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Con. Law
| Question | Answer |
|---|---|
| Supreme Court: Original Jurisdiction | Cases affecting ambassadors, public ministers, consuls, and those w/ a state as a party. Congress has given concurrent jurisdiction to lower fed. courts for all except cases between states. |
| Supreme Court: Getting Cases | Writ of Certiorari: complete discretion over cases either from federal courts of appeals, or state courts, if Constitutionality/federal legality of a statute in issue. Must hear certain appeals federal district injunctive count panels. |
| Limits on Federal Jurisdiction | 1) No Advisory Opinions, 2) Ripeness, 3) Mootness, 4) Standing, 5) Adequate/Independent State Grounds, 6) Abstention, 7) Political Question, 8) 11th Amendment Limits on Federal Court |
| Limits on Federal Jurisdiction: Mootness Exceptions | Controversies capable of repetition but evading review (abortion or a defendant who stops a practice but is free to resume). Also, class action can proceed despite one member's mootness if some member's claim isn't moot. |
| Limits on Federal Jurisdiction: Standing | 1) Injury (directly and personally, need not be economic), 2) Causation, 3) Redressability. To assert rights of another, need a special relationship between claimant and 3rd party (doctor-patient, etc.) |
| Limits on Federal Jurisdiction: Adequate/Independent State Grounds | If state law grounds are fully dispositive on case, Sup. Ct. cannot hear it. |
| Limits on Federal Jurisdiction: Political Questions | Political Questions: Either can't be judicially resolved inherently or are Constitutionally committed to another branch. |
| Limits on Federal Jurisdiction: 11th Amendment | Federal courts can't hear suit against states, unless brought by fed. govt. or another state. Doctrine of sovereign immunity bars cases against state in state court too w/o state consent. Suits OK to enjoin or get damages from a state officer. |
| Legislative Powers | 1) Necessary and Proper Power 2) Taxing Power 3) Spending Power 4) Commerce Power 5) War and Related Powers 6) Investigatory Power 7) Property Power |
| Legislative Powers: Necessary and Proper | Congress has power to make all laws necessary and proper for executing any power granted to any branch of the federal government. N/P clause cannot support federal law on its own to enact legislation. |
| Legislative Powers: Taxing Power | Congress has power to tax, most taxes will be upheld if they have a reasonable relationship to revenue production or if Congress has power to regulate the activity taxed/ No taxes on exports to foreign countries allowed. |
| Legislative Powers: Spending Power | Congress can spend for the general welfare: any public purpose. It can't use this power to legislate |
| Legislative Powers: Commerce Power | Congress has exclusive power to regulate foreign/interstate commerce. A fed. law on interstate commerce must regulate the (1) channels, (2) instrumentalities or (3) activities that have a substantial effect on interstate commerce. |
| Legislative Powers: Commerce Power: Activities that have "Substantial Effect" on Interstate Commerce | A regulation is OK if it's of economic/commercial activity and there's a rational basis that in aggregate activity substantially affects interstate commerce. Non-economic activity needs a "substantial economic effect" to be regulated. |
| Legislative Powers: War Powers | Can regulate to remedy wartime disruptions. Can make rules for armed forces. No power to review court-martials. Congress can't deny habeas corpus w/o meaningful substitute. Can only try American under martial law in case of actual warfare shutting court. |
| Legislative Powers: Property Power | No express limitation on disposing of property. Federal takings must be for purpose of effectuating some enumerate power in the Constitution. |
| Legislative Powers: Police Power | Congress only has police power in DC, federal lands, military bases, Indian reservations. Nowhere else. |
| Legislative Powers: Bankruptcy Power | Congress has nonexclusive pwoer to establish uniform rules on bankruptcy, states may make other nonconflicting laws. |
| Legislative Powers: Postal Power | Congress has exclusive postal power; may place reasonable restrictions on use of mail but may not deprive any citizen/group of the general mail "privilege". |
| Legislative Powers: Power over Citizenship | May establish rules of naturalization. No right for aliens to enter US, but resident aliens need notice + hearing before deportation. Congress has exclusive power over naturalization, but can't take away citizenship w/o person's consent. |
