Con. Law Flashcards
(255 cards)
1
Q
Question
A
Answer
2
Q
What is the name of limits on powers?
A
Justibility Doctrines
3
Q
What are the four justicibility doctrines?
A
(1) Standing (2) Ripeness (3) Mootness (4) Political Question
4
Q
What is standing?
A
If the plaintiff can bring a suit.
5
Q
What are the elements of primary party standing?
A
(1) Injury in fact (usually money), (2) causation, and (3) redressability.
6
Q
What is required for a plaintiff to have standing in a constitutional matter?
A
(1) Personal
injury, (2) Causation & redressability, (3) No generalized grievances, or (4) third-party standing.
7
Q
What are the injuries valid for standing and redressabilty in Constitutional claim?
A
Personal injuries (health or property) and likelihood of injury again.
8
Q
What is the best candidate for an injury?
A
One has suffered a monetary loss.
9
Q
When can a third-party have standing?
A
(1) Close relationship, (2) unlikely to assert their own rights, (3) organizations.
10
Q
When can an organization have third-party standing?
A
(1) Members have standing on their own, (2) Interest germane to the purpose of the organization, (3) No need for individual participation.
11
Q
What is generalized grievance?
A
A plaintiff may not sue solely as (1) a citizen or (2) a tax payer.
12
Q
What is the only exception to having a tax payer having to sue?
A
When the tax provides a direct violation of the establishment clause of the 1st amendment.
13
Q
When may a plaintiff have a ripe claim despite not suffering harm?
A
(1) Hardship in compliance or non-compliance (2) Fitness of the issue
14
Q
When is a case moot?
A
The injury is no longer present.
15
Q
What are the exceptions to mootness?
A
(1) Injury capable of repetition (2) voluntary cessation by defendant (3) class actions
16
Q
What are non-justiciable political questions?
A
(1) Any cases for or against the republican form of government in the states. (2) Challenges to presidential policies. (3) Impeachments. (4) Challenges to partisan gerrymandering.
17
Q
What is required for certioari?
A
Four votes by the supreme court justices.
18
Q
What cases come under certioari?
A
(1) State Supreme Court cases and (2) Circuit court of appeals decisions
19
Q
When does an appeal come before the Supreme Court?
A
Cases from three-judge federal court skip the court of appeals and go to the Supreme Court by obligation.
20
Q
What are the Article III forms of original jurisdiction?
A
(1) Ambassadors, (2) after a final judgment from (a) state court rulings with inadequate and dependant claims, (b) court of appeals, (c) three-judge court, (3)
21
Q
Over what type of dispute does the Supreme Court have original and exclusive jurisdiction?
A
Disputes between state governments.
22
Q
What amendment bars suits against states in federal court?
A
11th Amendment
23
Q
May a state be sued in a state court or federal agency?
A
No, they have sovereign immunity.
24
Q
When may a state government be sued?
A
(1) Explicit written consent, (2) Congressional authorization, (3) Federal government suits, (4) Bankruptcy.
25
Who may be named as a defendant as a means of suing the state government?
(1) Officers and (2) local governments.
26
What sections of the constitution may be used to sue states?
The 5th and 14th amendment, not the commerce power.
27
What is abstention?
When a federal court has jurisdiction but declines to exercise it.
28
When must a federal court abstain?
Federal courts must abstain from enjoining pending state court proceedings.
29
When may Congress act according to the constitution?
There must be express or implied authority to act.
30
When may Congress have police power?
(1) Military, (2) Indian reservations, (3) Lands or territories, (4) D.C.
31
What is MILD?
Military, Indian reservations, Lands or territories, District of Columbia.
32
What is the Necessary & Proper Clause?
Congress may choose any means not prohibited by the constitution to carry out its authority.
33
What are Congressional powers?
(1) Taxing & spending, (2) Commerce clause, (3) uniform naturalization rules & bankruptcy laws, (4) raising & supporting military.
34
What can Congress regulate under the commerce clause?
