Con Law Flashcards
(183 cards)
1
Q
Religious accommodations constitutional?
A
Federal gov can do so itself, state govs can do so themselves; but fed gov cannot require it of others
2
Q
ministerial exception
A
one area where religious accommodation is allowed–gov cannot impose nondiscrimination laws on religious institutions wrt their ministers?
3
Q
Can schools prevent religious student orgs from meeting in schools?
A
No
4
Q
Content-based regs of speech trigger which scrutiny?
A
Strict scrutiny
5
Q
Test for regulation of expressive conduct/symbolic speech
A
Upheld if further an important interest that is unrelated to the suppression of expression, and the burden on expression is no greater than necessary (ex: flag desecration law unconstitutional, but public nudity law constitutional)
6
Q
vagueness (wrt speech reg) definition and constitutionality
A
a law that gives no clear notice of what is prohibited; violated DP
7
Q
over-breadth of speech reg
A
when a law burdens sub more speech than necessary for compelling state interest (ex: law banning all nudity in drive-in movies)
8
Q
prior constraints wrt speech are…
A
disfavored (so basically cannot get injunction for publication)
9
Q
content neutral/time, place and manner rules
A
apply in public forums (not including airports); 1) law must be content neutral (neutral on its face; neutral as applied; must not allow executive discretion); 2) alternative channels must be left open; 3) must narrowly serve a significant (NOT COMPELLING) state interest
state may restrict obscenity, subversive speech, fighting words, defamation, or commercial speech
10
Q
rule for laws regulating non-public forums
A
any reasonable regulation will be upheld (ex: viewpoint discrim invalid)
11
Q
limited public forum
A
not a public forum but gov has chosen voluntarily to open to the public (ex: municipal theater)
12
Q
Constitutionality of content-based regs?
A
Almost always struck down
13
Q
Obscenity definition
A
4Ss: 1) sexy; 2) sick to society (patently offensive); 3) standards (proper); 4) serious value (lacks it; determined by court according to national standard (good reviews))
14
Q
Rules for regulation of child pornography
A
Can be prohibited even if not legally obscene
15
Q
Rule about land use restrictions
A
Narrowly-drawn ordinances can regulate the zoning of adult theaters, but cannot ban altogether
16
Q
Incitement rule
A
Speech not protected if it’s incitement to immediate violence
17
Q
Fighting words definition and rule
A
Words that by their nature are likely to provoke immediate breach of the peace; must be aimed at someone (general vulgarity doesn’t count); not protected speech in theory, but often unconstitutional for vagueness/overbreadth
18
Q
Defamation definition and rule
A
False statements of fact (not opinions) that damage a person’s rep; can be regulated even though content-based
19
Q
Defamation rule for public officials/figures
A
Can recover only on proof of knowing or reckless falsity
20
Q
Defamation rule for private people
A
Can recover on proof of negligent falsity
21
Q
Commercial speech test
A
Commercial speech = regulation of ads, commercial speech directly. Intermediate scrutiny: reg must directly advance a sub (NOT COMPELLING) gov interest and must be narrowly tailored to that interest. Most regs of commercial speech struck down, as long as truthful and informational. Misleading commercial speech can be suppressed.
22
Q
Can gov as a speaker do content-based discrim?
A
Yes
23
Q
What are the 1A rights fo corps?
A
Same as that of individuals (ex: can’t suppress their political speech)
24
Q
Rule for freedom of the press
A
Media has no special privileges (but gov has some additional authority to reg broadcast)
25
Freedom of association definition
Cannot be punished/disadvantaged for political associations (ex: loyalty oaths (except for US constitution) are unconstitutional for vagueness/over-breadth)
26
Association rights of political parties
States cannot require open primaries, but can require semi-closed primary system even if party wants to permit anyone to vote. State may not prohibit a political party from allowing independents to vote in its primary. State may refuse to grant political party's candidate access to gen election ballot unless they show public support through signatures, registrations or previous success.
