Foundation Course: ConLaw review
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| Con Law - Case and Controversy Requirement | Federal Court adjudication requires an actual and definite dispute between parties having
adverse legal interests.
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| Con Law - Standing | Plaintiff must show a concrete personal stake in the outcome.
Constitutional Standard:
1. Injury-in fact (i.e., economic, aesthetic,
environmental)
2. Causation/redressibility
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| Con Law - Justiciability | Ripeness
Advisory Opinions
Mootness
Political Questions
Standing
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| Con Law - RIPENESS | RIPENESS – For a case to be ripe, there must be a genuine, immediate threat of harm
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| Con Law - MOOTNESS | MOOTNESS – A case is moot unless an actual
controversy exists at all stages of review, unless the injury is capable of repetition, yet evading review
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| Con Law - ABSTENTION | ABSTENTION
• Federal court will refuse to review a case based on an unsettled issue of state law (Pullman)
• Federal court review prohibited where there are pending state criminal proceedings (Younger)
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| Con Law - Presidential Powers | • Issuance of executive orders which have the binding
force of law upon federal agencies
• Commander in Chief
• Appointment Powers
• Emergency Powers
• Clemency Powers
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| Con Law - Hierarchy of Laws | 1. Constitution
2. Act of Congress
Treaty
3. Executive Agreement- foreign policy/affairs
Executive Order – domestic policy
4. State Law
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| Con Law - Generally Wrong Answers | 1. General Welfare Clause
2. Necessary and Proper Clause
3. 14th A. Privileges and Immunities Clause
4. Contracts Clause
5. Distinction between Rights & Privileges
6. 10th Amendment- caveat New York v. U.S.
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| Con Law - Congressional Delegation of Power | Congress may delegate the task of implementing its laws to government agencies.
• Allows Congress to indirectly monitor an area in which it has passed laws without becoming bogged down in enforcement details
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| Con Law - Congressional Delegation of Power valid, if: | - Congress passes enabling legislation (state or federal).
- Specifies the purpose, functions, and powers.
-Describes the procedures of the agency.
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| Con Law - Supremacy Clause | • Superceding Doctrine: A federal law will supersede any state law in direct conflict.
• Preemption Doctrine: Any state law in an area where Congress intends to occupy the field is unconstitutional.
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| Con Law - To Uphold a State Statute | 1. Dormant Commerce Clause
a. Non-discriminatory
b. No undue burden on
interstate commerce use a
–balancing test
2. Police Power- health, safety,
welfare, morals, aesthetics
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| Con Law - State Taxation | • The Federal government is immune from state taxation
• Federal employees and contractors may be taxed as long as the incidence of the tax does not fall on the Federal government itself
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| Con Law - To Uphold a Federal Statute | 1. Supremacy clause
2. Any enumerated power of
Congress (Art. 1, Sec. 8)
3. Federal property power
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| Con Law -Con Law Q Approach | 1. Who is passing the law
2. What is the subject matter?
3. Match the appropriate power
4. Who is affected by the law?
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| Con Law - Property Power | Congress has the power to dispose of the territory or other property belonging to the United States.
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| Con Law - Affectation Doctrine | Congress may regulate any activity which has a “substantial economic effect” on interstate commerce.
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| Con Law - Regulation of Interstate Commerce | Constitutional as long as :
1- Non Discriminatory and
2- Does not place an undue burden on Interstate Commerce
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| Con Law - State Action | A threshold requirement of conduct by the government which must be satisfied before private discrimination can be restricted.
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| Con Law - Strict Scrutiny | -Burden on government to show the regulation is Necessary to a
compelling government interest
-EX- Race, Alienage, National Origin
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| Con Law - Intermediate Scrutiny | -Burden on government to show the regulation is substantially
related to an important government interest
-EX- Gender, Illegitimacy
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| Con Law - Rational Basis Scrutiny | -Burden on plaintiff to show that the regulation is not rationally related to a legitimate government interest
-EX- Poverty, Necessities, Age, Mental Retardation, Social and Economic Welfare Measures
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| Con Law - Statute Neutral on its Face | Plaintiff must show:
1) discriminatory effect, and
2) discriminatory purpose
To raise the burden of persuasion above rational basis.
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| Con Law - Fundamental Right of Privacy | C Contraception
A Abortion
M Marriage
P Procreation
E Private Education
R Family Relations
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| Con Law - Substantive Due Process | A term used to classify the source from which the fundamental rights (right to vote, right to travel, right to privacy) derive.
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| Con Law - Abortion (Casey) | A state may regulate abortion provided no “undue burden” is placed on a woman’s right to woman s obtain an abortion.
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| Con Law - “Fundamental” Right to Vote | Apply Strict Scrutiny:
1. Discrimination in voting
2. Reapportionment
3. Switching party affiliation
4. Ballot restrictions based on “special
interests” (land ownership)
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| Con Law - Non-Fundamental Voting Rights | Apply Rational Basis:
- The right to be a candidate
1. Payment of a filing fee
2. Minimum and maximum age restrictions
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| Con Law - Article IV Privileges and Immunities | Prevents economic discrimination by one state against citizens or residents of another state, unless a substantial government interest exists.
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| Con Law - Taking | A regulation that denies the owner all reasonable economically viable use of his land.
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| Con Law - “Public Use” Requirement | • Burden on the government to show the measure is rationally related to any conceivable purpose
• To qualify as a “public purpose” the property does not have to be held out for use by the general public
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| Con Law - Bill of Attainder | Legislative punishment of a named group or individual without judicial trial.
EX - revoking a license
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| Con Law - Procedural Due Process | The procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest.
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| Con Law - Ex Post Facto Laws | Unconstitutional criminal laws that:
1. Make criminal conduct that was not a crime when committed; or
2. Decrease the amount of evidence needed to convict/change the procedure(s) for conviction.
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| Con Law - “Content Specific” Regulation | I) “Protected” Speech - apply SS
II) “Unprotected’ Speech
1. Clear and Present Danger
2. Defamation
3. Obscenity
4. Child Pornography
5. “Fighting words”
6. Fraudulent commercial speech
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| Con Law - “Content Neutral” Regulation of Time, Place, Manner (Method) | Apply 3-part test. Regulation must:
1. Further a significant government interest
2. Be narrowly tailored, and
3. Leave open alternative channels of communication
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| Con Law - 4 Facial Attacks | 1. Over breadth
2. Vagueness
3 Prior Restraints
4. Unfettered Discretion
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| Con Law - Public Speaking Forums | • Public Forum- streets, sidewalks, public parks -Areas generally open to public
• Limited Public Forum- school rooms
-Opened by state on permanent/limited basis
• Non Public Forum- most other public places
-Military bases, city bus...
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| Con Law - Vice Advertising (Central Hudson) | Government regulation must:
1. Directly advance
2. a substantial governmental interest
3. and be “narrowly tailored”
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| Con Law - Free Exercise Methodology | Purposeful interference - Apply strict scrutiny test
Incidental burden - Apply rational basis test
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| Con Law - Establishment Clause (Lemon v. Kurtzman) | In order not to violate the Lemon Test:
1. The primary purpose must be secular
2. Primary effect must neither inhibit nor advance religion
3. No excessive government entanglement with religion
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