Constitutional Law (Short)

Front 1

What are the 4 Justiciability Requirements (required at all levels)?

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 is standing? What does it signify?

Back 2

= whether P is proper P to bring a case to the Ct for adjudication

Front 3

What are the 4 requirements for/features of STANDING?

Back 3

(1) Injury
(2) Causation & redressability
(3) No 3rd P Standing
(4) No Generalized Grievances Allowed

Front 4

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

Back 4

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

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

--E.g. FDA & drug companies – no drug company had yet been prosecuted & FDA wanted to wait (either comply w/ rule & risk losing millions of $ or force drug companies to violate & go through the pains of prosecution – SC found it was ripe)

Front 5

What is the significance of the POLITICAL QUESTION restriction? What are the 4 areas it covers?

Back 5

Political questions are non-justiciable. These are issues (i) constitutionally committed to another branch of government or (ii) inherently incapable of judicial resolution.

• 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 6

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

Back 6

Has the Gov 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 7

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

Back 7

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 8

What is RIPENESS?

Back 8

= the Q of whether a federal CT may grant pre-enforcement review of a statute or regulation.

EXAM TIP: Whenever you see Con Law Q asking for request of declaratory judgment, look to see if ripeness issue.

Front 9

What is the effect of the MOOTNESS restriction?

Back 9

If events after the filing of a lawsuit end the plaintiff's injury,
the case must be dismissed as moot.

P must present a LIVE CONTROVERSY at all stages of the proceeding.

Front 10

How do you distinguish SDP from EP?

Back 10

• SDP - limits liberty of all persons to engage in some activity
• EP - law treats a person or class of persons differently

Front 11

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 11

(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 12

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 12

• Content-based restrictions on speech generally = strict scrutiny.
i. subject matter restrictions
ii. viewpoint restrictions

• Content-neutral = intermediate scrutiny

Front 13

Under EP, what classifications are SUSPECT? What are quasi-suspect?

Back 13

• Suspect = race, national origin, sometimes alienage
• Quasi-suspect = gener, legitimacy

Front 14

When are laws regarding SPEECH invalid for VAGUENESS and/or for OVERBREADTH?

Back 14

• Law = unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

NOTE: "Fighting Words" laws are ALWAYS unC vague & overbroad

• law = unconstitutionally overbroad if it regulates substantially more speech than C allows to be regulated.

Front 15

How is the existence of a RACIAL classification proven?

Back 15

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 16

What 4 types of SPEECH is UNPROTECTED OR LESS PROTECTED by the 1st Amendment?

Back 16

1. Incitement of illegal activity.
2. Obscenity and sexually-oriented speech.
3. Commercial speech
4. Defamation

Front 17

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

Back 17

MUST meet ALL of these requirements:

(1) The material must appeal to the prurient interest
(= shameful or morbid interest in sex)

(2) Material must be patently offensive under the law prohibiting obscenity
(ANY law must delineate which depictions would qualify as patently offensive)

(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 18

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

Back 18

• 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 19

What are 5 EP areas that only merit RB Test review

Back 19

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 20

What is the general rule for when Congress has authority to act?

Back 20

There must be express or implied Congressional power in order for Congress to take any given action.

Congress can exercise those powers ENUMERATED in the Constitution plus all auxiliary powers NECESSARY AND PROPER to carry out all powers vested in the federal government.

NOTE: The necessary and proper clause standing alone cannot support federal law. It must work in conjunction with another federal power.

Front 21

What are the boundaries of congressional action under the Commerce Clause after Lopez? (3 rules)

Back 21

1. Congress may regulate the CHANNELS of interstate commerce

2. Congress may regulate the INSTRUMENTALITIES of interstate commerce, and persons or things in interstate commerce; OR

3. Congress may regulate ECONOMIC ACTIVITIES that have a SUBSTANTIAL EFFECT on interstate commerce

In area of non-economic activity, a substantial effect cannot be based on cumulative impact – Morrison (VAWA)

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

Front 22

What is the primary constitutional LIMITATION on Congressional power?

Back 22

10th Amendment = all powers not granted to the US, nor prohibited to the states, are RESERVED to the states or the people

Front 23

What is SOVEREIGN IMMUNITY (re: lower federal and state courts)? What is the Constitutional basis for this rule?

Back 23

Sovereign immunity bars suits against state governments in state courts OR federal courts

(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 24

What is the extent of the FEDERAL POLICE POWER?

Back 24

No general police power.

Congress IS acting under police power if it is legislating for:
1. the MILITARY,
2. INDIAN RESERVATIONS,
3. FEDERAL LANDS and TERRITORIES, or
4. the DISTRICT of COLUMBIA

Exam tip: “MILD” – congress doesn’t have a strong police power – just a MILD one.

Front 25

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

Back 25

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 26

What is the Privileges & Immunities clause of Article IV?