27
Rules for free speech rights of public employees
Generally cannot be hired or fired based on political party, philosophy or act of expression (exception: policymaking and confidential employees)
28
Rule for regulation of campaign contributions
Can be regulated as long as limits not unreasonably low
29
Rule for regulation of campaign expenditures
Cannot be regulated
30
Coordinated expenditure definition and rule
Disguised campaign contribution; treated as contribution and can be regulated
31
Constitutionality of laws banning judicial candidates from personally soliciting campaign contributions
Constitutional
32
Fed courts limited to cases and controversies...
1) arising under; 2) when US is a party; 3) btw states or between state and another state's citizens; 4) diversity jx; 5) btw state/its citizens and foreign states/its citizens
33
11A Sovereign Immunity
Provides states with sovereign immunity which prohibits federal suits by someone of another state or country for money damages or equitable relief. However, federal courts do have the authority to enjoin state officials from violating federal law.
Also immunizes state officials from suit in fed court for violating state law?
Congress, acting pursuant its Article I powers, generally cannot abrogate state immunity. But if Congress had created this cause of action under the Thirteenth, Fourteenth, or Fifteenth Amendment, the state’s lack of consent would not have preserved its sovereign immunity.
34
11A exceptions
1) consent; 2) injunctive or declaratory relief; 3) damages paid by state officer; 4) congressional enforcement of 13A, 14A, 15A rights
35
SCOTUS has original jx over...
all cases affecting ambassadors, other public ministers and consults and those in which a state is a party
36
Can Congress expand or limit SCOTUS original jx?
No
37
Test for reviewability of state court judgments by SCOTUS
A final state court judgment resting upon adequate and independent state grounds is not reviewable by SCOTUS
38
Standing requirements
1) injury in fact; 2) causation; 3) redressability; 4) prudential standing
39
Define injury in fact
concrete and particularized; need not be physical or economic; future injury must be actual and imminent
40
Prudential standing definition
P is a proper party to invoke judicial resolution of the dispute
41
Taxpayer standing rule and exceptions
No taxpayer standing except to litigate how much is owed on your tax bill and to challenge gov expenditures as violating the Establishment Clause (but does not apply to the expenditure of general discretionary funds by the executive branch).
42
Third-party standing rule
Generally not allowed; exceptions:
1) When third party unable to assert his own rights.
2) Special relationship btw P and third party. Ex: A private school asserting its students’ rights to attend despite a statute requiring attendance at public schools.
3) P's injury adversely affects P's relationship with third party.
43
Organizational standing rule
Org can sue on its own behalf or on behalf of its members if 1) its members would have standing to sue in their own right, and 2) the interests at stake are germane to the org's purpose.
44
Section 1983 rules
Provides method to enforce substantive fed rights. Applies to suing individual gov employees in their individual capacities (including municipalities and local govs). P must show that D was acting under color of state law.
45
Ripeness requirement
P must have experienced a real injury (or imminent threat thereof)
46
Mootness requirement
Must be a live controversy at each stage of review
47
Mootness requirement exceptions:
1) Capable of repetition but evading review; 2) D voluntarily ceases wrongful action upon commencement of litigation; 3) Collateral legal consequences can be imposed based on the challenged conviction; 4) Named P's claim in a class action suit is resolved (does not render class action moot)
48
Are advisory opinions ok?
No
49
Are declaratory judgments ok?
Yes, but challenged action must pose a real and immediate danger to party's interests
50
What is the political question doctrine?
A doctrine of justiciability; question not subject to judicial review when a) constitution assigned decision making on this subject to a diff branch or b) the matter is inherently not one that the judiciary can decide
51
What is the abstention doctrine?
A fed court may abstain from deciding a claim when a strong state interest is at stake
52
Describe congress's commerce power
The Commerce Clause gives Congress the power to regulate any activity, intrastate or interstate, that is itself “commercial” or is an essential part of regulation of a larger commercial activity and that, when considered in the aggregate, has a “substantial economic effect upon” or “effect on movement in” interstate commerce. If intrastate activity is not itself sufficiently commercial, as long as there is a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total activity.
