Constitutional Law Standards

Front 1

Standing

Back 1

A person will be able to show a sufficient stake in the controversy only if she can show:

1. An injury in fact

2. Caused by the government

3. That will be remedied by a decision in her favor

Front 2

Standing to Assert Rights of Others

Back 2

A plaintiff may assert third-party rights where:

1. He, himself, has suffered injury; and

2. Third parties find it difficult to assert their own rights; or

3. The injury suffered by the plaintiff adversely affects his relationship with third parties, resulting in an indirect violation of their rights

Front 3

Standing of Organizations

Back 3

An organization has standing to challenge government action that causes injury to the organization itself.

An organization also has standing to challenge government actions that cause an injury in fact to its members if the organization can demonstrate the following three facts:

1. There must an injury in fact to the members organization that would give individual members a right to sue on their own behalf;

2. The injury to the members must be related to the organization's purpose; and

3. Neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit

Front 4

Exception to Taxpayer Standing

Back 4

A federal taxpayer has standing to challenge federal appropriation and spending measures if she can establish that the challenged measure:

1. Was enacted under Congress's taxing and spending power; and

2. Exceeds some specific limitation on the power (Establishment Clause)

Front 5

Legislator's Standing

Back 5

Legislators may have standing the challenge the constitutionality of government action if:

1. They have a sufficient "personal stake" in the dispute; and

2. They suffer sufficient "concrete injury"

Front 6

Political Questions

Back 6

Political questions are:

1. Those issues committed by the Constitution to another branch of government; or

2. Those inherently incapable of resolution and enforcement by the judicial process

4 types:

1. Guarantee Clause (Republican form of government)

2. Challenges to the President's conduct of foreign policy

3. Challenges to the impeachment and removal process

4. Challenges to partisan gerrymandering

Front 7

Jurisdictional Bar of the 11th Amendment

Back 7

The 11th Amendment's jurisdictional bar extends to the following:

1. Actions against state governments for damages

2. Actions against state governments for injunctive or declaratory relief where the state is named as a party

3. Actions against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership of land; and

4. Actions against state government officers for violating state law

Front 8

Commerce Power

Back 8

To be within Congress's power under the Commerce Clause, a federal law must either:

1. Regulate the channels of interstate commerce

2. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or

3. Regulate the activities that have a substantial effect on interstate commerce

When regulating intrastate activity under the third prong, Court will uphold regulation if it is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude the activity in aggregate substantially affects interstate commerce.

But if intrastate activity is noneconomic, Congress must factually show a substantial economic effect on interstate commerce.

Front 9

Presidential Power over Domestic Affairs (Youngstown Sheet & Tube)

Back 9

1. Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;

2. Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and

3. Where the President acts against the express will of Congress, he has little authority and his action likely is invalid

Front 10

Full Faith & Credit Clause

Back 10

A decision by a state will be entitled to full faith and credit if three requirements are met:

1. The court that rendered the judgment must have had jurisdiction over the parties and the subject matter;

2. The judgment must have been on the merits

3. The judgment must have been final

Front 11

State Regulation of Commerce in Absence of Congressional Action

Back 11

A state or local government may regulate local aspects of interstate commerce if the regulation:

1. Does not discriminate against an out-of-state competition to benefit local economic interests;

--Exceptions:
--(a) Important State Interest
--(b) State as "Market Participant"
--(c) Favoring Government Performing Traditional Government Functions

AND

2. Is not unduly burdensome
--Balancing test

Exception for State Control of Corporations--may be very burdensome

Front 12

Power of State to Tax Interstate Commerce

Back 12

If Congress has not acted (to authorize or forbid) and tax does not discriminate against interstate commerce, then three tests must be met:

1. There must be a substantial nexus between the taxpayer and the state

2. The tax must be fairly apportioned; and

3. There must be a fair relationship between the tax and the services and the benefits provided by the state

Front 13

Scope of Congressional Power under Section 5 of the 14th Amendment

Back 13

Congress has the power to adopt appropriate legislation.

