Con Law MC Flashcards
(131 cards)
1
Q
A taxpayer has standing when
A
Generally no standing.
However, a taxpayer does have standing to (1) litigate whether, or how much, she owes on her tax bill; or (2) challenge specific legislatively authorized expenditure under tax/spend power that violate 1A Establishment Clause.
This exception doesn’t apply to (no standing):
- property transfer by congress to religious org under Property Power
- expenditures to religious org made by President from general discretionary fund
- tax credit for student tuition orgs that provide scholarships for private schools (including religious)
2
Q
The taxing and spending clause has been broadly interpreted to give Congress the power to
A
spend for the general welfare—i.e., for any public purpose—not just to carry out its other enumerated powers.
3
Q
Ex post facto clauses apply to _______ and prohibit….
A
fed (art 1, sec 9) + state gov’t (art 1, sec 10)
Prohibit enactment of retroactive criminal laws that:
- criminalize previously legal conduct (at time act committed)
- impose greater punishment than previously prescribed
- eliminate previously available defenses
- decrease prosecution’s previous burden of proof
**this clause generally does not apply to civil laws because their purpose is nonpunitive. However, a civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.
4
Q
factors to determine whether retroactive civil law violates ex post facto clauses:
A
cts weigh whether the law:
- imposes an affirmative disability or restraint (e.g., imprisonment)
- has historically been regarded as punishment (e.g., public shaming)
- promotes the traditional aims of punishment (e.g., retribution)
- is rationally related to its nonpunitive purpose (weighed most heavily!)
5
Q
Heightened equal protection review is appropriate when a law _______ against _______ .
A
intentionally discriminates—on its face, in its application, or in its motive—
a quasi-suspect or suspect class.
6
Q
T/F - laws that distinguish on citizenship trigger heightened scrutiny
A
(1) False for Fed (5A). federal laws based on U.S. citizenship are presumptively constitutional (national origin discrimination does!); To rebut this presumption challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.
(2) True for State (14A EPC). Citizenship is a suspect class so presumptively unconstitutional unless survives strict scrutiny (necessary - ie least restrictive means - to achieve a compelling state interest.
7
Q
How rebut presumption that fed laws based on US citizenship are presumptively constitutional:
A
To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, a challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.
8
Q
The equal protection component of the Fifth Amendment requires federal laws based on U.S. citizenship to satisfy ___ scrutiny.
A
rational basis
9
Q
Since a public employee who can only be terminated for cause has a property interest in such employment—and termination is a serious deprivation of that interest—due process requires that the employee receive:
A
notice of his/her alleged misconduct
a pre-termination opportunity to respond to that allegation
and
a post-termination evidentiary hearing to determine if the termination was warranted.
10
Q
public employee suspended without pay - DP requirements?
A
Notice of alleged misconduct
Prompt post-suspension evidentiary hearing
11
Q
Tenth Amendment, prohibits Congress from commandeering who for what purpose?
A
state or local governments by requiring them to enforce federal laws (or enact state or local laws).
12
Q
The First Amendment freedom of the press
A
generally prohibits the government from restricting the right to publish lawfully obtained, truthful information about matters of public significance. A government action that abridges this right is presumptively unconstitutional and must survive strict scrutiny.
also - media shielded from crim or civil liability for publishing lawfully obtained private facts and other truthful info involving matters of public concern (ie newsworthy - eg NFL player lewd public behavior)
13
Q
can a ct issue gag order to prohibit press from reporting about court proceedings to protect identity of witnesses or to not thwart ongoing investigations?
A
no. the First Amendment generally guarantees the press and the public the right to attend every stage of a criminal trial.
However, this right is not absolute, and a court can order that trial proceedings be closed if the court’s findings on the record demonstrate that the closure withstands strict scrutiny.
14
Q
regulatory taking occurs when the government:
A
deprives an owner of all economically beneficial use of the property but the owner retains possession.
or
substantially restricts the use of private property, based on the totality of the circumstances including:
- the character or nature of the government action—i.e., the degree to which the regulation benefits the public versus the degree to which it violates the owner’s property rights (like selling property to third parties)
- the economic impact on the property—e.g., the change in the property’s fair market value caused by the regulation—and
- the interference with the owner’s reasonable investment-backed expectations regarding the use of the property
15
Q
Civil laws that retroactively impair the right to raise the statute of limitations as a defense must undergo
A
rational basis scrutiny
16
Q
Fundamental rights list and what level of scrutiny?
