Con Law Ii Cram

Front 1

SA - Req.

What is the State Action requirement?

Back 1

The court can grant relief only if it finds that there has been state action (i.e. some sort of participation by a government entity sufficient to make the particular constitutional provision applicable).

Front 2

SA - Bases

What are the 3 bases for State Action?

Back 2

1. Public Function
when a private individual (or group) entrusted by the state, performs functions “traditionally and exclusively” reserved to the state
2. Judicial Deference
court’s enforcement of certain provisions or actions may constitute state action, but court involvement does not per se constitute state action
3. Partnership/Nexus Theory
If the government is sufficiently involved in, or encourages, or benefits from private conduct, then the private party’s acts will be deemed state action

Front 3

What are the 2 kinds of DP and what are their subsets?

Back 3

1. Substantive Due Process (SDP)
economic rights; takings clause and contracts clause; non-economic rights: right to privacy
2. Procedural Due Process (PDP)
is there a liberty or property right?; how much process is due?

Front 4

DP - SDP - Economic Rights

What are the 2 consideration w/i Economic Rights analysis?

Back 4

1. The minimum rationality standard.
2. How Economic Rights can be found through Footnote 4.

Front 5

DP - SDP - TC & KC - TC

What is the TC and what are its 7 subsections?

Back 5

TC does not prohibit expropriation in the public interest, but merely requires that the government pay just compensation.
1. The 4 elements of TC
2. Public Use
3. Regulatory Takings
4. Penn Central Balancing Test
5. Per Se Takings
6. Remedies for Takings
7. Land Use Regulation

Front 6

DP - SDP - TC & KC - KC

What is the KC and what are its 3 subsections?

Back 6

KC prevents impairment of Ks
1. Retroactivity
2. Federal Gov't
3. State police power

Front 7

DP - SDP - Non-Economic Rights

What are the 6 subsections of the Non-Economic Rights (privacy)?

Back 7

1. Fundamental Rights
2. Contraception
3. Abortion
4. Family/Marriage Relationships
5. Sexuality
6. Right to Die

Front 8

What are the 5 subsections of EP?

Back 8

1. Race Segregation
2. Other Suspect Classifications
3. Minimum Rationality Review of Economic Regulation
4. Fundamental Interest
5. Congressional Powers

Front 9

EP - Race Segregation

What are the 8 subsections of Race Segregation?

Back 9

1. Seperate but Equal
2. Implementing Brown and Judicial Remedies
3. De jure Segregation
4. De facto Segregation Outside the South
5. Family Segregation
6. Facial Discrimination
7. Facially Neutral Laws
8. Affirmative Action and “Benign Discrimination”

Front 10

EP - Other Suspect Classifications

What are the 6 subsections of Other Suspect Classifications?

Back 10

1. Gender
2. Alienage
3. Disability
4. Age
5. Poverty
6. Sexual Orientation

Front 11

DP - SDP - Economic Rights

What standard governs Economic Rights in the SDP analysis?

Back 11

Minimum "rational basis" standard.
an economic regulation has the presumption of constitutionality so long as there is some rational basis for the statute

Front 12

DP - SDP - Economic Rights

According to FN 4, heightened scrutiny is appropriate in three situations. What are the 3 situations?

Back 12

1. Legislation which appears on its face to violate an express provision of the Const or BoR
2. Legislation which restricts the political process or interferes with democracy, OR
3. Legislation aimed at discreet and insular minorities who are not protected by the political process

Front 13

DP - SDP - TC & KC - TC

In SDP, what are the 4 elements of the TC?

Back 13

1. What is the taking?
2. Is it private property?
3. For public use?
4. Was there just compensation?

Front 14

DP - SDP - TC & KC - TC

In TC analysis, what are the 3 elements of the Public Use doctrine?

Back 14

1. Court determines “public use,” (use for public benefit).
2. It is impermissible to take for “private use” no matter the compensation (Although, economic development is a traditional function of government (Kelo)).
3. Issues arise when government takes and gives to private parties.

Front 15

DP - SDP - TC & KC - TC

Under TC analysis, what is the general rule for Regulatory Takings?

Back 15

General Rule: The more drastic the reduction in value of the owner’s property by a regulation, the more likely it is to require compensation.

Front 16

DP - SDP - TC & KC - TC

Under TC analysis, what is the Penn Central Balancing Test for Regulations v. Takings?

