Con Law Speed

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Con Law Speed
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  1. Source of Power: the Judicial Branch
    Federal courts - Article III
  2. The 11th Amendment
    • You can't sue a state in state or federal court for money damages unless (1) the state consents or (2) the federal government permits (unambiguous).
    • Protects state agencies, not local government.
  3. Suing state/federal agencies
    You can sue a state officer and seek damages from the officer personally.    
  4. Injunctive relief vs. State
    You can always seek injunctive relief by enjoining the appropriate state offer.
  5. Original Jurisdiction for the Court
    Disputes between states
  6. Review of State Supreme Court Decisions
    When decided on a constitutional matter or federal statute.
  7. Adequate and Independent State Grounds
    • No SCOTUS review of cases decided by highest state court when -
    • Adequate - state ground controls the decision, not the federal ground
    • Independent - decision does not depend upon interpretation of federal law. In state law follows federal law, then no independent grounds.
  8. AISG ambiguity
    If ambiguous, remanded to state court for their determination.
  9. Standing to Sue in Court (basic three)
    Injury, causation and redressability.
  10. Injury
    • Must be concrete, not abstract.
    • Need not be economic, but can't be an ideological objection.
  11. Organizational standing
    Organization has organizational standing when its members have standing.
  12. Causation
    The defendant’s acts or omissions must have caused the injury.
  13. Redressability
    • The court must be able to remedy the injury.
    • If in the past, damages. If future injury threated, then injunction.
    • Past injury does not give rise to standing for future injury – must prove it will happen again.
  14. Taxpayer Standing
    • Federal taxpayers can contest their own tax liability, but cannot challenge government expenditures.
    • Narrow exception for establishment of religion challenge to specific congressional appropriation.
  15. Third Party Standing
    Generally, no standing except for parties to an exchange or transaction who raise the rights of the other side of the transaction.
  16. Timeliness
    A case is not ripe for adjudication unless there is actual harm or the immediate threat of harm, except for controversies capable of repetition which evade review (abortions).
  17. Advisory Opinions
    The court may not issue an opinion ruling on constitutionality of pending legislation.
  18. Political Questions
    Courts will not decide these non-justiciable cases because there are no manageable standards for judicial decision-making.
  19. Congress: Commerce Clause
    • Congress can regulate:
    • i. The channels of interstate commerce
    • ii. The instrumentalities of interstate commerce
    • iii. Intra/interstate activity that has a substantial effect (judged in the aggregate) on interstate commerce.
    • iv. For non-commercial, non-economic non-commercial activity can be regulated by Congress only if it can demonstrate substantial effect on interest commerce.
  20. Taxing power
    • Whenever Congress imposes a tax, even if the tax is meant to prohibit good/activity in question.
    • Must be rationally related to raising the revenue.
  21. Spending power
    • Any time Congress spends for the general welfare.
    • This power can be used to accomplish things that it could not do by direct regulation under Commerce Clause.
  22. Anti-Comandeering Clause
    • Cannot force states to adopt or enforce regulatory programs, and it cannot commandeer state and local officers to carry out federal programs.
    • It may induce states through Spending power.
  23. War and Defense Power
    • Congress has the power to declare war and the power to maintain the Army, Navy & Air Force.
    • It has the power to provide for military discipline of members of the US armed forces, enemy combatants and enemy civilians, but it cannot provide for military trial of US civilians.
  24. 13th Amendment
    Broad power to legislate against public or private discrimination.
  25. 14th Amendment
    • Power to remedy violations of individual rights by the government when these rights have been defined by courts.
    • Legislation must have congruence and proportionality – reasonable fit – between remedial law passed by Congress and constitutional right proclaimed by SCOTUS.
  26. 15th Amendment
    No discrimination in voting process.
  27. Constitutional rights determined by SCOTUS
    • Legislature cannot overturn or impinge upon.
    • Must pass constitutional amendment.
  28. Executive Power: Domestic Affairs
    • President has the power to enforce the law, not to make it or break it.
    • Power is at its ebb when authorized by statute.
  29. Executive Power: Military
    • President is the Commander In Chief of the armed forces and has control over military decisions.
    • Congress has right to declare war.
  30. Executive Power: Treaties
    • Negotiated by president with a foreign country, but require 2/3 vote of the Senate.
    • Once approved, same authority as statutes.
  31. Self-executing treaties
    • A treaty which is judicially enforceable upon ratification.
    • Treaties which do not self-execute only becomes judicially enforceable by act of Congress.
  32. Executive Agreements
    • Presidential negotiations not submitted for approval by the Senate.
    • Can be authorized, precluded, or overridden by federal statute, but will take precedence over conflicting state laws.
    • Not binding like a treaty.
  33. Impeachment
    • All executive officers after an accusation of high crimes or misdemeanors.
