Con Law Flashcards
(205 cards)
1
Q
Four requirements for standing
A
- Injury
- Causation and redressability
- No third party standing
- No generalized grievances
2
Q
What must plaintiff prove to show injury for standing purposes?
A
Plaintiff must allege and prove that he has been injured or will imminently be injured.
Injury is not established with mere ideological objection.
Plaintiffs may assert only injuries that they personally have suffered.
3
Q
What type of injury must a plaintiff seeking declaratory or injunctive relief show?
A
A likelihood of future harm.
4
Q
On exam–when question asks who has the best standing, look for what answer?
A
The plaintiff who has personally suffered the injury. Among these, look for the plaintiff who has suffered $$ damages.
5
Q
What are causation and redressability?
A
A plaintiff is required to show that the defendant caused the injury so that a favorable court decision is likely to remedy the harm. Otherwise, it would be an advisory opinion.
6
Q
What is the restriction on third party standing?
A
A plaintiff may not assert claims of others who are not before the court
7
Q
When can a plaintiff assert the claims of others based on a close relationship to the injured party?
A
When there is a close relationship between the P and the injured party which means the P can be trusted to adequately represent the interests of the third party. Ex.–Dr./patient–Dr. has $$ injury but brings suit on constitutional grounds on behalf of patient.
8
Q
When can a plaintiff assert the claims of another?
A
When the injured third party is unlikely to be able to assert his own rights.
Ex.–Jurors thrown out for unconstitutional reasons; are unlikely/unable to bring suit.
9
Q
When may an organization sue on behalf of its members? (3 requirements)
A
- Members would have standing
- Interests are germane to organization’s purpose
- Neither the claim nor the relief requires the participation of individual members.
10
Q
What is the rule against generalized grievances? What is the exception?
A
Plaintiff must not be suing solely as a citizen or a taxpayer interested in having the gov’t follow the law.
Exception: Taxpayers have standing to challenge gov’t expenditures pursuant to fed statutes violating the establishment clause.
11
Q
What factors should be considered to determine whether a claim is ripe?
A
- The hardship that will be suffered without pre-enforcement review of a statute or regulation.
- The fitness of the issues and the record for judicial review.
12
Q
Exam: What issue should you think about when you see a declaratory judgment action? A claim for injunctive relief?
A
Ripeness; Mootness
13
Q
When is a claim moot? What will keep a claim alive?
A
If events after the filing of a lawsuit end the plaintiff’s injury. The case must be dismissed because P must present a live controversy.A non-frivolous money damages claim will keep a case alive.
14
Q
What are the three exceptions to the mootness requirement?
A
- The wrong is capable of repetition but evades review because of its inherently limited time duration (e.g. abortion).
- Voluntary cessation (by defendant)
- Class action suits
15
Q
What is the political question doctrine?
A
Courts will not adjudicate questions committed to the other branches of government.
16
Q
What are four types of political questions?
A
- Challenges under Art IV, Sec 4 (The US shall guarantee to each state a republican form of gov’t)
- Challenges to the President’s conduct of foreign relations.
- Challenges to the impeachment and removal process.
- Challenges to partisan gerrymandering.
17
Q
What are four types of cases that come to the Supreme Court?
A
- Cases from state courts by writ of certiorari
- Cases from U.S. courts of appeal by writ of certiorari
- Appeals for decisions of three-judge federal district courts–automatically skip to SCOTUS, which must hear it
- Original and exclusive jurisdiction for suits between state gov’ts
18
Q
What is the final judgment rule?
A
Generally, SCOTUS can only hear cases after there has been a final judgment of the highest court of a state, or a U.S. Ct of Appeals, or a three-judge federal district court.
19
Q
What must be true for SCOTUS to review a state court decision?
A
There must not be independent and adequate state law grounds for the decision. If the state court decision rests on two grounds, one state and one federal, and the reversal of the federal law ground will not change the result, SCOTUS cannot hear it. (e.g. identical damages under state & federal)
20
Q
Federal courts and state courts may not hear suits against _____________
A
State governments–>goes to state and state agencies
–but NOT local gov’ts
21
Q
What is the principle of sovereign immunity? Where is it found?
A
The 11th Amendment bars suits against states in federal courts. That is, state gov’ts generally cannot be named as Ds in federal court cases. Sovereign immunity bars suits against states in state court or fed agencies, even on fed law claims.
22
Q
What are the exceptions to sovereign immunity? (4)
A
- Waiver by a state–must expressly consent to being sued
- States may be sued pursuant to fed laws adopted under Sec 5 of the 14th Amendment.
