Constitutional law Flashcards
(127 cards)
1
Q
Article III Requirementss
A
Federal judicial power extends to interpretation of the constitution, federal laws, treaties, admiralty and maritime law, and dispute between states, foreign citizens, and citizens of diverse citizenship. Also requirement of “case or controversy.”
2
Q
What are Supreme Court appeals (rare)
A
Decisions by three-judge federal district court panels that grant or deny injunctive relief. They are mandatory cases for the Supreme Court.
3
Q
When considering questions of ripeness, what dos a federal court consider (2)?
A
1) Fitness for judicial decision, i.e., issue must not rely on uncertain or contingent future events
2) Hardship to parties of withholding court consideration.
4
Q
Three components of standing
A
1) injury in fact that is particularized and concrete
2) causation, ie connection between the injury and the conduct complained of
3) repressibility – a decision in litigant’s favor will eliminate her grievance
5
Q
What is the eleventh amendment?
A
state sovereign immunity. Prohibits the federal courts from hearing a private party or foreign government’s claims against a state government
6
Q
What is the “necessary and proper” power?
A
Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.
7
Q
When will congress’s power to tax be upheld (2)?
A
1) when taxes bear some reasonable relationship to revenue production or
2) Congress has thee power to regulate the activity taxed.
8
Q
What restrictions on spending are there for Congress?
A
Spending may be for any public purpose
9
Q
What is the commerce clause?
A
Congress has the power to regulate all foreign and interstate commerce.
10
Q
What are the requirements for a federal law regulating interstate commerce?
A
The law must 1) regulate the channels of interstate commerce, 2) regulate the instrumentalities of interstate commerce and persons and things in interstate commerce or 3) regulate activities that have a substantial effect on interstate commerce.
11
Q
When will the Court uphold congressional efforts to regulate intrastate activity?
A
If the regulation is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. If it’s noncommercial and noneconomic, court likely will not uphold (guns in school zones, gender-motivated violence).
12
Q
When do military courts have jurisdiction over American soldiers?
A
Military courts have jurisdiction over all offenses committed by persons who are members of the armed services both at the time of the offense and when charged
13
Q
Standard for delegating legislative power to the executive or judicial branch
A
intelligible standards are set and the power is not unique confined to Congress.
14
Q
Speech and debate clause
A
Conduct that occur sinn the regular course of the federal legislative process and the motivation behind the conduct are immune from prosecution
15
Q
What is a pocket veto?
A
The president has 10 days to exercise veto power. If he fails to act within that time and congress is not in session, then the bill is automatically vetoed. If Congress sis in session, the bill becomes law.
16
Q
Can the president refuse to spend appropriated funds when Congress has expressly mandated they be spent?
A
No.
17
Q
What is the “take care” clause?
A
President shall take care that law be faithfully executed. Related to requirement that president spend money Congress has appropriated.
18
Q
Executive war power
A
president has no power to declare war but may act militarily in actual hostilities against the US without a congressional declaration of war.
19
Q
President’s treaty power
A
President has power to enter into treaties with the consent of 2/3rds of the Senate.
20
Q
When are treaties the supreme law of the land?
A
When they are self-executing
21
Q
How are conflicts between valid treaties and federal laws resolved?
A
The last in time prevails
22
Q
Can the United States sue a state without its permission?
A
Yess
23
Q
Can a state sue the US without its permission?
A
No.
24
Q
When is a suit against a public federal officer deemed to be brought against the US itself?
A
When the judgment would be satisfied out of the public treasury or would interfere with public administration
25
Can one state sue another state?
Yes. The Supreme Court has exclusive original jurisdiction
26
May Congress subject state and local governments to regulation and taxation?
Yes, if the law applies to both public sector and private sector.
27
Spending power conditions
Congress may regulate states through the spending power by imposing conditions on the grant of money to state or local governments so long as the conditions are
1) clearly stated
2) relate to the purposes of the program
3) are not unduly coercive.
28
Can congress require state executive offices, e.g., the police, to enforce federal laws?
No, because it would upset the Constitution's "dual sovereignty" structure.