(1) Channels, (2) Interstate, (3) Local activity with cumulative effect, (4) Can't regulate inactivity
35
What are channels?
Waters, highways, the internet, etc.
36
What falls under interstate?
Trucks, planes, trains, internet, telecoms, insurance or anything going across state lines.
37
What are local activities that have a cumulative effect?
Growing wheat for personal consumption and growing Schedule I drugs.
38
What are not eligible under cumulative local activities?
Any non-economic activity such as domestic violence or economic inactivity.
39
When may Congress regulate non-economic activity?
If it has a substantial economic effect on interstate commerce.
40
What are the Limits on Federal Power?
Anti-Commandering Principle: Congress cannot compel state legislative or regulatory activity.
41
What amendment limits Federal Power?
10th Amendment. Any power not granted to Congress or prohibited by states is given to the states and the people.
42
When may Congress induce state legislative or regulatory activity?
(1) Conditions on Federal grants so long as not unduly coercive, (2) Preventing harmful activities by states.
43
What may Congress do under the 5th & 14th Amendment?
(1) Cannot create new rights or expand the scope of rights, only remedy wrongs. (2) Must be proportional and congruent to wrongs.
44
May Congress delegate powers?
Yes, almost without limit. All delegations must provide intelligible standards to guide discretion.
45
What are the impermissible vetos?
(1) Congressional legislative vetos and (2) Executive line-item vetos.
46
What are examples of legislative vetos?
One house veto; both houses but no executive approval.
47
What is a line-item veto?
An impermissible veto of part of a law by the president while retaining the rest.
48
What may Congress NOT delegate?
Any executive powers for implementation or enforcement of laws.
49
Where does the Executive branch get power from in the Constitution?
Article II
50
What are under executive powers?
(1) Treaties and (2) Executive Agreements
51
What is the hierarchy of treaties?
(1) Constitution > (2) Prior federal statute > (3) earlier Treaty > (4) federal law > (5) later treaty >(6) all executive agreements > (7) all state laws.
52
What is an executive agreement?
An effective agreement made by the President with another state that does not require Senate approval.
53
What may an executive agreement do?
The same power as any treaty.
54
What are the presidential powers?
(1) Treaties, (2) Executive agreements, (3) Recognition power, (4) Immigration: Power over who may be admitted to the US, (5) Commander-in-Chief: use of of forces in foreign countries.
55
Who has appoitnment power?
President nominates and appoints (1) ambassadors, (2) judges, and (3) officers of the federal state. Congress may appoint "inferior" officers of the federal government.
56
What is an "inferior" officer?
Any officer that may be fired by the appointed officer or lower federal courts.
57
May Congress appoint officers for a new agency?
No, Congress may not give or delegate executive power to itself.
58
What limit on recess power is there?
A president may not appoint someone for a recess less than 10 days.
59
When may Congress limit removal powers of the President?
(1) If the office is important to be independent of the President, (a) Congress cannot remove the cabinet, (b) Statute cannot limit removal. (c) Cannot remove the head of an agency that has substantial discretion. (2) Impeachment
60
When can removal from officer occur?
Treason, Bribery, and High Crimes & Misdemeanors
61
When may a President be impeached?
The house impeaches, but the Senate must convic.
62
What is the vote requirements for impeachment?
House: Majority; Senate: 2/3rds
63
What is the scope of Presidential immunity?
The President may not be sued or prosecuted for any conduct while in office, but may be sued for acts prior to taking office.
64
What is executive privilege?
A President may keep confidential some conversations, documents, and information.
65
When may executive priviliege be overruled?
When there is an overriding need for the information, such as a criminal trial.
66
What subpoenas are a president subject to?
(1) Grand jury, (2) Congressional
67
What are the criteria for subpoenas?
(1) No immunity from state grand juries, (2) Balancing of interests for Congressional subpoenas.
68
What limit is there upon the Pardon power?
(1) Only federal offenses, (2) no matter that was the subject of impeachment, (3) no civil liability
69
What is preemption?
The power of Congress to override state and local law.
