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Flashcards in Constitutional Law Deck (56)
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1
Q

Justiciability Requirements

A
No advisory opinions
Must be ripe
Not moot
Standing
No PQ
2
Q

No Advisory Opinions

A

Rule: federal courts may not render advisory opinions, which lack:

  1. an actual dispute between adverse parties; or
  2. any legally binding effect on the parties
3
Q

Ripeness

A

Rule: federal courts may only decide controversies that are ripe for JR

Pre-enforcement review of laws (not DJ) are generally not ripe UNLESS:

  1. substantial hardship in absence of review
  2. issues and record are fit for review
4
Q

Mootness

A

Rule: federal courts may only decide live controversies

Live if:

  1. in suit for declaratory and injunctive relief, challenged law or conduct continues to injure
  2. in suit for damages, πis not made whole

EXCEPTIONS:

  1. capable of repetition & evading review
  2. ∆ voluntarily stops and can resume
  3. class action – 1 π suffers ongoing injury
5
Q

Standing

A

π must have:

  1. injury (any harm, but not ideological objections or generalized grievances; already or imminently occurring; personally suffered by π or one of the 3P exceptions)

NOTE: taxpayer standing OK if challenging own tax liability; challenge to congressional spending in violation of Establishment Clause ok, but not executive spending.

  1. causation (fairly traceable to ∆)
  2. redressability (favorable court decision can remedy harm)
6
Q

Third Party Standing

A

Close Relationship:

  1. π injured
  2. 2P unable or unlikely to sue
  3. π can adequately represent 3P

Organizations (on behalf of members):

  1. Members have standing
  2. Members’ injury related to purpose of organization
  3. Members’ participation not required

Free Speech Overbreadth (party whose speech can be censored sues on behalf of those whose speech cannot)

  1. Substantial overbreadth in terms of law’s legitimate and illegitimate sweep
  2. Not commercial speech
7
Q

Legislative Standing

A

Legislators may challenge acts that injury them personally, rather than the legislature generally

8
Q

Political Question Doctrine

A

Rule: federal courts will not decide political questions

  1. committed by Constitution to political branches of gov
  2. incapable of or inappropriate for judicial resolution

Examples:

a. Guarantee Clause: challenges to state’s gov as not republican form of gov
b. Foreign Affairs: challenges to P’s conduct of foreign policy and command decisions
c. Impeachment Process: challenges to procedures used by Senate to remove officials
d. Partisan Gerrymandering
e. Qualifications of Members of Congress
f. Seating of Delegates at national political convention

9
Q

Sovereign Immunity

A

Barred: state ∆ in fed/state court (and agencies)
EXCEPTIONS:
1. waiver
2. π = other state/fed
3. BR proceedings
4. 14th Am abrogation by Cong to prevent discrim

Not barred: injunctive relief and money damages from own pocket against:

  1. state officers
  2. local gov (city, county, etc.)
10
Q

Abstention

A
  1. Unsettled question of state law

2. Cannot enjoin state judicial/admin proceedings

11
Q

Final Judgment Rule

A

SCOTUS only hears cases after there has been a final judgment by the highest state court capable of rendering a decision or federal COA

12
Q

Independent and Adequate State Grounds

A

SCOTUS will not review a federal question if the state court decision rests on an independent and adequate state law ground. Outcome would be the same regardless of how the federal question is decided.

13
Q

Congress generally has no police powers to pass laws except…

A
  1. Native American reservations
  2. Federal land
  3. DC
14
Q

Necessary and Proper Clause

A

NOT a basis of leg. power

Allows Cong to choose any rational means to carry out an enumerated power, as long as the means are not prohibited by the Cost.

15
Q

Tax and Spend Power

A

Rule: Cong may tax and sped to provide for the general welfare
- Includes any public purpose not prohibited by Const, even if not within an enumerated power

Spending Conditions:

  • strings must be linked to purpose of spending and not violate Const.
  • strings cannot be unduly coercive
16
Q

Commerce Power

A

Congress may regulate commerce with:

  1. foreign nations
  2. Native American tribes
  3. among the states (channels, instrumentalities, and substantial effect on IC in aggregate)

LIMITS: Cannot regulate–

  1. Noneconomic activity in area traditionally regulated by states
  2. . compel participation in commerce, even if lack of participation substantially affects IC

Can prevent discrim under the Congress power in addition to the 14A EPC

17
Q

Delegation of Legislative Power

A

To Agencies: may broadly delegate leg. power as long as some intelligible principle guides exercise of delegated power

To President: no line item veto (violates bicameralism)

To Congress: no legislative veto to void duly enacted laws without bicameralism and presentment

18
Q

Speech or Debate Clause

A

Members of Cong enjoy immunity from civil and criminal liability for legislative acts

NOTE: not bribes, tweet, town halls, speeches, and publications outside of Cong

19
Q

P’s Appointment Power

A

Ambassadors, federal judges, and officers of the US

  1. P appoints
  2. S gives advice/consent by majority vote

Recess Appointments – permissible for vacancies arising before or during S recesses of 10+ days and valid until end of next S session

Inferior Officers –Cong may vest appointment power in P. department heads, or judiciary (but not Cong.)