29
What does the interstate privileges and immunities clause prohibit?
discrimination by a state against nonresidents when the discrimination concerns "fundamental rights."
30
What are the fundamental rights protected by the privileges and immunities clause?
rights relating to important commercial activities, i.e., pursuit of livelihood, or civil liberties.
31
Exception to the privileges and immunities clause?
The state law may be valid if the state has a substantial justification for the different treatment, ie nonresidents either cause or are part of the problem that the state is attempting to solve and there are no less restrictive means to solve the problem.
32
When can state or local governments regulate local aspects of interstate commerce?
if congress has not enacted laws regarding the subject. But the laws must not discriminate against or unduly burden interstate commerce
33
What is the "negative commerce clause" or the "dormant commerce clause?"
Descriptive terms that reflect the idea that even where Congress has not acted, the commerce clause restricts state regulation of interstate commerce. States may not favor local economic interests or unduly burden interstate commerce.
34
What is the commerce clause?
Congress has the power to regulate interstate commerce and conflicting state laws are superseded and even nonconflicting laws in the same area may be preempted.
35
What is the exception to the rule that state or local regulations cannot discriminate against interstate commerce?
Important state interest exception -- may be valid if it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.
36
State as market participant exception to ban on interstate discriminatory regulations
A state may prefer its own citizens when acting as a market participant, e.g., when buying, selling, hiring labor, etc.
37
Three exceptions to invalidity of laws that discriminate against interstate commerce
1) it furthers an important noneconomic state interest and there are no reasonable, non discriminatory alternatives available
2) the state is acting as a market participant
3) it involves government action regarding the performance of a traditional government function, ie waste disposal.
38
Test if the state law is nondiscriminatory but but burdens interstate commerce, e.g., a state statute banning trucks over 60 feet
it will be valid UNLESS the burden outweighs the promotion of a legitimate local interest. Court will consider whether less restrictive alternatives are available.
39
Commerce clause analysis on bar exam
1) Does the question refer to any federal legislation that would supersede state regulation, preempt the field or authorize state regulation where it would otherwise be impermissible?
2) If no, then does the state regulation either discriminate against interstate or out-of-state commerce or place an undue burden on the free flow of interstate commerce? If it is discriminatory, then it will be invalid unless it (i) furthers Ann important, noneconomic state interest AND there are no reasonable nondiscriminatory alternatives or (ii) the state is acting as a market participant. If the regulation does not discriminate but burdens interstate commerce, it will be invalid if the burden outweighs the state's interest.
40
Congressional power re: state taxation that affects interstate commerce
Congress has complete power to authorize or forbid state taxation that affects interstate commerce
41
When will a nondiscriminatory state tax be valid?
1) There must be a lsubstnail nexus between the activity and the taxing state, e.g., business avails itself of the privilege of doing business in the state
2) the tax must be fairly apportioned according to a rational formula but the taxpayer has the burden of proving unfair apportionment
3) there must be a fair relationship between the tax and the services/ benefits the state provides.
42
Are state use taxes permissible?
Yes. Use taxes, or taxes imposed on goods purchased outside the state but used within it are valid.
43
Are taxes on commodities in the course of interstate commerce taxable?
No. Commodities in interstate transit are entirely exempt from state taxation.
44
When does interstate shipment end and therefore goods are subject to local tax?
When the cargo reaches its destination; thereafter the goods are subject to local tax.
45
What are the exceptions to the provision of the Bill of Rights' application to the states through the 14th Amendment's Due Process Clause?
(i) the 5th amendments prohibition of criminal trials without a grand jury indictment; (ii) the Seventh Amendment's right to jury trial in civil cases.
46
What does the 15th amendment provide?
prevents both federal and state governments from denying a citizen the right to vote on account of race or color.
47
What does the 14th amendment provide?
Prevents states from depriving any person of life, liberty, or property without due process and equal protection of law.
48
What is the scope of Congressional power under the 14th amendment?
Section 5 of the 14th amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment. Under section 5, Congress may not expand existing constitutional rights or create new ones--it may only enact laws to prevent or remedy violations of rights already recognized by the courts.
49
How must congress adopt a valid law under the 14th amendment?
