Con Law Flashcards
(89 cards)
1
Q
Three criteriaof standing
A
Concrete injury that’s particular, causation, redressability
2
Q
Common standing doctrines
A
- TAXPAYER STANDING
- ORGANIZATIONAL STANDING
- LEGISLATIVE STANDING
- THIRD PARTY STANDING
3
Q
What is standing?
A
Standing is a question about WHO can bring a lawsuit, NOT substance of the claim.
4
Q
When can you sue?
A
Ripeness and mootness
The doctrines of ripeness and mootness matter at each stage of review, not just when the complaint is filed.
5
Q
Pullman abstention:
A
Pullman abstention: may abstain because there is UNSETTLED state law
6
Q
Younger abstention
A
may abstain for pending state CRIMINAL cases (unless obviously unconstitutional)
A federal court may invoke a variety of reasons to abstain from deciding a case properly before it. One situation arises under the Younger abstention doctrine, which applies when declaratory or injunctive relief is sought in federal court. This doctrine requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:
involves an important state interest and
provides an adequate opportunity to litigate the federal issue(s).
7
Q
Burford abstention:
A
May abstain if parties are seeking injunctive relief that would interfere with a complex state regulatory scheme
8
Q
Colorado River abstention
A
may abstain if case is substantially SIMILAR to another case being heard in state court.
9
Q
Three powers that NEVER give Congress authority to pass a law?
A
The general welfare clause, police power (i.e. commandeering carjacking power of state), necessary and proper clause.
10
Q
WHAT ARE THE BIG POWERS OF CONGRESS?
A
- Power to regulate commerce
- Power to tax
- Power to spend
- Power to enforce Civil War amendments
11
Q
ARTICLE II =
A
EXECUTIVE BRANCH
12
Q
ARTICLE 1 =
A
CONGRESSIONAL
13
Q
ARTICLE 3:
A
JUDICIAL (SCOTUS)
14
Q
When does the Dormant Commerce Clause apply?
A
DCC issues only arise when (i) states are acting in ways that disadvantage each other, and (ii) Congress is silent (i.e., dormant). If Congress has passed a law in your fact pattern, you should not apply the DCC.
15
Q
DCC states can regulate a particular area of commerce if commerce is dormant as long as they don’t do one of three things:
A
- Discriminate against out-of-state commerce
- Unduly burden interstate commerce
- Purposely regulate wholly out-of-state activity
16
Q
A
17
Q
Extraterritoriality
A
State law that purposefully regulates conduct wholly outside state’s borders violates the DCC
18
Q
The Supremacy Clause
A
Provides that federal law trumps conflicting state law.
Allows federal law to run concerrently with state law if the laws do not conflict.
19
Q
What’s federal preemption and the three situations that overrides it? Think parent rule overrules a rule set by a babysitter.
A
- Express Preemption (federal law says I’m in charge!)
- Implied Preemption (Like fed law fills up whole playground, so no space left for state laws to play)
- Conflict Preemption (two conflicting advice, can’t follow both)
Federal preemption is about the federal government’s authority to make laws that can be more important than state or local laws, depending on the situation
20
Q
For procedural due process, the ultimate question is not whether the government can take the interest away from you, but what process the government must give you to take that interest away.
A
For procedural due process, the ultimate question is not whether the government can take the interest away from you, but what process the government must give you to take that interest away.
21
Q
Who applies the standards of review? And what are they used for?
A
The standards of review are applied by courts, specifically judges, to determine whether laws or government actions are constitutional.
22
Q
Who has burden of proof for each scrutiny?
A
Strict Scrutiny: The government has the burden of proof.
Rational Basis Review: The challenger has the burden of proof.
Intermediate Scrutiny: The government has the burden of proof.
23
Q
What’s the 10th amendment?
A
Any power not given to the federal government belongs to the states and the people.
The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.
24
Q
Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.
A
The restriction must:
(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.
25
What is an advisory opinion and why do federal courts not render them?
An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Federal courts do not render advisory opinions because federal courts only render decisions where an actual case or controversy exists.