A
(First VIP)
- First Amendment freedoms
- Voting
- Interstate travel
- Privacy
Marriage / family (eg related persons’ right to reside together in single household)
Parental rights
Sexual acts
Contraceptives
(also MC says right to appeal is fundamental; and that prohibiting fundamental right based on wealth gets strict scrutiny)
Strict scrutiny
17
Q
Substantive due process violation happens when there is _________. How analyze?
A
Deprivation of life, liberty, or property impacts ordinary right or fundamental right
Ordinary - challenger must show RBT (economic, employment, education, social welfare); fundamental right (1A, Voting, /interstate travel, Privacy) gov’t must show SS
18
Q
Stogner v. California. In that case, the U.S. Supreme Court held that a change in the relevant statute of limitations that resulted in the revival of a prosecution (criminal punishment) for sexual abuse for which the statute of limitations had expired [did / did not] constitute an invalid ex post facto law.
A
did constitute invalid ex post factor law
19
Q
Enumerated congressional powers
A
- Taxing & spending
- Interstate & foreign commerce
- War, armed forces, militia
- Coin & borrow money
- Immigration & naturalization
- Copyright & patent laws
- Federal courts
- District of Columbia
- Bankruptcy
- Rules concerning captures
20
Q
militia clauses. ___ has power to _____
A
Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.
21
Q
Freedom of association. Infringing upon right to associate barred unless:
A
necessary to achieve compelling interest
22
Q
The government can interfere with the First Amendment freedom of association by punishing (i.e., deny public employment to or criminally prosecute) persons who
A
(1) are active members of a subversive organization, (2) know of the organization’s illegal objectives, and (3) specifically intend to further those objectives.
23
Q
Requiring loyalty oath for public employment permitted unless:
A
overbroad – infringes on constitutionally protected behavior or
vague – reasonable person would not understand oath
24
Q
Freedom of association: Forced inclusion. Interfering with organization’s discriminatory policy barred unless:
A
no significant burden on organization’s mission and
necessary to achieve compelling interest
25
freedom of association...
Imposing restriction on electoral process ok?
ordinary – permitted if rationally related to legitimate interest
severe – barred unless necessary to achieve compelling interest
26
Nonjusticiable political questions
Recognition of foreign governments
Reception of ambassadors
Nature of wars/hostilities
Partisan gerrymandering
Guarantee of republican form of government
Recognition of Native American tribes
House/Senate rules for impeachment
Ratification process for constitutional amendments
27
The political-question doctrine prevents federal courts from hearing a case if
it presents issues that (1) are reserved for the executive or legislative branch or (2) lack judicially manageable standards for resolution.
28
ministerial exception
protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles. This exception applies to any employee whose primary function is to advance the organization's religious mission (e.g., pastor, parochial school teacher).
29
laws of general applicability definition
Religious organizations typically must comply with laws of general applicability—i.e., laws that apply equally to all regardless of their religion.
30
First Amendment prohibits the government from engaging in ________ against speech. Censorship on that basis will be upheld only if it can survive ______.
content-based discrimination
- If traditional public forum or designated public forum, content based regs prohibited
- if nonpublic forum (which means other public property not in those two above), content based regs permitted if viewpoint-neutral
strict scrutiny for traditional and designated (for designated purpose)
RBT for nonpublic or designated (if used for unintended purpose)
31
Traditional public forums
Public property historically used for, or associated with, public speech (eg, streets, sidewalks, parks)
Content-based regulations prohibited
32
Designated (limited) public forums
Public property opened for specific types of expression (eg, school classrooms, civic auditoriums)
Content-based regulations prohibited
33
Nonpublic forums
Public property that's not trad public or designated/limited public forum
Content-based regulations permitted if viewpoint-neutral
34
No 11A immunity
Suit brought by United States or other state
Suit against local government (eg, counties, municipalities)
Bankruptcy proceedings
Eminent domain proceedings
Suits permitted by Congress pursuant to its powers over war & armed forces
35
11A Immunity from
Suit brought by private party or foreign government
Suit against state official violating state law
Exceptions:
- State consents to suit
- Immunity removed by 13th, 14th, or 15th Amendment
- State official sued for injunctive or declaratory relief for alleged constitutional violation
- Damages to be paid by state officer personally (not state treasury)
- State official sued for prospective (not retroactive) damages to be paid by state treasury
36
Younger abstention
applies when declaratory or injunctive relief is sought in federal court. This doctrine requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:
involves an important state interest and
provides an adequate opportunity to litigate the federal issue(s).
