Constitutional Law -- Cbx

Front 1

What are the 4 Justiciability Requirements

Back 1

(1) P must have standing;
(2)Case must be ripe for review;
(3) Case must not be moot AND
(4) It must NOT be a political Q

Front 2

What are the 3 requirements for standing?

Back 2

(1) Injury
(2) Causation
(3) Redressability

Front 3

What are the 3 exceptions to the 3rd Party Standing prohibition?

Back 3

i. Close/fiduciary relationship between the plaintiff and the injured 3rd party. (e.g. doctors on behalf of patients)
ii. Injured 3rd party is unlikely to assert his or her own rights. (e.g. criminal Ds have 3rd P standing to raise the RTs of perspective jurors to be free from discrimination)
iii. An org may sue for its members, IF
• the members would have standing to sue;
• the interests are germane to the org’s purpose;
• neither the claim nor relief requires participation of individual members

Front 4

What is the 1 exception to prohibition of taxpayer standing? How far does it extend?

Back 4

Taxpayers can challenge spending but not gifts that violate the Establishment Clause.

Front 5

What 2 factors do you consider when deciding if something is ripe for review?

Back 5

(1) The hardship that will be suffered w/o preenforcement review.

(2) The fitness of the issues and the record for judicial review.

Front 6

What are the 3 exceptions to the mootness restriction?

Back 6

(1)Wrongs capable of repetition but evading review
(2) voluntary cessation = D voluntary halts it but is free to resume it at anytime
(3)class action suits - action will not be dismissed as long as at least one class member's claim is still live.

Front 7

What is the significance of the political Q restriction? What are the 4 areas it covers?

Back 7

• Cases under the republican form of Government clause

• Challenges to President’s foreign policy

• Challenges to impeachment and removal process

• Challenges to partisan gerrymandering

Front 8

What is the Q asked when deciding if there has been a violation of procedural DP?

Back 8

Has the Gov INTENTIONALLY deprived a person of life, liberty (a significant freedom secured by C or Statute), or property (an entitlement to a continued receipt of a benefit)?

Front 9

What are the 3 steps in the balancing test for Procedural DP?

Back 9

i) Importance of the interest to the individual.
ii) Ability of additional procedures to increase the accuracy of the fact-finding.
iii) Gov interest in administrative efficiency.

Front 10

What are the 7 examples you need to know for procedural DP?

Back 10

• welfare benefits (= prior notice & hearing)
• disability benefits (= prior notice, post-termination hearing)
• Student disciplined by a public school (= notice of the charges & an opportunity to explain, NOT trial like hearing)
Public Employment tenure: Prior notice and response, subsequent hearing
Driver License: Prior notice and hearing
• Parental RTs (= prior notice & a hearing)
• American citizen detained as an enemy combatant (=notice of charges & representation by attorney)
• Pre-judgment attachment or Gov’s seizure of assets (= prior notice and hearing for real property; subsequent notice and hearing for personal property)

Front 11

What are the 3 Qs are asked for takings situations?

Back 11

i. Is there a taking or just a regulation?
ii. is it for Gov/public use (must be or has to be given back)
iii. Is just compensation paid?

Front 12

What are the 2 types of takings?

Back 12

(1) Gov confiscation or physical occupation, NO MATTER HOW SMALL the property is = a taking (remember cable boxes e.g.)

(2) regulatory taking – Government regulation is a taking if it leaves no reasonable economically viable use of the property.

Front 13

Can a property owner challenge a regulation as a taking if it was already in place when he bought the property? I.e. if he knew beforehand & still bought the property?

Back 13

yes, he may bring a takings challenge to regulations that existed at the time the property was acquired (doesn’t matter that they were already in place & buyer was aware of them)

Front 14

Is it a taking if it only last for a limited period of time?

Back 14

Temporarily denying an owner use of property is not a taking so long as the Gov's action is reasonable, considering good faith, length, effect.

Front 15

What is the remedy for a takings (2 options) & how is it measured?

Back 15

i. Pay just compensation
ii. Terminate the regualtion & pay damages

*** compensation measured by LOSS TO THE OWNER & NOT GAIN to the taker... = no compensation for worthless property!

Front 16

Privacy is a fundamental right - what are the 9 privacy categories that are protected by SDP & the 1 he highlighted as not being protected?