70
What are the types of federal preemption over States?
(1) Express, (2) Implied, (3) Taxation, (4) Regulation
71
When is there express preemption?
When federal law states that it has "exclusive" power in a certain area. E.g. FDA alone can give grades and labels.
72
How is implied preemption determined?
(1) Mutually exclusive laws preempt the state, (2) State or local law interferes with a federal objective, (3) Field preemption even if not stated explicitly.
73
What is the state tax preemption?
No State can tax or regulate federal government activity. It is unconstitutional to pay a state tax out of the federal treasury.
74
What is the test for tax discrimination?
(1) Substantial nexus to taxing state, (2) fair apportionment to activity connected to the state, and (3) fair relationships to services or benefits provided by the state.
75
What is state regulation preemption?
A state may not impose stricter regulations upon the federal government for activities within the state. E.g. stricter environmental laws.
76
What is the dormant commerce clause?
If state or local law or regulation puts an "undue burden" upon interstate commerce.
77
When may a state law burdening interstate commerce be exempted?
(1) Necessary to an important state interest, (2) state is a market participant, (3) traditional government function, and (4) Congress approves.
78
What is the "privileges & immunities" clause?
It is an Article IV provision preventing out of state citizens from being discriminated against.
79
When does the privileges & immunities clause apply?
Right to travel
80
When does a state or local law discriminate against out of state citizens?
If it puts any burden on inter-state commerce that is not justified by the benefits.
81
What other activities are violations of the commerce clause and article IV?
(1) Out-of-state discrimination, (2) fundamental rights or important economic activity for fundamental rights or important economic activity, (3) not corporation or aliens, (4) must be necessary to achieve a compelling government purpose.
82
What are the fundamental rights?
(1) Marriage, (2) procreation. (3) child custody, (4) child rearing, (5) keeping family together, (6) contraceptives, (7) voting, (8) travel.
83
What is a quasi-fundamental right?
(1) Abortion, (2) private sex acts, (3) refusal of medical treatment.
84
What is an example of a statute not violating an undue burden under the commerce clause?
Elk-hunting license differences in fees are justifiable because it is a hobby.
85
When may a state tax out-of-state businesses under the constitution?
(1) Must not tax to help in-state business, (2) must have a substantial nexus (e.g. out-of-state businesses subject to sales tax), and (3) must be fairly apportioned.
86
What is the "state action" doctrine?
All levels of government, not private conduct, are subject to the constitution. However, Congress may impose constitutional standards to private actors.
87
Who is a "state actor"?
(1) Public functions, (2) excessive entanglement, (3) government funding is insufficient by itself.
88
When does the entanglement tend to apply?
When racial discrimination is involved, less so when it is a first amendment concern.
89
What portions of the Bill of Rights does not apply to state & local governments?
The total incorporations have prevailed except (1) 3rd amendment quartering of soldiers, (2) 5th amendment right to grand jury indictment, and (3) 7th amendment right to jury trials in civil cases.
90
What is "rational basis review"?
The standard of review where a statute must be (1) rationally related to a legitimate government purpose,(2) Any conceivable purpose, even if not actual (deference to government), and (3) the burden of proof is on the challenger.
91
What is "intermediate scrutinty"?
A law will be upheld if (1) government action is substantially related (narrowly tailored) to (2) an important government purpose, (3) the burden of proof is on the government.
92
What type of purpose is acceptable in intermediate scrutiny?
It must be ACTUAL and IMPORTANT.
93
What is "strict scrutiny"?
It May only be upheld if it is (1) necessary, (2) to achieve a compelling purpose, and (3) the burden of proof is on the government.
94
What is procedural due process?
If the government follows adequate procedures for depriving life, liberty, and property.
95
What is substantive due process?
Did the government have adequate REASON to for taking life, liberty, and property. Usually economic liberties or privacy.
96
What is equal protection?
If the government unequally applies a deprivation to different classes.
97
How should the process be determined?
