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Con Law - Coggle Diagram
Con Law
Dormant Commerce Clause
Discriminatory State Law = presumptively invalid, but valid if 1) necessary to achieve purpose unrelated to protectionism 2) No non discriminatory alternatives
Non-discriminatory State Law= Presumed Valid, but invalid if burden outweighs benefit
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Powers
Justiciability 1) No advisory opinion, lack of actual dispute, or lacks legally binding effect2) Ripeness: a) no pre-enforcement review, but may review if fit for judicial decision and result in substantial hardship if absent of review b) mootness: live controversy + ongoing injury. Exception to mootness: 1) capable of repetition, but evading review 2) D voluntarily stops, but can resume 3) class action with 1 live claim
3) Standing: Injury = concrete /particularized harm to P b) has occurred or imminent c) pre-enforcement review: likely to cause future harm d) no standing= ideology, general grievanceCausation= Injury traceable to DRedressability= Win can remedy injury via damages or injunction
More on Standing: 1) Standing ok= allows suit for taxing a particularized person 2) standing ok=Congressional spending violation of establishment clause and applies only to congressional spending 3) No 3rd party standing except, a) Claimant w/standing and hard for 3rd party to assert right/special relationship or b) Organization: injury to members; members injury related to purpose; and member participation not needed; or free speech overbroad
Note: Only exception that allows person to sue congress based on how congress spends money is under establishment clause!!
Live Case/Controversy: Art. 3, No advisory opinion and ct. can only decide live case/controversy--No standing for cases involving proposed legislation
Fed Ct. Review State Action: Fed Ct. will not hear pending crim. case in state action unless there is bad faith from State
Sovereign Immunity: 1) Person can't sue state except, waiver or express structural a) local govt/entities b) states can sue other states c) fed govt can sue states d) state officials e) where congress abrogates (civil rights laws) 2) Supreme Ct Jx: No review of state ct decision IF adequate and based on independent state grounds
Legislative: Congress doe have general police power except on fed land, reservation, D.C.
Necessary/Proper Clause: Congress can use any rational /const. means to exercise an enumerated power
a) Taxing/spending power: Congress may tax/spend to promote general welfare
b) Spending conditions= strings 1) clearly stated 2) Related to purpose 3) Constitutional 4) Not unduly coercive
c) Commerce power: Congress can regulate commerce w/foreign nations, native americans, and among states
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Interstate Commerce Congress can reg various commerce/activities if has substantial economic effect on interstate commerce 1) Channels (includes transport harmful substance)2) Instrumentalities 3) Local activity w/aggregate effect
ICC & Fed Law: Fed law preempts state law. If no fed law, state can't unduly burden interstate commerce
ICC Limitations: 1) 10th Amend: can't regulate noneconomic activity traditionally regulated by states 2) Cannot compel activity
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Congress Can Delegate CC power as long as intelligible standards set and power not exclusive to congress
Remember: NO congressional general welfare power---only spending power that allows congress to spend for general power
Delegation: 1) Congress may delegate power but must include intelligible standards and power does not uniquely belong to congress 2) Major Questions Doctrine: Reg. of extraordinary economic and political significance = Need clear congressional authorization
Congress and Foreign Affairs: Power to reg. foreign commerce lies w/Congress but congress may delegate power to president
Retro-active Legislation
Contract Clause: State/local laws can't retroactively impair contract rights (Note: may violate due process)
1) Private Contracts: intermediate
2) Public Contracts: Strict scrutiny (Can't pass self-serving laws that lets state off the hook!)
