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BAR Prep > ConLaw > Flashcards

ConLaw Flashcards

1
Q

Dormant Commerce Clause- Discriminatory Test

A

Important Non-Economic interest
No less discriminatory alternatives

Exceptions: Market participant or Congress approval

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2
Q

Judicial Branch Powers

A

Hear cases involving the interpretation of the Constiution, federal laws , treaties, admiralty and maritime laws; and disputes between states and other states, foreign citizens or citizens from different states.

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3
Q

Judicial Powers - Essay Headings

A

Supreme Court
Original Jurisdiction
Appellate Jurisdiction
Final Judgement Rule

Lower Federal Courts
Sovereign Immunity
Abstention

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4
Q

Federal Executive Powers - Essay Headings

A

Foreign Policy
Treaties
Executive Agreements
Executive Orders
Military Powers

Domestic Powers:
Presidential Immunity
Executive Privilege
Pardoning Power
Appointment Power
Removal Power
Impeachment and Removal

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5
Q

Federal Legislative Powers - Essay Headings

A

Enumerated and Implied Power
Federal Police Power
10th Amendment
Section 5 of the 14th Amendment
Taxing and Spending Powers
Commerce Power
Channels of Interstate Commerce
Instrumentalities of Interstate Commerce
Activities with a substantial effect on interstate commerce
Other Powers
Delegation of Powers

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6
Q

Preemption Essay Verbiage

A

Generally, Congress has the power to regulate the channels and instrumentalities of interstate commerce. Federal legislation that 1) supersedes the state regulation or preempts the field, or 2) authorizes state regulation otherwise impermissible makes it impermissible for state’s to regulate in certain areas.

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7
Q

Dormant Commerce Clause- Non-Discriminatory Test

A

Two-Part Test:
i. Undue Burden -Not discriminatory but places an undue burden on interstate commerce

ii. Further an important governmental interest

Exception: Market Participation
* Example: State universities can charge more to out-of-state students.

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8
Q

Standing

A

The plaintiff must show a “personal stake” in the outcome of the litigation. This requires a showing of injury, causation and redressability.

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9
Q

Injury

A

The plaintiff must allege and prove that they have been direct injured or will be imminently injured. To seek injunctive relief, one must show a likelihood of future harm.

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10
Q

Causation

A

The plaintiff must prove that the injury is fairly traceable to the defendant’s allegedly unlawful conduct.

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11
Q

Redressability

A

It must be likely that the plaintiff’s injury will be remedied by a favorable court decision.

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12
Q

Third Party Standing

A

Generally, one cannot assert the claims of others who are not before the court but there are exceptions. 1) If there is a close relationship between the plaintiff and the injured third party (eg Doctor/Patient), or 2) if the injured party is unlikely to be able to assert his or her own rights

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13
Q

Organizational Standing

A

Organizations may sue for their members if:
A) a member of the organization would have standing to sue,
B) the interests are germane to the organization’s purpose and
C) neither the claim nor relief requires participation of individual members. The organization can only seek equitable relief.

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14
Q

Ripeness

A

Ripeness questions when a party may seek pre-enforcement review of a statue or regulation. Factors include, 1) The hardship that will be suffered if no pre-enforcement review is granted and 2) the fitness of the issues (enough information to make a decision) and 3) the record for judicial review.

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15
Q

Mootness

A

An actual controversy must exist at all times otherwise it will be dismissed

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16
Q

Advisory opinions

A

There must be specific present harm or threat of specific future harm.

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17
Q

Political Question

A

Questions that involve matters assigned to other governmental branches by the constitution will not be heard.

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18
Q

11th Amendment

A

The 11th Amendment prohibits cases in federal courts against the states.

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19
Q

Preemption

A

Generally, Congress has the power to regulate the channels and instrumentalities of interstate commerce. Federal legislation that 1) supersedes the state regulation or preempts the field or 2) authorizes state regulation otherwise impermissible makes it impermissible for state’s to regulate in certain arenas. However, if Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. However, it may not discriminate against or unduly burden interstate commerce.

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20
Q

Dormant Commerce Clause

A

Where Congress has not regulated a particular subject matter, states are free to regulate interstate commerce on that matter as long as they do not 1) Directly discriminate against out of state commerce or 2) Unduly burdens interstate commerce.

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21
Q

Dormant Commerce Clause - Direct Discrimination Explanation

A

If a law is facially discriminatory against out-of-staters then the law is presumed to be invalid as violating the Dormant Commerce Clause unless 1) it is necessary to achieve an important non-economic purpose and 2) there are no less discriminatory alternative means available. Such laws will also be presumed valid where the state is acting as a market participant or there is congressional approval.

