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Flashcards in Con Law - General Deck (145):

What is the "cases and controversies" requirement for the Federal Judicial Power? (justiciability doctrines)

The "cases & controversies" requirement is dictated by FOUR doctrines:
(1) Standing
(2) Ripeness
(3) Mootness
(4) Political Question


What is "standing" and what are the requirements?

Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
(1) Injury - in fact, or imminent
(2) Causation & Redressability
(3) No 3rd Party Standing
(4) No generalized grievances - no "citizen" or "taxpayer" claims


What are the exceptions to the "No 3rd Party Standing" Rule? (3)

(1) "Close relationship"
(2) Injured 3rd Party unlikely to be able to assert rights.
(3) Organization can sue on behalf of members, IF:
-(a) members would have standing
-(b) interests are germane to organization's purpose, AND
-(c) neither claim nor relief requires participation of individual members


What is the exception to the "no generalized grievances" Standing Rule?

Taxpayers may challenge government expenditures in violation of the Establishment Clause (but only $ contributions, not property)


What is ripeness and what factors are considered in analyzing it?

Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
(1) Hardship that will be suffered w/o pre-enforcement review
(2) The fitness of the issues and the record for judicial review


What is mootness, and what are its exceptions?

If post-filing events end π's injury, case will be dismissed as moot.
(1) Wrong capable of repetition but evading review
(2) ∆ voluntarily ceases conduct but is free to resume at any time
(3) Class action suits


What is the political question doctrine, and what are specific examples? (4 examples)

The political question doctrine refers to constitutional violations that the federal courts will not adjudicate because they are political in nature.
(1) the "republican form of government clause"
(2) Challenges to President's conduct of foreign policy
(3) Challenges to the impeachment and removal process
(4) Challenges to partisan gerrymandering


How do cases get to the SCOTUS? (4)

(1) Cert from State Court
(2) Cert from US Ct. Appeals
(3) Appeal from 3-Judge District Ct. decisions
(4) Original & exclusive jurisdiction for suits between state governments


When will SCOTUS refuse to review a state court decision?

If there is an independent and adequate state law ground for the decision.


Can state governments be sued?

(1) 11th Amendment bars suits against states in Fed Cts.
(2) Sovereign immunity bars suits against states in state cts or fed agencies


What exceptions are there to states' Sovereign Immunity protection? (4)

(1) Waiver
(2) Suits under Fed laws adopted under §5 of 14th Amendment
(3) Fed Gov may sue states
(4) Bankruptcy Proceedings


What are the rules on suits against state officers? (3)

(1) Allowed for injunctive relief
(2) Allowed for $ damages if officer will pay out of pocket
(3) NOT allowed if $ will be paid out of state treasury for retroactive damages


What does Congress need in order to act?

Congress needs express or implied authority from the United States Constitution.


What are some of Congress's most important powers?

(1) Power under the Necessary & Proper Clause
(2) Taxing & Spending for General Welfare
(3) Commerce Power


What are the requirements for Congress to place conditions on grants to state governments? (3)

Under Spending Power, Congress can compel regulation/legislation by a state, IF:
(1) conditions are expressly stated
(2) conditions relate to purpose of spending program, AND
(3) conditions are not unduly coercive


What can Congress regulate under the Commerce Power? (4)

Congress may regulate:
(1) CHANNELS of interstate commerce (roads, waterways)
(2) INSTRUMENTALITIES of interstate commerce (trucks, planes, internet)
(3) People/things IN interstate commerce
(4) Activities that have a SUBSTANTIAL EFFECT on interstate commerce


How is an activity's "substantial effect" on commerce analyzed?

For economic activities, an aggregate measure for "substantial effect."

For non-economic activities, aggregate measurement cannot be used.


What requirements are there for Congress to act under §5 of the 14th Amendment?

Congress's actions must be:
(1) Congruent, and
(2) Proportionate
to remedy constitutional violations


What is a Treaty?

