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NY Bar Condensed Review > Con Law > Flashcards

Flashcards in Con Law Deck (133):
1

Supreme Court Review: Mandatory Review

State v. state; decision of 3 federal judge panel

2

Permissive Supreme Court Review

On vote of 4 justices, review of decisions from highest state court if no AISG; decisions from US CAP

3

No Federal Court Review

Private party v. state (except under § 5)

4

Inter-Governmental Suits

US can sue state but state can't sue US without permit; states can sue other states with mandatory sup ct review

5

Federal Police Power

"MILD": Military, Indian (reservations), (federal) Land, District (of Columbia).

6

Strings Attached to Congressional Spending on States

(1) EXPRESSLY STATED
(2) RELATED TO SPENDING PROGRAM'S PURPOSE
(3) NOT UNDULY COERCIVE

7

Removal: Permissible Congressional Limits on President's Removal Power

(1) Independence from President desirable
(2) Limited to Good Cause Shown

8

Executive Agreements versus Treaties

Later in time treaty > federal law > executive agreement

Treaties require approval by Senate

9

Pardon Power

"CRIMINALS FESTER INSIDE"
(1) Must be for CRIMINAL offense
(2) Charged under FEDERAL law
(3) Congress has not IMPEACHED the person

10

Fourteenth Amendment P+I Clause

RIGHT TO TRAVEL: State can't discriminate against people who move into the state; right to enter onto federal lands; right to petition congress for redress of grievances, right to vote for federal officers.
Must be NECESSARY to achieve an IMPORTANT government purpose; no LDA. Requires SUBSTANTIAL JUSTIFICATION.

11

Article IV P+I Clause

RIGHT TO EARN A LIVING: State can't discriminate against NON-RESIDENTS trying to earn a living in that state. Must be NECESSARY to achieve an IMPORTANT government purpose; no LDA. Requires SUBSTANTIAL JUSTIFICATION.

12

Dormant Commerce Clause

(1) If a state law AFFECTS interstate commerce; then (2) BALANCING TEST if no discrimination against out-of-staters; and (3) if there's discrimination against out-of-staters, gov't must show that the law is NECESSARY to achieve an IMPORTANT government purpose (NO LDA)

EXCEPTION: GOV'T AS MARKET PARTICIPANT

13

Dormant Commerce Clause and State Taxes

Cannot discriminate against out-of-staters
A non-discriminatory tax is valid if:
STATES NEED FREQUENT ADVICE FROM RABBIS
S ubstantial N exus (between prod/activit taxe and the state)
F airly A pportioned (to avoid double taxation)
F air R elation (to the services provided by state)

NO TAXATION ON COMMODITIES IN COURSE OF INTERSTATE TRAVEL UNTIL GOODS REACH DESTINATION

TAX ON INSTRUMENTALITIES OK IF THERE IS A TAXABLE SITUS AND THE ABOVE TEST IS MET. PROPER APPORTIONMENT = AVG PHYS PRESENCE OF INSTRUMENTALITY IN THE STATE

14

FULL FAITH AND CREDIT

(1) jurisdiction of rendering court (PJ + SMJ)
(2) final judgment
(3) on the merits

15

Bill of Rights Not Applicable To States

8th Am. prohibition of excessive fines; 7th Am. right to jury trial in civil cases; 5th Am. right to grand jury indictment in criminal cases; 3rd Am. right against quartering of soldiers.

16

§ 5 of the Fourteenth Amendment

Congress's law must be NARROWLY TAILORED, congruent, and proportional, to rectify a history or pattern of EPC violations.

17

Strict Scrutiny

NECESSARY to achieve a COMPELLING gov't purpose; no LDA. Gov't burden.

18

Intermediate Scrutiny

SUBSTANTIALLY RELATED to an IMPORTANT gov't purpose, narrowly tailored. Gov't has burden of showing exceedingly persuasive justification for the discrimination.

19

Rational Basis

Reasonable/rationally related to a conceivable gov't purpose. Petitioner's burden.

