Con Law Flashcards
(133 cards)
1
Q
What is state sovereign immunity per the 11th Amendment?
A
You can’t sue a state government for money damages in federal court
This immunity extends to suits against state officials for a violation of state law, regardless of the type of remedy that is sought.
2
Q
What are the exceptions to state sovereign immunity?
A
1) Congress clearly abrogates (waives) state sovereign immunity by enforcing rights under the 13th, 14th, or 15th amendments
2) the state govt. consents to be sued
3
Q
what is original jurisdiction as created in Article 3?
A
SCOTUS’ ability to directly and firstly hear a case. Arises in 2 situations:
1) when a state is a party to the suit
2) when a case affects a consul, public minister, or ambassador
4
Q
What discretion does SCOTUS have to decide what cases they hear?
A
SCOTUS has total discretion. They get total control over which cases go on their docket, unless one of these 2 exceptions applies:
1) Congress has created an exception per Article 3 so SCOTUS must hear the case; or
2) SCOTUS can’t hear a state court case if there is adequate and independent state grounds (AISG) to decide the case
5
Q
When does the adequate and independent state grounds (AISG) standard apply to preclude a court from hearing a case?
A
1) state law fully resolves the matter, so the outcome of the case is not affected by federal law (adequate) and
2) the state court did not rely on federal law to reach its decision (independent)
6
Q
What are the required elements for someone to have standing to sue?
A
1) injury in fact: a particularized and concrete injury suffered by plaintiff
2) causation: plaintiff’s injury was caused by defendant’s violation of the law
3) Redressability: the relief requested must be able to remedy or prevent the injury suffered
7
Q
What relationships give rise to third party standing to sue?
A
1) doctor can raise the constitutional injuries of their patient
2) bartender can raise the constitutional injuries of their patron
3) school can raise the constitutional injuries of a student
4) parent can raise the constitutional injuries of their minor child
8
Q
What are the two timeliness doctrines that can render a case untimely?
A
1) Mootness: case is overripe to the point where there’s no controversy left to resolve
2) Ripeness: The case must be fully developed before a federal court will hear it (i.e., the plaintiff suffered an actual injury)
9
Q
what is the political question doctrine?
A
A rule that political questions are non-justiciable (can’t be ruled on by the court)
A question is a political question if:
1) the Constitution assigns decision making authority for this subject to a different govt. branch; or
2) The matter depends so heavily on that person’s discretion, that there is no law for the court to apply
10
Q
What are the 4 abstention doctrines?
A
1) Younger Abstention: abstaining because the case involves an unsettled state law issue
2) Pullman Abstention: abstaining because the case is an ongoing state criminal case
3) Burford Abstention: abstaining because the parties are seeking an injunctive relief that would interfere with complex state regulatory schemes
4) Colorado River Abstention: abstaining because the case is substantially similar to another ongoing state court case
11
Q
What are the 4 biggest powers of Congress?
A
- Power to tax (Article 1, Section 8 Taxing Clause)
- Power to spend (Article 1 Spending Clause)
- Power to regulate commerce (Commerce Clause)
- Power to enforce civil rights laws
12
Q
Via their Article 1 Spending Power, can Congress incentivize states to adopt certain behavior by imposing conditions on federal funding?
A
Yes, so long as they aren’t coercing the state behavior too heavily
ex. In South Dakota v. Dole, SCOTUS allowed Congress to withhold state highway funding until South Dakota cracked down on their drunk driving epidemic
13
Q
What can’t Congress use their Article 1 Spending Clause powers to do?
A
1) Coerce states into certain behavior (ex. force all states to adopt a new Medicare scheme)
2) enforce conditions that are ambiguous and/or unrelated to the program they’re pushing
3) impose unconstitutional conditions (ex. requiring Minnesota to enact slavery in order to receive their federal highway funding)
14
Q
What is the 13th Amendment?
A
Amendment that banned slavery and “badges or incidents” of slavery. This gave Congress the power to actively regulate private and govt actions.
15
Q
What is the 14th Amendment?
A
Contains the equal protection and due process clauses.
Allows Congress to enforce violations of equal protection and due process rights, but only as they’re defined by the courts (Congress can’t expand the scope of what rights fall within the 14th Amendment)
16
Q
How does a court determine whether Congress’s enforcement of a certain 14th Amendment right doesn’t expand the scope of the 14th Amendment?