(1) Agreement between US and Foreign Country
(2) Negotiated by the President
(3) Ratified by the Senate


What if a Treaty conflicts with a State law?

Treaty wins.


What if a Treaty conflicts w/ a Federal law?

Last in time wins.


What if a Treaty conflicts w/ the US Constitution?

Constitution wins, treaty is invalid.


What is an Executive Agreement, and what can it be used for?

Executive Agreement is:
(1) Agreement between US and Foreign Country
(2) Effective when signed by POTUS & Foreign leader

Executive Agreements can be used for ANY purpose.


What if an Executive Agreement conflicts with state law?

Executive Agreement wins.


What if an Executive Agreement conflicts with Federal law?

Federal law wins, conflicting part Executive Agreement is invalid.


What is the President's Commander-in-Chief power?

The President has broad powers to use American troops in foreign countries.
President's use of troops has never been held unconstitutional.


What is the Appointment Power?

President Appoints:
(1) Ambassadors
(2) Federal Judges
(3) Officers of US
Congress confirms the choices.


What is the limitation on the President's Appointment Power?

The president cannot make recess appointments for intrasession recesses lasting less than 10 days


When can Congress limit the President's power to remove an Executive Branch official?

Only in limited instances where officer's independence from President is desirable (ex: Special Prosecutor).
Congress may NEVER completely prohibit President's ability to remove executive officers.


How can the President, VP, Federal Judges & Officers be impeached and removed from office? (3)

(1)Reasons: Treason, bribery, high crimes and misdeameanors.
(2) Impeachment = Majority of House
(3) Removal = 2/3 of Senate


What immunities from suit does the President have?

(1) Full immunity for civil suits for money damages for any actions taken while in office.
(2) No immunity for actions taken prior to taking office.


What is the Executive Privilege?

The President has a general executive privilege for presidential papers/conversations, but must yield to other important government interests.


What are the powers/limits on the President for pardoning?

President can pardon those accused/convicted of FEDERAL CRIMES. (not state crimes, not civil actions)
(1) Crimes that led to impeachment


What is the principle of the Dormant Commerce Clause?

State/local law is unconstitutional if it places undue burden on interstate commerce.


How do you analyze a Dormant Commerce Clause challenge? (3-3)

(1) Does the law discriminate against out of staters?
(2) If no, weigh the benefit vs. the burden to determine validity.
(3) If yes, law is unconstitutional UNLESS:
-(a) necessary to achieve an important noneconomic government purpose
-(b) there is congressional approval, OR
-(c) Market participant exception (state prefers own citizens)


How do you analyze an Article IV Privileges and Immunities challenge?(4)

(1) π cannot be a corporation
(2) Law must discriminate against out of staters
(3) Does law discriminate w/ regard to fundamental rights or important economic activities (ability to earn a living)?
(4) If yes, violates P&I of Art. IV UNLESS:
-(a) necessary to achieve an important gov purpose


What are the constitutional limits on state taxation? (3)

(1) states can't use tax system to hep in-state businesses,
(2) state may only tax activities with a "substantial nexus" to the state
(3) state taxation of interstate business must be "fairly apportioned"


What are the requirements of the Full Faith & Credit Clause?

Courts in one state must give full faith and credit to judgments in courts from another state, so long as:
(1) prior court had jurisdiction
(2) judgment was on the merits
(3) judgment was final


When does private conduct become "state action?" (2)

(1) Public function exception: if a private entity is performing a function traditionally, exclusively done by the government

(2) Entanglement exception: If government affirmatively authorizes, encourages, or facilitates the activity


Which parts of the Bill of Rights apply to states via the 14th Amendment?

All, except:
(1) 3rd A. right to not have soldiers quartered in house
(2) 5th A right to grand jury indictment in crim cases
(3) 7th A right to jury trial in civil cases
(4) 8th A against excessive fines


What are the traditional levels of scrutiny the Court will use to analyze a law?

(1) Rational Basis Test
(2) Intermediate Scrutiny
(3) Strict Scrutiny


What is the Rational Basis Test?

