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Constitutional Law Cheat Sheet by

con

Justic­iab­ility

Eleventh Amendment Limitation
Prohibits citizens from one state suing another state in federal court; Congress may abrogate under 13,14, and 15 Amednment
Individual Standing
injury in fact, causation, and repres­sib­ility
Organi­zat­ional Standing
individual members have standing, claim is related to purpose of the organi­zation, and individual members are not necessary to adjudicate the claim
Mootness
Must have a live contro­versy
Ripeness
injury must have occurred and not be specul­ative

Legisl­ative Powers

Commerce Clause
Congress has power to regulate channel, instru­men­tal­ities, and activities that substa­ntially effect interstate commerce
Substa­ntial Effect
Economic activity is presumed to have a substa­ntial effect, can aggregate economic effect
Spending Power
Congress can condition federal funds to states and require states to implement certain regula­tions (condition must relate to purpose)
10th Amendment
Congress cannot commandeer states by forcing them to pass specific legisl­ation
Delegation of Legisl­ative Power
Congress may delegate its powers to an agency as long as it provides reasonably intell­igible standards

Executive Powers

Executive Orders
Domestic Affairs
President has appoin­tment and removal powers, the pardon power, the commander in chief power, and the duty to execute the law
Foreign Affairs
President has the power to conduct foreign negoti­ations, to deploy troops overseas, and to make executive agreements

State Powers

Supremacy Clause
If state law conflicts with federal law, the federal law governs.
Express Preemption
The federal law explicitly states that it is the only law allowed in that area
Implied Preemption
Congress passes a federal law intending to “occupy the field”, state law conflicts directly or indirectly
Privileges and Immunities Clause
Prohibits states from discri­min­ating against nonres­idents, unless it is necessary to achieve an important government interest. Only applies to individual citizens
10th Amendment & Comman­deering
All powers not expressly given to the federal government are reserved to the states.
Dormant Commerce Clause
Clause, a state may not discri­minate against out of state commerce or in a way that unduly burdens interstate commerce.
Dormant Commerce Clause - Discri­min­ation
Can be discri­min­atory on its face or by its impact. State must show important interest and no other non-di­scr­imi­natory means to achieve interest
Dormant Commerce Clause - Unduly Burden
If a statute is not discri­min­atory, the law may still be invalid if causes an “undue burden” on interstate commerce. Court will balance purpose of statute, burden on interstate commerce, and whether there are less restri­ctive altern­atives
Market Partic­ipant Exception
can favor local business if state is acting as a buyer or seller
 

State Action

State Action
The consti­tution protects against wrongful conduct by the govern­ment, not private parties
 
A private entity may be subject to the consti­tution if it is acting as if it is a state

5th Amendment Takings Clause

Government Action
Protects from government “taking” of private property; Includes taking land and also regulatory takings by rezoning, prohib­iting develo­pment, etc.
Private Property
Usually involves land or other real property; Can be other property such as contract and patent rights or trade secrets
Public Use
Must be rationally related to a concei­vable public purpose- Includes health, safety, economic develo­pment, etc.
Physical Taking
Government physically takes or occupies the land
Regulatory Taking
A law has the effect of decreasing the value of the property
Total Taking
the regulation leaves no econom­ically viable use of the property
Partial Taking
the regulation affects some economic use of the land, but there is still some economic use available- economic impact, reasonable expect­ations, character of the regulation
Exaction
Local government may exact promises from a developer in exchange for constr­uction permits. NOT a taking if essential nexus and rough propor­tio­nality
Just Compen­sation
Property owner is entitled to the fair market value of the property at the time of the taking
Zoning
Local govern­ments have the power to pass zoning ordina­nces, so long as they are reasonably related to a legitimate government purpose (health, safety, morals, and general welfare)
Variance
May be granted to allow the owner to continue the noncon­forming use of the land. If not granted, owner must show undue burden
 
