Constitutional Law Flashcards

Flashcards covering key concepts of Constitutional Law to help the student to prepare for their upcoming exam.

11th Amendment

• Prohibits a party from suing

• a state or state agency

• in federal court.

Exceptions to the 11th Amendment

• The state explicitly consents to waive its 11th Amendment protections;

• The suit pertains to federal laws adopted under Section 5 of the 14th Amendment;

• The suit seeks only injunctive relief against a state official for conduct in violation of the constitution or federal law; OR

• The suit seeks money damages from a state official.

When a party has Standing to sue

It exists when the plaintiff:

• 1) Personally suffered an injury in fact;

• 2) The injury was caused by the defendant; AND

• 3) The injury is redressable by a court order.

Third-party standing

NOT permitted, unless there is a close relationship between the plaintiff and 3rd party – if it would be difficult for the 3rd party to assert their rights or if the 3rd party is an organization.

Organizational standing

Standing is found when

• (1) the suit is related to an issue that is germane to the organization’s purpose,

• (2) the members would have standing to sue, and

• (3) the member’s participation is not necessary.

Ripeness

Whether a case is ready to be litigated.

When there is actual harm or an immediate threat of harm to the plaintiff.

Mootness

To instances when the dispute has ended or was resolved before review.

Exception to Mootness

• The wrong alleged is capable of being repeated and escaping review;

• The defendant voluntarily stops an offending practice but can resume it any time;

• OR In a class action.

What Congress may regulate under the Commerce Clause

• 1) The channels of interstate commerce;

• 2) The people and instrumentalities that work and travel in interstate commerce; AND

• 3) Economic or commercial activities that have a substantial effect on interstate commerce.

Valid Congessional Regulation of Insterate Conduct

• 1) If there is a rational basis,

• 2) To conclude that the cumulative national impact of the activities;

• 3) Have a substantial effect ON interstate commerce.

Amendments Congress has the power to enforce (Civil War Amends.)

1. 1) 13th Amendment (abolition of slavery).

2. 2) 14th Amendment (privileges, immunities, due process, equal protection, apportionment of representatives).

3. 3) 15th Amendment (right to vote can’t be denied on race)

Limitation on Congress' Amendment Enforcement Power

Congress CAN only prohibit behavior, Congress CANNOT define constitutional rights or change substantive law.

Taxing and Spending Powers of Congress

• Power to tax and spend for the general welfare.

• These powers are interpreted BROADLY, and

• Allows Congress to attach restrictions or conditions on federal funding in order to regulate areas they would otherwise not have the power to do so.

Requirements of Congress’ Conditions on States receiving Fderal Funds

• 1) Spending must be for the general welfare;

• 2) Condition must be imposed unambiguously;

• 3) Condition must be related to federal interests in national projects or programs;

• 4) Condition cannot induce unconstitutional activities; AND

• 5) Condition cannot be so coercive to turn pressure into compulsion.

Powers of the President

• 1) Faithfully execute the law;

• 2) Appoint ambassadors, public ministers, consuls, supreme/federal court judges, and other officers;

• 3) Appoint inferior officers (when the power is given to him by Congress);

• 4) Remove cabinet level appointees;

• 5) Enter into executive agreements w/o senate approval;

• 6) Pardon federal crimes; AND

• 7) Control troops as Commander in Chief.

Exception to Congress’ Non Delegation Clause

• 1) The powers are delegable under the Constitution; AND

• 2) Congress provides reasonably intelligible standards to guide the delegation.

• Congress CANNOT delegate powers it does not have.

Dormant Commerce Clause

State and local governments CANNOT pass laws that:

• a) Discriminate against out-of-state commerce; OR

• b) Place an undue burden on interstate commerce.

Discrimination Under Dormant Commerce Clause

When it is either:

• a) Facially discriminatory; OR

• b) The law has a discriminatory impact because it favors in-state commerce over out-of-state commerce.

Exceptions to a Discriminatory Laws Under Dormant Commerce Clause

• The burden on Interstate commerce is narrowly tailored to achieve a legitimate,

• non-protectionist state objective; OR

• The state/local gov’t is a “market participant.”

Unduly Burdensome Laws Under Dormant Commerce Clause

• 1) The burden on interstate commerce,

• 2) Is clearly excessive to the putative benefits to the state and local government.

Express Preemption

When federal legislation specifically states that the federal law is exclusive.

Implied Preemption

• a) Direct conflict with the state law;

• b) Through field preemption; OR

• c) When the state law substantially interferes with the objective of the federal law.

Supremecy Clause

Validly enacted federal laws will always preempt conflicting state laws.

State Action from Private Conduct

• a) A traditional public function – powers traditionally and exclusively reserved to the government; OR

• b) When significant government involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional.

Stirct Scrutiny and Applicable Rights

• The law is necessary to serve a compelling government interest.

• Government’s Burden

• Rights include: right to vote, right to interstate travel, and right to privacy.

Rational Basis Standard

The law is rationally related to a legitimate government interest.

Challengers Burden

Deprivation of Liberty

When the government deprives an individual of a freedom provided by the Constitution or statute.

Deprivation of Property

When an individual has an entitlement that is not fulfilled (i.e. welfare or security benefits).

Due Process Clause

The Due Process Clause guarantees that no person shall be denied life, liberty, or property without due process of the law.

