Con Law

Front 1

Federal Judicial Power, basics

Back 1

Defined by Article III with a requirement for cases and controversies: the case must be justiciable; no advisory opinions.
1. standing
2. ripeness
3. mootness
4. political question

Front 2

Standing

Back 2

Is the plaintiff the proper party to bring suit:
1. injury
2. causation and redressability
3. no third party standing
4. no generalized grievances

Front 3

Injury

Back 3

1. more than a mere ideological objection
2. P must have personally suffered the injury
3. if injunctive relief, show likelihood of future harm

Front 4

Causation and Redressability

Back 4

1. must show that D caused the harm
2. favorable court decision would be likely to remedy the harm
3. if the federal ruling would have no effect, then it'd be advisory

Front 5

Third Party Standing

Back 5

Plaintiffs must present personally suffered injuries, with exceptions:
1. close rship, because P can be trusted to adequately represent the 3rd party
a. doctor, patient
b. remember: Newdow wasn't close enough
2. if injured party is unlikely to be able to assert his or her own rights
a. prospective jurors
3. an organization may sue for its members if
a. members would have standing to sue
b. interests are germane to the organization's purpose
c. neither the claim nor the relief requires the participation of individual members

Front 6

Generalized Grievances

Back 6

No TP standing unless government expenditures pursuant to federal statute that violate the establishment clause.

Front 7

Ripeness

Back 7

Pre-enforcement review, look at:
1. hardship that will be suffered without it, and
2. the fitness of the issues and record for judicial review

Note: declaratory relief = mention ripeness

Front 8

Mootness

Back 8

Plaintiff must present a live controversy
1. a non-frivolous claim for money damages will keep the case alive
2. the wrong is capable of repetition but evading review (abortion)
3. voluntary cessation
4. class actions

Front 9

Political Question Doctrine

Back 9

Federal courts won't adjudicate:
1. US shall guarantee a republican form of government
2. challenges to president's foreign policy
3. challenges to impeachment and removal process
4. challenges to partisan gerrymandering

Front 10

Supreme Court Review

Back 10

1. writ of cert
a. from state courts
b. from US courts of appeal
c. 3-judge federal district courts
d. SC has original and exclusive jurisdiction for suits between states
2. final judgment rule: there must be a final judgment from the highest state court
3. there must not be an adequate and independent state law grounds --> if SC reversal of the federal issue won't change the result, then SC can't hear it

Front 11

Federal and State Courts May Not Hear Suits Against State Governments

Back 11

11th A sovereign immunity: no suits against states in federal court, state court, or federal agency, except:
1. state expressly consents to be sued
2. pursuant to federal laws adopted under Section 5 of the 14th A
3. federal government may sue the state government
4. bankruptcy proceedings

Front 12

Suits Against State Officers

Back 12

1. may be sued for injunctive relief
2. may be sued for money damages to be paid out of their own pockets
3. may not be sued if it is the state treasury that will be paying retroactive damages

Front 13

Abstention

Back 13

Federal courts may not enjoin pending state court proceedings.

Front 14

Legislative Power, basics

Back 14

Congress' big three powers are taxing, spending and commerce, and MILD police powers:
1. Military
2. Indian reservations
3. Lands (federal)
4. District of Columbia

Front 15

Taxing and Spending Power

Back 15

Congress may tax and spend for the general welfare.

Front 16

Commerce Power

Back 16

Congress may regulate commerce with foreign nations, Indian tribes, and among states:
1. channels (highways, waterways, internet, walking across state lines) where commerce occurs
2. instrumentalities of interstate commerce (trusts, phones) and persons or things
3. econ activities that have a substantial effect on interstate commerce
a. in the area of non-econ activity, a a subs effect cannot be based on cumulative impact

Front 17

10th Amendment: Powers Reserved to the States

Back 17

1. Congress cannot compel state regulatory or legislative action, but Congress can bribe (21yr drinking age)
2. Congress may prohibit harmful commercial activity by state governments (states can't release citizens' personal info)

Front 18

Delegation of Legislative Powers

Back 18

1. no limit on Congress' ability to delegate legislative power
2. legislative vetos and line-item vetos are unconstitutional
a. need bicameralism (both house and senate)
b. need presentment (bill to pres to sign or veto, which he must do in its entirely -- no line-item)
3. congress can't delegate executive power

Front 19

Executive Power, overview

Back 19

1. Foreign policy
a. treaties
b. executive agreements
c. commander in chief
2. Domestic affairs
a. appointment and removal powers
b. impeachment and removal
c. immunity
d. executive privilege
e. power of the pardon

