Con Law

Front 1

4 requirements for case to be justiciable

Back 1

1) standing
2) ripeness
3) mootness
4) political question doctrine

Front 2

standing elements:

Back 2

1) injury: p must allege that he was harmed or will be imminently harmed by illegal gov. action
members
2) causation and redressability: must be causal connection between p's injury and conduct complained about and litigation in p's favor must be able to eliminate grievance
3) no third party standing
exceptions: sufficiently close relationship between 3rd and D ie dr-patient, parent-child if custodial, injured
4) no generalized grievances
exception: can sue as taxpayer if issue is under establishment clause

Front 3

ripeness

Back 3

ct ***** if pre-enforcement review is appropriate. balance hardship to p if no review vs will there be anything gained in waiting

Front 4

mootness:

Back 4

if p's injury is eliminated after filing of claim, claim is moot
esxceptions: 1) if injury is likely to reoccur 2) if D voluntarily stops harm 3) class action if one member of class still harmed

Front 5

political question doctrine

Back 5

court will not adjucate
1) laws passed under republican form of gov.
2) president foreign policy decisions
3) impeachment and removal process
4) partisan gerrymandering

Front 6

supreme court

Back 6

state, us appeals: certiori
3 judge fed: mandatory
state vs state: original, exclusive
diplomats, ambassadors, consuls: original

Front 7

sovereign immunity

Back 7

1) if a lower state court makes decision based on independent, exclusive state law, sc cant hear.
2) if on both state and fed, cant hear
3) if state ct is silent as to what grounds it made its ruling, sc can hear

Front 8

lower fed cts and sovereign immunity

Back 8

lower fed ct cannot hear case between states and private parties. 11th amendment
*exception is if congress consents, such as under section 5 of 14th amendment

Front 9

suits against gov. officers ok if

Back 9

1) sue for injunctive relief for violation of constitution or fed law
2) sue for money damages out of own pockets, if dont come out of state treasury

Front 10

legislative power (congress)

Back 10

all powers that are enumerated in constitution and any auxilary power "necessary and proper" to carry out enumerated powers

Front 11

taxing and spending

Back 11

may tax and spend for "general welfare (mild)
*tax must be reasonably related to revenue production

Front 12

commerce clause

Back 12

exclusive control of intersate commerce, instruments, channels, activities that have substantial effect on intersate commerce. also intrastate economic activites that have a cumulative effect on interstate commerce, and noneconomic itrastate activities that individually have effect on interstate commerce

Front 13

10th amendment

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limit on congress power. all powers not granted to US or prohibited by states, are reserved for states and the people.

ie: congress cannot compel legal or regulatory action by state, but can induce, bribe

Front 14

section 5 of 14th

Back 14

congress cannot create new rights or expand scope of rights but can act ONLY to prevent or remedy violation of rights recognized by the courts. SUCH LAWS MUST BE PROPORTIONATE AND CONGRUENT to remedying constitutional violations

Front 15

delegation of powers

Back 15

congress always can

Front 16

vetos:

Back 16

legislative: need bicameral support and presentment to president
line-item: illegal

Front 17

Federal executive power

Back 17

1)appointment and removal of executive officers, ambassadors, fed judges
*congress has no appointment power, it may vest the power to the president to appoint inferior officers

impeachment: congress cannot remove executive officer (vice, prez, fed judges, etc) without impeachment
house impeaches with majority vote, removal only if senate ratifies with 2/3 vote

Front 18

president absolute immunity

Back 18

president absolutely immune to civil suits for conduct while president

Front 19

executive pardon

Back 19

fed crimes only

Front 20

foreign policy power

Back 20

treaty: with ratification by senate

executive agreements: constitution, fed law, treaties supercede, state laws inferior

Front 21

commander and chief powers

Back 21

president has broad pwoers to use american troops overseas, even though he cant declare war. he may use emergency military action

Front 22

article iv supremacy clause

Back 22

1) federal statute explicitly says exclusive
2) fed/treaty and state law mutually exclusive
3) congress evidences clear intent to preempt state law (ex: bankruptcy, immigration

Front 23

DCC & P & I of article IV

Back 23

p & i: states may not discriminate between in state and out of state citizen

DCC states cannot burden interstate commerce

ask if discriminatory?

no: no p & i violation BUT if the burden to interstate commerce exceeds benefits of law, violation

yes: violates DCC unless NECESSARY to accomplish important state function (ie: no alternative)
EXCEPTIONS: congress consent, market participant

if it discriminates and disrupts livelihood: p & i violation unless necessary to implement important gov purpose. NO EXCEPTIONS
**corp and aliens cant use p & i so must turn to DCC