Congress has power to regulate the channels and instrumentalities of interstate commerce, and any activity (including intrastate) that sub affects interstate commerce (judged in the aggregate).
Congress's power under the Commerce Clause extends to environmental laws.
53
Can congress mandate that people not engaged in commercial activities engage in them?
No
54
Describe congress's taxing power
Congress has plenary power to impose taxes to raise revenue through General Welfare Clause; fine as long as it has a reasonable relationship to revenue production
55
Describe Congress's spending power
Congress has the power to spend for the general welfare
56
Does Congress have the power to condition federal funding and how?
Yes. Condition must 1) be for the general welfare; 2) be unambiguous; 3) relate to fed interest in particular national projects or programs; 4) not induce states to act unconstitutionally; and 5) not exceed the point at which pressure turns into compulsion.
57
What are Congress's war related powers?
Power to declare war; raise and support armies; provide and maintain a navy; provide for the national defense (in both wartime and peacetime); to try enemy soldiers, enemy civilians, and current members of the US armed forces (but not US civilians); to authorize pres to call national guard units to execute fed laws, suppress insurrections, and repel invasions, including in domestic situations and non-emergency circs, though limited by statute
58
Do all constitutional protections apply to military tribunals?
No
59
Describe Congress's property power
Congress may only take private prop for public use with just compensation and to effectuate an enumerated power
60
Describe Congress's powers over aliens and citizenship
Congress has plenary power over aliens, but subject to DPC for aliens within the US; Congress has exclusive authority over naturalization.
in exercising its plenary power over immigration, Congress could lawfully “discriminate” against aliens in ways that would be unconstitutional if applied to citizens (e.g., setting lower quotas for Africans than for Scandinavians, which would otherwise be race discrimination). Likewise, although illegitimacy is a quasi-suspect classification, and discrimination against illegitimate children may be struck down on Equal Protection grounds, Congress could discriminate against illegitimate children who are aliens in a way that it could not discriminate against illegitimate children who are citizens.
61
Describe the Necessary and Proper Clause
Gives Congress power to enact any leg necessary and proper to execute any authority granted to any branch of the fed gov. Not an independent source of power; it merely gives Congress the power to execute specifically granted powers.
Doesn't need to be directly related.
62
What is the 13A?
Under the Thirteenth Amendment, Congress has the power to adopt legislation rationally related to eliminating involuntary servitude. The Thirteenth Amendment is the only amendment that authorizes Congress to regulate purely private conduct. Therefore, the Court may rely solely on the Thirteenth Amendment to uphold a congressional law punishing involuntary servitude committed by private actors.
63
What is the 14A?
Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce EP and DP rights guaranteed by the amendment.
But does not expand those rights or create new ones (they are defined by the judiciary per separation of powers doctrine).
Addresses state government infringement upon EP and DP; does not give Congress the power to regulate wholly private conduct.
64
14A test for legislation
There must be congruence and proportionality btw injury to be prevents/remedied and means adopted to achieve that end
65
What is the 15A?
Prohibits state and fed govs from denying any citizen the right to vote on basis of race, color or previous condition of servitude.
Congress cannot treat states diff and thereby impinge on their equal sovereignty unless the diff treatment is rationally justified by current circs.
66
What is the president's pardon power?
Pres may grant a pardon for fed offenses, not state crimes, at any time after commission of the offense. President’s power to pardon does not extend to impeachment.
67
Describe pres's veto power
Pres has 10 days to act on proposed leg. If signs, becomes law. If vetos, Congress can override by 2/3rds in each house. If does nothing and Congress in session, becomes law. If does nothing and Congress not in session at end of 10-days, does not become law (pocket veto) and cannot be overriden.
68
Who is a PAS?
All officers of the US
69
What rules govern a president's removal of executive appointees?
Pres can generally remove any exec appointee without cause or Senate approval
70
What is the Take Care Clause?