A
Congruence and proportionality test: there must be a reasonable fit between the constitutional right that’s been injured/violated, and the action Congress is using to remedy that injury
17
Q
What is the 15th Amendment?
A
Voting rights. It prohibits any state and/or local govt. from denying someone the right to vote based on race
18
Q
Other than the big 4 powers, what other powers does Congress have?
A
1) war powers. Congress can declare war, raise an army, and regulate the army
2) Power to establish a post office.
3) Power over non-citizens
4) Power to control the naturalization process of immigrants
5) Power to regulate federal elections
6) Necessary and proper Clause: catchall that lets Congress pass any law that’s necessary and proper to execute a power they hold
19
Q
Which branch has the power to create executive offices, and which has the power to appoint officers?
A
Congress creates offices, the President creates officers
20
Q
Which branch has the power to negotiate and form treaties?
A
The President has the power to negotiate treaties, but the Senate must approve the treaty by a 2/3 supermajority
21
Q
How do the Presidential pardon powers work?
A
The President can pardon someone for a federal offense. They cannot pardon a government impeachment.
22
Q
How does a President’s executive immunity work?
A
They’re immunity from lawsuits over actions taken within their official capacity as President.
They are not immune for things done before they took office, or things they did in their own private capacity.
23
Q
Is Congress allowed to delegate their powers to executive agencies?
A
Yes, although they must provide an intelligible purpose that guides how the agency uses their power.
Congress cannot delegate purely legislative duties/powers, such as the power of impeachment, repealing/making laws, or to declare war
24
Q
Do judges have judicial immunity?
A
Yes. judge has total immunity for their judicial acts.
That immunity doesn’t cover actions taken in their private capacity
25
Do legislators have immunity?
Yes. the Speech and Debate Clause protects federal legislators from liability for anything said during the
course of the regular legislative process.
These protected statements cannot be used as evidence in any lawsuits. The protection also extends to legislative aides.
26
What exclusive powers does the federal government have (things the state govts can't do)
1. Print/coin money
2. Tax the import of goods
27
what does the Supremacy Clause say?
Federal law always trumps conflicting state law. Federal govt. also has several powers over the states.
If there are two state and federal laws that don't directly conflict, they can exist concurrently.
28
What is the Dormant Commerce Clause?
An implied part of the Commerce Clause that limits the ability of state govts to legislate in ways that impact interstate commerce.
29
What is the basic rule of the Dormant Commerce Clause?
states can make their own regulatory laws so long as they do not:
1) discriminate against out of state commerce; or
2) unduly burden interstate commerce; or
3) purposefully regulate wholly out of state commerce
30
Can a state govt regulate the federal govt?
No. States are barred from passing laws to regulate, shielding state citizens from federal liability for violating federal laws, or taxing the federal govt, unless Congress consents
31
Can the federal govt regulate state govts?
In certain ways. The federal govt can require that states must comply with federal laws/regulations.
However, federal govt cannot directly commandeer state govts and force them to enact certain state laws or enforce a federal law.
32
Under the Dormant Commerce Clause, when can a state law that discriminates against out of state commerce survive?
1) There is a legitimate, noneconomic state interest; and
2) There is no other reasonable, non-discriminatory means available to achieve that interest
33
Under the Dormant Commerce Clause, when does a state law/regulation unduly burden interstate commerce?
When the burdens it imposes on interstate commerce clearly outweigh local benefits (called Pikes balancing test)
34
What are the 3 types of federal preemption under the Supremacy Clause?
1) Express preemption: when Congress explicitly says state regulation in an area is preempted by federal law
2) Conflict preemption: when it's impossible to comply with state and federal law at the same time
3) Field preemption: when federal regulation is so thick that we imply that Congress has determined
there cannot be a concurrent state law in an area because Congress has totally occupied the field
35
Under the commerce clause's Dormant Commerce Clause, can a state tax interstate commerce?
Only if:
1) Congress is silent on it 2) the tax doesn't discriminate against or unduly burden interstate commerce
3) There is a substantial nexus between the taxing state and the property/activity being taxed; and
4) there is a fair apportionment of the tax burden across all states (i.e., can't tax one specific state)
36
what is the interstate compact clause?
Allows states to enter into agreements with each other when Congress consents.