**Only certain civil proceedings qualify for Younger abstention, including enforcement proceedings akin to a prosecution (e.g., termination of parental rights) and proceedings that further a state court's ability to perform judicial functions (e.g., contempt).
37
Exceptions to Younger abstention
Bad faith prosecution
Patently unconstitutional state law (facial challenge)
State consents
or
Immediate and irreparable harm
38
State laws that discriminate against individuals based on wealth are generally subject to
rational basis scrutiny. But strict scrutiny will be used when a state law prohibits the exercise of a fundamental right based on an individual's wealth.
39
The Fourteenth Amendment due process clause requires
that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property.
40
judge must recuse him/herself from a case when____________. if he doesn't, it violates __________.
(1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists. A failure to do so violates due process.
41
t since SCOTUS may only review such judgments if they are based on federal law, it cannot review a judgment based on adequate and independent state grounds. This occurs when:
state law fully resolves the matter, so the outcome of the case is not affected by federal law (adequate) and
the state court did not rely on federal law to reach its decision (independent).
42
A federal court may refuse to hear a case on prudential-standing grounds when the plaintiff seeks to
litigate the claims of third parties or claims shared by all or a large class of citizens (i.e., generalized grievances)
43
Abstention types
Pullman: Resolution of unsettled state law in state court would moot federal constitutional issue
Burford: Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy & provides timely & adequate judicial review
Colorado River: Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources
Younger: Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims
44
enclave clause
gives Congress plenary (i.e., exclusive) legislative power over the District of Columbia.
45
The taxing and spending clause gives Congress the power to
tax and spend for the general welfare (i.e. any public purpose).
Can impose
- Direct taxes (on person or property) - must be apportioned evenly among states and Reasonably related to revenue raising
- Indirect taxes (sales, excise, income) - uniformly applied in every state and Reasonably related to revenue raising
CANNOT impose export taxes (goods or services leaving US; services and activities closely related to export) - UNCONST
Spnding:
- funds must be spent for general welfare
- Conditions must (1) clear; (2) reasonably related to fed interest; (3) not req unconstitutional activity; and (4) not unduly coercive
46
export clause
prohibits federal taxation of:
exported goods, which are goods leaving the U.S. and shipped to foreign countries
and
services and activities closely related to the export process.
47
Article IV full faith and credit clause
states have a duty to respect the public acts, records, and judicial proceedings of other states. This requires state courts to recognize and enforce decisions rendered by a court in another state when:
that court had personal jurisdiction and subject-matter jurisdiction
the case was decided on its merits and
a final judgment was entered.
48
Permissible race-based affirmative action
Richmond v. J.A. Croson Co.: Minority set-asides for government employment/contracts
- Can only survive strict scrutiny if gov proves
(1) it has a compelling interest in remedying its *own* history of discrimination against the favored group and
(2) the discriminatory program is necessary because race-neutral methods are unavailable or insufficient to further that interest.
Freeman v. Pitts
- Race-based student assignments in public elementary/high schools
- Gov't interest: Remedying past intentional racial segregation in public schools
49
Constitutional amendments (excluding the Thirteenth Amendment) only apply to government actors. But a private actor can be treated as a government actor and be subject to the Constitution under the state-action doctrine. This doctrine applies when:
a private actor performs a traditional and exclusive government function (eg running elections)
or
the government is significantly involved in the private actor's activities.
50
Significant government involvement under state action doctrine
Government & private actor have mutually beneficial relationship (eg, joint activity or venture)
Government creates nexus by affirmatively facilitating or authorizing private action (eg, police officer acting under color of law)
Government is pervasively intertwined in private entity's management or control
51
________ requires that _____ not be the predominant factor used to draw boundaries for state or fed legislative districts. If it is, subject to _______
Fourteenth Amendment equal protection clause requires that race not be the predominant factor used to draw boundary lines for state or federal legislative districts.
If it is, then the boundary lines will be subject to strict scrutiny review and likely deemed unconstitutional.
