Con Law (from outline/ lecture) Flashcards
1
Q
what are the two ways you can regulate speech?
A
- content-based regulation
- content-netural regulation
2
Q
what is content based regulation is when the government is BASING a regulation on the actual CONTENT Of the speech. AKA Gov just says “___”
content-based triggers _____ scrutiny
A
NO
strict
3
Q
content netural speech is when the gov regulates the time, place, ___ of the speech
content netural is ok as long as it’s for ____ or _____ state interest + leave open ______ means of communication
A
manner
AKA How, where, when
significant or imporant + leave open ALTERNATIVE MEANS OF COMMUNICATIONS
4
Q
what is the difference b/w a public forum and non-public forum?
A public forum involves _____ and ____. Apply the test involving a ____ or important gov interest
A
streets + parks. Significant
5
Q
Non-public forum (like bus or billboard) you are looking for the regulation to be reasonably related to a ____ interest
A
legitimate
6
Q
what is unprotected speech examples?
A
- obscenity
- speech that incites imminent + violent action
- fighting words/ clear and present danger
- defamation
- commercial speech (business)
- false/misleading ads NOT protected
- Prior restraint
- unfettered discretion
7
Q
obscenity is when an objective person applies _____ community standards and finds that the work appeals to the ____interest in sex
The work in question depicts sex in a _____manner
Lacks any literary, artistic, political or ____ value
A
LOCAL; prurient
patently offensive
scientific
8
Q
commercial speech can be regulated if there is a
reasonable fit to substantial gov interest + ______
A
narrowly tailored
9
Q
a gov official cannot allow one form of speech over another. That is _____speech
A
unfettered
9
Q
A prior restraint, trying to ban speech before it ever gets out there, is _______
A
unprotected speech
10
Q
a bill of attainder is when the federal or state government passes a law that names an individual/ group and ____ them
A
punishes/ criminalizes
10
Q
a statute that is overbroad will generally be
A
struck down as unconstitutional
i.e. “ANY form of X speech not allowed”
11
Q
ex post facto is when a law is made that was ____ when you did it, but gov tries to retroactively make it criminal
A
legal
12
Q
the contracts clause applies when a STATE tries to pass a law that would impair a contractual obligation. This is _____
A
unconstitutional
13
Q
To have standing, an individual needs an injury ____, causation, and _____. The case must be ______ and cannot be moot. A court will not render ______
A
in fact
redressability
ripe
advisory opinions
14
Q
The supreme court can review decisions of the federal courts of appeals and federal decisions made by ______ courts
A
state
15
Q
The supreme court can hear decisions made by state courts if the case involves a matter of FEDERAL LAW, it is a _____judgement from the highest state court authorized to hear the case, and there are no ____ and _____ state grounds on which the state court decision is based
A
final
independent and adequate
16
Q
if a state court decision rests on two grounds (a state and federal ground) and the supreme court’s reversal of the federal decision would NOT change the outcome, then the SC _____ the case
A
cannot hear
17
Q
A case will go DIRECTLY to the supreme court if it has ____jdx.
