Constitutional Law

Front 1

Justiciability

Back 1

Federal courts are limited to actaul cases & controversies
a. Case or controversy:
i. Need an actual dispute
ii. No advisory opinions
iii. Federal Court will not review
1. if there is basis on adequate state rules
2. political question

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Standing

Back 2

i. Individual
ii. 3rd Party Standing
iii. Organization
iv. Tax Payer

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Individual Standing

Back 3

Injury (must be or imminently will be injured), Causation (∆ caused or will cause injury), Redressibility (favorable decision will remedy the injury). Federal court cannot issue advisory opinions.

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3rd Party Standing

Back 4

General Rule=not allowed. Claimant needs standing and must show close relationship (i.e. doctor-patient) OR injured 3rd Party unable to assert own rights (i.e. peremptory challenges) (prisoners);

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Organization

Back 5

Members must have individual standing; interests germane to Org’s purpose, no individual participation required. TESTED FREQUENTLY

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Organization

Back 6

Members must have individual standing; interests germane to Org’s purpose, no individual participation required. TESTED FREQUENTLY

Front 7

Tax Payer

Back 7

You cannot sue as a tax payer, but you can challenge government expenditures for violation of establishment clause.
1. No Generalized Grievances: π cannot sue solely as a citizen or a taxpayer
Exception= challenging government expenditures under the Establishment Clause ($ only; not property)

Front 8

Timeliness

Back 8

i. Ripeness: pre-enforcement review. You need harm or the immediate threat of harm.
ii. Mootness: π must present a live controversy, if injury ends, so does case;
Exceptions: (1) capable of repetition but evading review (Roe); (2) ∆ voluntarily ceases but can resume anytime; (3) Class Action suits (if named π’s claim becomes moot, action can continue)

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11th A

Back 9

Law suit against the state not permissible. CITY/Municipalities ok
i. Barred
1. Injunctive/declaratory relief
2. Retroactive damages
3. Govt officers for violating state law
ii. Not Barred
1. Action to enjoin state officer from conduct violating the Constitution
2. Actions against officers personally
3. When state consents
4. If Congress removes immunity under 14th A

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Political Question

Back 10

Constitutional violations Fed Courts won’t adjudicate;
4 Types:
(1) “republican form of govt”;
(2) Challenges against Prez’s foreign policy;
(3) Challenges to impeachment and removal;
(4) challenges to partisan gerrymandering (drawing legislative seats)

Front 11

State Action Requirement:

Back 11

Need to show action to sue for constitutional violation
a. Significant state involvement
b. Activities that are traditionally state exclusive public functions

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Exceptions To State Action Requirement

Back 12

4. Exception: Congress, by Statute, may apply constitutional norms to private conduct.
a. 13th Amendment: prohibits slavery- allows Congress to prohibit private race discrimination.
b. Commerce Clause: used to apply Constitutional norms to private conduct. (Hotels and Restaurants cannot discriminate based on race).
c. §5 of 14th Amendment: Congress cannot use §5 to regulate private behavior, only state & local government behavior.

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Public Function Exception

Back 13

If private entity is performing a task traditionally, exclusively done by the government

Front 14

Entanglement Exception

Back 14

If government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

Front 15

Congressional Sources of Power

Back 15

Commerce
Spending Power

Front 16

Commerce Power of Congress

Back 16

1. Interstate-Congress has exclusive power to regulate foreign and interstate commerce
a. Channels
b. Instrumentalities
c. Persons and things
d. Activities
2. Intrastate
a. Economic or commercial activity-use rational basis that in the aggregate substantially affects interstate commerce.
b. Non-economic-Factually show substantial economic effect on interstate commerce

Front 17

Congress Spending Power

Back 17

1. Taxing
2. Enabling clause, 13th, 14th, and 15th
3. War power
4. Power over aliens

Front 18

Congress’ Authority to Act

Back 18

a. Express or Implied Congress Power
b. Necessary & Proper Clause
c. Taxing/Spending Powers
d. Commerce Clause
e. 10th Amendment
f. Section 5 of 14th Amendment

Front 19

Express or Implied Congress Power

Back 19

All Congress’ powers come from constitution.
i. No express Police Power. Exceptions:
(1) Military;
(2) Indian Reservations;
(3) Federal Lands & Territories;
(4) Washington DC.

