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Bar Exam > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

Suits barred by the 11th Amendment

A
  1. Citizens of one state suing another state in federal court
  2. Suits in federal court against state officials for violations of state law
  3. Citizens suing their own state in federal court
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2
Q

What does it mean for a judgment to rest on “adequate and independent state grounds”?

A

Adequate = state law fully resolves the issue

Independent = do not incorporate a federal standard by reference

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3
Q

What standard is used to determine whether a tax by Congress should be upheld?

A

Tax must have rational relationship to revenue production

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4
Q

A political question not subject to judicial review arises when: [Name the two possibilities.]

A
  1. Constitution has assigned decision-making on that subject to a different branch of government
  2. Matter inherently not one that the judiciary can decide
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5
Q

When does a taxpayer have standing to file a federal lawsuit?

A
  1. Standing to litigate whether, or how much, she owes on her tax bill
  2. Challenging governmental expenditures as violating the Establishment Clause
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6
Q

Who may impeach and convict the president?

A

Impeach = House of Representatives

Convict = Senate

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7
Q

What does it mean for a claim to be ripe for litigation?

A

Claim not brought too early - plaintiff must have experienced a real injury or imminent threat of injury

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8
Q

What does it mean in terms of mootness when a case is capable of repetition, yet evading review?

A

Case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subject to the same action again but that the action will not last long enough to work its way through the judicial system

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9
Q

What is provided under the Tenth Amendment?

A

Any powers not assigned to the federal government reserved to the states or the people

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10
Q

Generally, a person who is intentionally being deprived of life, liberty or property, is entitled to what two procedural due process rights?

A
  1. Notice

2. Hearing

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11
Q

Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.

A

Restriction must:

  1. Be content-neutral as to subject matter and viewpoint
  2. Narrowly tailed to serve a significant state interest
  3. Leave open ample alternative channels for communication of the information
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12
Q

How does aggregation come into play when considering the “substantial economic effect” of an activity for purposes of the Commerce Clause?

A

Congress has the power to regulate any activity that alone or in combination with other activities has a substantial economic effect on interstate commerce.

Isolated events in the aggregate that have a substantial economic effect on interstate commerce can be regulated by Congress.

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13
Q

The federal government may not commandeer state legislators. What does this mean?

A

Federal government cannot command state legislatures to enact specific legislation or enforce a federal regulatory program.

May not circumvent this restriction by conscripting a state executive officer directly.

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14
Q

How does injunctive relief operate as an exception to the application of the Eleventh Amendment?

A

When state official named as a defendant (rather than the state itself), the official may be enjoined from enforcing a state law that violates federal law or compelled to act in accord with a federal law despite state law to the contrary.

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15
Q

What is an advisory opinion and why do federal courts not render them?

A

An advisory opinion is one that analyzes the constitutionally of proposed legislation. Federal courts do not issue them because it would violate the “cases or controversy” requirement since there is no live dispute.

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16
Q

Over what types of cases does the Supreme Court have original jurisdiction?

A
  1. All cases affecting ambassadors
  2. Other public ministers and consuls
  3. Those in which the state is a party
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17
Q

When is Congress able to regulate purely private conduct?

A

When it adopts legislation rationally related to eliminating racial discrimination (“badges or incidents” of slavery) under the 13th Amendment

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18
Q

What four requirements must be met in order for government regulation of expressive conduct to be upheld?

A
  1. Regulation within gov’t power to enact
  2. Regulation furthers IMPORTANT gov’t interest
  3. Gov’t interest is UNRELATED TO SUPPRESSION OF IDEAS
  4. Burden on speech NO GREATER than NECESSARY
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19
Q

There is a general rule that states cannot enact legislation that discriminates against out-of-state commerce. What are the five exceptions to this rule?

A
  1. Authorization by Congress
  2. State as marketplace participant
  3. Traditional gov’t function exception
  4. Subsidies
  5. Necessary to an important state interest and no other nondiscriminatory means are available
20
Q

How does consent come into play as an exception to the application of the Eleventh Amendment?

A

States and/or Congress can waive sovereign immunity for particular types of suits

21
Q

For what types of offenses can the President exercise the Pardon Power?

A

Only federal cases

22
Q

List three fundamental rights.