(1) Was it about how I was heard? : Procedural, (2) Why was I deprived? Substantive (3) Was I treated differently: Equal protection.
98
What is a deprivation of liberty?
(1) Institutionalization of a majority must be preceded by notice & hearing, (2) Parent institutionalizing a minor requires only a fact-finder, (3) harm to reputation by itself is NOT a loss of liberty.
99
When is there an entitlement?
If there is a reasonable expectation of a continued receipt of a benefit.
100
When is there a deprivation in procedural due process?
The deprivation is (1) negligent or reckless, (2) conduct shocks the conscience, and (3) doesn't include failure to protect.
101
What is the balancing test for procedural due process?
(1) importance of interest to individuals (2) ability of procedures to increase the accuracy of fact-finding, and (3) government interest.
102
What kind of due process is required for corporeal punishment?
None.
103
Do excessive punitive damages have any effect on due process?
Yes, may violate procedural due process if grossly excessive.
104
Are American combatants of enemies given procedural due process?
Yes.
105
What review is given to economic liberties?
Rational basis test.
106
What is the test for takings under imminent domain?
(1) Is there a taking? (2) Is it for public use? (3) Was there just compensation?
107
What kind of takings are there?
(1) Possessory taking by government possession or occupation through confiscation or coercion, (2) Regulatory taking by regulations leaving no reasonable economically viable use of the property. (Dimunition is not sufficient). (3) Conditions on development must be justified by the benefits and can be challenged even if regulations existed prior to the purchase of the property. (4) Temporary denial of development.
108
What is public use?
Any government taking out of a reasonable belief for public benefit.
109
What is the measurement of just compensation?
Measures the loss to the owner at a reasonable market value, not the benefit to the government.
110
What are under "Privacy" rights?
(1) Marriage, (2) procreation, (3) contraception, (4) consensual sexual activity, (5) abortion, (6) custody, (7) parental rights, (8) family cohesion, (9) refusal of medical care for non-communicable disease.
111
What are the rights under the 2nd Amendment?
Right to have guns in the home for security. The level of scrutiny is unclear and the right is not absolute.
112
What can the government regulate for firearms?
Who can have them, what kind of weapons, and where they can be permitted.
113
What is the review applied to travel?
(1) Laws preventing entry or moving to require strict scrutiny. (2) Durational residency requirements are subject to strict scrutiny. (3) Foreign travel is subject to a rational basis review because it is not a fundamental right.
114
What is the maximum number of days for a right to vote?
Fifty (50) days of residency as a requirement.
115
What is the 15th amendment?
The fundamental right to vote regardless of race.
116
What is the level of scrutiny for voting restrictions?
Strict scrutiny
117
What level of scrutiny applies to protecting the integrity of the system?
The balancing test. Voter IDs are generally consitutional.
118
What types of voting restrictions are per se unconstitutional?
(1) Property requirements, (2) poll tax requirements, (3) tests.
119
What is the requirement for districts?
All districts must be approximately the same number of people. One person, one vote.
120
What is an at-large election?
All voters vote for all of the offices so long as there is no evidence of a discriminatory purpose.
121
How does race affect distrciting?
Strict scrutiny applies to creating districts based on race regardless of whether it is intended to benefit or harm the minority.
122
What is the status of education under constitutional rights?
Education is not a fundamental right.
123
When does the equal protection clause apply to racial issues?
A disparate outcome is a necessary, but not sufficient requirement. There must also be an intent. Regardless of whether it is harmful or beneficial, strict scrutiny is applied.
124
When may universities have classifications benefiting minorities?
Higher education admissions must only use race as one of other factors and if no other way to achieve diversity.
125
What level of persuasion is required for gender under the equal protection clause?
"Exceedingly persuassive justification."
126
What are conditions for classification?
(1) Must not be based on stereotypes, (2) some biologically based classifications are valid, (3) some classifications designed to remedy past discrimination may be upheld.
127
What is necessary to show an inappropriate gender classification?
(1) Unequal outcome, (2) no intent to discriminate and (3) exceedingly persuasive justification.
