Glossary of MBE: Constitutional Law

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P must prove actual or imminent injury. P must allege/prove that D caused injury so that a favrorable court decision is likely to rememdy it.
Exceptions to Third Party Standing
(1) close relationship; (2) unlikely to be able to assert own rights; (3) organization standing
If events after filing suit ends the injury.
Exceptions to Mootness
(1) wrong capable of repetition by avoiding review; (2) voluntary cessation; (3) class actions
Whether a federal court may grant pre enforcement review. Look at: (1) hardship to be suffered; (2) fitness of issues/record for review.
Political Question Doctrine

(4 things)
constitutional violations that fed cts won't hear: (1) "repubican form of gov't"; (2) foreign policy; (3) impeachment/removal; (4) partisan gerrymandering
When may SCOTUS not review a case? (2 reasons)
(1) When there's an indpendent state law ground of decision; (2) when state decision rests on st AND fed grounds, reversal of a federal ground won't change the result (b/c of the state law ground)
May a lower federal court hear suits against state governments?
No. Sovereign immunity.
When CAN states be sued? (Sovereign immunity exceptions.)
(1) explicit waiver; (2) laws adopted made by s 5 of 14th Amt'; (3) federal gov't CAN sue state gov't.
Is there a general federal police power? What are the exceptions?

No. Exceptions (MILD): (1) military; (2) Indian res; (3) land and territories; (4) Dist of Col.
When is the "general welfare" applicable?
Only in taxing/spending situations: Congress may tax and spend for the general welfare.
What may congress regulate under the commerce clause?

(3 things)
(1) channels of CATSS (h'ways, waterways); (2) instrumentalities of CATSS and people in it (trucks, planes); (3) econ activities that affects CATSS
What's up with all that Morrison crap?
If a non-econ activity is implicated, its substantial effect can't be aggregated/based on cumulative impact.
How about putting strings on federal grant programs? Like giving states money for roads if they raise the drinking age to 21?
Ok as long as conditions are expressly stated and related to the purpose of the spending program.
Can Congress create new rights or expand the scope of existing ones?
No. Can only prevent/remedy violations and laws that are PROPORTIONATE and CONGRUENT to fixing the violation.
What's the deal with legislative vetos and line item vetos?
Unconstitutional. Can't bypass bicameralism and presentement to the president.
What powers does Congress have the power to delegate? Is there a limit?
No limit on designating lesislative powers.
Let's talk about treaties. What happens when they conflict with state laws? Federal statute? The Constitution?
Treaties: (1) Trump state law; (2) last in time controls in conflict with federal statute; (3) give way to the Constitution
Don't you love executive agreements? I do!

(1) Do they require Senate approval?

(2) What about conflicts of law?
(1) no senate approval

(2) prevail over state law, but NEVER over fed law OR Constitution
Can the President use American troops in foreign countries?
Are you fucking kidding? Where have you been? Read the news lately? Of course he can! (Bastard.)
Who may the President appoint?
ambassasadors, federal judges, US officers - senate must approve nominations
Does Congress get to appoint anyone? Or are they merely pawns who act at the behest of the President?
Inferior officers (those that can be fired by a US officers.
How about new agencies? Can Congress give itself appointment powers?
No. Can't appoint members, and can't delevated executve/appointment powers to itself.
Removal power. Who gets it?
Unless ficed by statute, President may fire any executive officer.
CAN Congress limit the President's removal power by statute? When? Hows?
Must be where an officer's independence from the President is desireable; can't prohibit removal, but can limit it to good cause shown.
For what reasons can President, VP, judges, or officers be impeached? Does that get 'em out?
treason, bribery, high crimes and misdemeanors