20
Q

P’s Removal Powers

A

May remove high-level executive officers at will

Cong. may limit P’s removal of other exec. officials to good cause

Cong. may not remove exec. officials except through impeachment process

21
Q

P’s Pardon Powers

A

P may pardon anyone accused or convicted of a federal crime.

EXCEPTION: no power to pardon crimes underlying impeachment by HOR

NOTE: does not cover civil liability

22
Q

P’s Foreign Powers

A

War: power to declare war; CIC – broad discretion to deploy troops internationally (challenges may be PQ; Cong. checks through power of purse)

Treaties/Exec Agreements
Similar: P negotiates; trumps existing/future STATE law
Differences: 2/3 S to approve treaty (not EA); treaty trumps existing fed law (not future, and EA does not trump any federal law

23
Q

Impeachment

A

Cong may impeach P, VP, federal judges, and all officers of the US for treason, bribery, or other high crimes and misdemeanors

Process:

  1. HOR passes articles of impeachment by majority
  2. S convicts by 2/3 vote
  3. Removal requires both
24
Q

Presidential Immunity and Executive Privilege

A

Absolute Immunity: civil damages for any actions arguably within official responsibilities

No immunity: private suits, even while in office, for conduct prior to taking office

Executive Privilege: protects confidentiality of presidential communications, but may be outweighed by other important gov interests

25
Q

Inherent Presidential Powers

A
  1. highest when authorized by Cong.
  2. lowest when against Cong.
  3. Twilight zone where neither
26
Q

Federalism/10th Am

A
  1. 10th Am: Powers not granted to the US, or prohibited to the states, are reserved to the states or the people
  • general police powers reserved to states
  • Cong. cannot compel states to enact/administer federal programs (Anti-Commandeering Principle)
  1. Supremacy Clause: fed law preempts inconsistent state and local laws
  2. DCC
  3. P&IC Art. IV
  4. P or I C 14th Am
27
Q

Preemption

A

Express: Cong expressly says so
Implied:
1. Conflict – impossible to follow both; state law impedes fed law
2. Field – extensive fed regulation indicates cong. intent to occupy the field

28
Q

Dormant Commerce Clause

A

Prohibits state laws that discriminate or unduly burden interstate commerce

Discriminatory Laws (favor in-state over out-of-state commerce): INVALID unless:
1. necessary to achieve important gov. purpose
2. no less discrim. alternative
EXCEPTIONS: (a) cong. approves (b) market participant

Non-discriminatory Laws (evenly applied to in-state and out-of-state commerce): VALID unless burden on IC clearly outweighs non-protectionist benefits

29
Q

Privileges and Immunities Clause of Art. IV

A

Prohibits state laws that discriminate against out of state US citizens re:

  1. important commercial activities (i.e., livelihood)
  2. fundamental rights

Discriminatory Laws (favor in-state over out-of-state citizens): INVALID unless:

  1. necessary to achieve import gov purpose
  2. no less discrim alternative
30
Q

Privileges or Immunities Clause of 14th Am

A

Prohibits state laws that interfere with:

  1. interstate travel (fund. right to travel; equal treatment upon becoming permanent resident of state)
  2. petitioning the government

NOTE: not the BOR (thats the DPC)

NOTE: no fundamental right to int’l travel; no right to petition fed. government

31
Q

State Taxation of Interstate Commerce

A

Discriminatory Taxes: generally invalid

Non-discriminatory Taxes: generally valid if:

  1. substantial nexus between taxpayer and state
  2. fair apportionment to business done or benefits received in state

NOTE: states may not tax or regulate the federal government (including agents/activities) without its consent

32
Q

State Action

A
  1. State law
  2. State officials acting officially (even if unlawfully)
  3. Private party performing what is traditionally and exclusively a function performed by the government

NOTE: significant state involvement in challenged private conduct may count as state action

33
Q

Procedural Due Process

A

5th Am –> fed gov
14th Am –> state gov

General Rule: individual has a right to fair process when gov acts to deprive life, liberty, or property.

