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Barbri > Con Law > Flashcards

Con Law Flashcards

1
Q

Ripeness

A

Something is ripe for review, this mean there is harm actually threatened

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2
Q

Mootness

A

Something is moot means it won’t be reviewed, something must be real, live controversy at all stages if the issue has been resolved its moot and it won’t be heard UNLESS the situation is capable of repetition but it keeps evading review

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3
Q

Standing

A

A plaintiff must have standing to bring a suit. Standing is a concrete stake in the outcome at all stages of litigation. To have standing there must be an injury, in fact, causation, and redressability.

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4
Q

Courts won’t issue (2 examples)

A
  1. Advisory Opinions
  2. Won’t hear cases that are adequate and independent state grounds. Federal courts won’t hear appeals from state courts if adequate and independent nonfederal grounds support the state decision.
    However, The Supreme Court may grant certiorari to review a case from the highest court in a state that can render an opinion on the matter if a state statute’s validity is called into question under the federal Constitution.
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5
Q

11th Amendment and Sovereign Immunity

A

A state generally can’t be sued in federal court for damages without the state’s permission. This can be expressly or structurally waived or actions against state officers and removal of immunity under the 14th Amendment are heard in federal court. Under the Eleventh Amendment, a federal court may not hear a private party’s or a foreign government’s claims against a state government. A private state citizen is a private party. As such, the Eleventh Amendment generally bars a private citizen from suing a state government in federal court. A Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court.

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6
Q

Necessary and Proper Clause

A

Congress has the power to make laws necessary and proper for executing any power granted to any branch of the federal government

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7
Q

Taxing & Spending Power

A

Congress can tax and spend for the general welfare and the common defense. If it is revenue-raising it is generally valid. A congressional tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Congress may spend for any public purpose, not merely the accomplishment of other enumerated powers.

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8
Q

When can Congress attach strings to its spending powers?

A

When it is:
1. Clearly States
2. Not unduly coercive
3. clearly related to the purpose of the grant

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9
Q

Enumerated Powers (18 total - 3 big ones) Article 1 Section 8

A
  1. Taxing and Spending Power to tax and spend for the general welfare and the common defense. **
  2. Power to borrow money **
  3. To regulate commerce with states, other nations, and Native American tribes. **
  4. Establish citizenship naturalization laws and bankruptcy laws **
  5. Coin Money **
  6. Power to punish counterfeiters of money and stocks
  7. Power to establish post offices and roads **
  8. Power to regulate patents and copyrights **
  9. Power to establish lower courts from the Supreme Court
  10. Power to establish piracy laws of the sea
  11. To declare war **
  12. Power to raise and support Army and Provide and maintain the Navy
  13. Make rules for the Government and regulation of naval forces
  14. Power to call a militia (National Guard today)
  15. Power of regulating a militia
  16. Power to govern the District of Columbia and properties for federal government purposes **
  17. Authority to create laws that are necessary and proper to carry out the laws of the land (Necessary and Proper Clause) **
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10
Q

Commerce Power

A

Under the commerce power congress can regulate the channels and instrumentalities of interstate commerce. Congress may also regulate anything that has substantial economic effect on interstate commerce

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11
Q

Channels of Interstate Commerce

A

Roads, Rails, Waterways, Phones, etc.

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12
Q

Instrumentalities of Interstate Commerce

A

Planes, Trains, and Automobiles

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13
Q

Property Power/Clause

A

Congress has the power of eminent domain (make government property public and charge a fee for it), to dispose of federal property, and to make rules and laws regulating federal lands and Indian reservations. Congress makes all needful rules and regulations respecting the territory or other property belonging to the United States.

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14
Q

Delegation

A

Congress can delegate its power to other branches when there is an intelligible principle. However, if the agency is seeking to adopt rules having significant financial or political impact it must be able to point to language clearly granting the authority

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15
Q

Speech or Debate Clause

A

Immunity for Speech made within congress

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16
Q

Legislative Veto

A

Congress cannot make a law giving themselves the power to overturn executive actions without passing a whole new law and presenting it to the president (bicameralism and presentment requirements).

