Con Law

Front 1

11th Amendment

Back 1

1. The 11th Amendment prohibits citizens of one state from suing their own state or another state on federal claims for money damages, in federal court or state court, without the state's consent. The amendment applies to both diversity and federal question cases.
2. Subdivisions of a state do not have immunity from suit under the 11th Amendment.
3. Congress can authorize private suits, under the enforcement powers, for state violations of the 13th, 14th and 15th amendment.
4. Exceptions: suits against state officials for unconstitutional state statutes, federal suits by one state against another state or the federal government against a state, and most suits for injunctions.
5. Consent must be express and unequivocal.

Front 2

Case or Controversy

Back 2

1. Under Article III, Section 2 the courts are limited to real cases or controversies, which is defined as a real and substantial dispute that touches the legal relations of the parties having adverse interests and that can be resolved by a judicial decree of a conclusive character.
2. Judges may give declaratory judgments which is a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief. However, plaintiff must meet case or controversy requirements [RAMPS].

Front 3

Mootness

Back 3

1. If a controversy has been resolved, then the case will be dismissed as moot.
2. The case will not be dismissed for mootness if the injury is capable of repetition, yet evading review meaning that it is a practical impossibility for there to be adjudication or appellate review before the claims of the plaintiff, or other individuals who are members of the class, becomes moot.

Front 4

Ripeness

Back 4

1. Ripeness bars consideration of claims before they have fully developed. A case may be dismissed as unripe where a statute has never been enforced, and there is no real threat that it ever will be.

Front 5

Abstention

Back 5

1. The federal court may abstain or refuse to hear a particular case when there are undecided issues of state law presented. This doctrine permits the state court to resolve issues of state law, thereby making a decision on the constitutional issue unnecessary.

Front 6

Standing

Back 6

1. In order to have standing a person must show, 1) injury in fact, 2) causation, and 3) redressability.
2. A third party may sue on behalf of a party if 1) a special relationship exists between the claimant and third party because of the connection between the interests of the claimant and the constitutional rights of the third person, and the third party is unable to bring suit on his own behalf.
3. An association has standing to assert the claims of its members even if the association has not suffered an injury itself, if: 1) the members would otherwise have standing to sue in their own right, 2) the interest asserted is germane to the association's purpose and 3) neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit.

Front 7

Political Question

Back 7

1. Federal courts cannot hear cases involving political questions. A political question is a matter assigned to another branch by the constitution or incapable of a judicial answer.

Front 8

Adequate and Independent State Grounds

Back 8

1. If the state court judgment can be supported on an adequate and independent state ground, the Supreme court will not take jurisdiction. This only applies to the Supreme Court.
2. However, if the state court says that, in interpreting the state constitution, it was merely copying the federal constitution, then no clear, independent ground exists, so the doctrine will not apply and the Supreme Court will hear the case.

Front 9

Commerce Power

Back 9

1. Congress may regulate 1) the channels of interstate commerce, 2) the instrumentalities of interstate commerce, and 3) activities that substantially affect interstate commerce.
2. Under the affectation doctrine, Congress has the power to regulate any economic activity, whether carrier on in one state or many, that has a substantial effect upon interstate commerce.
3. The cumulative effect doctrine states that if all such regulated activities in the aggregate affect interstate commerce, then it may be regulated.

Front 10

Tenth Amendment

Back 10

1. The tenth amendment prevents Congress from commandeering the legislative processes of the state by directly compelling them to enact and enforce a federal regulatory program.

Front 11

Taxing Power

Back 11

1. A congressional Act purporting to be a tax should be upheld as a valid exercise of the taxing power, provided that it does in fact raise revenue (objective test), or that it was intended to raise revenue (subjective test).
2. As long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes.
3. Even when Congress does not have power to regulate the activity taxed, the tax will, nevertheless, be upheld if its dominant intent is revenue-raising. Thus, even though the tax may have a substantially regulatory effect, if the tax inf act raises revenue, it will be valid.
4. As a general rule, the modern judicial trend is to uphold any tax as valid if it is, in fact, a revenue raising measure.

