Justiciability
Eleventh Amendment Limitation |
Prohibits citizens from one state suing another state in federal court; Congress may abrogate under 13,14, and 15 Amednment |
Individual Standing |
injury in fact, causation, and repressibility |
Organizational Standing |
individual members have standing, claim is related to purpose of the organization, and individual members are not necessary to adjudicate the claim |
Mootness |
Must have a live controversy |
Ripeness |
injury must have occurred and not be speculative |
Legislative Powers
Commerce Clause |
Congress has power to regulate channel, instrumentalities, and activities that substantially effect interstate commerce |
Substantial Effect |
Economic activity is presumed to have a substantial effect, can aggregate economic effect |
Spending Power |
Congress can condition federal funds to states and require states to implement certain regulations (condition must relate to purpose) |
10th Amendment |
Congress cannot commandeer states by forcing them to pass specific legislation |
Delegation of Legislative Power |
Congress may delegate its powers to an agency as long as it provides reasonably intelligible standards |
Executive Powers
Executive Orders |
Domestic Affairs |
President has appointment and removal powers, the pardon power, the commander in chief power, and the duty to execute the law |
Foreign Affairs |
President has the power to conduct foreign negotiations, to deploy troops overseas, and to make executive agreements |
State Powers
Supremacy Clause |
If state law conflicts with federal law, the federal law governs. |
Express Preemption |
The federal law explicitly states that it is the only law allowed in that area |
Implied Preemption |
Congress passes a federal law intending to “occupy the field”, state law conflicts directly or indirectly |
Privileges and Immunities Clause |
Prohibits states from discriminating against nonresidents, unless it is necessary to achieve an important government interest. Only applies to individual citizens |
10th Amendment & Commandeering |
All powers not expressly given to the federal government are reserved to the states. |
Dormant Commerce Clause |
Clause, a state may not discriminate against out of state commerce or in a way that unduly burdens interstate commerce. |
Dormant Commerce Clause - Discrimination |
Can be discriminatory on its face or by its impact. State must show important interest and no other non-discriminatory means to achieve interest |
Dormant Commerce Clause - Unduly Burden |
If a statute is not discriminatory, the law may still be invalid if causes an “undue burden” on interstate commerce. Court will balance purpose of statute, burden on interstate commerce, and whether there are less restrictive alternatives |
Market Participant Exception |
can favor local business if state is acting as a buyer or seller |
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State Action
State Action |
The constitution protects against wrongful conduct by the government, not private parties |
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A private entity may be subject to the constitution if it is acting as if it is a state |
5th Amendment Takings Clause
Government Action |
Protects from government “taking” of private property; Includes taking land and also regulatory takings by rezoning, prohibiting development, etc. |
Private Property |
Usually involves land or other real property; Can be other property such as contract and patent rights or trade secrets |
Public Use |
Must be rationally related to a conceivable public purpose- Includes health, safety, economic development, etc. |
Physical Taking |
Government physically takes or occupies the land |
Regulatory Taking |
A law has the effect of decreasing the value of the property |
Total Taking |
the regulation leaves no economically viable use of the property |
Partial Taking |
the regulation affects some economic use of the land, but there is still some economic use available- economic impact, reasonable expectations, character of the regulation |
Exaction |
Local government may exact promises from a developer in exchange for construction permits. NOT a taking if essential nexus and rough proportionality |
Just Compensation |
Property owner is entitled to the fair market value of the property at the time of the taking |
Zoning |
Local governments have the power to pass zoning ordinances, so long as they are reasonably related to a legitimate government purpose (health, safety, morals, and general welfare) |
Variance |
May be granted to allow the owner to continue the nonconforming use of the land. If not granted, owner must show undue burden |
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Must show that the zoning ordinance amounts to a regulatory taking |
Due Process
Procedural |
The government shall not deprive a person of life, liberty, or property without due process of law. |
Amount of Due Process- Factors |
Interest affected, value of additional safeguards, burden or cost of additional process |
Substantive Due Process |
Whether the government’s action (such as a law or regulation) impermissibly infringes on an individual’s rights |
Standard of Review- Fundamental Rights (life, liberty, property, voting, travel, privacy) |
Strict scrutiny—only valid if necessary to achieve a compelling governmental interest |
Standard of Review- Non-fundamental Rights |
Rational basis—valid if rationally related to a legitimate government interest |
Equal Protection Clause
Discrimination Requirement |
Discriminatory intent—strict or intermediate scrutiny (depending on classification); Disparate impact—rational basis review |
Strict Scrutiny |
Applies to any law involving fundamental rights and classifications based on race, ethnicity, and national origin. Government must show least restrictive means to achieve a compelling government interest |
Intermediate Scrutiny |
Applies to laws involving gender and non-marital children born outside of marriage. Gov. must show substantially related to important government interest. |
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Gender discrimination—must also show an “exceedingly persuasive justification” and that facilities are substantially equivalent |
Rational Basis |
All other rights and classifications. Plaintiff must show not rationally related to legitimate government interest. |
Enabling Clause |
Under the 14th Amendment, Section 5—Congress may pass legislation to enforce equal protection and due process rights (overriding state statutes) |
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Freedom of Speech
Symbolic Speech |
Expressive Conduct |
Overbreadth |
A statute is impermissibly overbroad if it regulates more speech than necessary to protect a compelling government interest. |
Vagueness |
A statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited. |
Prior Restraints |
A prior restraint prohibits speech before it occurs; generally not allowed unless specific procedural safeguards are in place; Standards must be narrowly drawn, reasonable, and definite |
Right Not to Speak |
Protected by the First Amendment |
Content Based |
Strict Scrutiny. Government must show the regulation is necessary to achieve a compelling governmental interest and narrowly tailored to meet that interest |
Content Neutral |
Intermediate Scrutiny. Government must show that the regulation is substantially related to an important government interest |
Time, place, and manner |
Validity depends on the type of forum |
Public Forum |
Content neutral, alternative channels of communication be left open, narrowly serve a significant state interest |
Nonpublic Forum |
basically, any reasonable regulation of speech will be upheld |
Limited Public Forum |
Describes a place that is not a traditional public forum, but that the government chooses to open to all comers. Only time, place, or manner regulations are allowed |
Less Protected: Commercial Speech |
Commercial speech is protected unless it is false, misleading, or unlawful. Can only be regulated if interest is substantial, regulation directly advances interest, and regulation is narrowly tailored |
Unprotected |
Obscenity, Incitement to Violence, Fighting Words |
Defamation |
There are constitutional limitations on defamation actions when the plaintiff is a public official or public figure, or the speech involves a matter of public concern. |
Religion
Establishment Clause |
Prohibits the government from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion |
Facially Religious Preference |
If statute shows a preference to one religion over another (or to religion over non-religion), strict scrutiny applies |
Facially Neutral Statute |
Lemon Test: The law must have a secular purpose; primary effect neither advances nor prohibits religion; and law does not result in excessive government entanglement with religion |
Free Exercise Clause |
Includes the freedom to believe and the freedom to act. Must have a genuine belief in that religion |
Belief |
A person's beliefs are absolutely protected |
Conduct |
Laws that intentionally target religions conduct are subject to strict scrutiny; Laws that are generally applicable, but happen to impact religion are subject to the rational basis test |
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