Constitutional Law (Mbe 2013)

Front 1

Standing

Back 1

P must (1) allege or prove injury, imminent injury, or likelihood of future harm; (2) causation; and (3) redressability.

Front 2

Third party standing

Back 2

Not allowed. Exceptions: close relationship between P and injured third party; third party unlikely to be able to assert rights; and organization may sue for members if (1) members would have standing; (2) interests are germane to organization’s purpose; and (3) neither claim nor relief requires participation of individual members.

Front 3

Taxpayer standing

Back 3

P can’t sue solely as citizen or taxpayer interested in having G follow the law. Exception: taxpayers have standing to challenge G expenditures under EC.

Front 4

Ripeness

Back 4

Factors: (1) hardship suffered without preenforcement review; (2) fitness of the issues and record for JR.

Front 5

Mootness

Back 5

If events after filing of lawsuit end P’s injury, case must be dismissed as moot. EXCEPTION: wrong capable of repetition but evading review; voluntary cessation; and class action suits.

Front 6

Political question doctrine

Back 6

Constitutional violations federal courts won’t adjudicate. Republican form of G clause; president’s foreign policy; impeachment and removal process; partisan gerrymandering.

Front 7

SC’s original and exclusive jurisdiction

Back 7

Suits between state governments.

Front 8

Adequate and independent state ground

Back 8

If state court decision rests on two grounds, one state law and one federal, if SC’s reversal of federal law ground won’t change the result in the case, SC can’t hear it.

Front 9

Sovereign immunity

Back 9

Federal/state courts can’t hear suits against state Gs. Exceptions: waiver; federal laws under 14A; federal G against state Gs; BK proceedings. See state officer suits.

Front 10

State officer suits

Back 10

May be sued for injunctive relief, money damages paid out of own pockets. Can’t be sued if state treasury will be paying retroactive damages.

Front 11

Abstention

Back 11

Federal courts can’t enjoin pending state court proceedings.

Front 12

Express or implied congressional power required

Back 12

No general police power. Exceptions for DC, Indians, federal land/territories, and the military.

Front 13

Taxing/spending power

Back 13

Congress may tax/spend for the general welfare.

Front 14

Commerce power

Back 14

CIA. Congress may regulate (1) channels of interstate commerce; (2) instrumentalities of interstate commerce and persons/things in interstate commerce; (3) economic activities that have a substantial effect on interstate commerce.

Front 15

10A

Back 15

All powers not granted to US nor prohibited to states are reserved to states or people. Congress can’t compel state regulatory or legislative action. May prohibit harmful commercial activity by states.

Front 16

14A § 5

Back 16

Congress can’t create new rights or expand the scope of rights. May act only to prevent or remedy violations of rights recognized by Cs and such laws must be “proportionate” and “congruent” to remedying violations.

Front 17

Delegation

Back 17

No limit exists. Legislative vetos and line-item vetos are unconstitutional. Must always be bicameralism + presentment. Can’t delegate EX power to itself or its officers.

Front 18

Treaties

Back 18

Prevail over conflicting state laws. **If treaty conflicts with federal statute, one adopted LAST IN TIME controls.

Front 19

Executive agreements

Back 19

Agreement between US/other country that’s effective when signed by EX and head of foreign nation. Prevails over conflicting state laws but never over conflicting federal laws or Constitution.

Front 20

Appointment power

Back 20

EX appoints ambassadors, federal judges, and officers of U.S. Congress may vest appointment of inferior officers in EX, heads of departments, or lower federal courts. **Congress can’t give itself/officers appointment power.

Front 21

Removal power

Back 21

Unless statute limits, EX may fire any EX branch office. For Congress to limit, must be (1) office where independence from EX is desirable and (2) can’t prohibit removal, merely limit to where there’s good cause.

Front 22

Impeachment and removal

Back 22

EX, VP, federal judges, officers of US can be impeached/removed for treason, bribery, high crimes and misdemeanors. House: majority to impeach. Senate: two-thirds to convict.