DEPRIVATION: intentional/reckless (not neg)
LIBERTY: physical freedom or const’l/stat. rights
PROPERTY: real/personal/tangible/intangible; gov. entitlement to which individual has reasonable expectation of continued receipt

Process Due:
1. Notice – reasonably calculated to inform person of deprivation

  1. Opportunity to be heard
    - Pre-Deprivation hearing: required unless gov. shows highly impracticable
    - Balancing test determines nature/extent of procedures, considering: (a) importance of interest to individual, (b) risk of error through procedures used, (c) accuracy gain from additional procedures, (d) burden on gov
  2. Before neutral decisionmaker – no actual or serious risk of bias
34
Q

Levels of Scrutiny

A

RB: legitimate interest, rationally related means, BOP on challenger, presumptively valid (NOTE: animus is not rational)

IS: important state interest, substantially related means, BOP on state, no presumption of validity

SS: compelling state interest, narrowly tailored/least restrictive means, BOP on state, presumptively invalid

35
Q

Equal Protection Clause

A

14th AM EPC: states/localities
5th AM DPC: EP component applying to fed

Trigger: government treating people differently

  1. What is the classification? (suspect, quasi-suspect, none?)
    (a) facial
    (b) disparate impact + discriminatory intent
    (c) if neither, RB review
  2. What is the level of review?
36
Q

Suspect Classifications

A

Race
National origin
Alienage classifications by state generally
Denial of fundamental rights to some

37
Q

Quasi-Suspect Classifications

A

Gener
Illegitimacy
Undocumented alien children by state

38
Q

Classification based on alienage

A

Congressional classification: rational basis

State classification: strict scrutiny
EXCEPTION: state and local governments may reasonably require US citizenship for activities and positions integral to democratic self-governance

39
Q

Classification based on gender

A

Test: intermediate scrutiny

Important government interest requires exceedingly persuasive justification, not a mere role stereotype

40
Q

Classification based on legitimacy

A

Test: intermediate scrutiny

Laws based on prejudice (typically denying benefits to all non-marital children) and invalid, but laws that distinguish among non-marital children are more likely to be upheld

41
Q

Substantive Due Process

A

14th Am DPC –> states and localities
5th Am DPC –> federal government

Fundamental Right if:

  1. Deeply rooted in nation’s history and tradition
  2. Implicit in concept of ordered liberty

DPC/EPC

  1. Denying EVERYONE a fundamental right is a SDP issue ONLY.
  2. Denying SOME a fundamental right is a SDP AND EPC issue.

Levels of scrutiny:

  1. Fundamental right –> SS
  2. Non-fundamental right –> RB
42
Q

Fundamental Rights

A
  1. Marriage – substantial interference w/right to marry is necessary to trigger SS; reasonable requirements to protect rather than hinder may be upheld under RB (e.g., age requirements)
  2. Procreation
  3. Contraception
  4. Custody, care, and upbringing of children
  5. Living w/extended family
  6. Interstate Travel (P&I)
  7. Voting (RB for reasonable requirements [age, residence, citizenship requirements]; SS for onerous or potentially discriminatory restrictions (poll tax, literacy test)
  8. Abortion (but undue burden test)`
43
Q

Right to Abortion

A

Pre-viability: State may regulate (but not prohibit) abortions to protect mother’s health or life of fetus.
TEST: undue burden (substantial obstacle) on access to abortion

Post-viability: state may prohibit abortions unless necessary to protect mother’s life or health

Not Undue Burden:

  • Requiring licensed physician
  • Requiring informed consent
  • Requiring 24 hour waiting period after informed consent
  • Requiring parental consent for minor (with judicial bypass option)
  • Banning partial-birth abortions
  • Not funding abortions

Undue Burden:

  • Requiring spousal notification or consent
  • Requiring extensive recordkeeping and reporting of abortions (not directed at maternal health or not sufficiently protective of privacy)
44
Q

Right to Refuse Medical Treatment

A

Competent adult may refuse lifesaving medical treatment, but state may require CCE of indicidual’s intent and prevent family members from terminating treatment.

No right to physician assisted suicide.

State may compel vaccination against contagious diseases.

45
Q

Takings

A

Fed gov (5th Am) and state (14th Am) may not take property unless:

  1. For public use
  2. There is just compensation

Physical Taking – confiscation, regular or permanent occupation, temporary occupation if interference is enough.
DEVELOPMENT EXCEPTION: traditional conditions on property development are not takings if benefits are roughly proportional to burdens
EMERGENCY EXCEPTION: taking less likely to be found if pursuant to public emergency (like war)

Regulatory Taking – regulations on use that not merely diminish but leave no economically viable use

Public Use – any legitimate public purpose; i.e., any purpose the government reasonably believes will benefit the public

Just Compensation – FMV at time of taking

46
Q

Contract Clause

A

No state shall pass any law impairing the obligation of contracts

Applies to state and local laws only, not federal laws or judicial opinions.