Congress may NOT restrict or enlarge such cases
A
original
18
Q
a case that has appellate jdx, congres ____ enlarge/ regulate the scope of it
A
MAY
19
Q
original jdx = congress may NOT
appellate = congress MAY
A
memorize
20
Q
Federal courts will NOT hear _____questions
A
political questions (those given to another branch of gov by the Constitutional)
TIP: Examples include “republication form of gov” clause challenges, military or foreign affairs decisions, or impeachment
21
Q
Congress can create more LOWER ______courts
A
federal
22
Q
a case is MOOT if the case has already been resolved, so there is nothing left to litigate, so it cannot be brought to ___
A
federal court
23
If a case is not ripe, that means that nothing has happened yet, so the case cannot go to ___
ie. law hasn't been passed yet
(no case or ____)
federal court
controversy
24
Powers of Congress:
1. N&P
2. taxing and spending
3. _____ power
4. war and defense
5. enforcement power
commerce
25
The necessary and proper clause must be combined with _______
another power of congress
26
congress may tax and spend for the
general welfare
BUT it cannot ACT for the general welfare
27
Congress can regulate anything economic and noneconomic that _____ interstate commerce
substantially effects
28
other random powers of congress include:
admiral and maritime, property power, postal power, copyright and patent power, power to coin money, power to impeach, and power to _____
delagate powers
29
congress can delegate legislative power to executive agencies or the judiciary. BUT the power cannot be unuqtly delegated to Congress by the constitution (i.e., power to ____)
declare war
30
Congress does NOT have police power, execept over MILD
1. Military bases
2. Indian territories
3. ____
4. DC
federal lands
31
a legislative veto is _____. This occurs when Congress tries to overturn action by the executive branch without ____ and _____
unconstitutional
bicameralism and presentment
32
under the 11A, the citizens of one state CANNOT SUE its OWN state or ____
another state
33
A state can be sued if it ____to being sued (look for statute)
consents
34
A government official may be sued under ___
11A
35
A private individual cannot sue a STATE for money damages in ____
federal court
36
municipalities (may/may NOT) be sued
may
37
the supreme court has original and exclusive jurisdiction for cases ______
between states
38
supreme court has original jdx over any case that involves APS ( )
ambassadors, public ministers and consuls, or where the STATE is a party
39
a state can pass a law that discriminates against out of state businesses when CONGRESS ALLOWS IT
40
When the state is acting as a market participant, that means the state is acting like a monopoly in that business, therefore it can discriminate agiainst ____
out of state business
41
who is acting in a DORMANT commerce clause issue?
the state
42
a state can discriminate aginast OOS businesses when (1) congress SAID they can do it, or (2) the state is acting as a ____
market participant
43
under the full faith and credit clause, a judgement on the ___ in one state gets the full faith and credit in another state
merits
44
congress cannot _____ states to do stuff
comendeer
45
THe president has hte power to appoint federal judges, ambassadors, and other principal officers of the United States with the advice and ___ of the Senate
The pres may REMOVE executive officials without cause, unless Congress limits removal for "good cause"
consent
46
The president may grant pardons for _____ crimes
federal
47
the president cannot _____ war
declare
48
the president has _____ powers over foreign affairs
broad
49
the president may enter treaties with 2/3 Senate approval. The pres may enter into executive agreementsn with the heads of ______
foreign countries
50
The pres is absolutely immune from civil suits for damages for any _____ as president (but NOT for purely personal or pre-presidential acts)
official acts
51
If a plaintiff sues under the First, 14th, or 15 Amendment (i.e., for free speech, due process, equal protection, or votign issues,) the Plaintiff must show _____. _____ is present if the state passess a law, if a private actor performs a " ____" gov function, or if a private action is closely controlled by the state
state action
"traditional and exclusive" (i.e., running company town)
52
The government may NOT take private property for ____ without ______. A taking can be physical or regulatory. A taking is regulatory if it deprives one of _________
public use
just compensation
ALL ECONOMIC VALUE
53
An unconstitutional exaction is also a _____-
regulatory taking
54
private entities performing a public function are state actors ONLY IF the function is one that is an ______ governmental service or one that involves ______ governmental powers such as incarceration
exclusive
inherently
Supplying water does not satisfy either of those
Receipt of a public franchise is not enough to make a company a state actor
55
the right to procreate (steralization watch out for this in facts) is a fundamental right which must satify
stirct scrutiny
56
The equal protection principles in the 14A apply to actions of the federal government through the DPC of the ____
5A
57
the commerce clause grants Congress a plenary power to regulate the saftey of air travel because airlines are instrumentalities of ____
interstate commerce
58
The privileges and immunities clause of Article IV prohibits actions by STATES that imporlerly disciminate against ______
citizens of other states
59
does the P&I clause of Art IV apply to the actions of the federal gov?
NO
60
does the P or I clause of Art IV apply to the actions of the federal gov?
NO
61
The bar exam would just like us to know that they can do it... so on F24 when they ask you a weirdass question about congress changing some shit with the lower federal courts... the answer will always be that this is allowed and this power is derived from ____(The Judicial Vesting Clause)
Article III
62
Congress does something weird involving lower federal courts = that's allowed.
Why?
