Mbe Constitutional Law

Front 1

Strict Scrutiny

Back 1

Must be necessary to achieve a compelling gov’t purpose

Least Restrictive Alternative Analysis? YES

BURDEN: GOVERNMENT

Front 2

Intermediate Scrutiny

Back 2

Must be substantially related to an important gov’t purpose

Least Restrictive Alternative Analysis? NO

BURDEN: GOVERNMENT

Front 3

Rational Basis

Back 3

Must be rationally related to some legitimate gov’t purpose

Least Restricted Alternative Analysis? NO

BURDEN: CHALLENGER

Front 4

ADVISORY OPINIONS

Back 4

Parties must show:

i. they have engaged in, or wish to engage in, specific conduct,
ii. and that the challenged action poses a real and immediate danger to their interests.

Front 5

MOOTNESS (Exceptions)

Back 5

1. Controversies capable of repetition, yet evading review, are not moot.
2. Class actions – if issue becomes moot as to class representative, the class action can still continue if other members’ claims are still viable.
3. Voluntary cessation by the D (May resume at any time)

Front 6

STANDING (Elements)

Back 6

1. Injury
She has been or will be directly and personally injured by the allegedly unlawful gov’t action. Injury need not be economic.
2. Casuation
There must be a causal connection between the injury and the conduct complained of.
3. Redressability
a decision in the litigant’s favor must be capable of eliminating the harm.

Front 7

PRIVILEGES & IMMUNITIES CLAUSE, ART. IV AND 14TH AMENDMENT (Differences)

Back 7

i. Art IV – prohibits discrimination by a state against non-residents.
ii. 14th Amend – states may not deny their citizens privileges & immunities of national citizenship (i.e. right to travel)

Front 8

DORMANT COMMERCE CLAUSE

Back 8

A state may not discriminate against or unduly burden interstate commerce.

Front 9

DCC: To be valid must;

Back 9

i. Must pursue a legitimate end,
ii. Must be rationally related to that legitimate end,
iii. And the regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state’s interest in enforcing the regulation.
iv. NOTE: If no substantial effect, no need to apply this test  law is valid.

Front 10

DCC: For laws against out of staters

Back 10

i. Law will be invalid UNLESS
ii. It furthers an important, noneconomic state interest AND
iii. There are no reasonable, nondiscriminatory alternatives, OR
iv. The state is a market participant.
v. Congress approves it

Front 11

DCC: For laws that treat in-staters and out-of-staters alike, but which burden interstate commerce (truck tires):

Back 11

i. Will be valid UNLESS
ii. The burden outweighs the promotion of a legitimate state interest, AND
iii. There are no less restrictive alternatives available.

Front 12

A State TAX that affects interstate commerce will be valid IF:

Back 12

i. There is a substantial nexus to the taxing state (significant or substantial activity in the taxing state) AND
ii. The tax is fairly apportioned according to a rational formula, AND
iii. The tax is fairly related to the services or benefits provided by the state.

Front 13

INDIVIDUAL RIGHTS (SOURCES)

Back 13

a. 14th Amendment applies the Bill of Rights to the states
b. The 13th Amendment prevents badges of slavery and involuntary servitude
c. The 14th Amendment prevents states from depriving any person of life, liberty or property without due process of law.
d. 15th Amendment prevents both federal and state gov’ts from denying a citizen the right to vote b/c of race.
e. Sec. 5 of the 14th Amendment gives congress the power to adopt appropriate legislation to enforce rights guaranteed by the Bill of Rights.
f. Under the Commerce Clause, Congress can prohibit private racial discrimination that might have a substantial effect on interstate commerce.
g. Congress also has inherent power to protect the rights of nat’l citizenship.

Front 14

STATE ACTION – ANALYZE FIRST

Back 14

i. The entity is performing a traditionally exclusive public function (even if the state itself is not doing it) OR
ii. The state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.