The challenger to the law must show that the law is NOT:
rationally related to a legitimate, conceivable purpose


What is the intermediate scrutiny test?

The Government must show that law is substantially related (or narrowly tailored) to an important, actual government purpose.


What is the strict scrutiny test?

The government must show that a law is necessary to a compelling government interest. (no less restrictive alternative exists)


What is the test for Procedural Due Process?

(1) Has there been a deprivation of life, liberty, or property?
(2) If yes, balance:
-(a) important of interest to individual,
-(b) ability of additional procedures to improve fact-finding, and
-(c) government interests


What counts as a "deprivation of liberty or property"?

Deprivation of liberty = loss of significant freedom provided by US Con or Statute

Deprivation of property = entitlement that is not fulfilled; entitlement = reasonable expectation of continued receipt of a benefit


What is the test for analysis under the Takings Clause?

(1) Is there a taking?
(2) Is it for public use?
(3) Has there been just compensation?


What counts as a taking under the Takings Clause? (2)

(1) possessory taking = confiscation or physical occupation
(2) Regulatory taking = regulation leaves no reasonable economically viable use


What is the test for "public use" under the Takings Clause?

Public use = government has reasonable belief that taking will benefit the public.


How is "just compensation" measured for purposes of the Takings Clause?

Just compensation = market value of loss to owner at the time of the taking


What is the default level of scrutiny for laws affecting economic liberties?

Rational basis.


What is the Contracts Clause? (2)

(1)The Contracts Clause states that no state shall impair the obligation of contracts.
(2)This applies only to existing contracts.


How do you analyze a Contracts Clause challenge? (3)

(1) Does the regulation substantially impair party's rights under existing contract?
(2) If yes, is law narrowly tailored to an important government interest? (intermediate scrutiny)
(3) If it is a government contract, apply strict scrutiny.


What is the level of scrutiny for analyzing restrictions on marriage?

Strict scrutiny.


What is the level of scrutiny for analyzing restrictions on procreation?

Strict scrutiny


What is the level of scrutiny for analyzing restrictions on custody of one's children?

strict scrutiny


What is the level of scrutiny for analyzing restrictions on the right to keep the family together?

strict scrutiny


What is the level of scrutiny for analyzing restrictions on the right to control the upbringing of one's own children?



What is the level of scrutiny for analyzing restrictions on right to purchase/use contraceptives?



What is the level of scrutiny for analyzing restrictions on the right to an abortion?

Prior to viability, "Undue burden" test.

After viability, state can prohibit except where necessary for woman's life or health.


What guideposts do we have about a person's right to refuse medical treatment? (3)

(1) Level of scrutiny unclear
(2) State may require "clear and convincing" evidence of desire to terminate treatment
(3) No right to physician-assisted death


What do we know about the "undue burden" test relating to rights to get an abortion? (3)

(1) 24 hour waiting period ≠ undue burden
(2) requiring that abortions be performed by licenses physicians ≠ undue burden
(3) prohibition of partial-birth abortions ≠ undue burden


What are the government's duties w/ regard to providing access to abortions? (2)

(1) Gov has no duty to subsidize
(2) Gov has no duty to provide in public hospitals


What are the rules on Consent Laws regarding the right to an abortion? (2)

(1) Spousal consent laws are unconstitutional.
(2) Parental notice & consent laws: allowed, so long as there is alternative procedure for minor to go before judge and show best interest or maturity to decide


How do we analyze 2nd Amendment rights claims?

(1) Level of scrutiny unclear
(2) There is definitely a right to have firearms in the home for personal protection.


How do we analyze a challenge to a law that impedes the Right to Travel? (4)

(1) Right to travel between states is a fundamental right.
(2) Restrictions for moving into state must meet strict scrutiny.
(3) Durational residency requirements must meet strict scrutiny.
(4) Restrictions on foreign travel need only meet rational basis test.


What are the rules on impeding the Right to Vote?