Imposes duty on the pres to faithfully exec laws, even if he disagrees with them
71
congress vs. pres on war powers
only congress can declare war, but pres can take military action without a declaration of war in the case of actual hostilities against the US; congress may limit pres's military activities through exercise of its military approp power
72
what is the treaty process?
pres has exclusive power to negotiate them; they may only be ratified by approval of 2/3rds vote of senators present
73
describe executive agreements
pres has power to enter into exec agreements with foreign nations and senate approval is not required
74
what is the impeachment process?
house of reps may impeach (bring charges) by majority vote; senate tries the impeached official (2/3rds vote for conviction)
75
if congress explicitly mandates expenditure of funds, can pres not use them?
no
76
are legislative vetos constitutional?
no
77
What is the rule about delegation of leg powers?
Ok if Congress specifies "intelligible principles" to guide the delegate.
Almost any guidance to the delegate is considered sufficient, and there is almost no practical limitation to Congress’s ability to delegate. Almost all language in delegating legislation has passed the intelligible standards requirement, including broad guidance such as “as public interest, convenience, and necessity require.”
The power to impeach and the power to declare war are considered non-delegable.
78
what powers can congress not delegate to the exec?
1) impeachment power, 2) power to declare war
79
can congress reinstate the right to bring a legal action after the judgment in the action is final?
no
80
what immunities does a judge have?
a judge has absolute immunity from civil liability for damages resulting from judicial acts
81
what immunities do legislators have?
no civil or crim liability for statements and conduct made in the regular course of leg process by members of congress
82
what is exec privilege?
priv wrt disclosure of confidential info by exec branch to the judiciary or congress
83
what immunities does the exec have?
pres may not be sued for civil damages wrt any acts performed as part of the pres's official responsibilities; but no immunity from civil action based on conduct alleged to have occurred before pres took office or completely unrelated to carrying out his job--can be subject to such suit even while in office.
84
what are the exclusive fed powers?
includes power to coin money, enter into treaties, declare war and over citizenship
85
What is the Supremacy Clause?
Fed law supersedes conflicting state law
86
When do states have power to reg the fed gov?
When permitted by Congress or not inconsistent with fed policy
87
When can the states tax the fed gov?
When it's just a generally applicable indirect tax that does not unreasonably burden them. Otherwise not.
88
What is the anti-commandeering principle?
Congress cannot commandeer state legislatures by commanding them to enact specific leg (or prohibiting a state from enacting new laws)
89
What is the rule for fed taxation of a state?
Allowed, but states have partial immunity from direct fed taxation that would unduly interfere with the performance of the states' sovereign functions of gov.
90
Describe the Dormant Commerce Clause
Restricts the power of the states to act with regard to interstate commerce. If Congress has not, states can regulate interstate commerce so long as regulation does not 1) discriminate against out-of-state commerce; 2) unduly burden interstate commerce; or 3) regulate wholly out-of-state activity.
Dormant Commerce Clause applies only when a state discriminates against an out-of-state commercial actor,
91
When can a discriminatory state or local reg be upheld as necessary to an important state interest?
1) An important local interest is being served; And 2) no other nondiscriminatory means are available to achieve that purpose. These are rarely upheld. But not discriminatory just bc the entire burden of reg falls on out-of-state businesses.
92
What are the exceptions to the Dormant Commerce Clause?
1) Necessary to an important state interest; 2) Market participant exception; 3) Traditional gov function; 4) Congressionally permitted discrimination
93
What is the market participant exception to the Dormant Commerce Clause?
A state can favor local commerce or discrim against nonresident commerce like a private business, if the state is acting as a buyer or seller (i.e. not as a market regulator). But this exception does not apply to challenges pursuant to the Privileges and Immunities Clause of Art. IV.
94
What is the exception to the market participant exception to the Dormant Commerce Clause?
Challenges pursuant to the Privileges and Immunities Clause of Art. IV.
95
What is the traditional gov function exception to the Dormant Commerce Clause?
