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80 Cards in this Set
- Front
- Back
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Big Picture Questions for Constitutional Law
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1. What power is being exercised?
2. Is state action involved? 3. Is the exercise of power constitutional? |
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Supreme Court Jurisdiction
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Original: Ambassadors, public ministers, consuls. Where state is party.
Appellate: where ct of app holds ANY statute unconstitutional; 3-judge district court decisions denying/granting injunc relief; fed ct decision holding fed statute unconstitutional where US a party State: states highest ct holds fed statute/treaty invalid or upholds state statute against under constitution or fed statute. Certiorari: Federal -- any fed ct app case. State -- where state ct upholds fed statute/treaty or holds state statute uncon or invalid under fed statute/treaty |
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Limitations on Judicial Power
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SAMRAP
Standing Abstention Mootness Ripeness Advisory Opinions Political Questions |
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Standing
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injury in fact + causation + redressability
taxpayer standing ONLY if suing under Establishment Clause |
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Third Party Standing
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also suffered injury + difficult for third party to assert OR third person injury adversely affects relationship resulting in indirect violation of rights
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Organizational Standing
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injury to members + injury related to purpose of org + individual member's particip not needed
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Mootness
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P no longer has stake in controversy
Exceptions: issue capable of repetition yet evading review. |
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Abstention
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where claim based on unsettled question of state law, federal ct should abstain temporarily to give state courts opportunity to settle underlying state law question
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Ripeness, Advisory Opinions, Political Questions
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Ripeness: issue must be ripe for review with some real harm or immediate threat of harm.
Advisory opinions: no decisions where enforcement of law is neither actual nor threatened. Political Questions: no decisions on issues committed by the Con to another gov't branch and those incapable of resolution and enforcement by judicial process |
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Independent State Grounds
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Supreme Ct will refuse jurisdiction when adequate non-federal grounds support a state decision, but they can review if fed grounds were relied upon.
Fed ct. won't enjoin pending state criminal action unless harassment or bad faith. |
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Eleventh Amendment
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States' Sovereign Immunity
Fed ct can't hears damages claim where a state is a defendant. Doesn't apply to local gov'ts. State can waive. Congress can remove immunity under 14th Amd., not under 11th. State officers may be sued as individuals. |
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Legislative Powers
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Commerce Power
Aliens, Naturalization, Citizenship Foreign Affairs Power Election Regulation Power Tax and Spending Power War Power Enforcement of Civil Rights Property Power Delegation Powers Postal Power Fiscal Power Bankruptcy Power Admiralty Power Patent & Copyright Power |
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Commerce Power
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congress can regulate any activity if there's a "rational basis" that it affects interstate commerce, including: stream of commerce, impact on commerce, aggregate impact.
regulation must be "reasonably adapted" to the end sought. Dormant Commerce Clause: states may regulate local activity which don't "unduly burden" interstate commerce. |
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Aliens, Naturalization, and Citizenship Power
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Congress has the "exclusive" federal power to regulation immigration.
Congress can't take away citizenship w/o express/implied consent. Resident Aliens: Congress can provide any grounds for deportation, but entitled to notice + hearing. Non-resident aliens: congress can provide any grounds for deportation or exclusion. |
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Foreign Affairs Power
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Congress has broad powers relating to foreign affairs (including regulation of foreign commerce, ratifying treaties).
States cannot frustrate these objectives. |
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Election Regulation Power
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Congress has power to protect eligible voters in any state or fed election from discrimination.
15th Amd: no discrimination based on race or previous servitude 19th Amd: no sex discrimination 26th: Amd: no age discrimination 24th Amd: no discrimination based on poll tax. Voter's Rights Act: provides sanctions for violations. |
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Spending Power
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Congress may spend for ANY purpose reasonably regarded as for the general welfare of the nation.
Congress can attach strings to financial grants if they are related to accomplishment of general welfare, Congress could have demanded on their own, strings are not unconstitutional or ambiguous. |
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War Power
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Congress has the power to declare war, raise & support armies, navy, prepare for future war, institute economic and social controls during wartime.
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Enforcement of Civil Rights Power
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Congress can enforce civil rights through the 13th, 14th, 15th Amendments, commerce, war, tax, fiscal, spending powers.