Point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (i.e., narrowly tailored) to solving the identified violation.
50
Impact of commerce clause on congress's right to prohibit private racial discrimination
Under the broadly construed commerce clause, congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce.
51
Where can state action be found in the actions of seemingly private individuals?
1) activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them, e.g., running a town or conducting an election.
2) state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens, e.g., enforcing restrictive covenants prohibiting sale or lease of property through use of state courts
52
Impact of the contract clause
limits the ability of states to enact laws that retroactively impair contract rights. Doesn't affect contracts no yet made. Legislation of existing private contracts = intermediate scrutiny.
53
Rule re: ex post facto laws
Neither the state nor federal government may pass a law that retroactively alters criminal offenses or punishments for the purpose of punishing a person for some past activity. Applies only to criminal cases, not civil.
54
What are bills of attainder?
legislative acts that inflict punishment on individuals without a judicial trial.
55
What is the basic principle of procedural due process?
Before a government agency can take a person's "life, liberty, or property," there must be a fair process (e.g., notice and a hearing).
56
What type of process is required by PDP (three-part balancing test)?
Test weighs
1) the importance of the interest to the individual and
2) the value of specific procedural safeguards to that interest against
3) the government interest in fiscal and administrative efficiency.
57
Source of the "takings clause" and what does it provide?
5th amendment. Provides that private property may not be taken for public use without just compensation. Applicable to the states via the 14th amendment.
58
Distinguishing between a "taking" versus a "regulation."
NO clear cut rule. Use restriction that denies all economic value of land is a taking. Use restriction that amounts to temporary denial or all economic use and decreasing economic value are less clear.
59
Owners remedy to an occupation or regulation without a formal taking under the power of eminent domain
Inverse condemnation. Bring action and if court determines that the government action action amounted to a taking, then the government will be required to either pay the property owner for the property or terminate the regulation and pay the owner for damages that occurred while the regulation was in effect.
60
What is just compensation under the takings clause?
Fair market value of the property taken at the time of the taking.
61
Distinction on MBE between substantive due process and equal protection
If a law limits liberty of all person to engage in some activity, it's usually a due process question.
If law treats a person or class of persons differently from one another, on the MBE it's usually an equal protection problem.
62
Standards of review for SDP and EP
Strict scrutiny
Intermediate scrutiny
Rational basis
63
Strict scrutiny language on the bar exam
"narrowly tailored to achieve an overriding government purpose" or "necessary to achieve a compelling government purpose."
64
When does strict scrutiny apply?
Regulations that affect fundamental rights or suspect classifications.
65
Strict scrutiny will uphold a law when?
If it is necessary to achieve a compelling government purpose.
66
Who bears burden of proof in a strict scrutiny standard case?
Government
67
When does intermediate scrutiny apply?
Regulations involving quasi-suspect classifications, e.g., gender and legitimacy.
68
Intermediate scrutiny will uphold a law when?
If it is substantially related to an important government purpose.
69
Who bears the burden of proof inn intermediate scrutiny?
Unclear but probably the government.
70
What is the rational basis standard?
The law is upheld if it is rationally related to a legitimate government purpose.
71
Who bears the burden of proof in rational basis cases?
The person challenging the law.
72
Constitutional sources for SDP
The fifth amendment for the federal government and the DPC of the 14th amendment for state and local governments, Tests are the same.
73
Applicable standards in a SDP case
When a fundamental right is limited, then the law is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard is applied.
74
Applicable standards in an EP case
When a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation. If a quasi-suspect classification is involved, intermediate scrutiny is the applicable standard. If the classification does not involve a fundamental right or a suspect of quasi-suspect class, then rational basis review applies.
75
Proving discriminatory classification in EP cases
for strict of intermediate scrutiny to be applied, there must be intent on the part of the government to discrimination. Intent may be shown by:
1) A law that is discriminatory on its face
2) A discriminatory application of a facially neutral law
3) a discriminatory motive behind the law.
76
What are the suspect classifications under EP?
Race, national origin, or alienage.
77
Standard for affirmative action
government action that favors racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.