Fed: 5th Amend. (Equal Protection)

State: 14th Amend.

Due Process Factors (Mathews v. Eldridge)

• 1) The importance of the private interests being affected;

• 2) The risk of error under current procedures and the value of additional procedures; AND

• 3) The importance of state interests and the burdens on the government that would arise from additional safeguards.

When courts will apply strict scrutiny

A law with a classification is based on a suspect class (race, origin); OR When the law infringes on a fundamental right for a class of people.

Government burden under Intermediate Scrutiny

The government must show that a classification is substantially related to an important government interest.

When courts will apply intermediate scrutiny

A classification is based on a quasi-suspect class (gender/sex, non-marital children, & most likely sexual orientation/gender identity)

Rational Basis test application

This test applies to ALL other classes not covered under strict or immediate scrutiny (age, disability, undocumented aliens, etc.).

Possessory (per se) takings

When the government physically takes or occupies the property (even just a small portion).

Regulatory takings - Three Categories

• Depriving Owner of All Economically Viable Use – is a per se taking;

• Penn Central Taking;

• Conditions on Approval of a Permit (a.k.a. a Land-Use Exaction)

Penn Central Factors

• 1) The economic interest of the regulation on the claimant;

• 2) The extent of the interference; AND

• 3) The character of the governmental action.

Conditions that DO NOT Constitute an Uncompensated Taking

• There is an essential nexus between the state interest and permit condition; AND

• The government makes an individualized determination that the condition is roughly proportional to advancing the state interest.

Areas in which states CANNOT intentionally discriminate against non-residents

• a) Civil liberties (right to vote, travel); OR

• b) Important economic activities (ability to earn a livelihood).

What the Establishment Clause prohibits

The government from establishing a religion or endorsing/supporting religion.

When Laws that do not discriminate among religions will be upheld

• It has a secular purpose;

• Its primary effect does not advance/prohibit religion; AND

• It does not excessively entangle the gov’t with religion.

What the Free Exercise Clause prohibits

The government from interfering with the exercise of religion.

Important exception regarding Free Exercise Clause

Laws of general applicability that cause unintentional burdens on religion ARE constitutional, and do not offend the Free Exercise Clause.

Content-Based Restrictions (Free Speech)

Regulations regarding the content of protected speech (subject matter, viewpoint).

Goverment's burden for Content-Based Restrictions (Free Speech)

• Free Speech Resctrictiion must satisfy strict scrutiny (narrowly tailored to achieve a compelling government interest AND it used the least restrictive means).

Content-Neutral Restrictions (Free Speech)

Gov’t may regulate its time, place, and manner of speech if the regulation satisfies intermediate scrutiny (narrowly tailored to achieve a significant government interest AND leave open alternate channels of communication.

Public Forum

Traditionally available to the public for free speech.

Designated Public Forum

Not traditionally available for free speech, BUT the government chooses to make it available. Treated the same as a Public Forum.

Non-Public Forum

Public spaces that have traditionally been limited for free speech. The government may regulate speech here if the regulation is reasonable AND viewpoint neutral.

When licensing requirements are permitted

• The government has an important reason for licensing;

• Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND

• Procedural safeguards are in place.

Fighting words

• Words, which by their very utterance:

  • a) Inflict injury; OR

  • b) Tend to incite an immediate breach of the peace.

When speech Incites Imminent Lawless Action

• Speech that advocates the use of force or illegality;

• It is directed to inciting or producing imminent lawless action; AND

• It’s likely to incite or produce such an action.

Obscenity

• Speeh that appeals to the prurient interest of an average person applying today’s community standards;

• It is patently offensive under the laws prohibiting obscenity; AND

• It lacks any serious, artistic, literary, or scientific value based on a national standard.

Valid Government Regulation of Truthful, Non-Misleading Commercial Speech

A regulation that:

• Directly advances;

• A substantial government interest; AND

• Is no more restrictive than necessary.

Justification for suppression of speech in schools

They must prove that the conduct would materially and substantially interfere with the operation of the school.

Requirements for a Government Employee’s Speech

Their speech is constutional if it is:

• 1) As a citizen; AND

• 2) On a matter of public concern.

When expressive conduct or symbolic speech may be regulated

• The government has an important purpose;

• The purpose is independent of the suppression of speech; AND

• The restriction is no greater than necessary to achieve that purpose.

Prior restraint on speech

When the government attempts to prohibit speech before it happens through a court order or licensing requirement.

Unduly vague statute

A statute that does not put the public on reasonable notice as to what is prohibited.

Overbroad statute

A statute that regulates more speech than is Constitutionally permitted.

Defamation claim against a public figure or public official - Additional element needed

The plaintiff needs to prove that the defendant spoke with either:

• a) Recklessness as to the truth of the statement; OR

• b) Knowledge of its falsity.

Defamation claim against a private figure speaking about a matter of public concern - Additional element needed

The plaintiff needs to prove that: The speaker was negligent.

What the 1st Amendment protects the press from liability when publishing

• Truthful private facts;

• On a matter of public concern;

• Where such information is legally obtained; AND

• There is no knowledge that any information was obtained illegally.

When the Government may punish a person’s membership in a group

• The group is actively engaged in illegal activity or incites imminent lawless action;

• The person has knowledge of the group’s illegal activities; AND

• The person has specific intent of furthering those illegal activities.