Con Law cheatsheet PDF

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Cheat sheet designed for Professor Black's exam. It covers all of the information he tests on his exam. ...

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Two Central Questions/What to ask for Exam Power: Does the federal government have the power to pass that bill? Liberty: Has congress or state violated the right of a citizen? Has the state invaded the rights of an individual or a federal statute? Always argue both ways. Do not stretch the facts to make an alternative position. Look for certain groups named in the statute. Ways to read the constitution Strict Originalism: Plainly states rules and prohibitions. Pro: Restricts judicial activism, you can amend it with the amendment process. Con: Impossible to apply, inconsistent with the framers intent. Majority rule. Abstract Originalism: Gets at the idea or spirit of what the framers had in mind when writing the constitution. Modified/ Interpreted Originalism: Con: might prevent constitution from evolving. Give framer’s original intent more weight. Original Meaning: Uses history and tradition, Definitions, Plain meaning. Tradition: If it was the tradition at the time, it was unlikely that the framers intended the tradition to stop. The traditional meaning to the framers is what holds sway. Con: lots of shitty traditions. Non-origanilaism: Court should go beyond four corners of the constitution, Consistent evolution. Structural Interpretation: How it deals w/ constitution, Has to do with state militia to protect from federal. Process based theory: Courts protecting process, Police the process, Did process uphold values in the constitution? If the constitution is about setting up a process that if we follow, it will produce just results.

Separation of Federal Powers: Role of the Judiciary: Marbury v. Madison: This case creates the authority for judicial review of executive actions AND legislative acts, which allows the Supreme Court to review the constitutionality of federal laws Constitution is regulatory, not just a declaration of independence. What kind of executive conduct can the court review? If discretionary, the court CANNOT review executive conduct— acts where the executive has discretion as to how to act. i.e. president vetoing a bill, appointing an officer. If mandatory/ministerial, the court can review executive conduct—government duties. i.e. congressional budget ***Also establishes that Article III authorizes the maximum jurisdiction of the federal courts and Congress cannot authorize the federal courts to hear cases beyond the scope of Article III. Congress cannot increase jurisdiction of federal courts. Art. III: Constitution creates Supreme Court, But Congress creates all lower courts. Martin: Establishes the SC’s authority to review state court decisions. SC review is essential to ensure uniformity in the interpretation of federal law. The Supreme Court has adhered to the principle that it will not review state court rulings on issues of state law. Legislative/Congress: Can raise armies, declare war, piracy, and regulate commerce/foreign or domestic Art. 1 §8. Always ask: Can congress do that?* Congress can choose inferior officers. Cannot transfer legislative functions or abdicate them. Cannot expand Presidents ability in law making. (Panama Refining Co.) Cannot compel the states to enact or administer a federal regulatory program or circumvent that prohibition by conscripting the state’s officers directly. (Printz) Cant force states to do something or carry out an objective like forcing NY to create a radioactive facility. (New York). Congress cannot expand president’s ability in law making. Executive Privilege: is the ability of the president to keep secret conservations with or memoranda from advisors. President has it but not in the constitution (U.S. v. Nixon) Not absolute, must be balanced against fair judicial processes and the rule of law. Need to protect military, diplomatic, or sensitive national security secrets.. Executive Powers: (Con provisions) Can make treatises, commander in chief, appoint ambassadors, and principal officers. Prez has authority with foreign affairs beyond constitution due to his expertise in the field, foreign powers different from domestic (Curtis-Wright). Tripartrite powers: Lowest Ebb: when president acting contrary to congress, must have constitutional authority. Zone of twilight: when congress has been silent, some authority to act, need to look if acquiescence or historical progress. Max power: when congress and prez working together, court will defer unless violating individual rights. Line Item Veto: There is no provision in the Constitution that authorizes the President to enact, amend, or to repeal statutes. (Clinton v. City of NY) The President may initiate and influence legislative proposals BEFORE they become law. Normal Veto is only constitutional way to stop a bill. Congress cannot give the President the authority to cancel a bill after it is law