Con Law - General Flashcards
May states create laws over naturalization and denaturalization?
No, Congress has exclusive power of this.
How do we analyze a challenge to a law that impedes the Right to Travel? (4)
(1) Right to travel between states is a fundamental right.
(2) Restrictions for moving into state must meet strict scrutiny.
(3) Durational residency requirements must meet strict scrutiny.
(4) Restrictions on foreign travel need only meet rational basis test.
Are republications in a press release or newsletter of defamatory statements originally made in Congress protected by the Speech and Debate Clause?
No, only stuff that actually occurs during the legislative process.
What rights do resident aliens have prior to deportation? (2)
(1) Notice, and
(2) a hearing
What are the rules on impeding the Right to Vote?
(1) Right to vote is a fundamental right.
(2) Denial of right to vote must meet strict scrutiny.
(3) Regulations to prevent fraud must meet rational basis test.
What is the standard for a Private Figure to recover damages for defamation/IIED relating to a matter that is NOT of public concern?
Same as for matters of public concern, but may recover presumed/punitive damages w/o showing actual malice.
When can Congress limit the President’s power to remove an Executive Branch official?
Only in limited instances where officer’s independence from President is desirable (ex: Special Prosecutor).
Congress may NEVER completely prohibit President’s ability to remove executive officers.
What is the rule on anonymous speech?
Anonymous speech is constitutionally protected
Is profane/indecent speech constitutionally protected?
Yes, except:
(1) over broadcast
(2) in schools
What is an Executive Agreement, and what can it be used for?
Executive Agreement is:
(1) Agreement between US and Foreign Country
(2) Effective when signed by POTUS & Foreign leader
Executive Agreements can be used for ANY purpose.
How do you analyze a Dormant Commerce Clause challenge? (3-3)
(1) Does the law discriminate against out of staters?
(2) If no, weigh the benefit vs. the burden to determine validity.
(3) If yes, law is unconstitutional UNLESS:
- (a) necessary to achieve an important noneconomic government purpose
- (b) there is congressional approval, OR
- (c) Market participant exception (state prefers own citizens)
What is a designated public forum?
(1) Government properties that the gov could close to speech, but chooses to open to speech.
What is the test for challenges to a law under the Establishment Clause?
Test:
(1) must be a primary secular purpose for the law
(2) effect must neither advance nor inhibit religion
(3) Must not be excessive entanglement
What is the test for determining whether something is Obscenity? (3)
Test:
(1) material must appeal to the “prurient interest” (community standard)
(2) material must be patently offensive under the law prohibiting obscenity (community standard)
(3) taken as a whole, the material lacks serious redeeming artistic, literary, political, or scientific value (national standard)
What is the standard for a Private Figure to recover damages for defamation/IIED relating to a matter of public concern?
Must show:
(1) falsity of statement
(2) negligence by the ∆
(3) Or actual malice, for presumed/punitive damages
What are the rules on free speech regarding the advertisement of professionals? (3)
(1) Gov can prevent professional from practicing under a trade name
(2) gov can stop attorneys from soliciting in-person for profit
(3) gov cannot stop accountants from soliciting in-person for profit
What are the rules on election procedures/structure? (4)
(1) One person - one vote
(2) Districts ~ equal, for equal representation
(3) At large elections are constitutional so long as no discriminatory purpose
(4) Recounting votes w/o preset standards in Presidential election violates equal protection.
What level of scrutiny must a law meet to discriminate against religious speech or religions?
Strict scrutiny.
How does the Senate “consent” to a Treaty?
By 2/3 vote.
What are the rules on gender classifications that benefit women? (2)
If based on gender stereotypes, not allowed.
If remedial to past discrimination, allowed.
What is the level of scrutiny for analyzing restrictions on custody of one’s children?
strict scrutiny
What are the “quasi suspect classifications,” and what does this mean?
Gender and legitimacy classifications.
These are subject to intermediate scrutiny.
What is the Rational Basis Test?
The challenger to the law must show that the law is NOT:
rationally related to a legitimate, conceivable purpose
What is the level of scrutiny for analyzing restrictions on the right to keep the family together?
strict scrutiny
How is an activity’s “substantial effect” on commerce analyzed?
For economic activities, an aggregate measure for “substantial effect.”
For non-economic activities, aggregate measurement cannot be used.
Who may make laws for Bankruptcy?
Both Congress and states, so long as state laws do not conflict with federal laws.
What are some of Congress’s most important powers?
(1) Power under the Necessary & Proper Clause
(2) Taxing & Spending for General Welfare
(3) Commerce Power
What if an Executive Agreement conflicts with Federal law?
Federal law wins, conflicting part Executive Agreement is invalid.
Can the government prohibit discrimination for private group membership? (3)
(1) Yes, unless:
(2) interferes w/ intimate association (think dinner party), or
(3) interferes w/ expressive activity (think neo-nazis)
What does the Speech and Debate clause do?