Back 26

No state may deprive citizens of other states of the Privileges & Immunities that it affords its own citizens.

An anti-discrimination provision - limits ability of a state to discriminate against out-of-staters.

Only FUNDAMENTAL RIGHTS (those involving important commercial activities, like the pursuit of livelihood) and CIVIL LIBERTIES are protected.

Front 27

When does a state law violate the DORMANT COMMERCE CLAUSE? Exceptions?

Back 27

If a law burdens interstate commerce, 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.

EXCEPTION 1: Congressional approval

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 28

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

Back 28

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.

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

NB: Civil liberties are rarely litigated under the P&I clause. Usually P&I clause is involved when state/local government discriminates against out of staters in their ability to earn a living (hobbies, like hunting, don't count)

Front 29

What are the 3 main rules about State Taxation of Interstate Commerce that we need to know?

Back 29

1. States may not use their tax systems to help in-state businesses

2. A state may only tax activities if there is a substantial nexus to the state

3. State taxation of interstate businesses must be fairly apportioned.

Front 30

What is the SUPREMACY CLAUSE?

Back 30

Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

(eg, Federal law WINS every time)

Front 31

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

Back 31

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 32

What is the NECESSARY AND PROPER CLAUSE?

Back 32

Congress can adopt all powers “necessary and proper” to carry out its authority.

Congress may choose any means not prohibited by Constitution to carry out its authority.

Front 33

What is the DORMANT COMMERCE CLAUSE? Where does it come from?

Back 33

State & local laws are unconstitutional if they place an undue burden on interstate commerce.

Inferred from the grant of power to congress to regulate commerce among the states.

Aka the “negative implications of the commerce clause”

Front 34

What is the TAXING AND SPENDING POWER of Congress?

Back 34

Congress may tax and spend for the general welfare.
E.g., can adopt any tax to raise revenue, and any spending method to spend it as long as Congress thinks it will aid the general welfare.

Exam tip: this is the ONLY area in which Congress can act for the “general welfare”

Front 35

RATIONAL BASIS TEST

Back 35

RATIONALLY RELATED to a LEGITIMATE government interest.

(actual purpose need not be legitimate; must only be conceivable).

Gov. usually wins. The law us usually valid unless it is ARBITRARY or IRRATIONAL.

Challenger has the burden of proof.

Front 36

INTERMEDIATE SCRUTINY

Back 36

SUBSTANTIALLY related to an IMPORTANT government interest.

--Court looks to government's ACTUAL purpose.
--Burden is on the government.

Front 37

STRICT SCRUTINY

Back 37

Must be NECESSARY to achieve a COMPELLING government purpose.

You must find that NO less restrictive alternative could be used to achieve the government purpose.

--Court looks to government's ACTUAL purpose.
--Burden is on the government.

Front 38

FREEDOM OF ASSOCIATION

Back 38

Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person:

(i) actively affiliated with the group;

(ii) knowing of its illegal activities; and

(iii) with the specific intent of furthering those illegal activities.

Front 39

The ESTABLISHMENT CLAUSE: The "LEMON Test"

Back 39

(SEX)

1) There must be a SECULAR purpose for the law;

2) The EFFECT must be neither to advance nor inhibit religion; and

3) There must not be EXCESSIVE entanglement with religion.

Front 40

The ESTABLISHMENT CLAUSE: Religious Speech and Activity

Back 40

The gov't cannot discriminate against religious speech or among religions unless strict scrutiny is met.

Gov't sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups.

The gov't may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents vouchers which they use in parochial schools.

Front 41

Power of the States to TAX Interstate Commerce: Privilege, License, Franchise, or Occupational TAXES

Back 41

These "doing business taxes" are generally permitted. The following basic requirements must be met:

(i) the activity taxed must have a SUBSTANTIAL NEXUS to the taxing state;

(ii) the tax must be FAIRLY APPORTIONED;

(iii) the tax must NOT DISCRIMINATE against interstate commerce; and

(iv) the tax must FAIRLY RELATE TO SERVICES PROVIDED by the state.

Front 42

Scope of Congressional Power under the 14th Amendment

Back 42

Section 5 of the 14th Am gives Congress the power to adopt APPROPRIATE LEGISLATION to enforce the rights and guarantees provided by the 14th Am. Under Section 5, Congress MAY NOT expand existing constitutional rights or create new ones--it may only enact laws to prevent or remedy violations of rights already recognized by the courts.

Front 43

What are the Constitutional Sources of Substantive Due Process?

Back 43

The DPC of the 5th Am applies to the federal government.

The DPC of the 14th Am applies to the state and local governments.

The same tests are applied under each clause.

Front 44

EPC: Proving a Discriminatory Classification

Back 44

For strict or intermediate scrutiny to be applied, there must be INTENT on the part of the government to discriminate. Intent may be shown by:

(i) A law that is DISCRIMINATORY ON ITS FACE;

(ii) A DISCRIMINATORY APPLICATION of a facially neutral law; or

(iii) A DISCRIMINATORY MOTIVE behind the law.