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Property Power
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Congress can make all needful rules and regulations regarding federal land:
Power to control occupancy and use. Restrict against trespass or injury. Restrict private exploitation of resources/wildlife. |
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Taxing Power
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Congress has power to tax if it bears some reasonable relationship to "revenue production" OR if Congress has the power to regulate the taxed activity.
Court won't scrutinize purpose if substantial tax revenue is produced. Tax can't be penalty. |
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Postal, Coining, Bankruptcy, Admiralty, and Copyright and Patent Powers
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Postal: can estab post office and post roads and place reasonable restrictions on use of mail. Can't deprive citizens of general mail privilege or regulate mail to abridge 1st or 14th Amds.
Coining: can coin money and regulate its value by establishing banks, fed reserve, credit system, and regulate all finance under nec&proper clause. Bankruptcy: can establish bankruptcy laws (share w/ state). Admiralty: regulate all navigable waterways. Patent & Copyright: regulate and control patent and copyright. |
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Delegation Power
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Congress can delegate legislative power to executive officials and/or administrative agencies IF power is not uniquely confined to Congress and the delegation includes intelligible standards with which agencies/officials can regulate.
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Presidential Powers (Executive Powers)
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Military Power
Executive Agreements and Privileges Treaty Power Pardon Power Foreign Affairs Veto Power |
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Military Power
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President is commander in chief of armed forces and can act against hostilities, can establish military gov in occupied territories and has power to satisfy treaty obligations.
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Executive Agreements
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agreement with foreign nation made by president alone. Supersedes state law, but not inconsistent congressional acts.
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Executive Privilege
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Pres has privilege to protect confid of presidential communications, but privilege must yield if needed as evidence in criminal case.
Pres has "absolute immunity" from civil damages based on official responsibilities. No immunity from private suites based on pre-office conduct. Aides are covered by immunity if acting in official capacity. |
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Pardon Power
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Pres can grant reprieves and pardon for fed offenses
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Executive Foreign Affairs Power
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President has power to represent and act for the US in day to day relations abroad.
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No Executive Legislative Power
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President can advise Congress on state of nation, recommend measures to Congress, and has duty to "take care that the laws be faithfully executed."
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Veto Power
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Every act of Congress must be approved by President before taking effect. To overcome veto, 2/3 majority in both Houses needed.
Pres has 10 days to exercise veto |
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State Power
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The US Constitution doesn't expressly limit state legislative power. However, state power is limited where it has been preempted by federal law, is unconstitutional or is contrary to implied constitutional limitations.
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State Regulation of Federal Activities
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If conflicting fed statute, state law is preempted. If unclear: look to whether Congress had intent to eliminate all state regulation in the field and whether national uniformity is necessary to its effectiveness.
If no conflicting fed statute, but Congress has exclusive power to regulate, states can't regulate if regulation would "interfere substantially w/ fed policies or the effectiveness of fed functions." |
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State Taxation on Interstate Commerce
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Complete Auto test:
1. tax can't discriminate against interstate commerce. 2. tax must be fairly apportioned to reflect benefits and protections (taxable situs) taxpayer has acquired with taxing state 3. must be a "fair relationship" between taxing state and taxed business. |
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State Sales Tax and Use Tax
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Out-of-state buyer + In-state seller: tax may be collected ONLY if sale occurs within the taxing state.
In-state buyer + out-of-state seller: to force seller to collect sales tax, due process requires sufficient contacts between seller and state. |
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State Ad Valorem Tax on Interstate Commodities and Instrumentalities
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Commodities: state may tax in the course of interstate commerce when they are not in the course of interstate transportation. Interstate transportation begins when goods delivered to carrier and ENDS when goods reach destination.
Interruptions don't break flow, unless break intended to end or suspend shipment. Instrumentalities: must be sufficient contacts with the state to justify the tax, plus proper apportionment based on contacts. |
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State Regulation & Taxation of Foreign Commerce
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Power lies exclusively with Congress, except that:
states can regulate local aspects of safety and handling of goods. |
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State Taxation of Interstate Commerce
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States CANNOT impose tax on goods after they have entered the "export stream"--when it's certain that the goods are headed for foreign lands.