Congressional consent s only required for “compacts” that alter the power balance between the state and federal govts
37
what is an ad valorem property tax?
a property tax based on real or personal property, applied at the time of transaction
38
What sort of interstate commerce is a state allowed to tax?
States can tax moveable goods that are within their borders. They can also tax instrumentalities of commerce (trains, shipping trucks, etc.) if the instrumentality has a taxable situs or sufficient contact with the taxing state.
However, they cannot tax goods that are merely in transit through the state
39
What are considered fundamental rights under substantive due process analysis?
1) Right to vote
2) Right to travel
3) Right to privacy (includes right to marry, control child's education, contraceptives)
4) Right to bear arms
5) Any kind of judicial right (right to appeal, lawyer, etc.)
6) 1st Amendment rights
40
If you've determined that someone's fundamental rights (life, liberty, property) have been violated under procedural due process, what's the next step?
Eldridge factors are compared:
1) How serious/fundamental was the right affected by the govt action?
2) Is there a risk of the govt law/regulation erroneously depriving more people of that fundamental right?
3) What's the value and likelihood of using additional safeguards to stop the deprivation?
4) How serious is the govt's interest in enforcing the law/regulation?
41
Under equal protection analysis, to what laws is the strict scrutiny standard applied?
Any law that intentionally discriminates people based on their race, ethnicity, or national origin
42
Under equal protection analysis, to what laws is the intermediate scrutiny standard applied?
laws that discriminate based on gender or children born out of wedlock
43
What are de jure segregation and de facto segregation?
De jure is segregation via law (i.e., a law that segregates on its face).
De facto segregation is segregation that happens, but it's not required by law
De jure segregation is unconstitutional. De facto isn't.
43
Via which Constitutional Amendments does equal protection apply?
For states, it's through the 14th Amendment's Equal Protection Clause. For the federal govt, it's through the 5th Amendment.
44
For a discriminatory law to be unconstitutional under the Equal Protection Clauses, what must be shown?
That the law has a discriminatory purpose. Mere discriminatory impact and/or effect isn't enough.
45
Define intermediate scrutiny's standard of review in the context of equal protection
For a govt action/law to be upheld, govt must show that the law/action serves an important govt interest, and that it's substantially related to that interest
46
Under the equal protection analysis, to what laws does the rationality review standard apply?
catchall category; applies in all other instances where
1) strict and intermediate scrutiny don't (i.e., any discrimination not based on race, gender, ethnicity, or national origin); or
2) the law isn't facially/intentionally discriminatory
47
Define rationality review's standard of review in the context of equal protection.
A govt action/law, to be upheld, needs to be rationally related to a legitimate govt interest (very easy burden to meet)
48
Define strict scrutiny's standard of review in the context of equal protection clause
A govt action/law, to be upheld, needs to further a compelling govt interest, and be narrowly tailored so that it's the least invasive way to achieve that interest
49
What is the Comity Clause from Article 4?
A part of the privileges and immunities clause that prohibits serious discrimination against out of state people in allowing access to private job markets.
Ex. Minnesota banning any non-Minnesotan from getting a liquor license for their bar.
50
What is the Takings Clause?
Comes from the 5th Amendment. Allows govt to take private property so long as they're using it for public use and give the owner just compensation.
51
What counts as "public use" for a Takings Clause analysis?
A public use is any conceivable public use. The need for the land must be rationally related to that purpose.
Incredibly easy hurdle to clear.
52
What counts as "taking" under a Takings Clause analysis?
1) taking ownership of the private property and modifying it for public use (ex. putting a highway through someone's field)
2) Destroying private property in response to a public peril (does not require fair compensation)
3) Giving a third party the right to occupy part of the property or the whole of it (ex. govt lets a utility company come onto the land and install power lines)
53
What's the difference between a taking and a regulation under a Takings Clause analysis?
If the govt physically controls/invades private property, that's a taking.
If the govt regulation/law causes a permanent, total loss in the property's economic value, that's a taking
A regulation can turn into a taking if the regulation is so thorough and controlling that it makes it impossible to use and/or use the property
54
What is a bill of attainder?
legislative act that declares a group of people guilty of a crime and punishes them without a trial
These are considered unconstitutional, but only as to criminal measures.
55
What is an ex post facto law?
a retroactive change to a criminal law.
A law is considered ex post facto and therefore unconstitutional if the law:
1) criminalizes an act that wasn't a crime when the act was originally committed.