20

Contracts Clause

Private --> substantial impairment triggers intermediate scrutiny
Public --> substantial impairment triggers higher scrutiny, maybe strict scrutiny

21

Due Process Balancing test

(1) IMPORTANCE of interest to individual;
(2) AVAILABILITY of add'l procedures to increase accuracy;
(3) Government interest in EFFICIENCY

22

DP: Termination of welfare benefits

Notice and a hearing

23

DP: Right to custody of one's children

Notice and a hearing

24

DP: Termination of social security DISABILITY benefits

POST-TERMINATION hearing

25

DP: Punitive Damage awards

jury instructions to guide discretion + judicial review to ensure reasonableness of award

26

DP: non-citizen held as enemy combatant

ability to challenge continued detention through some legitimate procedure

27

DP: public employment, if tenured or termination only allowed for cause

Prior notice, opportunity to respond, and post-deprivation hearing

28

DP: Public education -- suspension or academic dismissal

Prior notice, opportunity to respond (no hearing required)

29

DP: U.S. citizen facing crim charges in foreign country, held by Us military

Habeas corpus petition and review in federal court

30

DP: Recusal of judge

Required if` substantial risk of actual bias

31

DP: Fees denying access of indigents to courts

Must be waived if imposition denies fundamental right: marriage license, divorce, candidate for electoral office, but not when non-fundamental rights are involved such as bankruptcy discharge or review of welfare determination.

32

DP: emergency action by government

STD = shocks the conscience

33

Regulatory Taking

No reasonable, economically viable use of land remains.

Conditions on development = taking unless justified by a benefit roughly proportional to the burden of the regulation.

Temporary denial of use of land is okay if REASONABLE (e.g., environmental standard)

34

Taking: Public Use Standard

Reasonable belief of benefit to the public

35

Right to marry

Fundamental privacy right triggering strict scrutiny

36

Right to procreate

Fundamental privacy right triggering strict scrutiny

37

Right to custody of children

Fundamental privacy right triggering strict scrutiny (state must show compelling interest)

38

Right to keep family together

Fundamental privacy right triggering strict scrutiny

39

Right to purchase and use contraceptives

Fundamental privacy right triggering strict scrutiny

40

Right to possess obscene material

Fundamental privacy right triggering strict scrutiny

41

Right to engage in private consensual sexual activity, same-sex or otherwise

Fundamental privacy right triggering unknown level of scrutiny

42

Right to refuse medical teatment

Fundamental privacy right triggering unknown level of scrutiny

(Note: this is an individual right, states can place burdens on allowing others to decide)

43

Right to physician-assisted suicide

No right

44

Right to education

No right

45

Right to practice trade or profession

No right

46

Right to vote

Fundamental constitutional right triggering strict scrutiny

47

Poll Taxes

Unconstitutional

48

Property Requirement to Vote

Unconstitutional

49

Prohibition on Parties Opening Primary Elections to Anyone

Unconstitutional

50

Durational residency requirements to vote

>50 days unconstitutional

51

Dilution of right to vote

Congressional: requires almost exact mathematical equality when creating congressional districts

State: no variances of more than a few percentage points for number of persons within districts, but maintaining integrity of local political subdivisions is a legitimate state interest as long as final apportionment is substantially based on population (upheld 16% variance for this reason).

52

Right to Abortion

Fundamental privacy right triggering undue burden analysis. (Prior to viability, no prohibition but regulation as long as not undue burden; after viability, prohibition unless necessary to protect life/health of mother).

Undue burdens = spousal consent and notification

Not undue burden = parental consent and notification for unmarried minor; 24-hour waiting period; performance by licensed physicians; partial-birth abortion

53

Laws Preventing People From Moving Into State

Protected under 14th Am. P+I clause (strict scrutiny)

54

ONE YEAR RESIDENCY IN STATE FOR WELFARE BENEFITS

INVALID under 14th amendment (EPC/P+I)

55

ONE YEAR RESIDENCY IN STATE TO VOTE

INVALID under 14th amendment (EPC/P+I)

56

ONE YEAR RESIDENCY IN STATE TO RECEIVE SUBSIDIZED MEDICAL CARE

INVALID under 14th amendment (EPC/P+I)

57

ONE YEAR RESIDENCY IN STATE TO OBTAIN DIVORCE

VALID under 14th amendment (EPC/P+I)

58

INCREASED PENALTIES ON FATHER ABANDONING CHILDREN BY LEAVING STATE

VALID under 14th amendment (EPC/P+I)

59

RESTRICTIONS ON INTERNATIONAL TRAVEL

NO fundamental right to international travel, so rational basis review applies

60

Commercial Speech Restrictions

Bans permissible if the speech proposes unlawful activity or is misleading/fraudulent, otherwise upheld only if: SUBSCONSCIOUS DELIVERS ANOTHER NINE TORTILLAS.
The regulation serves a SUBSTANTIAL gov't interest, directly advances that interest, and is narrowly tailored to serve that interest

61

Prior Restraints

Strict Scrutiny eview: (1) Special social harm; (2) Narrowly drawn, reasonable, and definite; (3) Prompt + final determination of validity of restraint.