Back 16

(1) RT to marry
(2) RT to procreate
(3) RT to custody of one's children.
(4) RT to keep the family together (housing)
(5) RT to control the upbringing of one's children
(6) RT to purchase & use contraceptives
(7) RT to abortion (undue burden test)
(8) RT to engage in private consensual homosexual activity
(9) RT to refuse medical treatment

BUT NO RT to physician - assisted suicide

Front 17

Besides the privacy categories, what other fundamental rights qualify for strict scrutiny?

Back 17

• interstate travel
• Voting (besides residence, age, & citizenship, dilution & restrictions are invalid & subject to strict scrutiny)
• 1st Amendment RTs

Front 18

How is the existence of a racial classification proven?

Back 18

a. The classification exists on the face of the law.

b. If law = facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent.

Front 19

How should racial classifications benefiting minorities be treated? What level of scrutiny is applied & in what 3 ways must we recognize it for the exam?

Back 19

• Strict scrutiny is applied
i. Numerical set-asides require clear proof of past discrimination.
ii. Educational institutions may use race as one factor in admissions
iii. Seniority systems may not be disrupted for affirmative action.

Front 20

What will & will not be allowed for gender classifications in the law? How is it shown?

Back 20

• Shown in the same 2 ways as for racial classifications (on face or impact + intent)

a. Gender classifications benefiting women & based on role stereotypes = NOT allowed.

b. Gender classifications designed to remedy past discrimination & differences in opportunity = allowed.

Front 21

What are 3 areas where less than strict scrutiny is applied to alienage classifications?

Back 21

• RB test for alienage classifications that concern self-government & the democratic process.
• RB test is used for federal discrimination against aliens.
• intermediate scrutiny discrimination against undocumented alien children.

Front 22

What are 5 EP areas that only merit RB Test review

Back 22

1. Age discrimination (often involves challenges to Gov retirement law & Gov always wins)
2. Disability discrimination (zoning ordinance that prevented home for mentally ill - Gov lost under RB)
3. Wealth discrimination (poverty NOT = suspect classification)
4. Economic regulations (e.g. pushcart vendors in New Orleans)
5. Sexual orientation discrimination

Front 23

What residency requirements are valid (2) & which ones are invalid (3)?

Back 23

Valid
• 30 days to vote in a state
• 1yr residency to get divorced

Invalid
• 1yr residency to receive full welfare benefits
• 1yr to receive state subsidized medical care
• 1yr to vote in a state

Front 24

What are the 2 types of content-based restrictions on speech & what levels of scrutiny for content vs. content-neutral statutes under 1st A?

Back 24

• Content-based restrictions on speech generally = strict scrutiny.

• Content-neutral = intermediate scrutiny (advance important interests unrelated to suppression of speech, least restrictive possible, leave open adequate channels.

But if content-neutral in a non-public forum or limited public forum (like school)= Viewpoint neutral and reasonably related to legitimate government purpose.

Front 25

What level scrutiny for CT orders restricting speech? What must a person do & not do if she wants to challenge the CT order?

Back 25

• Court orders suppressing speech must meet strict scrutiny.
• Procedurally proper court orders must be complied with until they are vacated or overturned.
• A person who violates a court order is barred from later challenging it.

Front 26

Can the Gov require a license for speech?

Back 26

• Yes - ONLY IF there is an important reason for licensing and clear criteria leaving ALMOST NO discretion to the licensing authority, also content-neutral and narrow tailoring.

• Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses AND judicial review.

The requirement can be ignored if requirement is facially unconstitutional. Otherwise, must apply and seek prompt judicial review unless that's not available.

Front 27

Can the Gov regulate conduct that = symbolic speech?

Back 27

= can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.

A conduct-speech regulation is only overbroad if it covers SUBSTANTIALLY more instances of conduct than it should.

Front 28

When may Gov punish inciteful speech?

Back 28

= may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

Front 29

What is the 3 part test for determining whether something qualifies as obscene?

Back 29

MUST meet ALL of these requirements:
(1) The material must appeal to the prurient interest
(= community standard)
(2) Material must be patently offensive under the law prohibiting obscenity
(community standard)
(3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value
(= value determined by a NATIONAL standard & NOT a local value)

Front 30

***In what 2 cases may the Gov use zoning ordinances to regulate the location of what some perceive as obscene activity/expression?

