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Louisiana Bar Exam > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

Judicial Review

A

The power of federal courts, particularly the Supreme Court, to decide cases

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2
Q

Scope of Power of Judicial Review

A

Review Acts of Congress
Review of Federal Court Decisions
Review of State Court Decisions

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3
Q

Case and Controversy Requirement

A

The judicial power shall extend to all cases and controversies

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4
Q

Standing

A

In order to obtain relief, a plaintiff must have a personal stake in the outcome of the case that is likely to be redressed by the relief sought

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5
Q

What happens if a party is only indirectly affected by some action?

A

They may or may not have standing.

The injury must be “distinct and palpable” and be able to allege personal injury “fairly traceable” to the conduct and “likely to be redressed by the requested relief”

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6
Q

Tax Payer Standing

A

Most frequently asserted to challenge laws that distribute federal funds to groups with a religious affiliation in possible violation of the Free Exercise and Establishment Clauses

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7
Q

“Double nexus” test for Tax Payer Standing

A

1) the legislation must be an exercise of Congress’ taxing or spending power

AND

2) The regulation must be alleged to violate a constitutional limitation that affects the taxpayer other than those limitations inherent to the taxing and spending power

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8
Q

Citizen Standing

A

Standing as a citizen requires that the plaintiff allege some particular injury connected to his or her status as a citizen

Ex: Challenges to state laws that discriminate against citizens from other states in violation of the Privileges and Immunities Clause

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9
Q

Mootness

A

A court will not grant relief when the controversy ceases to exist

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10
Q

Two Exceptions to Mootness

A

1) The nature of the controversy means that is necessarily would become moot before a final decision could be rendered and the controversy is likely to recur

2) When the defendant voluntarily ceases the challenged conduct the case does not become moot automatically, the defendant has the burden of showing that it is unlikely that challenged conduct will recur

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11
Q

Ripeness and Concreteness

A

Threat of a constitutional violation cannot be hypothetical. Courts will not decide the constitutionality of a statute or criminal prosecution unless there is a substantial likelihood that the statute will be enforced or the prosecution will be undertaken

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12
Q

Political Questions

A

The courts will not review the wisdom of policy decisions entrusted by the Constitution to either of the other two branches of government

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13
Q

Two-Step Political Question Analysis

A

1) Is there a “textually demonstrable constitutional commitment of the issue to a coordinate political department of government?”

If so,

2) What is the scope of the commitment?

If the Constitution specifically commits the question to a coordinate branch of government, the court will not decide the question

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14
Q

11th Amendment and Sovereign Immunity

A

Prohibits the exercise of the federal judicial power in suits against a state by citizens of any state or foreign country

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15
Q

Ex Parte Young Doctrine

A

A federal court can enjoin state action that violates the Constitution or federal law

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16
Q

Can a state waive its 11thA immunity?

A

Yes

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17
Q

Abstention on Constitutional Issues

A

A federal court should abstain from unnecessarily deciding a constitutional issue

Where an unsettled question of state law may dispose of the case, a federal court should abstain from deciding the constitutional issue

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18
Q

Scope of National Executive Power

A

Executive power is vested in the President by Article II

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19
Q

Important Executive Powers

A

-Sign or veto legislation
-Commander in Chief of the Armed Forces
-Grant reprieves and pardons
-Make treaties
-Appoint ambassadors, judges, and all other offices of the United States subject to Senate approval
-Convene special sessions of Congress
-Enforce and execute all laws of the United States

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20
Q

Powers Granted to Congress (Art I)

A

-Impose taxes
-Regulate interstate commerce
-Declare war
-Raise and support armies
-Maintain a Navy

*To make all laws necessary and proper to carry out any other power granted by the Constitution

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21
Q

Commerce Power

A

Art I grants Congress the power to regulate commerce among the states

Issue: Whether the federal regulation is a necessary and proper exercise of that power?

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22
Q

Scope of the commerce power

A

Federal regulation is permitted even if the activity merely “affects” interstate commerce

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23
Q

What does the commerce power not justify?