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17
Q

Domestic Powers of the President

A
  1. Appointment and Removal
  2. Pardon federal crimes
  3. Veto Power
  4. Power as chief executive and issue Executive orders
  5. President’s plenary power to control executive employees is limited by the Constitution.
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18
Q

Domestic Appointment and Removal Power of the President

A

President can appoint and remove officers and supreme court justices with advice and consent of the senate

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19
Q

Domestic Executive Power of the President

A

The president can issue executive orders but they can be seen as invalid.
1. If a president issues an EO and has express or implied authority from Congress it is likely valid.
2. If a president issues an EO and Congress is silent on the issue it might be upheld as long as it does not impinge on the powers of another branch (twilight zone)
3. If a president issues an EO and Congress expressly is against it it likely won’t be valid

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20
Q

External Powers of the President

A
  1. President may commit troops but not declare war
  2. Treaty Power
  3. Executive engreements
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21
Q

External Treaty Power of the President

A

President can sign treaties with approval of 2/3 of the Senate and the treat is on par with other federal laws and they don’t conflict with the constitution

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22
Q

External Executive Agreement Power of the President

A

The president can sign executive agreement with other countries and they are enforceable as long as they are not in conflict with federal law, other treaties, or the Constitution

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23
Q

Presidential Immunity

A

President is immune from civil suits from actions taken as president and it also extended to presidential aides

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24
Q

Presidential Privilege

A

Any documents and conversations are privileged in criminal cases

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25
Q

Impeachment of Gov. Officials

A

President, VP, and all US civil officers can be impeached for treason. bribery, high crimes, misdemeanors by a majority vote of the house & Tried by Senate & conviction required 2/3 vote of the senate

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26
Q

Supremacy Clause

A

Most governmental power is shared between state and federal governments but there are some things left to the states. However, if there is a conflict federal law is supreme. A state law may fail under the Supremacy Clause even if it does not directly conflict with a federal statute or regulation if it interferes with the achievement of a federal objective or the federal regulations occupy the entire field. Where federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found.

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27
Q

How to Deal with Conflicting State and Federal Laws

A
  1. Actually in Conflict = Federal Law wins, state law is invalid
  2. No actual conflict but there is an interference with Federal objectives = the state law is invalid
  3. Premption
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28
Q

Preemption of State Law ADD MORE TO THIS

A

There is no room for legislation when Congress controls the entire field of a subject.
1. If there is express preemption, preemption must be narrowly construed to that topic
2. Implied Preemption: When a federal law is comprehensive or a federal agency oversees an entire area, preemption may be found
3. Presumption that historic state police powers are not intended to be preempted unless that is a clear and manifest purpose of Congress. Police powers begin in the states but federal law is still supreme if it conflicts. CONGRESS DOES NOT HAVE A GENERAL POLICE POWER.

The U.S. Constitution, federal laws, and treaties are the supreme law of the land; state laws that are in conflict with the supreme law are invalid

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29
Q

Dormant Commerce Clause

A

Congress can delegate some of its commerce powers to the states. States may not intentionally discriminate against interstate commerce. The law can’t be unduly burdensome.

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30
Q

Dormant Commerce Clause Exceptions

A
  1. Can discriminate against interstate commerce if it’s necessary to achieve an important state interest with no reasonable alternatives available.
  2. Can discriminate against interstate commerce if the state legislating is acting as a market participant (however, this isn’t an exception for Privileges and Immunities and they can’t control what happens after goods are sold)
  3. Can discriminate against interstate commerce if it’s a traditional Government Function
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31
Q

Unduly Burdensome Dormant Commerce Clause

A

The burden the law places on interstate commerce cannot outweigh the promotion of a legitimate state interest sought to be served.