Back 16

Balance public gain against private harm.
A taking is more readily found when the interference with property is characterized as a physical invasion by the government, than when interference arises from some public program adjusting benefits and burdens of economic life to promote the common good.

Front 17

DP - SDP - TC & KC - TC

Under TC analysis, what are the 2 circumstances in which the gov't must pay just compensation for Per Se takings?

Back 17

Government must pay just compensation where:
1. there has been a physical occupation by the gov't; and
2. the gov't deprives the owner of all economically beneficial use of the land.

Front 18

DP - SDP - TC & KC - TC

Under TC analysis, what 2 conditions must be met for Land-Use Regulations?

Back 18

2 conditions must be met (at the least) when the government conditions land-use permission on the owner’s “give-back” of a significant property right:
1. The means chosen by the local government must “substantially advance” a legitimate aim; and
2. The “give-back” of the property owner must be “roughly proportional” to the harm caused by the new land use.

Front 19

DP - SDP - TC & KC - KC

What are the 3 elements of KC analysis?

Back 19

1. Only applies to retroactive legislation; must always have a retroactive impairment to invoke the KC.
2. Does not apply to the federal government unless they are acting like a private entity (ex. selling insurance to armed forces).
3. KC is interpreted to accommodate state’s police power – ask, “Does the state regulation substantially impair contractual relations?”

Front 20

DP - SDP - TC & KC - KC

Under the KC, when will impairment of Public Obligations be constitutional?

Back 20

An impairment of contractual obligations will be constitutional only if it is “reasonable and necessary to support an important public purpose”

Front 21

DP - SDP - TC & KC - KC

Under the KC, state police power generally limits Private Obligations to minor modifications. When will substantial modifications be allowed?

Back 21

Substantial modifications are only allowed where there is:
1. an emergency;
2. a basic societal interest protected (not a favored group);
3. appropriately tailored relief;
4. a reasonable modification; and
5. limited duration.

Front 22

DP - SDP - Non-Economic Rights - Fundamental Rights

What SoR are applicable to Fundamental Rights and what are examples of these rights?

Back 22

When the right is fundamental (often an expansion of right to privacy/“right to personal autonomy”), the court applies SS.
When the right is not fundamental (often economic rights) the court applies RB.
Fundamental rights include: sex, marriage, child-bearing, and child-rearing.

Front 23

DP - SDP - Non-Economic Rights - Contraception

What SoR and 4 considerations apply to Contraception?

Back 23

Use SS.
1. BoR guarantees privacy and creates a “penumbra” or “zone” of privacy.
2. FN4 doesn’t work here b/c “married people” are not a discreet and insular minority.
3. Open back up SDP for non-economic rights (Griswold).
4. Access to BC is essential to exercise the right of decisions in child-bearing which underlies holdings in Griswold, Eisenstadt, and Roe.

Front 24

DP - SDP - Non-Economic Rights - Abortion - Roe

Describe the holding in Roe and what SoR the court applied.

Back 24

Roe applied SS and said:
1. A woman’s right to privacy is a “fundamental” right under 14A, therefore the legislature can only regulate abortion, not completely ban it.
2. States can regulate abortion in different ways depending on the trimester, but the regulation must be in line with the state interest.
1st: Regulation can only include that a woman get an abortion from a licensed doctor. No CSI, only an important state interest in woman’s health and potentiality of life (cannot override woman’s interest).
2nd: State can pass regulations that are reasonably related to maternal health. No CSI, only an important state interest in woman’s health and potentiality of life (cannot override woman’s interest).
3rd: State can regulate whether the woman can have an abortion. CSI in the woman’s health and potentiality of life (this trimester achieves viability). Protecting the fetus is compelling enough to override woman’s interest.

Front 25

DP - SDP - Non-Economic Rights - Abortion - Casey

Describe the holding in Casey and what SoR the court applied.

Back 25

Casey applied IS and is the current law on abortion:
State can regulate abortion at any stage so long as it does not place “undue burden” on the woman’s right to choose.
A law presents an “undue burden” if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
No more trimester framework.
Abortion is not a “fundamental” right.

Front 26

DP - SDP - Non-Economic Rights - Family/Marriage Relationships

What SoRs apply to the marriage right, child-rearing and regulation of marriage?

Back 26

Use SS if the regulation interferes with the fundamental right to marry or care for and control children.
Use RB if the law merely regulates marriage.