Front 20

Necessary & Proper Clause

Back 20

Congress has the power to use any means necessary to carry out its specifically granted powers.

Front 21

Taxing/Spending Powers

Back 21

Congress can tax & spend for the General Welfare (create any tax it and spend it how it sees fit).

Front 22

Commerce Clause

Back 22

Congress can regulate
(1) channels of interstate commerce (i.e. highways, waterways, internet);
(2) instrumentalities of Interstate Commerce (i.e. trucks, planes, internet);
(3) activities that have a substantial effect on interstate commerce.

Front 23

10th Amendment

Back 23

Reserve Powers: all powers not granted to the US, nor prohibited by the states, are reserved to the states or the people.
i. Congress cannot compel state regulatory or legislative action (i.e Brady Bill)
ii. Congress may prohibit harmful commercial activity by state governments. (ie Fed Law can prohibit state DMV from releasing personal info)

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Section 5 of 14th Amendment:

Back 24

Gives Congress power to adopt laws to protect 14th Amendment; cannot create new rights, only laws that protect preexisting rights, as long as they are Proportionate & Congruent to protecting the rights or remedying violations

Front 25

Dormant Commerce Clause

Back 25

The state cannot regulate interstate commerce if
a. (1) discriminatory OR
b. (2) unduly burdensome
Unless...
1. It furthers important non-economic state interest; AND
2. There are no reasonable non-discriminatory alternatives.
a. Exceptions:
(1) Congressional Approval (never seen yet)
(2) Market-Participation Exception (govt acting as buyer or seller, not govt interest)

Front 26

Burdensome Test

Back 26

Weigh state’s interest v. burden on interstate commerce
i. Must show No Reasonable Less-Restrictive Alternatives

Front 27

Privileges & Immunities Clause

Back 27

No state (city/state) may deny noncitizens the privileges and immunities (civil liberties and important economic activities) afforded its own citizens absent substantial justification and there are no less discriminatory alternatives.
a. TEST TIP-Tend to use corporations because corporations and aliens are not considered citizens.
b. Test: If law discriminates (i.e. government tries to help own citizens or businesses at expense of others)= violates P&I unless necessary to achieve an important government interest. If law does NOT discriminate ≠ violate P&I
i. ***Law must be with regard to civil liberties or important economic activities
c. Corporations and Aliens cannot use privileges and immunities clause.**

Front 28

Contracts Clause

Back 28

States cannot make contracts that substantially impair existing contracts.
a. Cities are held to a higher standard.
b. Test
i. Law must serve an important and legitimate public interest;
ii. Is reasonable; AND
iii. Narrowly tailored.

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RATIONAL BASIS TEST

Back 29

a law is upheld if it is rationally related to a legitimate government purpose.
i. Burden on the challenger.
ii. Legitimate=some conceivable purpose
iii. Government almost always wins

Front 30

INTERMEDIATE SCRUTINY

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a law is upheld if it is substantially related to an important government purpose.
i. Substantially related = narrowly tailored.
ii. Does not have to be the best way.

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STRICT SCRUTINY

Back 31

A law is upheld if it is necessary to achieve a compelling government purpose & there are no less restrictive alternatives.
i. Government has the burden of proof.

Front 32

Freedom of Religion

Back 32

Free exercise clause
Establishment Clause

Front 33

Free-Exercise Clause

Back 33

Freedom to practice whatever religion you wish.
i. **Rule: Government can regulate conduct, even religious conduct-Exercise clause cannot be used to challenge a neutral law of general applicability (i.e. Native Americans cannot use FEC to challenge law against peyote).
1. If law is motivated by desire to interfere with religion, then must satisfy - strict scrutiny.
ii. Rule: The government may not deny benefits to individuals who quit their jobs for religious reasons.

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Establishment Clause

Back 34

Prohibits establishment of law respecting the establishment of religion. Government cannot burden or favor religion.
i. Incidental or favoring okay.
ii. 3 Part Test (S E X)- special test
1. (1) there must be a Secular purpose for law
a. If primary purpose is to advance religion, it fails.
2. (2) the primary Effect neither advances nor inhibit religion
3. (3) there must not be eXcessive govt. entanglement with religion

Front 35

Freedom of Speech-Content Based v. Neutral

Back 35

Content Based OR Content Neutral
i. Content Based (forbids specific ideas)- strict scrutiny (subject matter restrictions, viewpoint restrictions)
1. Presumptive unconstitutional-narrowly tailored, compelling govt interest, and least restrictive means with govt BoP.