Congress may not expand existing constitutional rights or create new ones.

To adopt a valid law:

1. Congress must point to a history or pattern of state violation of such rights; and

2. Adopt legislation that is congruent and proportional (i.e. narrowly tailored) to solving the identified violation

Front 14

State Action Requirement

Back 14

State action can be found in the actions of private individuals who:

1. Perform exclusive public functions, or

2. Have significant state involvement in their activities

Front 15

Contract Clause

Back 15

Only Applies to States

1. Does the legislation substantially impair a party's rights under an existing contract?
--If it does not, the legislation is valid
--If it does, it will be valid only if it:

2. Serves an important and legitimate public interest; and

3. Is a reasonable and narrowly tailored means of promoting that interest

For Government Contracts--Use Same Test but Stricter Scrutiny (Especially if the legislation reduces the contractual burdens on the state)

Front 16

Ex Post Facto Laws

Back 16

Only applies to criminal laws

A statute retroactively alters a law in a substantially prejudicial manner if it:

1. Makes criminal an act that was innocent was done;

2. Prescribes greater punishment for an act than was prescribed for the act when it was committed; or

3. Reduces the evidence required to convict a person of a crime from what was required at the time that the act was allegedly committed

Front 17

Determining what is "fair process" for Procedural Due Process

Back 17

The Court will weigh:

1. The importance of the individual interest involved

2. The value of the specific procedural safeguards to that interest; and

3. The governmental interest in fiscal and administrative efficiency

Front 18

Takings Clause

Back 18

3 Questions:
1. Is there a taking?

--An actual, physical appropriation or physical invasion is almost always a taking

Use restrictions will be taking if they deny ALL economic use of the land

Regulations that merely decrease the value of property subject to 3-part balancing test:

--(a) The social goals to be promoted

--(b) The diminution in value to the owner

--(c) The owner's reasonable expectations regarding the property

2. Is it for public use?

--Rationally related to a legitimate public purpose

3. Has just compensation been paid?

--This is determined by loss to the owner not by gain to the government

--Can pay the FMV or terminate the regulation and pay damages

Front 19

Strict Scrutiny

Back 19

A law will be upheld only if it is:

1. Necessary

2. To achieve a compelling or overriding government purpose

Government bears the burden of proving the law is necessary

Front 20

Intermediate Scrutiny

Back 20

A law will be upheld only if it is:

1. Substantially related

2. To an important government purpose

Burden of proof probably on government

Front 21

Rational Basis

Back 21

A law will be upheld only if it is:

1. Rationally related

2. To a legitimate government purpose

Front 22

Fundamental Rights under Due Process Clause (Also Equal Protection Clause, even without suspect classification)

Back 22

1. Right to Interstate Travel

2. Privacy

3. Voting

4. Right to Marry; and

5. All First Amendment rights (Speech, Association, Free Exercise of Religion)

Upheld only if it is:

1. Necessary

2. To promote a compelling or overriding government purpose

Front 23

Proving Intent to Discriminate

Back 23

An intent to discriminate can be shown in three ways:

1. Facial discrimination

2. Discriminatory application

3. Discriminatory Motive

Front 24

Suspect Classifications

Back 24

--Race
--National Origin
--When State classifies based on Alienage

Laws that discriminate on the basis of suspect classifications will be upheld only if:

1. Necessary

2. To achieve a compelling or overriding government purpose

Front 25

Alienage Classifications

Back 25

Federal government classifications based on alienage will be upheld unless:

1. Arbitrary; or

2. Unreasonable

State government classifications based on alienage are subject to strict scrutiny and will upheld only if it is:

1. Necessary

2. To achieve a compelling or overriding government purpose

Exception: Participation in Self-Government Process
--Discriminate against alien participation in state government (voting, jury, elective office) or certain non-elective offices involving important public policy (police, probation officers, teachers) then RATIONAL BASIS applied

Illegal Aliens are not a suspect class
--But denial of free public education to children of illegal aliens is invalid