62

Licensing for Speech

Only if: (1) important reason; (2) clear criteria w/ almost no discretion in licensing authority; (3) procedural safeguards

63

Regulation of Symbolic Speech

OK if (1) important interest unrelated to suppression of the message; (2) impact on communication is no greater than necessary to achieve that goal

64

Flag Burning

Protected speech

65

Draft card burning

Not protected speech

66

Nude dancing

Not protected speech

67

Burning crosses

Protected unless done in a threatening way or to intimidate

68

Contribution limits in election campaigns

Not protected speech (limits allowed)

69

Expenditure limits in election campaigns

Protected speech (no limits allowed)

70

Anonymous speech

Protected speech

71

Equal Protection Clause: Initial Questions

(1) Classification? (2) Level of scrutiny? (3) Scrutiny met?

72

Suspect Classes

Trigger strict scrutiny: Race, Alienage (with exceptions), Nat'l Origin

73

When Alienage does NOT trigger Strict Scrutiny

(1) Federal gov't purposes
(2) If the law is related to a "self-government" role like police officer, secondary school teacher, elective office, jury service.
(3) UNDOCUMENTED aliens are not a suspect class, except maybe children (can't deny undocumented alien child a free public education)

74

Quasi-Suspect Classes

Gender (benefitting OK but not to perpetuate stereotypes); Legitimacy

75

Gender-based death benefits

Invalid under intermediate scrutiny

76

Gender-based peremptory strikes

Invalid under intermediate scrutiny

77

Alimony only for women

Invalid under intermediate scrutiny

78

State-supported all-male, all-female schools

Invalid under intermediate scrutiny

79

Discriminatory minimum drinking age

Invalid under intermediate scrutiny

80

discriminatory statutory rape laws

VALID under intermediate scrutiny

81

All-male draft

VALID under intermediate scrutiny

82

Requiring American fathers, not mothers, to prove parentage of non-marital children born abroad to obtain US citizneship

VALID under intermediate scrutiny

83

Law requiring establishment of paternity to receive certain benefits

VALID under intermediate scrutiny

84

Classifications based on wealth

RATIONAL BASIS

85

Classifications based on age

RATIONAL BASIS

86

Classifications based on disability

RATIONAL BASIS

87

Gov't Speech

Rational basis (w/ religious messages, must have diversity of message)

88

Gov't funding of private messages (e.g., funding campus newsletter)

Must be viewpoint neutral

89

Content-based restrictions of speech

View-point or subject matter: strict scrutiny

90

Content-neutral restrictions of speech

Intermediate: must advance important interests unrelated to the suppression of speech and be narrowly tailored, not burden substantially more speech than necessary

91

Time/place/manner restrictions in public forums or designated public forums

(1) Content neutral; (2) narrowly tailored for important government purpose; (3) leave alternative channels of comm'n open

92

Limited Public Forum Restrictions

(1) viewpoint neutral; (2) reasonably related to legitimate gov't purpose

93

Public forums

Sidewalks (except outside of Post Office; parks) NOT e.g. the steps of a courthouse while in session.

94

Limited Public Forums

Classrooms in public schools when out of session, any public forum opened by government for some speech

95

Non-public forum

Military bases, airports (but can't ban ALL speech; may prohibit solicitation of money, but can’t prohibit distribution of literature ); schools while in session; government workplaces.

96

Obscenity Restrictions

Not protected speech if:
Prudish Individuals Preach Opposition (to) Nudes, Anarchists, and Vandals.
(1) appeals to PRURIENT INTEREST in sex (measured by community standard);
(2) is PATENTLY OFFENSIVE (by community standards); and
(3) NO serious ARTISTIC, literary, scientific, political, or social VALUE (measured by national standard).

97

Oaths requirements

OK if not over broad, vague (can't require to swear to flag or have/not have membership in parties) but can require oath to uphold constitution.