TESTS:
Private Contracts –substantial impairment of existing rights is INVALID unless: (1) important government purpose (2) reasonably related means
Public Contracts – heightened scrutiny (IS or SS)

47
Q

Ex Post Facto Laws

A

Rule: neither state nor federal government may pass legislation that retroactively alters criminal liability

  1. Makes illegal an act that was innocent when done
  2. Makes crime greater than when committed.
  3. Sets punishment greater than when the act was done
  4. Reduces evidence required to convict from what was required at time of act
48
Q

Bills of Attainer

A

Neither the state or federal government may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial

Punishment – traditional sanctions and punitive measures

49
Q

Freedom of Speech

A
  1. Is it speech?
  2. Is the speech protected or unprotected?

Speech: words, symbols, expressive conduct (inherently expressive or intended to convey a message and reasonably likely to be perceived as conveying a message)

Content Based: SS; Content Neutral: IS

Public Property: If public forum, CB/CN rules; if nonpublic forum, then SS (reasonable and not VP based)

Public School: student speech = substantial disruption (unless pro drug use); school speech = reasonably related to pedagogical concern

Public Employment: private concern or pursuant to job duties has no protection; public concern = balancing test of speech value vs. state interest in efficient operation

50
Q

Unprotected Speech

A
  1. Incitement: Advocacy of lawless action that is (1) intended to produce imminent lawless action and (2) likely to produce imminent lawless action; mere advocacy of lawlessness is protected
  2. Fighting Words: words likely to provoke an immediately violent response
  3. True Threats: words intended to convey to someone a serious threat of bodily harm
  4. Obscenity: depiction of sexual conduct, taken as a whole by contemporary community standards: (1) appeals to prurient interest in sex; (2) is patently offensive; (3) lacks serious social value by national standards
  5. Child Pornography: depiction of children engaging in sexual conduct, whether or not obscene (must be actual children)
  6. Defamation with actual malice: defamation of public figures, public officials, or a matter of public concern with actual malice, i.e., (1) knowledge of falsity or (2) reckless disregard of the truth
  7. Commercial Speech (false, misleading, illegal): test – substantial government interest (e.g., consumer protection) that is narrowly tailored (reasonable fit rather than least restrictive)
51
Q

Types of Public Forums for Speech

A

Traditional Public Forum: open to public as a free speech zone “from time immemorial” (e.g., parks, streets, sidewalks); cannot be undesignated as a public forum

Designated Public Forum: opened by policy or purposeful practice as free speech zone (e.g., college kiosks, college email systems); can be undesignated as public forum

Non-Public Forum: not opened by tradition or designation as free speech zone (e.g., classes, post offices, DMVs, airports)

Public Forums: CB –> SS; CN –> IS
Non-Public Forums: reasonable given nature of forum; SS if VP nased

52
Q

Vagueness Test

A

Law is void for vagueness if persons of common intelligence cannot tell what speech is prohibited and what speech is permitted

53
Q

Overbreadth Test

A

Law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress

Third party standing is allowed

54
Q

Prior Restraints

A

Licensing schemes or injunctions that prevent speech before it occurs, rather than punishing speech afterward.

Historically, prior restraints have been greatly disfavored.

CB –> very SS

Licensing systems must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials

55
Q

Free Exercise Clause

A

Religion: traditional religion as well as beliefs that play role in life of believer similar to the role that religion plays in the life of traditional adherents

To decide religious claims, gov may inquire into the sincerity of the religious beliefs, but not their truth

Test: Discriminatory Laws –> SS; neutral laws of general applicability are NOT subject to the FEC, EXCEPT that religious organizations are exempt from employment discrimination suits by their ministers

56
Q

Establishment Clayse

A

Neutrality Test: government must remain neutral with respect to religion, neither favoring nor disfavoring it.

Coercion Test: government may not directly or indirectly coerce individuals to exercise or refrain from exercising religion

Lemon Test:

  1. Primary government purpose is sectarian; or
  2. Primary effect is sectarian; or
  3. Excessive entanglement between government and religion

Endorsement Test: from the standpoint of a reasonably informed observer, the government must not appear to endorse or disapprove of religion, making it seem relevant to a person’s standing in the community

However: sometimes the court sets aside the above principles and finds a state religious display or practice is a tolerable acknowledgement of the role religion has played in the history and tradition of the nation