26
When is Congress able to regulate purely private conduct?
When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.
27
What four requirements must be met in order for government regulation of expressive conduct to be upheld?
(### Regulation Requirements:
1. **Government Power**: The government has the authority to make the rule.
2. **Important Interest**: The rule supports a significant government goal.
3. **Unrelated to Ideas**: The goal isn't about stopping ideas.
4. **Minimal Impact**: The rule affects speech as little as possible.
i) The regulation is within the government's power to enact;
(ii) The regulation furthers an important governmental interest;
(iii) The governmental interest is unrelated to the suppression of ideas; and
(iv) The burden on speech is no greater than necessary.
28
What's the 11th amendment?
The Eleventh Amendment's text prohibits the federal courts from hearing certain lawsuits against states. The Amendment has also been interpreted to mean that state courts do not have to hear certain suits against the state, if those suits are based on federal law.
29
List three fundamental rights.
(i) The right to travel;
(ii) The right to vote; and
(iii) The right to privacy (including marriage, sexual relations, child rearing, and the right of related persons to live together).
30
Name three actions not barred by the Eleventh Amendment.
The Eleventh Amendment does not bar:
(i) Actions against local governments
(ii) Actions by the United States government or other state governments
(iii) Bankruptcy proceedings that impact state finances
31
What is a line item veto?
A line item veto is where the President refuses only part of a bill and approves the rest. Line item vetos violate the Presentment Clause and are therefore unconstitutional.
32
What is a legislative veto, and is it constitutional?
Purpose: Allows Congress to nullify executive actions.
Key Point: Congress can reject executive decisions, but this was ruled unconstitutional in INS v. Chadha (1983).
Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. Such acts are unconstitutional.
33
To have standing, a plaintiff bears the burden of establishing three elements. Name the elements.
(i) Injury in fact;
(ii) Causation (the injury must be caused by the defendant's violation of a constitutional or other federal right); and
(iii) Redressability (the relief requested must prevent or redress the injury).
Note: The federal judiciary has also established a ""prudential standing"" requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute.
34
What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?
(i) Race
(ii) Ethnicity
(iii) National origin
(iv) If the classification is by state law, citizenship status
35
Under Equal Protection, when is intermediate scrutiny applied?
When a classification is based on gender or status as a nonmarital child (legitimacy)
Note: In gender cases, there must be an ""exceedingly persuasive justification"" for the classification.
36
When can the states tax the federal government?
When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)
37
Compare and contrast ripeness and mootness.
Ripeness and mootness both deal with the timeliness of an action for judicial review purposes. Ripeness is an action that is brought too soon, and mootness is an action that is brought too late, as there is no longer a case or controversy.
38
Name the five categories where the government is permitted to restrict speech on the basis of content.
1. Obscenity
2. Incitement to violence
3. Fighting words
4. Defamation
5. Commercial speech
39
In the absence of federal regulation, state regulation of commerce is valid so long as: (Name the three rules)
(i) There is no discrimination against out-of-state interests;
(ii) The regulation does not unduly burden interstate commerce; and
(iii) The regulation does not purposefully and deliberately apply to wholly extraterritorial activity.
40
When does federal law expressly preempt state law?
When (i) the Constitution makes federal power exclusive (such as the powers to coin money or declare war), or (ii) when Congress has enacted legislation that explicitly prohibits state regulation in the same area
41
In what two scenarios does private conduct amount to state action?
(i) When a private person carries on activities that are traditionally performed exclusively by the state; and
(ii) When the government is significantly involved in private discrimination.
42
How is the President's veto power exercised?
The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated. Once a bill is vetoed, Congress can override the President's veto with a 2/3rds vote in each house.
43
Define strict scrutiny.
The law must be the least restrictive means to achieve a compelling governmental interest.
44
Under Equal Protection, in what two instances does the court apply the strict scrutiny test?
When the state action in question involves a fundamental right or suspect classification.
45
What is required to trigger constitutional protections (with the exception of the Thirteenth Amendment)?
State action
46
What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?
The regulation must be:
(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.