Front 27

DP - SDP - Non-Economic Rights - Sexuality

What SoR applies to sexuality and how was it described by the court?

Back 27

Apply RB.
“Special” liberty (in your own home), and “transcendent” liberty (in your sexuality).

Front 28

DP - SDP - Non-Economic Rights - Right to Die

What are the 2 types of Right to Die cases and what SoR applies to each?

Back 28

1. Refusing Unwanted Medical Procedures
Use SS. General “liberty interest” in not being forced to undergo unwanted medical procedures.
A competent person has a right to refuse treatment (“liberty interest”) – and the state has a compelling interest in preserving life.
But, Court allowed heightened level of proof for an incompetent person’s wish to refuse treatment, fearing that a guardian would not act in the best interest of the individual.
2. Assisting Suicide
Use RB. No general “liberty interest” in committing suicide or recruiting a 3rd party to assist in suicide

Front 29

DP - PDP

What is the first question we ask in PDP analysis and how do we define its components?

Back 29

Is there a liberty or property interest? (State law question)
Free speech is a liberty interest. Court does not want to give expansive interpretations of liberty interests for PDP triggers.
To have a property interest in a benefit, you must have more than a unilateral expectation, you need to have a legitimate claim of entitlement (which is defined by state property laws, welfare laws, etc)

Front 30

DP - PDP

What is the second question we ask in PDP analysis and what 3 part test answers the question?

Back 30

How much process is due? (Federal law question)
Mathews Balancing Test:
1. Private interest affected by the official action;
2. Risk of erroneous deprivation (of the private interest) through the procedures used and probable value of substitute safeguards; and
3. Government’s interest in the additional or substitute procedural requirement.

Front 31

EP - Race Discrimination - Race Segregation

What SoR applies to all Race Segregation issues?

Back 31

SS

Front 32

EP - Race Discrimination - Race Segregation

What is the current view on the "Seperate but Equal" doctrine?

Back 32

Separate education facilities are inherently unequal. Even where black and white schools are the same on tangible factors, the intangible differences affect the hearts and minds of black children and lead to feelings of inferiority. (Brown)
Education is a fundamental right and liberty interest – providing education is the most important goal of state and local governments

Front 33

EP - Race Discrimination - Race Segregation

How was Brown implemented? (2 parts to school segregation; and what district courts must do)

Back 33

Two parts to every school segregation case:
1. Brown [I]: is there a substantive violation of Brown v. Board? If yes, then . . .
2. Brown [II]: what is the appropriate remedy?
Federal district courts have primary responsibility for supervising desegregation.
Court gave no precise guidelines, but directed district courts to use general equitable principles to implement desegregation with all deliberate speed.
Burden of proof for delay is on the school board.

Front 34

EP - Race Discrimination - Race Segregation

For De jure (required by law) segregation, what must school boards do and what 4 Swann remedies are available to them?

Back 34

“Freedom of choice” is not valid desegregation. School boards have to “affirmatively integrate.”
Specific remedies available to district courts (Swann):
1. Use quotas in limited amounts,
2. Limited, but permissible, one-race schools,
3. Restructured attendance zones,
4. Use of busing.

Front 35

EP - Race Discrimination - Race Segregation

For De facto Segregation Outside the South, what do districts have to do, how can a violation be established, what is required where integration can't be accomplished, and what can district court not order?

Back 35

Districts with de facto segregation also have to affirmatively integrate.
Factors to establish a violation in Northern contexts:
1. Before 1954: If schools were segregated by government action then de jure segregation.
2. After 1954: Did the school board meet its affirmative duty to desegregate? Did the school board take any more de jure actions?
If they did not affirmatively integrate, they are subject to Swann remedies.
Where integration can’t be accomplished b/c of housing patterns (ex. Detroit is 90% black) then other remedies need to make the victims whole (i.e. reading programs, teacher training, small class size, counseling programs).
District court can’t impose fiscal burdens or heavy taxes on the state, and can’t order salary increases for teachers.

Front 36

EP - Race Discrimination - Race Segregation

What SoR applies to Facial Discrimination?

Back 36

SS of any racially discriminatory laws with classifications resting on any advertence to race, national origin, ancestry, ethnicity or other suspect classification.

Front 37

EP - Race Discrimination - Race Segregation

For Facially Neutral Laws with arguably Racially Discriminatory Purpose and Effect (Intent v. Impact), what SoR applies if there is discriminatory intent, how do we prove intent and what SoR applies if there is impact alone?

