Con Law Rule Statements 1. Standing: A person must have a concrete stake in the outcome of a case. They must demonstrate: Injury (has been or will be directly injured by the regulation), causation (connection between injury and conduct), and redressability (a decision must be capable of elimintating grievance). Organizational standing: An organization has standing if: there is an injury to its members, it is related to the organization’s purpose, and their participation is not required. Ripeness: A plaintiff is not entitled to review of a statute before its enforcement unless the p will suffer some harm or immediate threat of harm. Mootness: A real controversy must exist at all stages of review. If the matter has already been resolved the case will be dismissed as moot. Suits barred: The 11th amendment prohibits federal courts from hearing a private party’s or foreign government’s claims against a state government. Powers of Congress: Congress can exercise those powers enumerated in the Constitution plus all auxillary powers necessary and proper to carry out all powers vested in the federal government. Necessary and Proper Clause: Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. Taxing power – Congress: Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production. Spending power: Congress may spend to provide for the common defense and general welfare. Spending may be for any public purpose.
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10. Commerce Clause: Congress has the exclusive power to regulate all foreign and interstate commerce. To be within Congress’s power under the commerce clause, a federal law regulating interstate commerce must either: regulate the channels of interstate commerce, regulate the instrumentalities, or regulate activities that have a substantial effect on interstate commerce. 11. War power-congress: The constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy. 12. Takings-Congress: Congress has the power to dispose of and make rules for territories and other properties of the U.S. While there is no express limitation on Congress’s power to dispose of property, federal takings must be for the purpose of effectuating an enumerated power granted by the constitution. 13. Delegation-Congress: Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress. 14. Appointment-President: The executive appoints all amabassadors, other public ministers, and consuls, justices of the supreme court, and all other not provided for by the Senate. Congress can appoint members to inferior offices to the president. 15. Removal-President: The president can remove high level, purely executive officers at will without any interference by Congress.
16. Privileges and Immunities: The interstate privileges clause prohibits discrimination by a state against non-residents. Only fundamental rights involving commercial activities and civil liberties are protected. 17. Dormant Commerce Clause: If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. To do so, however, it must not discriminate against or unduly burden interstate commerce. If it does, the state regulation will violate the commerce clause. However, a discrimintaroy state law may be invalid if it furthers an important state interest and there are no reasonably non-discriminatory alternatives available or it is acting as a market participant. 18. Balancing non-discriminatory state law: If a non-discriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider if there are less restrictive means available. 19. Taxing power – states: Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the commerce clause. A non-discriminatory tax will be valid if the following is found: the tax must apply to an activity having a substantial nexus to the taxing state, it must be fairly apportioned according to a rational formula, and must be fairly related to the services by the state.
20. State action: State action can be found where there is involvement by a government, or by private individuals who perform exclusive public functions or have significant state involvement. 21. Substantive Due Process: When a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard is applied. 22. Procedural Due Process: A fair process (notice and hearing) is required for a government agency to individually take a person’s life, liberty, or property. Only intentional deprivation of those rights violate the due process clause. 23. Liberty right: A deprivation of liberty occurs if a person: loses a significant freedom of action or denied a freedom provided by the constitution. 24. Property right: Property includes an entitlement to a benefit under state or federal law. 25. Procedural due process-procedure: The required procedures are based on: the importance of the interest, the value of the procedural safeguards, and the government interest in administrative efficiency. 26. Takings clause: The 5th amendment provides that private property may not be taken for public use without just compensation. It is applicable to the states through the 14th amendment. It is a limitation. It includes not only physical but regulatory forms. 27. Strict Scrutiny: Regulations affecting fundamental rights or involving suspect classifications are reviewed under this standard. The law is upheld if it is necessary to achieve a compelling government purpose. 28. Intermediate Scrutiny: Regulations involving quasi-suspect classifications are reviewed under this standard. The law is upheld if it is substantially related to an important government purpose. 29. Rational Basis: Regulations that do not affect fundamental rights or involve suspect or quasi suspect classifications are reviewed under this standard. The law is upheld if it rationally related to a legitimate government purpose. It is an easy standard to meet and valid unless it is arbitrary or irrational. 30. Equal Protection: If a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation. For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent can be shown by: discriminatory on its face, discriminatory application of a facially neutral law, or a discriminatory motive behind the law. 31. Classification of groups: Classifications are suspect if they are based on race, national origin, or alienage. Classifications based on legitimacy and gender are quasi suspect. All other classifications are evaluated under the rational basis standard. 32. Fundamental Rights: Certain fundamental rights are protected under the constitution. Various privacy rights including marriage, sex relations, abortion, childrearing are fundamental rights. Regulations affecting these rights are reviewed under the strict scrutiny standard. 33. Speech: The 1st amendment prohibits congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly. These prohibitions are applicable to the states through the 14th amendment. 34. Content/content-neutral regulation: Speech regulations can generally be categorized as either content regulation (forbidding communication of specific idea) or conduct regulation (conduct associated with speaking). It is presumptively unconstitional to place burdens on speech because of its content except for certain categories (obscenity, defamation, etc.) Content-neutral regulations generally subject to intermediate scrutiny. 35. Conduct/Time,place,manner regulations: The government has power to regulate the conduct associated with speech. The scope of the power will depend on what type of forum is being regulated. Public property (historically open to speech-related activities) and designed public forums (the government has open for a limited period) can be regulated where the regulation is content neutral, narrowily tailored to serve a significant government interest, and leaves open alternative channels of communications. 36. Overbroad: If a regulation of speech punishes a substantial amount of protected speech, the regulation is facially invalid unless the court can remove the threat to protected expressions. 37. Vague: If a law fails to gives persons reasonable notice of what is prohibited it may violate the due process clause. This is applied to the 1st amendment activities. 38. Prior restraints: Prior restraints prevent speech before it occurs. To be valid the following must be found: must be narrowily drawn, reasonable, definite, prompt, and must be a final determination of the validity of the restraint. 39. Freedom of press: Generally, the press has no greater first amendment freedom than does a private citizen.
40. Freedom of Association: The government may neither prohibit or unduly burden a person’s right to belong to a group. Infringements may be justified by a compelling state interest, unrelated to the suppression of ideas, with the least restrictive means available. 41. Establishment Clause: The establishment clause prohibits laws respecting the establishment of religion. If a government regulation includes a preference for one religion over another it is invalid unless narrowily tailored to promote a compelling govt interest. If there is no preference, it is valid if: it has a secular purpose, primary effect neither advances nor inhibits religion, does not produce excessive govt entanglement. 42. Free Exercise Clause: The free exercise clause prohibits government from punishing someone on the basis of their religious beliefs. Approaches 1. Justiceability: Standing, ripeness, mootness, political question 2. Executive Power: foreign/domestic 3. Legislative Power: necessary/proper, commerce, taxing/spending 4. State regulation: a. 10th: Any Fed reg on point, discriminate or place undue burden, if discrim-invalid unless furthers important state interest and no alternatives available. 5. Procedural Due Process: notice and hearing 6. Substantial Due Process: fundamental rights 7. Equal Protection: state action, classification, level of scrutiny, have they met the level. 8. First Amendment: free speech, association, religion – exercise/establishment