or knock out part of the law; this is unconstitutional. Agencies: Congress cannot delegate its legislative power to administrative agencies. Agencies cannot be vetoed; need statute to override. Cannot have unlimited code making ability with no limits. Intelligible Principle: when Congress confers a decision-making authority upon agencies, Congress must lay down by legislative act an “intelligible principle” to which the person or body authorized to act is directed to conform (Whitman). Lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform. Congress has never ruled an agency to be unconstitutional. Appointment/Removal Power: Only way to impeach is the two methods in the constitution; Court cannot get involved. RULE: Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the head of departments, or by the Judiciary. Identify whether principal vs. Inferior officers, look to see if it is a executive position vs. a legislative position. The Constitution does not speak as to the removal so the President must have the power to remove since he has the power to appoint (inherent). Court upheld Congress’s ability to limit removal of member of the Federal Trade Commission by President since it is not purely executive but a quasi executive/quasi legislative. (Humphreys) A president may not remove a commissioner just because he wanted to appoint his own. (Wiener) President must have “good cause” to remove an executive officer if Congress includes this limitation in the statute (Morrison v. Olsen). A good test is loyalty to the president, if absolute loyalty to the president then probably can remove at will. U.S. Comission on civil rights – fits into third category of not . Recess appointment: Can appoint without approval of senate. President can fire a position inside the executive branch such as appointed cabinet. Foreign Power: Foreign affairs are different from Domestic and the president is the sole organ of the nation in external relations as his experience is better suited to understand foreign affairs. Executive Agreements and Treatises: Article II states that the President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided 2/3 of the senators present concur.” Treaty: an agreement between the U.S. and a foreign country that is negotiated by the President and is effective when ratified by the Senate. Executive Agreement: an agreement between the U.S. and a foreign country that is effective when signed by the President and the head of the other government. i. No senate ratification necessary. ii. Don’t bind successive presidents. Only congress can provide navy or army to command. Congress has acquiesced in the President’s action so Judicial will not get involved. (Dames & Moore v. Regan) No inherent power; Comes from congress or constitution. Presidential Immunity/ Impeaching a President: Rule: Presidential immunity in some civil cases; not in criminal. No blanket privilege for president for official functions President has absolute immunity. (Nixon v. Fitzgerald) The president’s absolute immunity does NOT extend to unofficial acts. Article I: House of representatives has the sole power to impeach; Senate has the sole power to try impeachments and must have 2/3 members present. Power between the Congress and the States: Necessary and Proper Clause: Congress can exercise power that it not expressly authorized by the Constitution because of the Necessary and Proper Clause. The clause gives Congress the power to enact legislation that is pursuant to the enumerated powers, as long as it is consistent with the letter and spirit of the Constitution. Commerce Clause: What things can Congress regulate under the Commerce Clause? Congress only needs a rational basis regulating a market. Things that can be regulated: 1.Channels of interstate commerce (roads, r.r., airways, waterways) 2. Instrumentalities that affect interstate commerce (businesses, pilots, truckers, anything that takes part in interstate commerce, even if the thing doesn’t leave the state) 3. Things which move across state lines products. 4. Activities that substantially affect interstate commerce (any activity that might have an effect on interstate commerce… i.e. holding corn or people who don’t get medical insurance, which drives up the cost of all of the industry across the nation) 5. Employment relations. Congress cannot coerce states through commerce clause (Seblius is the only case). Congress cannot regulate inactivity through economic reasons. Congress may offer incentives for states to follow their legislation through the spending clause, also under the commerce clause it may regulate states decisions through regulations if it affects interstate commerce. Three-part test: 1.The channels of interstate commerce 2. The instrumentalities of interstate commerce and persons or things in interstate commerce, and 3. Activities that have a substantial effect on interstate commerce. Intrastate production of a commodity sold in interstate commerce is economic activity and thus substantial effect