Con Law Flashcards

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1
Q

Standing of Members of Congress

A

Supreme Court has held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto, reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress

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2
Q

Congressional Spending - Exception to “no citizenship standing”

A

In general a taxpayer has no standing to challenge the expenditure of funds.

The major exception is where the taxpayer alleges that the expenditure was enacted under Congress’s taxing and spending power and exceeds some specific limitation on that power, in particular the Establishment Clause.

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3
Q

A state’s regulation in an area where Congress has not already acted is valid if the regulation:

A

Does not discriminate against out-of-state commerce and does not unduly burden interstate commerce (i.e. the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation)

Discriminatory Regulations - almost always invalid
- upheld only if it is necessary to achieve and important, NONECONOMIC state interest and there are no reasonable alternatives (ex: a state could prohibit IMPORTATION of live bait fish because parasites could have a detrimental effect on its own fish population - but a state could not prohibit EXPORT of live bait fish when no major state interest was involved)

Non-Discriminatory Laws - Balancing Test
- If a non-discriminatory law (one that treats local and out-of-state interests alike) burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available. (ex: an Iowa statute banning trucks over 60 feet was held to be invalid because the state showed no significant evidence of increased safety and the burden on commerce was substantial)

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4
Q

For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has:

A

A legitimate claim or entitlement to the benefit

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5
Q

Factors a court considers in determining the type of procedural due process that is required

A

the importance of the individual’s interest that is involved and the value of specific procedural safeguards of the individual’s interest against
the government’s interest in fiscal and administrative efficiency

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6
Q

Privileges and Immunities Clause of Article IV

A

states may not discriminate against nonresidents regarding fundamental rights - i.e., those involving important commercial activities (such as pursuit of a livelihood) or civil liberties - absent a substantial justification - i.e., the state shows that nonresidents either cause or are part of the problem the state is attempting to solve, and that there are no less restrictive means to solve the problem

“substantial justification” = “necessary to achieve an important government purpose”

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7
Q

Privileges or Immunities Clause of 14th Amendment

A

prohibits states from denying their citizens the rights of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the US Government

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8
Q

Under the clear and present danger test, speech may be sanctioned whenever it___

A

is directed to producing or inciting imminent lawless action and is likely to produce such action

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9
Q

Regulation of speech in a public or designated public forum

A

To avoid strict scrutiny and be upheld, a regulation must be content-neutral, narrowly tailored to serve an important government interest, and must leave open alternative methods of communication

It does not have to be the least restrictive method of achieving the government interest

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10
Q

To be valid, a time, place and manner regulation of a Nonpublic/Limited public forum must be ___

A

viewpoint-neutral and rationally/reasonably related to a legitimate government purpose

Regulation can be based on content - but not based on viewpoint

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11
Q

To valid, a time, place and manner regulation of a Public/Designated Public Forum must be ___

A

content-neutral, or else they will be subject to strict scrutiny

if the regulation is content neutral, it only needs to meet intermediate scrutiny, which in this context means it must:
- be narrowly tailored to serve an important government interest (however, it need not be the least restrictive means for accomplishing the interest) and
- leave open alternative channels of communication

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12
Q

Free Exercise Clause

A

Prohibits government from punishing conduct just because it is religious
- if the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid

For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens

The Free Exercise Clause does NOT require laws of general applicability to have an exception for religiously motivated conduct. Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions with two historic exceptions: the Amish must be exempted from mandatory schooling beyond eighth grade, and workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.

Generally applicable laws or other government action that burdens religious practices will be upheld under the Free Exercise Clause unless it can be shown that the law or action was motivated by a desire to interfere with religion (in which case, it will be upheld only if it passes strict scrutiny).

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13
Q

A law or government program that contains a preference for one or some religious groups over others will be invalid unless ___

A

it is necessary to serve a compelling government interest - must meet strict scrutiny to be valid under the Establishment Clause

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14
Q

Factors in the test for the validity of government action under the Establishment Clause when no sect preference is involved

A

In determining whether government action is valid under the Establishment Clause, courts will consider
(1) whether the action is neutral with regard to religion
(2) Next, courts will consider whether the government action accords with history and
(3) faithfully reflects the understanding of the Founding Fathers.

If so, the action is unlikely to violate the Establishment Clause.

