Con Law - Short Rules
Card Set Information
Con Law - Short Rules
Con Law Short Rules
Con Law - Short Rules
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.
: 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)
: 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]
: 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?
Generally unconstitutional, unless it is the ONLY way to preserve a fair trial.
: 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.
3) leaves open other adequate alternative places for communication
: govt limits the forum only to some subjects
: govt constitutionally permitted to close to speech
1) viewpoint neutral
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?
: Necessary to acheive a CGI
: Substantially related to acheive a LGI
: 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?
1) economic regulations
2) social regulations
SDP - strict scrutiny applies to?
Fundamental rights, including
1) interstate travel
SDP - privacy rights?
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
: 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