128
What may the US discriminate against aliens for?
(1) Voting, (2) serving on a jury, (3) working as a police officer, (4) working as a teacher, (5) working as a probation officer.
129
What standard is used for discriminating against undocumented immigrants?
Intermediate scrutiny.
130
What other classifications are subject to rational basis?
(1) Age, (2) disability, (3) wealth, and (4) economic.
131
What is the test for public forum restrictions?
(1) Be content-neutral, (2) be narrowly tailored to serve an important government purpose, (3) leave open adequate alternative channels of communciation.
132
What falls under a content-neutral restriction?
(1) time, (2) place, or (3) manner of speech.
133
What scrutiny applies to viewpoint restrictions?
Strict scrutiny
134
What type of review applies to content-neutral?
Intermediate scrutiny.
135
What form is a prior restraint as an equitable remedy?
A temporary restraining order or injunction.
136
What standard is applied to prior restraints?
Strict scrutiny
137
What must a person do to challenge a court order for prior restraint?
They must not violate even a constitutionally prohibited court order if it is procedurally sound.
138
What is vagueness?
Unconstitutional if a reasonable person can't tell what's prohibited or allowed.
139
What is overbreadth?
Unconstitutional if regulates substantially more speech than constitution allows.
140
What are fighting words?
A category of speech that almost never can be directly regulated against. Almost not statutes against fighting words are upheld.
141
What is the test for "symbolic speech"?
(1) The regulation furthers a gov't interest, (2) the interest is unrelated to the suppression of the message, and (3) the impact on speech is no greater than necessary to further the important interest.
142
What protections are afforded to key symbolic speech?
Protected: flag & cross burning. Unprotected: public nudity.
143
When is cross-burning not protected?
If the purpose of the cross-burning is intended to intimidate or threaten.
144
When can the government punish speech?
When (1) a substantial likelihood of imminent illegal activity and (2) the speech directly causes imminent illegal activity.
145
What is the test for obscenity?
(1) Appeals to prurient interest in sex, (2) patently offensive, (3) no serious artistic, literary, political, or scientific value.
146
What is prurient?
Shameful or morbid interest in sex.
147
What is upheld for obscenity restrictions?
(1) Zoning, (2) all child abuse materials, (3) cannot punish possession of non-minor porn, (4) can seize assets of business convicted of violations, (5) profane and indecent speech usually protected EXCEPT in broadcast media.
148
What are public forums?
Government properties that the gov't is constitutionally required to make available for speech such as sidewalks and parks.
149
What regulations are allowed for public forums?
Subject matter AND viewpoint-neutral otherwise it will be under strict scrutiny. It must be a time, place, and manner restriction serving an important government purpose with adequate alternatives. That will put it under intermediate scrutiny.
150
The government may impose speech regulations on a nonpublic forum when...
(1) viewpoint neutral and (2) reasonable.
151
What are examples of non-public forums?
Military bases, areas outside prisons & jails, airports, and sidewalks on post office property.
152
When is there a right to discriminate?
(1) Intimate association, (2) integral to activities of the group
153
What is the Lemon Test of the Establishment Clause?
Gov't act concerning religion is only valid if (1) there is a secular purpose, (2) act's primary effect neither advances nor inhibits relation, and (3) act does not create excessive government entanglement with religion.
154
What is SEX for 1st amendment?
Secular purpose, Effect, eXcessive entanglement.
155
What are the methods of supreme court review?
(1) Discretionary, (2) Mandatory review when there is a 3-panel judge regarding injunctive relief.
156
What is the obligation of the executive branch?
The executive branch is obligated to execute all laws passed by Congress.
157
What may Congress raise taxes for?
The "general welfare" so long as it is reasonably related to revenue production.
158
What is the regulatory effect?
Congress may place conditions on spending so long as it is not overly coercive.
159
What are the requirements for conditional grants?
Conditions must (1) be expressly stated, (2) related to the purpose of the law, and (3) not unduly coercive.