- Fed gov’t may sue state gov’ts
- Bankruptcy proceedings
23
Q
When and for what may state officers be sued?
A
Sovereign immunity does not bar suits by state officers. They may be sued for injunctive relief and for $$ damages to be paid out of their own pockets.
State officers may NOT be sued if the state treasury will be paying retroactive damages.
24
Q
What is the abstention doctrine?
A
Federal courts may not enjoin pending state court proceedings.
25
What are the 'big three' powers of Congress?
Taxing, spending, and commerce
26
In what areas does Cg have a police power? [THINK: Cg has 'MILD' police power]
Military
Indian reservations
Lands--federal lands
District of Columbia
27
Article I, Sec 8 says Cg can adopt all laws that are ____________________ to exercise its authority
necessary and proper
28
Congress may tax and spend for the ____________________.
general welfare
29
With whom may Cg regulate commerce?
Foreign nations, Indian tribes, and among the states
30
In what three ways may Cg regulate interstate commerce?
Cg may regulate
the channels of commerce,
the instrumentalities of commerce, and economic activities that have a substantial effect on interstate commerce.
(in the area of non-economic activity, a substantial effect *cannot* be based on cumulative impact)
31
What is the reservation clause of the 10th Amendment?
All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
32
What kind of state action may Cg NOT compel?
Cg may not compel regulatory or legislative action.
33
Under what circumstances may Cg induce state gov't action by placing requirements on grants?
1. Conditions are expressly stated
| 2. Conditions relate to the purpose of the spending program
34
Congress may prohibit _______________ commercial activity by state gov'ts.
harmful commercial activity
35
What limit exists on Cg's ability to delegate legislative power?
None
36
When is a legislative veto constitutional?
Never
37
What two procedural steps are necessary for Cg to act?
Bicameralism--passage by both chambers
| Presentment--giving the bill to the Pres to sign or veto
38
What is a line-item veto?
When the President purports to sign only a part or parts of a bill into law. A line-item veto is unconstitutional; a bill must be adopted or rejected by the President in its entirety.
39
Congress cannot delegate ______________ power to itself or its officers.
executive
40
What is a treaty? When is a treaty effective?
An agreement between the United States and a foreign country negotiated by the President and effective when ratified by the Senate.
41
What happens if a treaty conflicts with
- -a state law?
- -a federal statute?
- -the Constitution?
- -the state law is invalid
- -the one adopted last in time controls
- -the treaty is invalid
42
What is an executive agreement? When is an executive agreement effective?
An agreement between the United States and a foreign country that is effective when signed by the President and the head of a foreign nation.
43
For what purpose may an executive agreement be used?
For any purpose
44
What happens if an executive agreement conflicts with
- -a state law?
- -a federal law?
- -the Constitution?
- -the executive agreement prevails over the state law
- -the federal law prevails
- -the Constitution prevails
45
The President has broad powers as commander-in-chief to _____________________
use American troops in foreign countries.
46
The appointment power allows the President to appoint which personnel? What is the Senate's role?
Ambassadors, federal judges, and officers of the United States.
The Senate must approve the nominations.
47
In whom may Cg vest the appointment of inferior officers?
President, heads of departments, or lower federal courts
48
Whom may the President remove from office under the removal power?
Unless limited by federal statute, the President may fire ANY executive branch official.
--Cg may NOT limit the removal power with respect to the Cabinet.
49
What two requirements must Cg meet to limit the President's removal power by statute?
1. Must be an office where independence from the President is desirable, and
2. Cg cannot prohibit removal; it can limit removal to where there is good cause shown.
50
The President, Vice President, federal judges, and all officers of the U.S. can be impeached and removed from office for ___________________________
treason, bribery, high crimes and misdemeanors
51
Impeachment by the House of Reps requires a ________________ vote; conviction in the Senate requires a ___________ vote.
impeachment--majority vote
conviction--2/3 vote
52
From what type of suits does the President have absolute immunity while in office?
Civil suits for money damages for actions while in office.
BUT--no immunity for actions that occurred prior to taking office.
53
What is the extent of the President's executive privilege?
The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important gov't interests.
54
What is the extent of the President's pardon power?
President has the power to pardon anyone accused or convicted of federal crimes, except where the person has been impeached by the House; that person can never be pardoned for the underlying crimes that led to the impeachment. The pardon power does NOT apply to civil liability.
55
What is the effect of the supremacy clause?
Valid federal law overrides or preempts inconsistent state law.
56
What are the three types of preemption?
1. Express preemption
2. Implied preemption
3. States may not charge a state tax to be paid out of the federal treasury for federal gov't activity.
57
What is express preemption?
