Con Law Tests - Charts

pafuveni's version from 2016-12-05 16:58

Cases and Controversies requirements

Question Answer
A case must be justiciable, meaning(1)standing (2)ripeness (3)mootness (4)not a political question (5)check for 11A issues and abstention issues
Standing requirements(1)Injury (2)Causation & redressability (3)no generalized grievances (exception: expenditures pursuant to establishment clause) (4)no 34d party standing (unless exception)
3rd party standing permittedthe party must meet all of the other requirements for standing and one of these exceptions: (1)third party standing is allowed if there is a close relationship between P and the injured 3rd party (like dr./patient) (2)allowed if the injured third party is unlikely to be able to assert his own rights (3)an organization may sue for its members, if: (a)the members would have standing to sue, (b)the interests are germane to the organization’s purpose, and (c)neither the claim not relief requires participation of individual members
Sovereign Immunity(1) the 11th Amendment bars suits against states in federal court (2) sovereign immunity bars suits against states in state courts or federal agencies
Sovereign Immunity Exceptions(1) Waiver is permitted. The waiver must be explicit (must be an express waiver. (2) States may be sued pursuant to federal laws adopted under Section 5 of the 14th Amendment. Congress cannot authorize suits against states under any other constitutional provisions. (3) the federal government may sue state governments. (4) bankruptcy proceedings: states can’t assert sovereign immunity here
Suits against state officers are allowed when(1) state officers may be sued for injunctive relief, (2) state officers may be sued for money damages to be paid out of their own pockets (3) state officers may not be sued if the state treasury will be paying retroactive damages
Abstention(1) Federal courts may not enjoin pending state court criminal proceedings, except in cases of proven harassment or prosecutions taken in bad faith. (2) A fed. ct. will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law
Congressional Powers(1) No general police power (except for D.C., military, Indian territories, federal land & territories) (2) necessary & proper clause (3) taxing power (4) spending power (5) commerce clause (6) 10th A is a limit on Congressional power (but can attach strings on grants) (7) section 5 of 14A (8) delegation of powers
Review for taxing & spending powersRational basis
Commerce Clause—what congress can regulateWith territories, Indian tribes, and Washington D.C., Congress may exercise federal police powers over noneconomic activities. In the rest of the country, Congress cannot exercise federal police powers but may regulate economic activities that have a substantial effect on interstate commerce: (a) the channels of interstate commerce ex. the highways, waterways, internet, etc. (b) the instrumentalities of interstate commerce and persons or things in interstate commerce ex. trucks, places, telephones, internet, electricity, radio waves; stock, cattle, people that go across state lines, etc.


Question Answer
Review for Congress acting under section 5 of 14A(1) Congress may not create new rights or expand the scope of rights (2) Congress may act only to prevent or remedy violations of rights already recognized by the courts. Such laws must be proportionate and congruent to remedying the underlying constitutional violation.
Executive Power(1) treaties (2) executive agreements (3) commander in chief (4) appointment & removal power (5) impeachment & removal (6) immunity (7) privilege (8) pardon
Federalism(1) preemption (express & implied) (2) dormant commerce clause (3) privileges and immunities clause of Article IV (4) privileges and immunities clause of 14th A (5) state taxation of interstate commerce (6) full faith & credit
If a statute discriminates against out-of-staters(1) if the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. The state or local law must also be necessary (no less discriminatory alternative will let it achieve its objective). (exceptions market participant & congressional approval) (2) if the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose
If a law does not discriminate against out-of-staters(1) the privileges and immunities clause of Article IV does not apply (2) if the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits
Due Process balancing test(1) the importance of the interest to the individual (2) the ability of additional procedures to increase the accuracy of fact-finding i.e. would more procedure lead to batter decisions & reduce erroneous ones (3) the government’s interests (usually in efficiency & saving money)
Test for laws affecting economic rightsRational basis
Test for taking(1) is there a taking (possessory or regulatory) (2) is it for public use (3) is just compensation paid
Test for contracts clause(1) applies only to state or local interference w/ existing contracts (2) if private contract being interfered with: intermediate scrutiny (3) if govt. contract being interfered with: strict scrutiny
Test for privacy under substantive due processprivacy is a fundamental right, so strict scrutiny
Test for right to travelfundamental right under equal protection, so strict scrutiny for laws that prevent people from moving into the state and residency requirements
Test for restrictions on right to vote(1) on a group: strict scrutiny (equal protection) (2)to prevent fraud: on balance desirable
Classifications based on race & national origin(1) equal protection for state/local; due process for fed. (2) strict scrutiny (classification on face or discriminatory impact & intent)
Classifications based on gender(1) equal protection for state/local; due process for fed. (2) intermediate scrutiny (classification on face or discriminatory impact & intent)
Alienage classifications(1) equal protection for state/local; due process for fed. (2) strict scrutiny unless classification related to self-government & democratic process (that’s rational basis)
Classifications for non-marital children(1) equal protection for state/local; due process for fed. (2) intermediate scrutiny
Content based (subject matter restrictions & viewpoint restrictions) restrictions reviewstrict scrutiny
Content neutral laws burdening speech reviewintermediate scrutiny
Review of prior restraintsStrict scrutiny
Standard for licensing schemesThere is an important reason for licensing and clear criteria leaving almost no secretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review
Restrictions on symbolic speech review(1) govt. has an important interest unrelated to the suppression of the message, and (2) the impact on communication is no greater than necessary to achieve the government’s purpose.
When govt. can punish speech that incites illegal activityif there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
When govt. can punish obscenity(1) the material must appeal to the prurient interest (local/community standard) (2) the material must be patently offensive under the law prohibiting obscenity (look to the law used and what it defines as patently offensive; local/community standard) (3) taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (determined by a national standard).
Review of commercial speech—ads for illegal activity or false/deceptive adsAre not covered by 1A.
Review of commercial speech—true commercial speech that inherently risks deception(1) the government may prevent professionals from advertising or practicing under a trade name (2) the government may prohibit attorney, in-person solicitation of clients for profit (3) the government may not prohibit accountants from in-person solicitation of clients for profit
Review of commercial speech—all other(1)intermediate scrutiny (2) narrowly tailored (but doesn’t have to be least restrictive alternative).
Public Forums & Designated Public Forum Rules(1) regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met (2) the regulation must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication (3) government regulation of public forums need not use the least restrictive alternative (4) city officials cannot have discretion to set permit fees for public demonstrations.
Limited Public Forums & Non(1)public ForumsGovernment can regulate speech so long as the regulation is reasonable and viewpoint neutral.
Review of laws that punish or prohibit group membershipStrict scrutiny; To punish membership in a group it must be proven that the person (1) actively affiliated with the group, (2) knowing of its illegal activities, and (3) with the specific intent of furthering those illegal activities.
Establishment Clause—Lemon TestLemon test (a law is unconstitutional if it fails any prong): i. there must be a secular purpose for the law (primary purpose can’t be to enhance/inhibit religion) ii. the effect must be neither to advance nor inhibit religion (govt. must not symbolically endorse a religion or a particular religion) iii. there must not be excessive entanglement with religion (govt. generally can’t directly pay teachers’ salaries at parochial schools, for example)
Test for govt. discriminating against religious speech or among religious sectsstrict scrutiny