can be based on cumulative impact. (Gonzalez v. Raich) Prohibiting the intrastate possession or manufacture of an article is a rational means of regulating commerce in that product. Use for gov’t defending its regulation of an item* Falls under Necessary and Proper. (Gonzales/Lopez) Items being close to schools such as guns are not interstate commerce and cannot regulate them; nor can they mere possession of an item in commerce (Lopez). Court upheld the Act and its application to small business. Congress rationally concluded that discrimination by restaurants cumulatively impacts interstate commerce. (Katzenbach) Taxing and Spending Powers: Congress can tax for the general welfare so long as it does not violate a constitutional provision. (Butler) Rule: The Court has held that Congress may place conditions on such grants, so long as the conditions are expressly stated and have some relationship to the purpose of the spending program. *Look for language that makes it look like a command and not an option. Congress cannot coerce but may place strings on grants to state and local governments. Sebelius is upheld as a tax, tax was uniform without any circumstances therefore reasonable. Congress can spend on general welfare (Sebelius) Limitations on Spending Power: 1) The spending must be in pursuit of the general welfare. 2) If congress desires to condition the states’ receipts of federal funds, it must do so unambiguously, enabling the states to exercise their choice knowingly, cognizant of the consequences of their participation. 3) Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs. 4) Other constitutional provisions may provide an independent bar to the conditional grant of federal funds. 5) Cant be coercive - Sebelius is first example. Powered by the N + P clause, can pass “plainly adapted laws.” Can offer money as an incentive for states to do something. (Dole) Privilege and Immunities clause: right to travel between states. Dormant Commerce clause: States cannot burden interstate commerce clause. Pre-emption: Can invalidate state laws by passing federal laws to expressly pre-empt or that make state laws incompatiable with fed law. §5 Powers: Yes, if the statute remedies or prevents what the Court has ruled to be constitutional violations, and if the legislation is proportional and congruent to the harm. 10th amendment: Anti-Commandeering Principle: State sovereignty cannot be infringed upon by requiring state executive officials to further Federal goals/polices 1. Historically – no executive-commandeering statutes 2. Violates Separation of Powers: Constitution vests all executive power in the president and Congress had impermissibly given executive authority to implement a fed law to state and local law enforcement personnel. Reno v. Condon (2000) i. Facts: Federal law prohibited states from disclosing personal information from DMV ii. Holding: Valid constitutional exercise of Commerce power because Congress is regulating states as commercial entities 1. Congress can prohibit activity, but just cannot compel it  distinct from New York or Printz. Due Process Clause Liberty v. Property Interest: Property interest – real, personal, affirmal. Once defined, it must follow constitution; cannot give you less. Liberty – movement, integrity, reputation (Griswold protects). Tricker to find. Economic Liberty: generally refers to the constitutional rights concerning the ability to enter into and enforce contracts; pursue a trade or professional and to acquire, possess, and convey property. Only need to pass rational basis test, focus is on the sufficieny of the justification. State likely to have reasons for passing economic laws. (Wiliamson v. Lee Optical) “The law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was rational way to correct it.” Id. Only grossly excessive punitive damages violate the DPC of the 14th amendment. State can’t punish a company for impact outside the state. (BMW v. Gore) Three-prong test: 1) Degree of reprehensibility 2) Ratio between damages – actual harm 3) sanctions for comparable misconduct. Highest ratio is 10:1. Exception very reprehensible but damages are low. Taking Power: In Penn and Lucas Court held a conditional regulation over the development of property is a taking if—the burden imposed by the condition is not roughly proportionate to the government’s justification for regulating. States can’t be allowed to tax since it would essentially confer supremacy to the states. Power to tax involves the power to destroy. A property bought with intent to profit on before a passing of the act which has been rendered valueless through an act must be paid for. (Lucas v. S.C. Coastal Council) Possessory takings: If the government takes and possesses property—that is a taking. Includes condemnation. Regulatory Taking: 1) the government regulation interferes with regular use based on intent of owner when he purchased it; 2) Regulation must be absolute bar to all change; 3) nature of intrusion must not be for best interest of the public. Look to see if it goes to far.