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State Taxation of Instrumentalities of Foreign Commerce
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State can't impose ad valorem property tax on instrumentalities, unless:
1. Complete Auto test is met 2. Tax doesn't create substantial risk of multiple taxation 3. Doesn't interfere with US's power to speak with single voice in trade matters Modern case held that multiple taxation always exists, but this doesn't prevent "single voice" |
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State Taxation of Imported Goods
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Congress has exclusive power under foreign affairs power, but a non-discretionary property tax on all goods located in state is permitted if:
1. tax doesn't restrain ability of fed to conduct foreign policy 2. tax compensates state for services and protection and doesn't divert revenue from fed 3. tax doesn't produce interstate rivalry by taking goods that merely pass through the state |
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State Action Requirement
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The 14th and 15th Amendments don't apply to purely private action, but rather require state action.
State action is found in the following: Public functions Encouragement Aid Shelly v. Kramer |
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Public Functions = State Action
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These include, law-making actions by cities, counties, state run institutions, and actions of state officials.
Also: company-owned towns are treated as ordinary towns for 14th Amd purposes. Shopping center is not a public function. |
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Licensing Not State Action
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Licensing, granting of a monopoly and heave regulation are not state action.
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Encouragement (state action)
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Whenever state affirmatively facilitates, encourages, or authorizes discrimination by citizens, "state action" is found.
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Entanglement/Aid (state action)
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Excessive state financial entanglement may constitute state action.
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Shelley v. Kramer
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States may not enforce racially restrictive covenants, even though such private covenants are valid on their faces.
"The 14th Amd erects no shield against merely private conduct however discriminatory or wrongful." |
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Constitutional Limitations on State, Federal, (and sometimes private) Actions
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Procedural Due Process
Retroactive Legislation Equal Protection Substantive Due Process Unreasonable Economic Regulations Taking without Just Compensation Freedom of Association Freedom of Religion Freedom of the Press Privileges and Immunities Irrational Presumption Civil Rights Contracts Clause |
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Procedural Due Process
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if there is an intentional deprivations of LIFE, LIBERTY, or PROPERTY interest (in which there must be a legitimate claim to benefit and not just an expectancy) certain procedures are required (under the due process clause) to assure fundamental fairness.
Factors in assessing whether a prior hearing is necessary and to what extent further procedural requirements are necessary: 1. severity of harm to the litigant 2. risk of error if procedures not granted 3. administrative difficulty and cost of granting procedures |
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Procedural Due Process Requirements for: Welfare Benefits, Disability Benefits, Public Employment Removal, and Public Education
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Welfare Benefits: notice + prior hearing + judge + permitted counsel
Disability Benefits: notice + opportunity to respond + subsequent hearing Public Employment Removal: notice + subsequent hearing Public Education 1. Disciplinary suspension: notice + opportunity to respond unless dangerous 2. Corporal punishment: NONE, tort is sufficient. 3. Academic dismissal: notice + opportunity to respond |
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Retroactive Legislation
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Ex Post Fact Laws -- Congress/states can't create new crime, increase punishment or reduce required evidence for past conduct. (procedural changes to law OK).
Bills of Attainder -- Congress can't pass legislative acts punishing one or more persons w/o benefit of trial. |
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Equal Protection (14th, 5th)
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The 14th Amd prohibits the states from denying to any person w/in their jurisdiction the equal protection of the laws.'
Equal Protection is binding on the federal government impliedly via the 5th Amendment. Depending on the classification, apply: 1. Strict scrutiny 2. Intermediate standard 3. Rational basis test |
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Strict Scrutiny
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(1) Applies when government action creates a "suspect classification" (RACE or NATIONAL ORIGIN)
(2) Applies when gov't action abridges a FUNDAMENTAL RIGHT. When strict scrutiny is applied, the government must sow that the action is NECESSARY to achieve a COMPELLING government interest, and that their is NO LESS RESTRICTIVE ALTERNATIVE. The usual presumption of constitutionality does not apply in strict scrutiny cases. |
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Fundamental Rights
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Right to privacy: family relations, abortion, reproduction/contraception
Right to Interstate Travel Right to Vote and Unreasonable Restrictions on the Right of Persons to be Candidates |
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Suspect Criteria: RACE
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Facially discriminatory laws and facially neutral but discriminatory as applied laws are subject to strict scrutiny.