52
In civil forfeiture actions, the government
deprives an individual of his/her property interest by seizing property allegedly used in criminal activity.
53
To determine whether real property may be seized by the government prior to providing notice and a hearing, the court must
balance three factors
1. the private interest affected by the deprivation
2. the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards
and
3. the government's interest, including the fiscal and administrative burdens that other safeguards would entail.
53
what is a taking and what does 5A require?
- A taking occurs when the government destroys private property (real or personal prop) or property rights—including possessory (eg leaseholds) and nonpossessory interests in land (e.g., easements, liens).
- under the Fifth Amendment, a taking must be for a public use (e.g., fighting forest fires), and the government must justly compensate the owner for the property's fair market value.
53
Procedural DP requirements timing flexible for seizure of personal property when:
Personal property may be seized prior to providing notice and a hearing for civil forfeiture (allegedly used in crim activity) when:
(1) the seizure serves a significant government interest;
(2) that interest would be frustrated by advance notice of the seizure; and
(3) the seizure is performed by the government.
54
procedural due process for civil forfeiture actions generally
Also, two types to look out for
procedural due process generally requires that the government provide reasonable notice of the seizure and a meaningful opportunity to be heard before a neutral decision-maker.
See details for personal property v real property
55
5A Takings - types and attributes
1. Physical (possession or permanent physical invasion of property)
2. Regulatory (deprivation of all economic beneficial uses OR restricts use under totality of circumstances - character of gov action, econ impact, reasonable investment-back expectations)
3. Exaction (condition to obtain building / development permit)
4. Destruction (destruction of property or property interests (eg, easements, liens - like lien on a plane that gov't gets and can't sue gov't bc sov immunity)) ---- Exceptions for just comp: public peril
56
Political questions doctrine
A federal court will not rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two
branches of government.
A political question not subject to judicial review arises when:
i) The Constitution has assigned decision making on this subject to a different branch of the government; or
ii) The matter is inherently not one that the judiciary can decide.
57
Examples of political questions and example of NOT political question
Details of Congress’s impeachment procedures (constitutionally assigned to a branch other than the judiciary) and the President’s
conduct of foreign affairs (not within judicial competence) are examples of political questions.
Compare: The political question doctrine does not bar courts from adjudicating the constitutionality of a federal statute directing that an
American child born in Jerusalem is entitled to have Israel listed as her place of birth in her U.S. passport. The Court held that the Constitution
did not commit the issue to another branch of government and resolving the case would involve examining “textual, structural, and historical
evidence” concerning statutory and constitutional provisions, something within judicial competence.
58
To satisfy RBT law must _____
rationally relate to a legitimate government interest
(can't disadvantage group solely based on animus)
59
Equal protection challenge for U.S. citizenship (discriminates against resident noncitizens) - what kind of scrutiny?
Federal Law (5A)
- Rational basis (rationally related to legit state interest)
State law (14A)
- Strict Scrutiny (default) (necessary to achieve compelling state interest)
- Political functions exception (when law excludes noncitizen from gov function that would allow either (1) direct participation in formulation, execution, or review of broad public policy; or (2) exercise of broad discretion) - then Rational Basis Test
60
strict scrutiny test is applied if
a fundamental right or a suspect classification is involved.
The suspect classifications are race, ethnicity, national origin, and, if the classification is by state law, citizenship status.
61
First Amendment freedoms
Expression: Right to communicate information & ideas through speech or conduct
Association: Right to form or participate in any group or organization
Press: Right to publish truthful information
Religion: (1) Free exercise – right to practice religion or no religion without government interference; (2) Establishment – prohibits government from favoring particular religion or religion generally
62
Media's criminal and civil liability under 1A
The First Amendment shields the media from criminal and civil liability for publishing lawfully obtained private facts (e.g., crime victim's identity) and other truthful information involving matters of public concern (i.e., newsworthy events).
This amendment also shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if:
(a) the information involves a matter of public concern
AND
(b) the publisher neither obtained it unlawfully nor knows who did.
63
Nondelegation doctrine
The nondelegation doctrine prohibits Congress from delegating its exclusive legislative powers (e.g., making or repealing laws, declaring war, impeaching fed officers).