2) decreases the prosecution's burden of proof after crime was committed
3) deprives defense of a defense that would've been available when the crime was committed
4) authorizes the imposition of a more severe penalty after the crime has been committed
56
Under the Establishment Clause, when a court is analyzing whether the govt is favoring/establishing a religion, what standard of review do they use?
They apply a modified version of strict scrutiny. They apply normal strict scrutiny but also ask whether the law in question comports with the "historical practices and understandings" of religion's role in everyday life.
57
Does it violate the Establishment Clause for the govt to give money to religious institutions?
Not necessarily. The funding is permissible if the aid is secular in nature and used for secular purposes.
If the funding is distributed to both secular and religious institutions, the distribution must be neutral as to religion
58
What are specific public school policies that violate the Establishment Clause?
1) Requiring prayer at school
2) Allow prayer at graduation
3) Create a specific school district to serve a certain religion
4) Post the 10 Commandments on public school walls
5) Ban the teaching of evolution/Darwinism or mandate that such teachings must be accompanied by teachings on creationism
59
What specific public school policies don't violate the Establishment Clause?
1) permit voluntary prayers in school
2) Permit Bible reading as a form of literature/poetry study
3) Coaches can hold private prayers at a game
4) Teach the 10 Commandants as an example of historical legal code
60
Under the Establishment Clause, can the govt put religious displays on public property?
Not if the predominant purpose of the display is endorsing a religion
If the display communicates a secular message or merely acknowledges a religion, that's typically permissible
61
What are the two clauses in the 1st Amendment that address religion?
1) Establishment Clause: govt can't establish a state religion or favor one religion over others
2) Free Exercise Clause: Citizens are free to believe in a religion and to act on that belief
62
What standard of review is used when analyzing a Free Exercise Clause situation?
Depends on the law in question.
If the law in question directly/facially burdens a certain religion, it must pass strict scrutiny, and is usually considered unconstitutional.
If the law in question is a neutral law that generally applies to all religions and happens to have an incidental impact on religious conduct, rationality review is used.
63
What is the ministerial exception to the religious clauses?
Religious organizations are allowed to discriminate who they hire and fire as their religious leader without needing to comply with employment discrimination laws (ex. not hiring women priests)
64
With Freedom of Expression analysis, what's the difference between a content neutral restriction and a content based restriction?
Content based restriction is a law that prohibits speech because of the
subject matter discussed or the idea expressed
content neutral restriction is a law that limits the time, manner, and place of speech but not the subject matter or idea conveyed
65
How is a speech restriction determined to be content neutral?
1) Law must be neutral on its face and in its application
2) Must leave open alternate channels of communication
3) It must narrowly serve a significant state interest
66
Under 1st Amendment free expression, can the govt regulate expressive conduct?
Yes, so long as:
1) regulation in question furthers an important interest
2) Interest is unrelated to the expression; and
3) the burden on expression is no greater than necessary
67
Do the 3 required content neutral elements for free expression apply to speech all forums?
No, only public forums. Regulations in nonpublic forums (jails, military bases) need only be (i) viewpoint-neutral and (ii) reasonably
related to a legitimate governmental interest
68
What are the 3 types of forums in regard to free expression analysis?
1) traditional public forum: place that has been historically
reserved for speech activities (e.g., public streets, parks)
2) Designated public forum: place that the govt has opened
for free speech activities, even if it has not traditionally been open for speech activities (e.g.,
a civic auditorium)
3) nonpublic forums: govt property that a reasonable observer
would assume is not open to the public (e.g., military bases, prisons)
69
What are the permitted types of content-based speech restrictions?
1) fighting words
2) commercial speech
3) defamation
4) obscenity
5) incitement
70
What speech counts as "obscene" in a content-based free expression analysis?
4 SSSSs
1) Sex: content/speech must be erotic (aka appeal to the prurient interest)
2) Society sick: must be patently offensive to the average person
3) Standards: govt must define obscenity clearly with precise standards
4) Serious value: material isn't considered obscene if it has serious artistic, educational, or scientific value
71
what qualifies as "incitement?"
1) speech is directed to inciting or producing imminent unlawful behavior; and
2) speech is likely to incite such behavior
72
what counts as "fighting words"?
if the speech is likely to incite an immediate breach of the peace or actually threatens violence
Words that are merely annoying and/or offensive don't rise to the level.