Front 12

Spending Power

Back 12

1. Congress's power to tax and spend must be exercised for the "general welfare" of the United States.
2. Congress can require states to comply with specified conditions in order to qualify for federal funds. But 1) the spending must be for the general welfare, 2) the condition is unambiguous, 3) the condition relates to the federal program, 4) the state is not required to undertake unconstitutional action, and 5) the amount in question is not so great as to be considered coercive to the state's acceptance.

Front 13

War and Defense Powers

Back 13

1. The war power confers upon Congress broad authority to initiate whatever measures it deems necessary to provide for the national defense in peacetime as well as in wartime.
2. This includes, price rent, wage controls, selective service, and the exclusion of civilians to certain areas.

Front 14

Investigatory Power

Back 14

1. The necessary and proper clause permits congress to conduct investigations incident to its legislative power. Congress's investigatory power is broad, and it may extend to any matter within a legitimate legislative sphere.

Front 15

Power of Eminent Domain

Back 15

1. The power to take property is implied in aid of the other powers granted to the federal government. There must be just compensation given, however.

Front 16

Civil War Amendments

Back 16

1. To validly enforce the 14th or 15th Amendment, Congress must show that: 1) state governments have engaged in widespread violations of the Amendment, and 2) the legislative remedy is congruent with and proportional to the violations.
2. Congress may enforce the 13th Amendment ban on slavery even when the state governments have not violated the amendment. However, Congress may only enforce the 14th and 15th when state governments have widely violated those amendments.

Front 17

Appointment Power

Back 17

1. The President has the power to nominate and appoint all Ambassadors, public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the US, whose appoints are not provided for.
2. The President has exclusive power to nominate high level officers. The Senate, however, has the power to confirm or reject the President's nominees for such high-level appointments.
3. Congress can delegate the appointment of inferior officers to the President, the judiciary, or heads of departments.

Front 18

Removal Power

Back 18

1. Can remove any executive appointee without cause. However, the President must have cause to remove executive officers having fixed terms and officers performing judicial or quasi-judicial functions. Congress does not have the power to remove executive officers.
2. Federal judges cannot be removed by either Congress or the President during "good behavior"; formal impeachment proceedings are required for removal.

Front 19

Veto Power

Back 19

1. Once legislation is presented to the President, unless he vetoes in 10 days the proposed legislation will become law. The President can pocket veto a bill passed within 10 days of the end of the congressional term by not signing it.
2. Congress may override with a 2/3 vote.
3. A line-item veto, which gives the President the power to cancel particular provisions of new federal legislation, has been held unconstitutional as a grant of power to the President to amend a statute.

Front 20

Congressional Delegation

Back 20

1. Congress can enact legislation that delegates rule-making power to an executive or administrative agency in some designated subject area.

Front 21

Military Powers

Back 21

1. The President has the power to deploy military forces without a formal declaration of war in response to an attack upon the United States, and he has the power to seize private property during wartime, unless Congress denies him that power, however, the President does not have the power to declare war.

Front 22

Treaty Power

Back 22

1. The President has the power to make treaties with foreign nations "by and with the Advice and Consent of the Senate."
2. Treaties are the supreme law of the land, and the judges of every state shall be bound thereby, any thing in the Constitution of laws of any state to the contrary notwithstanding.

Front 23

Executive Agreements

Back 23

1. The President has the power to enter into executive agreements and compacts with foreign nations. Such agreements are valid and prevail over inconsistent state law, but they do not prevail over federal statutes.

Front 24

Legislative Veto

Back 24

1. A legislative veto occurs when Congress enacts a law containing a provision that Congress can change the law without a new Congressional vote or Presidential signature, this violates the requirements of bicameralism and presentment to the President required by the Constitution.

Front 25

Appropriations Power

Back 25

1. Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has no power to impound (refuse to spend or delay spending) the authorized funds.