Must show that the zoning ordinance amounts to a regulatory taking

Due Process

Procedural
The government shall not deprive a person of life, liberty, or property without due process of law.
Amount of Due Process- Factors
Interest affected, value of additional safegu­ards, burden or cost of additional process
Substa­ntive Due Process
Whether the govern­ment’s action (such as a law or regula­tion) imperm­issibly infringes on an indivi­dual’s rights
Standard of Review- Fundam­ental Rights (life, liberty, property, voting, travel, privacy)
Strict scruti­ny—only valid if necessary to achieve a compelling govern­mental interest
Standard of Review- Non-fu­nda­mental Rights
Rational basis—­valid if rationally related to a legitimate government interest

Equal Protection Clause

Discri­min­ation Requir­ement
Discri­min­atory intent­—strict or interm­ediate scrutiny (depending on classi­fic­ation); Disparate impact­—ra­tional basis review
Strict Scrutiny
Applies to any law involving fundam­ental rights and classi­fic­ations based on race, ethnicity, and national origin. Government must show least restri­ctive means to achieve a compelling government interest
Interm­ediate Scrutiny
Applies to laws involving gender and non-ma­rital children born outside of marriage. Gov. must show substa­ntially related to important government interest.
 
Gender discri­min­ati­on—must also show an “excee­dingly persuasive justif­ica­tion” and that facilities are substa­ntially equivalent
Rational Basis
All other rights and classi­fic­ations. Plaintiff must show not rationally related to legitimate government interest.
Enabling Clause
Under the 14th Amendment, Section 5—Congress may pass legisl­ation to enforce equal protection and due process rights (overr­iding state statutes)
 

Freedom of Speech

Symbolic Speech
Expressive Conduct
Overbr­eadth
A statute is imperm­issibly overbroad if it regulates more speech than necessary to protect a compelling government interest.
Vagueness
A statute is void for vagueness if it fails to provide a person of ordinary intell­igence with fair notice of what is prohib­ited.
Prior Restraints
A prior restraint prohibits speech before it occurs; generally not allowed unless specific procedural safeguards are in place; Standards must be narrowly drawn, reason­able, and definite
Right Not to Speak
Protected by the First Amendment
Content Based
Strict Scrutiny. Government must show the regulation is necessary to achieve a compelling govern­mental interest and narrowly tailored to meet that interest
Content Neutral
Interm­ediate Scrutiny. Government must show that the regulation is substa­ntially related to an important government interest
Time, place, and manner
Validity depends on the type of forum
Public Forum
Content neutral, altern­ative channels of commun­ication be left open, narrowly serve a signif­icant state interest
Nonpublic Forum
basically, any reasonable regulation of speech will be upheld
Limited Public Forum
Describes a place that is not a tradit­ional public forum, but that the government chooses to open to all comers. Only time, place, or manner regula­tions are allowed
Less Protected: Commercial Speech
Commercial speech is protected unless it is false, mislea­ding, or unlawful. Can only be regulated if interest is substa­ntial, regulation directly advances interest, and regulation is narrowly tailored
Unprot­ected
Obscenity, Incitement to Violence, Fighting Words
Defamation
There are consti­tut­ional limita­tions on defamation actions when the plaintiff is a public official or public figure, or the speech involves a matter of public concern.

Religion

Establ­ishment Clause
Prohibits the government from establ­ishing a religion, preferring a particular religion over another, or preferring religion over non-re­ligion
Facially Religious Preference
If statute shows a preference to one religion over another (or to religion over non-re­lig­ion), strict scrutiny applies
Facially Neutral Statute
Lemon Test: The law must have a secular purpose; primary effect neither advances nor prohibits religion; and law does not result in excessive government entang­lement with religion
Free Exercise Clause
Includes the freedom to believe and the freedom to act. Must have a genuine belief in that religion
Belief
A person's beliefs are absolutely protected
Conduct
Laws that intent­ionally target religions conduct are subject to strict scrutiny; Laws that are generally applic­able, but happen to impact religion are subject to the rational basis test

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