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22
Q

Dormant Commerce Clause - No Discrimination Explanation

A

If a law is not facially discriminatory it may still violate the dormant commerce clause if it unduly burdens interstate commerce.

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23
Q

Dormant Commerce Clause - Undue Burden

A

Law is invalid if the burden on commerce outweighs the local interests protected or benefited by the legislation (balancing test). Even if it does burden commerce, it may still be valid if the state is acting to further an important interest or acting as a market participant.

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24
Q

The Supremacy Clause

A

The Supremacy Clause and the laws and treaties made pursuant to it are the supreme law of the land via the Supremacy Clause of Article IV of the US Constitution.

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25
Q

Dormant Commerce Clause Exceptions

A

Market Participant and Congressional Approval

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26
Q

Substantive Due Process

A

The government needs an adequate reason for taking away a life, liberty and/or property.

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27
Q

Procedural Due Process

A

If the government deprives on of their rights to life, liberty or property interest, then they must first give that individual proper due process, which consists of notice and the opportunity to be heard.

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28
Q

Deprivation of Liberty (Procedural Due Process)

A

A deprivation of liberty occurs if there is a loss of significant freedom provided by the constitution or a statute.

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29
Q

A bill of attainder

A

is a legislative act that inflicts punishment without a judicial trial upon individuals who are designated
either by name or in terms of past conduct. Past conduct acts to define who those particular persons are. Both the federal and state governments are prohibited from passing bills of attainder.

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30
Q

Vagueness

A

A law is void for vagueness if it does not provide individuals with fair and reasonable notice of the boundaries between lawful and unlawful conduct, in violation of the Due Process Clause

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31
Q

DCC - Undue Burden Test

A

A law violates the DCC if its burden on interstate commerce outweighs the local interest protected or benefited by legislation. However, if the law unduly burdens interstate commerce, it may still be valid if the state is acting to further an important interest.

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32
Q

Privileges and Immunities Clause

A

If a law discriminates against out of staters with regard to their ability to earn a livelihood, it violates the privileges clause unless it is necessary to achieve an important government purpose.

DOES NOT apply to corporations or non-citizens

33
Q

Equal Protection Clause and Analysis

A

The Equal Protection Clause of the 14th Amendment proves that no personal shall be denied equal protection of the laws. Courts apply different levels of scruitiny for different classifications. Classifications that burden fundamental rights, race, national origin, and alienage receive strict scrutiny. Classifications based on illegitimacy and gender receives intermediate scrutiny. All others receive rational basis review. Here, ________ exists, and thus the levels of scrutiny to be analyzed are _______.
In order for a classification to be subject to scrutiny there must be discriminatory intent. Mere discriminatory impact is not enough to establish an equal protection violation.
Since the classification is _____, the level of scrutiny to be applied is _____.

34
Q

Substantive Due Process Clause

A

The government needs an adequate reason (substantive justification) for taking away a life, liberty and property. If the right infringed upon is a fundamental right then strict scrutiny applies but if not then rational basis.

35
Q

Procedural Due Process

A

IF the state or federal government deprives one of his or her life, liberty, or property interest then they must first give that individual proper due process which consists of notice and opportunity to be heard.

36
Q

Procedural Due Process Balancing Test

A
  1. The private interest will be impacted by the government.
  2. The risk of erroneous deprivation of the interest due to the procedural process used, and
  3. The government’s interest.
37
Q

Commerce Clause

A

Congress has the exclusive power to regulate all foreign and interstate commerce under Article 1 of the US Constitution. To fall within Congress’ power under the Commerce Clause, a federal law regulating commerce must either 1) regulate the channels of interstate commerce, the instrumentalities of commerce, or regulate economic activities that have a substantial effect on interstate commerce.

38
Q

Necessary and Proper Clause

A

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

39
Q

Tenth Amendment and Grants

A

All powers not granted to the United States nor prohibited to the states are reserved for the states or the people. Congress cannot compel state regulatory or legislative action, however, they may put conditions on grants if, 1) the spending serves the “general welfare”, 2) the condition placed on the funds is unambiguous, 3) the condition relates to the federal programs, 4) the state is NOT required to take unconstitutional action, 5) the amount of funds is not so great as to be considered coercive.

40
Q

The Eleventh Amendment

A

Generally, Federal and state courts may not hear suits against state governments.

41
Q

Delegation of Powers

A

There are no limits on Congress’s ability to delegate legislative powers but Congress may not delegate executive power to itself or its officers.

42
Q

14th Amendment

A

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny any person within its jurisdiction the equal protections of the law.

