Con Law I
What is Justiciability? What is required to have standing?
BONUS: What is needed for organizational standing?
Justiciability: All cases coming before the fed court must present a live case or controversy. Fed court cannot issue opinion based on an abstract or hypothetical question.
Standing: Court will only hear cases where aPlaintiff establishes that it has standing. 1) P suffered an injury; 2) Defendant caused that injury; 3) a decision by the court will redress the injury
RIC- Redress, Injury, Causation.
**Bonus*** Organizational Standing MS. GOP= 1)Member would have Standing 2) interest at stake Germane to Organizations Purpose.
What is the 14th amendment-equal protection clause?
Forbids the states from denying persons equal protection under the law.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."
What are content based regulations?
What are content neutral regulations?
What is the standard of review for each?
Laws that regulate subject matter (topic) and viewpoint (ideology).
Standard: Strict scrutiny
Laws that apply to all expression without regard to the substance or message of the expression
Standard: Must serve a substantial govt interest and be narrowly tailored to achieve that interest.
Define the dormant commerce clause.
The Dormant Commerce Clause is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce.
Physical Taking
Give definition and the standard for recovery
ANY physical confiscation or occupation of land.
Standard: Owner only has to show that a portion of his property has been physically occupied by government.
Define these doctrines:
Ripeness
Abstention
Advisory Opinions
Mootness
Political Question
Ripeness- Fed court will not grant review of a statute or regulation simply because the injury of enforcement is a threat.
Abstention- Fed courts may abstain from hearing a case where there is a pending suit in a state court regarding the same issue until the state's highest court has a chance to decide on the matter.
Advisory Opinion: Federal courts cannot issue advisory opinions because of the Constitution's case-or-controversy requirement.
Mootness- P's injury is moot if it occurs after the filing of the suit that ends the P's injury. (EXCEPTIONS: The wrong is capable of repition yet evading review; voluntary cessation by the defendant of unconstitutional action; class action suit).
Political Q's: Constitutional violations by a branch of govt that the court will not hear because the conduct is within the sole province of that branch as set forth by the constitution.
R-A-A-M-P
What are the Suspect Classifications under EP of the 14th?
Race
Ethnicity
Religious Affiliation
Country Citizenship
(exception: state could discriminate based on "alienage" in regards to public functions: Serve on jury, be a teacher, vote, serve as probation/police officer)
What does it mean when a law is vague? Overly broad? What standard is applied?
Vague: if a reasonable person after reading the law would not know what speech is prohibited.
Overly broad: prohibits both unprotected and protected speech.
Standard: Strict Scrutiny
Standard for Facially Discriminatory Laws
State law discriminates against out of state commerce on its face, the state must show that it is narrowly tailored to show a non-economic state interest and there are no other means to achieve that interest.
Regulatory Taking
Give definition and standard
Government regulation that leaves the owner with ni economically viable use for the property.
Standard: Owner must show that under regulation, the land is valueless. Owner has standing to challenge even if the regulation existed prior to owner occupying.
What does article 3 say about the Supreme Court's original jurisdiction?
The court’s original jurisdiction includes:
Congress MAY NOT expand or restrict the original JX of the court. It only has the power to set the appellate JX of the court.
SCOTUS will only review cases by the highest court of the state.
Court will NOT hear cases that were decided on independent and adequate state grounds.
What is the Quasi Suspect Class?
What is the non-suspect class and what standard applies to it?
Quasi:
Gender
Non-marital children
Children of undocumented parents
Non-suspect: (Everyone else)
Age
Disability
Wealth
Economic
Rational basis standard of review
What is a Public Forum?
What is the standard for when a law regulates time, place, manner in which speech can take place here?
1) Government property in which govt is required to make available for speech (park, sidewalk, beach)
Standard: govt cannot completely prohibit speech in a public forum and any regulation must be subject matter neutral, narrowly tailored to serve a substantial govt interest & leave adequate alternative channels for communication.
Standard for Facially Neutral Laws
When a state law is not discriminatory on its face, it may still be unconstitutional if it places a burden on interstate commerce. Challenger must show the burden on commerce outweighs the legitimate interest of the state.
Exceptions: 1)State is market participant; 2) Congress legislation authorizing states to burden an area of commerce.
