Con Law Final Flashcards
(157 cards)
1
Q
MQ 1
A
Can the government really do this
2
Q
powers granted to executive by the constitution
A
art II sec 1 executive power, art II sec 2 commander in chief, art II sec 3 take care clause
3
Q
presidential inherent powers
A
not explicitly stated in constitution or statute
4
Q
Jackson Youngstown Steel ebbs analysis
A
what is the constitutional anchor and and what does Congress say
5
Q
zone one constitutional anchor and congressional authorization
A
executive power at its highest just need to be acting within the scope of what Congress said
6
Q
zone two constitutional anchor and Congress has neither approved nor denied
A
zone of twilight, Presidential authority murky
7
Q
zone three constitutional anchor and POTUS acts against implied will of Congress
A
lowest ebb of authority, Zivotofsky case
8
Q
executive privilege
A
ability of the president to keep secret conversations with or memoranda to or from advisors about diplomatic reasons, foreign affairs, ability to speak freely with advisors US v Nixon
9
Q
no presidential privilege
A
when one of privileged presidential interests interferes with some other constitutional interest
10
Q
Trump v Vance
A
no absolute immunity for POTUS from state subpoenas related to criminal activity
11
Q
Trump v Mazars
A
Congress can subpoeana POTUS only if the subpoena serves a legislative purpose, must be specific and necessary, unavailable elsewhere, cannot be used to harass
12
Q
US v Curtiss-Wright Export Corp
A
POTUS has unliateral authority in the conduct of foreign affairs and his powers are broad, a sole and exclusive competence of POTUS
13
Q
Zivotofsky v Kerry
A
article II reception clause gives POTUS the exclusive authority to formally recognize a foreign sovereign that Congress can’t contradict via statute
14
Q
dames and moore v reagan
A
POTUS does not have plenary power to settle all claims, must be necessary to resolve a major foreign policy issue
15
Q
war powers resolution
A
POTUS can only insert soldiers if Congress declares war, has express permission from Congress, or imminent threat of attack and reporting requirement
16
Q
Hamdi v. Rumsfeld
A
AUMF gives POTUS authority to deny due process but power is limited via time constraints on how long an enemy combatant’s due process can be withheld
17
Q
Trump v Hawaii
A
muslim ban case introduces rational basis standard of review, invoking national security as a justification to allow POTUS to suspend entry on the basis of nationality
18
Q
enumerated congressional powers
A
tax and spending art I sec 8 cl 1, commerce clause art I sec 8 cl 3, necessary and proper clause art I sec 8 cl 18, civil war amendments
19
Q
power must be enumerated for Feds to act
A
Mutual exclusivity between enumerated powers of Congress and Police Powers of the States
20
Q
evolution of interpretation of commerce clause
A
Marshall broad, robber barron narrow, expansive era broad, modern day very limited
21
Q
Commerce Clause Lochner era
A
CC can be used to regulate channels, prohibit instrumentalities, and regulate activities substantially affecting or related to interstate commerce
22
Q
CC expansive era
A
rational basis standard of review
23
Q
NLRB v Jones & Laughlin Steel
A
purely local activities have such a substantial relationship to interstate commerce
24
Q
United States v Darby
A
interstate activities which substantially affect interstate commerce because it uses channels
25
Wickard v Fillburn
if the activity exerts a substantial economic effect on interstate commerce directly or indirectly commerce clause has authority, aggregate theory
26
CC and civil rights
Congress can use the Civil Rights Act via the CC to regulate private conduct to the degree that there is overwhelming evidence of the substantial relationship between discrimination and its impact on interstate commerce
27
Heart of Atlanta v US
hotel has interstate travelers, very permissive rational basis standard of review, that congress is also legislating against moral wrongs is irrelevant
28
Katzenbach v McClung
racial discrimination in restaurants has a direct and adverse effect on the free flow of interstate commerce
29
Perez v US
consumer credit protection act is constitutional under the CC, Feds can prosecute loan sharks
30
CC new federalism era
police powers of the States capture everything that the enumerated powers do not
31
categories of regulation in new federalism era
Darby and Atlanta motel channels of interstate commerce can be regulated by Congress via CC, instrumentalities or individuals moving through interstate commerce, Jones Steel activities that have a substantial relationship
32
US v Lopez
new test using substantial relationship prong, must be an economic activity, must have a jurisdictional nexus, and a rational basis standard of review
33
US v Morrison
legislation addressing violent conduct has nothing to do with regulating commerce and congress can only regulate local activities if they have a substantial effect on economic activity
34
Gonzalez v Raich
regulating medical weed is merely incidental to a larger mandate, the activity can be a discrete element of broader Congressional concern
35
Tax and Spending
a continuous restriction of the reach of the CC necessarily increases the reach of the Necessary and Proper clause
36
Tax and Spending analysis
if the purpose was to raise revenue and it does relate to the general welfare it will survive
37
US v Butler