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Ex-post Factor Law: Cannot retroactively alter crim liability, includes:
1) criminal conduct, increase punishment, reduction in evidence requirements
Bill of Attainder: Legislation that punishes people w/out trial = unconstitutional
Speech Debate Clause: Any speech in house of congress shall not be questioned in any other place--immunity covers aids to assist
Separation of Power: 1) No line item veto. President can only sign/veto (need bicameralism and presentment) 2) No legislative veto (need bicameralism and presentment)
Executive: Implied Presidential Power 1) strongest when auth. by congress 2) where congress silent, If President acts in congressional twilight zone, then past hx and tradition will apply and is okay 3) If president acts against congress, weak claim of proper authority - Foreign Powers: Decision to deploy troops, likely not justiciable
Treaties: 1) negotiated by president 2) approved by 2/3 senate 3) Constitution> Federal law (treaties) >State law 4) Conflict w/Fed. law= last in time rule (later law trumps earlier law)
Executive Agreements: 1) No senate approval 2) Constitution> Federal law> Executive agreements > State Law
Power over Military: Congress/President have shared power over military- Pres is Comm-in-Chief of military, but Congress has power to declare war/raise navy and army
Presidential Privilege: 1) Priv extends to military/diplomatic secrets and all comms between president & advisors, but can be taken away of conflicting consideration outweighs the interest in confidentialit
Federalism: 1) 10th Amend: Powers not granted to fed govt are reserved to states/people 2) State Police powers: Rational basis and legitimate purpose 3) Anti-commandeering: Cannot mandate states to run govt programs
Supremacy Clause: Where fed and state have power to regulate, the fed law is supreme and conflicting state law superseded by fed law 1) Express 2) Implied: a) conflict b) state impedes state law c) field preemption
State Reg. Fed Activities: States have NO power to regulate Fed. govt activates unless congress consents
Privileges and Immunities - art 4: Prohibits states from discriminating against out of state citizens
1) Important commercial activities and ability to earn living
2) Only applies to U.S. citizens
3) Not absolute- necessary for state purpose and no less restrictive means to achieve
State Action
Intergovernmental Immunity: State cannot reg. fed govt unless congress consents. Fed agents/instrumentalities immune from state regs that interfere w/govt functions
State tax of Fed Officials/Prop: Non discriminatory, indirect tax on fed govt or property OKAY if they don't unreasonably burden govt
State Supreme Ct. v Fed Supreme Ct. : 1) Fed SC can hear appeal from state SC regarding constitutionality of state law 2) If different interpretations of state law based on fed law, the fed SC could reverse state ct. decision OR decide if state law okay because state has authority to grant greater protection than what fed grants
Citizen Suing State: 11th amend prohibits state citizens from suing in fed ct. but fed may hear claim for damages against state official where effect is to order injunction to pay FUTURE money to comply with order
(Note: Fed cannot order damages that come from money from state treasury--violates 11th amend.)
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First Amendment
Speech
What is Speech? 1) Words 2) Symbols 3) Conduct that is: a) inherently expressive or b) intended to convey message and reasonably likely to be perceived as conveying message
Un-Protected Speech: 1) Incitement 2) Obscenity: Intended to produce imminent, lawless action, AND likely to produce such action 3) Fighting Words: Personally abusive words likely to incite immediate physical retaliation for average person 4) True Threats: words intended to convey to someone a serious threat of bodily harm
Obscenity (UNprotected): Describes/depicts sexual conduct specified by stat, taken as whole, by average person: 1) Appeals to prurient interest sex (intended to arouse) = contemporary community standard 2) Patently offensive= contemporary community standard 3) No serious value= national standard, reasonable person standard
- In home possession protected, except child porn: sale/distribution of visual depiction of sexual conduct involving minors, even if not obscene if it did not involve minors
Defamation: Public official/public figure
1) Must show elements of defamation, plus falsity and actual malice: Actual malice is knowledge of falisty or reckless disregard for truth ; OR
2) Matter of public concern: issue important to society/democracy3) If private citizen: Actual malice NOT required
- IIED: Where P is public figure/public matter requires actual malice
Partly Protected Speech
Commercial: 1) Not protected if false, misleading, about illegal matters 2) Truthful Commercial Speech is Protected and under intermediate scrutiny- Regulation upheld if: a) serves substantial govt interest; b) directly advances that interest; and c) narrowly tailored to serve that interest