Back 30

Gov may use zoning ordinances to regulate the location of adult bookstores and movie theaters because of their secondary effects.

Front 31

What are the 3 Exceptions to the Gov's ability to regulate/limit profane or indecent speech?

Back 31

i) over the broadcast media
ii) in schools
iii) where there's a captive audience

Front 32

What level of scutiny for commercial speech?

Back 32

intermediate (as long as not misleading or for illegality)

= Substantially related to important government interest
Narrowly tailored, but it does not need to be the least
restrictive alternative.

Overbreadth doctrine is NOT applied.

Front 33

What are the two ways that the Supreme Court gets cases to hear? Which courts do they get those cases from?

Back 33

1. Writs of Certiorari (highest state courts and US Cts of Appeal)

2. Appeals (3-judge fed. district ct. panels)

Front 34

What is the final judgment rule?

Back 34

SC may hear cases only after there has been a final judgment of the highest state court, US Ct of Appeals, or 3-judge fed. district court.
(E.g., no interlocutory review by the SC)

Front 35

When can the US SC review a state court decision?

Back 35

Whenever there is not an independent and adequate state law ground of decision.

Front 36

What does the Eleventh Amendment bar?

Back 36

Suits for damages by individuals against state governments in federal courts.

But suits for injunction, against municipalities, against individuals, or by federal government are all okay.

(Eg, federal and state courts may not hear suits against state governments)

11th Amendment bars suits against states in fed. court
- doesn’t matter if P is from that state or from a different state
- Doesn’t matter if it’s a suit for $ or an injunction

Front 37

What are exceptions to the sovereign immunity rule? (Eg, States may be sued under what circumstances?)

Back 37

i. Waiver – states can waive sovereign immunity and allow themselves to be sued (must be EXPLICIT)

ii. Pursuant to fed. laws adopted under § 5 of 14th amendment

Front 38

Can state officers be sued for $ damages to be paid out of their own pockets?

Back 38

Yes.

Front 39

What is Younger Abstention?

Back 39

Federal courts may not enjoin pending state court proceedings, even if the federal court has jurisdiction over the case, and even if federal suit was filed as long as it isn't under way.

Front 40

What are the boundaries of congressional action under the Commerce Clause after Lopez?

Back 40

In area of non-economic activity, a substantial effect on interstate commerce cannot be defined based on cumulative impact of that activity – Morrison (VAWA). Also, the impact must be found by the court, not congress.

c.f., Wickard v. Filburn – cumulative impact of economic activity, even if it’s for individual use, falls under the Commerce Clause

Front 41

What are Congress' powers under section 5 of the 14th Amendment?

Back 41

Congress may not create new rights or expand the scope of rights.

Congress may act only to prevent or remedy violations of rights recognized by courts and such laws must be proportionate and congruent to remedying constitutional violations.

Front 42

What is the status of treaties re:

1. conflicting state laws?

2. Conflicting federal statutes?

3. The Constitution?

Back 42

1. Treaties prevail over conflicting state laws

2. If a treaty conflicts with a fed. statute, the one adopted LAST in time controls (often tested!)

3. If a treaty conflicts with the US Constitution, it is invalid.

Front 43

What is the status of executive agreements re:

1. conflicting state laws?

2. Conflicting federal statutes?

3. The Constitution?

Back 43

Executive agreements prevail over conflicting state laws, but NEVER over conflicting federal laws or the Constitution

Front 44

What is the Appointment Power?

Back 44

1. President appoints ambassadors, federal judges, and officers of the US

2. Congress may vest the appointment of inferior officers in the President, the heads of departments, or the lower federal courts

3. Congress may not give itself or its officers the appointment power

Front 45

What is the Removal Power?

Back 45

1. UNLESS removal is limited by statute or involves a judicial/quasi-judicial function, President may fire any executive branch officer

2. For congress to limit the executive's removal power, it must be an office where independence from the President is desirable (eg, special prosecutor/investigator)

3. Congress cannot prohibit all removal; but it can limit removal to where there is good cause. It cannot remove, but it can impeach.