Front 15

SPEECH
PRIOR RESTRAINT ON SPEECH

Back 15

i. Heavy burden to justify
ii. Must show that some special societal harm will result w/o the prior restraint.
iii. Any system for allowing prior restraints must:
1. Have standards that are narrowly drawn, reasonable, and definite AND
2. Injunction must promptly be sought, AND
3. There must be prompt and final determination of the validity of the restraint.

In Addition, court orders suppressing speech must meet strict scrutiny. 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, 'gag orders' on the press to prevent prejudicial pretrial are not allowed.

Front 16

SPEECH
VAGUENESS OR OVERBREADTH

Back 16

i. If a regulation punishes a substantial amount of protected speech in addition to its plainly legitimate sweep it is invalid as overbroad.
1. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are NOT constitutionally protected.
ii. If a reasonable person could not tell what speech is prohibited and what is not, it is unconstitutionally vague.
1. This is also the case with laws that give unfettered discretion to officials in applying them.

Front 17

SPEECH
CONTENT-NEUTRAL REGULATION

Back 17

Content neutral regulations must (Intermediate Scrutiny):
1. Advance important interests unrelated to the suppression of speech AND
2. Must not burden substantially more speech than necessary to further those interests.

Front 18

SPEECH
TIME, PLACE, MANNER RESTRICTIONS (PUBLIC)

Back 18

1. Content-neutral, viewpoint neutral
2. Are narrowly-tailored to serve an important gov’t interest, AND
3. Leave open alternative channels of communications.

permit fee requirements for parades or demonstrations are unconstitutional if city officials have discretion in setting the amount of the fee.

Front 19

SPEECH
TIME, PLACE, MANNER RESTRICTIONS (PRIVATE)

Back 19

For non-public, gov’t-owned forums (military bases, areas outside prisons and jails, advertising space on city buses, sidewalks, airports), must be:
1. Viewpoint-neutral, but does not have to be subject matter neutral, AND
2. Reasonably related to a legitimate gov’t purpose.

Front 20

SPEECH
NOT PROTECTED! (7)

Back 20

1. Fraudulent/Misrepresentation of Commercial Speech.
2. Commercial Speech that proposes an unlawful activity.
3. Clear and Present danger of Imminent Lawless Action.
4. Fighting Words.
5. Obscenity
6. Non-obscene material directed to children.
7. Liquor Related Advertisements.

Front 21

OBSCENITY

Back 21

1. Appeals to the prurient interest in sex, using a local standard,
2. Is patently offensive and an affront to contemporary local standards AND
3. Lacks serious artistic, literary, political, or scientific value, using a nat’l reasonable person standard.

Front 22

FIGHTING WORDS

Back 22

1. Personally abusive words that are likely to incite imminent physical retaliation in an average person
2. BUT can’t punish only fighting words of a certain viewpoint (i.e. insults on the bases of race)

Front 23

RIGHT TO PROPERTY – TAKINGS CLAUSE (5TH AMEND)

1. Is there a taking?
2. Is it for public use?
3. It's just compensation paid?

Back 23

a. Allows gov’t to take private property for public use, if just compensation is paid.
i. Public use = rationally related to a legitimate public purpose
b. Taking vs. merely burdening w/ regulation
i. An actual, physical appropriation or physical invasion is almost always a taking.
ii. Use restrictions that deny ALL economic use of the land are a taking.
iii. Regulations that merely decrease the value of property may or may not be a taking, the court will apply a 3-part balancing test:
1. The social goals to be promoted
2. The diminution in value to the owner
3. The owner’s reasonable expectations regarding the property
c. If there is a taking, the gov’t must pay FMV as determined by the loss to the owner, not the gain to the gov’t.

