Constitutional Law Flashcards

Question

11th Amendment

Answer 1

State government CANNOT be sued as entity in federal court under the 11th Amendment.

Answer 2

(1) Waiver is permitted; (2) States may be sued pursuant to federal laws adopted under section 5 of the 14A. Congress cannot authorize suits against states under other constitutional provisions; (3) The federal gov't may sue state gov't. (4) Bankruptcy proceedings and suits pursuant to statutes adopted by Congress under its power to raise an army and a navy.

Answer 3

(1) State officers may be sued for injunctive relief; (2) State officers may be sued for money damages to be paid out of their own pockets; (3) State officers may **NOT** be sued if it is the **state treasury** that will be paying retroactive damages. * Unless the only basis for liability is indemnification. * State officers include: Governors; Attorney Generals

Answer 4

Federal court has jurisdiction but declines. **Federal courts CANNOT enjoin pending state court proceedings.** (Just know this for the exam) Abstention rarely is tested.

Answer 5

CA passed a law prohibiting ownership of Barbri books on the grounds that they're boring. Law student prosecuted in CA state court for owning Barbri books. Student immediately goes to court for an injunction and a declaratory judgment and argues CA should be enjoined for violating his first amendment rights. Federal court has jx because this is a federal question issue and all justiciability requirements are met. HOWEVER, federal court must abstain because there is a pending criminal court proceeding. **Law student must raise the constitutional claim as a defense in state court and appeal through the state system.** Why must the federal court abstain? Because federal courts generally cannot enjoin pending state proceedings.

Answer 6

(1) There must be express **or** implied Congressional power. *There is no general federal police power (There are (4) exceptions) ; (2) Necessary & Proper Clause - Congress can choose any means, not prohibited by the Constitution to carry out its constitutional authority; (3) Taxing & Spending Power

Answer 7

Generally, Congress does **not** have police power. Congress only has police power when it comes to: (1) **M**ilitary; (2) **I**ndian Tribes in Indian land; (3) Federal **L**ands or territories; (4) **D**istrict of Columbia. * Congress' police power is "MILD"

Answer 8

Congress has power to adopt all laws that are: (1) Necessary; and (2) Proper to carry out its power. Congress can choose **any** means, not prohibited by the Constitution, to carry out its constitutional authority.

Answer 9

The Constitution gives Congress the power to tax and spend for the **general welfare**. Taxing and spending may be for any public purpose not prohibited by the Constitution. * Most taxes will be upheld if they bear some reasonable relationship to revenue production *or* if Congress has the power to regulate the activity taxed.

Answer 10

Congress may regulate all foreign and interstate commerce. This includes: (1) **Channels of interstate commerce** (highways, waterways, internet); (2) **Instrumentalities of interstate commerce** and **persons/things in interstate commerce** (trucks, planes, telephones, internet, elctricity, people, cattle); (3) **Economic activities** that have a **substantial effect** on interstate commerce. (Woman growing small amounts of weed for medicinal purposes, to offset the effects of chemo. SCOTUS ruled against her - weed, like wheat, is a crop that is sold in interstate commerce, therefore when it looked at the cumulative effect of all of the weed that was grown for home consumption, the court said there was substantial effect on interstate commerce so congress can regulate). * In the area of non-economic activity, a substantial effect cannot be based on cumulative impact. **Also, (5) justices have said that Congress cannot regulate inactivity. Congress can only regulate activity.** i.e. Congress cannot regulate people not purchasing insurance under commerce clause, because this is regulating inactivity. However, this can be regulated under taxing power.

Answer 11

10th Amendment states that all powers not granted to the U.S., nor prohibited to the states, are reserved to the states or the people.

Answer 12

Congress CANNOT compel state regulatory or legislative action (forcing the states to adopt laws or enact regulations).

Answer 13

Congress CAN induce state gov't action by putting strings on grants if the conditions are: (1) Expressly stated; (2) Related to the purpose of the spending program; and (3) Condition is not unduly coercive.

Answer 14

Congress MAY prohibit harmful commercial activity by state gov't. i.e. Federal driver's privacy protection act, which prohibited state dep't motor vehicles from releasing private information about individuals (SSN, address). South Carolina brought a challenge that this law violated the 10th Amendment, Supreme Court ruled against SC and upheld the law because Congress was prohibiting harmful commercial activity.

Answer 15

When Congress wanted States to set a 20 year old limit drinking age, Congress amended the federal Highway Act to say * "Any state taking federal highway money had to set a 20 year drinking age or would lose 5% of those funds." (1) Conditions were clearly stated; (2) Related to the program highway safety; and (3) 5% was not unduly coercive.