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15
Q

One Person, One Vote Principle (Dilution of Right to Vote)

A

Regarding Congressional Districts, almost exact mathematical equality between the congressional districts within a state is required (even a 0.7% variance was invalidated)

Regarding State Government Districts, the variance from district to district may not be unjustifiably large (almost exact mathematical equality is NOT required - even a 16% variance has been found valid) - state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest (for example, preserving political subdivisions)

*One person, one vote principle is generally inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes)

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16
Q

Delegation

A

Legislative power may be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (for example, the power to declare war or to impeach). A general standard will usually suffice as an intelligible priniciple

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17
Q

Commander in Chief Power

A

The President as Commander in Chief of the Armed Forces has broad discretion to use American troops in foreign countries. In fact, never in all of American history has a presidential use of troops in a foreign nation been declared unconstitutional.

18
Q

Government Employee Oaths /First Amendment

A

The Supreme Court has upheld oaths requiring government employees to oppose the VIOLENT/UNLAWFUL overthrow of the government and to support the Constitution. However, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds

19
Q

Restrictions on Right to Vote (Residency Requirements)

A

A restriction on the right to vote is subject to strict scrutiny and if valid only if it is necessary to achieve a compelling state interest (otherwise the restriction violates the EPC by treating new residents differently from old residents). Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to promote the compelling interest of assuring that only bona fide residents vote. However, the SC has struck down longer durational requirements for lack of a compelling justification. (impinges on right to vote and travel)

However, laws prohibiting nonresidents from voting are generally valid, provided they meet rational basis (ex: limiting the voters in a city’s mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting)
- Bona fide resident requirements are subject to rational basis

20
Q

State Action - Private Entity

A

For the actions of a private entity to satisfy the “state action” requirement, the state must be “significantly involved” in the private entity. Merely granting a license or providing essential services is insufficient.

21
Q

Obscenity

A

Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
(1) appeals to the prurient interest in sex, using a contemporary community standard;
(2) is patently offensive under a contemporary community standard; and
(3) lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard

22
Q

Access to Trials

A

The 1st Amendment guarantees the public and press a right to attend criminal (and probably civil) trials. But, the right might be outweighed by an overriding interest stated in the trial judge’s findings.

**Supreme Court has held that trails and pretrial proceedings can be closed only if closure is necessary to preserve an overriding interest and the closure is narrowly tailored to serve the overriding interest

23
Q

Original Jurisdiction of Supreme Court

A

The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states

24
Q

Does Congress have the power to add to the Supreme Court’s original jurisdiction?

A

NO, Congress lacks the constitutional power to add to the Supreme Court’s original jurisdiction. Under Article III, Congress may only make exceptions and regulations regarding the Court’s appellate jurisdiction, not its original jurisdiction.

*Congress can define the original and appellate jurisdiction of Article III courts, but is bound by the standards set forth in Article III concerning subject matter and party jurisdiction and the requirement of a “case or controversy”

*Congress can also create courts under Article I (for example, tax courts)

25
Q

Due Process Clause of 5th Amendment

A

The DPC of the 5th Amendment, which applies to the federal government, states: “No person shall be…deprived of life, liberty, or property without due process of law…” This is binding on the federal government. Court decisions have interpreted the DPC of the 5th and 14th Amendments identically. When the federal government makes a classification which, if it were by a state, would violate the 14th Amendment’s Equal Protection Clause, the Court has treated this as a violation of the 5th Amendment’s DPC.

26
Q

Supremacy Clause

A

State or local government action that conflicts with VALID federal laws is invalid under the Supremacy Clause

*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 the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found.

27
Q

State Tax under Commerce Clause

A

A tax is valid under the Commerce Clause if:
(1) the tax does not discriminate against interstate commerce (applies equally to residents and nonresidents;
(2) there is a substantial nexus between the activity taxed and the taxing state;
(3) the tax is fairly apportioned (there is fair apportionment if a tax is based on the extent of the taxable activity or property within the state); and
(4) the tax fairly relates to services or benefits provided by the state

28
Q

13th Amendment Enabling Clause

A

The 13th Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident to slavery.

(ex: because a statute bans ALL discrimination against African-Americans in commercial transactions, it necessarily reaches private conduct - such congressional action is constitutionally permissible pursuant to the 13th Amendment)

29
Q

States/Aliens

A

Supreme Court has upheld state statutes prohibiting aliens from teaching primary or secondary school on the rationale that teachers at the elementary and high school level have a great deal of influence over the attitudes of young students toward government, the political process, and citizenship. However, it is doubtful that the Court would extend this rationale to university teachers.