Front 23

EX immunity

Back 23

From civil suits for damages for any actions while in office; not true for actions prior to taking office.

Front 24

EX privilege

Back 24

Privilege for papers/conversations, BUT must yield to “other important G interests.”

Front 25

Pardon power

Back 25

Limited to those accused or convicted of FEDERAL crimes.

Front 26

Supremacy clause

Back 26

Constitution, laws/treaties are supreme law of land.

Front 27

Implied preemption

Back 27

If federal/state laws are mutually exclusive, federal law preempts. If state law impedes achievement of federal objective, federal law preempts. If Congress evidences clear intent to preempt state law, federal law preempts.

Front 28

Intergovernmental immunity

Back 28

States can’t tax or regulate federal G activity.

Front 29

Dormant commerce clause

Back 29

**If a state law discriminates against out-of-staters AND/OR burdens interstate commerce, it violates dormant CC unless it’s necessary to achieve important G purpose. Exception: congressional approval, market participant exception. Corporations/aliens can sue under it.

Front 30

AIV privileges and immunities

Back 30

If law discriminates against out-of-staters by burdening ABILITY TO EARN THEIR LIVELIHOOD (important economic activities or civil liberties), violates AIV PI clause unless necessary for important G purpose. Corporations/aliens can’t sue under it.

Front 31

State taxation of interstate commerce

Back 31

May not use tax systems to help in-state businesses; may only tax activities if there is a SUBSTANTIAL NEXUS to state. Must be fairly apportioned.

Front 32

FFC

Back 32

Must give FFC so long as (1) rendering court had jurisdiction over parties + subject matter; (2) judgment was on merits; and (3) judgment was final.

Front 33

G action requirement for individual liberties

Back 33

Private conduct need not comply with constitution. Exceptions: public function performed by private entity; entanglement—G affirmatively authorizes, encourages, or facilitates unconstitutional activity (lecture notes 20).

Front 34

Bill of Rights application

Back 34

Applies only to federal G; applies to state/local Gs through 14A incorporation into the DPC.

Front 35

Rational basis

Back 35

Rationally related + legitimate conceivable purpose. Challenger burden of proof.

Front 36

Intermediate scrutiny

Back 36

Substantially related + important actual purpose. G burden of proof.

Front 37

Strict scrutiny

Back 37

Necessary + compelling actual purpose. G burden of proof.

Front 38

Procedural due process

Back 38

Deprivation of life, liberty, or property (loss of significant freedom or unfulfilled entitlement/reasonable expectation to continued receipt of benefit). Balancing test: (1) importance of the interest to the individual; (2) ability of additional procedures to increase accuracy of the fact-finding; (3) G’s interests.

Front 39

Economic liberties

Back 39

Rational basis test for laws affecting economic liberties. Takings clause: G may take private property for public use if it provides just compensation. Possessory or regulatory takings.

Front 40

Contracts clause

Back 40

No state shall impair obligations of contracts. Interference with private contracts must meet intermediate scrutiny. Interference with government contracts must meet strict scrutiny.

Front 41

Privacy rights

Back 41

Marry, procreate, custody of one’s children, keep family together, control upbringing of one’s children, purchase/use contraceptives, abortion, private consensual homosexual activity, refuse medical treatment.

Front 42

Abortion right

Back 42

Prior to viability, states can’t prohibit, but may regulate so long as don’t create undue burden on ability to abort. After viability, may prohibit unless necessary to protect woman’s life or health. G has no duty to subsidize or provide abortions. Spousal consent and notification laws are unconstitutional. May require parental notice/consent for unmarried minor’s abortion so long as provides judicial alternative as well.

Front 43

Right to travel

Back 43

Restrictions must meet strict scrutiny. **Durational residency requirements must meet strict scrutiny.

Front 44

Right to vote

Back 44

Denying right to vote requires strict scrutiny; regulations to prevent election fraud need only be desirable. One person, one vote for all state/local elections. At-large constitutional unless proof of discriminatory purpose.