160
What is the scope of Congressional police power?
(1) Military, (2) Indian Reservations, (3) Federal land or territories, (4) District of Columbia
161
What is the scope of Congressional delegation powers?
Broad authority to delegate to executive officers and agencies if (1) legislative standards are intelligible, (2) may not delegate executive or judicial powers to itself its officers.
162
What are unconstitutional vetos?
(1) Legislative vetos by Congress upon decisions by an agency acting according to their delegated power without enacting a superseding law, (2) Line-item vetos by Presidents to pass part of a bill.
163
What are the appointment powers of the President?
(1) Ambassadors, (2) Federal Judges, (3) high-level officers with advice and consent of Senate.
164
What are the removal powers of the President?
May remove high-level executive officers so long as Congress has not passed a statutory limit.
165
What are the appointment powers of Congress?
Only inferior officers and may not give itself appointment powers.
166
What are the removal powers of Congress?
Only executive officers through impeachment.
167
What is impeachment?
House of Representatives with a majority vote may impeach the President, VP, federal judges, and federal officers for treason, bribery, or high crimes and misdemeanors. Removal requires a trial in the senate and 2/3rd vote for removal.
168
What are treaties?
Agreements between the US and foreign countries negotiated by the President. Requires ratification by 2/3rds of the Senate.
169
What amendments are not incorporated into the 14th amendment?
(1) 3rd Amendment right not to have quartered soldiers, (2) 5th amendment right to grand jury indictment, (3) 7th amendment right to jury trial.
170
What is Article I?
Legislative Branch.
171
What does Article II of the Constitution cover?
Executive Branch
172
What is Article III?
Judicial Branch
173
What is Article IV?
(1) States, (2) Citizenship, (3) New States, (4) Republicanism
174
What is Article V?
Amendment Process
175
What is Article VI?
(1) Debts, (2) Treaties, (3) Oath, (4) No religious test
176
What is Article VII?
Ratification.
177
What is the 1st Amendment?
(1) Establishment, (2) free exercise, (3) speech, (4) press, and (5) association.
178
What is 2nd Amendment?
(1) right of the people, (2) to bear arms, (3) in a well-regulated militia.
179
What is the 3rd Amendment?
Right to be free of forced military quartering in homes.
180
What is the 4th Amendment?
Search & seizure requires warrant with probable cause, oath, and particularity.
181
What is the 5th Amendment?
(1) Grand jury for capital or infamous crimes, (2) double jeopardy, (3) right to silence, (4) due process
182
What is the 6th Amendment?
(1) Speedy and public jury criminal trial, (2) confrontation clause, (3) subpoena of witnesses, (4) assistance of counsel.
183
What is the 7th Amendment?
Civil jury trial and claim preclusion.
184
What is the 8th Amendment?
No (1) excessive bail, (2) fines, (3) cruel & unusual punishment.
185
What is the 9th Amendment?
Non-enumerated rights retained by People.
186
What is the 10th Amendment?
Undelegated powers reserved to States & People.
187
What is the 11th Amendment?
Prohibits suits against States.
188
What is the 12th Amendment?
Election of President & Vice President.
189
What is the 13th Amendment?
Prohibition of slavery.
190
What is the 14th Amendment?
Prohibits states from depriving individuals of life, liberty, or property without due process and equal protection.
191
What is the 15th Amendment?
Prohibits states and federal government from denying any citizen the right to vote on the basis of race or color.
192
What is the 16th Amendment?
Income Tax.
193
What is the 17th Amendment?
Popular election of Senators
194
What is the 18th Amendment?
No alcohol.
195
What is the 19th Amendment?
Women's Right to Vote
196
What is the 20th Amendment?
Presidential term, succession, and assembly of Congress.
197
What is the 21st Amendment?
Repeal of 18th.
198
What is the 22nd Amendment?
Two-Term Limit on Presidency
199
What is the 23rd Amendment?
DC residents can vote for President.
200
What is the 24th Amendment?
Abolition of Poll Taxes.