Front 26

Immunity of Federal Government

Back 26

1. The federal government and its agencies are immune from suits by private individuals except where they allow themselves to be sued.
2. The federal government and its agencies are immune from state taxation and state regulation. States may, nevertheless, collect a nondiscriminatory tax on persons who deal, or contract, with the federal government.
3. The Supremacy Clause impliedly prevents the states from regulating the activities of agents or instrumentalities of the federal government if the regulation will interfere with the government's ability to carry out its federal functions.
4. Federal lands are subject to the authority of the federal government, except to the extent that Congress has ceded jurisdiction to the state.

Front 27

Immunity of State Government

Back 27

1. The federal government or one of its agencies may sue a state without consent. The Supreme Court in these cases has original, but not exclusive jurisdiction.
2. A state may be sued by a sister state without its consent. In this case, the Supreme Court has original and exclusive jurisdiction.
3. A state now enjoys immunity from federal taxation if the tax is applied to either 1) unique state activities or 2) essential government functions. Where the state engages in propriety business, then teh state may be taxed to the same extent as the private citizen.

Front 28

Dormant Commerce Clause

Back 28

1. Where Congress has not enacted legislation, the states are free to regulate local transactions affecting interstate commerce, subject to certain limitations.
2. If a state law discriminates on its face between in-state and out-of-state economic actors, the state must show: 1) the regulation serves a compelling state interest, and 2) the regulation is narrowly tailored to serve that interest.
3. If the state law merely incidentally burdens interstate commerce, the state must show: 1) the regulation serves an important state interest, and 2) the burden on interstate commerce isn't excessive in relation to the interest served.
4. Exceptions to this is that Congress may affirmatively authorize states to legislate in areas that would violate the dormant commerce clause. In addition, when states act as market participants, they may discriminate between in-state and out-of-state businesses.
5. Generally, public health measures are upheld as long as they do not discriminate against or unduly burden interstate commerce.

Front 29

State Taxation Power

Back 29

1. As a general rule, state taxation of interstate commerce is permissible as long as the tax does not discriminate against or unduly burden interstate commerce.
2. In determining the validity of a state tax affecting interstate commerce, the court will consider: 1) whether there is a substantial nexus between the activity taxed and the taxing state (there must be sufficient contacts or presence in the state), 2) the tax must be fairly apportioned, 3) the tax must not discriminate against interstate commerce, and 4) the tax must be fairly related to the services provided by the taxing state.

Front 30

Exceptions to State Action Requirement

Back 30

1. Two exceptions to the rule that constitutional rights can be violated only by government action. State action can be found in the actions of private actors under: 1) the public function theory, where a private entity is carrying on activities traditionally and exclusively performed by the government, or 2) the significant state involvement, endorsement, or encouragement theory, where the private entity and government entity are so closely related that the action by the private party fairly can be treated as action by the government.

Front 31

Supremacy Clause

Back 31

1. In general, a federal law will supersede any state law with which it is in direct conflict. Furthermore, Congress can preempt any state law in an area in which the exercise of federal power is constitutional.
2. Where Congress does not intend to occupy a field completely, and state laws are not otherwise preempted, the states may enact similar legislation.
3. Where congress has legislated to establish minimum standards, then the states are free to enact more stringent standards than those mandated by federal law.

Front 32

14th Amendment Privileges and Immunities

Back 32

1. The privileges and immunities clause is violated when new residents are denied full unemployment benefits until a specified waiting period has been satisfied. It is also a violation when a state law limits the payment of welfare benefits for first year residents to the amount they would have received in their former state.

Front 33

Procedural Due Process

Back 33

1. Where there is a deprivation of one's life, liberty or property interests, the individual is entitled to fundamentally fair procedural safeguards.
2. The following factors are used: 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of this interest through the procedures used, and the probable value of additional or substitute procedures, and 3) the government's interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail, and
3. Due process requires a judge to recuse himself or herself, when the judge has a pecuniary interest in the case, such that an average judge would possibly be tempted to render an imbalanced or untrue judgment.