43
Q

Liberty Interests

A

Physical Liberty: Imprisoned or placed in some similar situation where you do not have physical freedom of movement.

Intangible Rights: A person has a liberty interest in being able to do certain intangible things not related to physical freedom of movement such as 1) right to drive, 2) right to practice one’s profession, 3) raise a family, etc.

44
Q

Intermediate Scrutiny

A

Substantially related to an important government purpose

45
Q

Rational Basis

A

Rationally related to a legitimate government interest

46
Q

Strict Scrutiny

A

Law must be necessary to achieve a Compelling government interest.

47
Q

Ripeness and Takings

A

Takings claims regarding the application of highly discretionary local regulations to particular property, will not be reviewed on the merits until it is clear to the federal judiciary how far the regulating government will go to limit the use of the privately held property.

48
Q

Physical Taking

A

Physical takings occur when the government occupies part or all of a piece of land. If there is a taking and its for public use, the government must pay just compensation. Temporary deprivations are not takings if the government’s actions are reasonable.

49
Q

Regulatory Taking

A

Occurs when a government regulation removes the economic value from property. A per se taking removes all economic value leaving no viable economic use. Must consider 1) the nature of the government action, 2) the property owners reasonable investment -backed expectations and the 3) the level of diminution of value. Any regulation must be justified by a benefit that is roughly proportionate to the burden imposed or there has been a taking.

50
Q

Level of Diminution of Value for Regulatory Taking

A

The measurement is the loss to the owner for the fair market value.

51
Q

Partial Taking

A

When a government regulation does not remove all of the value of a property there is a partial taking.

52
Q

Partial Taking Remedy

A

The difference between the Fair Market Value of the whole property before the taking and the Fair Market Value of the remainder after the taking.

53
Q

Procedural Due Process and Property

A

Property: A deprivation of property occurs if there is an entitlement that is not fulfilled. An entitlement is a reasonable expectation to continued receipt of a benefit.

54
Q

Sovereign Immunity

A

The 11th Amendment prohibits federal courts from hearing a private party’s or foreign government’s claims against a state government. Generally, Federal and state courts may not hear suits against state governments. Exceptions include Waiver if the suit falls under Section 5 of the 14th Amendment, the federal government may sue states, and bankruptcy proceedings. Suits against state officers are allowed if they are for injunctive relief, money damages to be paid directly from the officer unless the treasure will retroactively pay.

55
Q

Sovereign Immunity Exceptions

A

Waiver if the suit falls under Section 5 of the 14th Amendment, the federal government may sue states, and bankruptcy proceedings. Suits against state officers are allowed if they are for injunctive relief, money damages to be paid directly from the officer unless the treasure will retroactively pay.

56
Q

Public Use Defined (Takings)

A

In Kelo - Any government action taken to serve any public purpose.

57
Q

The Free Exercise Clause

A

Applicable to the states via the 14th Amendment, the Free Exercise Clause refers to the US Constitution’s First Amendment that states Congress shall make no law respecting an establishment of religion or prohibit the free exercise of religion. A neutral law of general applicability does not implicate the Free Exercise Clause. The Government is prohibited from punishing someone on the basis of his or her religious beliefs. Free Exercise of Religion is a fundamental right and a law restricting a fundamental right must pass a strict scrutiny analysis in order to determine its lawfulness. Strict Scrutiny means the government’s actions must be necessary to fulfill a compelling government interest.

58
Q

Establishment Clause

A

Applicable to the states via the 14th Amendment, the Establishment Clause prohibits the government from creating any law that respects an establishment of religion. This includes establishing an official religion, unduly favoring one religion over another, or unduly preferring religion over non-religion. The Lemon Test is used to determine if a law violates the 1st Amendment’s Establishment clause and requires 1) that there be a secular purpose for the law, 2) the effect may be to neither advance nor inhibit religion and 3) there must not be excessive entanglement with religion.

59
Q

Laws of General Applicability and religion impact

A

A neutral law of general applicability that doesn’t impair the free exercise of religion is allowable if rationally related to a legitimate government interest. Here, the rule/policy specifically denies displays which are religious in nature, thus it is not a rule of general applicability.

See Freedom of Restoration Act

60
Q

Religious Freedom Restoration Act

A

Allows a person to challenge a law of general applicability when the law places a substantial burden on exercise of religion. Again, this wont apply because the rule is not one of general applicability.