Express v. Implied preemption
Supremacy clause provides that the constitution is the "law of the land" and all federal laws will prevail over any conflicting law.
Express-fed statute explicitly conflicts w/state law or fed law wholly occupies the field then state law is pre-empted.
Implied-
1)If fed law & state law are mutually exclusive (one cant comply with both) then fed law preempts.
2)If state law impedes congressional objective, fed law preempts.
3)If congress clearly intends to preempt state law.
What foreign policy powers does the president have? What power does he(or she) have over domestic affairs?
Foreign: 1) Treaty making power 2) Executive agreements 3) Military power-deploy troops/send foreign aid.
Domestic: 1) Protect well being/interest of US citizens 2)Deploy troops in ER situations 3) Appointment power (judges/ambassadors) 4)Removal power of any executive officer for any reason 5)Executive immunity from suits for acts done while in office 6) Exec privledge to not be forced to disclose confidential info. 7) Pardon Power to veto any bill which congress can override by 2/3 vote
What is the standard for:
1)Facially discriminatory laws against suspect class
2)Facially neutral Laws against suspect class
3)Facially discriminatory laws intended to benefit minorities
1) Strict scrutiny
2) Plaintiff must show discriminatory impact on class AND intent by govt to discriminate.
3) Strict scrutiny
What is a Limited Public Forum? What is the standard?
Govt properties which govt could close but chooses to keep open (school, library, city hall, court).
Standard: same as public forum- must be subject matter neutral, narrowly tailored to serve a substantial govt interest & leave adequate alternative channels for communication.
Privileges AND immunities clause
State laws which on their face deny citizens of other states the same privileges and immunities it provides to its own citizens are unconstitutional, unless the state can show it has a substantial interest in favoring its citizens and the law at issue is the least restrictive means of achieving that interest.
What is the establishment clause?
What standard applies? *Hint* "citrus"
Under the 1st amendment, the government cannot endorse or show favor to a particular religion or religious organization in general.
Standard: LEMON TEST (zesty)
1) Secular purpose for the law.
2) Effect of the law neither advances or inhibits religion.
3)The law does not create excessive entanglement (think Will & Jada) w/religion.
We know that the 10th amdmt limits congress from commandeering the states, but what does congress actually have the power to do?
List the 10 powers of congress.
Taxing & Spending (for the purpose of promoting gen welfare)
Congress authority over federal property (real, personal, etc)
Regulatory laws (which are necessary & proper to effectuate the enumerated powers granted to it by the constitution- NOT POLICE POWERS)
Powers under commerce clause (ICES- Instrumentalities, channels, economic activities with substantial effect on IC)
Power to declare war (did you know that the president can still send troops but if congress doesn’t agree with this they can limit or eliminate funding?)
Impeachment/Removal Power (vote of half the house and removed with 2/3 vote of senate)
Power under sec 5 of 14th amendment (Remedy STATE, not private violations of the 14th amendment)
Power under sec 2 of 13th amendment (Act to prevent racially based discrimination by STATE/Private actors)
Congress delegation power (No limit to its power to delegate its own powers)
Prohibition of Bill of attainders/ex-post facto laws (Congress nor any state can enact these laws)
What is the standard for:
1)Facially discriminatory laws against quasi-suspect class
2)Facially neutral Laws against quasi-suspect class
3)Facially discriminatory laws intended to benefit women.
1) Intermediate scrutiny
2) discriminatory impact and intent by the govt to discriminate.
3) Intermediate scrutiny
What is a Non-public forum? What is the standard?
Standard: govt can regulate speech so long as it is reasonably related to a legitimate public interest and viewpoint neutral.
Privileges AND immunities under the 14th amendment
No state shall restrict the right of a citizen to travel interstate. (prohibition of a state preventing a citizen from becoming citizen of that state)
Right to vote
Strict scrutiny is applied.
What is the obscenity test?
What is unprotected speech
Test applied to determine if speech is obscene and therefore unprotected.
Test: PeePeeArt
1) Patently Offensive;
2) prurient interest;
3) artistic, literary, scientific value is lacking.
Unprotected Speech F-I-D-O
Fighting words
Inciting violence
Defamation
Obscenity