Front 34

Economic Regulation

Back 34

1. An economic regulation will be upheld if it is rationally related to a legitimate government interest.

Front 35

Fundamental Rights -- Abortion

Back 35

1. A woman has a protected privacy interest in choosing to have an abortion before the fetus is viable. Before viability the government may regulate abortion in the interest either of the mother's health or the potential life of the fetus. The regulation may not impose an undue burden on the woman's right to choose an abortion. The state may regulate and even proscribe abortion except where it is necessary for the preservation of the life or health of the mother subsequent to viability.
2. Spousal consent may not be required, however, parental consent may be required before an emancipated woman under the age of 18 obtains an abortion, if the state establishes a judicial bypass procedure through which the minor may obtain an abortion with he judge's consent.
3. No right for an indigent person to get funding for an abortion.

Front 36

Family Relations

Back 36

1. A fundamental right exists for related persons to live together.

Front 37

Sexual Orientation

Back 37

1. A statute making it a crime for a person to engage in deviate sexual intercourse with another individual of the same sex furthers no legitimate government interest.

Front 38

Right to Travel

Back 38

1. Durational residency requirements for dispensing government benefits are subject to strict scrutiny.
2. The right to international travel is not absolute and may be subject to reasonable restrictions, and Congress may authorize the President to restrict travel to certain countries or dangerous areas.

Front 39

Takings Clause

Back 39

1. The 5th Amendment provides that private property shall not be taken for public use without just compensation.
2. Direct government appropriation - a taking occurs where there is an actual appropriation of one's property.
3. Regulatory Taking - any permanent physical invasion, no matter how minor, will constitute a taking. A land use regulation is a taking if it denies an owner all reasonable economically beneficial use of his land.
4. The government has the power to take private property and transfer it to a private developer, because of the public benefits of the proposed development.

Front 40

Strict Scrutiny

Back 40

1. Under the strict scrutiny standard, the burden of persuasion is on the government to prove that the measure being challenged is necessary to further a compelling interest. The word necessary means that there is no less restrictive alternative means available. There must be a very close fit between the ends and the means.
2. This standard of review applies to classifications of race, alienage, and national origin. Illegal aliens have rational basis applied to them.

Front 41

Intermediate Scrutiny

Back 41

1. The burden of persuasion is placed on the government to prove that the measure being challenged is substantially related to achievement of an important governmental interest. Substantially related means that an exceedingly persuasive justification must be shown. This applies to quasi-suspect classifications-- gender and illegitimacy.

Front 42

Rational Basis

Back 42

1. The burden of persuasion is on the plaintiff to show the measure being challenged serves no legitimate government interest, or is not rationally related to any legitimate interest. This means the law cannot be arbitrary or unreasonable.
2. Rational basis review is for all classifications that do not fall under strict or intermediate scrutiny.

Front 43

Facial Discrimination

Back 43

1. Arises where a law by its very language, creates distinctions between classes of persons.
2. Where a law that appears neutral on its face but in its application has a disproportionate effect on a particular class of persons, strict of middle-tier scrutiny will apply only if the courts find a discriminatory purpose.
3. A facially neutral law can be applied in a discriminatory manner. Where the challenger can show a discriminatory purpose, the law will be invalidated.

Front 44

School Segregation

Back 44

1. School boards have an affirmative duty to eliminate intentional racial segregation of schools. Court ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school system, not to attract non-minority students from outside districts to achieve integration. Court-ordered busing is a temporary measure that must be terminated once the vestiges of past discrimination have been eliminated.

Front 45

Discrimination Against Aliens

Back 45

1. States may discriminate against aliens in activities where participation in the functioning of government is involved. A New York statute requiring state police officers to be citizens was held valid under the government function test. They may also be denied positions as school teachers because they influence students' views toward government and the political process.
2. Federal laws that discriminate against aliens are not subject to strict scrutiny, because Congress has broad plenary power to regulate immigration.