NOTE: REQUIREMENT NOT TO BE A MEMBER OF AN ORGANIZATION THAT PROMOTES ILLEGAL ACTIVITIES IS NOT CONSTITUTIONAL. Overbroad --> state has compelling interest in preventing KNOWING membership with specific intent to FURTHER UNLAWFUL AIMS but cannot deny license b/c of mere membership in particular group.

98

Association: Punishment of group members

OK if: (1) Actively affiliated; (2) knows of illegal activity; (3) specific intent to further illegality

99

Association: Protection of right to discriminate

None, unless it's a very intimate association whose purpose is to discriminate as expressive activity (e.g., KKK dinner party).

100

Association: laws requiring disclosure of group membership

NOT OK if disclosure would chill membership (e.g., NAACP in the 60s in the South)

101

Establishment Clause Test for Government Activity

Government must prove SEX:
(1) Secular purpose
(2) primary Effect is not to advance religion;
(3) no eXcessive gov't entanglement with religion

102

Payment of teacher's salaries in parochial schools

Violates Establishment Clause

103

Discrimination against religious speech or among religions

Must meet strict scrutiny or else violates Establishment Clause

104

Laws aimed at religious PRACTICES generally

Must meet strict scrutiny or else violates Establishment Clause

105

Neutral laws of general applicability that tangentially affect a certain religious practice

Does not violate establishment clause unless org can show the legislation was MOTIVATED BY DESIRE TO INHIBIT the religious organization's objections.

Don't apply rational basis test to reviewing laws of general applicability under the establishment clause.

106

Government-sponsored religious activity in public schools

Violates Establishment Clause

107

Voluntary/mandatory school prayer or voluntary moment of silent prayer

Violates Establishment Clause

108

Government assistance to parochial schools not used for religious instruction

Does Not Violate Establishment Clause

109

Government providing vouchers to parents which may be used to send children to parochial schools

Does Not Violate Establishment Clause

110

Legislature's employment of chaplain or beginning legislative session with prayer

Does Not Violate Establishment Clause

111

Delegation of zoning power to religious organization

Violates Establishment Clause

112

Requirement that all employers grant workers their Sabbath day off

Violates Establishment Clause

113

Christmastime display of only religious symbols (nativity scene, menorah only)

Violates Establishment Clause

114

Displaying Ten Commandments with predominantly non-religious purpose

Does Not Violate Establishment Clause

115

Displaying Ten Commandments with predominantly religious purpose

Violates Establishment Clause

116

Christmastime display that includes religious and nonreligious symbols

Does Not Violate Establishment Clause

117

Granting religious organization an exemption from employment discrimination laws where contrary to org's beliefs

Does Not Violate Establishment Clause

118

Reimbursement for Writing Achievement Tests in ParochialSchools

Violates Establishment Clause

119

Providing private schools with teachers or money to pay teachers of secular classes

Violates Establishment Clause

120

Tax exemptions for religious ass'ns only

Violates Establishment Clause

121

Property tax exemptions for religious, charitable, or educational properties

Does Not Violate Establishment Clause

122

Tax credits for parents of all students for educational expenses, including parochial school children

Does Not Violate Establishment Clause

123

Tuition vouchers for poor students that can be used to attend both public and private schools

Does Not Violate Establishment Clause

124

Providing transportation to and from school for all students, including those at parochial schools

Does Not Violate Establishment Clause

125

Providing all students with state-approved textbooks or lending religiously-neutral instructional materials to private and public schools

Does Not Violate Establishment Clause

126

Ending classes early to allow students to attend off-school religious classes

Does Not Violate Establishment Clause

127

Ending classes early to allow students to attend voluntary in-school religious classes

Violates Establishment Clause

128

Prayer, bible reading, or posting ten commandments in school or at football games

Violates Establishment Clause

129

Requiring creation science to be taught

Violates Establishment Clause

130

Allowing religious student groups to meet in unused classrooms as any other student group

Does Not Violate Establishment Clause

131

Speech restrictions on curriculum-based public high school activities

Not public forums so restrictions will be upheld as long as viewpoint neutral and reasonably related to legitimate government purpose.

132

Prohibition on publishing articles on drugs in a school newspaper as part of a journalism class

Upheld as valid under First Amendment

133

Speech protections in public school

Students do have some first amendment protections although they do not enjoy FULL constitutional rights. E.g., students have First Amendment rights to wear black armbands in school to protect Vietnam war. Curriculum-based high school activities are NOT public forums, though, and can be regulated as long as viewpoint neutral and reasonably related to legitimate gov't purpose