taxing, the legislation cannot invade the space reserved for states under the 10th amendment but Congress has a general taxing competence which it can define
38
Steward Machine Co. v Davis
as long as the tax is uniform and it serves a taxable purpose, aka it raises revenue, it is constitutional
39
Sabri v US
spending, the fact that it can spend necessarily implies that Congress can regulate the use of money it appropriates under the necessary proper clause
40
South Dakota v Dole
conditioned spending must be in pursuit of general welfare and related to a federal interests, demands clear and unambiguous, policy or program cannot be coercive to diminish sovereignty of the states, and cannot infringe on other interests
41
McCulloch v Maryland
precedential value by Justice Marshall, Necessary and Proper clause is a grant of power of Congress to use any means not prohibited by the Constitution to carry out its authority, not a limitation
42
Necessary and Proper limitations
always supplemental to other 17 clauses, must be partnered to another power and the act must be limited in some capacity by its chosen terms
43
Civil war amendments
13th ends slavery except as a punishment for a crime, 14th equal protection and due process for all, 15th right to vote applies to everyone
44
US v Morrison
14th amendment does not shield against private conduct regardless of how discriminatory it is
45
City of Boerne v Flores
14th amendment does not give Congress power to define what a Constitutional right is, Congress can only prevent and remedy violations, remedial only if legislation is congruent and proportional to stated goal
46
Shelby County v Holder
the VRA by way of the 15th amendment is limited, Congress cannot intrude on state sovereignty by requiring preclearance, it is a violation of the 10th amendment
47
state sovereignty and the 10th amendment
a truism
48
10th amendment
all power not retained by the Federal Government belongs to the States
49
evolution of state sovereignty and the 10th
tacks the evolution of the CC, narrow with Robber Barons, broad until 70s, narrow again with Rehnquist takeover
50
National League of Cities
in general, states cannot reach in and intrude on traditional functions of State gov'ts, feds cannot force local or state gov'ts to pay minimum wage
51
Gregory v Ashcroft
traditional functions of State gov'ts is an unworkable standard, as a matter of interpretive approach Cts should bear in mind federal legislation takes power away from States
52
NY v US
Congress cannot compel State gov'ts to legislate, it can create financial incentives but it cannot outright force, any power reserved by the 10th necessarily prevents Congress from infringing
53
Printz v US
federal legislation cannot commandeer executive state or local officers into acting on its behalf, creates another accountability gap
54
Reno v. Condon
statutes of general applicability do not run afoul of the 10th amendment
55
Murphy v NCAA
federal statutes cannot intrude on State inaction, if a State does not want to prevent sports gambling it does not have to
56
Sebelius final rules for CC
CC applies to channels of IC, instrumentalities of IC, activities that substantially affect IC, and gov't authority only extends to activity which is already taking place
57
Sebelius holding
the IM fails rule 3 of CC analysis, deliberate failure to purchase something is itself an activity, there is no activity taking place, tax and spending clause permits the IM, medicaid expansion is coercive and cannot survive under T&S
58
MQ 2
does this violate an individual right?
59
Hobbesian Theory
gov't is the leviathan who holds all liberties and chooses to give some of it away
60
Lockean theory
social contract gives some liberties away, but never all as court retains some ability to determine our liberties regardless of what leviathan says
61
Individual rights reasoning
does a right exist, has the gov't infringed on that right, what is the standard of review in determining the violation
62
state action doctrine
designed to preserve some degree of individual liberties
63
state action doctrine analysis
ask if race is involved, if yes higher level of scrutiny but still less and less permissive, constitutional protections only apply to government actors, private conduct not subject to constitutional concerns
64
exceptions to state action doctrine
public function exception, elections, public parks, malls
65
Jackson v Metropolitan Edison, Manhattan
must be an action that has been traditionally and exclusively reserved to the Government or state actor
66
Marsh
public function exception applies if the action invokes or impedes speech in a public forum, first amendment issue
67
Terry v Adams
public function exception applies to impacts on elections
68
Evans v Newton
public parks traditionally exclusive role of the gov't
69
Manhattan Community Access Corp v. Halleck
a mall is a private property not a public function, door closed on future public function claims
70
Hudgens v. National Labor Relations Board
a private shopping mall may constitutionally exclude picketing on its premises even if that picketing relates to the actual activities of its tenant stores
71
Shelley v. Kraemer
state-court enforcement of a racially restrictive covenant constitutes state action that violates the EP clause of the 14th
72
Lugar v. Edmonson Oil Company
a debtor has a claim under the 14th amendment when a state wrongfully grants an attachment of his property to a private individual
73
Edmonson v. Lessville Concrete Co.