When Cg has authority to act, it can state that its power is exclusive in a field--if so, state and local laws in that field are preempted.
58
In what three ways can implied preemption be found?
1. If it is not possible for someone to simultaneously comply w/ both fed and state laws.
2. If state law impedes the achievement of a federal objective.
3. If Cg evidences a clear intent to preempt state law (e.g. immigration)
59
What are the negative implications of the commerce clause?
State or local laws are unconstitutional if they place an undue burden on interstate commerce.
60
What is stated by the privileges and immunities clause of Art IV?
No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without *substantial justification*
61
What is stated by the privileges or immunities clause of the 14th Amendment?
Preserves a person's right to travel from one state to another.
NOTE: ALWAYS THE WRONG ANSWER UNLESS RIGHT TO TRAVEL IS INVOLVED
62
Analysis if state law does NOT discriminate against out-of-staters
1. P & I clause of Art IV does not apply; only applies if there is discrimination
2. If law burdens interstate commerce, it violates the DCC if the burden on commerce outweighs the benefits of the law
63
Analysis if the law discriminates against out-of-staters
If the law burdens int'state commerce, it violates the DCC unless it is
- necessary to achieve an important gov't purpose, and
- gov't must show that no less-discriminatory alternative can achieve its goal
64
Exceptions in which laws that would otherwise violate the DCC will be upheld
1. If Cg approves it, it's OK
2. Market Participant Exception--a state or local gov't may prefer its own citizens in receiving benefits from gov't programs or dealing with gov't-owned businesses
65
Analysis if law discriminates against out-of-staters w/r/t their ability to earn a living
It violates the P & I clause of Art IV unless it is necessary to achieve an important gov't purpose
66
What are two entities which may not invoke the privileges and immunities clause of Art IV?
corporations and aliens
67
What restrictions are placed on state taxation of interstate commerce?
1. There must be a substantial nexus between the product or activity to be taxed and the state.
2. State taxation of interstate businesses or companies must be fairly apportioned among the involved states.
68
Full faith and credit must be given to judgments of courts in another state IF (3 criteria)
1. The court that rendered or issued the judgment must have personal and subject matter jurisdiciton.
2. The judgment must be on the merits.
3. The judgment must be final.
69
Does the Constitution apply by its own force to private conduct?
NO--Congress must by statute apply constitutional norms to private conduct.
70
May Cg prohibit private race discrimination?
YES-Pursuant to the 13th Amendment, which prohibits slavery, Cg has broad powers to regulate private race discrimination
71
Under what authority may Cg apply constitutional norms to private conduct?
Pursuant to the commerce clause
72
Can Cg use Sec 5 of the 14h Amendment to regulate private behavior?
NO--only to regulate state and local gov'ts.
73
What are two situations where private conduct must comply with the Constitution?
1. If a private entity is performing a task traditionally, exclusively done by the gov't--the PUBLIC FUNCTIONS EXCEPTION
2. If the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity--the ENTANGLEMENT EXCEPTION
74
Can courts enforce racially restrictive covenants?
NO
75
Is there a state action when the gov't leases premises to a restaurant that racially discriminates?
YES
76
Is there a state action when a state provides free books to private schools that racially discriminate?
YES
77
Is there state action when a private school that is over 99% funded by teh gov't fires a teacher because of her speech?
NO--state hadn't done anything to encourage the violation; mere subsidy is insufficient for state action
78
Is there state action when the NCAA orders the suspension of a basketball coach at a state university?
NO
79
Is there state action when a private entity regulates interscholastic sports within a state?
YES--key is that it only operates in a single state
80
Is there state action when a private club with a liquor license from the state racially discriminates?
NO
81
The BIll of Rights applies *directly* only to ____________________
the federal government
82
How is the Bill of Rights applied to state and local governments?
Through its incorporation into the due process clause of the 14th Amendment.
83
What rights in the Bill of Rights have not been applied against the states?
1. The 3rd Am right not to quarter a soldier in one's home
2. The 5th Am. right to grand jury indictment in criminal cases
3. the 7th Am right to jury trial in civil cases
4. The 8th Am right against excessive fines
84
What is rational basis scrutiny?
A law is upheld if it is rationally related to a legitimate government purpose.
85
Who has the burden of proof when rational basis scrutiny is applied? What must he prove?
The challenger must prove that
- -there is NO CONCEIVABLE legitimate purpose, or
- -the law is not rationally related to it
86
What is intermediate scrutiny?
A law is upheld if it is substantially related to an important government purpose.
87
Who has the burden of proof when intermediate scrutiny is applied, and what must he prove?