A
  1. Vote
  2. Privacy (marriage, sexual relations, child rearing, right of related persons to live together)
  3. Interstate travel
23
Q

In what three circumstances is federal preemption implied?

A
  1. Congress intended for federal law to occupy the field
  2. State law directly conflicts with federal law
  3. State law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law’s purpose
24
Q

Pocket Veto

A

If President doesn’t sign law within 10 days and Congress adjorns within that period

25
Q

Name three actions not barred by the Eleventh Amendment.

A
  1. Actions by the US gov’t or other state gov’ts
  2. Actions against local governments
  3. Bankruptcy proceedings that impact state finances
26
Q

To have standing, a plaintiff bears the burden of establishing three elements. Name the elements.

A
  1. Injury in fact
  2. Causation
  3. Redressability
    * plus “prudential standing”
27
Q

What type of immunity does a judge have for judicial acts resulting in civil liability?

A

Absolute

28
Q

What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?

A
  1. Race
  2. Nationality
  3. Ethnicity
  4. If by state law, citizenship status
29
Q

(1) When can the President invoke executive immunity; and

(2) When is the President not protected by executive immunity?

A
  1. President may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities
  2. No immunity for civil actions based on conduct that occurred (i) prior to taking office or (ii) completely unrelated to the job
30
Q

Under Equal Protection, when is intermediate scrutiny applied?

A
  1. Gender

2. Legitimacy (nonmarital child)

31
Q

When can the states tax the federal government?

A

When 1. indirect and 2. does not unreasonably burden the federal government

Ex: state income taxes on federal employees

32
Q

When is there a legitimate property interest in continued public employment?

A

When under contract (i.e. not “at will”) or at will employee is promised that dismissal will only be “for cause”

33
Q

Name the five categories where the government is permitted to restrict speech on the basis of content.

A
  1. Fighting words
  2. Obscenity
  3. Incitement to violence
  4. Defamation
  5. Commercial speec
34
Q

In the absence of federal regulation, state regulation of commerce is valid so long as: (Name the three rules)

A
  1. No discrimination against out-of-state interests
  2. Regulation does not unduly burden interstate commerce
  3. Regulation does not apply to wholly extraterritorial activity
35
Q

In what two scenarios does private conduct amount to state action?1.

A
  1. When private person carries on activities traditionally performed exclusively by the state
  2. When gov’t is significantly involved in private discrimination
36
Q

Define strict scrutiny.

A

Government legislation must be NARROWLY (least restrictive means) tailored to a COMPELLING government interest

37
Q

When may a state tax instrumentalities of commerce?

A
  1. Instrumentality has a taxable situs within (sufficient contacts with) the taxing state
  2. Tax is fairly apportioned to the amount of time the instrumentality is in the state
38
Q

Under Equal Protection, in what two instances does the court apply the strict scrutiny test?

A
  1. Fundamental rights

2. Suspect classification

39
Q

What is required to trigger constitutional protections (with the exception of the Thirteenth Amendment)?

A

State action

40
Q

What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?

A

Regulation must be

  1. Viewpoint-neutral; and
  2. Reasonably related to a legitimate governmental interest
41
Q

Define rational basis.

A

RATIONALLY related to a LEGITIMATE government interest

42
Q

Define intermediate scrutiny.

A

SUBSTANTIALLY related to an IMPORTANT government interest

43
Q

A state may impose a nondiscriminatory tax on interstate commerce, as long as the following three requirements are met:

A
  1. SUBSTANTIAL NEXUS b/w the taxing state and the property or activity to be taxed
  2. FAIR APPORTIONMENT of tax liability
  3. FAIRLY RELATED to services provided by the taxing state
44
Q

What must the plaintiff show in order to trigger strict or intermediate scrutiny under the Equal Protection Clause?

A

Discriminatory intent, which can be shown

  1. Facially
  2. As applied
  3. When there is a discriminatory motive
45
Q

The Supreme Court has sorted government property that is open for speech into three categories.

What are the three categories?

A

Traditional public forums

Designated public forums

Nonpublic/ limited public forums

46
Q

When will a discriminatory law be subject to heightened scrutiny?

A

When the law either on its face, in application, or in impact discriminates against a quasi-suspect or suspect class if the government engaged in INTENTIONAL discrimination

Bar Exam (4 decks)

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