Front 20

Foreign Policy, Treaties

Back 20

1. negotiated by the president
2. effective when ratified by the senate
3. if treaty conflicts with federal statute, last in time controls
4. can't conflict with constitution

Front 21

Foreign Policy, Executive Agreements

Back 21

1. effective when signed by the pres and the head of a foreign nation --> no senate ratification needed
2. can be used for any purpose
3. prevail over state laws, but not federal laws or the constitution

Front 22

Domestic Affairs, Appointment

Back 22

1. pres appoints ambassadors, federal judges, officers of the US, but Senate must approve
2. Congress may vest the appointment of inferior officers (anyone who can be fired by a superior officer) in the pres, heads of department, or lower federal courts

Front 23

Domestic Affairs, Removal

Back 23

Unless limited by statute, pres may fire any executive branch official. Congress may limit removal if:
1. it's an office where independence from the pres is desirable, and
2. there is good cause shown, but Congress can't prohibit removal

Front 24

Domestic Affairs, Impeachment

Back 24

Pres, VP, federal judges, all officers of the US for treason, bribery, high crimes, misdemeanors
1. impeachment doesn't remove a person from office
2. impeachment by house requires majority vote
3. conviction in the senate requires 2/3 vote

Front 25

President's Absolute Immunity

Back 25

1. for civil suits for money damages for any actions while in office
2. no immunity for actions that occurred prior to taking office

Front 26

President's Executive Privilege

Back 26

Exists for presidential papers and conversations, but this privilege must yield to other important government interests.

Front 27

President's Pardon Power

Back 27

1. anyone accused of federal, not state, crimes
2. except where the person has been impeached by the House
3. power doesn't apply to civil liability

Front 28

Preemption

Back 28

Federal law trumps inconsistent state law
1. express preemption: Congress states that their authority is exclusive
2. implied preemption
a. not simultaneously possible to comply with both state and federal law
b. state law impedes the achievement of a federal objective
c. Congress shows a clear intent to preempt state law
3. states may not charge state tax to be paid out of the federal treasury (including prop tax)

Front 29

Dormant Commerce Clause

Back 29

Negative implications of the commerce clause: state and local laws are unconstitutional if they place an undue burden on interstate commerce

Front 30

Privileges and Immunities Clause

Back 30

Article IV: can't deny citizens of other states the same privileges and immunities that it affords its own citizens

14th A: right to travel from one state to another (ex: can't discourage people from moving into your state by, say, applying the less favorable welfare law of their old state)

Front 31

If a law does not discriminate against out-of-towners

Back 31

1. P&I of Art IV doesn't apply
2. violates the dormant commerce clause if burdens > benefits

Front 32

If a law does discriminate against out-of-towners

Back 32

1. if it burdens interstate commerce, it violates the dormant commerce clause unless
a. it's necessary to achieve an important government purpose
b. there's no less discriminatory purpose
2. exceptions
a. Congress approves it
b. market participation exception: may prefer own citizens re. govt programs or benefits (state tuition)
3. discriminates against their ability to earn a living (fish, not hunt), then it violates P&I of Art IV unless
a. necessary to achieve an important govt purpose
b. corporations and aliens can't invoke the P&I clause b/c they're not "citizens"

Front 33

State Taxation of Interstate Commerce

Back 33

1. states can't use the tax system to help in-state business (produced instate = tax benefit --> not OK)
2. state can only tax if there's a substantial nexus between the product/activity to be taxed and the state
3. taxation of interstate business must be fairly apportioned, so you split with the other state and don't double tax

Front 34

Full Faith and Credit

Back 34

Courts must enforce all judgments of other states so long as
1. the court that rendered the original judgment had personal and subject matter jurisdiction
2. judgment was on the merits
3. judgment was final

Front 35

Protection of Individual Liberties

Back 35

1. must be government action, or statutorily regulated private action, which Congress can regulate via
a. 13th A (race discrim)
b. commerce clause
c. NOT section 5 of the 14th A

Front 36

When Private Conduct Must Comply with the Constitution

Back 36

1. public functions exception: private entity is performing a task traditionally done exclusively by the government
2. entanglement exception: government affirmatively authorizes, encourages, or facilitates unconstitutional activity
3. key examples
a. courts can't enforce racially restrictive covenants
b. state action
-leases premises to a restaurant that racially discriminates
-provides free books to private schools that racially discrim
-private entity regulates interscholastic sports within a state
c. no state action
-private school that is over 99% funded by the govt fires a teacher b/c of speech
-NCAA orders the suspension of a basketball coach at a state university
-private club with state liquor license discriminates