78
Remedying passt discrimination
The government has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable.
79
Discriminatory legislative apportionment (voting districts)
Race can be considered in drawing up new voting districts, but it cannot be the predominant factor. If a redistricting plan was drawn up predominantly on the basis of racial considerations, the plan will violate the EP clause unless the government can show the plan is narrowly tailored to serve a compelling state interest.
80
Alien classifications -- federal gov't versus state/local
Federal alienage classifications are not subject to strict scrutiny. They are valid if they are not arbitrary and unreasonable.
State and local laws on alienage are suspect classifications subject to strict scrutiny, e.g., requirement that job applicants be US citizens for welfare, civil service jobs, or to become a lawyer. Some exceptions, though, for jobs with important public policy, e.g., police officers, probation officers, teachers.
81
Standard for gender classifications
intermediate scrutiny: they must be substantially related to an important government purpose. The government bears the burden of showing an "exceedingly persuasive justification" for the discrimination.
82
Standard for legitimacy classifications
Intermediate scrutiny: they must b substantially related to an important government purpose.
83
Suspect and quasi-suspect classifications
suspect: race, national origin, alienage
Quasi-suspect: gender and legitimacy
84
Fundamental rights (4)
right to interstate travel, privacy, voting, and First Amendment Rights.
85
Fundamental rights -- when EP and when SDP?
When a fundamental right is denied everyone, it's a SDP problem; if they're denied to some individuals but not others, it's an EP problem.
86
What must government show to uphold laws denying fundamental rights?
The government action must be necessary to protect a compelling government interest and there must be no less restrictive means to achieve the goal.
87
What falls into the right of privacy?
Marriage, procreation, contraception, childrearing
88
Reasonable restrictions on the right to vote
- Reasonable time periods for residency (e.g., 30 days).
- Requirement to show voter ID
89
Right to travel -- what three durational residency requirements are invalid and what two things are valid
Invalid:
1) one year residency to receive full welfare benefits
2) Onne year residency to receive state-subsidized medical care
3) One year residency to vote in the state
Valid:
1) Thirty-day residency to vote in the state
2) One-year residency to get divorced.
90
What are the major first amendment freedoms
Prohibits Congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of free assembly.
91
What does the free speech clause do?
Restricts government regulation of private speech
92
Public monument scrutiny
A city's placement of a permanent monument in a public park is government speech and not subject to Free Speech Clause scrutiny, even if the monument is privately donated.
93
Speech and assembly regulations can roughly be categorized into which two categories?
Either content regulations (regulations forbidding communication of specific ideas) or conduct regulations (regulations of the conduct associated with speaking, such as the time of the speech, sound level, etc.).
94
Content regulations constitutionality
Content regulations are presumptively unconstitutional except for certain categories (obscenity, defamation)
95
Standard of review for content-neutral speech regulations
Generally subject to intermediate scrutiny, i.e., must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests.
96
Three overarching requirements for regulations -- they cannot be what?
over broad, vague, or give unfettered discretion to officials.
97
effect of overbroad regulations one speech
if a regulation punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid and cannot be enforced against anyone.
98
Void for vaguenesss doctrine
if a criminal law fails to give persons reasonable notice of what is prohibited, e.g., outlawing "lewd" speech, it may violate the DPC and it is pretty strictly applied when First Amendment activity is involved.
99
Rules on mandatory financial support
Government may tax people and use the revenue to express a message with which they disagree. However, people CANNOT be compelled to subsidize private messages with which they disagree.
100
What are the lawful forms of regulation of conduct?
Time, place, and manner restrictions.
101
What are the four types of forums that dictate the breadth of time place and manner restrictions
public forum, designated public forum, limited public forum, non public forum.
102
Three overarching requirements for regulations -- they cannot be what?
over broad, vague, or give unfettered discretion to officials.
103
What is a public forum?
public property that has historically been open to speech-related activities, e.g., streets, sidewalks, public parks, and the internet.
104
What is a designated public form?