Front 24

private conduct vs gov conduct

Back 24

constitution applies only to gov action, not private citizen.

however, can use 13th amendment for racism, and commerce clause as well

also exceptions: 1) when private entity is conducting exclusive public function
2) sig. state involvement

Front 25

RB

Back 25

a law is upheld if it is rationally related to a legitimate gov purpose. (challenger has burden)

Front 26

intermediate scrutiny

Back 26

law is upheld if it is substantially related to an important gov. purpose (gov has burden)

Front 27

strict scrutiny

Back 27

law is upheld if it is necessary to achieve compelling state interest

Front 28

procedural due process

Back 28

1) has there been a deprivation of life, liberty, property?
-must be intentional gov. deprivation. liberty means economic livelihood, property deals with entitlements
2) what procedures are in required?
- 3 part analysis 1) importance of interest to the individual and 2) the value of specific safeguards to protect interest VS 3) the need for gov. administrative efficiency and fiscal responsibility

Front 29

when is law vague?

Back 29

if conduct forbidden is so unclearly defined that a reasonable person would have to guess at its meaning

Front 30

when is law overbroad?

Back 30

when, in addition to proscribing activities forbidden under constitution, it sweeps within its coverage, constitutionally protected activities

Front 31

organizations have standing if?

Back 31

1) there is an injury in fact to one of its members
2) the injury is related to organizations purpose
3) neither the nature of the claim nor relief requested requires member participation individually

Front 32

when gov. conditions a building permit on some "give back" what is the analysis for it to be constitutional?

Back 32

there must be "rough proportionality" between the burden on the public that the permit would cause and the benefit the public will get from the give back

Front 33

impoundment?

Back 33

president does not have the power to refuse to spend funds appropriated under a specific mandate from congress

Front 34

how may congress override presidential veto?

Back 34

2/3 vote in both houses

Front 35

gov. grants given on the condition that they be used for exclusively secular purpose?

Back 35

constitutional in colleges and universities, public or private
(ie: cant use money to build building that religious studies will be taught)

Front 36

most important factor in deciding if gov. action is violating establishment clause?

Back 36

would a reasonable person think that gov. is endorsing a religious method
(nativity scene next to in-state manufactured products)

Front 37

regulating commercial speech analysis?

Back 37

STATE must show:
1) regulation directly advances a 2) substantial gov. interest
3) in a way that is REASONABLY TAILORED to achieve objective

Front 38

sec 5 of 14th amendment. congress power?

Back 38

may not create new rights or expand rights recognized by the courts. they may act only to prevent or remedy violations and the laws must be proportional and congruent to remedying constitutional violations

Front 39

for con law essay, only 2 big picture questions?

Back 39

1) what power is being exercised
2) are there constitutional limitations on the power

Front 40

judicial branch power and limitations?

Back 40

power: to declare what the law means and if constitutional
1) abstentation
2) advisory opinions
3) mootness
4) political questions
5) ripeness
6) standing

Front 41

congress powers

Back 41

1) admiralty
2) aliens, naturalization, citizenship
3) bankruptcy
4) commerce power
5) delegation power
6) election regulation power
7) enforcement of civil rights
8) fiscal power
9) foreign affairs power
10) postal power
11) property power
12) spending power
13) taxing power
14) war power

Front 42

con law essay format if congress is exercising power

Back 42

1) the issue is what power is being exercised and whether that power is validly exercised. here.....
2) congress is exercising its power under the....

Front 43

con law essay format if asking about private person vs state

Back 43

1) explain standing and whether person has it
2) what power is being exercised?
3) is the exercise constitutional
4) what standard of review applies
5) analysis of what standard to apply and why and if constitutional

Front 44

what does state action mean

Back 44

"state action means that the 14th and 15th amendments do not apply of their own force, in the absence of congressional action, to purely private action.(then explain why state action exists here)

Front 45

supremacy clause

Back 45

express preemption: if fed statute explicitly says fed laws are exclusive in this field
implied
1) fed and state laws are mutually exclusive
2) state law impedes achievement of fed objective
3) congress evidences clear intent to preempt

Front 46

2 situations where private conduct must comply with constitution

Back 46

1) exclusive public function
2) significant state involvement

Front 47

thirteenth amendment definition

Back 47

it is the only constitutional provision explicitly limiting private actions by indiciduals. under it, if congress can rationally determine that the conduct it is prohibiting imposes a "badge or incident" of slavery, the statute is invalid. the provision is exceptionally broad, giving congress the power to prohibit virtually all racial discrimination by private persons