47
Define rational basis.
A law meets the rational basis standard of review if it is rationally related to a legitimate state interest.
Note: This test generally results in the law being upheld.
48
Define intermediate scrutiny.
To be constitutional, the law must be substantially related to an important governmental interest.
49
A state may impose a nondiscriminatory tax on interstate commerce, as long as the following three requirements are met:
1. Connection: There must be a strong link between the state and what’s being taxed.
2. Fair Share: The tax must be divided fairly among states.
3. Related Services: The tax must relate to the services the state provides.
(i) There is a substantial nexus between the taxing state and the property or activity to be taxed;
(ii) There must be fair apportionment of tax liability among states; and
(iii) The tax must be fairly related to the services provided by the taxing state.
50
What must the plaintiff show in order to trigger strict or intermediate scrutiny under the Equal Protection Clause?
Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive
51
The Supreme Court has sorted government property that is open for speech into three categories.
What are the three categories?
1. Traditional public forums
2. Designated public forums
3. Nonpublic/limited public forums
52
Apply this to the law:
AutoCo can only censor or limit free speech if their rules meet all of these conditions:
Authority: They have the legal right or power to make the rule.
Important Purpose: The rule serves a significant and important reason (like public safety or cleanliness).
Unrelated to Ideas: The rule is not meant to target or stop specific ideas or messages. It must apply equally to all kinds of speech.
Minimal Impact: The rule limits free speech as little as possible. It should be narrowly tailored to achieve its purpose without overly restricting people's ability to express themselves.
AutoCo creates a rule that says no one can leave flyers on the ground in the park.
Meeting the Four Conditions:
Authority: AutoCo has the authority to make rules for the park since they manage it.
Important Purpose: The rule serves the important purpose of keeping the park clean and safe for all visitors.
Unrelated to Ideas: The rule does not target specific ideas or messages. It applies to all flyers, no matter what they say.
Minimal Impact: The rule is narrowly tailored. It does not ban all leafleting but only stops people from leaving flyers on the ground, which helps prevent littering without completely stopping the distribution of flyers.
Here, the anti-litter rule is within Oakwood's power to enact rules as a local government. The rule is unrelated to the suppression of ideas because it prohibits all leafleting that results in litter, regardless of what the leaflets communicate. But Oakwood's interest in litter-free streets is likely insufficient to qualify as an important government interest. Further, a ban on all leafleting burdens speech more than is necessary to address littering issues. In other words, the ban is not narrowly tailored to protect communication of information and opinion through leafletting. Therefore, the father's arrest for trespass pursuant to his violation of the Oakwood leafleting rule likely violates the First Amendment as applied through the Fourteenth Amendment.
53
The ex post facto clauses prohibit federal and state governments from enacting criminal laws that have a retroactive punitive effect (i.e., ex post facto laws).
The ex post facto clauses prohibit federal and state governments from enacting criminal laws that have a retroactive punitive effect (i.e., ex post facto laws).
54
the 14th amendment due process clause requires judges provide what?
The Fourteenth Amendment due process clause requires that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property. As a result, a judge must recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists. A failure to do so violates due process.
55
16th amendment
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
56
enclave clause in Article I, Section 8.
The Constitution provides that Congress shall have the sole and exclusive authority over the federal city, known as the District of Columbia, which is an area not exceeding ten miles square. Additionally, Congress has authority over all places ceded by the states for the purpose of building forts, dockyards, and other needful buildings. This is outlined in Article I, Section 8, Clause 17 of the U.S. Constitution.
57
The equal protection component of the Fifth Amendment applies when the federal government discriminates against similarly situated persons (e.g., residents v. nonresidents).
The equal protection component of the Fifth Amendment applies when the federal government discriminates against similarly situated persons (e.g., residents v. nonresidents). Since this statute does not impact a fundamental right or discriminate against a protected class, it need only satisfy rational basis review. The statute can do so because it is rationally related to a legitimate government interest (encouraging business).
58
The taxing and spending clause gives Congress the power to impose indirect taxes (e.g., sales tax), so long as they are uniformly applied in every state (i.e., geographically uniform) and reasonably related to revenue production.