Answer 16

Authorizes Congress to adopt law to enforce the 14th Amendment. The Supreme Court has ruled Congress cannot create new rights or expand the scope of rights. All that Congress can do is act to prevent or remedy violation of rights that have already been recognized by the courts. Laws must be **narrowly tailored** - proportionate and congruent to having proven constitutional violations.

Answer 17

There is no constitutional **limit** on **delegation** of congressional (legislative) powers. No law has been struck down as "excess of delegation" since 1937. EXAM TIP: "Federal law is unconstitutional as an excessive delegation of legislative power" - ALWAYS A WRONG ANSWER.

Answer 18

Court will strike down the federal statute as invalid if it's an unconstitutional excessive delegation of power. But no law has been struck down on that basis since 1937.

Answer 19

An administrative agency action will be invalidated if it's on a major question of economic or political significance and there's no clear direction from Congress.

Answer 20

For Congress to act, there always must be: (1) Bicameralism (passage by both the House and the Senate); **and** (2) Presentment (giving the bill to the President to sign or veto). - The President must sign *or* veto the bill in its entirety.

Answer 21

A legislative veto is where Congress attempts to override an executive action without bicameralism **and/or** presentment. * Legislative vetos are **always** unconstitutional.

Answer 22

President attempts to veto *part* of a bill, while signing the rest into law. * The Supreme Court held this is **unconstitutional**. President must either veto the bill or sign the entire bill into law.

Answer 23

To itself **or** its officers.

Answer 24

* Agreements b/w U.S. and a foreign country that are **negotiated** by the President and are effective when **ratified by Senate**. * Treaties PREVAIL over conflicting state laws * If a treaty conflicts w/ federal statute, the one adopted LAST in time controls * If a treaty conflicts w/ U.S. Constitution, it is invalid. Constitution is the Supreme Law of the LAND.

Answer 25

* An agreement b/w U.S. and a foreign country that is **effective when signed by the President** and the head of the foreign nation (No senate ratification is required) * Executive agreements PREVAIL over conflicting state laws * Anything done by a treaty can be done by an executive agreement. Court has never struck down an executive agreement as exceeding the scope of the President's power usurping the authority of the senate. * Executive agreements NEVER prevail over conflicting federal laws or the Constitution.

Answer 26

It is unconstitutional for Congress by statute to designate the capital of a foreign country

Answer 27

President has broad discretion in determining whether to admit individuals to the U.S.

Answer 28

President has broad powers as Commander-in-Chief to use American troops in foreign countries. * **MBE Tip** --> President always wins with sending troops to foreign countries! If this answer isn't there, then pick "Case is dismissed due to political question"

Answer 29

(1) President appoints: * Ambassadors; Federal Judges; Officers of U.S. - Senate must confirm the nomination in order for the person to take office, but the appointment power is solely w/ the president. (2) Congress may vest appointment of inferior officers: * In the President; Heads of depts; or (3) Lower federal courts. It's up to Congress, who has the appointment power among those three choices. (3) Congress may NOT give itself or its officers appointment power ---> MBE tested! * President may NOT make recess appointments during intrasession recesses that are LESS than 10 days

Answer 30

Unless removal is limited by statute, the President may FIRE any executive branch officer. Congress by statute may limit removal but **only if** the following requirements are met: (1) It must be an office where INDEPENDENCE from president is desirable; (2) Congress cannot prohibit removal, it can limit removal to where there is GOOD CAUSE; and (3) It cannot be a SINGLE PERSON who heads an agency and exercises substantial discretion.

Answer 31

President, VP, federal judges and officers of U.S. can be impeached and removed from the office for: * (1) Treason; * (2) Bribery; * (3) High crimes; and * (4) Misdemeanors. Impeachment does **NOT** remove a person from office. Only if the senate **convicts** is the person removed from the office. * Impeachment by the House of Representatives requires a MAJORITY vote; * Conviction in the Senate requires 2/3 vote.

Answer 32

President has **absolute** immunity in civil suits for *money damages* of any actions WHILE IN OFFICE; However, President does NOT have immunity for actions that occurred **prior** to taking office.

Answer 33

President has **EXECUTIVE** privilege for presidential PAPERS and CONVERSATIONS, but such privilege must yield to other important government interests.

Answer 34

* President has NO immunity to keep his financial records from being subpoenaed by STATE GRAND JURY. * But if financial records are subpoenaed by CONGRESSIONAL COMMITTEE, the court must **balance competing interests**.

Answer 35

* President has the power to pardon those accused or convicted of **FEDERAL CRIMES**. * President can **NEVER** pardon for *state law* crimes or civil liability. * President can pardon as to criminal liability NOT as to civil liability. So if individual is found in civil contempt, President's pardon power does not apply.