a private litigant in a civil case may not use peremptory challenges to exclude jurors on account of their race, bc the exercise or peremptory challenge invokes state action
74
Burton v. Wilmington Parking Authority
If a state leases public property to a private entity and forms a relationship of interdependence with that entity, the private lessee must comply with 14th's prohibition of discriminatory conduct
75
Moose Lodge No. 107 Irvis
If a state does not significantly involve itself with invidious discrimination by a private entity, no state action has occurred, and the private entity is not prohibited from discriminating against people on the basis of race by the 14th
76
Norwood v. Harrison
a state's direct provision of financial assistance to private schools engaged in racially discriminatory practices violates EP
77
Rendell-Baker v. Kohn
A private school receiving public money and subject to public regulation because it performs a public service, without more, doesn't constitute a "state actor" for purposes of the 14th
78
Brentwood Academy v. Tennessee Secondary School Athletic Association
An action taken by a private regulatory association within a state that is composed of public-school members and governed by public-school administrators constitutes state action for purposes of the Fourteenth Amendment because the state is sufficiently entwined with the private association
79
Individual Liberties - theory
Hobbesian state of nature handing all our freedom over to the leviathan to gain freedom from others vs. Lockean social contract among ourselves deputizing a gov't which we will cede only what freedom we decide to
80
classical negative freedoms
negative on the power of the government
81
new kinds of rights/positive rights
impose obligations on the state to do something for you
82
bill of rights
attempt at perfectly articulated freedoms, discrete protections
83
13th 14th 15th amendments
less than perfectly articulated freedoms, broadly construed guarantees
84
MQ 2 analysis
WHO is accused of having violated a right of constitutional freedom (SAD), WHAT right is being violated if at all (PA or LPA), STATE whether right invoked actually limits actions of states, INFRINGED have to show that the right has actually been infringed, SOR what standard of review will Ct apply
85
incorporation doctrine
do these new federal constitutional liberties apply to the states as well
86
incorporation doctrine answer
old answer constitution only limits federal gov't power reinforcing power of states, new answer there should be incorporation for BOR protections and 13/14/15th to states a new guarantee of liberty
87
due process clause
procedural guarantee when gov'ts acts it should follow some procedures, and locus of less than perfect guarantee of substantive rights bc due process is linked to big freedoms
88
selective incorporation doctrine
a BOR provision is embedded in our notion of liberty and by 14th amendment applicable to states if it involves a fundamental principle of liberty and justice that lies at the base of our civil and political institutions
89
what are fundamental principles of liberty
Ct says the things fundamental to our civil and political institutions are the kinds of things that are basic in our jurisprudence, it is a fundamental right, it is a right fundamental to the American scheme of justice
90
state action doctrine
violations of liberty interests are usually only applicable to public actors and not private actors
91
exceptions to state action doctrine
public function, entanglement, entwinement
92
public function exception
private conduct traditionally and exclusively reserved to the state is susceptible to liberty controls when performing public functions
93
entanglement exception
authorized encouraged or facilitated by the gov't, subsidies, regulation
94
entwinement exception
does the actor have the authority to speak for the state in that moment and are they exercising that authority in that moment
95
Lindke v. Freed
online speech of a gov't official is attributable to the gov't only if the official had actual authority to speak for the gov't and purported to exercise that authority with the speech in question
96
District of Colombia v. Heller
Subject to certain safety limitations the 2nd amendment creates an individual right to keep and bear arms apart from any military purpose
97
McDonald v. City of Chicago
a BOR guarantee applies to the states if it is fundamental to the nation's scheme of ordered liberty or deeply rooted in nation's history and tradition
98
NY State Rifle and Pistol Association v. Bruen
a gov't restriction on the right to keep and bear arms is unconstitutional if restriction is inconsistent with America's historical tradition of firearms regulation, scope of 2A does go outside the home
99
US v. Rahimi
a modern firearm regulation doesn't violate 2nd amendment if it is relevantly similar to historical firearm regulations
100
rational basis test
does the government have a reasonable reason for doing this, and is there a rational relationship b/ween the legitimate means chosen and the end goal
101
historical approach SOR
Ct's posture will involve not asking RB but more of a case-by-case assessment of the historical pedigree of the kind of intrusion gov't is imposing
102
Allgeyer v. Louisiana
Under the Due Process Clause of the Fourteenth Amendment, a state may not prohibit its citizens from entering into contracts outside the state, liberty means K freedom
103
economic freedom
even if vaguely termed, references to liberty can mean economic freedom (freedom to K, occupational freedom) via 14th, not fundamental, RB SOR
104
Lochner v. New York
A state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause
105
Muller v. Oregon
under 14th a state may constitutionally limit the working hours of women and not men because of the state’s strong interest in promoting the health of women as the “weaker sex"
106
Muller v. Oregon analysis
Ct says regulations that promote the community interests and are reasonable will deliver all the substantive due process guaranteed by the Constitution (this is ALL the freedom of K you are owed, let the gov’t set a legitimate goal, and the freedom of K under the 14th amendment has been satisfied)
107
Adkins v. Children's Hospital
Under the Due Process Clause of the Fifth Amendment, Congress cannot make a law regulating the federal minimum wage for women because this violates the freedom of contract
108
West Coast Hotel Co. v. Parrish
A state may regulate the minimum wage paid to female employees if that regulation is for the purpose of promoting employees’ health, safety, and general welfare
109
Weaver v. Palmer Bros. Co.