(1) Right to vote is a fundamental right.
(2) Denial of right to vote must meet strict scrutiny.
(3) Regulations to prevent fraud must meet rational basis test.


What are the rules on election procedures/structure? (4)

(1) One person - one vote
(2) Districts ~ equal, for equal representation
(3) At large elections are constitutional so long as no discriminatory purpose
(4) Recounting votes w/o preset standards in Presidential election violates equal protection.


How do you approach an Equal Protection question?

(1) What is the classification?
(2) What level of scrutiny is applied?
(3) Does the law meet the level of scrutiny?


What level of scrutiny is used to analyze government classifications based on race?

Strict scrutiny.


How do you prove the existence of a classification based on race for purposes of an Equal Protection challenge? (2)

Two ways:
(1) Classification on the face of the law.
(2) Discriminatory intent + discriminatory impact


Under Equal Protection, what are the rules for numerical "set asides" for racial minorities? (2)

Must show:
(1) Clear proof of past discrimination, and
(2) system is designed to remedy, not hold.


What are the rules on Affirmative Action policies? (3)

(1) No quotas
(2) Can't add "points"
(3) Must show there is no race neutral alternative (meet strict scrutiny)


What level of scrutiny is used to analyze gender classifications?

Under Equal Protection:
intermediate scrutiny + "exceedingly persuasive justification"


How do you prove that there is a gender classification? (2)

Two ways:
(1) classification on the face of the law
(2) discriminatory intent + discriminatory impact


What a law has a discriminatory impact based on gender, but no discriminatory intent?

Use rational basis analysis


What are the rules on gender classifications that benefit women? (2)

If based on gender stereotypes, not allowed.

If remedial to past discrimination, allowed.


What level of scrutiny is used to analyze classifications based on alienage? (3)

(1) State/local govs: strict scrutiny
(2) Except:
-rational basis for classifications based on self-government & democratic process (voting, juries, being police officer, teacher, probation officer)

(3)Fed Gov: rational basis


What level of scrutiny is used to analyze laws regarding undocumented alien children?

Intermediate scrutiny.


What are the rules regarding classification of non-marital children? (2)

(1) Intermediate scrutiny used
(2) Laws denying benefit to all nonmarital children and granting to all marital children violate US Con.


What common classifications are analyzed using the rational basis test? (5)

(1) age discrimination
(2) disability discrimination
(3) wealth discrimination
(4) economic regulations
(5) sexual orientation discrimination


What types of Free Speech restrictions are there?

(1) Content-Based Speech Restrictions
-(a) subject matter restriction
-(b) viewpoint restriction
(2) Content-neutral Speech Restrictions


What level of scrutiny is used to challenge content- based speech restrictions?

Strict scrutiny


What level of scrutiny is used to challenge content-neutral speech restrictions?

Intermediate scrutiny


What are the rules on prior restraints on free speech? (3 + 3)

(1) Strict scrutiny is used
(2) Procedurally proper court orders must be followed until they are vacated or overturned (or else challenge is barred)
(3) License requirements:
-(a) must have an important purpose
-(b) clear criteria for getting it
-(c) almost no discretion
-(d) procedural safeguards (prompt determination & judicial review)


When is a law overly vague in restricting free speech?

A law is unconstitutionally vague when a reasonable person cannot tell what speech is prohibited and what speech is allowed.


When is a law overly broad in restricting free speech?

A law is unconstitutional if it regulates substantially more speech than the constitution allows to be regulated.


What are the requirements for a government regulating symbolic speech (conduct that conveys message)? (2)

Requirements: (very close to strict scrutiny)
(1) important government interest unrelated to the suppression of the message, and
(2) impact on communication is no greater than necessary to achieve that purpose


What are some examples of Symbolic Speech free speech challenges and rules? (4)

(1) flag burning is constitutionally protected
(2) draft card burning is not protected
(3) local gov may prohibit nude dancing
(4) contribution limits in campaigns are constitutional, but expenditure limits are unconstitutional


What is the rule on anonymous speech?