Art III
63
The MBE sometimes tests whether congress can enlarge or fuck with the original jurisdiction of daddy SCOTUS... absolutely (yes or no)
NOT
64
So the 11th Amendment is pretty simple. Citizens can't sue:
1. Their own state in federal court
2.
State officials in their official (not private) capacity in federal court
Another state in federal court
65
let's talk exceptions to the 11th Amendment (this is what they will really test)
The first exception is ___. A state can actually consent to being sued by citizens in federal court.
waiver
66
Trick #1: The MBE will throw you a scenario where a federal government sues a state government in federal court. This is _____. The federal government runs shit - ever heard of the supremacy clause? They can bring that weak ass state government into federal court whenever they want. (Will this be on the MBE? I'm giving it a 47% shot)
allowed
67
Trick #2: Congress can "abrogate" a state's immunity. I know you all fell asleep when you just read the word abrogate but I'll break it down. Congress can enforce the provisions of the 14th amendment (think about things like civil rights and discrimination) through "_______." Sometimes, when a state is fucking with their citizen's civil rights... daddy Federal Government will step in.
appropriate legislation
68
So in summary: Congress can ____ suits and damages against states in Federal Court under the 13th (slavery), 14th (equal protection under the laws and civil rights), and 15th Amendments (cannot prevent voting based on race)
authorize
69
But can a citizen sue a state official in federal court for money damages?
NO
70
But wait Goat... I get it... but can you can sue a state official in their personal capacity if they will be paying OUT OF THEIR OWN POCKETS?
yes that is correct
71
so when can a citizen sue a state in federal court?
1. states WAIVE their right to sue
2. congress ABROGATES b/c a stae was fuckign around with civil rights
3. fed gov sues state in fed court*****
4. you can sue a stae official for injunctive relief if they are acting OUTSIDE the scope of their authority by violating federal law in their personal capacity if they hit your car
72
does the 11A apply to city or town officials?
NO
73
you can sue a _______ in federal court
city official
74
A plaintiff can't assert claims on behalf of people that are ___ before the court.
not
75
4 situations where you can assert third party standing:
1. close relationship b/w plaintiff and injured party
2. injured party is unlikely to assert their own rights (parent or guardian suing on behalf of incapacitated minor)
3. assignee of a contract can sue even if the money will go to the assignor (contracts stuff)
4.
organizational standing
76
organizational standing exists if (1) the members would have standing to sue themselves, (2) the claims are germane to the organization's purpose, and (3)
neither the claim or relief requires the particiption of individual members
77
The plaintiff is not entitled to a review of a statute or regulation before its enforcement unless they will suffer some IMMEDIATE HARM or IMMEDIATE ____ OF HARM.
threat
no speculative harm allowed
78
If I have a raw goat milk factory and I try to SUE the FDA for considering putting higher restrictions on raw goat milk... I can't. They are only considering putting the restrictions on goat milk... they haven't actually started enforcing them yet.
it is not ripe
79
But let's talk exceptions to mootness.
Number one:
voluntary cessation = if the D just stops doing the shit, BUT he could continue doing it at any time, then this will NOT be moot
80
Exception #2: Class action suits won't be dismissed for mootness so long as ______ still has an ongoing injury.
one member of the class
81
Exception #3: A wrong capable of repetition but evading review.
his exception only comes into play when:
The challenged action only lasts a short time, and it can't be fully litigated prior to its logical end;
The complaining party will likely get hit with the same injury again
This usually happens in situations with ____.
elections
I mean let's say someone is running illegal election advertisements talking shit... well.... the election might be over before this issue can be litigated.
82
The final exception is a little baby one and it's common sense but essentially if there are still ______ at play... well... the case is not moot.
collateral consequences
83
a state tax levied directly against the property or operation of the federal gov without the consent of congress is _____
invalid
84
BUT non-discriminatory, indirect taxes on the federal government or its property are permissible if they do _________the fed gov
not unreasonably burden
For ex., state income taxes on teh salaries of federal employees are VALID unless taxed imposed are higher on federal employees than state or locam employees
85
The MBE will try and trick you and act like it's a non-justiciable question because it deals with foreign affairs... but statutes ARE justiciable.