59
60
The Tenth Amendment grants states any power that is not expressly given to the federal government by the Constitution—e.g., the power of state courts to order the payment of child support. But when exercising such powers, states must comply with other constitutional provisions—e.g., the full faith and credit clause.
61
Unprotected speech
clear and present danger, fighting words, true threats, obscenity
62
Types of less-protected speech
1. Commercial speech
2. School speech
3. Sexual or indecent speech
63
The Contracts Clause:
A state may not pass
legislation that substantially impairs preexisting
contracts unless the law serves an important
and legitimate public interest and it is
reasonable and narrowly tailored to promoting
that interest. Tip: this is usually the wrong
answer on the MBE.
64
Ex post facto laws:
neither states nor the
federal government may pass legislation that
retroactively alters a criminal law in a
substantially prejudicial manner for the purpose
of punishing a person for some past activity.
65
Bill of attainder:
neither the state nor the
federal government may pass legislation that
specifically identifies people to be punished
(civilly or criminally) and imposes punishment
without a judicial trial.
66
Unconstitutional conditions:
The government cannot require someone to give up their constitutional rights in order to receive a government benefit.
67
What's subject to strict scrutiny?
(1st amendment rights) Voting, travel, interstate travel
(suspect classes) race/ethnicity, national origin, citizenship
68
When can Congress can delegate incidental legislative powers to federal agencies ?
Congress can delegate incidental legislative powers to federal agencies if it provides an intelligible principle to guide the agency—i.e., a clear statement defining (1) the policy Congress seeks to advance, (2) the agency to carry out that policy, and (3) the scope of that agency's authority.
69
The government cannot impose content-based restrictions on speech in public forums unless it can satisfy strict scrutiny—i.e., show that the restrictions are necessary and narrowly tailored to achieve a compelling government interest.
70
What's the twenty-first amendment?
The Twenty-first Amendment grants states broad authority to regulate the use of alcohol within their borders. This authority permits a state to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities). As a result, the Twenty-first Amendment provides the best source of authority for enacting an ordinance that bans the sale of alcoholic beverages with an alcohol content in excess of 10%.
71
What's the Article IV full faith and credit clause ?
The Article IV full faith and credit clause requires states to respect the public acts, records, and judicial proceedings of other states. Under this clause, a state court must recognize and enforce judicial decisions rendered by a court in another state when:
that court had personal jurisdiction and subject-matter jurisdiction
the case was decided on its merits—i.e., the substantive elements or grounds of a claim or defense—and
a final judgment was entered.
72
Pullman: Let state courts clear up confusing state laws first.
• Younger: Don’t interfere with state criminal cases.
• Burford: Don’t mess with complex state regulations.
• Colorado River: Avoid duplicate cases in state and federal courts.
• Thibodaux: Let state courts handle important unclear state laws.
• Rooker-Feldman: Federal courts can’t change state court decisions.
73
What do federal courts use abstention for?
Federal courts use abstention doctrines to avoid unnecessary interference with state court matters, to respect the role of state courts, and to promote judicial efficiency. Each type of abstention applies in specific situations where state interests, regulatory schemes, or concurrent proceedings are involved.
74
What do federal courts use abstention for?
Federal courts use abstention doctrines to avoid unnecessary interference with state court matters, to respect the role of state courts, and to promote judicial efficiency. Each type of abstention applies in specific situations where state interests, regulatory schemes, or concurrent proceedings are involved.
75
Under the Article I suspension clause, a person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control (e.g., the noncitizen here).
Under the Article I suspension clause, a person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control (e.g., the noncitizen here).
76
The U.S. Supreme Court has appellate jurisdiction over decisions by (1) lower federal courts and (2) the highest state courts when the decision turns on federal law. But the Article III exceptions clause gives Congress the power to expand, regulate, or make exceptions to this jurisdiction.
The U.S. Supreme Court has appellate jurisdiction over decisions by (1) lower federal courts and (2) the highest state courts when the decision turns on federal law. But the Article III exceptions clause gives Congress the power to expand, regulate, or make exceptions to this jurisdiction.
