Constitutional Law

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Constitutional Law
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2012-06-07 16:48:27
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  1. Case or Controversy Clause
    Distinguishes between lawsuits within and beyond the institutional competence of the federal judiciary, and extends the judicial power only to lawsuits that the court is competent to hear. For example, the Court has determined that this clause prohibits the issuance of advisory opinions and the adjudication of claims in which the plaintiff does suffer injury in fact that is both fairly traceable to the defendant and redressable by the courts.
  2. Standing
    The issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
  3. Injury
    The plaintiff must allege and prove that he or she has been injured or imminently will be injured.

    • Personally suffered
    • Injunctive or declaratory relief -- must show likelihood of future harm
  4. What injury must be shown in order to get injunctive or declaratory relief?
    Likelihood of future harm.
  5. Causation and Redressability
    The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury.
  6. Can a third party have standing?
    Generally, no.

    • Exceptions:
    • 1) Close relationship between the plaintiff and the injured party
    • 2) The injured party is unlikely to be able to assert his or her own rights
    • 3) An organization may sue for its members, if:
    • a) the members would have standing to sue
    • b) the interests are germane to the organization's purpose
    • c) neither the claim nor relief requires participation of individual members

    • NOTE: Cannot sue solely as a "taxpayer" or "citizen."
    • EXCEPTION: Enforcing the Establishment Clause -- needs to be pursuant to federal statute; only $$, not property
  7. When is there third-party standing?
    • Close relationship between the plaintiff and the injured party
    • The injured party is unlikely to be able to assert his or her own rights
    • An organization may sue for its members, if a) the members would have standing to sue; b) the interests are germane to the organization's purposes; and c) neither the claim nor relief requires participation of individual members
    • A party can sue as a "taxpayer" or "citizen" only when bringing a suit pursuant to a federal statute to enforce the Establishment Clause (and then can only get $$, not property)
  8. When can a plaintiff bring suit as a "taxpayer" or "citizen"?
    Only when enforcing the Establishment clause, but it must be pursuant to a federal statuate and the paintiff can only get $$, not property.
  9. Ripeness
    Whether a federal court may grant pre-enforcement review of a statute or regulation.
  10. What are the elements of ripeness?
    • The hardship that will be suffered without pre-enforcement review
    • The fitness of the issues and the record for judicial review
  11. Mootness
    If events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot.

    • EXCEPTIONS:
    • 1) Wrong capable of repetition but evading review
    • 2) Voluntary cessation
    • 3) Class action suits where named plaintiff is moot but members of the class are not
  12. What are exceptions to the rule that if events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot?
    • Wrong capable of repetition but evading review
    • Voluntary cessation
    • Class action suits wherenamed plaintiff is moot but members of the class are not
  13. Political question doctrine
    Constitutional violations that the federal courts will not adjudicate.

    • 1. The "republican form of government clause"
    • 2. Challenges to the President's conduct of foreign policy
    • 3. Challenges to the impeachment and removal process
    • 4. Challenges to partisan gerrymandering
  14. How do cases get to the Supreme Court for review?
    • Writ of certiorari
    • Appeals from decisions of three-judge federal district courts
    • Suits between state governments
  15. What is required for the Supreme Court to issue a writ of certiorari?
    • Generally needs to have been a final judgment
    • State case -- cannot have an independent and adequate state law ground of decision
  16. Sovereign immunity
    Fedreal courts (and state courts) may not hear suits against state governments.