Front 46

Gender Discrimination

Back 46

1. Middle tier review applies whether the classification is invidious or benign. Intentional, or purposeful discrimination is required to trigger middle-tier scrutiny, discriminatory effect alone is insufficient.
2. Statutes that reinforce archaic gender based stereotypes will almost certainly be struck down.
3. In some cases, laws discriminating against men have been upheld when they are substantially related to the achievement of an important government interest.

Front 47

Affirmative Action

Back 47

1. The only justifications for affirmative action that has been upheld are 1) remedying the effects of past or present discrimination in a particular institution, and achieving a diverse student body in an institute of higher learning.
2. Affirmative action based on gender need only pass intermediate scrutiny.
3. Remedying past discrimination in a particular government institution is generally viewed as a compelling interest, but attempting to remedy general, societal injustice through affirmative action is not.
4. Discrimination by private employers is not subject to equal protection review.

Front 48

Privileges and Immunities Clause under the 14th Amendment

Back 48

1. The privileges and immunities of national citizenship protected include: 1) to travel from state to state, 2) to petition Congress for redress of grievances, 3) to vote for national offices, 4) to enter public lands, 5) to be protected while in custody of US Marshals, and 6) to assemble peaceably.
2. Corporations and aliens are not protected under this.

Front 49

Privileges and Immunities under Article IV, Section 2

Back 49

1. This clause prohibits states from discriminating against non-residents, for being non-residents, with respect to rights and activities that are fundamental to the national union. Corporations and aliens are not citizens for the purposes of this.
2. Discrimination against citizens or residents in regard to an essential economic right or liberty triggers the Article IV Privileges and Immunities Clause, whereas general economic discrimination against a business or entity is more often viewed under Commerce Clause analysis.

Front 50

Contract Clause

Back 50

1. The contract clause applies only to state legislation, and not to state court decisions or the federal government.
2. A private contract can be modified by the state legislature under its police power when it is necessary to serve an important and legitimate public interest, and the regulation is a reasonable and narrowly tailored means of promoting this interest.
3. In determining whether a contract may be modified, the Court will consider, the severity of the impairment, and the importance of the public interest to be served.

Front 51

Ex Post Facto Laws

Back 51

1. In general a statute retroactively alters the criminal law if it: 1) makes criminal an act that was not a crime when committed, 2) prescribes greater punishment for a crime after its commission, 3) decreases the amount of evidence required for conviction, or 4) extends the SOL for a crime as to which the previously applicable statute of limitations has already expired.

Front 52

Bills of Attainder

Back 52

1. A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct.

Front 53

Establishment Clause

Back 53

1. Where a government program prefers one religion, or one religious sect, over others, strict scrutiny analysis will be applied.
2. Where the legislation or government program contains no religious or sect preference: 1) the statute must have a secular legislative purpose, 2) the principal or primary effect or purpose must neither advance nor inhibit religion, and 3) the statute must not foster an excessive government entanglement with religion.

Front 54

Free Exercise Clause

Back 54

1. A person's religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious beliefs.
2. Where an individual's conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is neutral in respect to religion and is of general applicability.
3. Where the government purposely interferes with particular conduct because it is dictated by religious beliefs, strict scrutiny analysis will be applied and the law will be held unconstitutional unless it can be justified through proof of a compelling state interest served by narrowly tailored means.

Front 55

Freedom of Expression

Back 55

1. The government may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech, with some exceptions.
2. The regulation of speech is allowable if it passes strict scrutiny.
3. A law which regulates conduct creating an incidental burden on speech is allowable if: the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression, and the incidental restriction on speech is no greater than is essential to the furtherance of that interest.
4. Where the government is the speaker, and not a private actor, the government may discriminate based on the content of the speech.

