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Flashcards in Constitutional Law Deck (103):

4 reqs for P to have standing:

1. Injury
2. Causation and redressability
3. No third party standing
4. No generalized grievances (suing as a citizen/taxpayer)


No third party standing, with 3 exceptions:

1. Close relationship b/w P and injured third party, P can be trusted to adequately represent the interests of the third party
2. third-party tanding allowed if the injured third party is unlikely to assert their own rights
3. org may sue for its own members, if members would have standing and interests are germane to org's purpose


Ripeness definition:

whether a fed ct may grant pre enforcement review of a statute or regulation


Mootness definition:

If events after the filing of a lawsuit end P's injury, the case must be dismissed as moot b/c P must present a live controversy (though non-frivolous $ damages will keep the case alive)


Political question doctrine:

Refers to constitutional violations that fed cts will not adjudicate

1. Challenges to prez's foreign policy
2. Challenges to partisan gerrymandering
3. Challenges to impeachment and removal process


Virtually all cases come to SCOTUS by

writ of cert


Final judgment review definition

Generally, SCOTUS may hear cases only after there's been final judgment of highest state court, or CoA.


For SCOTUS to review state ct decision, there must not be _______________ of decision

independent state law ground


Fed cts and state cts may not hear suits against state govs. Three exceptions:

1. State may expressly consent to be sued
2. States may be sued pursuant to fed laws under §5 of 14A
3. Bankruptcy proceedings


Suits against state officers are fine, with one exception:

If it is the state treasury that will be paying the damages


Definition of abstention:

Fed cts may not enjoin pending state ct proceedings


Congress has police power in: (MILD)

Indian reservations
Lands (federal lands)
District of Columbia


Def. of taxing/spending power:

Congress may tax and spend for the general welfare


Def. of commerce power:

Congress can regulate commerce w/ foreign nations and among the states


Congress can act under Commerce clause in 3 situations:

1. Channels of interstate commerce
2. Instrumentalities of interstate commerce and persons/things in interstate commerce
3. Economic activities that have a substantial effect on interstate commerce (for non-econ activity, can't aggregate the effect)


Congress can't compel state regulatory or legislative action. But it can induce state gov action by...

putting strings on grants, so long as conditions are expressly stated and relate to the purpose of the spending program


Can Congress delegate its legislative power?

Yes, w/ no limits


If a state law conflicts with a treaty,

state law is invalid


If federal statute conflicts with a treaty,

the one adopted last in time controls


If a treaty conflicts w/ Constitution,

treaty is invalid


What happens when executive agreement is in conflict w/ state law/fed law/Constitution?

Prevails over state law, but never over fed law or the Constitution


Def. of appointment power

Prez appoints ambassadors, fed judges, and officers of US, but Senate must approve the nom

Congress may vest appointment of inferior officers in the prez or heads of depts.


Def. of removal power

Unless removal is limited by statute, prez may fire any exec. branch official


When may Congress, by statute, limit prez's removal power? (2 reqs)

1. Must be an office where independence from prez is desirable, and
2. Congress cannot prohibit removal, only limit removal to where there is good cause shown


All fed judges and officers of US can be impeached and removed. Requires:

Impeachment requires majority of House, 2/3 conviction in the Senate


While in office, prez has absolute immunity to

civil suits for $ damages (but not for actions that occurred prior to taking office)


Prez has power to pardon anyone accused or convicted of:

federal (not state) crimes


Definition of express preemption:

when Congress has authority to act, it can state that its power is exclusive in a field; if a fed statute says that a fed law is exclusive in a field, then state and local laws are preempted


Even if fed statute is silent about preemption, implied preemption can be found in 3 ways:

1. If not possible for someone to simultaneously comply w/ fed and state, then state is preempted

2. If state impedes achievement of fed, then state is preempted

3. If Congress evidences clear intent to preempt state law, state laws are preempted (e.g. immigration)


Dormant commerce clause definition:

State/local laws are uncon if they place an undue burden on interstate commerce unless it's necessary to achieve imp. gov. purpose


Privileges and immunities clause of Article IV:

no state may deny citizens of other states the privileges/immunities it affords its own citizens w/o substantial justification (i.e. can't discriminate against out-of-staters)


If state law burdens interstate commerce, it violates the dormant commerce clause unless

it is necessary to achieve imp. gov. purpose and gov must show that no less discriminatory alternative can achieve its goal