    • Majority vote in HR to bring trial.
    • Senate tries the case, requiring 2/3 vote of the Senate.
    • Remedy is removal from office, but no other penalty.
  34. Impoundment
    If a statute says unambiguously that funds must be spent, the President must spend the money.
  35. Legislative vetoes
    VIOLATE BICAMERALISM & PRESENTMENT REQUIREMENT
  36. Line item vetoes
    VIOLATE BICAMERALISM & PRESENTMENT REQUIREMENT
  37. Executive Immunity
    • Absolute immunity for official acts
    • No immunity for act prior to taking office.
  38. Executive Privilege
    • Not to reveal confidential communications with his advisers.
    • Can be outweighed by a specifically demonstrated need in a criminal prosecution.
  39. Judicial Immunity
    Judges have absolute immunity for all judicial acts, but may be liable for non-judicial roles.
  40. Federal legislators immunity
    Protected by the Speech and Debate Clause, where senators, congressmen and their aides cannot be prosecuted or punished in relation to their official acts.
  41. Direct state regulation/taxation.
    Federal government immune
  42. Federal Regulation of States
    • States are not immune from direct federal regulations
    • State law cannot shield state officers from federal liability.
  43. Comity Clause – Privileges and Immunities of State Citizenship
    • Forbids serious discrimination against out of state individuals.
    • Non-serious discrimination like hunting licenses does not violate.
  44. Requirements of Residency in Employment
    • Private - violates Comity Clause.
    • Public - may be permissible.
  45. Dormant Commerce Clause
    • If no federal regulation, state regulation of commerce is permissible provided that:
    • (1) no discrimination against out of state interests,
    • (2) regulation does not unduly burden interstate commerce, and
    • (3) regulation does not apply to wholly extraterritorial activity.
    • Protects individuals and business entities.
  46. State as market participant
    • Buying or selling goods or services
    • Does not violate dormant commerce clause
  47. State subsidies
    • A state can always choose to subsidize only its own citizens
    • Does not violate dormant commerce clause
  48. Federal approval of state action and the Dormant Commerce Clause
    Dormant commerce clause only when federal government has not spoken.
  49. Unduly burden interstate commerce
    • A balancing test.
    • Only when it is outrageously costly relative to the benefits of the regulation is a non-discriminatory law struck down.
  50. Wholly extraterritorial activity
    A state cannot regulate conduct occurring wholly beyond its borders.
  51. State taxation of interstate commerce
    • Discriminatory taxation will be struck down unless Congress consents.
    • Non-discriminatory taxation upheld unless unduly burdensome – valid when (1) substantial nexus between taxing state and property/activity to be taxed, and (2) fair apportionment of tax liability among states.
  52. Federal preemption of state laws
    • Must be incompatibility or conflict for federal law to preempt state law.
    • Complete preemption in a field due to federal law.
  53. Interstate compacts
    • Agreements amongst states.
    • Enforceable, but if the compact affects federal rights, Congress must approve.
  54. Full Faith and Credit
    Rendering court had proper jurisdiction to render the judgment.
  55. State Action
    Any government action, whether state or local.
  56. Private Discrimination
    • Government cannot be significantly involved in private discrimination such as:
    • (1) facilitating private discrimination,
    • (2) profiting from private discrimination or
    • (3) enforce private agreement to discriminate.
    • Government is not required to prevent private discrimination.
  57. Strict Scrutiny
    • Suspect classifications and fundamental rights.
    • (1) necessary for a compelling government interest and (2) narrowly tailored in furtherance of that interest.
    • Government bears the burden of proof.
  58. Intermediate Scrutiny
    • Intermediate scrutiny applies to legitimacy and gender-based discrimination.
    • (1) Substantially related to (2) an important government interest.
    • Burden of proof generally on challenger.
  59. Rational Basis Scrutiny
    • Rational basis for most statutes (residual).
    • (1) rationally related (2) to legitimate government interest.
    • Burden of proof on challenger.
  60. Procedural Due Process Trigger
    This is triggered when life, liberty, property taken without due process of law. 
  61. Property Interest and Due Process
    • Property interest in his government job or benefit when he has a legitimate entitlement to continued enjoyment of job or benefit.
    • Mere expectation of continued employment will not suffice.
  62. Government benefits
    Entitlements and thus property, and afforded pre-deprivation due process.
  63. What process is accorded?
    Courts balance three factors – (1) interest at stake, (2) value of the procedure, and (3) government’s interest in efficiency and cost.
  64. Timing of hearings
    • Sometimes, hearings must occur before deprivation.
    • Other times, the hearing can occur after the action so long as the hearing is prompt and fair.
  65. Firing of Public Employees
    Public employees who can be fired only for cause must be given some opportunity to be heard prior to discharge unless there is a significant reason not to keep the employee on the job (then hearing must be prompt/fair).