201
What is the 25th Amendment?
Presidential Disability & Succession
202
What is the 26th Amendment?
Right to Vote at Age 18.
203
What is the 27th Amendment?
Congressional Compensation.
204
What is rational basis review?
A law will be upheld if (1) it is rationally related to (2) a legitimate government purpose, (3) actual purpose irrelevant, and (4) the burden of proof is on the challenger.
205
What is intermediate scrutiny?
A law will be upheld if it is (1) substantially related to, (2) an important government purpose, (3) actual reason, and (4) government bears the burden of proof.
206
What is strict scrutiny?
A law will be upheld if (1) it is necessary to achieve (2) a compelling government interest, (3) actual purpose, and (4) burden bears government of proof.
207
What are the substantive due process levels of scrutiny?
(1) Non-fundamental: rational basis, (2) fundamental rights: strict scrutiny.
208
What is the main distinction substantive due process and equal protection clause?
Substantive involves laws affecting everyone's rights, equal protection involves treating certain people or classes of people differently than others based on a trait.
209
What is the review of economic rights?
Rational basis review.
210
What is the Contracts Clause?
States and local governments must not impair existing contractual duties.
211
What scrutiny is given to impaired private contracts?
Intermediate scrutiny if a law substantially impairs a party's rights under an existing contract unless: (1) the law serves an important, legitimate public interest, and (2) is reasonably and narrowly tailored in promoting that interest.
212
What scrutiny is given to government contracts?
Local laws that substantially interfere with government contract must be reasonable and necessary to serve an important public purpose.
213
What is the Ex Post Facto Clause?
No law can criminally punish conduct that was lawful when it was done and is found in the commerce clause.
214
What is the test for Ex Post Facto?
(1) Criminally punishes act previously lawful, (2) increase punishment for a crime after it has been committed, or (3) reduces the burden required to convict a person for a crime after it has been committed.
215
What scrutiny is used for ex post facto civil liability?
Rational basis review.
216
What is bill of attainder?
All legislative acts that punish specific individuals or group members are unconstitutional as a violation of due process.
217
How should equal protection application be analyzed?
(1) Is there a discriminatory classification? (2) What level of scrutiny applies to the classification? (3) Does the classification satisfy the appropriate level of scrutiny?
218
What are the discriminatory classifications?
Alienage, Gender, non-marital children, race, national origin, right to travel, right to vote.
219
What is the review classification for alienage?
(1) Rational basis if related to self-government and democratic process or immigration and (2) Strict scrutiny for other areas.
220
What falls under strict scrutiny for equal protection?
(1) Race, (2) National origin, (3) some alienage, (4) right to travel, and (5) right to vote.
221
What falls under intermediate scrutiny for equal protection?
(1) Gender, (2) Non-marital children.
222
What are the precedents on affirmative action?
(1) Quotas may only be valid if there is a clear proof of persistent and readily identifiable discrimination which cannot be based on general past wrongs, (2) diverse student body is a compelling interest and classifications may be used only if necessary and not dispositive, (no points) (3) public school systems may assign students to schools based on race for integration.
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What are related self government & democratic processes for alienage?
Discrimination on (1) voting, (2) jury duty, (3) police jobs, (4) teacher, (5) probation officer are subject to rational basis.
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What is required to uphold a gender discrimination?
An narrowly-tailored exceedingly persuasive justification substantially related to an important government interest.
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When do non-marital children issues arise?
Under intestacy statutes, thus intermediate scrutiny applies. If a law grants benefits to marital children, but denial to extramarital children are per se unconstitutional.
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What is the right to travel?
Citizens have the right to move between states without impediment.
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What are the limits of durational residency requirements?
(1) 30 days for voter registration or 1 year before divorce is valid, but (2) 1 year residency for welfare, subsidies, or voting are invalid.
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What are the rights associated with voting?
(1) one person, one vote, (2) districts must be similar in population, (3) at-large elections (voting for all officials) are constitutional, (4) laws that deny citizens voting rights are subject to strict scrutiny.