    • EXCEPTIONS:
    • 1. Waiver
    • 2. Federal laws adopted under Section 5 of the Fourteenth Amendment
    • 3. Federal government may sue state governments
    • 4. Bankruptcy proceedings

    • NOTE: Suit against state officers are allowed
    • --State officers may be sued for injunctive relief or for money damages to be paid out of their own pockets.
  17. Are suits against state officers barred by sovereign immunity?
    No, they are allowed. State officers may be sued for injunctive relief or for money damages to be paid out of their own pockets.
  18. When can federal courts hear suits against state governments?
    • Waiver
    • Federal laws adopted under Section 5 of the Fourteenth Amendment
    • Federal government may sue state governments
    • Bankruptcy proceedings
  19. Abstention
    Federal courts may not enjoin pending state court proceedings.
  20. Where does Congress derive its authority to act?
    • Necessary and proper clause
    • Taxing/spending power
    • Commerce Clause
  21. Necessary and Proper clause
    Gives Congress any means not prohibited by the Constitution to carry out its authority
  22. Taxing/spending power
    Congress may tax and spend for the genreal welfare
  23. Commerce Power
    • Channels
    • Instrumentalities
    • Substantial effect on interstate commerce -- a) Economic activity can be cumulative -- b) Non-economic activity - can't be cumulative
  24. Can Congress regulate activity under the Commerce Clause because of its substantial effect on interstate commerce?
    Yes.

    • Economic activity -- can be cumulative.
    • Non-economic activity -- cannot be cumulative.
  25. Does Congress have general police power?
    No.

    • EXCEPTIONS:
    • 1) Legislating for military
    • 2) Legislating for Indian reservations
    • 3) Federal land and territories
    • 4) District of Columbia
  26. Where does Congress have police power?
    • Legislating for military
    • Legislating for Indian reservations
    • Federal land and territories
    • District of Columbia
  27. What constitutional provisions limit Congress's powers?
    • Tenth Amendment -- all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people (Congress cannot compel state regulatory or legislative action)
    • Section 5 -- Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violation of rights recognized by the courts. Such laws must be proportionate and congruent.
  28. Tenth Amendment
    All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

    Congress cannot compel state regulatory or legislative action.
  29. Section 5
    Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violation of rights recognized by the courts.

    Such laws must be proportionate and congruent.
  30. Delegation of powers
    • No limits on Congress on delegating its own powers
    • May not delegate executive power to itself or its officers
    • Legislative vetoes and line item vetoes are unconstitutional
  31. Treaties
    Agreements between the United States and a foreign country that are negotiated by the President and are effective when ratified by the Senate
  32. Which laws to treaties prevail over?
    • Prevail over conflicting state laws
    • If conflicting with federal statute, the one adopted last in time controls
    • If conflicting with Constitution, invalid
  33. Executive agreements
    Agreements between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation. Can be used for any purpose.
  34. Which laws do executive agreements prevail over?
    • Prevail over conflicting state laws
    • Never prevail over federal laws or the Constitution
  35. Commander-in-Chief
    The President has broad powers as Commander-in-Chief to use American troops in foreign countries.
  36. Which positions can the President appoint?
    The President appoints ambassadors, federal judges, and officers of the United States.
  37. Who appoints inferior officers?
    Congress may invest the appointment of inferior officers in the President, the heads of departments or the lower federal courts.
  38. Can Congress give itself or its officers the appointment power?
    No.
  39. Can the president remove any executive branch office?
    Yes, unless limited by statute. To limit removal it must be an office where independence from the President is desirable, and Congress cannot prohibit removal, but can only limit removal to where there is good cause.
  40. Who can be impeached and removed and for what crimes?
    The President, Vice President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors.

    NOTE: Impeachment does not remove a preson from office.
  41. Does impeachemnt remove a person from office?
    No.
  42. What vote is required for impeachment or removal?
    Impeachment requires a majority vote in the House of Representatives; conviction in the Senate requires a 2/3 vote.
  43. Can the President be sued civilly for money damages for actions taken while in office?
    No, the President has absolute immunity to civil suits for money damages for actions taken while in office.
  44. Executive privilege
    Protects presidential papers and conversations.

    Privilege yields to other important government interests.
  45. Is the executive privilege absolute?
    No, it yields to other important government interests.
  46. Can the President pardon those accused or convicted of federal crimes?
    Yes.

    EXCEPTION: President was successfully impeahed for crime he wants to be pardoned for.
  47. Preemption
    The Supremacy Clause provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

    There is express preemption and implied preemption.