Front 46

Can the President be charged with a civil offense while in office? Limitations?

Back 46

President has absolute immunity to CIVIL suits for money damages for any official actions while in office

But NO immunity for actions that occurred prior to taking office

His aides have only qualified immunity, lost if they violate a clearly established right.

Front 47

What does Executive Privilege cover? Limitations?

Back 47

President has executive privilege for presidential papers and conversations, but the privilege must yield to other important government interests (eg, to overriding needs for the information)

Eg, need for evidence in criminal trial outweighs privilege (Watergate)

Front 48

What are the primary limits on state & local government power b/c of the existence of the national government (federalism)?

Back 48

1. Preemption (Supremacy Clause)

2. States may not tax or regulate federal government activity.

3. Dormant Commerce Clause

4. Privileges & Immunities Clause of Article IV

5. (Privileges or Immunities Clause of 14th amendment - very limited application)

Front 49

What is implied pre-emption? How does it operate?

Back 49

if a fed. statute is silent about preemption, implied preemption can be found

1. if fed. & state law are mutually exclusive, federal law preempts state law.

2. States may set environmental standards stricter than federal law, UNLESS congress clearly prohibits it.

3. If state or local law impedes achievement of a federal objective, federal law preempts state law

4. If Congress evidences a clear intent to preempt state law, then fed. law preempts state law (Eg: federal immigration law. Any attempt by states to regulate immigration will be deemed preempted.)

Front 50

If a law does not discriminate against out of staters, is the P&I clause involved? Dormant commerce clause?

Back 50

If the law doesn’t discriminate against out-of-staters, the P&I clause of Article IV does NOT apply!

But if the law burdens interstate commerce, it DOES violate the dormant commerce clause IF its burdens exceed its benefits (Balancing test of burdens and benefits)

Front 51

When does a state law violate the dormant commer clause? Exceptions?

Back 51

If a law burdens interstate commerce through discrimination, it violates dormant commerce clause UNLESS that law is necessary to achieve an important government purpose.

Helping in-staters at out-of-staters expense is NEVER an important government purpose

State has to show the law is necessary: has to show there is no less discriminatory way to achieve the objective.

Absent discrimination, state interest must outweigh burden to interstate commerce (be least restrictive means) and be rationally related to legitimate purpose.

EXCEPTION 1: Congressional approval/disapproval

EXCEPTION 2: the market participant exception. (A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing w/ government-owned businesses)

Front 52

When does a state law that discriminates against out-of-staters violate the P&I clause of Article IV?

Back 52

If the law discriminates against out-of-staters w/ regard to their civil liberties or ability to earn their livelihood, it violates the P & I clause of Article IV UNLESS it is necessary to achieve an important gov’t purpose. (substantiallly related to the peculiar source of the evil)

State must show its law is NECESSARY to achieve purpose - eg, must show that NO less discriminatory alternative could achieve the purpose

Does NOT apply to corporations or aliens

Front 53

What are the 4 main rules about State Taxation of Interstate Commerce or occupational licenses that we need to know?

Back 53

1. States may not use their tax systems to help in-state businesses
A state may only tax activities if

2. There is a substantial nexus to the state
3. There is fair apportionment
4. The tax is related to services provided by the state.

Front 54

What is the full faith and credit clause? When does it apply?

Back 54

Courts in one state (state or federal) must give full faith and credit to judgments of courts in another state, so long as:
1. The court that rendered the judgment had jurisdiction over the parties and the subject matter,

2. The judgment was on the merits, and

3. The judgment was final

Front 55

Can Congress by statute apply constitutional norms to private conduct? If yes, how?

Back 55

Yes.

1. 13th Amendment can be used to prohibit private race discrimination (Only slavery violates the 13th amendment ITSELF; race discrimination NEVER violates the 13th amendment itself. It CAN violate fed. statutes adopted by Congress under 13th Amdmt.)

2. Commerce power can be used to apply Constitutional norms to private conduct (Civil Rights Act- hotels & restaurants can’t racially discriminate - law passed under the Commerce Power.)

3. Congress CANNOT use § 5 of 14th amendment to regulate private behavior (Under § 5, Congress can ONLY regulate state & local governments)

Front 56

What are the 2 situations in which private conduct MUST comply with the constitution?