Back 37

If there is discriminatory intent: triggers a suspect class and evokes SS.
Intentional/Purposeful discrimination can be found in three ways:
1. The law discriminates on its face by explicit terms (Korematsu),
2. The law, although facially neutral, is administered in a discriminatory way (Yick Wo),
3. The law, although facially neutral and applied in accordance with its terms, was enacted with an intent to discriminate, demonstrated by the legislative history, the law’s disparate impact (not enough on its own, need other factors ), or other circumstantial evidence of intent. (Arlington Heights)
Intent need not be the sole motive of the legislation, but it needs to be a motivating factor.
If there is just discriminatory impact: triggers a quasi-suspect class and evokes heightened/IS.

Front 38

EP - Race Discrimination - Race Segregation - Affirmative Action and “Benign Discrimination”

What triggers SS in discrimination cases vs. affirmative action cases?

Back 38

Discrimination cases: SS triggered where race is the motivating factor.
Affirmative Action cases: SS triggered where race is the predominant factor.

Front 39

EP - Race Discrimination - Race Segregation - Affirmative Action and “Benign Discrimination”

In Higher Ed cases, what SoR applies and what are examples of Constitutional and Un-Constitutional race-concious admission measures?

Back 39

Race-conscious admission measures receive SS, and must be narrowly-tailored to achieve a compelling objective.
Pursuit of diversity in the student body can be a compelling objective,
A one-student-at-a-time evaluation in which the student’s race is merely one factor among various ones considered is sufficiently narrowly-tailored, but . . .
Mechanical approaches resembling quotas, such as automatically awarding “points” to an applicant based on race, are not narrowly-tailored and therefore violate EPC.

Front 40

EP - Race Discrimination - Race Segregation - Affirmative Action and “Benign Discrimination”

In Public Employment/Contracting, what SoR applies and what 3 reasons support this finding?

Back 40

NOW as of Adarand: All race classifications whether benign or hostile, state or federal, white or black, use SS to evaluate program and the provisions must be narrowly tailored to the compelling state interest.
Three reason why race-conscious plans must be subjected to strict scrutiny:
1. No way to tell which AA plans are “benign” or “remedial” and which ones are possibly benign, but in reality, motivated by “illegitimate notions of racial inferiority or simple racial politics.”
2. Danger of stigmatic harm in the long run that minorities cannot make it w/o plans.
3. If race-conscious AA plans are not strictly scrutinized, we will never become truly “race-neutral.”

Front 41

EP - Race Discrimination - Race Segregation - Affirmative Action and “Benign Discrimination”

In K-12 Ed, what SoR DOES NOT apply, and WHY?

Back 41

No individual student’s race may be considered in making that student’s school assignment under strict scrutiny:
Only two interests are compelling regarding school assignment:
1. “remedying past discrimination”
2. “diversity in higher education”
The race-conscious means chosen by the districts were not narrowly tailored to meet the interest they were designed to pursue b/c race was not one factor, but the only factor.

Front 42

EP - Race Discrimination - Race Segregation - Affirmative Action and “Benign Discrimination”

In Electoral Districting/Voting Rights, what is "racial gerrymandering," what SoR applies, and what standard feeds the exception to this rule?

Back 42

“Racial gerrymandering” (redistricting where race is the predominant factor) violates EPC under SS.
Race-conscious districting is still allowed, it just cannot be the predominant factor in redistricting.
Compliance with the Voting Rights Act is a compelling interest and it is OK if a few districts are drawn where the minority is the majority.

Front 43

EP - Other Suspect Classifications - Gender

What SoR applies to Gender?

Back 43

Level of review applied for gender classification, whether hostile or benign, is IS.
“Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”

Front 44

EP - Other Suspect Classifications - Gender

For Gender, what does IS require and what must Gender-based classifications NOT do?

Back 44

IS calls for an “exceedingly pervasive justification.”
The objective (end) being offered for the regulation (means) must actually have motivated the government when they made the regulation.
Gender-based classifications must not rely on over-broad generalizations about different capabilities or preferences of men and women and may not be used, to create or perpetuate the legal, social, and economic inferiority of women.

Front 45

EP - Other Suspect Classifications - Gender

For Gender, how does the cour treat Affirmative Action for Women?