Front 36

Less Protected Speech

Back 36

1. Anonymous Speech
2. Incitement of Illegal Activity-
3. Obscenity & Sexually
4. Commercial Speech

Front 37

Anonymous Speech

Back 37

Protected (right to speak and right not to speak)

Front 38

Incitement of Illegal Activity

Back 38

Unprotected if substantial likelihood of imminent illegal activity

Front 39

Obscenity & Sexually Oriented Speech

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3 Part Test
a. (1) material must appeal to the prurient interest
b. (2) material must be patently offensive under the law prohibiting obscenity (Community RP Standard)
c. (3) Taken as a whole, material must lack serious redeeming artistic, literary, political, or scientific value.
i. National RP Standard

Front 40

Commercial Speech

Back 40

Intermediate scrutiny
a. EXCEPTIONS:
(1) Advertising for illegal activity= not protected
(2) False & Deceptive Ads= not protected
(3) True Commercial Speech that inherently risks deception= not protected

Front 41

Defamation

Back 41

i. Π = public official, must prove falsity and actual malice (=knowledge of falsity or reckless disregard for truth)
ii. Π ≠ public official, must prove falsity and negligence for general damages (actual malice for punitive damages)

Front 42

Content Neutral TPM

Back 42

Time/Place/Manner Restrictions
i. Public
ii. Limited public forum
iii. Non-public forum

Front 43

Prior Restraints

Back 43

Judicial order or administrative system that stops speech before it occurs. Court orders suppressing speech must meet - strict scrutiny.

Front 44

Places Available for Speech

Back 44

i. Public Forums
ii. Limited Public Forums
iii. Non-Public Forums
iv. Private Property

Front 45

Public Forums

Back 45

Government property that government is constitutionally required to make available. (i.e. sidewalks, parks)
1. Content Based -- strict scrutiny
2. Content Neutral – Time, Place, Manner restrictions only- - must serve important government purpose, be narrowly tailored, serve important govt interest and leave open adequate alternative places for communication (need not be least restrictive alternative)

Front 46

Limited Public Forums

Back 46

Government property that government could close to speech but chooses to open to speech. (if government opens it as a public forum, must follow public forum requirements).

Front 47

Non-Public Forums

Back 47

Government properties that government can and does close to speech. – rational basis
1. TPM
2. View point neutral
3. Reasonably related to govt (1) military bases, areas outside prisons, advertising space on city buses, sidewalks-at post office, airports

Front 48

Private Property

Back 48

There is no 1st Amendment right of access to private property for speech purposes.

Front 49

Symbolic Speech

Back 49

Government can regulate if
i. Within constitutional power
ii. Serves important govt interest that IS INDEPENDENT of the speech aspects
iii. Burden on speech no greater than necessary.

Front 50

Due Process

Back 50

Procedural Due Process: process government must go through if it takes away a person’s life, liberty, or property.
Substantive Due Process: You need notice and a hearing. Whether government has an adequate reason for taking away a person’s life, liberty, or property.

Front 51

Deprivation of Liberty

Back 51

Violation of a person’s constitutional rights (not harm to reputation, must be an Economic Loss) (Adults v. Children: except in an emergency, adult must receive notice and a hearing to be institutionalized; parent can institutionalize a child- only need a screening by a neutral fact-finder).

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Deprivation of Property

Back 52

Occurs if there is an entitlement and that entitlement is not fulfilled. (Entitlement =reasonable expectation to continued receipt)

Front 53

Due Process Procedures Test

Back 53

e. Procedures Required: 3 Part Balancing Test:
(1) Importance of interest to individual;
(2) ability of additional procedures to increase the accuracy of the fact-finding;
(3) government interests.

Front 54

Due Process Claim for Negligence

Back 54

Intentional Taking Required- Negligence is not sufficient for a due process claim (must be intentional government action or at least reckless action for liability to exist.)
In Emergency Situations, the government is liable under due process only if its conduct “shocks the conscience”.