| Legislative Powers: Delegation of Legislative Power | Delegating legislative power to another branch is OK if "intelligible standards" are set and power isn't uniquely confined to Congress (power to declare war, impeach). |
| Executive Powers: Appointments | Exec. branch appoints ambassadors, Supreme Court justices, all other officers not otherwise provided for, with Senate's consent. Congress may let Pres. appoint inferior officers by himself. |
| Executive Powers: Removal of Appointments | President can remove high level purely executive officers, like Cabinet members at will. Congress can make statutory limits on his removing all other executive appointees. |
| Executive Powers: Veto Power | President may veto an act of Congress. It may still become law if it's overridden by a 2/3 vote in both houses. Pocket veto: no action by president in 10 days means no veto if Congress is in session, veto otherwise. |
| Executive Powers: Powers as Chief Executive | If prez. acts... 1) With consent of Congress, actions likely valid. 2) Where Congress is silent, action upheld unless it usurps power of another branch. 3) Against will of Congress, action likely invalid. Pres. can't refuse to spend appropriated fund |
| Executive Powers: Over External Affair | President: can't declare war w/o Senate OK, but can act militarily in hostilities. Can enter treaties w/ 2/3 approval of Senate. |
| Executive Powers: Hierarchy of US Law | US Constitution > Treaties and Federal Statutes (most recent of these 2 wins) > Executive Agreements > State Law |
| Executive Powers: Impeachment | All civil officers can be impeached for treason, bribery, high crimes, misdemeanors. Need a majority vote in House to start impeachment proceedings, then 2/3 Senate vote to convict/remove. |
| Supremacy Clause | If a state law conflicts w/ fed law or prevents a fed objective, it will be invalidated. If a fed law occupies the entire field, even non-conflicting state law is precluded. There's a presumption against this in traditionally state powers like health. |
| Full Faith and Credit Clause | If a judgment is entitled to full faith and credit, it must be recognized in sister states. Requirements: 1) Court has jurisdiction over parties and SM, 2) Judgment was on the merits, and 3) Judgment is final. |
| Inter-sovereign Litigation | The US may sue any state w/o consent, but a state needs consent to sue the US. A suit against a federal officer is deemed to be against the US itself and thus barred unless officer was acting ultra vires. State may sue another state - SC has jurisdictio |
| Intergovernmental Tax/Regulation | Congress can tax/regulate public/private activities equally (minimum wage). Just taxing/regulating state activity may be 10th amendment limited. Can limit spending power funds on state action. Can't force state cops to enforce federal law. |
| State Taxation on Federal Government | Nondiscriminatory, indirect taxes OK if they don't unreasonably burden the federal government (state income tax on federal employees). |
| Privileges and Immunities Clause (Article 4) | No discrimination by a state against nonresidents. Only fundamental rights (commercial activities, civil liberties) affected, recreation doesn't count. Exception for substantial justification + no less restrictive means. |
| Discriminatory State Regulations | State discrimination against interstate commerce almost always invalid, unless there's an important non-economic state interest and no reasonable non-discriminatory alternatives are available. State can prefer its own companies in contracts. |
| Non-discriminatory State Regulations that Burden Commerce | Valid unless burden outweights the promotion of a legitimate local interest. Example: Iowa banning trucks over 60 ft. invalid; burdened commerce substantially with no evidence of increased safety. |
| State Tax on Interstate Commerce | State taxes discriminating against interstate commerce violate Commerce Clause. Non-discriminatory taxes valid if 1) Substantial Nexus (must be activity within state) 2) Fair Apportionment (according to a rational formula) 3) Fair Relationship |
| State Use Tax | Goods purchased outside state, used inside. Valid. Interstate seller can be required to collect if the seller has a sufficient nexus with the taxing state - more than soliciting orders by mail, etc. |