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What is a limited or designated forum?
Government property open for speech, but subject to closure at any time.
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What is a non-public forum?
Government property that can be closed to speech, if (1) reasonably related to some legitimate purpose, and (2) viewpoint neutral, but (3) content-neutral is not required.
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When may the government require permits or licensing?
If (1) a reasonable justification, (2) requirements are mere formality and provide review for denial, (3) can be challenged on constitutional grounds.
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What are the requirements for prior restraint?
(1) government interest that is significant and real [national security], (2) procedural safeguards to ensure restraint is narrow, reasonable, and definite with prompt, final judicial review.
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When are preliminary injunctions on speech permissible?
To prevent pretrial discussion for a fair trial when it is the only way of preserving a fair trial.
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What is vagueness in a first amendment context?
A law is vague if a reasonable person cannot tell whether speech is prohibited or permitted.
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What is overbreadth?
A law is overbroad if it regulates substantially more speech than the constitution allows. If found to be overbroad it cannot be enforced against anyone including legitamate subjects.
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What is symbolic speech?
Expressive or communicative conduct that is not strictly verbal.
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When may the government regulate symbolic speech?
(1) Regulation furthers an important government interest, (2) government interest is unrelated to suppression of the message; and (3) the impact on speech is no greater than necessary to further the important interest.
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What is incitement?
Unprotected speech which may be restricted if (1) substantial likelihood speech will bring about imminent illegal activity, and (2) aimed at causing imminent illegal activity. "Clear & Present Danger."
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What are fighting words?
Any speech likely to cause an immediate violent response against a speaker may be punished.
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What are true threats?
A threat communicated with the intent to and actually intimidates the recipient is not protected speech.
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What are the elements of obscenity?
Obscenity may be regulated and unprotected when: (1) appeals to prurient interests, (2) patently offensive in sexual portrayal, [local standard] (3) taken aw a whole lacks serious literary, artistic, political, or scientific value. [national standard]
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How may government validly limit obscenity & profanity?
Through zoning if aimed at protecting property, values, combating crime, or protecting children.
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What type of material is impermissible?
No child pornography actually portraying children is permissible.
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What is the rule for profanity or indecent speech?
May only be regulated if (1) aired over broadcast media, or (2) within public schools.
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What is unprotected commercial speech?
(1) false, misleading, or deceptive, or (2) illegal or concerning illegal activity.
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What is protected commercial speech?
Anything lawful, but may be regulated to protect if (1) substantial interest, (2) regulation directly advances that interest, and (3) no more extensive than necessary. Narrowly tailored, but not the least restrictive.
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What is the free exercise clause?
Government may not punish or prohibit conduct solely on the basis of a person's beliefs unless legislation curtailing practices are aimed solely at a legitamate government interest, generally applicable, and does not excessively burden.
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What is the establishment clause?
Prohibits the government from establishing a sponsor of religion or give preference to one religion or another.
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What is the Lemon Test?
Government Act concerning religion is only valid if: (1) Secular purpose behind the act, (2) act's effect neither advances nor inhibits religion, and does not create excessive government entanglement.
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What types of government aid are acceptable under the establishment clause?
Aid to institutions if used for secular purpose without primarily advancing religion. Sponsored prayer is invalid.
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What is the freedom of association?
Freedom of association protects the right to participate in a gathering, club, or other organization.
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What is the freedom of association analysis?
The government may interfere with association only (1) government act is in pursuance of a compelling government interest, and (2) that interest cannot be achieved by less restriction means. This is akin to strict scrutiny.
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When are associations permitted to discriminate?
A government law or regulation may be invalid if it interferes with a group's express activities.
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When may the government criminalize certain memberships?
(1) Actively affiliated with a group involved with illegal activities; (2) had knowledge of the group's illegal activities; and (3) acted with the specific intent of furthering those activities.
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What level of scrutiny is applied to disclosure of group memberships?
Laws requiring disclosure are met with strict scrutiny if disclosure would have the effect of chilling association.