Discriminatory impact alone does not trigger strict scrutiny. Discriminatory impact + discriminatory purpose, strict scrutiny applies. Race conscious remedy OK to end discrimination or eliminate its effects. Even where gov't hasn't discriminated, it may have a compelling interest in affirmative action, and the action must be narrowly tailored to that interest. |
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Suspect Criteria: National Origin
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State classifications that discriminate against aliens are subject to SS, unless the law discriminates against intimate alien participation in state gov't (that's OK).
Federal alien classifications ARE NOT subject to SS, because of Congress' plenary power over aliens. Undocumented aliens are NOT a suspect class and rational basis applies to them (BUT can't deny undocumented alien children right to public education). |
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Intermediate Standard
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Action that creates a class based on gender or legitimacy, must be SUBSTANTIALLY RELATED to an IMPORTANT government interest.
Gov't bears burden of proving an "EXCEEDINGLY PERSUASIVE JUSTIFICATION" in order to show that the gender discrimination is substantially related to an important gov't interest. |
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Rational Basis Review
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When government action creates a class not based either on suspect criteria or gender/legitimacy criteria, the classification must RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST, which only requires a "conceivable" rational basis (not a proven one).
The CHALLENGING party has the burden of proving that it doesn't. |
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Substantive Due Process
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Where a fundamental right is limited, the law (or other gov't action) must be necessary to promote a compelling or overriding interest. (5th, 14th Amds)
Fundamental rights: interstate travel, privacy--abortion, family relations, reproduction/contraception, first amendment rights, voting |
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Irrebuttable Presumptions and SDP
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Irrational presumptions of facts violates due process.
Presumptions that affect rights or classifications that are constitutionally protected are invalid unless necessarily and universally true. If right is not protected, presumption is valid if rationally related to legitimate state interest. |
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Taking Without Just Compensation
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5th Amd: private property shall not be taken for public use without just compensation (applicable to states by 14th Amd).
Taking must further "public purpose": Safety, Health, Economic, Political, Social, Welfare, Aesthetic, Moral ends If there's a taking for public purpose, then just compensation (FMV) at the time of taking must be paid. Notice and Hearing required on amount of compensation. |
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First Amendment - Freedom of Speech
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Speech: "Congress shall make no laws...abridging the freedom of speech" (States--14th)
Any gov't action restricting freedom of speech is invalid unless the gov't can prove it is necessary to achieve a compelling gov't interest (strict scrutiny). |
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Speech Regulations
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If yes, (facially, or as applied), the law is invalid UNLESS the speech falls into these specific categories:
1. Clear and present danger 2. Obscenity 3. Defamation 4. False or deceptive advertising |
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Speech Restrictions: Clear and Present Danger
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Speech which advocates conduct that is illegal may be constitutionally punished only if:
1. the speech advocates actions as distinguished from belief. 2. intention to incite imminent illegal action 4. likelihood of imminent illegal action 5. Fighting words: insults directed to the person of the hearer, likely to provoke the ordinary person to violence |
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Speech Restrictions: Obscenity
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Material must be such that an average person applying contemporary community standards would find the material, taken as a whole, appeals to the prurient interest in sex.
Must depict conduct that is patently offensive according to community standards. Must lack LAPS: literary, artistic, political or scientific value. Child porn can be entirely prohibited. Private possession of obscenity (in home) is protected by the right of privacy. |
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Speech Restrictions: Defamation
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Public figure must prove constitutional malice (knowledge of falsity or reckless disregard).
Private figure must prove either: (1) Malice + no actual damage = can recover punitive damages. (2) Negligence + actual damage required but not punitive damages. |
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Speech Restrictions: False or Deceptive Advertising
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False light: apply defamation rules.