Public property that is not historically open for speech-related activity, but which the government has thrown open for such activities on a permanent or limited basis by practice or policy, e.g., school rooms that are open for after-school use by social, civil, or recreational groups
105
Standard for regulation on time, place and manner regulation in public forums and designated public forums
Either strict scrutiny or the regulation must be
1) content neutral
2) narrowly tailored to serve an important governmental interest (almost every legitimate government interest satisfies this requirement)
3) leave open alternative channels of communication
106
Standard for injunctions against speech in public forums
If the injunction is content-based, it must be necessary to achieve a compelling interest. If the injunction is content neutral, it must burden no more speech than necessary to further an important governmental interest.
107
What is a limited public forum?
Government property not historically linked to speech and assembly but opened for specific speech activity, such as a school gym opened to host a debate on a particular community issue
108
What is a nonpublic forum?
government property not historically linked to speech and assembly and not held open for speech activities, e.g., military bases, schools while classes are in session, government workplaces, etc.
109
Standard for regulating speech in limited public forums and nonpublic forums
Government can regulate speech to such a forum to limit the forum for it's intended use
110
When are regulations valid in nonpublic and limited public forums?
When the regulations are viewpoint neutral and reasonably related to a legitimate government purpose.
111
What are the four categories of unprotected speech?
1) Inciting imminent lawless action
2) Fighting words
3) obscenity
4) defamatory speech
112
Fighting words on exam
As a practical matter, statutes that attempt to punish fighting words are usually vague or over broad so on the exam they should generally be regarded as invalid.
113
Elements of obscenity:
Speech is obscene if it describes or depicts sexual conduct that taken as a whole
1) appeals to the prurient interest in sex, using a community standard (local or statewide, not necessarily national)
2) is patently offensive and an affront to contemporary community standards (local or statewide, not necessarily national) AND
3) lacks serious value using a national reasonable person standard.
114
Can the private possession of obscene material in the home be punished?
No, it cannot be punished except for the possession of child pornography.
115
Is commercial speech afforded first amendment protection?
Yes, if it is truthful.
116
When will regulation of commercial speech be upheld?
Only if it
- serves a substantial government interest
- directly advances that interest and
- is narrowly tailored to serve that interest.
117
What is a prior restraint?
Court orders that prevent speech before it occurs rather than punsihing it afterwards. Rarely allowed.
118
Level of broadcasting regulations versus press
Radio and television broadcasting may be more closely regulated than the press.
119
What is the freedom of association?
It is not explicitly mentioned in the Constitution, but it is clearly implied from the rights that are explicitly noted. Pursuant to this freedom, the government may neither prohibit politically unpopular groups no unduly burden a person's right to belong to such groups.
120
Limits on election contributions
A statute limiting election campaign contributions is subject to intermediate scrutiny -- closely drawn to match a sufficiently important interest.
Aggregate contribution limits are unconstitutional but limits to an individual candidate have been upheld.
121
Standard for regulating "core political speech"
strict scrutiny.
122
restraints on speech activities of government employees -- official duty exception
A government employer may punish a public employee's speech whenever teh speech is made on the job and pursuant to the employee's official duties, even if the speech touches on a matter of public concern
123
Restraints on speech activity of government employees -- not pursuant to employee's official duties
If it does NOT involve a matter of public concern, wide deference to punish if speech was disruptive to the work environment.
If it DOES involve a matter of public concern, courts must balance the employee's rights as a citizen to comment on matters of public concern against the government's interest as an employer in the efficient performance of public service.
124
What does the free exercise clause prohibit?
the government from punishing someone on the basis of her religious beliefs. The free exercise clause prohibits courts from declaring a religious belief to be false.
125
Does the free exercise clause prohibit regulation of conduct?
No. If the government action regulates general conduct, including religious conduct, it is valid. The only exceptions relate to unemployment compensation and the education of Amish children.
126
Test for government action challenged under the establishment clause
Lemon law no longer good law; overturned July 2022. From that decision: "In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.“‘[T]he line’” that courts and governments “must draw between the permissible and the impermissible” has to “‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”
127
Lemon test (Overruled but worth putting down on an essay Q)
Law must
1) Have a secular purpose
2) have a primary effect that neither advances nor inhibits religion and
3) does not produce excessive government entanglement with religion.