Front 24

ESTABLISHMENT CLAUSE

Back 24

i. Prevents gov’t from preferring one religion over another UNLESS:
1. It is narrowly tailored
2. To promote a compelling interest (interest almost never compelling)
ii. Gov’t religious displays or other endorsements of religion are OK ONLY if it:
1. Has a secular purpose,
2. Has a primary effect that neither advances nor inhibits religion, AND
3. Does not produce excessive gov’t entanglement w/ religion.
iii. Grants to religious schools
1. The Court will apply the 3-part test above more strictly if the school involved is a grade or high school, than colleges etc.

Front 25

ESTABLISHMENT CLAUSE
(3 PART TESTS)
Pneumonic: SEX

Back 25

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 26

Ex Post Facto laws

Back 26

i. A state cannot retroactively change CRIMINAL laws if it:
1. Makes criminal an act that was innocent when done
2. Prescribes greater punishment than when the act was done
3. Reduces the evidence required to convict a person from when the act was done

Front 27

EQUAL PROTECTION
(Important Distinction)

Back 27

only applies to the STATES, if gross discrimination by federal government, then violation of Due Process through the 5th amendment.

Front 28

Fundamental Rights (7)

Back 28

1. Right to interstate travel
2. Right to vote
3. Right to privacy
4. Right to marry
5. Freedom of Speech
6. Freedom of association
7. Free exercise of religion

Front 29

RIGHT TO PRIVACY (6)

Back 29

1. Contraception
2. Marriage
3. Abortion
4. Sexual Relations
5. A right to raise one's child
6. Right to obscene material in one's home.

Front 30

CLASSIFICATION of CLASSES (3)

Back 30

1. Suspect Class -- Strict Scrutiny
2. Quasi-Suspect -- Intermediate Scrutiny
3. Other Classes -- Rational Basis

Front 31

SUSPECT CLASS (3) -- RAN

Back 31

1. Race
2. Alienage (Legal)
3. National Origins

Front 32

Quasi-Suspect Classes

Back 32

1. Gender
2. Legitimacy
3. Education for illegal Aliens.

Front 33

Other Classes

Back 33

1. Age
2. Disability
3. Illegal Aliens
4. Wealth
5. National Origin if related to a government process.

Front 34

Intent to be shown to prove DISCRIMINATION for suspect or quasi-suspect 'strict scrutiny'.

Back 34

i. Discriminatory intent on the face of the law OR
ii. Discriminatory application of a law that is facially neutral OR
iii. A discriminatory motive behind the law.
iv. A law that merely happens to have an unintentional, discriminatory effect does NOT count as intent!!

Front 35

PROCEDURAL DUE PROCESS

Back 35

i. Three part balancing test:
1. The importance of the interest to the individual,
2. The value of specific procedural safeguards to that interest,
3. The government interest in fiscal and administrative efficiency.

Front 36

SUBSTANTIVE DUE PROCESS

Back 36

If burdens everyone -- then substantive due process -- 'strict scrutiny'

If burdens a fundamental right for a few -- Equal Protection -- 'still strict scrutiny'.

For laws affecting economic rights -- rational basis test

Front 37

DEFAMATION
(Public Official/Public Figure)

Key word is 'Public'

Back 37

1. Must show 'actual malice'
2. Damages Compensatory presumed/Punitive
3. Plaintiff Must Prove Falsity

Front 38

DEFAMATION
(Private Figure, Matter of Public Concern)

Back 38

1. Plaintiff must show falsity

2. Must show 'negligence and actual injury'

3. Damages compensatory for actual injury; presumed or punitive damages require actual malice

Front 39

POLITICAL QUESTION
(four types)

Back 39

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 40

Virtually all cases come to the Supreme Court by 'writ of certiorari'

Back 40

1. All cases from state courts
2. All cases from US courts of appeal
3. Appeals for decisions of three judge federal district courts
4. The Supreme Court has 'original and exclusive jurisdiction' for suit between state governments.

Front 41

FINAL JUDGMENT RULE
(Applicable)

Back 41

1. The highest state court
2. A United States Court of Appeals
3. A three-judge Federal District Court

Front 42

States under the 11th amendment may not be named as a defendant in federal court except when...?