The gov't must prove that the law is substantially related to an important gov't purpose--and that it is narrowly tailored to meet that purpose.
88
What is strict scrutiny?
A law is upheld if the law is necessary to achieve a compelling government purpose.
89
Who has the burden of proof in strict scrutiny, and what must he prove?
The government must prove that the law is necessary to achieve a compelling government purpose---and that the law is narrowly tailored to achieve that purpose. The law must be the least restrictive alternative.
90
Procedural due process is the procedure the gov't must follow to take away _______________________
someone's life, liberty, or property
91
When has a deprivation of liberty occurred?
If there is the loss of a significant freedom provided by the Constitution or a statute.
92
When has a deprivation of property occurred?
If a person has an entitlement (a reasonable expectation to the continued receipt of a benefit) and that entitlement is not fulfilled.
93
Is gov't negligence sufficient for a deprivation of due process?
NO--generally, there must be intentional gov't action or at least reckless action for liability to exist.
94
How does an emergency situation affect government liability under due process?
In emergency situations, the gov't is only liable under due process if its conduct "shocks the conscience."
95
Does the gov't failure to protect people from privately inflicted harms constitute a denial of due process?
Generally no.
96
To determine what process is due, what three factors are balanced?
1. The importance of the interest to the individual.
2. The ability of additional procedures to increase the accuracy of the fact-finding.
3. The government's interests; usually efficiency and saving money.
97
What process is required to terminate welfare benefits?
Both notice and a pre-termination hearing
98
What process is necessary to terminate social security disability benefits?
Only a post-termination hearing
99
What process is necessary to permanently terminate a parent's right to custody?
Both notice and a hearing
100
What process is necessary to institutionalize an adult?
Both notice and a hearing
101
Is harm to reputation a loss of liberty?
NO--Not by itself. But harm to reputation when coupled with denial of a gov't benefit can be a loss of liberty.
102
What is the usual outcome of prisoners suing to assert a loss of liberty?
Prisoners almost always lose.
103
What process is required for punitive damages awards?
Jury instructions to guide discretion and judicial review to ensure reasonable awards.
104
To what process is a non-citizen held as an enemy combatant entitled?
The ability to challenge their continued detention
105
A U.S. citizen facing criminal charges in a foreign country held by the American military can do what?
File a habeas corpus petition and seek review of their detention in federal court
106
When does due process require recusal of a judge?
When there is a *substantial risk* of actual bias.
107
In what two areas has substantive due process been used?
1. Protecting economic liberties
| 2. To safeguard property
108
Substantive due process asks whether government has _______________________________
an adequate reason for taking away a person's life, liberty, or property
109
What protection does the Constitution provide to economic liberties?
Only minimal protection--rational basis test is used for laws affecting economic rights
110
What test is used for laws affecting economic rights?
Rational basis test
111
Under what authority may the gov't take private property, and for what reason?
Under 5th Amdmt takings clause, gov't may take private property for public use but only if it provide just compensation.
112
What is the test for the takings clause?
1. Is there a taking?
2. Is it for public use?
3. Is just compensation paid?
113
Exam: Question has DP challenge to gov't regulation affecting an economic interest--what answer?
Rational basis review, gov't wins
114
Two ways to find a gov't taking
1. Possessory taking--gov't confiscation or physical occupation of property is ALWAYS a taking--no matter how small
2. Regulatory taking--gov't regulation is a taking if it leaves no reasonable economically viable use of the property
115
What limitation exists on government conditions on development of property?
Gov't conditions on the development of property must be justified by a benefit that is roughly proportionate to the burden imposed, otherwise it is a taking
116
Can a property owner bring a challenge to regulations that existed at the time the property was acquired?
YES
117
Is temporarily denying an owner use of property (developing property) a taking?
NO--so long as the government's action is reasonable
118
How to tell if a taking is for public use?
If the government acts out of reasonable belief that the taking will benefit the public.
119
How to measure just compensation for a taking?
Just compensation is measured in terms of loss to the owner in reasonable market value terms; the gain to the government is irrelevant
120
What does the contracts clause state?
No state shall impair the obligations of contracts.
121
To what contracts does the contracts clause apply?
Only to state or local interference with already existing contracts.
122
To what entities does the contracts clause apply?
State and local governments--NOT the federal gov't
123
What level of scrutiny must be met for a state or local gov't to interfere with existing contracts?
Intermediate scrutiny. The language for the test in this situation is:
- -Does the legislation substantially impair a party's rights under an existing K?
- -If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate gov't interest?
124
What level of scrutiny must state or local interference with government Ks meet?