    States may not tax or regulate federal government activity.
  48. Implied preemption
    • Federal and state laws are mutually exclusive
    • State law impedes the achievement of a federal objective
    • Congress evidences a clear intent to preempt state law
  49. Can states tax or regulate federal government activity?
    No.
  50. Dormant Commerce Clause
    A state or local law is unconstitutional if it places an undue burden on interstate commerce.
  51. When does a law violate the dormant commerce clause if it does not discriminate against out-of-staters?
    A law burdens interstate commerce under the dormant commerce clause if its burdens exceed its benefits.
  52. When does a law violate the dormant commerce clause if it discriminates against out-of-staters?
    If it is not necessary to achieve an important government purpose.

    • EXCEPTIONS:
    • 1) Congressional approval
    • 2) The market participant exception -- a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing wiht government-owned businesses
  53. Market participant exception to the dormant commerce clause
    A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.
  54. Privileges and immunities clause
    No state may deny citizens of other states the privileges and immunities it gives its own.

    • Elements:
    • 1) The law must discriminate against out-of-staters
    • 2) The discrimination must be with regard to civil liberties or important economic activities
    • 3) Corporations and aliens cannot use the privileges and immunities clause
    • 4) The discrimination must be necessary to achieve an important government purpose.
  55. When does a law violate the privilieges and immunities clause?
    • The law must discriminate against out-of-staters
    • The discrimination must be with regard to civil liberties or important economic activities
    • Corporations and aliens cannot use the privileges and immunities clause
    • The discrimination is not necessary to achieve an important government purpose
  56. What right does the privilieges or immunities clause of the Fourteenth Amendment protect?
    The right to travel.
  57. State taxation of interstate commerce
    • States may not use their tax systems to help in-state businesses
    • A state may only tax activities if there is a substantial nexus to the state
    • State taxation of interstate businesses must be fairly apportioned
  58. Courts in one state must give full faith and credit to judgments of courts in another state so long as:
    • The court that rendered the judgment had jurisdiction over the parties and the subject matter
    • The judgment was on the merits
    • The judgment is final
  59. When does the Constitution apply to non-government conduct?
    • The Thirteenth Amendment prohibits private race discrimination
    • Congress can use commerce power to apply constitutional norms to private conduct
    • The "public function" exception -- the Constitution applies if a private entity is performing a task traditionally, exclusively done by the government
    • The "entanglement" exception -- the Constitution applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity
  60. What are some examples of the "entanglement" exception to the rule that the Constitution applies to solely government conduct?
    • Courts cannot enforce racially restrictive covenants
    • The government leases premises to a restaurant that racially discriminates
    • A state provides books to schools that racially discriminate
  61. Is the Bill of Rights incorporated into the Fourteenth Amendment to apply to states?
    Generally, yes.

    • EXCEPTIONS:
    • 1) The Third Amendment right to not have a soldier quartered in a person's home
    • 2) The Fifth Amendment right to a grand jury indictment in criminal cases
    • 3) The Seventh Amendment right to a jury trial in civil cases
    • 4) The Eighth Amendment right against excessive fines
  62. Which provisions of the Bill of Rights have not been incorporated into the Fourteenth Amendment and do not apply to the states?
    • Third Amendment right to not have a soldier quartered in a person's home
    • Fifth Amendment right to grand jury indictment in criminal cases
    • Seventh Amendment right to a jury trial in civil cases
    • Eighth Amendment right against excessive fines
  63. What are the levels of scrutiny?
    • Rational basis (rationally related to a legitimate government purpose)
    • Intermediate scrutiny (substantially related to an important government interest)
    • Strict scrutiny (necessary (least restrictive alternative) to achieve a compelling government interest)
  64. Rational basis review
    Rationally related to a legitimate government purpose.
  65. Intermediate scrutiny
    Substantially related to an important government interest.
  66. Strict scrutiny
    Necessary (least restrictive alternative) to achieve a compelling government interest.
  67. Proceedural due process
    The proceedures that govern when government takes away life, liberty and property.
  68. Deprivation of liberty (proceedural due process)
    There is the loss of a significant freedom provided by the Constitution or a statute.