61
Q

Establishment Clause

A

Applicable to the states via the 14th Amendment, the Establishment Clause prohibits the government from creating any law that respects an establishment of religion. This includes establishing an official religion, unduly favoring one religion over another, or unduly preferring religion over non-religion. The Lemon Test is used to determine if a law violates the 1st Amendment’s Establishment clause and requires 1) that there be a secular purpose for the law, 2) the effect may be to neither advance nor inhibit religion and 3) there must not be excessive entanglement with religion.

62
Q

Lemon Test

A

used to determine if a law violates the 1st Amendment’s Establishment clause and requires 1) that there be a secular purpose for the law, 2) the effect may be to neither advance nor inhibit religion and 3) there must not be excessive entanglement with religion.

63
Q

The First Amendment

A

Provides that Congress shall make no law abridging freedom of speech.

64
Q

Unprotected Speech

A

The government can completely prohibit 1) incitement of illegal activity 2) obscenity, 3) fighting words, 4) defamation.

65
Q

Symbolic Speech

A

Symbolic Speech is one which 1) conveys a specific message, 2) those seeing the message understand a message is being conveyed. The government can regulate symbolic speech if there is an important interest unrelated to the suppression of the message and the impact on communication is no greater than necessary to achieve a government purpose.

66
Q

Discriminatory Intent

A

In order for a classification to be subject to scrutiny there must be discriminatory intent. Mere discriminatory impact is not enough to establish an Equal Protection violation.

One shows discriminatory intent by the classification 1) being discriminatory on its face 2) having discriminatory application 3) having discriminatory impact.

67
Q

Overbreadth

A

A law is void as overbroad if it prohibits protected speech and unprotected speech.

68
Q

Unfettered Discretion

A

The First Amendment is violated when an official is given complete discretion regarding whether to allow or prohibit speech.

69
Q

Abstention

A

A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law. In addition, federal courts may not enjoin pending state criminal proceedings unless there is proven harassment or bad faith.

70
Q

Takings Clause EA

A

Takings Clause

Physical Taking
- Public Use
- Just Compensation
- Vested Rights

Regulatory Taking
- Nature of Gov Actions
- Investment- Backed Expenses
- Level of Diminution of Value

Partial Regulatory Taking
- Nature of Gov Actions
- Investment-Backed Expenses
- Remedy

71
Q

Dormant Commerce Clause EA

A

Preemption

DCC
Direct Discrimination
- Important Non-Economic Interest
- No Less Discriminatory Alternatives
- Market Participant
- Congressional Approval

P&I of IV
Discrimination v. Out of Staters
- Discrimination re: Civil Liberty or Economic Activities
- Necessary to Achieve Important Gov Purpose

No Discrimination
- Undue Burden (on Interstate Commerce)
- Balancing Test
- Market Participant Exception

72
Q

Equal Protection EA

A

Equal Protection
(Identify Classification and Level of Scrutiny)
Discriminatory Intent
Apply Level of Scrutiny
- Strict: Necessary/Compelling
- Intermediate: Substantially Related/Important
- Rational: Rationally/Legitimate

73
Q

Fundamental Rights

A

Privacy Rights (Family/Reproductive, Child Bearing/Rearing, etc)
Right to Travel
Race and National Origin
Alienage
Gender (intermediate)
Illegitimacy (intermediate)
Right to Vote

74
Q

Free Speech EA

A

Free Speech
Content Based
- Subject Matter Regulation
-Viewpoint Regulation

Unprotected Speech

Commercial Speech

Symbolic Speech

Content Neutral
- Significant Gov Interest
-Narrowly Tailored
-Alt Channels of Communication

Challenges:
- Vagueness
-Overbroad

75
Q

Forums

A

Public Forum
- Content Based: Strict
- Content Neutral: Intermediate

Limited Public Forum
- Content Based: Strict
- Content Neutral: Intermediate

Nonpublic Forums
- Reasonable and viewpoint neutral

76
Q

Prior Restraints

A

A judicial order which stops speech before it occurs. The court order must meet strict scrutiny

77
Q

Licenses/Permits Before Speech

A

In order for a court to be constitutionally allowed to order a license or permit before certain speech occurs, the court must show: 1) restraint is necessary to prevent societal harm; and 2) there are sufficient procedural safeguards (unfettered discretion)

78
Q

Freedom of Religion EA

A

Free Exercise
Establishment Clause
Lemon Test
- Secular Purpose
- Effect Cannot Advance Nor Inhibit Religion
- No Excessive Entanglement
Standard for Religious Freedom

79
Q

Contracts Clause

A

Prohibits states from enacting any law that retroactively impairs contract rights. Applies only to state or local interference with existing contracts (not fed gov).

Private Contracts: Intermediate Scrutiny (substantially impair/narrowly tailored)

Government Contracts: Strict Scrutiny

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