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32
Q

Tax Under Dormant Commerce Clause Requires

A

(i) the tax does not discriminate against interstate commerce; (ii) there is a substantial nexus between the activity taxed and the taxing state; (iii) the tax is fairly apportioned; and (iv) the tax fairly relates to services or benefits provided by the state

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33
Q

21st Amendment and the Supremacy Clause

A

Can regulate liquor regulation but can’t favor local businesses

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34
Q

States v. United States

A

US can’t sue states without consent
Staes can’t sue the US without consent
The state can sue other states in federal courts and the supreme court has exclusive jurisdiction over the state

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35
Q

What result from a federal tax or regulation applying to both private and state entities?

A

Generally, it’s valid

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36
Q

What results from a federal tax or regulation of states as states?

A

This is generally invalid. The federal government can’t commandeer state officials but they can place strings on federal grants of money and civil rights.

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37
Q

Federal Commandeering PRincple

A

The federal government can’t require states to regulate their own citizens.

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38
Q

What results from a state directly taxing or regulating the federal government?

A

Invalid

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39
Q

What results from a state raxing federal employees and contractor salaries?

A

Valid - this is an indirect tax

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40
Q

When is private action attributable to the government?

A
  1. The action is traditionally and exclusively a government function
  2. There is significant state involvement such as official encouragement of the use of judicial machinery, and entwinement of state and private actors. Just a mere regulation, provision of public services, or licensing is not enough
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41
Q

When can something be found unconstituional?

A

There must be a state action to find the action to be constitutional.

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42
Q

Privileges AND Immunities Article IV

A

The P&I clause under Article IV prohibits states from discriminating against out-of-staters with respect to fundamental rights. This is mainly used to prevent substantially unequal treatment regarding commercial activities.

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43
Q

Privileges AND Immunities Article IV EXCEPTION

A

If there is a substantial justification for the discrimination when nonresidents are part of the problem and there are no less restrictive means.

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44
Q

Privileges OR Immunities 14th Amendment

A

P or I prohibits states from denying their own citizens the right to national citizenship. This doesn’t apply to corporations or aliens. These rights are
1. Right to run for Federal Office
2. the right to the high seas
3. the right to seaports
4. Right to travel (domestic)

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45
Q

Fundamental Rights

A
  1. Life
  2. Liberty
  3. Property
  4. Voting
  5. Interstate Travel
  6. Privacy
  7. 1st A. Rights
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46
Q

Congress can’t do retroactive legislation in three stations, which are?

A
  1. Contracts clause
  2. Ex Post Facto Laws
  3. Bills of Attainder
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47
Q

Contracts Clause (Retroactive Legislation)

A

This only applies to states. Congress can’t retroactively implement laws that affect contracts. This prevents substantial impairment of a party’s right under an existing contract. A retroactive law affecting contracts is valid when it serves an important interest and is narrowly tailored to promote that interest. If the contract is a public contract is is subject to stricter scrutiny.

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48
Q

Ex Post Facto Laws (Retroactive Legislation)

A

Congress can’t make criminal an act that was innocent when done or prescribe a greater punishment than what was prescribed when the act was committed. Congress also can’t reduce the evidence required to convict. Due process also prohibits similar changes by the courts.

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49
Q

Bills of Attainder (Retroactive Legislation)

A

Congress is prohibited from making laws inflicting punishment without trial on people by name for past conduct

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50
Q

Which Amendments grant Procedural and Substantive Due Process to States and Federal Gov?

A

5th A - Federal
14th A- State

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51
Q

Procedural Due Process (Federal and State)

A

Requires a fair process or procedure when gov. acts intentionally or recklessly to deprive a person individually of life, liberty, or property. Did the government put a procedure in place that is depriving someone of a fundamental right without proper notice and fair hearings? The constitutional right to due process of law does not apply to private conduct under the 14th A.

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52
Q

PDP: Property Examples

A

Attendance in public school, welfare, government employment with contract

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53
Q

PDP: Life Examples

A
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54
Q

PDP: Liberty Examples

A

Loss of significant freedom of action

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55
Q

PDP Analysis

A
  1. Did the government put a procedure in place that is depriving someone of a fundamental right without proper notice and fair hearings?
  2. Should this be a pre or post-deprivation hearing? This depends on the importance of rights, the value of the safeguard involved, the government’s interest in fiscal and admin efficiency
56
Q

Gov Takings of Property 5th A.