State and local regulations can favor state and local gov entities (but not private entities) if the entities are performing a traditional gov function (ex: waste disposal).
96
Describe the "congressionally permitted discrimination" exception to the Dormant Commerce Clause.
Must be unmistakably clear that Congress intended to permit the otherwise impermissible state reg.
97
What is the test for determining if a nondiscriminatory state reg imposes an undue burden on interstate commerce (in violation of the Dormant Commerce Clause)?
Balancing test: purpose of state law against burden on interstate commerce and evaluate whether there are less restrictive alternatives.
98
What is the test for how states can regulate interstate commerce (assuming Congress has not acted in the area and it does not discriminate against or unduly burden interstate commerce)?
1) Substantial nexus btw the activity being taxed and the taxing state;
2) Fair apportionment such that interstate commerce does not pay total taxes greater than local commerce;
3) Nondiscrimination--no direct commercial advantage to local businesses over interstate competitors (even if neutral on its face); and
4) Fair relationship--tax must be fairly related to the services provided by the taxing state.
99
When can states impose taxes on foreign commerce?
States must have congressional consent to impose import or export taxes (except what is absolutely necessary for executing its inspection laws)
100
How should express preemption be construed?
Narrowly
101
When does implied preemption exist?
Congress intended for fed law to occupy the field; state law directly conflicts with fed law (i.e. can't comply with both); or state law indirectly conflicts (creating obstacle to law's purpose).
102
What is the Full Faith and Credit Clause?
Out-of-state judgments must be given in-state effect if 1) the court rendering judgment had jx over the parties and subject matter; 2) the judgment was on the merits; and 3) the judgment was final.
103
Can a private person engage in state action?
Yes--1) traditional gov function or 2) significant state involvement
104
When is a private person engaged in traditional gov functions?
When they carry on activities traditionally performed exclusively by the state (ex: running primary elections).
105
When is there significant state involvement such that a private person is engaged in state action?
A) When there is sufficient mutual contacts btw the conduct of the private party and the gov such that the gov is pervasively entwined with the entity and 1) the constitutional standards should apply to the private actor or 2) a mutual benefit results (ex: joint venture). OR B) When the state creates a private entity by special law for the furtherance of gov objectives and retains permanent control of the entity.
106
Does licensing or regulating a private party create state action?
No, the state must act affirmatively to facilitate, encourage or authorize the activity.
107
When is the state involvement insignificant such that there is no state action?
Businesses that the gov substantially regulates or to which it grants monopoly (ex: nursing homes that accept Medicaid; schools receiving gov funds but operated by a private corp).
108
Describe Procedural Due Process
5A for fed gov, 14A for states; It ensures the necessary procedures (due process of law) are followed before depriving individuals and other persons (ex: corps) of life, liberty or property.
109
Describe substantive due process
Based upon the idea that laws should be reasonable and not arbitrary. Guarantees fundamental rights to all persons. A catch-all for rights not explicitly set forth in the Constitution.
110
What are the general principles of PDP?
Fundamental fairness (including right to be notified of charged or proceedings and opportunity to be heard); neutral decision maker
111
What questions to ask yourself with PDP...
1) Is the threatened interest a protected one? 2) If so, what process is due?
112
What is an impingement on liberty?
a significant gov restraint on one's physical freedom, fundamental rights, or freedom of choice or action
113
What is required for an impingement on property?
A legit claim of entitlement by virtue of statute, employment contract or custom.
An employee who is not at-will has a legitimate property interest in continued public employment, and is entitled to a fair procedure to protect the employee’s interests if the government seeks to discharge the employee from his position. An employee is entitled to a notice of termination and a pre-termination opportunity to respond, which the employee in this case did not receive.
114
How is the amount of process due determined?
1) the private interest affected; 2) the risk of erroneous deprivation and value of additional safeguards; and 3) the gov's interest, including the burden (cost) of additional process.
115
How are laws impinging on substantive DP evaluated?