Back 42

1. Waiver/expressly consents to be sued
2. Section 5 of the 14th amendment
3. The federal government may sue state governments
4. Bankruptcy proceedings

Front 43

When State Officers may be sued

Back 43

1. Injunctive Relief
2. Monetary damages to be paid out of the officer's own pocket
3. State officers may not be suited if the state treasury will pay the damages.

Front 44

ABSTENTION

Back 44

federal courts may not enjoin pending state court proceedings.

Front 45

THE BIG THREE POWERS OF CONGRESS

Back 45

Taxing, Spending, & Commerce

Front 46

NO 'Federal Police Power' EXCEPT
(4 Instances)
pneumonic MILD

Back 46

Military
Indian Reservations
Lands (Federal)
District of Columbia

Front 47

Article I, Section 8

Back 47

'Necessary & Proper Clause'

Front 48

The Executive Powers

Back 48

1. Foreign Policy
a. Treaties
b. Executive Agreements
2. Domestic Affairs
a. The Appointment Power
b. The Removal Power
c. Impeachment and Removal
d. Absolute Immunity to civil cases for monetary damages while in office, not prior.
e. Pardon anyone accused or convicted of a federal (not state) CRIMINAL crime-- not civil.

Front 49

HIERARCHY OF LAWS

Back 49

1. The United States Constitution
2. Federal Laws
3. Treaties
4. Executive Agreements
5. State Laws

Front 50

DIFFERENCES BETWEEN TREATIES AND EXECUTIVE AGREEMENTS

Back 50

1. Senate approval required for treaties
2. ALWAYS trumps state laws
3. Executive Agreements are trumped by Federal Statute
4. Treaties versus Federal Statute -- 'last in time controls'

Front 51

THE SUPREMACY CLAUSE

Back 51

Article IV states that the Constitution and the laws pursuant to it are the supreme law of the land. Preemption can be found in three separate ways.

Front 52

PREEMPTION of the SUPREMACY CLAUSE

Back 52

1. Express preemption -- where the power to act is exclusive to Congress
2.implied Preemption (three ways)
a. Impossibility to comply with federal/state laws
b. A state law impedes the achievement of a federal objective
c. if Congress evidence is a clear intent to preempt state law, then state laws are being preempted.

Front 53

FULL FAITH & CREDIT CLAUSE

Back 53

Courts in one state must give full faith and credit to all judgments of courts in another state, so long as:
1. The court that rendered or issued the judgment must have both personal & subject matter jurisdiction
2. The judgment must be on the merits
3. The judgment must be final.

Front 54

Congress cannot use Section 5 of the 14th amendment in order to...

Back 54

Regulate private behavior... only to regulate state and local governments.

Front 55

Public Functions Exception

Back 55

if a private entity is performing a task traditionally, exclusively done by the government then the Constitution applies

OR

The entanglement exception, if government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

Front 56

the Second Amendment, third amendment, Fifth Amendment, seventh amendment, And Eighth Amendment,

Back 56

DO NOT APPLY TO STATES

Front 57

NOTICE & HEARING

Back 57

Welfare Benefits
Termination of Parents Right to Custody
Social Security Disability Benefits (only a post termination hearing)

Front 58

CONTRACTS CLAUSE (Article I, Section 10)

Back 58

no state shall impair the obligations of contracts (applies only to state and local governments)
1. Of already existing contracts
2. May interfere if intermediate scrutiny is met
3. State or local interference with government contracts must meet strict scrutiny

Front 59

When Congress discriminates against aliens, only rational basis test is applied as to...

Back 59

Voting, Serving on a jury, Being a police officer, Teacher, or Probationary Officer.

Front 60

SPEECH
CONTENT BASED RESTRICTIONS

Back 60

Generally must meet strict scrutiny.
'Content Based'may be found on its face, subject matter restriction (application of the law depends on the topic of the message), viewpoint restriction (application of the law depends on the ideology of the speech).