Front 56

Unprotected Speech

Back 56

1. Speech that advocates violence or unlawful action if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
2. Fighting Words - words likely to incite an ordinary citizen to acts of immediate physical retaliation may be punished.
3. Hostile Audience Speech - elicits an immediate violent reaction against the speaker by an audience, the police must take reasonable efforts to protect the speaker, to guard against the heckler's veto of unpopular speech.
4. Obscene Speech - 1) look at contemporary community standards and see if it is obscene to the average person, 2) the work depicts or describes in a patently offensive way, sexual conduct, and taken as a whole lacks serious literary, artistic, political or scientific value. Child porn is always unprotected.
5. Defamatory Speech - based on constitutional standards discussed in torts.

Front 57

Commercial Speech

Back 57

1. May prohibit advertising that is illegal or untruthful.
2. Commercial speech is protected, but regulation is permitted if it satisfies three requirements: 1) it serves a substantial government interest, 2) directly advances the substantial interest, and 3) is not more extensive than necessary to serve the interest.
3. It is within a state's police power to prohibit billboards carrying commercial advertising.
4. Vice advertising most likely cannot be banned completely by the government.

Front 58

Sexual Speech

Back 58

1. Regulation of sexual speech must serve a substantial government interest, and leave open reasonable alternative channels of communication.

Front 59

Regulation of Time, Place, or Manner

Back 59

1. The government may place reasonable restraints on the time, place and manner of speech in public areas (traditional speech areas). The focus is not on the content or message, but rather its conduct or method.
2. The regulation must: be content neutral, as to both subject matter and viewpoint, be narrowly tailored to serve a significant government interest, and leave alternative channels of communications open.
3. Like intermediate scrutiny standard.
4. Speech related activities at non-public forums requires the regulation to be viewpoint neutral and reasonably related to a legitimate interest.

Front 60

Freedom of Association

Back 60

1. State action which may curtail the freedom to associate is subject to the closest scrutiny.

Front 61

Recency effect

Back 61

If there is a large time between first and second message, the second one is more influential.

Front 62

Prior Restraint

Back 62

1. The government cannot suppress or restrain speech in advance of its publication or utterance.
2. Exceptions include 1) review of publication for national security reasons, 2) classified military information, 3) search and seizures are governed by 4th amendment.
3. Restraint of pretrial publication must factor in 1) the nature and extent of the pretrial publicity, 2) the availability of other measures to mitigate the effects of pretrial publicity, and 3) the likely effectiveness of the restraining order.
4. Censorship board review is constitutional if: 1) the standards for denial of a license are narrowly drawn and reasonable, 2) if there is a denial the censor board must seek an injunction promptly, 3) the burden of proving obscenity is on the board, and 4) prompt judicial determination.
5. Licenses for activities are permissible if 1) content neutral as applied and 2) does not give officials unfettered discretion to determine who receives a license.

Front 63

Overbreadth

Back 63

1. A state may not regulate speech by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. The wording of a statute must be narrow and specific, and not overly broad so as to have a chilling effect on protected speech.

Front 64

Vagueness

Back 64

1. government regulations must be drawn with narrow specificity.

Front 65

Press

Back 65

1. The press has no greater freedom to speak than the general public. The press also has no special right to government information.
2. Court gag orders will almost never be constitutional because of alternatives available to the court.
3. Radio and television can be more regulated than the press, due to the limited number of airwaves available. A radio broadcast of patently offensive sexual and excretory speech can be sanctioned to protect the privacy interest of children likely to be listening.
4. Cable TV is somewhere between press and regular TV. Cable regulations that are content neutral have intermediate scrutiny.

Front 66

Bar Admission

Back 66

1. May be denied admission for pat membership in the communist party.
2. Can refuse bar membership for refusals to answer questions, if refusals obstruct the bar examiner's investigation into qualifications.
3. State can inquire into knowing membership in subversive organizations in screening its applicants for the bar. Thus, the first amendment does not extend unlimited protections to a bar applicant who refuses to disclose political affiliations.
4. It is a violation of the privileges and immunities clause of Article IV, Section 2 to require residency in order to be barred.