Conduct that occurs in the regular course of the federal legislative process and motivation behind that conduct are immune from prosecution.
How do you prove the existence of a classification based on race for purposes of an Equal Protection challenge? (2)
Two ways:
(1) Classification on the face of the law.
(2) Discriminatory intent + discriminatory impact
Which parts of the Bill of Rights apply to states via the 14th Amendment?
All, except:
(1) 3rd A. right to not have soldiers quartered in house
(2) 5th A right to grand jury indictment in crim cases
(3) 7th A right to jury trial in civil cases
(4) 8th A against excessive fines
What is the Contracts Clause? (2)
(1) The Contracts Clause states that no state shall impair the obligation of contracts.
(2) This applies only to existing contracts.
What happens if a bill sits with the President for 10 days w/o any action?
If Congress is not in session, bill dies.
If Congress is in session, bill becomes law.
What exceptions are there to states’ Sovereign Immunity protection? (4)
(1) Waiver
(2) Suits under Fed laws adopted under §5 of 14th Amendment
(3) Fed Gov may sue states
(4) Bankruptcy Proceedings
What is the limitation on the President’s Appointment Power?
The president cannot make recess appointments for intrasession recesses lasting less than 10 days
What is the level of scrutiny for analyzing restrictions on right to purchase/use contraceptives?
strict
What are the requirements for Congress to place conditions on grants to state governments? (3)
Under Spending Power, Congress can compel regulation/legislation by a state, IF:
(1) conditions are expressly stated
(2) conditions relate to purpose of spending program, AND
(3) conditions are not unduly coercive
What are the rules on Affirmative Action policies? (3)
(1) No quotas
(2) Can’t add “points”
(3) Must show there is no race neutral alternative (meet strict scrutiny)
What are the exceptions to the “No 3rd Party Standing” Rule? (3)
(1) “Close relationship”
(2) Injured 3rd Party unlikely to be able to assert rights.
(3) Organization can sue on behalf of members, IF:
- (a) members would have standing
- (b) interests are germane to organization’s purpose, AND
- (c) neither claim nor relief requires participation of individual members
What is ripeness and what factors are considered in analyzing it?
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
Factors:
(1) Hardship that will be suffered w/o pre-enforcement review
(2) The fitness of the issues and the record for judicial review
What common classifications are analyzed using the rational basis test? (5)
(1) age discrimination
(2) disability discrimination
(3) wealth discrimination
(4) economic regulations
(5) sexual orientation discrimination
If the President vetoes an act of Congress, may it still become a law?
Yes, if each house votes by 2/3.
What types of commercial speech are not protected? (2)
(1) Ads for illegal activity
(2) False/deceptive ads
Can state governments be sued?
No:
(1) 11th Amendment bars suits against states in Fed Cts.
(2) Sovereign immunity bars suits against states in state cts or fed agencies
How do we analyze 2nd Amendment rights claims?
(1) Level of scrutiny unclear
(2) There is definitely a right to have firearms in the home for personal protection.
What types of Free Speech restrictions are there?
(1) Content-Based Speech Restrictions
- (a) subject matter restriction
- (b) viewpoint restriction
(2) Content-neutral Speech Restrictions
May state or federal courts review court-martial proceedings?
No, these proceedings fall under Congress’s War Powers.
Which classifications are “suspect,” and what does this mean?
Race, National origin, and State laws regarding aliens.
This means that the laws are analyzed under strict scrutiny.
Under Equal Protection, what are the rules for numerical “set asides” for racial minorities? (2)
Must show:
(1) Clear proof of past discrimination, and
(2) system is designed to remedy, not hold.
How do you approach an Equal Protection question?
(1) What is the classification?
(2) What level of scrutiny is applied?
(3) Does the law meet the level of scrutiny?
What constitutes “adequate and independent” state grounds for deciding a case? (2)
(1) Adequate = dispositive of the case
(2) Independent = decision is not based on federal case interpretations of identical federal provisions
What is the test for “public use” under the Takings Clause?
Public use = government has reasonable belief that taking will benefit the public.
What are the different location classifications for speech? (5)
(1) Public Forum
(2) Designated Public Forums
(3) Limited Public Forums
(4) Non-public forums
(5) Private Property
What is the difference between Equal Protection claims and Substantive Due Process claims?
Equal Protection: violates some people’s rights
Due Process: violates everyone’s rights.
May a citizen bring an action alleging that a federal action violates the 10th Amendment by interfering with powers reserved to the states?
Yes, a person may have standing to allege a violation of the 10th Amendment if the person has a redressable injury in fact.
What is the exception to the “no generalized grievances” Standing Rule?
Taxpayers may challenge government expenditures in violation of the Establishment Clause (but only $ contributions, not property)
What is “standing” and what are the requirements?
Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
Requirements:
(1) Injury - in fact, or imminent
(2) Causation & Redressability
(3) No 3rd Party Standing
(4) No generalized grievances - no “citizen” or “taxpayer” claims