2 exceptions where laws that otherwise violate dormant commerce clause will be upheld:

1. Congress approves it
2. market participant exception: state gov may prefers its own citizens in receiving benefits from gov programs


State may only tax activities if there is a

substantial nexus b/w product or activity to be taxed and the state


Cts in one state must give full faith and credit (enforce judgments of courts in another state), so long as:

1. court had personal and subject matter jx
2. judgment was on merits
3. judgment was final


Pursuant to 13A, Congress can prohibit

private race discrim. and has broad power to adopt laws to enforce this provision


Congress cannot use §5 of 14A to regulate:

private behavior. Only to regulate state and local gov


Def of rational basis test:

A law is upheld if it is rationally related to a legit gov purpose. Challenger has the burden of proof to show either that there's no conceivable legit purpose or that the law is not rationally related to it


Def. of intermediate scrutiny:

a law will be upheld if it is substantially related to important gov purpose. Under this test, gov has the burden of proof


Def. of strict scrutiny:

law will be upheld if law is necessary to achieve a compelling gov purpose. Gov has the burden of proof


Procedural due process: any taking comes down to TWO questions:

1. Has there been a deprivation of life, liberty, or property?
2. If so, what procedures are required?


Procedural due process: requires a 3-part balancing test:

1. Importance of the interest to the individual
2. Ability of additional procedures to increase the accuracy of the fact-finding
3. Gov interests (efficiency, saving gov $)


Procedural due process: welfare benefits termination requires:

both notice and hearing


Procedural due process: permanent termination of parent's right to custody requires

both notice and hearing


Procedural due process: termination of social security disability benefits requires

only post-termination hearing


Procedural due process: what liberty interests do prisoners have?

Basically none... they almost always lose


Procedural due process: non-citizen held as enemy combatant is entitled to due process. Meaning...

ability to challenge their detention


Procedural due process: US citizens facing crim charges in foreign country held by US military can...

file habeas petition seeking review of their detention


The Equal Protection Clause of 14A applies to

State govs only, NOT the fed gov


The 11A generally prohibits a fed ct from hearing

a private party's claim against its own or another state gov


Substantive due process: for laws affecting economic rights, analyze with:

rational basis test


Substantive due process: if there has been a gov taking, there must also be:

just compensation


Substantive due process: just compensation is measured as

the reasonable market value; the gain to the government is irrelevant


Contracts clause definition:

No STATE shall impair obligations of already existing Ks


Contracts clause: state and local govs may interfere w/ existing private Ks under what level of scrutiny:

intermediate scrutiny. If legislation substantially impairs party's right, the law must be a reasonably and narrowly tailored means of promoting an important and legit public interest


Contracts clause: state/local interference w/ gov Ks must meet what level of scrutiny:

strict scrutiny


How to analyze constitutional issues of gov interference w/ privacy:

Privacy is a FUNDAMENTAL RIGHT protected under substantive due process and receives STRICT SCRUTINY


Examples of privacy rights:

Right to marry
Right to engage in private consensual sex (gay or straight)
Right to custody of one's kids
Right to abortion
Right to purchase and use contraceptives
Right to refuse medical treatment (state may require clear and convincing evidence)


Standard for abortion (pre-viability)

States cannot prohibit abortion, but may regulate abortions so long as they do no create an UNDUE BURDEN on the ability to obtain abortions


Is there a constitutional right to physician assisted suicide?



Laws that prevent people from moving into a state must meet

strict scrutiny


The right to vote is _____

a fundamental right. Must meet SS


Standard for abortion (post-viability)

States may prohibit abortions unless necessary to protect the woman's life or health


3 steps of equal protection analysis (ONLY for state/local gov, never fed)

1. What is the classification?
2. What level of scrutiny must be applied?
3. Does this law meet the level of scrutiny?


Standard when gov discriminates based on race, alienage, and national origin:



Equal protection: if law is race/gender-neutral on its face, must demonstrate

both discriminatory impact and intent


Equal protection: schools may use race as

just one factor in admissions to benefit minorities and enhance diversity


Sex-based discrimination receives

intermediate scrutiny... can only be allowed if there is exceedingly persuasive justification


