power to regulate.


[CON LAW] • 1 • Legislative Powers • Congressional Delegation of Powers •

Congress may delegate legislative powers so long as the powers are delegable under the constitution AND Congress provides reasonably intelligible standards to guide the delegation. Congress cannot delegate executive or judicial powers to itself or its officers.


[CON LAW] • 1 • Executive Powers • Domestic Powers •

The President has the power to (1) execute the law ; (2) appoint officers of the US (with Senate advice and consent) and inferior officers; (3) remove cabinet level agencies (without cause) and independent regulatory agencies (without cause, though congress may require good cause); (4) pardon federal crimes (except for crimes that lead to impeachment by the House); AND (5) as commander in chief, the power to control troops .


[CON LAW] • 1 • Executive Powers • Foreign Powers •

The President shares treaty powers with Congress. Treaties must be negotiated by the President, and ratified by the Senate. However, the President alone may enter into executive agreements and may control and deploy troops in foreign countries.


[CON LAW] • 9 • Justiciability • Standing •

A plaintiff must have standing to sue in federal court. Standing exists when the plaintiff (1) personally suffered an injury in fact (the plaintiff has been injured or injury is imminent); (2) the injury was caused by the defendant (a reasonable connection is sufficient); AND (3) the injury is redressable by a court order. To receive injunctive or declaratory relief, the plaintiff must show a likelihood of future harm.


[CON LAW] • 1 • Justiciability • Standing • Third Party and Organizational Standing

Generally, third party standing is not permitted. However, exceptions are made when (1) there is a close relationship between the plaintiff and the third party (i.e. doctor/patient); (2) it would be difficult or unlikely for the third party to assert their rights on their own; OR (3) the third party is an organization . An organization has standing to sue on behalf of its members if (a) the suit is related to an issue that is germane to the organizations purpose; (b) the organizations members would have standing to sue; AND (c) the organizations members participation is not necessary .


[CON LAW] • 2 • Justiciability • State Action •

When alleging a constitutional violation, a plaintiff MUST show that the violation is attributable to government action . Generally, private conduct is not protected by the U.S. Constitution.


[CON LAW] • 2 • Justiciability • Case or Controversy • Ripeness and Mootness

Federal courts may only interpret the law in a real case or controversy . Courts cannot give advisory opinions or address hypothetical disputes.

Ripeness refers to whether the case is ready to be litigated. Courts may grant pre-enforcement review of a statute or law after considering the hardship of no review AND the fitness of the record for review.

Mootness refers to instances where the dispute in the case has ended or was resolved before review. However , a court may a case that has ended or was resolved where: (a) the wrong at issue is capable of being repeated and escaping review ; (b) the defendant voluntarily stops the action at issue, but can resume it at any time ; OR (c) in class action cases, where at least one member of the class has an ongoing injury.


[CON LAW] • 3 • Justiciability • Vague and Overbroad Statutes •

A statute is unduly vague , and therefore unconstitutional, if it does not put the public on reasonable notice as to what is prohibited. A statute is overbroad , and therefore unconstitutional, if it regulates more speech than is constitutionally permitted.


[CON LAW] • 2 • Incorporation Doctrine • •

The Bill of Rights was initially applicable only to the federal government, however under the incorporation doctrine, most of the provisions are now also applicable to the States. The only amendments that have not been incorporated are the 3 rd Amendment (freedom from quartering soldiers), 5 th Amendment (right to indictment by a grand jury), 7 th Amendment (right to a jury trial in civil cases), and 8 th Amendment (protection against excessive fines). The Fourteenth Amendment (equal protection) is incorporated into the Fifth Amendment making it also applicable to the federal government.


[CON LAW] • 2 • Commandeering States to Enforce Fedearl Law (Tenth Amendment) • •

All powers not granted to the Federal government are reserved to the States (unless such powers are expressly prohibited to the States). Congress cannot compel state governments to implement legislation, but Congress may induce state government action by attaching restrictions and conditions on federal funding grants (see Congress Tax and Spend Powers).


[CON LAW] • 3 • Prohibition Against Suing States (Eleventh Amendment) • •

The Eleventh Amendment prohibits citizens from suing their own state or another state in federal court UNLESS (a) the state explicitly waived its Eleventh Amendment protections; (b) the suit pertains to federal laws adopted under 5 of the Fourteenth Amendment ; OR (c) the suit seeks only injunctive relief . The Eleventh Amendment does not apply to local governments .


[CON LAW] • 1 • Thirteenth Amendment • Involuntary Servitude •

The Thirteenth Amendment prohibits involuntary servitude and applies both to the government AND private actors.


[CON LAW] • 2 • Preemption • •

Under the Supremacy Clause, federal law will always trump conflicting state law . State law may be preempted either expressly or impliedly. Express preemption occurs when federal legislation specifically states that federal law is exclusive. Implied preemption occurs through (a) direct conflict with state law ; (b) field preemption (when it appears from the law itself or its legislative history that the federal government intended to exclusively occupy a given field); OR (c) where the state law interferes substantially with the federal objective.


[CON LAW] • 5 • Fourteenth Amendment • Equal Protection Analysis •

The Equal Protection Clause of the Fourteenth Amendment prohibits the government from denying citizens equal protection of the laws . When the government makes laws that classify people into groups, the constitutionality of the law will be considered using one of three different levels of scrutiny.