Front 26

Quasi-Suspect Classifications

Back 26

--Gender
--Legitimacy
--Education for Illegal Aliens

Classifications based on suspect classifications will be upheld only if:

1. Substantially related

2. To an important governmental objective

For Gender:
An "exceedingly persuasive justification" is required in order to show that gender discrimination is substantially related to an important government interest

Front 27

Abortion

Back 27

Pre-Viability:
A state may adopt regulations protecting the mother's health and the life of the fetus only i the regulation does not impose an "undue burden" or substantial obstacle to the woman's right to have an abortion

Post-viability:
Once the fetus becomes viable, the state's interest in the fetus's life can override the woman's right to choose an abortion but it does not override the state's interest in the woman's health.

Front 28

Government Speech and Government Funding of Speech

Back 28

Government speech and government funding of speech will be upheld if it is:

1. Rationally related

2. To a legitimate state interest

Front 29

Regulations Based on the Content of Speech

Back 29

Regulations based on the content of speech will be upheld if the government shows that the regulation (or tax) is:

1. Necessary

2. To serve a compelling state interest

Front 30

Content-Neutral Speech Regulations

Back 30

Content-neutral speech regulations will be upheld if the government can show that:

1. They advance important interests unrelated to the suppression of speech, and

2. They do not burden substantially more speech than necessary to further those interests

Front 31

Regulation of Symbolic Conduct

Back 31

Court will uphold a conduct regulation if:

1. The regulation is within the constitutional power of government

2. It furthers an important governmental interest

3. The governmental interest is unrelated to suppression of speech; and

4. The incidental burden on speech is no greater than necessary

Front 32

Regulation of Prison Speech

Back 32

The regulation will be upheld if it is:

1. Reasonably related

2. To a legitimate penological interest

Front 33

Regulations of Speech and Assembly in Public Forums and Designated Public Forums

Back 33

To be valid, government regulations of speech and assembly in public forums and designated public forums must:

1. Be content neutral (subject-neutral and viewpoint neutral)

2. Be narrowly tailored

3. To serve an important government interest; and

4. Leave open alternative channels of communication

May still be struck down on other grounds:

1. Overbreadth

2. Vagueness

3. Unfettered Discretion

Front 34

Overbreadth

Back 34

If a regulation of speech or speech-related conduct punishes:

1. A substantial amount of protected speech

2. Judged in relation to the regulation's plainly legitimate sweep

3. The regulation is facially invalid

Front 35

Unfettered Discretion

Back 35

To be valid, licensing schemes must be:

1. Related to an important government interest

2. Contain procedural safeguards; and

3. Not grant officials unbridled discretion

Statutes that grant unbridled discretion are void on their face
--Speakers don't even need to apply for a permit

Statute with adequate standards is valid on its face
--Speaker must seek a permit, be denied, then seek administrative or judicial review

Front 36

Injunctions in Public Forums

Back 36

If the injunction is content-based, it will be upheld only if it is:

1. Necessary

2. To achieve a compelling government interest

If the injunction is content-neutral, it will be upheld only if it:

1. Burdens no more speech than is necessary

2. To achieve an important government purpose

Front 37

Regulations of Speech and Assembly in Limited and Nonpublic Forums

Back 37

Regulations will be upheld if they are:

1. Viewpoint neutral (Do not have to be subject-matter neutral) ; and

2. Reasonably related to a legitimate government purpose

Front 38

Content-Based Restrictions on Speech

Back 38

Content-based restrictions on speech must be:

1. Necessary

2. To achieve a compelling government interest

Only reasons for which the Court has allowed content-based restrictions on speech

1. It creates a clear and present danger of imminent lawless action

2. It constitutes "fighting words" as defined by a narrow, precise statute

3. The speech, film, etc. is obscene

4. The speech constitutes defamation which may be the subject of a civil penalty through a tort action brought by the injured party

5. The speech violates regulations against false or deceptive advertising--commercial speech is protected by the First Amendment and it cannot be proscribed simply to help certain private interests