But Congress can delegate its incidental powers (e.g., rule-making, carrying out leg, enforcing regs) to agencies in the executive branch if it provides an intelligible principle to guide the agency—i.e., a clear statement defining:
(1) the policy Congress seeks to advance (e.g., improve the treatment of prisoners in the federal prison system)
(2) the agency to carry out that policy (e.g., the Federal Bureau of Prisons) and
(3) the scope of that agency's authority (e.g., issue regulations that reform the hiring requirements in the federal prison system).
64
Spending clause conditions must meet these criteria:
1. clearly stated & unambiguous
2. reasonably related to federal interest in funded program
3. do not require states to engage in unconstitutional activity
AND
4. do not unduly coerce states into accepting
65
can state tax or regulation be imposed on fed gov?
Generally no for direct taxes:
- Under the supremacy clause, the federal government is immune (i.e., exempt) from any direct taxation by the states—including taxes on its commercial activities.
- As a result, states may not impose taxes on the federal government, or any of its agencies or instrumentalities, UNLESS: express consent of Congress.
Indirect tax/regulation (affiliate of fed gov - eg employee, contractor)
- must comply with state tax/reg UNLESS (a) Congress grants immunity OR (b) discrimination against fed gov or affiliate OR (c) substantial interference with affiliate's federal purpose or duties - eg high tax makes it impossible to accomplish
66
Unconstitutional state alcohol regulations and examples
Dormant commerce clause: Permitting only in-state businesses to ship alcohol to in-state consumers
Free speech clause: Banning advertisements featuring price of alcohol
Establishment clause: Granting churches power to veto liquor license applications for businesses within 500-foot radius of church
Equal protection clause: Permitting alcohol sales to females at age 18 but not to males until age 21
67
Twenty-first Amendment
grants states broad authority to regulate the use of alcohol within their borders. This authority permits a state to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).
68
import export clause
The import-export clause generally prohibits state taxation of imported goods unless Congress consents or the tax is absolutely necessary for the state to execute its inspection laws.
69
elections clause
The Article I, section 4 elections clause grants state legislatures the power to enact laws that regulate the time, place, and manner of [fed] congressional elections (e.g., by establishing voting sites).
But the clause also grants Congress the power to override those state laws by supplanting them with federal law (except as to the Places of chusing Senators??)
70
what kind of voting regulations can Congress override?
Congress can only override state laws that regulate [fed] congressional elections (as seen here). It cannot override state laws that only regulate state or local elections
71
can a state regulate voting in state elections? fed elections?
The state can limit state and federal voting practices, provided that the limitations comply with other constitutional provisions (e.g., the elections clause).
72
State-election restrictions and test
Ordinary (nondiscrim) restriction
- Ex: Voter reg; photo-ID req; disallowing write-in voting
- Test: RBT (challenger must show restriction lacks rational relation to legit state interest)
Severe (discrim)
- Ex: poll tax; disallowing third-party candidacies; property ownership req
- Test: Strict Scrutiny (state must show restriction is necessary to acheive compelling state interest)
73
Appointment of federal officers
Principal
- Ex: Ambassador, SCOTUS justice, Cabinet official
- Appointed by President (with Senate approval)
Inferior
- Ex: independent counsel, judicial clerk, administrative law judge
- Appointed by president (with Senate approval) UNLESS Congress delegates appt to: President alone, fed courts, or heads of exec departments
74
Congress ___ appoint commission members with administrative and enforcement powers because _____.
CANNOT
because the appointments clause prohibits Congress from appointing federal officers—i.e., persons who have significant discretionary authority to administer and/or enforce laws.
75
What kind of education regulations can state impose?
states may impose *reasonable* educational standards on public and private schools—including homeschooling—that:
1. require children to attend school—e.g., by specifying the number of hours of educational instruction a child must receive during an academic year
2. establish minimum competency requirements for instructors—e.g., by requiring them to possess at least a high school diploma and
3. define academic curriculum and content—e.g., by specifying the academic subjects that must be taught.
76
Commerce power to regulate activities that substantially affect interstate commerce - when is it proper
To determine if Congress can regulate, consider whether:
- activity is economic in nature (then substantial effect presumed)
- jurisdictional element limits reach to activities with direct connection to interstate commerce
- express congressional findings that activity substantially affects interstate commerce and
- strong link between activity & effect on interstate commerce
77
origination clause
any federal legislation that raises revenue (i.e., taxes) must originate in the House of Representatives.