73
What requirements must the govt meet to restrict commercial speech?
1) asserted govt interest must be substantial
2) regulation must directly advance that govt interest
3) regulation is no more extensive than necessary to serve that interest (i.e., there's a reasonable fit between the govt interest and the means used to serve that interest)
4) the speech must concern lawful activity and be neither false nor misleading
74
What sort of commercial speech isn't protected by the 1st Amendment?
any false or misleading commercial speech is unprotected
75
What makes a speech restriction vague in relation to the 1st Amendment?
a law that's ambiguous to such an extent that it gives no clear notice to a person of ordinary intelligence about what speech is prohibited
Speech restrictions that're too vague are unconstitutional
76
What makes a speech restriction overbroad in the context of the 1st Amendment?
A law that burdens more speech than necessary to achieve the govt interest
Overbroad speech restrictions are unconstitutional
77
When the govt controls the message, under the 1st Amendment, can it discriminate against certain messages/ideas?
Yes. The govt can engage in viewpoint discrimination when it's controlling the message
78
What sort of free speech protections do govt employees have?
A govt employee cannot be hired or fired based on their political affiliations or any act of free speech
However, if the employee is speaking pursuant to their official duties and within the scope of their job, they can be disciplined by their govt employer
79
Do campaign contributions count as speech?
Yes. The use of money on a political campaign is political speech
80
What are the two types of campaign financing that are addressed by 1st Amendment precedent?
Campaign contributions: can be regulated as long as the caps aren't unreasonably low
Campaign expenditures: Subject to strict scrutiny.
81
Can campaign expenditures (campaign donations) be capped?
No. As long as the source of the funding is disclosed, there is no legal limit to the amount that individuals and entities may spend
82
What are the two types of campaign expenditures?
1) Independent expenditures: Money you spent on your own to campaign for a candidate. Cannot be regulated
2) Coordinated expenditures: Money spent in coordination with the candidate or the campaign. Can be regulated just like contributions
83
Can the govt criminalize mere membership of a group under the 1st Amendment's freedom of association?
Typically, criminalizing mere membership is illegal unless:
1) the group is actively engaged in unlawful activity or inciting imminent violence; and
2) the individual in question knows about it
84
What kind of lawsuits are barred by the 11th Amendment?
1) Citizens of one state suing another state in federal court
2) Suits in federal court against state officials for violating state law
3) citizens suing their own state in federal court
85
Typically, a person needs a concrete, injury-in-fact to have standing. However, when does a taxpayer have standing to initiate a federal lawsuit without an injury-in-fact?
when the taxpayer is challenging legislation enacted under Congress's taxing and spending clause powers, and
when the action/law they're challenging is alleged to be a violation of the Establishment Clause
86
What is the "capable of repetition yet evading review" exception to the Mootness doctrine?
A case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subject to the same action again (capable of repetition) but that the action will not last long enough to work its way through the judicial system (yet evading review).
87
What are the protections afforded by the 14th Amendment?
1) Equal Protection:
A law has a discriminatory treatment of similarly situated people
2) Substantive Due Process: deprivation of fundamental right without adequate justification
3) Procedural Due Process: deprivation of fundamental right without adequate process
4) Privileges and Immunities: Interference with rights of national citizenship (right to vote in federal elections, petition Congress, peaceful assembly, etc.)
88
what standard of review is used for content-based speech restrictions?
Strict scrutiny. Content-based restrictions are presumed to be unconstitutional and will only be upheld if they pass strict scrutiny.
89
Does Congress have a power to legislate for the general welfare?
No. If they want to address/help the general welfare, they need to use one of their other powers to do it, like taxing and spending, or interstate commerce
90
With procedural due process, what is a person typically entitled to?
1) notice of the govt action
2) a hearing to give them an opportunity to be heard
91
When's the only time a public employee can be terminated?
For cause. And since the employee has a property interest in their employment, they're entitled to notice and a hearing under the Due Process Clause
92
What is the standard used for judging a content neutral speech regulation (time, place, and manner restriction)?
1) must be narrowly tailored
2) must be neutral on its face
3) must serve a significant govt interest
4) must leave open alternative channels of communication
93
What is the market participant exception to the Dormant Commerce Clause?