NOTE: The third is the most difficult to prove. A discriminatory EFFECT alone is not enough. The legislature's discriminatory motive must be shown (e.g., by evidence of a history of discrimination).

Front 45

Restrictions on Speech in Limited Public Forums and Non-Public Forums

Back 45

Speech and assembly can be more broadly regulated in limited public forums (e.g., military bases and schools when classes are in session) and nonpublic forums. The Gov't can regulate speech in such a forum to reserve the forum for its intended use. Regulations are valid if they are:

(i) VIEWPOINT NEUTRAL; and

(ii) REASONABLY RELATED TO A LEGITIMATE government purpose (rational basis).

Front 46

Speech: Validity for Prior Restraints

Back 46

To be valid, a system for prior restraint must provide the following procedural safeguards:

(i) The standards must be NARROWLY DRAWN, REASONABLE, AND DEFINITE;

(ii) Injunction must PROMPTLY be sought; and

(iii) There must be PROMPT AND FINAL DETERMINATION of the validity of the restraint.

Prior restraints are very rarely allowed. The government has the heavy burden of justifying the prior restraint by showing that some SPECIAL SOCIAL HARM will otherwise result.

Front 47

The ESTABLISHMENT CLAUSE: The "LEMON Test"

Back 47

The Establishment Clause prohibits laws respecting the establishment of religion. If government action includes a preference for one religious sect over antother, it is INVALID unless it meets STRICT SCRUTINY.

If government action does NOT involve sect preference, it is VALID under the Establishment Clause if: (SEX)

1) There must be a SECULAR purpose for the law;

2) The EFFECT must be neither to advance nor inhibit religion; and

3) There must not be EXCESSIVE entanglement with religion.

Front 48

Power of the States to TAX Interstate Commerce: Privilege, License, Franchise, or Occupational TAXES

Back 48

These "doing business taxes" are generally permitted. The following basic requirements must be met:

(i) the activity taxed must have a SUBSTANTIAL NEXUS to the taxing state;

(ii) the tax must be FAIRLY APPORTIONED;

(iii) the tax must NOT DISCRIMINATE against interstate commerce; and

(iv) the tax must FAIRLY RELATE TO SERVICES PROVIDED by the state.

Front 49

Scope of Congressional Power under the 14th Amendment

Back 49

Section 5 of the 14th Am gives Congress the power to adopt APPROPRIATE LEGISLATION to enforce the rights and guarantees provided by the 14th Am. Under Section 5, Congress MAY NOT expand existing constitutional rights or create new ones--it may only enact laws to prevent or remedy violations of rights already recognized by the courts.

Front 50

EPC: Proving a Discriminatory Classification

Back 50

For strict or intermediate scrutiny to be applied, there must be INTENT on the part of the government to discriminate. Intent may be shown by:

(i) A law that is DISCRIMINATORY ON ITS FACE;

(ii) A DISCRIMINATORY APPLICATION of a facially neutral law; or

(iii) A DISCRIMINATORY MOTIVE behind the law.

NOTE: The third is the most difficult to prove. A discriminatory EFFECT alone is not enough. The legislature's discriminatory motive must be shown (e.g., by evidence of a history of discrimination).

Front 51

Restrictions on Speech in Limited Public Forums and Non-Public Forums

Back 51

Speech and assembly can be more broadly regulated in limited public forums (e.g., military bases and schools when classes are in session) and nonpublic forums. The Gov't can regulate speech in such a forum to reserve the forum for its intended use. Regulations are valid if they are:

(i) VIEWPOINT NEUTRAL; and

(ii) REASONABLY RELATED TO A LEGITIMATE government purpose (rational basis).

Front 52

Speech: Validity for Prior Restraints

Back 52

To be valid, a system for prior restraint must provide the following procedural safeguards:

(i) The standards must be NARROWLY DRAWN, REASONABLE, AND DEFINITE;

(ii) Injunction must PROMPTLY be sought; and

(iii) There must be PROMPT AND FINAL DETERMINATION of the validity of the restraint.

Prior restraints are very rarely allowed. The government has the heavy burden of justifying the prior restraint by showing that some SPECIAL SOCIAL HARM will otherwise result.

Front 53

Justiciable Case or Controversy

Back 53

"RAMPSE"

a. Standing (always raise 1st in ALL con law essays if it is an issue raised by the facts)
i. Standing
ii. Third Party Standing
iii. Taxpayer Standing
iv. Organizational Standing (always mini-irac)

b. Ripeness

c. Mootness

d. Eleventh Amendment

e. Abstention

f. Political Question

Front 54

1st Am: Freedom of Religion

Back 54

The 1st Am prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the 14th Am.