Strict scrutiny
125
When does the ex post facto clause apply?
In civil cases, not criminal cases
126
What level of scrutiny must be met for depriving a privacy right?
Strict scrutiny
127
What fundamental rights are included in privacy rights?
marry; procreate; custody of one's children; keep the family together; control the upbringing of your kids; purchase and use contraceptives; abortion; engage in private consensual same-sex activity; refuse medical treatment; travel; vote
128
Right to custody of one's children: how may it be terminated?
Only if state proves a compelling reason such as parental abuse or neglect.
State may create irrebuttable presumption that a married woman's husband is the father of her child.
129
Right to keep the family together
Protected as fundamental right; broader than concept of parents and children, but has to be familial relationship.
130
How may states regulate abortion prior to viability?
Prior to viability, states cannot prohibit abortions, but may regulate abortions so long as they do not create an udue burden on the ability to obtain abortions.
Ex.-24-hr waiting period; requirement of licensed physician; prohibition on partial birth abortion
131
How may states regulate abortion after viability?
After viability, states may prohibit abortions unless necessary to protect the woman's life or health.
132
What is the status of spousal consent and notification laws prior to abortion?
They are unconstitutional
133
May a state require parental notice and consent prior to an unmarried minor having an abortion?
YES--so long as there is an alternative procedure where minor can obtain abortion by getting judge's approval
134
What is the level of scrutiny for law affecting right to private consensual same-sex activity?
No level of scrutiny has been articulated
135
What are the contours of the right to refuse medical treatment?
Competent adults have the right to refuse medical treatment--no level of scrutiny artticulated.
State may require clear & convincing evidence that a person wanted treatment terminated.
136
What are the contours of the right to bear arms?
Individuals have a right to have weapons of self-defense--no level of scrutiny articulated
137
What level of scrutiny must laws preventing people from moving into a state meet?
Strict scrutiny
138
What level of scrutiny must durational residency requirements meet?
Strict scrutiny. These require a person to live in a jurisdiction for a specified amount of time to get a benefit.
139
What is the maximum allowable residency requirement for voting purposes?
50 days
140
What are the contours of the right to international travel?
There is no fundamental right to int'l travel; restrictions must only meet rational basis test
141
Laws that deny some citizens the right to vote must meet _____________ scrutiny
strict
142
What are at-large elections? When are they constitutional?
Elections where all voters cast a vote for all officeholders are constitutional UNLESS there is proof of a discriminatory PURPOSE--impact is not enough
143
The use of race in drawing election district lines for the purpose of benefiting minorities must meet ____________ scrutiny.
strict
144
Counting uncounted votes without standards in a presidential election violates _____________________
equal protection
145
Is there a fundamental right to education?
NO--rational basis review
146
When is there a basis for an equal protection challenge?
When the gov't draws a distinction among people.
147
Three steps for answering equal protection questions
1. What is the classification? (How is the gov't distinguishing among people?)
2. What level of scrutiny should be applied? (usually RB on exam)
3. Does this law meet the level of scrutiny?
148
To what levels of government does the equal protection clause of the 14th Amendment apply?
State and local gov'ts; NOT the federal gov't
149
Through what constitutional provision is equal protection applied to the federal gov't?
The due process of the 5th Amendment.
150
To what classifications is strict scrutiny applied?
Discrimination based on RACE or COUNTRY OF ANCESTOR ORIGIN.
151
Two alternative ways to prove the existence of a racial classification?
1. The classification exists on the face of the law.
2. If the law is race-neutral on its face, must demonstrate BOTH
- -discriminatory IMPACT, and
- -discriminatory INTENT
152
What is the status of discriminatory use of peremptory challenges (jury)?
Discriminatory use of peremptory challenges based on race or gender denies equal protection.
--Can't systematically remove AAs or women from a jury.
153
What level of scrutiny is applied to racial classifications *benefiting minorities*?
Strict scrutiny
154
Numerical set-asides in favor of minorities require clear proof of ___________________
past discrimination
155
How may educational institutions use race in admissions decisions?
They may use race as one factor in admissions decisions to benefit minorities and enhance diversity.
--But CANNOT set aside slots/add points SOLELY based on race.
156
How may public school systems use race as a factor in assigning students to schools?
They may NOT unless strict scrutiny is met.
157
What level of scrutiny is used for sex-based discrimination, and what is the standard for justification of discrimination based on gender?
Intermediate scrutiny is used for sex-based discrimination and discrimination based on gender can only be allowed if there is exceedingly persuasive justification.
158
Two ways to prove existence of gender classification?