Either using strict scrutiny (for fundamental rights) or rational basis (if interest infringed upon is not fundamental).
116
What is the strict scrutiny test for substantive due process?
Law must be least restrictive (cannot be a less restrictive way to achieve the interest and the law should be neither over- nor under-inclusive) means to achieve compelling (necessary or crucial) gov interest. Burden of proof on gov.
A lesser burden might apply if the right to vote was less drastically threatened.
117
What is the rational basis test for substantive due process?
Law must be rationally related to a legit state interest. Gov's stated interest need not be one that it offered when law was passed. Usually applies to laws related to lifestyle, taxation, zoning, and punitive damages. Burden of proof on challenger.
118
What are the fundamental rights under SDP?
travel, voting and ballot access, privacy, second amendment
The right to privacy, which includes the right to refuse medical treatment, is a fundamental right
the government may apply the rational basis test to reasonable restrictions on voting (such as a 30-day residency requirement),
119
Can residency requirements or waiting periods be imposed?
Reasonable ones can be imposed on the receipt of some gov benefits.
120
Describe the right to vote
Applies to all fed, state and local elections, including primary elections. Even though fundamental, strict scrutiny does not apply to all laws that restrict this right. The more significant the gov restriction, the greater the degree of scrutiny.
121
Do people have a right to be a candidate for public office?
Yes, right to be considered for office without burden of invidious discrimination.
122
What is the right to privacy?
Includes marriage, contraception, intimate sexual behavior, abortion, parental rights, fam relations, obscene material, right to refuse medical treatment, and right to avoid disclosure of personal med information
123
What is the test for abortion
Undue burden test
124
What is the 2A?
Guarantees individual's right to possess a firearm, subject to lawful regs
125
Describe Equal Protection
14A EPC for states, 5A DPC for fed gov.
126
How does one evaluate a law that violates EP?
Strict scrutiny, intermediate scrutiny or rational basis
127
When is strict scrutiny used for EP?
If it's a fundamental right or a suspect classification.
128
What is the strict scrutiny test for EP?
Least restrictive means to achieve a compelling gov interest. Burden of proof on gov. Requires discriminatory intent.
129
When is intermediate scrutiny for EP used?
When classification is based on gender or legitimacy.
130
What is the intermediate scrutiny test for EP?
Substantially related to an important gov interest. Burden appears generally to be be on the gov. Requires discriminatory intent.
mere administrative efficiency is not an “important” government interest sufficient to justify that discrimination
131
What exactly is the intermediate scrutiny test for gender under EP?
Require an exceedingly persuasive justification for the classification, and that separate facilities are substantially equivalent.
132
When is the rational basis test for EP used?
When higher standards do not apply (ex: age, wealth, weight).
133
What is the rational basis test for EP?
Rationally related to a legit gov interest. Burden is on the challenger to show that the law is arbitrary or irrational.
134
What are the suspect classifications?
Race, ethnicity, national origin, alienage.
135
When does school segregation violate the EPC?
Only when it's de jure (intentional)
136
What level of EP scrutiny is affirmative action subject to?
Strict scrutiny for suspect classes. Intermediate scrutiny for gender. Permissible as a remedy for past discrim.
137
When is an alienage-based classification ok or not?
A fed classification is likely valid unless arbitrary and unreasonable. A state classification is generally subject to strict scrutiny and will be struck down. Exception: participation in gov functions get rational basis.
138
What are the quasi-suspect classifications?
Gender, legitimacy
139
When are laws based on legitimacy upheld?
Basically not at all?
140
What are some nonsuspect classifications that get rational basis?
Age, poverty, sexual orientation (but laws on this latter one basically don't pass rational basis).
141
What is one person one vote?
An exclusively EP right. When gov establishes voting districts, # of persons in each district must be approximately equal.
142
What are the rules around gerrymandering?
Districts may not be drawn using race as the predominant factor--must survive strict scrutiny. Partisan gerrymandering claims are constitutionally suss but not justiciable.
143
What is the Comity Clause?