A

If a government regulation denies a landowner all economic use of his land, the regulation generally will constitute a “taking” requiring the payment of “just compensation” under the Fifth Amendment. However, regulations that merely decrease the value of property do not necessarily result in taking as long as there remains an economically viable use for the property. The court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives. Must provide just compensation (FMV of property). Actual or physical appropriation is almost always a taking even if it’s small, the only exception is for emergencies.

The Supreme Court has held that taking property to turn it over to a private developer can still qualify as a public use. Requries just compensation and private use. So long as it appears it was reasonable for the government to believe the transfer to the private entity will benefit the public, such as by promoting economic development, the public use requirement is met.

57
Q

What is not considered a taking?

A

Decrease in economic value when some value still remains and conditions on building permits when there is a legitimate gov. interest and there would be an adverse impact of development proportional to the owner’s loss.

58
Q

Substantive Due Process (federal and state)

A

There is a prohibition against making unreasonable laws. There must be fair notice of conduct that is forbidden or required.

59
Q

SDP: Reasonableness Test

A

Fundamental Rights: Strict Scrutiny: Was the action necessary to achieve a compelling gov. Interest? Gov. has the burden of proof.
Anything Else: Rational Basis: Was the action rationally related to any legitimate government interest? A person has the burden of proof.

60
Q

PDP: Intential Depreivation

A

ADD

61
Q

PDP: Negligent Deprivation

A

ADD

62
Q

Equal Protection Clause 14th Amendment

A

There can be no unreasonable discrimination by the states against any class of People. Only for state action.

63
Q

EP: Classes

A
  1. Suspect Class
  2. Quasi-Suspect Class
  3. everything else gets a rational basis review. Was this rationally related to a legit gov. interest?
64
Q

EP: Suspect Class & Analysis

A

Race, National Origin, Alienage (sometimes - can discriminate for state employment positions with the self-governing process). Strict Scrutiny: Was the discrimination related to a compelling government interest? Must be facially discriminatory, if not need to show discriminatory intent. (i) the racial classification appears in the law itself (facial discrimination), (ii) the law was applied in a purposefully discriminatory manner, or (iii) the law was enacted or maintained for a discriminatory purpose.

65
Q

EP: Quasi Suspect Class

A

Gender & Illeglitatment Children. Intermediate Scrutiny: Was the discrimination substantially related to an important gov. action?

66
Q

When will a law go under EP Review?

A

When it’s discriminatory on its face, in its application or there is a discriminatory motive.

67
Q

When an EP law is being challenged that is facially natural, and has no discriminatory application or motive what test applies?

A

Rational Basis

68
Q

Rational Basis Words

A

Rationally Related to a Legit Gov. Interest

69
Q

Strict Scrutiny Words

A

Necessary to Achieve a Compelling Government Interest

70
Q

Intermediate Scrutiny Words

A

Substantially related to an important government interest

71
Q

EP: Suspect Class Exceptions

A
  1. Actions can’t favor minorities unless seeking to remedy past discrimination within the jurisdiction
  2. Race can be a factor considered in admission to colleges but can’t be an especially weighed factor
  3. ALienage can be discriminated against when self-governing positions like teachers, police officers, mayors ETC.
72
Q

EP: Quasi-Suspect Class Exceptions

A

If there a discrimination on sex there must be an exceedingly persuasive justification required and the interest must be genuine and not hypothesized. (statutory rape statutes stricter against men than women)

73
Q

Privacy Rights

A
  1. Marriage
  2. Use of Contraceptives
  3. Possession of Obscene reading material in the home
  4. RIght to live with extended family
  5. RIght to educate and Raise Children
  6. There is no legit government interest in regulating intimate private noncommercial sex
    Either strict or intermediate scrutiny
74
Q

Takings: Inverse Condemnation

A

ADD

75
Q

EP: Right to Travel

A

Durational residency requirements for dispensing benefits are subject to strict scrutiny, and distinctions between new and old residents are invalid.