A

Federal legislation affecting purely local activity

Does not grant Congress the power to compel activity, even if the absence of that activity might affect interstate commerce

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24
Q

Taxing and Spending Powers

A

Congress has the power to tax and to spend for the payment of national debts and for the general welfare

16thA authorizes the imposition of a federal income tax without apportionment among the states or by population

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25
Q

“General welfare”

A

The limitation that spending be for the general welfare does not require that it be in furtherance of one of the other enumerated powers

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26
Q

War and Treaty Powers

A

Various specific powers concerning war, treaties, and foreign relations are granted constitutionally to the President and to Congress, respectively

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27
Q

How is the regulatory process of Congress viewed during times of war in support of the war effort?

A

Expansively

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28
Q

What Articles grant powers to the three branches of the national government?

A

Art. I, II, III

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29
Q

Will a legislative delegation of power to the executive branch or judicial branch violate separation of powers?

A

Yes, unless the delegation includes sufficient standards that the delegetee’s action can be judged for its fidelity to the legislative will

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30
Q

What happens when there is a broad congressional delegation on a “major question”?

A

The Court will examine whether the agency has historically asserted such power and whether there is clear congressional authorization for the power

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31
Q

Powers Reserved to the States

A

10thA: the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States

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32
Q

Can Congressional action be limited by the 10thA?

A

Yes, Congressional action upon States which it is no compelled to do can be found a violation of state sovereignty under the 10thA

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33
Q

State Police Power

A

States possess the police power to regulate and promote the health, safety, morals and welfare of their citizens

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34
Q

How are state powers structurally limited?

A

States may not enact regulations that are inconsistent with federal law or in areas that have been committed to federal authority

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35
Q

The Supremacy Clause

A

Federal laws made pursuant to the Constitution and U.S. treaties shall be the supreme law of the land

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36
Q

How can a congressional intent to preempt state action be seen?

A

1) the scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room to the States to supplement it

2) the federal legislation may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the subject

3) The federal legislation’s object and the character of obligation imposed by it may reveal a dominant federal interest

4) the state policy may produce a result inconsistent with the objective of the federal statute

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37
Q

*Dormant Commerce Clause

A

Does state action burden the flow of interstate commerce and thereby unconstitutionally interfere with the federal commerce power?

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38
Q

What kind of state laws regarding interstate commerce are unconstitutional?

A

Only those placing “undue” burdens on interstate commerce

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39
Q

What state’s interest has been found to be sufficiently important to justify a burden?

A

Health and safety of its citizens

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40
Q

When will a burden on interstate commerce generally not be upheld?

A

If there is a less burdensome alternative available to the state

41
Q

What about a state law or action that serves primarily to protect or promote the state’s own economic interests?

A

Generally will not be upheld

42
Q

What about a state law or action that discriminates against interstate commerce in favor of intrastate commerce?

A

Is almost always invalid

43
Q

Dormant Commerce Clause Analysis

A

1) Does the law discriminate against interstate commerce?

2) If not, does the law burden interstate commerce?
a) How substantial is the burden?
b) What is the purpose of the law?
c) Is the law’s purpose important enough to justify the burden?
d) Is there a less burdensome alternative?

44
Q

Privileges and Immunities Clause

A

The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states

The clause only applies to those privileges and immunities that are “fundamental”

So, must have a citizen and must have a fundamental right

45
Q

Examples of fundamental rights

A

Travel, own property, right to transact business or carry on a trade

*Does not apply to non-fundamental rights, such as the right or privilege to hunt elk or engage in other recreational activities

46
Q

Limitations on State Taxation Power: Commerce Clause

A

State taxation that unduly burdens or discriminates against interstate commerce violates the Commerce Clause

47
Q

Can a state tax movable property?

A

Yes, if it has come to rest and thereby acquired a tax situs within the state

48
Q

Income Taxes

A

A state may impose a tax on net income derived by a domestic corporation from interstate transactions so long as the tax does not discriminate against interstate commerce and is fairly apportioned to activities within the taxing state to avoid multiple taxation

49
Q

Sales and Use Taxes

A

1) A state cannot impose a sales tax on a sale occurring entirely in another state or on an interstate sale if the effect is to discriminate against interstate commerce

2) A state can require a foreign seller to collect a use tax on goods shipped into the state only if the seller has a sufficient nexus with the taxing state

3) A sales or use tax can be defeated by showing the risk of multiple taxation

50
Q

State Tax Privileges and Immunities Clause Limitations

A

If a state tax restricts access to a protected privilege or immunity and is discriminatory against citizens of other states, it is unconstitutional

51
Q

State Tax Due Process Clause Limitations

A

If the taxpayer has no minimum contacts with the state, the tax will violate the due process clause

52
Q

State Tax Equal Protection Clause Limitations

A

Q: Whether the classification in the taxing scheme employed has a rational basis

53
Q

Contract Clause

A

Art. I prohibits any state law impairing the obligation of contracts

SC has used the contract clause to invalidate state laws that effected a severe change in contractual obligations

Ex: A state may not pass a law to undo its own contractual obligations.