Front 55

Substantive Due Process Test

Back 55

a. Test
i. Was there a deprivation?
1. Liberty-freedom of action
2. Property-entitlement
ii. What type of process
1. Importance to interest of ind.
2. Value of procedural safeguards to that interest
3. Weighed against govt interest in fiscal and XXX efficiency?
iii. ASK
1. Who is being treated differently and why?
a. Suspect class-Strict Scrutiny Gov BoP
b. Quasi-suspect class-Intermediate scrutiny Gov BoP
c. Non suspect class-RB Scrutiny Challenger BoP
2. Discriminatory Intent
a. Facially
b. Application
c. Motive behind the law-effect alone is not enough
3. TEST TIP: One paragraph of govt inter. One on how related

Front 56

Takings Types

Back 56

Takings Clause
Contract Clause

Front 57

Taking Clause

Back 57

i. Takings Clause: government may take private property for public use if it provides just compensation. (Taking= Possessory or Regulatory= leaves no reasonable economically viable use)** (Public Use= government reasonably believes taking will benefit the public) (Just Compensation= loss to owner, not gain to the government)
1. Decreases value of property and leaves no economic value
a. Social goal being promoted
b. Diminution in value
c. Owner’s reasonable expectation
2. Temporary Denial of economic value
a. Length of delay
b. Planner good faith
c. Economic effect
d. Owner’s reasonable expectation.

Front 58

Contracts Clause

Back 58

No state shall impair the obligations of contracts (applies only to local & state interference with existing contracts, Never Fed!!!)
1. Intermediate Scrutiny: legislation that substantially impairs a party’s rights under an existing contract must be reasonably and narrowly tailored to a legitimate public interest.

Front 59

Group Classifications and their Level of Scrutiny

Back 59

a. Race - strict scrutiny
i. Proving racial classification: If facially neutral: discriminatory intent & discriminatory impact**
ii. Racial classifications benefiting minorities (strict scrutiny)- (1) quota allowed if clear proof of discrimination; (2) educational institutions may use race as one factor in admissions decisions (cannot Add points to score); (3) Seniority systems may not be disrupted by affirmative action
b. National Origin/Alienage - strict scrutiny
i. Undocumented Alien Children- - intermediate scrutiny
ii. Concerning Self Government - rational basis test
iii. Congressional Discrimination of Aliens (i.e. Immigration)- allowed
c. Gender – intermediate scrutiny (+ must have exceedingly persuasive justification)
i. Proving gender classification: If facially neutral= discriminatory intent & discriminatory impact.
ii. Gender classifications benefiting women: (1) if based on role stereotypes- not allowed; designed to remedy past discrimination – allowed.
d. Non-Marital Children – intermediate scrutiny
e. Religion - strict scrutiny (1st Amendment)
f. Age – rational basis
g. Disability – rational basis
h. Economic Regulations – rational basis
i. Sexual Orientation – rational basis
j. Wealth – rational basis

Front 60

36. Fundamental Rights under Equal Protection

Back 60

a. Right to Travel
i. Local - strict scrutiny
ii. Foreign – rational basis
iii. Durational Residency Requirements (when person must live in a jurisdiction for a certain amount of time) - strict scrutiny (for voting- max 50 days)
b. Right to Vote
i. Laws that deny some people right to vote - strict scrutiny
ii. One Person One Vote must be met for all state and local elections
c. Right to Education – no right

Front 61

Freedom of Association

Back 61

Strict scrutiny (special test)
a. Prohibit Group Membership Laws that prohibit or punish group membership must meet strict scrutiny. (To punish, must show (1) actively affiliated with group; (2) knowledge of its illegal activities; (3) with specific intent of furthering those illegal activities).
b. Disclosure of Group Members: - strict scrutiny
c. Laws Prohibiting Group From Discriminating = constitutional unless they interfere with (1) intimate association (i.e. small dinner party) or (2) expressive authority (KKK)

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Equal Protection Essay Approach

Back 62

1. Is there a state action?
2. What is the classification?
a. Law facially discriminates
b. Facially Neutral law with discriminator intent AND a discriminatory impact
3. What is the level of scrutiny?
4. Does the law meet the scrutiny level?