76
Q

Who has the power to regulate foreign commerce?

A

Congress

77
Q

Who has general police power?

A

The states, not Congress. However, if the law made by the states conflicts with federal law, federal law is supreme under the Supremacy Clause.

78
Q

What does the first amendment protect?

A

The right to the freedom of speech, for example, the right to show movies. It also limits the government regulation of private speech. It also prohibits the government from forcing people to say things they don’t want to say.

79
Q

Areas of Unprotected Speech

A

Obscenity and Fighting Words

80
Q

Obscenity

A

depiction of sexual conduct that is taken as a whole by the average person using contemporary community starts to appeal to the prurient interest in sex, portrays sex in a patently offensive way, and using a national reasonable person standard doe not have any serious literally, artistic, political or scientific value.

81
Q

When can trials be closed to the public?

A

When it is necessary to preserve an overriding interest and the closure is narrowly tailored to serve the overriding interest.

82
Q

Zoning and Adult Establishments

A

Towns can constitutionally limit the location of adult establishments to control the IMPORTANT INTEREST of secondary effects of these businesses such as lowering property values, increasing traffic, etc.

83
Q

Free Exercise Clause

A

There is no punishment under American Law for your beliefs. Does not afford a right to a religious exemption from a neutral law that happens to impose a substantial burden on a religious practice if the law is otherwise constitutionally applied to persons who engage in other non-religious conduct. Incidental discrimination against religious practices is not prohibited by the Free Exercise Clause.

84
Q

Establishment Clause

A

Prohibits the government from formally aiding or establishing a religion. It prohibits laws respecting the establishment of religion. Laws will pass under this if they are neutral with regard to religion. If it’s not neutral evaluate on historical practice and the understanding of the founding fathers would have allowed it.

85
Q

13th Amendment

A

neither slavery nor involuntary servitude shall exist within the United States and gives Congress the power to adopt appropriate legislation to enforce the proscription.

86
Q

Enabling Clause of the 13th Amendment

A

Congress has the authority to proscribe almost any private racially discriminatory action that can be characterized as badge or incident of slavery.

87
Q

Separation of Powers Doctrine

A

While Congress has broad power to delegate, the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism (i.e., passage by both houses of Congress). This is a series of checks and balances among the three branches of government

88
Q

10th Amendment

A

reserves to the states powers not granted to the federal government, Congress does not have power to order states to adopt laws. Tenth Amendment prohibits the federal government from adopting a statute that compels the states to enact or enforce a regulatory program. Under our system of federalism, the federal government cannot order state governments to adopt particular laws.

89
Q

Abortion

A

no fundamental right to privacy anymore

90
Q

Voting Rights

A

If a state makes a short requirement it’s allowed. For congressional votes, there has to be almost mathematical equality under the one-person-one-vote principle. However, for the state, a local variance not unjustifiably large is fine (16% was allowed). There also can’t be fees for voting.

91
Q

Where Does the 1st Amendment not apply?

A

Inapplicable to government speech. Government funding of private speech must be viewpoint neutral. Government can fund whatever permanent monuments are on government property. Remember not all speech on government property is government speech.

92
Q

Content Based Speech

A

The government generally can’t regulate except for the unprotected categories (imminent lawless action, obscenity, and fighting words). Use strict scrutiny. The government must show that the law is the lease restrictive means of advancing a compelling government interest. If not content-based use intermediate scrutiny.

93
Q

Regulating Speech of Gov Employees

A

Gov can punish public employees for unwanted speech made as part of their official duties but as to private speech, if it’s a matter of public concern balance rights against interest as an employer in the efficient performance of public services if it’s not a matter of public concern employer has broad discretion of punishment for disruptive speech. However, it can’t be so broad to prohibit all speech to any group of people.