Ex: A state may not pass a law that retroactively effects a severe change in contractual circumstances unless the law is necessary to serve an important and legitimate public interest or to address a broad economic or social problem

54
Q

Takings Analysis

A
  1. Was there a taking?
  2. Was the taking for a public purpose?
  3. What constitutes “just compensation”?
55
Q

What constitutes a “taking”?

A
  1. A physical occupation of property by the state or condemnation of property
  2. The denial of all rights in land or substantially all use of land

A substantial regulation of property will not be viewed as a taking that requires just compensation when it is closely related to a substantial public purpose.

56
Q

Is the taking supported by a public purpose?

A

States are given wide latitude

The purpose must be closely related to the state regulation in order to support the regulation

The government must reasonably believe the taking will benefit the public

57
Q

Just Compensation

A

Ordinarily money damages

Calculation begins from the time the use of the property was denied, not when it was ruled a taking

58
Q

*Procedural Due Process (CIVIL)

A

When a person’s liberty or property interests are effected by government or state action the person is entitled to be heard

59
Q

Three elements of Procedural Due Process

A
  1. The presence of state action
  2. An adverse effect on a recognized liberty and property interest
  3. Notice and a meaningful opportunity to be heard
60
Q

*Substantive Due Process

A

5th A and 14th A prohibit the government and states from depriving a person of life, liberty, or property without due process of law

61
Q

Economic and Business Regulations

A

Valid as long as the regulations imposed are rationally related to a valid police power purpose

62
Q

Punitive Damages and Due Process

A

Can violate Due Process if the award is grossly excessive” in relation to the state’s legitimate interests in punishing unlawful conduct

An award more than 10x actual damages may be constitutionally excessive

63
Q

Privacy and Personal Rights

A

Laws that infringe upon “fundamental rights” may be invalid under Due Process. Determined on a case by case basis.

ex: personal privacy

Rights specifically not enumerated but deeply rooted in the nation’s history and tradition and is essential to the concept of ordered liberty can be protected

64
Q

When is a state permitted to regulate the exercise of a fundamental right?

A

Only if 1) serves a compelling state interest and 2) is narrowly tailored to achieve that interest with as little interference as possible on the fundamental right

(strict scrutiny)

65
Q

Right to Travel

A

A classification must be deemed to penalize a person who exercises his or her right of interstate migration

ex: A one year waiting period for new residents seeking welfare infringes upon a person’s right to travel

66
Q

Right to Vote

A

A law which places a severe restriction on the right to vote will be subject to strict scrutiny and invalid unless supported by a compelling state interest

A law which places a reasonable non-discriminatory restriction on voting will be reviewed to determine whether it is sufficiently justified by an important state interest

67
Q

Campaign contributions

A

The govt. can limit the amount a person can donate to another’s campaign. The govt. may not limit the amount that a person expends on their own campaign.

68
Q

Right to Bear Arms

A

Right to keep a handgun at home and to carry one outside of the home for self-defense

69
Q

Standard of Review for the Right to Bear Arms

A

Regulation must be justified within the nation’s “historical tradition of firearm regulation” with particular attention given to the practices in place at the time that the relevant amendments were adopted

70
Q

The Right to Education

A

SC has declined to hold as a fundamental right, judged under the rational relationship test

71
Q

*Equal Protection

A

The EP Clause of the 14thA and the Due Process Clause of the 5thA prohibit the denial of equal protection of the laws

72
Q

Basic concept of EP

A

Persons similarly situated sholud receive similar treatment

73
Q

Degree of scrutiny in EP

A

Depends on whether a classification is characterized as a) burdensome to constitutionally protected rights b) inherently suspect c) quasi-suspect d) neither burdensome nor suspect

74
Q

How are classifications analyzed that burden constitutionally protected rights or are inherently suspect?