A state may not enact consumer protection legislation when no significant public health and safety concerns exist, or when such concerns may be easily alleviated
110
United States v. Carolene Products Co.
Congressional legislation of common commercial products will be scrutinized under a rational-basis test, - reg on an instrumentality, the SHIPMENT of milk
111
Carolene Products Footnote 4
With respect to liberty interests that are less than perfectly articulated to the degree that we are guaranteeing the ability to participate in the democratic process we must apply strict scrutiny, more rigorous protection, Most rigorous to those freedom’s necessary to animate the democratic process, Substantive rights in BOR
112
strict scrutiny analysis
does the government have a compelling purpose and are they employing the necessary or and narrowly tailored means to achieve that end
113
Williamson v. Lee Optical of Oklahoma, Inc.
A state may regulate a business if its legislature determines there is a particular health and safety problem at hand and that the regulation in question is a rational way to correct the problem
114
Obergefell v. Hodges
Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples
115
Liberty interests
right to marriage, right to custody, right to keep the family together, right to control of upbringing of children
116
Michael H. v. Gerald D.
The right of a potential natural father to assert parental rights over a child born into a woman’s existing marriage with another man is not traditionally recognized in historical jurisprudence and is not a fundamental right protected by DP clause of 14th
117
Moore v. City of East Cleveland, Ohio
The right of related family members to live together is fundamental and protected by the Due Process Clause and necessarily encompasses a broader definition of “family” than just members of the nuclear family
118
Meyer v. Nebraska
A state may not prohibit the teaching of foreign languages to a young child in school if such teaching has been requested by the child’s parent, because this interferes with the fundamental liberty interest of a parent to control his or her child’s education
119
Troxel v. Granville
Under the Due Process Clause, a state court may not grant visitation rights to a person, even if doing so would be in a child’s best interest, if those visitation rights are opposed by the child’s parent, because doing so interferes with the parent’s fundamental liberty interest in rearing his or her child
120
Buck v. Bell
right to reproduce is not a fundamental liberty, so out of state budgetary interests to prevent social degeneracy we cut Carrie Buck's procreation interests
121
Skinner v. Oklahoma ex rel. Williamson
A state law requiring forced sterilization of criminals convicted of crimes of moral turpitude unconstitutionally infringes on the fundamental rights of marriage and procreation and violates the Equal Protection Clause of the Fourteenth Amendment
122
why can we live with tolerant MQ 1 allowance of police powers used broadly
democratic process, if you don't like what your state is doing, vote your representatives out
123
Griswold v. Connecticut
an implied right of privacy exists within BOR that prohibits state from preventing married couples from using contraception, finding possibility of new liberty interests through a reading of concrete BOR
124
Dobbs v. Jackson Women's Health Organization
The Constitution does not confer a right to an abortion, in Roe historical analysis went too far and exceeded scope of western tradition, looking at state's interest for human life
125
invoking EP
if you want to invoke EP you have to note distinction and identify what class, if distinction applies on a suspect classification apply strict scrutiny
126
suspect classifications
immutable, have no control over changing, insular minorities, documented history of discrimination
127
Romer v. Evans
A law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violates the Equal Protection Clause of the Fourteenth Amendment, no suspect class so RB review
128
police powers
given to states, regulate health and morality
129
two visions for equal protection
equality = opportunity or equity = outcomes
130
Railway Express Agency, Inc. v. New York
A state law that is substantially under inclusive does not necessarily violate the EP Clause, because a state may rationally decide to address a public problem in phases
131
rational relation dimension
unless you can convince the court that what is operating is animus, the Ct is very willing to live with a lot of under inclusivity b/ween policy and means chosen and over inclusivity
132
New York City Transit Authority v. Beazer
A state regulation that is over inclusive because it regulates a general class of persons based on the conduct of particular members within that class does not violate the Equal Protection Clause of the Constitution if it is rationally related to a legitimate state purpose
133
US Department of Agriculture v. Moreno
A state reg that arbitrarily creates two classes of persons and deprives one class of government benefits violates the EP clause and DP clause of the 5th because it is based on a mere legislative preference for one class that is not rationally related to a legitimate state purpose
134
when should laws re: non-suspect classifications survive under RB but do not
if animated by animus, or relationship is arbitrary
135
City of Cleburne, TX v. Cleburne Living Center, Inc.