Misleading (false or deceptive) advertising and proposals of illegal transactions are not protected speech. Commercial speech test: if the speech is lawful and not misleading, a regulation is valid if it (1) serves a substantial gov't interest, (2) directly advances the interest, and (3) is narrowly tailored to achieve the interest. |
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Content Neutral Time, Place, and Manner (TPM) Restrictions on Speech
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Generally subject to intermediate scrutiny. Requirements:
1. content neutral (no discretion) 2. must further significant state interest 3. must leave open "alternative channels of communication." 4. symbolic speech can be regulated as to conduct but not speech Sign Regulations: - For sale signs can't be prohibited. - complete ban on all commercial billboards is valid, but ban on non-commercial billboards invalid. Consider: compelling interest, traffic safety and aesthetics. |
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Speech Regulations in a Public Forum
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Regulations in a public forum allowed only if content-neutral, narrowly tailored to meet a SIGNIFICANT gov't interest, and alternative channels of communication are available.
Public forums include sidewalks. DO NOT include: city bus, public school, gov't work place, military bases, mailboxes at business or residence |
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Speech Regulations in a Non-public Forum
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Valid if (1) viewpoint neutral and (2) reasonably related to a legitimate government purpose.
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Prior Restraints on Speech
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Censorship of speech by advance screening or licensing is generally DISFAVORED and bears a "HEAVY PRESUMPTION of CONSTITUTIONAL VIOLATION".
Injunctions against newspapers invalid. Gag order on media in criminal trial valid ONLY if order is the only means of insuring fair trial. Obscenity cases: any injunction or large seizure must be preceded by hearing. Procedure required: 1. Licensing official has burden of instituting proceedings. 2. Prompt judicial decision on the merits. 3. Censor has burden of proving matter is obscene. 4. Standards for denial of license/permit are reasonable and definite. |
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Vague or Overbroad Restrictions on Speech
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Vague: due process requires that a statute be drafted such that a reasonable person of ordinary intelligence could understand what it prohibits.
Overbroad: a law is overly broad if it punishes speech that is constitutionally protected along with speech that can validly be punished. |
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Regulations Forcing Persons to Speak
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1st Amendment protects people's freedom to think or believe anything he pleases. This freedom extends to a right to refrain from speaking or endorsing beliefs one disagrees with.
-- state can't force children to salute the flag -- state can't force motorist to display state motto on his car |
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Freedom of Association
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Not expressly mentioned in the 1st Amendment, but nonetheless protected.
The right to join together w/ others for expressive or political activity is protected, subject to the COMPELLING state interest test. |
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Freedom of Religion
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The 1st Amendment provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise of religion."
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Establishment Clause Violations
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A regulation violates the Establishment Clause unless it:
1. has SECULAR purpose 2. has primary effect that is secular 3. does not constitute undue entanglement between state and religious institution 4. does not produce undue political divisiveness |
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Free Exercise of Religion Clause
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Factors a court will look at when determining whether a law/action violates the free exercise clause:
1. weight of governmental interest 2. degree of interference with religion 3. whether least drastic means used This clause guarantees the right to hold religious beliefs; only the resulting conduct can be regulated if there is a COMPELLING or OVERRIDING government interest. |
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Freedom of the Press
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1st Amendment guarantees press and public a right to attend criminal and civil proceedings (but not grand jury), but judge can find otherwise.
Press has no right to interview prisoners. |
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Privileges and Immunities
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Article IV, section 2 of the Constitution provides that states cannot discriminate against non-residents and interfere with their pursuit of livelihood, transfer of property, federally protected interest, and right to seek employment.
14th Amendment, section 1 protects: right to vote, right to travel, right to sue in fed ct or bring habeas corpus, right to enter public land |
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Civil Rights (13th and 15th Amendments)
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Rights flowing from relationship between US citizens and federal government.
13th Amd: prohibits slavery, involuntary servitude, and "badges" of slavery. Can be applied to PRIVATE action. 15th Amd: Prohibits denial of right to VOTE based on race (state action required). |
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Contracts Clause
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Prohibits destruction of all rights or all enforcement (and remedies) of existing contracts. Does NOT apply to fed gov't.
Any law modifying a K must have strong public policy. Interference with private contracts is subject to INTERMEDIATE SCRUTINY, while those affecting public contracts are subject to STRICT SCRUTINY. |