77
A state law that treats similarly situated people differently (e.g., property owners v. nonproperty owners) violates the Fourteenth Amendment equal protection clause if it lacks sufficient justification. A discriminatory law that substantially impacts a fundamental right (e.g., right to vote) is justified only if it passes strict scrutiny. This requires the state to prove that the law is the least restrictive means (i.e., necessary) to achieve a compelling state interest.
78
he U.S. Supreme Court (SCOTUS) has appellate jurisdiction over most final state-court decisions that present a federal question. But SCOTUS cannot exercise jurisdiction over, and must refuse to hear the appeal of, such decisions if they are based on adequate and independent state grounds. This occurs when:
state law completely resolves the matter, such that the application of federal law would not affect the outcome of the case (adequate) and
the state court did not rely on federal law to decide the state-law issue (independent).
79
The property clause of Article IV, Section 3.
The property clause of Article IV
The property clause of Article IV gives Congress the power to dispose of and regulate federally owned lands. But this clause does not give Congress the power to acquire those lands.
80
The contracts clause of Article I, Section 10.
The contracts clause of Article I restricts the ability of state legislatures to impair existing contracts. But this clause does not apply to Congress or federal statutes that spend federal revenue (as seen here).
81
The naturalization clause of Article I, Section 8.
The Article I, Section 8 naturalization clause grants Congress the authority to enact laws that regulate naturalization—i.e., the process through which any noncitizen may obtain U.S. citizenship. But Congress must comply with other constitutional provisions when exercising this authority, including the Fifth Amendment due process clause.
82
The comity clause of Article IV.
The Article IV comity (i.e., privileges and immunities) clause generally prohibits states from discriminating against citizens of other states. But it does not apply to the federal government.
83
The Tenth Amendment prohibits the federal government and its agencies from commandeering state or local governments (e.g., counties) by requiring them to (1) enact state or local laws or (2) enforce federal laws.
84
Article II executive powers
Domestic powers
Manage federal executive agencies & officers
Execute federal laws
Recommend legislation to Congress
Sign or veto bills
Appoint/remove federal officers
Prosecute & grant pardons for federal crimes
Foreign powers
Serve as commander in chief
Negotiate/enter treaties (with 2/3 Senate approval) & executive agreements
Recognize foreign governments
Appoint/receive foreign diplomats
85
The First Amendment shields the media from liability for publishing lawfully obtained private facts and other truthful information that involves a matter of public concern.
86
Under Article III of the U.S. Constitution, a plaintiff may file an action in federal court when the court has subject-matter jurisdiction—i.e., the power to decide the case before it. A federal court has subject-matter jurisdiction when a case or controversy arises under the Constitution, a federal law, or a treaty (i.e., federal-question jurisdiction).
87
The Supreme Court applies a four-part test to determine whether a state tax comports with the Commerce Clause, what are they?
The Supreme Court applies a four-part test to determine whether a state tax comports with the Commerce Clause: (1) there must be a substantial nexus between the activity taxed and the taxing state (here, that requirement is satisfied as the taxing state is both supplying the electricity and paying for clean-up), (2) the tax must be fairly apportioned according to a rational formula (here, tax is calculated by usage), (3) the tax may not provide a direct commercial advantage to local businesses over interstate competitors (nothing in the fact pattern indicates that this factor is present), and (4) there must be a fair relationship between the tax and the service provided (here, the tax is calculated in direct proportion to usage and is used for clean-up efforts related to production of electricity).
88
What standard of review is used for citizenship?
When reviewing government action under equal protection theories, a court applies one of three levels of review, depending on the classification of persons or the type of right concerned. The strict scrutiny standard typically applies if the governmental action involves a fundamental right or suspect classification, including citizenship status. A court will generally apply the strict scrutiny test and strike down state laws that discriminate against resident noncitizens by requiring U.S. citizenship, such as laws prohibiting resident noncitizens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs. In this case, a court would likely strike down the law under the strict scrutiny test.
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