* Preventing an owner of land from doing with the land what he pleases—prohibits a landowner from acting upon a right he had. Every regulation is technically a taking, but if the government paid for every regulation, the government would go broke. Procedural: procedures that the government must follow before it deprives a person of life, liberty, or property. Required Procedures: 1) notice of the charge or issue. The opportunity for a meaningful hearing 3) an impartial decision maker. Negligence is not enough to be a deprivation, not intentionally. Prisoner case. (Daniel v. Williams) Recklessness or Deliberate indifference is enough. In emergency situations the test is shock-the-conscious. (City of Sacramento v. Lewis) Slaughterhouse cases prevent the Bill of rights being incorporated to the states through Privileges and Immunities clause, so Congress used the DPC of the 14th amendment. Rule: A states failure to protect an individual against private violence does not constitute a violation of the DPC, regardless of intent, not an affirmative obligation. (DeShaney) An entitlement is a property interest requiring due process. The government must provide notice and a hearing before terminating a person’s welfare benefits. (Goldberg v. Kelly) A property interest in employment can be had when there is a

reasonable expectation of employment such as statute or contract. (Board of Regents v. Roth) Social Security benefits only need a post termination hearing. (Matthews Eldredge). The welfare is based on income and more likely to hurt an individual quicker while Social Security is based on unbiased medical reports and are still able to work and make income. Balancing test: 1) The private interests that will be affected by the action 2) The ability of additional procedures to increase the accuracy of the fact-finding AND i. The risk of an erroneous deprivation of such interest through the procedures used 3) The government’s interest—administrative burdens of additional procedural requirements. i. Not willing to spend an enormous amount of money to fix a few cases. Fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner. (Matthews v. Eldridge) The court has recognized the right of an individual to deny paternity; the Court has held that the government must pay for blood tests for indigent defendants in paternity cases; the Court has held that the government need not automatically provide an attorney to indigent parents at paternal termination proceedings. Inmates/convictions: Any crime with a punishment of prison, the state must provide an attorney. (Gideon v. Wainright) Congress cannot create barriers to prevent indigent criminals from appealing. There is no constitutional right to appeal but the government must provide an indigent defendant an attorney but limited to first appeal. Substantive: Whether the government has an adequate reason for taking away a person’s life, liberty, or property. Fundamental rights must meet Strict Scrutiny. Non-fundamental rights must meet rational basis. Right to purchase + use contraceptives: fundamental right protected through privacy of marriage and 9th amendment penumbras. (Griswold v. Connecticut) Extended through to unmarried couples. (Eisenstadt v. Baird) State cannot interfere with couples speaking to doctors and receiving information. Right to abortion: Women have a right to an abortion before viability without undue interference from the state – (Casey) (not Strict Scrutiny) Undue burden standard: 1) if a state regulation has the purpose or effect of placing a substantial obstacle in the path of the a fundamental right. Interest in fetus after conception. The state may not require the consent of a spouse for an abortion. (Danforth) A waiting period does not impose undue burden as long as its short. (24 hours okay but 48-72 is pushing it). Informed consent also is not an undue burden. State has an interest in life but cannot push preference. Sonograms may be an undue burden, and forcing an ultra sound is unconstitutional. Parents cannot have an absolute veto power over minor for abortion; consent can be required but must have override hearing for minor if she cannot get consent. (Bellotti v. Baird) State action doctrine: – court cannot force private individuals to not discriminate only applies to public entities. Nor can congress regulate private discrimination under § 5 of the 14th amendment. Exception: entanglement: gov’t so entangled w/ private, no way to spate. Leasing space in parking garage to stare; to close together. Family Rights: Parents have a fundamental right to control the upbringing of their children, including religion and education, so long as it doesn’t harm the child. (Meyer v. Nebraska) Parents have a fundamental right to control the upbringing of their children, including what school they’re sent to. Marriage is a fundamental right protected by the 14th DPC. Filing fees for divorce actions violate the DPC of indigent unable to pay the fees law p...