Front 48

welfare clause definition

Back 48

empowers congress to collect taxes and spend money and to provide for the general welfare, and to make all laws necessary and proper to implement those powerrs

Front 49

14th amendment

Back 49

limitation on state power, not individuals

Front 50

presidential power to appoint federal officers

Back 50

the president shall nominate, and by and with the advice and consent of congress, appoint ambassadors, judges of the supreme court, and all other officers of the united states. CONGRESS itself may not make any appointments of federal officials who exercise executive power. executive power includes the power to see that the laws are carried out

Front 51

congress appointment powers

Back 51

congress may make appointments of persons to exercise powers that are essentially investigative and informative in nature, but not where the appointees powers are essentially rule making. this is an executive power

Front 52

contracts clause

Back 52

is limitation on state power

Front 53

race-based affirmative actions regulations

Back 53

equal protection requires strict scrutiny standard to be used.

Front 54

abortion laws standard of review

Back 54

up until the time a fetus is viable, state may adopt regulations protecting the mothers health and the life of the fetus but may not impose an undue burden or substantial obstacle to the womans right to have an abortion

Front 55

congress powers vis a vis the federal courts

Back 55

congress may create federal courts and determine the jurisdiction of the courts. However, congress cannot expand expand federal court jurisdiction beyond the boundaries proscribed in article 3. (ie: case and controversy requirement, standing, etc)

Front 56

11th amendment limitation

Back 56

a private citizen may not sue a state in fed court without the states consent

Front 57

political question definition

Back 57

a "political question" is one which the constitution commits to another governmental branch, which the judicial process is inherently incapable of resolving and enforcing (so even id litigant has standing, watch for mootness, ripeness, or political question)

Front 58

standard of review for law that proscribes conduct required for religion

Back 58

a law is upheld if it is a valid and neutral law of general application rationally related to legitimate state purpose

Front 59

14th amendment limitations

Back 59

1) procedural due process
2) substantive due process
3) equal protection

Front 60

1st amendment limitations

Back 60

1) fundamental rights
2) freedom of speech
2) freedom of association
3) freedom of religion

Front 61

limitation on congress power to delegate

Back 61

person or body receiving the delegated power is directed to conform to an intelligible principle set forth by congress

Front 62

speech and debate clause

Back 62

any speech or debate made by a member of congress on the floor of either the house or the senate is privileged from suit (including aides that mey have helped prepare speech)

Front 63

4 factors to determine whether congress intended to preempt the states under the supremacy clause IF you first determine there isnt a direct conflict between the state and federal law:

Back 63

1) traditional classification of the subject matter, fed or state?
2) pervasiveness of the federal regulation
3) similarity between state and federal law (the more they coincide, the more likely federal law intended to supersede state law
4) the need for uniform regulation

Front 64

takings clause analysis

Back 64

1) ask is it a taking?
possessory taking: physical occupation of property
regulatory taking: if gov. action leaves no reasonably economically viable use of the property look at i) social good promoted ii) loss to owner iii) owners expectations regarding the property
2) is it for public use? taking is for public use so long as gov has a reasonable belief it will benefit the public
if not then illegal and property must be given back and damages paid
3) if is for public use just compensation must be paid (measured in terms of loss to owner)

Front 65

substantive due process claims apply to (dp of 5th for fed and 14th for state)

Back 65

1) fundamental rights all ss except abortion
2) equal protection

Front 66

contracts clause standard of review (only deals with state and local interference)

Back 66

1) interference with gov. k must meet strict scrutiny
2) interference with private k intermediate scrutiny

Front 67

ex post facto clause

Back 67

cannot retroactively punish conduct that is now a crime if it was done when it was legal
civil only need rb

Front 68

first amendment free speech, if laws are content based:

Back 68

always strict scrutiny whether subject matter restriction or viewpoint restriction

Front 69

3 examples of speech that is unprotected?

Back 69

1) incitement of imminent illegal activity
i) there is a substantial likelihood of imminent illegal activity and the speech is directed to causing imminent illegality
2) fighting words
*usually these statutes are vague and overbroad
3) obscenity
i) material appeals to prurient interest in sex
ii) is patently offensive
iii) has no redeeming artistic, literary, political, or scientific value

Front 70

commercial speech if not false:

Back 70

intermediate scrutiny
*does not have to be least restrictive alternative

Front 71

freedom of press

Back 71

1) no liability for truthful reporting of lawfully obtained info from gov
2) liability not allowed if media broadcasts tape of an illegally intercepted call if didnt participate in illegality and is matter of public concern
3) gov. may limit its dessimation of info to protect privacy, and only the press has right to attend criminal trials and pretrial hearings

Front 72

if content based speech does not fall into one of the following categories, regulation must be?