The mentally disabled are not a quasi-suspect class, and thus any legislative regulations affecting their rights are subject to RB and not IS, gov't claims are arbitrary and animus
136
intermediate scrutiny
applies when cannot be RB bc there is evidence showing discrimination, quasi-suspect classifications, important purpose and substantially related
137
Dred Scott v. Sandford
People of African descent brought to the US and held as slaves, as well as their descendants (either slave or free), are not considered citizens of the US and are not entitled to the protections and rights of the Constitution
138
Dred's problems
case of total failure by SCOTUS, regarded as anti-canon, can read 13th as a direct repudiation of Dred
139
Korematsu v. United States
Government restrictions targeting a specific racial group are inherently suspect and subject to strict scrutiny
140
Loving v. Virginia
A state may not enact a statute that prevents marriages between persons solely on the basis of racial classification without violating the EP and DP Clauses of the 14th
141
Plessy v. Ferguson
Public accommodations that are segregated according to racial classifications do not violate the EP Clause of the 14th as long as such accommodations are “separate but equal"
142
Brown v. Board of Education
Separate educational facilities based on racial classifications are inherently unequal and violate the EP Clause of the 14th
143
Swann v. Charlotte-Mecklenburg Board of Education
As part of a statewide plan to desegregate schools, state boards of education are required to consider the use of racial quotas, rearrangement of school districts, and busing as practical ways to facilitate desegregation
144
Milliken v. Bradley
A desegregation remedy exceeds a federal court’s equity powers if it imposes desegregation procedures on surrounding school districts that have not engaged in racial segregation
145
Board of Education of Oklahoma City Public Schools v. Dowell
an injunctive desegregation decree issued to remedy a past instance of segregation in public schools may be constitutionally dissolved under the 14th upon a showing by the school district that the segregation for which the decree was issued to remedy ceases to exist, making the school truly unitary
146
Parents Involved in Community Schools v. Seattle School District, No.1
public schools may not assign students to schools solely on the basis of race for the purpose of achieving racial integration, although the use of narrowly tailored, race-conscious objectives to achieve general diversity in schools is permissible
147
City of Richmond v. J.A. Croson Co.
Without evidence of past particular race-based discrimination, a city may not enact a plan to provide a race-based set-aside to exclusively promote minority business enterprises, as this does not constitute narrowly tailored means geared towards accomplishing a compelling state purpose
148
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
Consideration of race in the college-admissions process typically violates the EP Clause
149
Frontiero v. Richardson
Under the DP Clause, governmental classifications based on sex are inherently suspect and must be subjected to strict judicial scrutiny
150
Craig v. Boren
A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important government purpose
151
United States v. Virginia
All government gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classification
152
Geduldig v. Aiello
Discrimination based on pregnancy in a state disability-insurance program is subject to rational-basis review, using sex to do harm
153
Orr v. Orr
A state alimony law may not discriminate on the basis of gender if the state’s compensatory and ameliorative purposes are equally served by a gender-neutral classification
154
Mississippi University for Women v. Hogan
A state statute that discriminates on the basis of gender may be unconstitutional if the statutory objective itself reflects archaic and stereotypical notions relating to gender
155
Michael M. v. Superior Court of Sonoma County
A state statutory-rape law that discriminates against males does not violate the EP Clause of the 14th because it deters males from engaging in sexual behavior that might lead to illegitimate pregnancies
156
Rostker v. Goldberg
A congressional act that requires men and not women to register for a military draft does not violate the 5th to the Constitution, because women cannot statutorily participate in combat and thus are not similarly situated as men
157
Nguyen v. Immigration and Naturalization Service
A SSA provision that advantages women in calculating old-age-insurance benefits does not violate the EP Clause if it is directed toward remedying the historical effects of economic discrimination against women in the workforce