1. Classification exists on the face of the law.
2. If law is facially gender-neutral, must demonstrate BOTH
- -discriminatory IMPACT, and
- -discriminatory INTENT
159
How do courts treat gender classifications *benefiting* women?
Classifications benefiting women based on role stereotypes are not allowed.
Classifications benefiting women designed to remedy past discrimination of differences in opportunity will be allowed.
--e.g. SS uses different formula to calculate woman's benefit
160
Generally, laws that discriminate against non-citizens must meet ____________ scrutiny.
Strict
161
What privileges may be reserved to citizens without violating equal protection? What level of scrutiny is applied to such laws?
Those integral to self-government: Voting; jury service; police officer; teacher; probation officer
Laws must pass rational basis review.
162
What test is applied when *Congress* discriminates against aliens?
only a rational basis test
163
What level of scrutiny is applied to discrimination against undocumented alien children?
Intermediate scrutiny
164
What level of scrutiny is applied to discrimination against non-marital children (legitimacy classifications)?
Intermediate scrutiny
165
What is the test for laws that deny a benefit to all non-marital children but grant it to all marital children?
Intermediate scrutiny
166
What is the level of scrutiny for age discrimination?
rational basis review
167
What is the level of scrutiny for disability discrimination?
rational basis review
168
What is the level of scrutiny for wealth discrimination?
rational basis review
169
What is the level of scrutiny for sexual orientation discrimination?
rational basis review
170
What are two alternative ways of finding that a law is content-based?
1. Subject-matter restriction--application of the law depends on the topic of the message
2. Viewpoint restriction--application of the law depends on the ideology of the speech
171
What is the level of scrutiny for content-based restrictions on speech?
Strict scrutiny
172
What is the level of scrutiny for content-neutral laws burdening speech?
Intermediate scrutiny
173
What is prior restraint?
Stopping speech before it occurs.
174
What is the level of scrutiny for *court orders* suppressing speech?
Strict scrutiny
175
What is the effect of failure to comply with a procedurally proper court order suppressing speech?
A person who violates a court order is barred from later challenging it.
176
Gag orders on the press to prevent prejudicial ______________________ are not allowed.
pre-trial publicity
177
Until what time must a person comply with a court order suppressing speech?
Until it is vacated or overturned.
178
Exam: Court issues injunction to prevent speech--what is the correct answer?
Gag order is ALWAYS unconstitutional, but you must comply or lose the right to challenge.
179
Under what circumstances may the gov't require a license for speech?
If there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Also must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.
180
When is a law regulating speech unconstitutionally vague?
When a reasonable person cannot tell what speech is prohibited and what is allowed.
181
When is a law unconstitutionally overbroad?
If it regulates substantially more speech that the constitution allows to be regulated.
182
What is the status of fighting words vis-a-vis the 1st Amendment?
Fighting words are not protected speech, but statutes attempting to punish the use of such words are often found to be void for vagueness.
183
Under what circumstances may the gov't regulate symbolic speech (i.e. conduct that communicates)?
If the gov't has an important interest unrelated to suppression of the message, and
If the impact on communication is no greater than necessary to achieve the gov't goal
184
Is flag burning protected speech?
YES
185
Is draft card burning protected speech?
NO
186
Is nude dancing protected speech?
NO
187
Is burning a cross protected speech?
YES--UNLESS done with intention of threat or intimidation
188
What is the constitutional status of contribution limits and expenditure limits?
Contribution limits in election campaigns are allowed.
| Expenditure limits in campaigns are NOT allowed.
189
T/F--Anonymous speech is protected by the 1st Amendment.
TRUE--there is a right not to disclose your identity
190
May a state publicly disclose names and addresses of people who sign ballot petitions?
YES--based on strength of state's interest in promoting transparency and accountability in elections
191
What is the test for whether speech constitutes incitement of illegal activity?
The gov't may punish speech if there is a substantial likelihood of imminent illegality and if the speech is directed to causing imminent illegality.
192
What is the test for whether speech is obscene?
1. The material must appeal to the prurient interest, or a shameful or morbid interest in sex.
2. The material must be patently offensive.--LAW MUST BE PRECISE, local standard
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value as determined by a national standard
193
May the gov't use zoning ordinances to regulate the number or location of adult bookstores and movie theaters?
YES
194
What is the test for whether material is child pornography? Can child porn be completely banned?
To be child porn, children must be used in production of the material.
The gov't may completely ban child porn.
195
May the gov't punish private possession of obscene materials? What about child porn?
The gov't may NOT punish private possession of obscene materials, but the government MAY punish private possession of child porn.
196
May the gov't seize the assets of businesses convicted of violating obscenity laws?