78
_______ do not make private conduct state action
state funding (however substantial) or licensing does not make private conduct state action
79
Unconstitutional legislative veto
Once Congress delegates power to an executive agency, it cannot interfere with the agency's functions without satisfying the legislative-action process—i.e., bicameralism and presentment. Any attempt to bypass this process is an unconstitutional legislative veto.
80
Federal leg process (requirements for leg action)
1. Bill proposed in Congress
2. Bicameralism (Bill passes both houses of C)
3. Presentment (president signs bill, vetos bill or takes no action)*
*if president vetos bill, Congress can override with two-thirds vote (in both houses)
*if Pres takes no action on bill, bill becomes law after 10 days elapse during session
81
Exceptions to dormant commerce clause
Congressional authorization; state as market participant; subsidy, traditional gov't function
(but must still comply with other const provisions like 14A EPC which subjects to rbt at least)
82
T/F - promoting in-state business by discriminating against out-of-state business is a legitimate government interest.
F
(came up in context of state tax that violates dormant CC that was explicitly authorized by congress) Fails RBT
83
Dormant commerce clause analysis
If state law favors in-state over out-of-state econ interest
1. If discriminatory law: must pass strict scrutiny (ie state or local action that discriminates against interstate commerce violates the dormant CC unless (1) it furthers a legitimate, noneconomic state or local interest and (2) no nondiscriminatory alternative exists.)
2. If non-discriminatory law: undue burden test - burden on commerce clearly exceeds local benefits
There are also other exceptions (congressional auth, state as market participant, subsidy, trad'l gov function) that make laws that fail above still constitutional
**but note still must pass other const provisions like EPC
84
dormant commerce clause
prohibits states from (1) discriminating against out-of-state commerce or (2) otherwise unduly burdening interstate commerce
85
A discriminatory state law—i.e., one that favors in-state over out-of-state econ interests—will be deemed unconstitutional unless the state proves that:
(passes strict scrutiny)
the law furthers an important or legitimate noneconomic state interest (e.g., health, safety) and
there is no reasonable, nondiscriminatory alternative to achieve that interest.
86
Can Congress revoke US citizenship?
14A prohibits Congress from revoking citizenship of any US citizen without his consent unless that citizenship was obtained by fraud or in bad faith.
87
Federal officers are those that _______. They must be appointed by _____.
Federal officers (1) hold a continuing public office and (2) have significant discretionary authority to administer and/or enforce laws (i.e., executive powers). They must be appointed by the President or in a manner otherwise consistent with the Article II appointments clause, which does not permit congressional appointments.
88
Second Amendment is applicable to which levels of gov
fed, state, municipalities
89
Second amendment generally prohibits
government interference with an individual's right to possess and use firearms for a traditionally lawful purpose (e.g., self-defense in one's home).
90
Is 2A an absolute right?
No. certain government restrictions on firearms are permissible, including:
- banning unusually dangerous firearms (e.g., grenades)
- imposing conditions and qualifications on commercial sales of firearms
- forbidding the possession of firearms by felons and mentally ill individuals and
- prohibiting the open carry of firearms in certain areas (e.g., schools) or concealed carry of firearms in public.
91
Every constitutional right applies to states and municipalities except
(1) the Third Amendment ban on quartering soldiers in homes, (2) the Fifth Amendment requirement of a grand jury indictment for capital charges, and (3) the Seventh Amendment guarantee of a civil jury trial.
92
What level of scrutiny for 2A rights?
SCOTUS hasn't said.
Instead, such restrictions must not interfere with a traditionally lawful purpose for possessing and using firearms.
93
Article IV clauses (just names)
Full faith and credit
Privileges and immunities
Property
Guarantee
94
Property clause
gives Congress complete power to dispose of and regulate federally owned land and territories.
This includes power to regulate private property that affects fed public lands when such regulation is necessary to protect those lands.
(does NOT include power to acquire lands - look to spending power)
95
Guarantee clause
Article IV
Federal government must guarantee states republican form of government & protect states from invasion
96
Privileges & immunities
States cannot deny rights of state citizenship to citizens of other states
97
Assessing validity of Presidential actions
1. Valid if President acted pursuant to exclusive Art II power (can exercise unilaterally): nominate principal officers, veto bills, prosecute/pardon fed offenses, communicate/negotiate with foreign gov't, recognize foreign gov't, enter executive agreements
2. If not (ie pres shares auth with Congress like fed agencies), what has Congress done? (Youngstown framework)
- If congress authorized action, likely valid
- If congress remained silent, middle zone
- If congress opposed action, likely invalid
98
Here, the statute prohibits words likely to produce imminent violence or rioting (i.e., fighting words)—but only when they target women or minorities. Since the statute only punishes speech that targets specific groups, it is a _______. Therefore, the statute is ______.
viewpoint-based regulation
UNconstitutional
99
Enabling clause
The Fourteenth Amendment, Section 5 Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones.