    Harm to reputation itself is not a deprivation of liberty.
  69. Deprivation of property (proceedural due process)
    There is an entitlement and that entitlement is not fulfilled.

    (Entitlement -- reasonable expectation to continue receipt of a benefit.)

    Needs to be intentional or reckless. In an emergency behavior must "shock the conscience."

    Procedures test (the importance of the interest to the individual; the ability of additional procedures to increase the accuracy of the fact-finding; the government's interest)
  70. Entitlement
    Reasonable expectation to continue receipt of a benefit.
  71. What factors must be weighed under the procedural due process test for deprivation of property?
    • The importance of the interest to the individual
    • The ability of additional procedures to increase the accuracy of the fact-finding
    • The government's interest
  72. What are some examples of procedural due process concerns involving the deprivation of property?
    • Welfare benefits -- notice and hearing
    • S.S.D. -- a post-termination hearing
    • Student public school -- notice and opportunity to explain (corporal punishment in school doesn't need any procedure)
    • Parental custody - notice and hearing
    • Punitive damages - instructions to jury and judicial review (grossly excessive punitive damages violate due process)
    • American Citizen Enemy Combatant -- must be given due process
    • Nonexigent circumstances prejudgment attachment or government seizure of property -- notice and hearing
  73. Substantive due process
    Whether government has an adequate reason for taking life, liberty, or property.
  74. What standard of review is used for deprivation of economic liberties in violation of substantive due process?
    Rational basis.
  75. The Takings Clause
    Government may take private property for public use if it provides just compensation.
  76. What are the types of "takings" under the Takings Clause?
    • Possessory taking -- Government confiscation or physical occupation of property is a taking
    • Regulatory taking -- Government regulation is a taking if it leaves no reasonable economically viable use of the property
    • Public use -- Government acts out of reasonable belief that the taking will benefit the public
  77. How do you measure "just compensation" under the takings clause?
    Just compensation is measured in terms of the loss to the owner in reasonable market terms.
  78. How does substantive due process affect government conditions on development of property under the Takings Clause?
    Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed.
  79. The Contracts Clause
    No state shall impair the obligations of contracts.
  80. What is the standard of review under the contracts clause?
    Reasonably and narrowly tailored means of promoting an important and legitimate public interest.

    Does the law substantially impair a party's rights?