94
Q

Overbroad restrictions on speech

A

can’t prohibit more speech than necessary, laws will be void

95
Q

Vague restrictions on speech

A

Prohibition including a substantial amount of protected speech compared to its
legitimate sweep—void as to everyone

96
Q

Giving notice with regulations?

A

Regulation failing to give reasonable notice of what is prohibited has chilling
effect on speech and violates due process. Officials also can’t have unfettered discretion over speech issues.

97
Q

Restrictions on speeches about finacial support?

A

Mandatory financial support of government speech, there are no 1st A concerns and mandatory financial support of private speech is protected under the 1st A>

98
Q

Time Place and Manner Regulations

A

Can’t have a complete ban, If a statute gives licensing officials unbridled discretion, it is void on its face, and speakers need not even apply for a permit. ADD

99
Q

Public Forum (sidewalks, parks)

A

Strict scrutiny analysis, upheld if content-neutral, the ordinance is narrowly tailored to serve an important government interest, does not unreasonably limit alternative channels of communication, and leaves open alternative channels of communications.

100
Q

Designated public forum (schools)

A

Strict scrutiny analysis, upheld if content-neutral, narrowly tailored to serve an important government interest, and leaves open alternative channels of communications.

101
Q

Limited Public Forums (public property for expressive activities on certain topics)

A

upheld if viewpoint-neutral, reasonably related to a legitimate government interest

102
Q

Non-Public Forum (public property not open for expressive activities)

A

upheld if viewpoint-neutral, reasonably related to a legitimate government interest

103
Q

Obscenity Test

A

Appeals to the prurient interest in sex portray sex in a patently offensive way and do not have serious literally political or scientific value judged from a national standard

104
Q

Zoning Ordinances and Obscenity

A

Can limit the location of adult entertainment establishments if designated to reduce the secondary effects of such businesses

105
Q

Defamation

A

If it is against a public official or figure must show actual malice (knowledge of falsity or reckless disregard for the truth). If it’s a private individual must show negligence. The first Amendment limits common lawsuits brought by public figures to malice.

106
Q

Commercial Speech Regulations

A

Unprotected if speech is unlawful or untrue. Regulating lawful and true speech is valid if it serves a substantial government purpose, directly advances that interest, and is narrowly tailored to serve that interest. While this test does not require that the least restrictive means be used, there must be a reasonable fit between the legislation’s end and the means chosen. Usually can’t completely ban. The greater the restriction on speech, the less likely it will be deemed to be reasonable.

107
Q

Prior Restraints

A

Invalid unless justified by a special societal harm or pursuant contract.

108
Q

Prior Restraints Safegaurds

A

Judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. In US law, the First Amendment severely limits the ability of the government to do this. Standards must be narrowly drawn, reasonable, and definite. An injunction must be sought promptly, and there must be a prompt and final determination of the validity of restraint. Broadcast is more closely regulated than the press. Internet regulation is subject to strict scrutiny.

109
Q

Restrictions on Electoral Process

A

Allowed if narrowly tailored to achieve a compelling purpose and reasonable and nondiscriminatory regulations are valid

110
Q

Government Employees and Loyalty Oaths and DIsclosure of Group Affiliations

A

Allowed if not overbroad. Oaths to support the constitution and to oppose the illegal overthrow of the government are okay. Permissible to disclose group affiliations if necessary.

111
Q

School Sponsorship of Clubs

A

Can be content based if the viewpoint is neutral and reasonable and related to a legitimate government interest

112
Q

Religious Exemptions under the Free Exercise Clause

A

Amish exempt from mandatory secondary education and Conscientious objectors who refuse munitions work from unemployment compensation laws requiring applicants to accept any job

113
Q

Laws allowed under the Establishment Clause

A

If it is not neutral it is permitted based on historical tradition and practice and understanding of the founding fathers. Examples include every time a government fails to censor religious speech there is no violation, natural benefit programs even if independent choices of recipients lead public money to go to religious organizations and school-sponsored religious activities are invalid but accommodations of religion may be valid.

