Shared Flashcard Set


Constitutional Law
MBE Con Law

Additional Law Flashcards




Individual Standing
1) Injury in fact-Must be concrete (not abstract), but need not be economic.
2) Causation-A defendant’s act must have caused or will cause the injury.
3) Redressability-A court can remedy or redress the injury.
An organization has standing if:
1) Its members would have standing to sue on their own;
2) The interests the organization seeks to protect are germane to its purpose; and
3) The participation of individual members is not necessary to adjudicate the claim.
Under its Commerce Power, Congress can regulate:
1) Channels of interstate commerce (highways, waterways, airways);
2) Instrumentalities of interstate commerce (cars, trucks, ships, railroads); and
3) Any activity that has a substantial effect on interstate commerce, even exclusively intrastate activity. • Substantial effect is judged in the aggregate. The question is always whether the aggregate activity of everyone doing the same thing has a substantial effect on interstate commerce, and the answer is almost always yes.
--Congress cannot force states to adopt or enforce regulatory programs; and
--It cannot commandeer state and local officers to carry out federal programs.
--It can "bribe" states to follow federal regulatory programs through use of the spending power; and
--It can adopt its own regulatory program and enforce it with federal officers.
Privileges and Immunities of State Citizenship under Article IV (Comity Clause)
-- Forbids serious discrimination against out of state individuals, absent substantial justification.
-- There can be no legal requirement of residency for private employment. States cannot require that you live/reside in the state to work for a private company in the state.
-- States can impose residency requirements for public employment.
-- Non-serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses or state park access.
Dormant Commerce Clause -- In the absence of federal regulation, state regulation of commerce is valid so long as:
1) There is no discrimination against out-of-state interests;
2) The regulation does not unduly burden interstate commerce; and
3) The regulation does not apply to wholly extraterritorial activity.
A state may discriminate against out of state commerce when:
1) The state is acting as a market participant;
2) The state is providing subsidies to its own citizens; and
3) If Congress authorizes such regulation.
In order for a state tax imposed on interstate commerce to be valid:
(i) The activity taxed must have a substantial nexus to the taxing state, (ii) The tax must be fairly apportioned, (iii) The tax may not discriminate against or unduly burden interstate commerce, and (iv) The tax must be fairly related to the services provided by the state.
In addition to meeting the same requirements for a tax on interstate commerce, a state tax on foreign commerce must not:
(i) Create a substantial risk of international multiple taxation; or
(ii) Prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues.
Under Due Process, to determine what kind of procedures are necessary, the court balances three factors:
1) The individual interest at stake (life, liberty, property);
2) The risk of erroneous deprivation of that interest in using current procedures and the probable value of additional or substitute safeguards in protecting that interest; and
3) The burden involved in providing the additional process (efficiency and cost).
Strict Scrutiny
--The law must be the least restrictive means to achieve a compelling governmental interest.
--Applies to classifications based on race, ethnicity, national origin (suspect class).
--The government bears the burden of proof; they must show that the interest is compelling and the law is necessary to achieve that interest.
Intermediate Scrutiny
--The law must be substantially related to an important government interest.
--Applies to classifications based on gender and legitimacy (semi-suspect class).
--Government bears the burden of proof.
Rational Basis
--The law must be rationally related to a legitimate government interest.
--Applies to all other classifications such as age.
--The challenger bears the burden of proof.
--Government can give one reason for passing the law and then give another reason when defending it in court.
Fundamental Rights
Triggers the strict scrutiny test under both due process and equal protection.
Fundamental rights include:
1) Right to interstate travel and settlement.
2) Voting
3) Ballot Access
4) Marriage (Privacy)
5) Contraception (Privacy)
6) Sexual Intimacy (Privacy)
7) Abortion
8) Parental rights-- Parents have a fundamental right to raise their children as they see fit, including the choice of religious or private schools.
9) Family relations--includes the right to live with relatives.
10) Obscene material--fundamental right to possess obscene material in one's own home (except child porn).
11) Refusal of medical treatment.
--A state cannot impose an undue burden on a woman's right to obtain an abortion before the fetus reaches viability.
--After viability, a state can impose restrictions, including a complete ban, so long as there are exceptions to preserve the health and life of the mother.
The following factors are considered to determine whether a regulation of property (usually zoning) constitutes a taking:
1) The economic impact of the regulation on the property owner;
2) The extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and
3) The character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.
Establishment Clause (Lemon Test)--Government action that incidentally benefits religion will be constitutional if:
1) The law has a secular purpose;
2) The law has a primary effect that neither advances nor inhibits religion; and
3) The law avoid excessive government entanglement with religion.
A law regulating expressive conduct is constitutional if:
1) It furthers an important government interest;
2) That interest is unrelated to the suppression of expression; and
3) The burden on expression is no greater than necessary.
A time, place, and manner restriction placed on speech in a public forum is constitutional if:
1) The regulation is content neutral: must be content neutral on its face and as applied. (Also cannot allow discretion on the part of public officials);
2) Leaves open ample alternative channels for communication of the information; and
3) Is narrowly tailored to serve a significant government interest.
Restrictions on speech in a non-public forum (government offices, jails, military bases, etc.) will be upheld if:
1) The regulation is viewpoint neutral; and
2) It is reasonable.
Speech will be considered obscenity if:
(1) The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
(2) The work depicts or describes, as measured by contemporary community standards, sexual conduct in a patently offensive way; and
(3) A reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (national standard)
Incitement--A state may forbid speech that advocates the use of force or unlawful action if:
1) The speech is directed to inciting or producing imminent lawless action; and
2) It is likely to incite or produce such action.
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