Strict Scrutiny : Where a classification is based on a suspect class (race, national origin, or alienage) OR where the law infringes on a fundamental right for a class of people, the court will apply strict scrutiny .

Under strict scrutiny, the government must show that the classification is necessary to serve a compelling government interest.

Intermediate Scrutiny : Where a classification is based on a quasi-suspect class (gender, non-marital children, or undocumented aliens), the court will apply intermediate scrutiny .

Under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest.

Rational Basis : For all other classes, the court will apply rational basis .

Under rational basis, the plaintiff must show that the classification is NOT rationally related to any legitimate government interest (any conceivable interest, not necessarily the governments actual interest).


[CON LAW] • 1 • Fourteenth Amendment • Inability to Pay Filing Fees •

Although indigent individuals may not be denied fundamental rights because of their indigent status, they are not considered a suspect class, and therefore any statute considering indigent individuals need only meet rational basis.


[CON LAW] • 4 • Fourteenth Amendment • Procedural Due Process •

The Due Process Clause of the Fourteenth and Fifth Amendment guarantees that no person shall be denied life, liberty, or property without due process of law. Procedures are required when the government deprives an individual of such rights.

Deprivation of liberty occurs when the government deprives an individual of a freedom provided by the constitution or statute.

Deprivation of property occurs when an individual has an entitlement that is not fulfilled (i.e. welfare or social security benefits).

Eldridge Factors: To determine what procedures are required, the court will balance the three Eldridge factors : (1) the importance of the private interests being affected; (2) the risk of error under current procedures and the value of additional procedures; AND (3) the importance of the state interests and any burdens on the government that would arise from additional safeguards.


[CON LAW] • 5 • Fourteenth Amendment • Substantive Due Process •

Substantive Due Process pertains to the governments power to regulate certain activities . When the government attempts to regulate fundamental rights , it must satisfy strict scrutiny (the government must show that the law is necessary to serve a compelling government interest). Fundamental rights include (1) the right to vote, (2) the right to interstate travel, and (3) the right to privacy, which encompasses the right to marry, procreate, use contraceptives, raise ones children, keep the family together, and maintain custody over ones children. The government may regulate activities that do NOT constitute fundamental rights so long as it meets the rational basis test .


[CON LAW] • 1 • Privileges and Immunities Clause • •

Under the Privileges and Immunities Clause, the States may not discriminate against non-residents in regards to important economic activities or civil liberties. The Clause does NOT protect aliens or corporations from discrimination. However, statutes that discriminate against non-residents will be upheld if they are necessary to achieve an important government interest .


[CON LAW] • 4 • First Amendment • Protections Provided •

The First Amendment protects an individuals freedom of speech and expressive activities that constitute speech.


[CON LAW] • 2 • First Amendment • Free Speech • Content-Neutral Time, Place, Manner Restrictions

Government regulations involving the time, place, and manner of content-neutral speech must satisfy intermediate scrutiny . Under intermediate scrutiny, the government must show that the restriction is narrowly tailored to achieve an important state interest AND it leaves open alternative channels of communication.


[CON LAW] • 4 • First Amendment • Free Speech • Content-Based Restrictions

Government regulations regarding the content (subject matter OR viewpoint) of speech must satisfy strict scrutiny . Under strict scrutiny, the government must show that the restriction is necessary to achieve a compelling government interest AND it uses the least restrictive means to accomplish its purpose.


[CON LAW] • 2 • First Amendment • Free Speech • Prior Restraint

Prior restraints on speech occur when the government attempts, through court order or licensing requirements, to prohibit speech before it happens. Prior restraints are generally disfavored. Court orders preventing speech must satisfy strict scrutiny . Licensing requirements are permitted IF (1) the government has an important reason for licensing; (2) specific, articulated standards are used to grant the licenses; AND (3) procedural safeguards are in place.


[CON LAW] • 3 • First Amendment • Free Speech • Public Forum

A public forum is one that has traditionally been available to the public for free speech (i.e. sidewalks and parks). The government may regulate the time, place, and manner of content-neutral speech in public forums IF the regulation (1) is necessary to achieve an important government interest; AND (2) it leaves open alternative channels of communication. The regulation must be narrowly tailored to achieve an important interest, but it does not need to be the least restrictive means. The government may not regulate speech in public forums based on its content UNLESS it satisfies strict scrutiny (the regulation must be necessary to achieve a compelling government interest, and it must use the least restrictive means).


[CON LAW] • 2 • First Amendment • Free Speech • Quasi-Public Forum

A quasi-public forum is one that has not traditionally been available to the public for free speech, but one that the government chooses to make available . Quasi-public forums are treated like public forums .


[CON LAW] • 2 • First Amendment • Free Speech • Non-Public Forum

A non-public forum is one that has traditionally been limited for free speech (i.e. military bases and airports). The government may regulate speech in non-public forums IF the regulation is reasonable AND viewpoint neutral.


[CON LAW] • 1 • First Amendment • Free Speech • Commercial Speech

Commercial speech (speech that proposes a sale or service) is given fewer protections under the First amendment. The government may regulate truthful, non-misleading commercial speech IF the regulation directly advances a substantial government interest AND it is no more extensive than necessary to serve that interest. False or misleading commercial speech is NOT protected. The government may prohibit professionals from advertising or practicing under a trade name.