Under the separation of powers doctrine, the job of defining such rights falls to the Supreme Court. In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.
Congress may override state government action that infringes upon Fourteenth Amendment rights, but it may not under this amendment regulate wholly private conduct. In the exercise of Fourteenth Amendment powers, Congress can override the Eleventh Amendment immunity of states (if congruence and proportionality is met).
100
suspension clause
Under the Article I suspension clause, a person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ.
This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control (e.g., the noncitizen here).
101
SCOTUS appellate jx
The U.S. Supreme Court has appellate jurisdiction over decisions by (1) lower federal courts and (2) the highest state courts when the decision turns on federal law. (through writ of certiorari or direct appeal - rare)
But the Article III exceptions clause gives Congress the power to expand, regulate, or make exceptions to this jurisdiction.
102
SCOTUS original jx
ambassador/public minister/consul
or
state as party
103
Tenth Amendment
Reserves all powers not assigned to federal government by U.S. Constitution to states/people
Prohibits federal government from requiring states to enact laws or enforce federal laws
Immunizes states from federal taxes that discriminate against states or unduly interfere with essential state functions**
** 10A does not prohibit the federal government from imposing federal taxes on states indirectly through their affiliates—i.e., persons doing business with state governments—so long as the taxes are nondiscriminatory
104
Establishment clause tests
Historical - longstanding tradition & historical foundation (DEFAULT test)***Note: courts may apply strict scrutiny test when the law expressly impacts - benefits or burdens - religion or a specific religion.
Endorsement - no appearance gov endorses religion (eg public displays or monuments)
Coercion - no forced conformity with religious beilef or practce (eg public schools convocation prayer)
105
Constitutional voting-district requirements
"One person, one vote"
Art. I, sec. 2: Congressional elections must be almost exact equality (< 3% variance)
EPC: approx. equal voting power. State and local elections can't have unjustifiably large inequality (10% or less variance)
106
Procedural due process for students at public (state) colleges
When a student is dismissed for disciplinary reasons (e.g., misconduct), due process typically requires that the student receive before dismissal:
- adequate notice of the charges or proceedings against him/her and
- a meaningful opportunity to be heard (e.g., a hearing) before the college's or university's decision-making body.
However, when a student is dismissed for academic reasons (e.g., failure to attain passing grades), a public college or university may do so without providing him/her a meaningful opportunity to be heard.
- this is bc decisions on academic performance are not adversarial (dont require tools of judicial decision making like presentation of evidence)
107
1A regulating speech by public employee
within scope of employment - no 1A right to free speech
speak as private citizen - Yes 1A if speaking about matters of public concern. But gov can regulate content if its interest in *efficient govt function* outweighs the employee's free speech right.
108
For purposes of the First Amendment, speech deals with a matter of public concern when
it relates to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest.
109
The Thirteenth Amendment
(1) prohibits all government and private entities from engaging in slavery or involuntary servitude and (2) sec 2 enforcement clause empowers Congress to enact legislation that eliminates involuntary servitude.
110
A state or local government can act under its broad police power for the purposes of
health, safety, and welfare.
111
Free speech challenges
1. Does law infringe upon challenger's [protected] speech?
If yes: as-applied challenge. Then,
1. If content based --> strict scrutiny
2. if content neutral (time place manner) --> Intermediate scrutiny
If no: facial challenge
1. If overbroad (restricts substantial amount of protected speech) --> invalid
2. If unduly vague (fails to give ordinary person notice of prohibited speech) --> invalid
112
The President [can/cannot[ withhold funds that are subject to a mandatory appropriation. Exceptions:
cannot
no exceptions! like even where the federal military is directly involved.
113
When may scotus exercise appellate jx over state ct decisions
final state court decisions that present a federal question unless they are based on adequate and independent state grounds.