YES
197
Is profane and indecent speech protected by the 1st Amendment?
Generally, yes.
198
What are exceptions to the general rule that profane and indecent speech is protected by the 1st Amendment?
- -Free, over-the-air broadcast media
| - -In schools
199
What type of commercial speech can be prohibited?
- -Advertising for illegal activity, false and deceptive ads
| - -True commercial speech that inherently risks deception
200
To help reduce a rising crime rate among teenage boys in a city, a scout leader decided to organize an overnight jamboree to get teens interested in scouting. The scout leader met with the city’s parks commissioner and requested a permit to camp at a large city park located on the oceanfront. The parks commissioner told the scout leader that a city ordinance prohibited large organized use of the park during the evening and all overnight camping. The commissioner explained that the city wished to keep the park open for general use during the evening, when most people were off work, and the park was cleaned overnight. The scout leader brought an action in federal district court, seeking to compel the city to allow overnight camping for this one special occasion.
If the court determines that the ordinance is valid, what will be the basis for its decision?
A The ordinance is rationally related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances.
B The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication.
C The ordinance is substantially related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances.
D The ordinance is rationally related to a legitimate government interest and does not unreasonably limit alternative channels of communication.
B The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication.
The court will base its decision on its determination that the ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication. While the First Amendment protects the freedoms of speech and assembly, the government may reasonably regulate speech-related conduct in public forums through content‑neutral time, place, and manner regulation. To be valid, government regulations on speech and assembly in public forums must be content neutral and narrowly tailored to serve an important government interest, and must leave open alternative channels of communication. Here, the ban on camping overnight in the park, a content-neutral regulation of a public forum, would be evaluated by the court using the standard in choice (B). (A) and (D) are incorrect because the rational relationship test is used for restrictions on free speech rights in nonpublic forums. Here, because the park is a public forum, the more restrictive test stated in (B) is used. (C) is incorrect because it misstates both parts of the standard.
201
A plaintiff brought an action in federal court against a state government, seeking monetary damages. The state moved to have the case dismissed for lack of jurisdiction, citing the Eleventh Amendment of the United States Constitution.
Which of the following facts would support a denial of the state’s motion?
A The plaintiff is a private citizen of the defendant state.
B The plaintiff is a Native American tribe.
C The plaintiff is a neighboring state.
D The plaintiff is a foreign government.
C The plaintiff is a neighboring state.
The state’s motion should be denied if the plaintiff is a neighboring state. The Eleventh Amendment does not bar actions by one state government against another state government. (A) is incorrect. As a general rule, under the Eleventh Amendment, a federal court may not hear a private party’s or a foreign government’s claims against a state government. A private state citizen is a private party. As such, the Eleventh Amendment generally bars a private citizen from suing a state government in federal court. (B) is incorrect because the Supreme Court has held that, for Eleventh Amendment purposes, a Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court. (D) is incorrect because the Eleventh Amendment bars actions brought by a foreign government against a state government.
202
A state statute was struck down by the supreme court of the state on the grounds that it was in conflict with the Supremacy Clause of the United States Constitution as well as the Equal Protection Clause of the state constitution.
Does the United States Supreme Court have jurisdiction to hear an appeal of the state supreme court’s decision?
A Yes, because the Supreme Court has original jurisdiction of all cases in which a state is a party.
B Yes, because the requirements for an appeal to the United States Supreme Court are met under the facts.
C No, because the requirements of certiorari are not met under the facts.
D No, because of the “adequate and independent state ground” theory.
D No, because of the “adequate and independent state ground” theory.
The Supreme Court probably would not review the state decision because of the “adequate and independent state ground” theory. The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. Here, the judgment is, in part, based on a violation of the Equal Protection Clause of the state constitution, which is an adequate and independent state ground on which the decision would rest even if the federal issue were resolved (assuming that the state court’s disposition of the state constitutional issue did not depend on federal doctrines). (A) is wrong because this is a question of appellate jurisdiction, not original jurisdiction. (B) is wrong because this type of case would not meet the very narrow requirements of appeal. (C) is wrong because if it were not for the adequate and independent state ground, this type of challenge could be heard by the Court in its discretion.
203
As an aide to a member of the Congress of the United States, you are expected to provide an analysis of the constitutionality of proposed legislation that your employer is called to vote on. A bill has been proposed that would create a mandatory price schedule for every motor vehicle sold in the United States.
Which of the following should you tell your employer is the strongest constitutional basis for the proposed legislation?
A All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce.
B Because the purchase or sale of a motor vehicle, by definition, involves commerce, the federal government may regulate such transactions under the commerce power.