Front 37

Bill of Rights

Back 37

Applies directly to the federal government and to the states via 14th A incorporation, but the following rights haven't been incorporated:
1. right not to quarter soldiers
2. 5th A right to a grand jury indictment in a crim case
3. 7th A right to jury trial in a civil case
4. 8th A right against excessive fines

Front 38

Levels of Scrutiny

Back 38

1. rational basis
a. rationally related
b. legitimate government purpose
c. challenger has burden of proof
2. intermediate scrutiny
a. substantially related
b. important government purpose
c. government bears burden
d. means chosen must be narrowly tailored
3. strict scrutiny
a. necessary
b. to achieve a compelling govt purpose
c. govt bears burden
d. means must be least restrictive

Front 39

Procedural Due Process, has there been a deprivation of life, liberty, or property?

Back 39

1. definitions
a. deprivation of liberty = loss of significant freedom provided in the const or statute
b. deprivation of property = when there's an entitlement that is not fulfilled (fired 6mo into a 1yr K)
2. government negligence isn't enough: there must be intentional or reckless govt action
a. unless it's an emergency situation, then the govt action must "shock the conscience"
3. govt failure to protect people from private actors isn't enough (poor Joshua)

Front 40

If there's been a deprivation, then there's a 3part balancing test

Back 40

1. the importance of the interest to the individual
2. the ability of additional procedures to increase the accuracy of fact-finding, and
3. govt interests (usually efficiency and economy)

Front 41

Examples of Required Procedural Due Process

Back 41

1. termination of welfare benefits requires notice and a hearing
2. termination of SS disability benefits reqs only a post-termination hearing
3. permanent term of a parent's right to custody reqs notice and a hearing
4. unless emergency, before an adult can be institutionalized there must be notice and hearing
5. harm to reputation alone is not a loss of liberty
6. prisoners rarely have liberty interest; almost always lose
7. punitive damage awards req jury instructions to gd discretion and judicial review to insure that any award is reasonable
8. non-citizen held as an enemy combatant has the right to challenge continued detention
9. if substantial risk of actual bias, judge must recuse

Front 42

Substantive Due Process, Economic Liberties/Takings Clause

Back 42

1. is there a taking
a. possessory
b. regulatory
2. is it for public use: govt acts out of a reasonable belief that the taking will benefit the public
3. is just compensation paid: reasonable market value

Front 43

Substantive Due Process, Economic Liberties/Contracts Clause

Back 43

No state or local interference with already-existing contracts, unless passes intermediate scrutiny:
1. does the legis substantially impair a party's rights under an existing K?
2. if so, is the law a reasonably and narrowly tailored means of promoting an important and legit public interest?

State or local interference with govt Ks must meet strict scrutiny

Front 44

Substantive Due Process, Ex Post Facto Laws

Back 44

Neither federal nor state govts can adopt: in criminal cases only, if the conduct wasn't illegal when done, the person can't now be charged

Front 45

Privacy

Back 45

Substantive Due Process, Strict Scrutiny
1. right to marry
2. right to procreate
3. right to custody of ones kids
a. can be terminated with neglect or abuse
b. states can implement an irrebutable presumption that a married woman's husband is the father of her child
4. right to keep the family together (relatives, not friends)
5. right of parents to control the upbringing of their kids (no gparent visitation ordered)

Front 46

Privacy, Reproductive Rights

Back 46

1. right to purchase and use contraceptives
2. right to abortion
a. prior to viability, no undue burden
b. not an undue burden
- 24hr wait
- must be done by a licensed physician
- no partial birth
c. after viability, states may prohibit unless necessary to protect woman's health or life
d. govt need not subsidize abortions or provide them in public hospitals
e. spousal consent and notification laws are unconst
f. state may require parental consent so long as the minor can also go through a judge
3. right to engage in consensual same-sex activity

Front 47

Privacy, right to refuse medical treatment

Back 47

1. don't know level of scrutiny
2. can refuse even life saving treatment
3. state may require clear and convincing evidence that the person wanted the treatment terminated
4. family members can't terminate for each other
5. no assisted suicide

Front 48

Right to Bear Arms

Back 48

1. don't know level of scrutiny
2. right to use weapons for self-defense

Front 49

Right to Travel

Back 49

1. laws that prevent people from moving into the state must meet strict scrutiny
2. durational residency reqs must meet strict scrutiny
a. for voting purposes, 50days is the max allowed
3. no fundamental right to international travel

Front 50

Right to Vote

Back 50

1. laws, like poll taxes, that deny some citizens the right to vote must meet strict scrutiny
2. one-person-one-vote: drawing of lines so that everyone's equally represented
3. at large elections are OK unless there's proof of a discriminatory purpose (impact alone isn't enough)
4. use of race in drawing lines must meet strict scrutiny
5. counting uncounted votes w/o standards in a presidential election violates equal protection

Front 51

Right to Education

Back 51

No fundamental right to education.