6. The government can demonstrate a "compelling interest" in limitation of the First Amendment activity

Front 39

Obscenity

Back 39

Obscenity is a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards:

1. Appeal to the prurient interest in sex (community standard)

2. Portrays sex in a patently offensive way (community standard); and

3. Does not have serious literary, artistic, political, or scientific value--using a national, reasonable person standard

Front 40

Regulation of Commercial Speech

Back 40

First, determine whether the commercial speech concerns a lawful activity and is not misleading or fraudulent. Speech proposing an unlawful transaction (I will sell you heroin for $20) and fraudulent speech may be outlawed.

If the speech concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it:

1. Serves a substantial government interest

2. Directly advances the asserted interest; and

3. Is narrowly tailored to serve the substantial interest
--This means there must be a reasonable fit between the legislation's end and the means chosen.

Front 41

Prior Restraint

Back 41

A prior restraint must be:

1. Narrowly tailored

2. To achieve some compelling or, at least, significant governmental interest

The following procedural safeguards must be provided in all prior restraint cases:

1. The standards must be "narrowly drawn, reasonable, and definite," so as to include only prohibitable speech

2. If the restraining body wishes to restrain dissemination of an item, it must promptly seek an injunction; and

3. There must be a prompt and final judicial determination of the validity of the restraint

Government bears the burden of proving that speech involved is unprotected

Front 42

Publication of Truthful Information

Back 42

Right to publish information about a matter of public concern can be restricted by a sanction only if it is:

1. Narrowly tailored

2. To further a state interest of the highest order

This applies even if the information has been obtained unlawfully in the first instance, as long as:

1. The speech relates to a matter of public concern

2. The publisher did not obtain it unlawfully or know who did; and

3. The original speaker's privacy expectations are low

Front 43

Freedom of Association

Back 43

The right to associate for expressive purposes may be infringed to serve a:

1. Compelling government interest

2. Unrelated to the suppression of ideas

3. That cannot be achieved through means significantly less restrictive of associational freedoms

Front 44

Regulating the Electoral Process

Back 44

The Supreme Court uses a balancing test in determining whether a regulation of the electoral process is valid.

If the restriction on First Amendment activities is severe, it will be upheld only if it is:

1. Narrowly tailored

2. To achieve a compelling interest

If the restriction is reasonable and nondiscriminatory, it generally will be upheld on the basis of the states' important regulatory interests

Front 45

Restraints on Conduct in Public Employment

Back 45

If a government employer seeks to fire an employee for speech-related conduct, one of two tests will apply.

If a matter of public concern is involved, courts balance the employee's rights as a citizen to comment on a matter of public concern against the government's interests as an employer in the efficient performance of public service.

If the speech did not involve a matter of public concern, the courts should give a wide degree of deference to the government employer's judgment concerning whether the speech was disruptive.

Front 46

Regulating Conduct & Free Exercise Clause

Back 46

Free exercise clause cannot be used to challenge a law of general applicability unless it can be shown that the law was motivated by a desire to interfere with religion.

But exemptions need to be given in unemployment compensation cases

Front 47

Sect Preference & Establishment Clasue

Back 47

Law or government program that favors some sects over others must be:

1. Narrowly tailored

2. To promote a compelling interest

Front 48

No Sect Preference & Establishment Clause (Lemon Test)

Back 48

If government action does not involve a sect preference, the government action will be valid under the Establishment Clause if it:

1. Has a secular purpose

2. Has a primary effect that neither advances nor inhibits religion; and

3. Does not produce excessive government entanglement with religion

Front 49

Vagueness

Back 49

If a reasonable person could not tell what speech is prohibited and what is not prohibited then the regulation is unconstitutionally vague

Front 50

Hierarchy of Laws

Back 50

1. Constitution

2. Federal Laws and Treaties
--If a conflict between these two, the last in time prevails

3. Executive Agreements

4. State Laws

Front 51

Exceptions that Permit Discriminatory Regulations of Commerce by States

Back 51

1. Important State Interest: Discriminatory state or local law may be valid if:

--(a) It furthers an important, noneconomic state interest; and

--(b) There are no reasonable nondiscriminatory alternatives

2. State as "Market Participant"

A state may prefer its own citizens when acting as a market participant (buying or selling, hiring labor, or giving subsidies)

3. Favoring Government Performing Traditional Government Functions

--Supreme Court applies a more lenient standard when a law favors government action that involves a performance of a traditional government function (waste disposal)

--Discrimination permissible because it is likely motivated by legitimate objectives rather than economic protectionism.