Anonymous speech is constitutionally protected


When can the government punish speech for "incitement of illegal activity"? (2)

(1) Substantial likelihood of imminent illegal activity, and
(2) speech is directed toward causing the imminent illegality


What is the test for determining whether something is Obscenity? (3)

(1) material must appeal to the "prurient interest" (community standard)
(2) material must be patently offensive under the law prohibiting obscenity (community standard)
(3) taken as a whole, the material lacks serious redeeming artistic, literary, political, or scientific value (national standard)


Is profane/indecent speech constitutionally protected?

Yes, except:
(1) over broadcast
(2) in schools


What level of scrutiny is generally applied to regulations on commercial speech?

Intermediate scrutiny.


What types of commercial speech are not protected? (2)

(1) Ads for illegal activity
(2) False/deceptive ads


What are the rules on free speech regarding the advertisement of professionals? (3)

(1) Gov can prevent professional from practicing under a trade name
(2) gov can stop attorneys from soliciting in-person for profit
(3) gov cannot stop accountants from soliciting in-person for profit


What is the standard for a Public Official/Candidate to recover damages for defamation/IIED? (3)

(1) Clear and Convincingly show:
(2) falsity of statement, and
(3) Actual malice


What is the standard for a Public Figure to recover damages for defamation/IIED? (2)

Must show:
(1) falsity of statement, and
(2) actual malice


What is the standard for a Private Figure to recover damages for defamation/IIED relating to a matter of public concern?

Must show:
(1) falsity of statement
(2) negligence by the ∆
(3) Or actual malice, for presumed/punitive damages


What is the standard for a Private Figure to recover damages for defamation/IIED relating to a matter that is NOT of public concern?

Same as for matters of public concern, but may recover presumed/punitive damages w/o showing actual malice.


Can government impose liability on media outlets for broadcasting illegally intercepted calls?

NO, if:
(1) media did not participate in the illegality, and
(2) the matter is of public importance


What protections are there for government employees?

Speech on the job in performance of duties is NOT protected.


What are the different location classifications for speech? (5)

(1) Public Forum
(2) Designated Public Forums
(3) Limited Public Forums
(4) Non-public forums
(5) Private Property


What is a Public Forum? (2)

(1) Public forums are properties that the government is constitutionally required to make available for speech.
(2) Examples: sidewalks, parks


What are the requirements for the government to regulate speech in at a public forum location? (6)

(1) SM & Viewpoint Neutral, or meet strict scrutiny
(2) Time, manner, place, restriction
(3) serves important government purpose
(4) is narrowly tailored to that purpose
(5) leaves open adequate alternative places for communication
(6) no discretion in setting permit fees for public demonstrations


What is a designated public forum?

(1) Government properties that the gov could close to speech, but chooses to open to speech.


What is a limited public forum?

Government properties that are limited to certain groups or subjects for speech.


What are the requirements for government regulation of limited public forums? (2 + ex)

Regulations must be:
(1) Reasonable, and
(2) viewpoint neutral
Ex: not allowing political ads on sides of city buses


What is a non-public forum? (2+3)

(1) Properties that the government can and chooses to close to speech
(2) Examples:
-(a) military bases
-(b) airports (partially)
-(c) sidewalks on Post Office property


What free speech rights exist on private property?

There is no 1st Amendment right of access to private property for free speech.


What level of scrutiny must be met to regulate freedom of association?

Strict scrutiny.


What are the requirements the gov must meet to punish somebody for association? (3)

Gov must prove that person:
(1) actively affiliated w/ group
(2) knowing of its illegal activities, and
(3) acted w/ specific intent of furthering those illegal acts


What is the level of scrutiny that must be met for requiring disclose of group members?

Where it will chill association, must meet strict scrutiny.


Can the government prohibit discrimination for private group membership? (3)

(1) Yes, unless:
(2) interferes w/ intimate association (think dinner party), or
(3) interferes w/ expressive activity (think neo-nazis)


When does the Free Exercise Clause apply?