    NOTE: Government contracts must meet strict scurtiny.
  81. What is the standard of review for government contracts under the contracts clause?
    Strict scrutiny.
  82. Laws affecting which rights are subject to strict scrutiny?
    • The right to marry
    • The right to procreate
    • The right to custody of one's children
    • The right to keep the family together
    • The right to control the upbringing of one's children
    • The right to purchase and use contraceptives
    • The right to abortion (prior to viability - states may not create an undue burden) (after viability - states may prohibit abortions unless necessary to protect the woman's life or health)
    • Private consensual homosexual activity
    • The right to refuse medical treatment (but there is no right to physician-assisted suicide)
  83. Laws affecting the right to bear arms are subject to what level of scrutiny?
    Don't know what level of scrutiny.
  84. Right to travel
    • Can ether use Substantive Due Process or Privileges and Immunities Clause
    • Durational residence requirements can be for 50 days maximum
    • One-person one-vote must be met for all state and local elections -- for any elected body all districts must be about equally apportioned
  85. Equal Protection
    Whether the government's differences in the treatment of people are adequately justified.
  86. What types of laws face strict scrutiny under the equal protection doctrine?
    • National origin
    • Race
    • Alienage (usually)
  87. Laws affecting race under the equal protection doctrine
    • Facially unconstitutional - law specifically references race
    • Facially neutral - discriminatory impact and discriminatory intent
    • Universities - factored approach
    • Public school systems - may not use race
  88. Which laws are facially unconstitutional under the equal protection doctrine?
    Those specifically referencing race.
  89. When does a facially neutral law violate the equal protection clause?
    • Discriminatory impact, and
    • Discriminatory intent
  90. What types of laws face intermediate scrutiny under the equal protection doctrine?
    • Gender
    • Alienage (discrimination against undocumented alien children)
    • Legitimacy
  91. What types of laws face rational basis review under the equal protection doctrine?
    • Alienage (dealing wiht self-government and the democratic process, or congressional discrimination)
    • Age
    • Disability
    • Wealth
    • Economic regulations
    • Sexual orientation
  92. Vagueness (First Amendment)
    A reasonable person cannot tell what speech is protected and what is allowed.
  93. Overbreadth (First Amendment)
    Regulates substantially more speech than the constitution allows to be regulated.
  94. Laws affecting what type of speech is subject to strict scrutiny under the First Amendment?
    • Content based (subject matter; viewpoint restrictions)
    • Prior restraints (court orders suppressing speech must meet strict scrutiny; licenses -- important reason; clear criteria leaving almost no discretion, and procedural safeguards (i.e., prompt determination and vailability of judicial review))
  95. Content-based free speech regulations are subject to which level of review?
    Strict scrutiny.
  96. Content-neutral free speech regulations are subject to which level of review?
    Intermediate.
  97. When can conduct as speech be regulated?
    • The law is unrelated to suppression of the message
    • The impact on communication is no greater than necessary to achieve the government's purpose
  98. What speech is unprotected by the First Amendment?
    • Chaplinsky fighting words
    • Brandenburg incitement (substantial likelihood; imminent illegal activity; speech is directed to causing the imminent illegality)
    • Obscenity (appeals to the prurient interest; patently offensive under the law prohibiting obscenity; lacking serious redeeming artistic, literary, political, or scientific value)
    • Child pornography (completely banned)
    • Government employee on the job in performance of their job
  99. What is obscenity?
    • Appeals to the prurient interest
    • Patently offensive under the law prohibiting obscenity
    • Lacking serious redeeming artistic, literary, political, or scientific value
  100. Is profane and indecent speech protected by the First Amendment?
    Generally, except over the broadcast media and in school.
  101. How is commercial speech regulated under the First Amendment?
    • Advertising for illegal activity, and false and deceptive ads are not protected
    • Speech that inherently risks deception can be prohibited
    • Generally intermediate scrutiny
  102. Defamation
    • Public person = falsity and actual malice
    • Private figure and the matter is of public concern = falsity and negligence
    • Private figure and not matter of public concern = no need for malice, can collect punitive damages
  103. Can the government create liability for truthful reporting that was lawfully obtained or obtained from someone who obtained it illegally?
    No. The right to privacy is only implicated if the truthful reporting was unlawfully obtained.
  104. Public forums
    Government properties that the government is constitutionally required to make available for speech.

    Reasonable time, place or manner regulation. (Serves an important government purpose and leaves open adequate alternative places for communication.)
  105. Designated public forums
    Government properties that the government could close to speech but chooses to open to speech.

    Reasonable time, place or manner regulation. (Serves an important government purpose and leaves open adequate alternative places for communication.)
  106. Limited public forums
    Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.

    Regulation must be reasonable and viewpoint neutral.
  107. Non-public forums
    Government properties that the government constitutionally can and does close to speech.

    Regulation must be reasonable and viewpoint neutral.
  108. What level of scrutiny is applied to laws that prohibit or punish group membership under the First Amendment right to freedom of association?
    Strict scrutiny.
  109. What is required for someone to be punished for membership in a group?
    • Actively affiliated with the group;
    • Knowing of its illegal activities; and
    • With the specific intent of furthering those illegal activities.
  110. When are laws prohobiting a group from discriminating unconstitutional under the First Amendment right to freedom of association?
    Laws prohibiting a group from discrimination are constitutional unless they interfere with intimtae association or expressive activity.
  111. Can the "free exercise" clause be used to challenge a neutral law of general applicability?
    No.
  112. What is the Lemon test to determine if a law is constitutional under the Establishment clause?
    • Secular purpose
    • Effect neither advances nor inhibits religion
    • No excessive entangelment with religion

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