Back 45

Court seems to invalidate preferences for females that reinforce traditional “archaic or over-broad stereotypes” of fragility or financial dependence on men, but upholds these preference for females that compensate for past disadvantages.

Front 46

EP - Other Suspect Classifications - Alienage

What SoR generally applies to Alienage and what is the exception to this rule?

Back 46

Legal Aliens are a FN4 class so they deserve SS.
However, if we held every alien classification to strict scrutiny it would obliterate the distinctions between citizen and alien and depreciate citizenship. Therefore, the state can exclude aliens from positions where the state functions as a government entity (Government Function exception).

Front 47

EP - Other Suspect Classifications - Age, Disability, Poverty, Sexual Orientation

For Age, Disability, Poverty, Sexual Orientation, what SoRs apply and what are the 4 reasons why age is not a suspect class?

Back 47

Age - Use RB.
Four reasons why age is not a suspect class:
1. No history of discrimination based on age,
2. Disabilities associated with age are real,
3. Where would you draw the line at discrimination of the elderly,
4. Everyone goes through aging – not politically powerless
Disability - Use RB.
Poverty - Use RB unless coupled with a burden on a fundamental interest (then use SS).
Sexual Orientation - Use RB or RB w/ Bite

Front 48

EP - Minimum Rationality Review of Economic Regulation

For Minimum Rationality Review of Economic Regulation, what test is used and how does the court treat under-inclusive statutes?

Back 48

1. “Mere Rationality” Test
Where neither a suspect class nor a fundamental right is implicated, the Court will review a classification with extreme deference, and with a heavy presumption of constitutionality.
Any plausible purpose offered by counsel or made up by the court claimed to underlie the legislatures action is acceptable.
TEST: The statute will not be stricken if it is conceivable that there is a rational relation between the means selected by the legislature and a legitimate legislative objective.
2. Under and Over-Inclusive Regulations
Under-inclusive statutes are necessarily invalid b/c “It is no requirement of equal protection that all evils of the same genus be eradicated or none at all…” – Court throws out SDP for economic regulations, it is not used in this area.

Front 49

EP - Fundamental Interests

For Fundamental Rights of EP, what rights are considered fundamental, what rights are not considered fundamental and what SoR applies to each, and what exception applies?

Back 49

1. Fundamental Rights apply SS and include the right to vote, right to travel, etc.
2. Food, shelter and education are not Fundamental rights.
Use RB. Constitution only protects civil rights and liberties, not social or economic/welfare rights.
However, total denial of education to a class does trigger EP.
Court found “children of illegal aliens” a quasi-suspect class, and education a quasi-fundamental right, so IS applied.

Front 50

CP - Congressional Power to Reach Private Interference with Constitutional Rights

Can the 13th Amendment be enforced against private actors? Why or why not?

Back 50

Congress may enforce the 13A against private actors, b/c the 13A, is not explicitly limited to governmental action.
Congress has the power to “rationally determine what are the badges and incidents of slavery,” and every form of racial discrimination is a “badge of slavery.”

Front 51

CP - Congressional Power to Reach Private Interference with Constitutional Rights

Can the 14th and 15th Amendments be enforced against private actors? Why or why not?

Back 51

Under its 14A §5 enforcement powers, Congress cannot reach purely private conduct that has nothing to do with state officials.

Front 52

CP - Congressional Power to Enforce under S. 5 of 14A

Describe the 3 Congressional Powers to Enforce under S. 5 of 14A. (what SoR applies and what balancing is performed?)

Back 52

1. Congress Has Broad Remedial Powers
Congressional remedial powers under §2 of 15A permits it to outlaw practices which the Court would not on its own find to violate §1 of 15A, as long as these practices are reasonably closely related (rational basis) to practices that would violate §1.
2. Congress May Not Redefine the Scope of Constitutional Guarantees
“Congress has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.”
Congress’ remedial power must be “congruent and proportional” to the potential state violation (the harm the state may be causing) before Congress can use their remedial powers.
3. Congress’ Regulation of States Must be Proportional to the Violation
Where Congress tries to remedy state discrimination against a non-suspect or non-quasi-suspect class, only the remedy of truly egregious/irrational state action will be found “congruent and proportional.”
Where Congress remedies state discrimination against a suspect or quasi-suspect class, they have more power under 14A §5 and it is more likely the Court will find their remedy “congruent and proportional.”