*If state discrimination against aliens relates to participation of aliens in the functioning of state government, the rational basis test applies (ex: merely teaching political science at a state university is not equivalent to participating in the political process)

30
Q

Third Party Standing Exception - Seller of Goods

A

A seller of goods may have third party standing to challenge a law that adversely affects the rights of her customers

*Third Party standing has the same 3 elements as normal standing, but with 1 additional element
- in order to establish third party standing, the challenger has to show a nexus (a connection) between the party bringing the lawsuit and the people whose rights they are trying to protect
*The best type of nexus is an economic connection

31
Q

When may the Supreme Court review a decision from a State court?

A

4 requirements:
(1) has to be a final judgment from a state court;
(2) judgment had to have come from the highest state court;
(3) there had to be a substantial federal question being raised; and
(4) the decision by the state court did not rest on adequate and independent state grounds

*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 the state statute’s validity is called into question under the federal Constitution. The Court may decide the federal issues, but cannot rule on the state law issues

32
Q

Discrimination against resident aliens (non US-citizens)***

A

If Congress is discriminating against resident aliens = rational basis review

If the State is discriminating against resident aliens = strict scrutiny
-*One major exception where the state can discriminate against resident aliens and it won’t be suspect: when we’re dealing with an IMPORTANT GOVERNMENT FUNCTION (being a public school teacher, police officer, sitting on a jury, voting) - state can discriminate against resident aliens and the standard of review is rational basis**

33
Q

Property Clause

A

The Property Clause gives Congress the power to “make all needful rules and regulations respecting the territory or other property belonging to the United States”
- this power permits Congress to acquire and dispose of all kinds of property and to protect its property

34
Q

Can Congress subpoena a president’s personal records?

Investigatory Power

A

Congress can subpoena a president’s personal records, but it needs to establish that the subpoena advances a legitimate legislative purpose.

Investigatory Power
- Congress has broad implied power to investigate to secure information for potential legislation or other official action (such as for gathering information relating to impeachment). Investigation must be expressly or impliedly authorized by the appropriate congressional house
*Subpoena of Presidential Information
- under the investigatory power, Congress can subpoena the President’s personal information. The subpoena must advance a legitimate legislative purpose, but the Court will also balance Congress’s interests in obtaining the information against the burdens on the President

Congress’s power to investigate is limited to matters on which it can legislate
- current or planned legislation is not required

35
Q

Executive Privilege

A

The president has a privilege to keep certain presidential communications secret so that the President can receive candid advice and protect national security. National security secrets are given great deference by the courts.

Exception
- in criminal proceedings, presidential communiques will be available to the prosecution when a need for such information is demonstrated. Furthermore, the president is subject to state criminal subpoenas of the President’s personal records - such records do not fall under the executive privilege

36
Q

Executive Immunity

A

The President has ABSOLUTE IMMUNITY from civil damages based on any action taken while exercising official responsibilities, but there is no immunity for acts that allegedly occurred before taking office. If presidential aids have exercised discretionary authority in a sensitive area, they can share in the immunity for suits brought concerning that area.

37
Q

Contracts Clause - only applicable to the states

A

Private Contracts - Intermediate Scrutiny
- legislation that substantially impairs an existing private contract is invalid unless the legislation:
(1) serves an important and legitimate public interest, and
(2) is a reasonable and narrowly tailored means of promoting that interest

Public Contracts - Heightened Scrutiny
- Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation reduces the contractual burdens on the state

38
Q

Appointments Clause

A

The Appointments Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments.

*Enforcement is an executive act, therefore, Congress cannot appoint members of a commission that exercises enforcement powers.

could prob fill in other stuff

39
Q

Punishment of Government Employee’s Speech

A

2 tests apply to punishment of a government employee’s speech
(1) speech made by an employee while on the job and pursuant to their official duties may be punished;
(2) in contrast, if the speech is not related to an employee’s official duties and involves a matter of public concern, courts balance the employee’s rights as a citizen against the government’s interest in efficient performance of public service

40
Q

Overbroad

A

If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech judged in relation to the regulation’s plainly legitimate sweep, the regulation is facially invalid (that is, it may not be enforced against anyone)