Doesn't apply to neutral laws of general applicability. (no intent to restrict religion)


What level of scrutiny must a restriction on religion meet? (2)

(1) If law is not neutral or of general applicability,
(2) must meet strict scrutiny.


What are the rules for a person who quits his job for religious reasons?

Gov can't deny benefits to individuals who quit jobs for religious reasons.


What is the test for challenges to a law under the Establishment Clause?

(1) must be a primary secular purpose for the law
(2) effect must neither advance nor inhibit religion
(3) Must not be excessive entanglement


What level of scrutiny must a law meet to discriminate against religious speech or religions?

Strict scrutiny.


What are the rules about religious activities in public schools?

(1) school sponsored religious activity is unconstitutional
(2) no prayers in school - even silent
(3) Religious groups must have equal access to school facilities as non-religious groups


May the government assist religious parochial schools?

Yes, so long as it isn't used for religious instruction.


May a citizen bring an action alleging that a federal action violates the 10th Amendment by interfering with powers reserved to the states?

Yes, a person may have standing to allege a violation of the 10th Amendment if the person has a redressable injury in fact.


What constitutes "adequate and independent" state grounds for deciding a case? (2)

(1) Adequate = dispositive of the case
(2) Independent = decision is not based on federal case interpretations of identical federal provisions


When will a federal court temporarily abstain from resolving a constitutional claim?

When the disposition rests on an unsettled question of state law.


How do we know if the 11th Amendment applies, and thus bars a federal court from hearing a case? (2)

(1) A state is a named party, or
(2) the state will have to pay retroactive damages


Can Congress remove 11th Amendment immunity as to actions created under the 14th Amendment?

Yes, but it must do so in unmistakably clear language.


What does the Necessary and Proper Clause do?

Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.


Does the Commerce Clause grant Congress the power to regulate inactivity?

No, Congress does not have the power to compel activity.


What are Congress's War Powers? (3)

(1) Declare War
(2) Raise and Support Armies
(2) Provide for and Maintain a Navy


May state or federal courts review court-martial proceedings?

No, these proceedings fall under Congress's War Powers.


Who may be tried by military courts? (3)

(1) Enemy civilians and soldiers
(2) American soldiers, who commit or are charged with offenses while a member of the armed forces
(3) American civilians if actual warfare forces federal courts to shut down


Who may make laws for Bankruptcy?

Both Congress and states, so long as state laws do not conflict with federal laws.


What rights do resident aliens have prior to deportation? (2)

(1) Notice, and
(2) a hearing


May states create laws over naturalization and denaturalization?

No, Congress has exclusive power of this.


What does the Speech and Debate clause do?

Conduct that occurs in the regular course of the federal legislative process and motivation behind that conduct are immune from prosecution.


Are republications in a press release or newsletter of defamatory statements originally made in Congress protected by the Speech and Debate Clause?

No, only stuff that actually occurs during the legislative process.


If the President vetoes an act of Congress, may it still become a law?

Yes, if each house votes by 2/3.


What happens if a bill sits with the President for 10 days w/o any action?

If Congress is not in session, bill dies.
If Congress is in session, bill becomes law.


How does the Senate "consent" to a Treaty?

By 2/3 vote.


Which classifications are "suspect," and what does this mean?

Race, National origin, and State laws regarding aliens.

This means that the laws are analyzed under strict scrutiny.


What type of analysis are federal laws regarding aliens subject to?

Such classifications are valid if they are not arbirtary and unreasonable.


What are the "quasi suspect classifications," and what does this mean?

Gender and legitimacy classifications.

These are subject to intermediate scrutiny.


List the fundamental rights: (4)

(1) Right to interstate travel
(2) Right to Privacy
(3) Right to vote
(4) First Amendment Rights


What level of scrutiny do courts use while analyzing laws regarding Fundamental Rights?

Strict Scrutiny


What is the difference between Equal Protection claims and Substantive Due Process claims?

Equal Protection: violates some people's rights
Due Process: violates everyone's rights.