| State Ad Valorem Taxes - Based on Assessed Value of Property | Commodities in interstate transit are exempt from state taxation. Can tax the instrumentalities (trucks) if there's a 1) taxable situs (sufficient state contacts) and 2) tax apportioned to amount of contact with state. |
| State Privilege/License/Franchise/Occupational Tax | These "doing business" taxes OK, if 1) Activity must have substantial nexus to taxing state 2) Tax must be fairly apportioned 3) Must not discriminate against interstate commerce 4) Must fairly relate to services provided by the state |
| Bill of Rights Applicability | Only applies to federal power. 14th Amendment Due Process Clause makes it applicable to states, except 1) 5th Amendment prohibition of criminal trial without grand jury indictment 2) 7th Amendment right to jury trial in civil cases. |
| Thirteenth Amendment | Prohibits slavery and indentured servitude. Congress can prohibit discriminatory action by anyone (government or private citizen). |
| Fifteenth Amendment | Prevents fed and state governments from denying right to vote on account of race or color. This amendment applies only to state action. |
| State Action Requirement: When is a Private Actor the 'State'? | When the state affirmatively facilitates, encourages, or authorizes acts of discrimination by citizens, it's state action. Activities that are so traditionally the exclusive prerogative of the state are state action. |
| Retroactive Litigation: Impairing Contracts | State legislation that substantially impairs existing private control: intermediate scrutiny (narrowly tailored means of promoting an important legitimate interest). Stricter scrutiny for gov't contracts, esp. if the gov't benefits. |
| Strict Scrutiny | Necessary to achieve a compelling government purpose; burden of proof is government. Fundamental rights (interstate travel, privacy, voting, 1st Amendment) or suspect classifications(race, national origin, alienage). |
| Intermediate Scrutiny | Substantially related to an important government purpose. Burden is probably on goverment. Gender and legitimacy. |
| Rational Basis | Rationally related to a legitimate government purpose. No fundamental rights/suspect classifications involved (most laws). Burden on challenger. |
| Substantive Due Process / Equal Protection | Substantive Due Process: Law limiting liberty of all persons to do some activity. Equal Protection: Law treats a person or class differently from others. |
| Equal Protection: Discriminatory Intent | Must show governmental intent to discriminate for strict or intermediate scrutiny to apply, either by 1) discriminatory on law's face, 2) discriminatory application of law, or 3) discriminatory motive behind law |
| Equal Protection: Alienage Classification | Federal regulations of aliens are not strict scrutiny, they must just not be arbitrary and unreasonable. State regulations are strict scrutiny except for government jobs (rational basis). Undocumented alien status is not suspect classification. |
| Fundamental Rights | Denied to everyone - due process problem. Denied to groups - equal protection problem. Always strict scrutiny - necessary to protect a compelling government interest. Must be no less restrictive means of achieving goal. |
| Right of Privacy (Fundamental) | 1) Marriage 2) Use of Contraceptives 3) Abortion (not strict scrutiny) 4) Obscene Reading Material (w/in Home, not to sell) 5) Keeping Extended Family Together (zoning) 6) Rights of Parents 7) Intimate Sexual Conduct (sodomy) |
| Right of Privacy: Abortion | Pre-viability: Cannot place an "undue burden" or create a substantial obstacle to right to abortion. Post-viability: May prohibit abortion unless woman's health is threatened. |
| Right to Vote (Fundamental) | Reasonable time periods for residency are valid, but Congress can swap in it's own for presidential elections. Can't base on property ownership (unless special purpose). No poll taxes. |
| Right to Vote: Dilution | Congressional districts within state must have almost exact mathematical equality. State/local election districts must vary by a few % max. Doesn't count for non-normal positions (water storage district election). |
| Government Speech | Government speech and government funding of speech will be upheld if rationally related to a legitimate state interest. Placing a permanent monument in a park is government speech. When government funds speech, must do so on a viewpoint-neutral basis. |
| Content vs. Conduct | Content: forbids communication of specific ideas. Conduct: forbids time of speech, sound level, etc. |