Front 45

Equal protection clause

Back 45

14A EPC Applies only to state/local Gs. 5A Equal protection applied to federal G through DPC of 5A.

Front 46

Race and national origin classification

Back 46

Strict scrutiny. If law is facially neutral, proving racial classification requires (1) discriminatory impact and (2) discriminatory intent.

Front 47

Gender classifications

Back 47

Intermediate scrutiny. If law is facially neutral, must show (1) discriminatory impact and (2) discriminatory intent.

Front 48

Alienage classifications

Back 48

**Strict scrutiny. Rational basis test for classifications concerning self-G and democratic process, congressional discrimination. Intermediate scrutiny for discrimination against undocumented alien children.

Front 49

Nonmartial children

Back 49

Intermediate scrutiny

Front 50

Rational basis

Back 50

**Age, disability, wealth, economic regulations, sexual orientation.

Front 51

Content-based restrictions

Back 51

Strict scrutiny. Two types: (1) subject matter restrictions—application of law depends on topic; (2) viewpoint restrictions—application depends on message’s ideology.

Front 52

Content-neutral laws

Back 52

Intermediate scrutiny

Front 53

Prior restraints

Back 53

C orders suppressing speech must meet strict scrutiny. G may require license for speech ONLY IF there’s (1) an important reason for licensing and (2) clear criteria is provided leaving almost no discretion to licensing authority.

Front 54

Vagueness in speech restrictions

Back 54

Unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

Front 55

Overbreadth in speech restrictions

Back 55

Constitutionally overbroad if it regulates substantially more speech than constitution allows to be regulated.

Front 56

Symbolic speech

Back 56

G can regulate conduct that communicates if (1) it has an important interest unrelated to suppression of the message and if (2) the impact on communication is no greater than necessary to achieve the G’s purpose.

Front 57

Incitement of illegal activity

Back 57

G may punish speech if (1) there’s a substantial likelihood of imminent illegal activity and (2) speech is directed to causing imminent illegality.

Front 58

Obscenity and sexual-oriented speech

Back 58

**(1) Material must appeal to prurient interest; (2) patently offensive under law; (3) taken as a whole, must lake serious redeeming artistic, literary, political, or scientific value based on a national standard.

Front 59

Commercial speech restrictions

Back 59

Advertising for illegal activity and false/deceptive ads aren’t protected.

Front 60

Defamation

Back 60

Public officials/figures => P must prove (1) falsity of statement and (2) actual malice. Private figure + public concern => (1) falsity + (2) negligence by D. Private figure + not public concern => presumed or punitive damages without showing actual malice.

Front 61

Public forums

Back 61

G properties that G is constitutionally required to make available for speech. Regs must be subject-matter/viewpoint neutral or strict scrutiny met. Time/place/manner regs that (1) serve important G purpose and (2) leave open adequate alternative places for communication.

Front 62

Designated public forums

Back 62

G properties that G could close to speech, but chooses to open to speech. Same rules as public forums.

Front 63

Limited public forums

Back 63

G properties limited to certain groups or dedicated to discussion of only some subjects. May regulate so long as regs are (1) reasonable and (2) viewpoint neutral.

Front 64

Non-public forums

Back 64

G properties G can and does close to speech. (1) reasonable and (2) viewpoint neutral.

Front 65

Freedom of association

Back 65

Laws prohibiting/punishing group membership must meet strict scrutiny. To punish group membership, G must prove that person (1) actively affiliated with the group; (2) knowing of its illegal activities; and (3) with the specific intent of furthering those illegal activities. Laws requiring disclosure of group membership must meet strict scrutiny.

Front 66

Free exercise clause

Back 66

**Cannot be used to challenge a neutral law of general applicability. G can’t deny benefits to individuals who quit jobs for religious reasons.

Front 67

Establishment clause

Back 67

Test: (1) secular purpose for the law; (2) effect must be neither to advance nor inhibit religion; (3) no excessive entanglement with religion. G can’t discriminate against religious speech or among religions unless strict scrutiny is met.