impeachment doesn't remove; impachment in House (maj), conviction in Senate (2/3)
Presidential immunity.
absolute immunity to civil suits for any actions while in office; HOWEVER, no immunity for actions prior to office (e.g., Clinton v. Jones)
Executive privilege? Does the President ever have to disclose stuff?
for papers and conversations, but must yield to other important gov't interests (when there is an overriding need for info)
Express Preemption
if a statute says federal law is exclusive in a field, state/local law is preempted
Implied Preemption
federal law trumps when: federal and state law are mutually exclusive; state law impedes fed objective; Congress shows clear intent to preempt state law, even if the statute itself is silent
Intergovernmental immunity.
States may not tax or regulate fed gov't activity. (Ex: can't pay tax out of federal treasury.)
Dormant commerce clause (negative implications of the commerce clause)
state/local law unconstitutional if they place an undue burden on CATSS.
Privileges and Immunities Clause of Article IV
No state may deny citizens of other states of privileges and immunities it accords its own citizens. (Anti-discrim provision.)
Privileges or Immunities Clause of the 14th Am't
must implicate the fundamental right to travel for this to apply
How do we determine if a law violates the commerce clause?
balance the burdens against the benefits (ex: in the mud guard case, the burden didn't exceed the benefit)
If a law discriminates against out-of-staters, how can it pass constitutional muster under the dormant commerce clause?
It must be necessary to achieve an important gov't interest
Market Participate Exception (to the dormant commerce clause)
state/locality may prefer its own citizens in receiving benefits from gov't programs or dealing with gov't owned businesses (ex: in-state tuition)
What are the 4 differences between the commerce clause and the privileges and immunities clause of Art IV?
(1) DCC doesn't require discrimination, PAI does; (2) DCC requires burden on CATSS, PAI requires discrim re: civil/ecnom liberties; (3) DCC corporations/alients can sue, PAI they can't; (4) exceptions (congressional approval, mkt part), PAI no exceptions.
May states tax to help in-state business?
May state tax interstate activities?
Only if the activities provide a substantial nexus to the state; interstate must be fairly apportioned.
What are the three requirements for courts in one state to give full faith and credit to courts of another state?
(1) jurisdiction of parties/subject; (2) judgment was on the merits; (3) judgment was final
May Congress by statute apply constitutional norms to private activity? In what way?
13th Am't to prohibit laws against pvt discrim; commerce power (ex: Heart of Atlanta, Katzenback)
Public Function Exception (regarding regulation of private stuff)
If a private entity is performing a task traditionally/exclusively performed by gov't, Congress can regulate
The Entanglement Exception (regarding regulation of private stuff)
applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity (determining state action)
Which amendments are NOT incoprorated into the BOR?
2d right to bear arms; 3d right re: soldiers; 5th right to GJ in crim cases; 7th right to jury in civil cases; 8th right against excessive fines (rest of this am't IS incorporated)
What is liberty for purposes of DP analysis?
loss of significant freedom protected by the Constitution (harm to reputation NOT loss of liberty)
What is property for purposes of DP analysis?
entitlement that is not fulfilled; reasonable expectation of continued receipt of a benefit
What is the three-part balancing test to determine the procedures required under DP?
(1) important of interest to the person
(2) ability of additional procedures to increase accuracy of fact finding
(3) gov't interest
Takings Clause
gov't may take private property for public use of it provides just compensation
Possessory Taking
gov't confinscation by physical occupation
Regulatory Taking
b/c or a regulation, there is no economically vibale use of property (mere decrease in value is NOT a taking)
What constitutues "just compensation"?

Is the gain to the gov't a factor to consider?
Fair market value.

What constitutes "public use"?
Anything, so long as gov't acts out of reasonable belief it will benefit the public.
Contracts Clause
No state shall impair obligations on contracts.
What is the standard for private contracts?
Intermediate scrutiny, sort of.