Prohibits states from discriminating against citizens of another state with respect to fundamental rights or essential activities (ex: pursuit of employment, transfer of prop, access to state courts). Applies only to citizens, not corps or aliens. Exception: substantial justification--if state can show nonresidents either cause or are part of the problem the state is trying to solve and there are no less-restrictive means to solve the problem.
144
14A privileges and immunities clause description
Prohibits one state from discriminating against the citizens of another state. Protects citizens from infringement by states upon the privileges and immunities of national citizenship. Applies only to citizens (not corps or aliens). Includes rights to travel interstate, vote for national offices, enter public lands, and peaceably assemble. In practice just used for the right to travel.
145
Describe the Takings Clause
A check on the power of eminent domain.
The Due Process Clause of the Fourteenth Amendment incorporates the Takings Clause of the Fifth Amendment, thereby making it applicable to the states.
146
What type of property does the Takings Clause apply to?
Real prop, tangible personal prop, and intangible prop
147
What types of interests does the Takings Clause apply to?
Fee simple, easement, leasehold, lien, and the rights of a property owner (ex: the right to control access to the prop).
Takings Clause generally applies to the government’s taking of an individual’s real property, rather than an employment interest.
148
What is the rule for regulatory takings?
Generally, regulation that adversely affects a person's prop interest is not a taking, but it is possible if it results in a permanent total loss of the prop's econ value.
State and municipal zoning laws survive challenges under the Takings Clause as long as the government has a legitimate interest, which includes aesthetic and environmental concerns, and does not deny the property owner the economically viable use of his property.
149
What is the rule for exaction of promises from developer as a taking?
Does not violate the Takings Clause if there is: 1) an essential nexus btw legit state interests and the conditions imposed on the prop owner; and 2) a rough proportionality btw the burden imposed on the prop owner and the impact of the proposed development.
150
What is a just compensation for a taking?
Fair market value at the time of the taking. Measured in terms of the loss to the owner, not the benefit to the gov.
151
Definition and constitutionality of bills of attainder
A leg act that declares a person or group guilty of some crime and punishes them without trial. Applies only to crim or penal measures. Unconstitutional.
152
Definition and constitutionality of ex post fact laws
1) Criminalizes an act that was not a crime when it was originally committed;
2) authorizes a more severe penalty after an act was committed;
3) deprives D of a defense available when the act was committed; or
4) decreases the prosecution's burden of proof below that required when the act was committed. Unconstitutional.
153
Describe the Contracts Clause
Prohibits states from passing any law impairing the obligation of contracts. Applies only to state legislation--not state-court decisions or fed legislation--that retroactively impairs contractual rights. Does not apply to contracts not yet entered into.
Private contracts, does not apply to fed gov.
154
When gov program shows pref to one religion over another, or to religion over nonreligion, what test is applied?
Strict scrutiny. Lemon test: a gov action that benefits religion is valid if: 1) it has a secular purpose; 2) its primary effect neither advances nor inhibits religion; and 3) it does not result in excessive gov entanglement with religion.
155
When is aid to religiously affiliated institutions ok?
If the aid is secular in nature, used only for secular purposes, and distributed according to religiously neutral criteria.
156
When are tax exemptions for religious institutions ok?
Valid if equivalent to exemptions to other charitable institutions not advancing or inhibiting religion (i.e., cannot be available only to religious orgs).
157
When are tax deductions for parents of students in religious schools ok?
When the deduction is available to all parents.
158
When are tuition vouchers for parents of students in religious schools ok?
Do not violate EP if parents can decide whether to use them at religious or non-religious schools. But a state may deny state funds to a student pursuing a religious career without violating the Free Exercise Clause.
159
What is the constitutionality of the following practices in public schools: A) prayer in bible reading, B) period of silence for meditation or voluntary prayer lacking any secular purpose, C) nondenominational prayer at school events, D) posting the 10 Commandments on public school classroom walls, E) prohibiting the teaching of Darwinism.
All unconstitutional.