Adequate grounds exist when state law fully resolves the matter, and independent grounds exist when no federal precedent was used to reach the decision.
114
Art III standing - on another's behalf
Organization has standing if:
members have standing to sue on their own behalf
their injuries relate to organization's purpose AND
lawsuit does not require member participation (if damages sought)
THIRD PARTY. Injured plaintiff has standing when:
parties share inextricably close relationship (eg, doctor/patient) AND
obstacle prevents third party from suing (eg, privacy/retaliation concern)
CHILD. Parent has standing unless parental rights have been limited by court OR lawsuit may adversely affect child
ASSIGNOR. An assignee has standing to sue to enforce the rights of the assignor provided that (1) the requirements for standing (injury-in-fact, causation, redressability) are met and (2) the assignment was made for ordinary business purposes and in good faith.
115
comity clause
The Article IV comity (i.e., privileges and immunities) clause generally prohibits states from discriminating against citizens of other states.
116
Fourteenth Amendment privileges or immunities clause
bars states from depriving individuals of the rights of national citizenship
117
Equal protection principles apply to the federal government through
the Fifth Amendment due process clause.
118
Additional notes on intermediate scrutiny for gender discrimination cases
The U.S. Supreme Court has required the government to show an "exceedingly persuasive justification" in some gender discrimination cases, which may bring the standard closer to strict scrutiny.
For "substantially related" look to underinclusive / overinclusive methods
119
Standing for declaratory jugment
Article III's case-or-controversy requirement prohibits federal courts from issuing declaratory judgments unless the dispute presents a real and immediate danger to a party's interests. Otherwise, DJ would amount to an impermissible advisory opinion.
(example: Here, the volunteer sought a declaratory judgment that the state statute prohibiting the placement of campaign signs within 100 feet of polling locations was unconstitutional. But the statute does not present a real and immediate danger to the volunteer because there is no indication that it actually poses a present or future harm to her.)
120
Necessary and proper clause
The necessary and proper clause allows Congress to take actions that are reasonably necessary to carry out its enumerated Article I powers AND to enact laws that carry out the President's express powers.
121
The government can provide indirect funding to religious institutions if
the funding program comports with historical practices and understandings of the establishment clause—i.e., when the primary effect is secular and the funding flows to religious schools through individual, not government, choice.
122
federal immunity from suit
Suit brought by state, private party, or foreign government against federal agency or official for actions taken in official capacity (unless Congress consents) - in fed or state ct
Exception:
Suit against federal official for actions taken outside official capacity (congressional consent not required)
123
Strict scrutiny suspect classes
The strict scrutiny test is applied if a fundamental right OR a suspect classification is involved. The suspect classifications are race,
ethnicity, national origin, and, if the classification is by STATE LAW, citizenship status (state law discriminating against non-citizens gets strict scrutiny UNLESS on participation in government functions, e.g., voting, jury service, hired as police, prob. officers, public school teacher).
Under states, undocumented noncitizens are not a suspect class, but (1) the states may not deny primary or secondary public education benefits to
undocumented noncitizens.
124
exceptions to mootness
harm is capable of repetition yet evading review; or D voluntarily stops the challenged action but can resume it any time
125
Contracts clause
Prohibits state and municipal legislatures from enacting laws that substantially impair vested K rights. (does not apply to amendments to employee benefit plans - bc not lawmaking or rulemaking)
Private K (more deference to state) - state law invalid unless (1) impairment is reasonable & narrowly tailored* (2) to achieve significant & legitimate public purpose
*ie, necessary due to unforeseeable circumstances and
no less-restrictive alternative
126
Free exercise analysis
Direct burden (intentional): strict scrutiny
Incidental burden (generally applicable and religiously neutral): RBT*
*but even incidental burden will trigger strict scrutiny when the law requires an individualized assessment (single out religious reasons) of a person's actions
127
when are congressional vetos constitutional?
congressional vetoes are always invalid since they attempt to overturn agency actions without adhering to the proper method for legislative action - i.e. any action that alters legal rights of persons outside of the legislative branch (bicameralism and presentment)
128
speech is considered obscene when it
- appeals to the prurient interest (ie shameful or morbid interest in sexual matters)
- depicts sexual conduct in a patently offensive way and
- lacks serious literary, artistic, political, or scientific value
first two eval-ed under contemporary community standards; third element under national standard
(mere portrayals of nudity are never obscene)
129