C Congress has the power to regulate transportation in the United States.
D Congress has the power to legislate for the general welfare of the people of the United States.
A All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce.
As part of its power to regulate interstate commerce, Congress may regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce. Because all motor vehicle transactions in the United States, in the aggregate, have a significant impact upon interstate commerce (as (A) states), Congress is constitutionally empowered to regulate such transactions by, e.g., enacting a mandatory price schedule. (B) is incorrect because the price of a vehicle manufactured and sold in one state may have no effect upon interstate commerce; i.e., it may not affect or involve more than one state. While Congress does have the power to determine that these individual transactions do in fact have an impact on interstate commerce, they do not come within the federal government’s Commerce Clause power merely because they involve “commerce.” (C) is incorrect because it is too broad. Congress is empowered to regulate transportation that constitutes interstate commerce. However, there is no congressional power to regulate transportation as such. (D) is incorrect because Congress may tax and spend to provide for the general welfare. The General Welfare Clause does not, however, authorize Congress to enact nonspending legislation or regulations for the general welfare.
204
The President of the United States and the king of a foreign nation entered into a treaty agreeing that citizens of the foreign nation who reside in the United States would not be taxed by the United States and that United States citizens who reside in the foreign nation would not be taxed by it. The treaty was ratified by the United States Senate and the royal council of the foreign nation. One year after the treaty became effective, the foreign nation began to tax United States citizens within its borders. The President immediately declared the tax treaty to be void and ordered the Internal Revenue Service to tax citizens of the foreign nation living in the United States.
Is the President’s action constitutional?
A Yes, because the President has emergency powers to protect United States citizens.
B Yes, under the foreign policy powers of the President.
C No, because the treaty is the supreme law of the land, on par with federal legislation, and the President is not free to ignore it.
D No, unless the President receives the advice and consent of the United States Senate.
B Yes, under the foreign policy powers of the President.
The President’s action is constitutional pursuant to his power over treaties and foreign relations.The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount. Even as to foreign relations that require congressional consent, the President’s powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations. Thus, this action is allowable under these broad powers. (A) is incorrect because the President’s emergency power to protect United States citizens is unclear. While he has power to act concerning foreign nations, it is unclear whether he could “legislate” concerning the internal affairs involved here (e.g., tax collection) merely because he thought that United States citizens needed protection. In any case, the power to act here more properly arises from the President’s power over foreign affairs and not from a power to protect United States citizens. (C) is incorrect because while it is true that properly ratified treaties are the supreme law of the land, that only means that conflicting state or local laws must yield. If the President has power to override the treaty (which he does have, as explained above), the Supremacy Clause is not controlling. (D) is incorrect because the Constitution only requires the President to obtain the advice and consent of the Senate to enter into treaties; it does not require him to obtain Senate consent to void a treaty.
205
To help alleviate discrimination in private contracts, Congress passed a bill providing:
It shall be unlawful to discriminate against African-Americans in the making and enforcement of any commercial transaction, of every kind whatsoever. Any person whose rights under this statute are violated may bring a cause of action against the party that has so violated the person’s rights in the federal district court for the district in which he resides, seeking treble damages or $1,000, whichever is greater.
Several large banks that have been accused of discriminatory loan practices challenge the federal statute.
Is the statute likely to be found constitutional?
A Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery.
B Yes, because the federal government has an important interest in furthering the equal protection provisions of the Fourteenth Amendment.
C No, because Congress’s powers under the Commerce Clause do not extend so far as the statute would require.
D No, because commercial transactions are not among the privileges or immunities of national citizenship.
A Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery.
The statute is constitutional as a legitimate exercise of congressional enforcement powers under the Enabling Clause of the Thirteenth Amendment. The Thirteenth 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 of slavery. Because the statute at issue bans all discrimination against African‑Americans in commercial transactions, it necessarily reaches private conduct. Such congressional action is constitutionally permissible pursuant to the Thirteenth Amendment. (B) is incorrect. Application of the Fourteenth Amendment has been limited to cases involving state action. [See United States v. Morrison (2000)] The statute here reaches private action, and so the Thirteenth Amendment is the correct source for the law, since that amendment addresses private action. (C) is incorrect because, even if Congress’s power over interstate commerce would not reach every commercial transaction, the statute would be enforceable under the Thirteenth Amendment, as discussed above. (D) is incorrect because it is irrelevant. While it is true that the commercial transactions here are not among the privileges or immunities of citizenship (which include rights such as the right to petition Congress for redress and the right to interstate travel), the law can be based on the Commerce Clause or the Thirteenth Amendment, and thus is constitutional.
