Con Law - Short Rules
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- Preisdent can issue executive orders, pursuant to his Chief Executive Powers.
- Executive orders are subject to the following test:
- 1) express or implied approval of Congress, Prez's authority is at its maximum, likely valid
- 2) Congress is silent, likely upheld, unless the act usurps the powers of another branch
- 3) against Congress' express will, little authority and likely invalid [must pass contrary legislation]
President's Military Powers?
- President has extensive military powers, including the power to act over domestic affairs involving military necessities.
- I.e., can protect the nation against terrorism.
- Powers not expressly given to the US, are given to the states, unless expressly prohibited, and then given to the people.
- Anti-commandeering principle: Congress cannot require states to regulate their own citizens.
- Before Plaintiff can sue in federal court, she must show standing.
- In order to show standing, P must show sufficient stake in the controversy:
- 1) personal injury
- 2) caused by D
- 3) capable of remedy by the court
Can P sue a state govt?
- 11th Am prohibits federal court from hearing a claim by a party against a state govt.
- 1) does not apply to local govts
- 2) does not apply to state officers
- State action exists where
- 1) state is providing a public function, or there is significant state involvement.
Dormant Commerce Clause - What can states regulate?
- States may regulate activities that are purely local [based on their police power].
- However, states may not impose an unreasonable burden on IC.
To be valid, under DCC, state may not:
- 1) discriminate against out-of-staters to benefit locals and
- 2) must not be unduly burdensome on IC
If the law does NOT discriminate against out of staters:
- violates DCC unless:
- 1) burdens exceed its benefits.
If the law discriminates against out of staters:
- violates DCC unless:
- 1) necessary to acheive an IGI (no less discriminatory alternative available)
- 2) Market Participant (state is acting like a business or customer, rather than a regulator)
- 3) Congressional Approval
- If any of these exceptions, state is free to favor its in-state residents.
Privileges & Immunities - Article IV
- P&I prevents a state from discriminating against citizens of another state regarding fundamental rights:
- 1) civil liberties
- 2) *important economic interests*: pursuit of livelihood
- If discriminates, must be necessary to acheive an IGI (no less discriminatory alternative available)
- Note: Does not apply to corporations!!
- Prevents state from impairing existing contracts
- Private contract can be modified if the law is a IGI, and narrowly tailored
A law must give a reasonable person notice of what is prohibited. Otherwise chilling effect might occur.
A law is overbroad if it regulates both protected and unprotected speech.
- A regulation cannot give officials broad, unfettered discretion over speech issues.
- There must be defined/consistent standards for applying the law.
- A prior restraint enjoins speech before it is made. Generally disfavored by the courts.
- Content-based prior restraint: SS applies [special society harm]
- Must be: narrowly drawn, reasonable and definite in scope
Court orders suppressing speech?
- 1) must meet SS
- 2) procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is bared from later challenging it
A licensing-scheme allowed ONLY if certain procedural safeguards are included
- 1) important reason for licensing
- 2) clear criteria
- 3) almost no discretion for the licensing authority
- 4) prompt determination & judicial review
Judge forbidding the press from attending the trial or publishing details of the testimony at trial?
- Prior restraint.
- Generally unconstitutional, unless it is the ONLY way to preserve a fair trial.
- Other ways: change of venue, screen & sequester jurors.
- 1) imminent illegal activity
- 2) directed to cause the activity
- 1) appeals to the prurient interest [lustful excitement]
- 2) patently offensive [local laws]
- 3) lacks all social value [nationally]
- 1) deceptive, false, illegal actvity - unprotected
- 2) else, IS applies
- Speech related to matter of public concern . . .
- 1) if P is a public figure, then falsity + malice. [CCE standard]
- 2) if P NOT public figure, then falsity + negligence.
- If matter of public concern, malice must be proven to get presumed or punitive damages.
- If not a matter of public concern, malice not required to get presumed or punitive damages.
- Public forum is an area govt is constitutionally required to keep open for speech.
- Designated public forum is an area the govt chooses to open for speech.
- 1) content-neutral
- 2) IS
- 3) leaves open other adequate alternative places for communication
- else, SS
- LPF: govt limits the forum only to some subjects
- NPF: govt constitutionally permitted to close to speech
- 1) viewpoint neutral
- 2) reasonable
- else, SS
- Heightened scrutiny
- 1) IGI
- 2) burden no greater than necessary to acheive purpose
Freedom of Association
- Generally SS if pohibits or punishes a group.
- Can prevent a group from discriminating, unless discrimination is integral to expressive activity
Punish someone for joining an illegal group?
- 1) actively affiliated w/group
- 2) knowing of its illegal activities
- 3) specific intent to further those activities
What is a religion?
- Supreme Court has not defined.
- But has held that the belief must occupy a place in the believer's life parallel to orthodox religious beliefs.
- Does not need to have a supreme being, needed not be traditional or organized religion
Free Exercise Clause
- Govt cannot punish someone on the basis of the person's religion.
- A law of general applicability will not be subject to invalidation even if it incidentally interferes with a religion.
- Law must be motivated by desire to interfere with religion, then SS applies
- Establishment clause prohibits the establishment of religion.
- If facially favors some sect over others, then SS applies.
- If facially does not favor any sect, then Lemon test applies.
- 1) Secular Purpose
- 2) Secular Effect (primary effect that neither advances nor inhibits religion)
- 3) Excess Entanglement (with govt and religion)
Levels of scrutiny?
- SS: Necessary to acheive a CGI
- IS: Substantially related to acheive a LGI
- RB: Rationally related to a LGI
Substantive Due Process
Whether the govt has adequate justification take away someone's rights [economic liberties/privacy]
SDP - rational basis applies to?
- Non-fundamental rights
- 1) economic regulations
- 2) social regulations
SDP - strict scrutiny applies to?
- Fundamental rights, including
- 1) interstate travel
- 2) voting
- 3) privacy
SDP - privacy rights?
- 1) contraception
- 2) marriage
- 3) procreation
- 4) child rearing, regarding choice of private education
- 5) right for a family to stay/live together
SDP - abortion rights?
- 1) pre-viability, OK only if no undue burden
- 2) post-viability, can be prohibited unless woman's health is threatened
Procedural due process
- P must prove that he suffered a deprivation of life, liberty, or property.
- liberty = constitutional freedom
- property = entitlement to a continued receipt of benefit
- *note: must be intentional/reckless govt action
Procedures satisfy PDP?
- 1) importance of interest to individual
- 2) ability of additional procedures to increase the accuracy of fact-finding
- 3) govt's interest
- 1) Govt may take private property
- 2) for public use [reasonable belief]
- 3) if it pays just compensation [market value, loss to owner]
confiscation or physical occupation of property
Deprivation of all economically viable use of property
- 1) Powers that are exclusively federal because of constitutional limitation cannot be exercised by the states.
- 2) Supremacy clause (when both state and fed govts pass legislation on the same subject, Supremacy clause provides that the federal law is supreme, and the conflicting state law void)
- ----a) mutually exclusive
- ----b) Congress intended to occupy the entire field of law
- ----c) state law interferes with Congress' purpose
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