Test: (1) Does the legilsation subtantially impar party's rights under existing K? (2) If so, does the law reasonably and narrowly tailor means of promoting important and legit gov't interest?
Privacy is a fundamental right for purposes of SDP. What does this include?
custody of kids
keep families together
abortion (undue burden std)
refuse medical treatment (C&C ev to show persom wanted Tx before life ends)
What is the three-part approach to equal protection questions?
(1) What is the classification?
(2) What level of scrutiny should be applied?
(3) Does this law meet that level of scrutiny?
How should racial classifications of minorities be treated under EPC?
strict strutiny

quotas need proof of past discrim

may use race as a single factor

seniority system not disrupted by AA
How should gender classifications be treated under EPC?

role stereotypes NOT allowed

remedying past discim OK
How are alienage classifications greated under EPC?
generally strict; intermediate for self-gov and dem process; rational for Congressional discrim against aliens
How should discrimination against non-marital children be treated under EPC?
intermediate; laws denying benefit to all non-marital kids, but granting to all marital kids is unconstitutional
What types discrimination requires rational basis review?
econ regs
sexual orientation (Romer v. Evans)
What are the fundamental rights protected under EPC?

(1) travel - durational resident requirements require ss

(2) vote - one person/one vote; at-large ok unless discrim
Is there a fundamental right to an education?
What is the standard for the regulation of content-based speech?
What is the standard for the regulation of content-neutral laws burdening speech?
What's the standard for court orders on prior restraint?

Must they be complied with?

Can someone who violates them challenge later?
(1) strict

(2) propert orders must be complied w/ until vacated/overturned

(3) he who violates an order doesn't get to challenge it later
Vagueness (1st Am't)
reasonable person can't tell which speech is probibited or allowed
Overbreadth (1st Am't)
regulates more speech than the Constitution allows
Fighting Words
vague and overbroad (though Chaplinsky still good, SCOTUS hasn't upheld a fighting words conviction)
Can symbolic speech be regulated?
Only if an important interest unrelated to suppression of a message and impack on communication is no greater than necessary to achieve a gov't purpose
Is anonymous speech protected?
What about incitement of illegal activity? Is that speech protected?
Only if you're the president. Heh. But no, not really.
Test for obscenity
(1) prurient interest (local/community std)
(2) patently offensive under the law defining it
(3) lack redeeming artistic, literary, political, scientific value (nat't std)
What sorts of commercial speech is not protected?
Ads for illegal activity or false/deceptive ads.
Is government negligence enough for a deprivation of liberty or property?
Must show that it was intentional or reckless; in emergency cases, only if it "shocks the conscience."
Is profane and indecent speech protected?
Yes, except for when it's on the broadcast media or at schools
What is the required showing for defamation of a private individual when the matter is of public concern
falsity + negligence, BUT falsity + actual malice to get punitive damages
What is the required showing for defamation of a private individual?
falsity + negligence will get ya punitive damages, too
What about the media? Can they get into trouble for truthful reporting?
No, so long as they didn't participate in any illegality; illegally gotten stuff ok to report on, so long as THEY didn't do the wrong.
May the gov't regulate speech in public forums?
ss required

regs needn't be least restrictive, and must leave open alternative places for speech
Can the gov't close speech in non-public forums?
No, but can regulate as long and reasonable and viewpoint neutral.
What are the five non-public forums?
military bases
areas outside prisons/jails
ad space on public buses
sidewalks on post office property
airports (literature ok, soliciting funding not ok)
In order to meet the strict scrutiny to punish someone for membership in a group, what three things must be demonstrated?
(1) affiliated w/ the group

(2) knowing of illegal activities

(3) specific intent to further those activities
Can the gov't require disclosure of group membership?
Not if it would chill assocation (NAACP)
Are laws prohibiting discrimination in private groups ok?
Yes, UNLESS they interfere with intimate association or expressive activity (BSA had anti-gay message, so discrim there was ok)
Can the free exercise clause be used to challenge a neutral law of general applicability?
no (peyote case)
What is the test for finding a law constitutional under the establishment clause?

secular purpose for the law

effect must be to neither advance nor inhibit religion

no excessive entanglement with religion

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