Equal protection: can't have classifications benefiting women that are based on



Equal protection: OK to have classifications benefiting women that are designed to

remedy past discrimination or differences in opportunity


Equal protection: Generally, laws that discriminate against non-citizens must meet SS. BUT when Congress discriminates against aliens,

only a rational basis test


1st amdmt: *CONTENT*-based restrictions on speech must meet standard of



1st amdmt: two ways of finding that a law is content-based:

1. subject matter restriction
2. viewpoint restriction


1st amdmt: content-neutral laws burdening speech generally must meet standard of

intermediate scrutiny


1st amdmt: court orders suppressing speech (prior restraint) must meet



1st amdmt: gag orders on press to prevent prejudicial prejudicial publicity are...

not allowed


1st amdmt: law is unconstitutionally vague if

a reasonable person cannot tell what speech is prohibited and what is allowed


1st amdmt: law is unconstitutionally overbroad if

it regulates substantially more speech than the constitution allows to be regulated


1st amdmt: symbolic speech: gov may regulate CONDUCT that communicates if

1. it has an important interest unrelated to suppression of the message, and
2. the impact on communication is no greater than necessary to achieve the gov goal


1st amdmt: speech by gov can't be challenged, b/c generally speech and gov funding of speech will be upheld as long as it's

rationally related to legit state interest


1st amdmt: gov may punish speech if there is a substantial likelihood of

imminent illegal activity and if the speech is directed to causing imminent illegality


1st amdmt: obscenity and sexually-oriented speech is generally unprotected. 3 part test:

1. Material must appeal to prurient interest, or shameful/morbid interest in sex
2. material must be patently offensive under the law prohibiting obscenity
3. taken as whole, material must lack redeeming artistic, literary, political, or scientific value as determined by a national standard


1st amdmt: child pornography general rule

child porn may be completely banned, even if not obscene


1st amdmt: can gov punish private possession of obscene materials?

NO, with exception that gov may punish private possession of child pornography


1st amdmt: if business is convicted of violating obscenity laws, gov may

seize assets of the biz


1st amdmt generally protects profane and indecent speech. Two exceptions:

1. free, over-the-air broadcast media
2. in schools


1st amdmt: advertising for illegal activity, and false and deceptive ads are

NOT protected by the 1st amdmt.

But states may prohibit attorneys/accountants from in-person solicitation of clients for profit


1st amdmt: in general, commercial speech can be regulated by gov under the standard of

intermediate scrutiny (must be narrowly tailored, but need not be least restrictive alternative)


1st amdmt: state may not create liability for the truthful reporting of info that was

legally obtained from the gov's records


1st amdmt: media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call, so long as

media did not participate in the illegality and it involves a matter of public importance


1st amdmt: general rule for public forums

gov properties that gov is constitutionally required to make available for speech

Regs must be subject matter and viewpoint neutral; if not, SS must be met


1st amdmt: most important examples of public forums:

parks and sidewalks


1st amdmt: in public forums, regs must be

1. content neutral
2. narrowly tailored to serve an important gov interest, and
3. leave open alternative channels of communication


1st amdmt: non-public forums general rule

gov properties that gov constitutionally can and does close off to speech.

The gov can regulate speech in non-public forums so long as the reg is reasonable (meets rat. basis) and viewpoint neutral


1st amdmt: examples of non-public forums:

Military bases
Areas outside prisons
Sidewalk outside post office


1st amdmt: freedom of association: laws that prohibit/punish group membership must meet



1st amdmt: freedom of association: to punish membership in group, must be proven that person

1. is actively affiliated w/ group
2. has knowledge of group's illegal activities
3. has the specific intent of furthering those illegal activities/objectives


1st amdmt: freedom of association: laws that require disclosure of group membership (general rule)

if such disclosure would chill association, must meet SS


1st amdmt: freedom of religion: 3 part test of establishment clause (S-E-X)

(S) must be a SECULAR purpose
(E) the primary EFFECT must be neither to advance nor inhibit religion
(X) there must not be EXCESSIVE gov entanglement w/ religion


1st amdmt: freedom of religion: gov can't discriminate against religious speech unless

SS is met


1st amdmt: can gov give assistance to parochial schools?

Yes, so long as it's not used for religious instructions


The one exception to general rule that people can't sue just because they're taxpayers:

Taxpayers have standing to sue fed gov for Establishment Clause violation


State tax on fed gov:

If indirect and nondiscriminatory, it's fine
If levied directly against fed gov w/o consent of Congress, it's invalid