Back 72

1) speech by gov employee on the job regarding performance of their duties not protected
2) commercial speech if true: intermediate
3) obscenity not protected
4) fighting words
5) incitement of imminent illegal activity
other than these, strict scrutiny is the standard

Front 73

public forum regulations must be content neutral or get strict scrutiny but can have?

Back 73

reasonable time, place, and manner restrictions and leave open adequate alternative places

Front 74

nonpublic forums if VIEWPOINT neutral?

Back 74

rationally related to legitimate purpose
*so dont have to be subject matter neutral
ex: advertising space on city buses, airports, military bases, post office property

Front 75

subject matter restriction v viewpoint restriction

Back 75

subject matter: topic of the message
viewpoint: ideology of the message

Front 76

privileges and immunities of article iv analysis

Back 76

the privileges and immunities clause prohibits states and municipalities from discriminating against residents of other states
not all discrimination, only if it substantially interferes with the pursuit of livelihood
(sc has held that the requirement that private contractors on city projects employ a certain percentage of city residents is a violation of that right

Front 77

11th amendment

Back 77

only prohinits citizen vs state in fed ct not state vs fed

Front 78

third party standing

Back 78

a plaintiff may assert a third party's rights when the plaintiff has suffered injury and the injury adversely affects his relationship with the third party, resulting in an indirect violation of plaintiffs constitutional rights

Front 79

to establish a racial, national origin, or ethnicity classification, the party challenging the law must show that

Back 79

1) the racial classification appears in the law itself (facial discrimination)
2) the law was applied in a purposefully discriminatory manner
3) the law was enacted for a discriminatory purpose
4) if the law is not discriminatory on its face, the plaintiff must show both discriminatory impact and intent to win

Front 80

liberty interest vs property interest

Back 80

1) liberty interests include freedom of speech, freedom of religion, freedom of association
2) property interests include entitlements, licenses

Front 81

a state may reserve a gov position for citizens if it?

Back 81

1) related to self governance
2) involves policymaking
3) requires exercise of important discretionary power over citizens
**cts have rules that a public school teacher at primary or secondary level performs important government function and therefore only rational basis test used, therefore, the excuse of aliens is rationally related to legitimate gov. interest

Front 82

postal service monopoly

Back 82

congress has delegated to the postal service the right to allow others to compete, and the postal service has allowed an exception for extremely urgent letters only

Front 83

presidents power in th foreign affairs

Back 83

president has plenary powers

Front 84

continued public employment may be a property interest if there is a clear practice or mutual understanding that an employee can only be terminated "for cause"

Back 84

thus, will have due process claim and is entitled to a reason for her termination and a hearing

Front 85

charitable solicitations for funds in residential areas are?

Back 85

within the protection of the 1st amendment. thus justifications for regulations must be sufficiently compelling (ss)

Front 86

tax applicable only to the press or based on the content of a publication will not be upheld

Back 86

need compelling justification. mere revenue production not enough

Front 87

state may reserve a gov position for citizens if

Back 87

1) it is related to self governance
2) it involves policy making
3) or it requires exercise of important discretionary power over citizens
*rb test used (ex: can refuse to hire resident alien as public school teacher at primary and secondary levels because they have high potential to influence students)

Front 88

30 day residency requirement to have abortion?

Back 88

undue burden

Front 89

attorney general

Back 89

is a member of executive branch and other branches of government cannot force him to prosecute someone,

Front 90

30 day residency requirement to vote?

Back 90

upheld and is the maximum allowed

Front 91

Three Areas of Commerce Clause (mnemonic)

Back 91

Three Areas of Commerce Clause:

CIA – [C] – Channels of Commerce (hotels, restaurants, etc.);

[I] Instrumentalities of Commerce (airlines, railroads, drugs, kidnapping – very broad);

[A] Activities that substantially affect Commerce (intrastate that has substantial effect on commerce)

Front 92

under the due process clause of the 14th amendment, a public employee who can only be terminated for cause has what property rights?

Back 92

must be given motice of the charges and a PREtermination opportunity to respond to the charges, as well as subsequent evidentiary hearing regarding the termination