Front 52

Equal Protection Analysis

Back 52

1. what is the classification
2. what level of scrutiny should be applied
3. does this law meet the level of scrutiny

Front 53

Equal Protection, Race and National Origin

Back 53

1. strict scrutiny
2. how to show the existence of such a classification
a. face of the law
b. discrim impact AND discrim intent (peremptory challenges based on race)

Front 54

Equal Protection, Racial Classifications Benefiting Minorities

Back 54

1. strict scrutiny
2. numerical set-asides require clear proof of past discrimination
3. edu institutions can use race as one factor in admissions

Front 55

Equal Protection, Gender Classifications

Back 55

1. intermediate scrutiny: exceedingly persuasive justification
2. how to show such a classification exists
a. face of the law
b. discrim impact and intent

Front 56

Equal Protection, Gender Classifications Benefiting Women

Back 56

1. if based on role stereotypes, not allowed
2. if designed to remedy past discrim or differences, then OK

Front 57

Equal Protection, Alienage Classifications

Back 57

1. strict scrutiny
2. privileges that can be reserved for citizens
a. voting
b. serving on a jury
c. being a police officer, teacher, or probation officer
d. NOT a notary public
3. if Congress discriminates against aliens, rational basis
4. undocumented immigrant kids, use intermediate scrutiny

Front 58

Equal Protection, Discrimination against Non-Marital Children

Back 58

1. intermediate scrutiny
2. can't deny to non-marital and grant to marital

Front 59

Rational Basis Review Categories

Back 59

1. age discrim
2. disability discrim
3. wealth discrim
4. govt econ regulations
5. sexual orientation

Front 60

Free Speech, Content-Based vs. Content-Neutral

Back 60

1. content-based restrictions must pass strict scrutiny
2. two ways to find that a restriction is content-based
a. subject matter restriction: application of the law depends on the topic of the message
b. viewpoint restriction: application of the law depends on the ideology of the speech
3. content-neutral laws must meet intermediate scrutiny

Front 61

Free Speech, Prior Restraints (stopping speech before it occurs)

Back 61

1. court orders suppressing speech must meet strict scrutiny
a. but must be complied with until vacated, or you can't contest later
b. gag-orders on the press to prevent prejudicial pre-trail publicity are not allowed
2. licensing for speech is OK only if
a. important reason for licensing
b. clear criteria leaving almost no discretion
c. procedural safeguards

Front 62

Free Speech, Vagueness and Over-breadth

Back 62

1. unconstitutionally vague if a reasonable person can't tell what speech is allowed (not ok = tends to corrupt the morals of youth)
2. over-broad if it regulates substantially more speech than the const allows (not ok = prohibits all live entertainment to get at nude dancing)
3. fighting words aren't protected speech, but such statutes are usually nixed for vagueness

Front 63

Free Speech, Symbolic Speech

Back 63

The govt may regulate conduct that communicates an important message if
1. it has an important interest
2. unrelated to suppression of the message, and
3. impact on communication is no greater than necessary

Protected:
1. flag burning
2. burning a cross, unless done to threaten and intimidate

Not Protected
1. draft card burning
2. nude dancing

Front 64

Free Speech, Contributions to Campaigns

Back 64

1. contribution limits in election campaigns are allowed
2. expenditure limits in campaigns are not allowed

Front 65

Free Speech, Anonymous Speech

Back 65

1. protected
2. state's interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of the names and addresses of persons who sign the ballot petition

Front 66

Free Speech, Speech of the Government

Back 66

1. govt can express views via funding
2. must be rationally related to legit state interests

Front 67

Free Speech, Incitement of Illegal Activity

Back 67

1. unprotected
2. the govt may punish speech if there is a substantial likelihood of imminent illegal activity, and
3. if the speech is directed to causing such activity

Front 68

Free Speech, Obscenity

Back 68

Can be restricted if (all 3)
1. material appeals to prurient interests, or a shameful or morbid interest in sex
2. patently offensive
3. taken as a whole, the material lacks serious redeeming artistic, literary, political, or scientific value as determined by a national standard