160
Can public schools allow student religious orgs to use their facilities?
Yes if they allow other student orgs to use its facilities.
161
What is the rule about religious displays?
A display on public prop not allowed if it has a predominantly religious purpose (like 10 Commandments).
162
When are gov holiday displays ok?
Generally ok unless a reasonable observer would conclude that the display is an endorsement of religion.
163
What does the free exercise clause protect
Freedom to believe in any religion or none at all, and to act.
164
What are the protections on religious belief?
Absolutely protected and cannot be restricted by law. Gov may not 1) deny benefits or impose burdens based on religious belief; 2) require affirmation of a belief; or 3) determine the reasonableness of a belief
165
What are the protections on religious conduct?
Not absolute. State laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to rational basis test.
166
RFRA
Neutral laws of general applicability are subject to strict scrutiny if they sub burden free exercise of religion???
167
What is the rule around regulation of expressive conduct?
Subject to a lesser degree of protection than speech. A regulation of it can be upheld if: 1) the reg is within the gov's power to enact; 2) it furthers an important gov interest; 3) the interest is unrelated to the suppression of ideas; and 4) the burden on speech is no greater than necessary.
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if it's a matter of public concern, what level of scrutiny is it subject to?
strict scrutiny
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can media public illegally obtained private info?
yes, if third party (unknown to publisher) obtained the info and it involves a matter of public concern
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is there a privilege for protecting sources?
no
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what level of scrutiny for content-based regs of cable TV?
strict scrutiny
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what level of scrutiny is the internet subject to?
strict scrutiny
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describe the freedom of association
protects right to form or participate in any group, gathering, club or org; but may be justified by compelling state interest
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when can a person be punished or deprived of public employment based on political association?
if they are an active member of a subversive org; have knowledge of the org's illegal activity; and have specific intent to further those illegal objectives
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can bar membership be denied based on association?
no, unless candidate knowingly belongs to a subversive org with specific intent to further its illegal ends or if candidate refuses to answer questions about political affiliations if that refusal obstructs investigation of candidate's qualifications
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fusion candidate definition and rule
a candidate who is nominated by more than one political party; state may prohibit a fusion candidate from appearing on general ballot as a candidate of multiple parties
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Art. IV Privileges and Immunities Clause description
Article IV’s Privileges and Immunities Clause protects citizens of one state from discrimination by another state in their exercise of fundamental rights.
Nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities, including the pursuit of employment, transfer of property, access to state courts, and engaging in the political process. Discrimination against out-of-state residents in setting the fee for a commercial activity violates the Privileges and Immunities Clause of Article IV, but similar discrimination for a recreational activity does not, if there is a rational basis for the fee differential.
Does not prevent a state from discriminating against its own citizens. In-state residents have no claims against their own state under the Privileges and Immunities Clause.
Article IV Privileges and Immunities Clause has been interpreted as not applying to corporations.
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What is the 12A?
Delineates the process by which the President and Vice President are elected to office.
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General Welfare Clause:
While the General Welfare Clause gives Congress broad power in exercising its taxing and spending powers, it does not give Congress the specific power to legislate for the public welfare in general. Such “police power” is reserved for the states.
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Statutes designed to punish speech that expresses certain viewpoints are...
Unconstitutional.
Even if the state appears to be enacting a “fighting words” regulation, which can be constitutional to prevent immediate breaches of the peace, such regulations cannot punish only fighting words that express certain viewpoints. For example, the Supreme Court has struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion, or gender.
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Separation of Powers principle:
Under principles of separation of powers, Congress can neither expand nor contract constitutional rights as defined by the Supreme Court.
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Can a state expand or contract individual rights granted by the US constitution?
A state may expand, but cannot contract, individual rights, such as free speech, granted by the United States Constitution.
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Bankruptcy Clause:
Bankruptcy Clause gives Congress the power to subject states to its provisions. While the Eleventh Amendment generally immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state, it does not bar the actions of a bankruptcy court that impacts state finances.