Front 52

Nondiscriminatory Laws--Balancing Test

Back 52

If a nondiscriminatory law burdens interstate commerce, it will be valid unless the burdens outweigh the promotion of a legitimate local interest

State Control of Corporations
--Different standard may be applied to statutes adopted by the state of incorporation regulating the internal governance of a corporation, because of states' long history of regulating the internal governance of corporations they create, and because of their strong interest in doing so.

Front 53

Dilution of Right to Vote

Back 53

One person-One vote principle applies whenever any level of government, state or local, decides to select representatives to a governmental body by popular election from individual districts

Congressional Elections
--States must use almost mathematical equality

--Congress gets much more deference

State and Local Election
--variance no more than few % points
--exception: apportionment requirement is inapplicable to officials elected/appointed "at large"
--exception: special purpose elections

Front 54

Restrictions on Ability to be a Candidate

Back 54

Ballot access regulations must be reasonable and nondiscriminatory means of promoting important state interests

Front 55

Durational Residency Requirements

Back 55

Burden "right to travel" which is fundamental right

1 year for welfare--invalid

1 year for subsidized medical care--invalid

1 year to vote--invalid

30 days to vote--valid

1 year to get divorced--valid

Front 56

All Regulations of Speech are Subject to These Restrictions

Back 56

1. Overbroad regulation invalid
--If it punishes substantial amount of protected speech then facially invalid

--If it is not substantially overbroad then may be enforced against persons engaging in unprotected activities

2. Void for Vagueness

3. Unfettered Discretion

Front 57

Electoral Process

Back 57

Balancing Test

If the restriction of 1st amendment activity (free association) is severe--Strict Scrutiny

If restriction is reasonable and nondiscriminatory--generally will be upheld

Front 58

Limits on Campaign Contributions

Back 58

Statute limiting election campaign contributions is subject to INTERMEDIATE SCRUTINY (must be closely drawn to match a "sufficiently important interest")


To prevent corruption or appearance thereof, laws may limit the amount of money that a person, group, or corporation can contribute to a POLITICAL CANDIDATE (but may not regulate how much they spend to get him elected, just giving TO him)

But government may NOT limit the amount of money that may be spent to support/oppose a BALLOT REFERENDUM

Exceptions for groups/corporations formed specifically to participate in the political debate

Front 59

School Sponsorship of Extracurricular Clubs

Back 59

Use test for limited public forum speech cases

Sponsorship of associations can be subject to regulation that is:

1. Viewpoint neutral

2. Reasonably related to a legitimate government interest

Front 60

Financial Benefits to Religious Institutions

Back 60

If no sect preference--Lemon Test
1. Secular Purpose
2. Has a primary effect that neither advances or inhibits religion; and
3. Does not produce excessive government entanglement with religion

When grade or high school is involved--Lemon Test applied with greater strictness

Recipient-based Aid
--Aid to defined class of persons okay if defined without reference to religion. Even if most people receiving the aid attend religious schools

Aid to College/Hospitals
--So long as the aid is to be used for nonreligious purposes

Aid to Grade/High Schools
--Usually has secular purpose but fails other parts of test (excessive entanglement)

Front 61

Religious Activities in Public Schools

Back 61

School-SPONSORED religious activity is INVALID

But school ACCOMMODATION of religion is VALID

If public school allows groups to use school property when school not in session, it cannot deny a religious organization permission merely because they are discussing religious topics