Statutes are the MOST JUSTICIABLE THING I CAN THINK OF
THE SUPREME COURT CAN RULE ON FEDERAL STATUTES
______ EVEN ONES RELATED TO WAR AND FOREIGN AFFAIRS
WRITE THAT ON YOUR HAND, YOUR WALL, ANYTHING
PLEASE DO NOT MISS THIS ONE MY BABY GOATS, THESE ARE TREACHEROUS WATERS OUT HERE ON THE MBE AND I KNOW THEY LOVE TO TEST THIS
THEY LOVE FEDERAL STATUTES,
86
So the ____ doctrine is about concurrent jurisdiction and two cases going on at once. When both a federal court and a state court could hear the case simultaneously, the federal case is delayed or dismissed to allow the state's to do their thing.
Colorado River Abstention
87
The ___ doctrine is about resolving unclear issues of state law first in a given case before getting to the federal issues. If the state law issues are resolved, we may not even need the federal analysis.
Pullman Abstention
88
what do I need to know about indian reservations?
Congress can regulate the commerce of indian tribes through the commerce clause
if you are found not guilty in an indian tribe court you can still be charged federally -- the double jeopardy clause is not implicated
89
Congress also regulate the ____ of interstate commerce (fancy word for the people and things that move across interstate commerce)
instrumentalities
90
Congress can regulate economic STUFF that is not just moved across state lines, but ANYTHIG so long as it has a "_______" on interstate commerce
substantial effect
91
Congress was also allowed to regulate the sale of sugary drinks in vending machines, states selling driver's license records, and some weird ice cream parlor not paying their employee's minimum wage... because in the aggregate these activities... ALTHOUGH THEY ONLY HAPPEN WITHIN THE STATE'S BORDERS.... have a ________(which just means that if tons of people did this within their own states it would add up and fuck with interstate commerce on a national level)
substantial affect on interstate commerce.
92
can congress regualte NON-economic activity?
NO
93
How can you tell in an MBE problem that something is non-economic?
they will they there is "no secondary market"
94
If something is grown in a state which has ____ secondary market and is not sold at all across state lines or within the state (they will have to tell you this lmao)... THIS activity is non-economic and is not controlled by Congress.
NO
95
Congress cannot get involved in ______ matters with _____ economic activity
purely local
no
96
Gender based violent crimes are _____ an economic activity
NOT
97
One final Goat-Note: Private businesses (hotels, restaurants, etc.) cannot ______ even though they are not engaged in interstate commerce and operate fully within a state. This is a provision in the Civil Rights Act, so don't let them trick you into thinking they can do this. They can't.
discriminate based on race or gender
98
Congress can tax and spend for the ___
genral welfare
99
A tax will be valid if it _____
raises revenue
100
can Congress tax something that it cant regulate directly?
nope
101
three types of taxes the MBE tests
1. Direct
2. indirect
3. tax exports
102
for direct taxes, these are taxes on individuals and corporations from income and profits that are paid DIRECTLY to the gov.
the only limitation on direct taxes is that they must be _____ evenly among states based on population and how rich state is
apportioned
103
Indirect taxes are a little secret taxes on goods and services rather htan income and profits.
the only liit here is that indirect taxes must be applied ____ in every state
uniformly
104
Can congress tax exports? AKA things leaving the US?
NO
105
The federal gov is allowed to place CONDITIONS on the receipt of Federal Funds on the states
as long as the conditions are clear (______), non-coersive (no gun to the head situations when it comes to the amoun of funds withheld), and related to _____
unambiguous
a federal interest
106
Congress, after realizing highway crashes were on the rise, wanted to implement a mandatory seat-belt law. If the states did not enact the law, they would lose 95% of their federal highway funding. Is this allowed?
NOPEE b/c violate the COERSIVE prong
107
In summary: Congress can regulate through spending _____ on states, but not tax ____ on states for things outside of their enumerated powers
conditions = CHECK
penalties = NO
108
Just remember that the president is still the commander-in-chief and makes all the strategy decisions and shit.
Congress can just create the armed forces and structure it and supply it and forcibly enlist people through drafts.
k
109
congress but NOT the pres can _____ war
declare
110
there is no FEDERAL _____ power
police
111
But states DO have ___ powers b/c they can regulate the health, saftye, and welfare of the citizens
police
112
what is the difference between section 5 of 14A and the commerce clause?