  66. Substantive Due Process
    • Substantive due process is the basis on which a party may challenge a law when a right is denied to everyone. 
    • Implicated when a law affects a fundamental right.
  67. Right of interstate travel and settlement
    • Fundamental right
    • Reasonable residency restrictions for political participation and government benefits.
    • Generally 30-60 days
    • One year impermissible except for college education and jurisdiction to divorce.
  68. Voting
    • A fundamental right to all citizens age 18 and older.
    • Short-term residency requirements permitted.
  69. Who Controls Residency Requirements for Federal Elections
    Congress controls residency requirements for federal elections; the state controls residency requirements for all other elections.
  70. Right for marriage
    Fundamental, although state can limit marriage based upon age or consanguinity. 
  71. Contraception
    Fundamental right for anyone to purchase birth control, regardless of marital status. 
  72. Sexual intimacy
    • Not a fundamental right.
    • No legitimate state interest in regulating non-commercial sexual intimacy between consenting adults of any gender. 
  73. Abortion
    • Not a fundamental right.
    • No undue burden on a woman’s right to terminate her pregnancy prior to the viability of the fetus, except to preserve life/health of the mother.
  74. Abortion - Informed consent
    Allowed.
  75. Abortion - 24 hour waiting periods
    allowed.
  76. Abortion - Parental notification requirements
    allowed.
  77. Abortion - Parental consent requirements
    Disallowed.
  78. Abortion - Spousal notification and consent requirements
    Disallowed.
  79. Parental rights
    • Fundamental right to raise children as parents see fit, including choice of religious or private school.
    • Right may be lost due to abandonment, abuse or neglect. 
  80. Obscene material
    • Fundamental right to read obscene material in privacy of one’s own home, but not to purchase, sell, import or distribute.
    • Child pornography is not protected. 
  81. Refusal of medical treatment
    Liberty interest in refusing medical treatment. No right to commit suicide.
  82. Equal Protection Clause (Basics)
    • Equal protection is invoked when a law denies a fundamental right to some persons.
    • 5th amendment applies to acts of the federal government.
    • 14th amendment applies to localities and states.
  83. Alienage and Equal protection
    • Suspect classification except for:
    • (1) Congress’ plenary power over citizenship and naturalization,
    • (2) federal classifications on US citizenship,
    • (3) state/local jobs which have particular relevance to the role of government,
    • (4) state/local citizenship for government positions and
    • (5) law enforcement officer/public school teacher.
    • States and localities cannot require US citizenship for access to private employment or for government benefit.
  84. Age discrimination in employment
    Barred by statute but not by the Constitution – rational basis.
  85. Wealth
    Not a suspect or quasi-suspect classification. Governmental must waive fees for indigents when charging fees which would deny a fundamental right (divorce, transcripts for criminal trials, transcript for appeal of determination of parental rights).
  86. Bankruptcy
    Not a fundamental right.
  87. One person, one vote
    • Requirement for districts of approximately equal size whenever elections are based upon district.
    • Special purpose governments may have a franchise based upon the special purpose.
  88. Gerrymandering
    • Racial gerrymandering is unconstitutional
    • Permitted under the Voting Rights Act when race cannot be the predominant or only factor.
    • Political gerrymandering is a political question.
  89. Race
    Race, ethnicity, national original distinctions trigger strict scrutiny and are generally struck down.
  90. Discriminatory purpose
    • Required
    • Explicit, proven by history discriminatory application or extrinsic evidence about intent of persons who passed the law.
  91. Disproportionate impact.
    Insufficient
  92. Affirmative Action
    • A racial classification which seeks to benefit a racial or ethnic minority.
    • Subject to strict scrutiny.
  93. Correction of past discrimination
    Affirmative action is valid when it specifically corrects past discrimination by a specific department or agency now engaged in affirmative action – it cannot be general societal discrimination.
  94. Takings Clause
    Private property may not be taken for public use without just compensation. 
  95. Taken
    • Transfer of property from private owner to government.
    • Any physical occupation, however slight, constitutes a taking.
  96. Public use
    • Any use rationally related to a conceivable public purpose.
    • Can be taken to resell to a private developer.
  97. Regulatory takings
    A regulatory taking occurs when occurs when (1) regulation leaves no economically viable use for the property, or (2) physical occupation.
  98. Development permits conditioned on developer concessions
    Constitutional when proportionate to offset the adverse impact of the development.
  99. Bill of attainder
    Legislative punishment imposed without judicial trial – unconstitutional.
  100. Ex Post Facto Laws
    Unconstitutional to expand criminal liability by (1) creating a new crime after the fact or (2) increasing penalties for past conduct.
  101. Contracts Clause
    Bars states from legislative impairment of existing contracts unless overriding need.

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