A

Strict scrutiny. Must be narrowly tailored to a compelling state interest.

75
Q

How are classifications analyzed that are quasi-suspect?

A

Varying degrees of scrutiny. Generally, a classification must be related to an important government interest

76
Q

How are classifications analyzed that are neither burdensome nor suspect?

A

Rational basis. Must be rationally related to any conceivable government interest

77
Q

Suspect Classification Types

A

1) facially discriminatory
2) discriminatory in application or have a discriminatory impact
3) discriminatory motive

78
Q

Examples of suspect classifications

A

Race, national origin, state and local alienage classifications

79
Q

Quasi-suspect classifications

A

Generally subject to intermediate scrutiny. (subst relationship to an important govt interest)

80
Q

Examples of quasi-suspect classifications

A

Gender

81
Q

Examples of rational basis standard classifications

A

wealth, age

82
Q

1st A Rights

A

Question is whether and how the exercise of a right can be restricted by the government

83
Q

“Political” Speech

A

Deserves the highest degree of protection

Speech advocating illegal or criminal acts can be subject to governmental control and punishment even in a political context, but has to be likely to produce such action

Factors: how serious is the advocated conduct? How much influence does the speaker have? Who is listening? Where is the speech occurring? Are there aggravating circumstances that would increase the likelihood of violence?

84
Q

Commercial Speech

A

Govt may regulate commercial speech that is false or deceptive

85
Q

Speech by Public Employees

A

1) Speech must relate to public concern
2) Govt must show its interest in efficiently delivering public services outweighs the employee’s free speech rights
3) Govt can also justify its action by showing that a negative employment decision would have been reached anyway for reasons unrelated to the employee’s speech

86
Q

Obscentiy

A

Not protected by the 1st A

87
Q

Fighting Words

A

Restrictions may be placed on public speech that is likely to create a breach of the peace

88
Q

Speech in Public Places

A

The govt may place reasonable restrictions on the time, place, and manner of the speech in order to protect the public

89
Q

Speech in limited public forum and non public forum

A

Most public property falls under this classification. Govt can reserve the forum for its intended use.

Must be viewpoint neutral and reasonably related to a legitimate government purpose

90
Q

Speech on Private Property

A

A private property owner may prevent any form of expression on his property

91
Q

Symbolic Speech

A

Conduct may receive 1st A protection if it is combined with protective speech

A state may not prohibit cross burnings if done as an act of political expression but can prosecute if it is meant to intimidate another

92
Q

*Overbreadth

A

A statute is unconstitutionally overbroad if it restricts protected speech as well as unprotected speech aka broader than necessary to achieve its intended purpose

93
Q

*Vagueness

A

A statute is unconstitutionally vague if it restricts 1st A expression but fails to provide an ascertainable standard of acceptable conduct

94
Q

Freedom of Association

A

The right of the people to peacefully assemble and to petition the government for a redress of grievances

Freedom of association will not apply to non-political associations that lack a sufficient degree of privacy and intimacy

95
Q

Freedom of the Press

A

Generally, the govt cannot place restraints upon the content of the printed press

Commercial content of news papers can be regulated in the same was as commercial speech

96
Q

Press and Judicial Proceedings

A

Right of the press to attend trials, voir dire proceedings, and preliminary hearings in criminal cases. They may be excluded from suppression hearings.

97
Q

Free Exercise Clause

A

Forbids the enactment of any law that prohibits the free exercise of religious beliefs

A state must act with neutrality toward religious beliefs and avoid any discrimination or punishment of a party based on religious beliefs

98
Q

Burdening Religious Practice

A

A state may pass a law of general applicability even if it incidentally burdens a religious practice provided that it does not punish the practice because it is religious or displays a religious belief

Government policy that burdens a religious practice or belief that is not neutral or generally applicable must satisfy strict scrutiny

99
Q

Establishment Clause

A

Prohibits enactment of laws “respecting an establishment of religion”

Requires the govt. to pursue a course of neutrality towards religion

Action that prefers one religious sect over others will violate the Establishment Clause unless the state can satisfy strict scrutiny

Louisiana Bar Exam (4 decks)

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