| Speech: Content | Presumptively Unconstitutional to censor speech on content (except obscenity, defamation...) Content-neutral laws must pass intermediate scrutiny: advance important interests and not burden substantially more speech than necessary. |
| Speech: Overbroad Regulation Invalid | Overbroad regulations are invalid. Those are ones that punish a substantial amount of protected speech in relation to its legitimate sweep. Example: regulation outlawing all 1st Amendment activity in an airport terminal. |
| Speech: Void for Vagueness | A law failing to give reasonable notice as to what's prohibited my violate Due Process. (banning "lewd" speech). Strictly applied for 1st Amendment cases. |
| Speech: Scope | Speech includes silence and symbolic acts. Gov't may regulate such acts (burning draft cards) if it has important interest in regulation independent of speech (facilitating a smooth draft). |
| Speech: Conduct: Public/Designated Public Forums | Can regulate on time, place, manner for public (sidewalks, parks) and limited public (schoolroom) forums if: 1) Content neutral, 2) Narrowly tailored, 3) Leave open alternative channels of communication. Virtually everything meets this. |
| Speech: Conduct: Limited Public/Nonpublic Forum | Can regulate to reserve forum for its intended use. Must be 1) Viewpoint neutral, and 2) Reasonably related to a legitimate government purpose. |
| Speech: Content: Unprotected Speech | Restricted if necessary to achieve compelling government interest. Ex: 1) Inciting imminent lawless action (intentional and likely), 2) Fighting words, 3) Obscenities, 4) Defamatory Speech, 5) Some Commercial Speech |
| Speech: Content: Unprotected Speech: Obscenities | Obscene: 1) Appeals to the prurient interest in sex, using a community standard, 2) Is patently offensive and affront to community standards, 3) Lacks serious value, (art, literature, science...) under national reasonable person standard. |
| Speech: Prior Restraints | These prevent speech before it occurs, usually invalid. System OK if: 1) Standards narrowly drawn, 2) Injunction promptly sought, 3) Prompt and final determination of validity. |
| Freedom of Religion: No Religious Exemptions Required | Can't use freedom of religion to challenge regulation unless it was specifically designed to interfere with religion. Government can regulate conduct, but not beliefs. |
| Establishment Clause: No Sect Preference | Regulation valid if : 1) Has secular purpose, 2) Primary effect neither advances nor inhibits religion, 3) Does not produce excessive government entanglement with religion |
| Establishment Clause: Sect Preference | If govt. action prefers one sect over another, only valid if narrowly tailored for compelling govt. interest. |
| Religion in Schools | School sponsored religious activity is invalid. School accommodation of religion is valid. If school allows public/private organizations to use school while not in session, it can't stop a group from doing so because it's religious. |
| Jurisdiction of Military Courts | Military courts-martial have jurisdiction over all offenses committed by members of armed services, but only if they were in the service both at time of offense and trial. |
| Taxpayer Standing | Interest generally too remote to sue as a taxpayer. Exception for Congressional spending on 1st Amendment Establishment Clause grounds. Must be based on Congress's spending power. |
| Due Process "Property" Requirements | School attendance, welfare benefits and sometimes govt. employment are property; process has balancing test but usually notice and a chance to respond before termination are required. |
| Speech: Content: Unprotected Speech: Most Commercial Speech | Unlawful/fraudulent can be burdened. Otherwise, reg. upheld only if: 1) Serves substantial government interest, 2) Directly advances that interest, 3) Narrowly tailored to serve that interest (need not be least restrictive means) |
| Speech: Content: Unprotected Speech: Commercial Speech on City-Owned Property | Restrictions OK when viewpoint neutral and reasonably related to a legitimate government interest. |
| Contract Clause | States may not legislate to substantially impair pre-existing contracts unless law serves an overriding public need and law is reasonable and narrowly tailored means of meeting that need. |
| Conditional Permits | For the gov't to impose conditions on receiving a permit to build, conditions must be roughly proportional to the impact of proposed development. |
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