Ads on City Bldg/Commercial Ventures: SC held ads on city bldgs are commercial ventures and upheld when viewpoint neutral and reasonably related to legit govt purpose (slightly different from commercial speech rule)
Protected Speech
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Content Neutral Restrictions : Time, place, manner regulation of speech in public forum must be 1) content neutral 2) narrowly tailored to serve significant govt interest (Can't be overbroad) 3) provide alternative channels of communication
Leafletting & Buffer Zone: SC held buffer zone law prohibiting leafletting around bldgs. too broad and NOT constitutional
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Public School Speech
1) Personal student speech on campus: Cannot censor, absent substantial disruption except, can ban speech on drugs
2) Personal student speech OFF campus: Limited restrictions and can limit to prevent bullying, cheating, threats, and safety/educational concerns outweigh speech interests
3) Other School Speech: Restrictions must be reasonably related to educational objectives
Speech in Public Employment
1) Some speech unprotected: workplace speech on matter of private concern and speech pursuant to official duties
2) Some speech protected: a) Speech as private citizen on matter public concern- balance value of speech w/interest in efficient workplace and b) speech as private citizen on matters of private concern- unclear, probably protected absent detrimental effect
Vagueness Doctrine: Due process violated for laws that don't give reasonable notice of what is prohibited
- Based on 1st amendment, applies more strictly in free speech
- In general, Regs are invalid if bans substantially more speech than necessary
Prior Restraints: Injunctions and Licensing Schemes
1) Disfavored but treated under standard free speech doctrine: a) Content based-SS b) Content neutral- Intermediate S
2) Content based prior restraints usually fail absent special societal harm
3) Licensing schemes require procedural safeguards: a) well-defined standards b) prompt appeals/judicial termination c) no unfettered discretion
Freedom of Religion
Free Exercise Clause: 1) Prohibits govt from discriminating based on religious belief status, conduct 2) Religious beliefs covered based on role in believer's life 3) Courts can question sincerity, not truth
Free Exercise Clause: Laws Discriminating Based on Religion- SS
1) Includes laws: a) Facially discriminatory based on religion or b) facially neutral but narrowly tailored to target religion (by design)
2) Neutral laws of General Applicability: Not subject to free exercise clause a) But a law that gives officials discretion to grant exemptions is not generally applicable b) Refusing religious exemption request may trigger SS
3) Religious exemptions from generally applicable laws not usually required, with a few narrow exceptions i.e., employment discrimination in clergy
Establishment Clause
1) Neutrality principle: a) Govt must remain neutral b) Neither favor nor disfavor religion
2) Coercion Prohibited: Cant' directly/indirectly coerce people to exercise/not exercise religion
3) History/Tradition: Must be interpreted by reference to Hx practices and understandings
4) Can neutralize religious message, making nonneutral practice acceptable
Govt Discriminate Among Religions: When govt. discriminated among religions, there must be compelling govt interest to be upheld
Right to Assembly: 1st and 14th amend protect right to expression and assembly. Presumptively unconstitutional for govt to restrict speech based on content and state must prove law furthers compelling govt interest narrowly tailored to further goal to be upheld
Individual Rights
General Rules 1) Private party can't violate constitution re: censorship/discrimination--only govt 2) Due process 14th amend applies most rules to state/local govt 3) State Action Doctrine: Govt action needed for constitution to apply a) laws b) not private action, except activities traditionally and exclusively performed by govt c) significant state involvement in private conduct
Levels of Scrutiny
Rational Basis 1) No fundamental rights involved or No Suspect class 2) Challenger must prove reg not rationally related to legitimate govt purpose 3) Burden on challenger
Intermediate Scrutiny 1) Quasi-suspect class (gender/legitimacy) 2) Govt must prove reg substantially related (narrowly tailored) to important (significant) govt purpose 3) Burden likely on govt
Strict Scrutiny 1) Fundamental right/suspect class involved 2) Gov't has burden to prove reg necessary to compelling govt purpose (least restrictive alternative) 3) Usually found invalid b/c burden so high
Taking Clause: Govt may tale prop for public use only, but must pay just compensation
What is a taking? 1) physical confiscation 2) Permanent, regular occupation 3) temporary occupation= case by case analysis 4) Exceptions; development conditions and public emergency
Regulatory Taking:
1) Reg leaves no economically viable use = taking
2) Regs decreases economic value= apply balancing test: a) economic interest b) investment backed expectations c) public interest
3) Public Use: Rationally related to public health, safety, welfare
4) Just compensation: FMV at time of taking