Back 56

1. Public function exception = Constitution applies if a private entity is performing a task traditionally, exclusively done by the government

2. Entanglement exception – Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

Front 57

What is the intermediate scrutiny test? What is the B of P?

Back 57

A law will be upheld if it is substantially related to an important government purpose

- court looks only to government’s ACTUAL purpose. A conceivable purpose isn’t enough.
- Means chosen must be substantially related to achieving the objective – a NARROWLY TAILORED way of achieving the goal. Least restrictive alternative analysis is NOT used.

Government has the B of P

Front 58

What is the use tax, and who collects it?

Back 58

A Californian pays it to California when he buys from out-of-state seller, thereby eluding sales tax. It can't be higher than the sales tax since that would favor in-state purchases.

Seller can be forced to collect it only if they have a neus like offices in California -- more than solicitation of orders and shipping.

Front 59

Can states tax the value of goods ad valorem if they are in transit? What about the instrumentalities of transport?

Back 59

No, not while in transit.

Depends on whether the instrumentality has a taxable situs (benefits from the state) and there is proper apportionment (approximation of average physical presence)

Front 60

What does the Contracts Clause provide?

Back 60

State action that substantially impairs an existing private contract is invalid unless it serves an important and legitimate public interest and is reasonably and narrowly tailored.

If it is a state contract, it receives mid-level scrutiny.

Front 61

What tests must a retroactive law survive?

Back 61

Contract Clause
Ex Post Facto (criminal only): invents new crimes, reduces standard of proof, increases punishment, extends statute of limitations as applied to D for whom SOL isalready-expired)
Bills of Attainder
Due Process (rational or strict)

Front 62

Con Law preliminary matters

Back 62

Standing
14th Amendment incorporation

Front 63

What are three ways a law may be discriminatory for equal protection analysis?

Back 63

1) On its face
2) Discriminatory application of facially neutral law
3) Discriminatory motive behind law (intent + effect)

Front 64

When can racial discrimination overcome strict scrutiny for equal protection analysis?

Back 64

- To overcome specific and persistent past discrimination;
- For diversity in higher education as one factor among others;
- Race can be considered in drawing voting districts as long as not the predominant factor (unless necessary to a compelling interest)

Front 65

Does dilution of the vote trigger strict scrutiny?

Back 65

Depends. States must use almost exact equality when creating districts. But Congress gets more deference.

A claim of partisan gerrymandering must show purpose and effect, which is very difficult. A showing that race was predominant factor is more likely to win.

Inapplicable to officials who are elected at large, rather than by district, or to special interest elections like water districts.

Front 66

List of Constitutional Law issues

Back 66

Free Speech (State action/Standing? Unprotected? Content-based or not? If neutral, what forum? Overbroad/vague/unbridled discretion? Commercial? Privilege? Prior Restraint?)

Front 67

To what extent can government regulate broadcast media, cable, and Internet?

Back 67

More than print. The Fairness Doctrine requires them to offer free time to those attacked by broadcasts. Cable operators are between print and broadcast. Internet is print, not broadcast.

Front 68

To what extent can the electoral process be regulated without violating the First Amendment?

Back 68

If restriction on speech is severe, strict scrutiny applies. No limits allowed on support of ballot referendums, only support of candidates. Actual political speech triggers strict scrutiny unless the message is mere electioneering.

Front 69

When can a government employer fire someone for their speech?

Back 69

If it's public concern, concerns must be balanced. Otherwise, deference is given to employer.

Exception: Government may punish speech if made pursuant to official duties, despite touching on public concern.

Front 70

What does the Free Exercise Clause do?

Back 70

Prevents government from punishing someone based on religious beliefs without a compelling interest (which has never been found).

But a regulation is only stricken if it was specifically designed to punish (not withhold benefits from) religion (Babalu Aye). General laws with requirements that happen to burden religion are okay, but exemptions must then be given unless there is a compelling reason not to (e.g., not refusing unemployment to workers who quit for religious reasons, allowing Amish to keep children out of school).

But criminal laws of general application that happen to burden religion are not scrutinized.

Front 71

What situation gives rise to Pullman abstention?

Back 71

1. Difficult issue of state law
2. Need for constitutional decision might be avoided by state adjudication.