The CC is focused on MONEY and section 5 is focued on civil rights
112
the federal police can regulate these 4 things:
DILF
1. DC
2> indian reservations
3. Land owned by federal gov
4. Armed forces (military)
112
if Congress appropriates money for some shit, the president cannot _____
unilaterllly overrule it
113
something that Congress does under Section 5 of 14A must be ___- and ____
confruent and proportional
113
Section 5 of 14A states that Congress shall have the power to ____, by appropriate legislation, the provisions of this article
enforce
113
president must spend appropriations how ____
congress wants
113
the president controls the _____
executive agencies
114
the president has immunity from civil lawsuits for money damages while _____
BUT pres not have immunity as a result of actions PRIOR to hsi presidency
in office
115
the president can pardon those who are convicted of _____Crimes ONLY
federal
oh and it can also be CRIMINAL only nt civil
116
but the pres CANNOT pardon for ___-
imepachment
117
The president's conversations and documents exchanged beween him and his high level advisors are ____
privileged
118
if war powers come up on the test, the answer will ikely be that it is a ____
political question. It is not for the courts
119
congress controls what type of commerce? Oh foreign?
yes. congress controlls foreign commerce
120
the president has the SOLE power to recognize foreign nations, and congres cannot ____
override this shit
121
a treaty needs to be ratified by ____ vote of senate
Does this involve house of rep?
2/3
no. only pres and senate
122
WHO WINS law battle the treaty v other laws
CONSTITUTION on top > self-executing treaty beats state law
and Federal law v. treaty then....
whichever one was adopted last WINS
123
executive orders deal with domestic policy and executive agreements deal with things b/w US and __-
foreign nations
124
can congress overturn an executive order by legislation
YES
125
the only thing executive orders prevail over is ____
state law
126
the president can appoint __with the ADVICE AND CONSENT OF THE SENATE
___are just people w/o bossess that run shit on their own without being supervised by others
Ex :
PRINCIPAL OFFICERS
cabinet secretaries
federal judges
ambasadors
127
congress cannot actually APPOINT inferior officers, they give the ______ to other people!!
appointment power
128
CONGRESS DOES NOT ____. THEY _____ OTHER PEOPLE TO ______
APPOINT
129
unless removal is prohibited by a certain statute, the president can fire
whoever the fuck he wants
130
congress can reserve to OTHER BRANCHES the power to remove inferior officers, but they cannot reserve that power ____
for themselves
131
On the test just look at the job and say "is this a job I might not want the President removing if he had a bad day and got pissed off?" ... they can apply ____ limitations to those types of jobs, not the President's inner circle.
good cause
132
IN SUM - congress cannot directly remove, but they limit some positions to "good cause" removal - positions where it is ______ to have a little independence from the president
preferrable
133
If a problem says "Congress passed a statute prohibiting the President from removing..."
I want you to literally do this in your seat as you read that:
Uproariously laugh.
Because you know in your heart that Congress cannot fuck with the President's removal powers. And you know in your heart, at this moment... that you will pass.
134
So to get impeached in the house we need a majority vote. Then to get convicted in the Senate we need a ___vote.
2/3
135
The President has _____days to veto legislation once Congress approves it.
If the President does not veto it within 10 days... it becomes law
10
136
line item vetos are ___
unconstitutional
137
congress can give their rule making authority to executive agencies so long as they give them a "______" principle to work with
clear and intelligible
AKA a clear statement describing what kind of power they are singling around
138
Okay so the Speech and Debate Clause IN THE CONSTITUTION says that people in Congress and in the Senate AND their little assistants are IMMUNIZED from criminal and civil liability for statements made ____ while they are engaged in LEGISLATIVE ACTS (voting on the floor or making speeches on the floor or conducting legislative hearings, etc)
ON THE HOUSE/SENATE FLOOR
139
exceptions to speach and debate clause
1. it does NOT protect against criminal acts OUTSIDE the scope of legislative duties
2. it does NOT protect against press releases saying thigns to the pubic ______
outside of the floow of congress/ senate