A state can enact laws that're discriminatory towards out of staters if the state directly participates in the market
94
On a procedural due process analysis, what are the steps that're used to determine the amount of process due?
1) whether the interest affected was fundamental, i.e., life, liberty or property
2) If yes, then apply the Eldridge factors: value of additional safeguards, burden or cost of additional safeguards, risk of erroneous deprivation of rights, the importance of the victim's violated right
95
on a substantive due process analysis, what standard is used to determine if a violation has occurred?
If it's a fundamental right that was violated (voting, travel, privacy, etc.), strict scrutiny
However, with the right to vote, the standard of scrutiny can depend on how serious the deprivation is
If it's a non-fundamental right, rational review
96
What is the 14th Amendment's Enabling Clause?
authorizes Congress to enact legislation enforcing the amendment's other provisions (due process clause, equal protection clause)
97
when a tenured public employee is terminated for cause, per procedural due process, what are they entitled to?
(1) notice of any alleged misconduct,
(2) a pre-termination hearing to respond to the allegation, and
(3) a post-termination evidentiary hearing to determine if the dismissal was warranted.
98
In regard to the 1st Amendment and the 3 types of forums, what sort of speech regulations/restrictions are allowed?
for public forums and designated public forums, content-based restrictions are not allowed unless they pass strict scrutiny
For nonpublic forums, content-based restrictions are allowed if they're viewpoint neutral
99
What does Section 2 of the 14th Amendment state?
States are allowed to prohibit felons from voting in state elections, even if the felons have served their sentence
100
What is the Enclave Clause of Article 1, Section 8?
It gives Congress exclusive legislative power over the District of Columbia
101
What are considered fundamental rights under procedural due process?
1) life
2) liberty
3) property
102
What standard of scrutiny is used when analyzing whether a govt action violates the Freedom of the Press under the 1st Amendment?
Strict scrutiny: 1) compelling govt interest, and 2) narrowly tailored
103
does a federal agency/bureau need to comply with local ordinances/law that directly taxes and/or regulates them?
Under the Supremacy Clause, no, unless Congress consents to be subject to those laws.
104
does a federal agency/bureau need to comply with local ordinances/law that indirectly taxes and/or regulates them, such as taxing federal employees or entities employed by the federal govt?
Typically, yes, the affiliates/entities related to the federal govt are not immune, unless Congress grants them immunity, or the law/tax in question discriminates against or heavily interferes with federal duties
105
what standard of scrutiny is used to judge whether campaign contribution restrictions violate the 1st Amendment?
Intermediate scrutiny: 1) substantially related to 2) an important govt interest
106
what standard of scrutiny is used to judge whether campaign expenditure restrictions violate the 1st Amendment?
Strict scrutiny
107
If Congress has properly delegated once of their powers to an executive agency, can Congress then veto/overturn the actions/decisions of that agency?
Maybe. Those executive agency decisions can only be overturned if 1) House and Senate pass by a majority vote the veto, and 2) the President signs off on it.
A mere Congressional committee or one of the Houses trying to overturn/veto an agency decision is not enough.
108
Under procedural due process, can property be seized pursuant to civil asset forfeiture (taken because it's suspected of being used in a crime)?
If the property being seized is real property, the Eldridge balancing test is applied to see if notice and hearing is required.
If its personal property being seized, it can be seized without notice or a hearing if:
1) the seizure serves a significant government interest
2) that interest would be frustrated by advance notice of the seizure and
3) the seizure is performed by the government.
109
What powers does the President solely have?
1) nominate executive officers
2) veto bills
3) enter executive agreements
4) recognize foreign govts (cannot be overridden by Congress)
5) Negotiate with foreign govts
110
Under the 1st Amendment, when does Freedom of the Press shield people from publishing illegally obtained information?
1) the information involves a matter of public concern and
2) the publisher neither obtained it unlawfully nor knows who did.
111
Can state govts regulate state elections?
Yes, so long as the regulations comply with the 1st Amendment and the 14th Amendment's Due Process Clause
112
What standard of review is used when reviewing a state govt regulation of a state election?
Rational basis if the regulation involves reasonable, nondiscriminatory burdens
Strict scrutiny if the regulation involves severe, discriminatory burdens
113
Can Congress sign off on states violating the Dormant Commerce Clause?
Yes. Congress can explicitly authorize conduct that would otherwise violate the dormant commerce clause.