Govt may seize the assets (all) of businesses convicted of violating obscenity laws

Front 69

Free Speech, Child Porn

Back 69

1. child porn can be completely banned, even if not obscene
2. child porn = kids involved in its production
3. govt can't punish private possession of obscene materials unless it's child porn

Front 70

Free Speech, Profane and Indecent Speech

Back 70

Generally protected by the 1st A
1. but not on a free, over-the-air broadcast
2. not in schools

Front 71

Free Speech, Commercial Speech

Back 71

1. not protected = ads for illegal activity, false and deceptive ads
2. true commercial speech that inherently risks deception can be prohibited
a. states may prevent professionals from practicing under a trade name
b. states may prohibit attorney, in-person solicitation of clients for profit
c. govt may not prohibit accountants from in-person solicitation
3. other commercial speech = intermediate scrutiny (narrowly tailored but not least restrictive alternative)

Front 72

Free Speech, Defamation

Back 72

1. public official
a. plaintiff must show
b. by clear and convincing evidence
c. falsity and actual malice (reckless disregard for the truth)
2. private figure, matter of public concern
a. plaintiff must show
b. falsity of statement, and
c. negligence and actual injury
d. gets compensatory damages, or
e. presumed (automatic via statute) or punitive if shows actual malice
3. private figure
a. negligence?
b. no need to show actual malice to get punitive damages

Front 73

Free Speech, Privacy

Back 73

1. no liability for truthful reporting of info that was legally obtained from govt records
2. media won't be held liable for broadcasting a tape of an illegally intercepted call, if
a. media didn't participate in the illegality, and
b. public importance
3. govt can restrict its own dissemination of info to protect property
a. public has a 1st A right to attend proceeding and have access only for criminal trial and pre-trial proceedings

Front 74

Free Speech, Govt Employees

Back 74

Their speech while on the job isn't protected.

Front 75

Free Speech, General Standard

Back 75

Unless otherwise mentioned, strict scrutiny.

Front 76

Free Speech, Public Forums

Back 76

Places where the govt is constitutionally required to allow speech
1. regulations must be subject matter and viewpoint neutral, or meet strict scrutiny
2. regs must be time, place, or manner, serve an important govt purpose, and leave open adequate alternative places
3. govt reg of speech in public forums need not be least restrictive
4. permit fees are unconst if there's discretion in amount

Front 77

Free Speech, Designated Public Forums

Back 77

1. govt could close off to speech, but chooses not to, like school facilities on weekends
2. same rules apply

Front 78

Free Speech, Limited Public Forums

Back 78

1. govt properties that are limited to certain groups or subjects
2. reg must be reasonable and viewpoint neutral
3. ex: school where govt is holding a candidate forum

Front 79

Free Speech, Non-Public Forums

Back 79

1. govt properties that the govt can and does close off to speech
2. regulation must be reasonable, aka meet the rational basis test
3. exampes
a. military bases
b. areas outside prisons and jails
c. schools, but note: a public law school may req that extra-curricular student gps that are funded by the activity fee accept everyone regardless of status or belief
d. signs on public property (govt can prohibit)
e. sidewalks on post office property only
f. airports
- can prohibit solicitation of money
- can't prohibit the distribution of literature

NOTE: a shopping center is private property and there is no right of access

Front 80

Freedom of Association

Back 80

1. Laws that punish or prohibit group membership must meet strict scrutiny
2. to punish a member of group it must be shown that the person
a. is actively affiliated
b. has knowledge of the group's illegal activities, and
c. has the specific intent of furthering those activities
3. laws that require disclosure of group membership, where such disclosure would chill association must meet strict scrutiny
4. doesn't protect the right to discriminate unless it's
a. intimate association (dinner party)
b. where discrim is integral to the expressive activities of the group (boy scouts, KKK)

Front 81

Free Exercise Clause

Back 81

1. cannot be used to challenge a neutral law of general applicability
2. govt may not deny benefits to those who quit their jobs for religious reasons

Front 82

Establishment Clause

Back 82

SEX: must meet all three, or you violate the establishment clause
1. Secular purpose
2. Effect (primary) must neither advance nor inhibit religion
3. Xcessive: No excessive entanglement with religion

Govt can't discrim against religions or religious speech w.o strict scrutiny.

Govt can's sponsor religious activity in public school:
1. religious student and community groups must have equal access
2. no school prayer, even a voluntary moment of silent prayer

Govt can help parochial schools so long as the money isn't used for religious instruction.