114
Q

Presidential Pardon Power

A

The president has the power to grant reprieves and pardons for offenses against the US except in cases of impeachment. This power is not subject to control by Congress. This includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision). The President’s pardon power is limited to violations of federal law. The President has no authority to pardon those convicted of state crimes or held in state custody

115
Q

Presidential Power regarding Ambassadors

A

The president has the right to select ambassadors via the constitution and the Senate’s only power in this respect is to advise and give or withhold its consent. There is no power to the Senate to force ambassadors.

116
Q

When can Congress subpoena the President’s personal records?

A

If its to advance a legitimate legislative purpose

117
Q

Appointments Clause Congress

A

Permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Congress cannot appoint members of a commission that exercises enforcement powers.

118
Q

What does the Constitution do?

A

The constitution restricts the government and constitutional rights are owed by the government to individuals.

119
Q

What rights are owed to individuals from private corporations?

A

There is no duty to abide by the constitution unless they are taking on a traditional and exclusive public function like running an election or running a company town

120
Q

Company Town

A

Look at facts and weight and balance

121
Q

School First Amendment Rights

A

Public School students don’t shed their constitutional rights at the door but the school can reasonably restrict them to enable schools to accomplish their missions of educating students and keeping them safe but they CANT force someone to say the pledge.

122
Q

Content Neutral Int. Scrutiny

A

The government must prove that it is narrowly tailored to achieve an important government interest.

123
Q

President and Congressional Spending

A

The President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress’s reason for making the appropriation. The President has no “legislative” power in internal affairs, and has a duty under Article II to “see that the laws are faithfully executed.” In contrast, Congress clearly has the power to spend to “provide for the common defense and general welfare.”

124
Q

Presidential Foreign Powers

A

The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount. Even for foreign relations that require congressional consent, the President’s powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations.

125
Q

Due Process 5th A.

A

a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding public issues but can be fired for speech that disrupts the employer’s policies or undermines the employer’s authority.

Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. If a government employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, the courts must carefully balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.

If the violation of the 1st Amendment a hearing on the issue is entitled.

126
Q

Neutrality Principle

A

if a state chooses to subsidize private education, it cannot deny the same funding to religious schools. Such across-the-board funding, treating religious private schools the same as non-religious private schools, does not violate the Establishment Clause and is required by the Free Exercise Clause under the neutrality principle

127
Q

8th Amendment

A

paddling isn’t cruel and unusual punishment.

128
Q

Parens Patriae

A

allows the state to stand in the shoes of a parent, but even a parent may not impose any punishment he sees fit

129
Q

Congress Investigation Powers

A

Congress’s power to investigate is limited to matters on which it can legislate.

130
Q

Intergovernmental Immunity

A

State and local governments cannot tax or regulate the activities of the federal government. This principle is often termed “intergovernmental immunity.” The arrest and prosecution of a federal employee who was on the job, violates this principle, which is based on the supremacy of the federal government and federal law.

131
Q

Enactment of Law by Congress

A

The enactment of laws by Congress requires passage of the law in both houses (bicameralism) and approval of the law by the President (that is, the presentment requirement) or an override of a presidential veto.

132
Q

Article III

A

Article III explicitly gives Congress the power to make exceptions to the Supreme Court’s appellate jurisdiction.

133
Q

Enabling Clause of the 15th A.

A

allows Congress to adopt legislation protecting the right to vote from discrimination

134
Q

Fundamental Right to Privacy

A

The fundamental right to privacy includes the right of parents to the companionship, care, custody, and control of their children.

135
Q

Mail

A

Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads. This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail-public or private-can be established absent Congress’s consent. Congress has delegated to the Postal Service the power to decide whether others may compete with it, and the Postal Service has carved out an exception to its monopoly for extremely urgent letters. However, this exception would not apply to the state messenger service here since the state service extends to every letter or package of an employee deliverable within the state.

136
Q

Freedom of the Press

A

Press and broadcasting companies can be subject to general business taxes, but a tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification. A mere need for revenue probably is not a sufficiently compelling interest.

Barbri (14 decks)

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