114
How do the 14th Amendment Due Process Clause and Congress's exclusive ability to regulate naturalization intersect?
While Congress has the sole authority to control the naturalization process, they cannot revoke a US citizen's citizenship without that citizen's consent unless that citizenship was obtained by fraud or in bad faith.
115
What is the exceptions clause of Article 3?
Congress can modify SCOTUS's appellate jurisdiction unless modification would violate:
1. separation-of-powers doctrine (eg, by usurping judicial power) or
2. other constitutional provisions (eg, violating equal protection clause by only allowing men to appeal)
116
Can the federal govt directly tax state govts?
Under the 10th Amendment, the federal govt cannot impose federal taxes directly on states that unduly interfere with their essential functions.
117
Under the Dormant Commerce Clause, if a state is discriminating against out of state commerce, can it still be valid?
Yes, the discriminatory law can still be valid if:
1) it furthers a legitimate, noneconomic state or local interest; and
2) no nondiscriminatory alternative is available to achieve this interest.
118
When can Congress implement a direct federal tax (ex. tax on real property)?
If the tax is:
1) apportioned evenly (i.e., proportionately) among the states based on each state's population and
2) reasonably related to revenue production (i.e., no provision extraneous to tax purposes).
119
Can Congress launch their own investigations?
Congress doesn't have an express power to investigate, but the Necessary and Proper clause allows Congress authority to conduct investigations incident to its power to legislate
120
Do govt employees have 1st Amendment protections?
When it comes to speech they make within their official capacity as a govt employee, no, they don't have 1st Amendment protections
121
Under the 1st Amendment, can the govt punish/fire a govt employee for speech they make within their private life?
It's a balancing test. If they're speaking on a matter of public concern, the govt can limit speech only if its interest in efficient government function outweighs the employee's right to free speech.
122
What is the Property Clause of Article 4?
It gives Congress complete power to use/regulate federally owned property.
123
If SCOTUS hears a state case because it doesn't rest on adequate and independent state grounds, and SCOTUS resolves the federal question/issue in the case, what must SCOTUS do then?
Remand the case back down to the state courts so they can decide the remaining state law issues in the case
124
with the Takings Clause, how do you determine whether a regulation has risen to the level of being a taking?
when the govt substantially restricts/destroys all economic beneficial use of the property
125
with a regulatory taking under the Takings Clause, how do you determine whether a regulation "substantially restricts" the use of the property to the point where it's a taking?
It's a totality of the circumstances test. Factors to be considered include:
-the character and nature of the govt action (i.e., why are they enacting the regulation)
-the severity of the economic impact on the property
-the interference with the owner's reasonable investment-backed expectations
126
What is Brady evidence?
evidence that is:
1) favorable to the defendant; and
2) material to their guilt or innocence
127
Can a criminal defendant's due process rights be violated by a prosecutor withholding evidence?
Yes. If a prosecutor fails to timely disclose Brady evidence (material to guilt and favorable to defendant) to the defendant
128
what makes Brady evidence "favorable" to the defendant?
It can be used to mitigate punishment and/or disprove guilt or discredit prosecutor's witnesses (i.e., relevant for impeachment)
129
What is a Bivens action?
a lawsuit for damages when a federal officer who is acting in the color of federal authority allegedly violates the Constitution
This is an implied cause of action. i.e., no federal law says a person can sue a federal officer this way, but it's implied to exist because it involves a serious deprivation of rights
130
what constitutional violations has SCOTUS recognized as giving grounds for an implied cause of action (i.e., a Bivens action)?
1) Violation of 4th Amendment protection against unreasonable search and seizure
2) 5th Amendment (i.e. federal) due process violation for sex-based employment discrimination
3) 8th Amendment cruel and unusual punishment violation for refusing to provide medical treatment
131
With the Equal Protection Clause standards of scrutiny, who bears the burden of proving that the law in question is unconstitutional?
For strict and intermediate scrutiny categories (sex, race, national origin, etc.), the govt bears the burden of showing that the law is constitutional
For rational basis categories (age, poverty, etc.), the law is presumed constitutional, so the plaintiff has the burden of proving that the law doesn't meet rational basis review.
132
When analyzing whether a statute limiting campaign contributions violates the 1st Amendment, what standard of scrutiny is used?
they must be “closely drawn” to correspond with a sufficiently important interest.