Answer 36

The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. (1) Express Preemption; or (2) Implied Preemption;

Answer 37

Federal statute expressly states that federal law is exclusive in a field, then, state/local laws are preempted. "Federal law is exclusive in the field"

Answer 38

Even if a federal statute is silent about preemption, implied preemption can be found in (3) ways: (1) If federal and state laws are **mutually exclusive**, federal law preempts state law. (State law is struck down) * State can set environmental standards stricter than federal law UNLESS Congress clearly prohibits it. (2) If state law **impedes** the achievement of a federal objective, federal law preempts state law. (3) If Congress evidences **clear intent** (legislative history/structure of law) to preempt state law, federal law preempts state law. * Immigration law = Congress has intended that federal immigration law wholly occupy the field and thus attempts by state and local gov't to regulate immigration will be deemed preempted. ## Footnote MEII = Mutually Exclusive; Impede; Intent.

Answer 39

* States may NOT tax or regulate federal governmental activity if substantial burden of federal activity * Unconstitutional to pay state tax out of the federal treasury * States' tax regulating fed gov't agency is commonly known as: "Inter-Governmental Immunity" = Immunity that federal government has from unwanted state taxation/regulation * NOTE: States **cannot** apply pollution control laws to federal government ** MBE TRICK ** 1) Store on army base operated and owned by federal gov and state wants to tax it = Unconstitutional - Tax will be paid by the Federal Gov't. (CANNNOT PAY STATE TAX OUT OF THE FEDERAL TREASURY) 2) Mom & pop shop operated on federal land, state wants to tax it = Constitutional - Tax will be owed by the store.

Answer 40

The Dormant Commerce Clause is the principle that a state or local law is UNCONSTITUTIONAL if it places UNDUE burden on interstate commerce. * Always look at WHO is the actor in question - if it's Congress doing something apply commerce clause; if it's state/local gov't then apply DCC. **NOTE**: On the EXAM the DCC is referred to as: "Negative implications of the commerce clause"

Answer 41

P&I limits states' ability to discriminate against out-of-staters w/ regard to privileges and immunities of citizenship. * P&I applies ONLY when a state is DISCRIMINATING against out of staters (1) Law must discriminate against out-of-staters; (2) Discrimination must be with regard to fundamental rights or important economic activities (Note --> different elk hunting license fees - P&I did not apply because it is not an important economic activity, merely a hobby); (3) Corporations and non-citizens **cannot** invoke the privileges and immunities clause; (4) Discrimination must be necessary to achieve an important government purpose. (Substantial gov't interest, means must be necessary - no lesser discriminatory alternative can achieve its objective) **On Exam**: If it's an individual being discriminated against apply both DCC and P&I IV. But, if challenger is a corporation only apply DCC.

Answer 42

No state shall deprive any citizen of the P&I of U.S. citizenship. Cannot limit a citizen the right to travel. P&I Clause of 14th Amendment is always the **wrong** answer UNLESS question involves RIGHT TO TRAVEL.

Answer 43

(1) Does the state law discriminate against out-of-staters? (2) Analysis if law does NOT discriminate: (a) Privileges & Immunities Clause of Article IV does NOT apply (b) If the law burdens interstate commerce, it violates DCC if its burden EXCEEDS its benefits (law required truck operating in-state have curved mudflap when other states required straight mudflap --> too much burden) (3) Analysis if law discriminates against out-of-staters (a) If law burdens interstate commerce, it violates DCC unless it is necessary to achieve an important government purpose, I.e., gov needs to show no less discriminatory alternative can achieve objective. (b) If law discriminates out-of-staters with regard to their ability to earn livelihood, it violates P&I Article IV unless it is necessary to achieve an important government purpose.

Answer 44

(1) **Congressional approval** - Permissible even if it would violate DCC. (2) **Market Participant Exception** - A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses. * **Example**: UCLA can charge less tuition for in-state students compared to out-of-staters, however, Pepperdine - a private institution cannot.

Answer 45

(1) States may not use their tax systems to help in-state businesses (2) State may only tax activities if there is a substantial nexus to the state. A state may require that out-of-state businesses collect sales taxes even if they DO NOT have a physical presence with the state, so long as they have a substantial nexus to state (3) State taxation of interstate businesses must be fairly apportioned.

Answer 46

(1) The Constitution applies to ALL levels of government. Private conduct need not comply w/ the Constitution. (2) Congress, by statute, may apply constitutional norms to private conduct: (a) Under the13th Amendment, Congress can prohibit private race discrimination. Congress have broad latitude to prohibit private race discrimination. BUT note - the 13th Amendment itself ONLY prohibits slavery. **EXAMPLES**: (1) Private landlord is discriminating on the basis of race - what is he in volation of? NOT the 13th amendment. Discrimination does not violate the 13th amendment, only slavery violates the 13th amendment. (2) Congress wants to adopts a new law that prohibits race discrimination in housing - what constitutional authority can it use? The 13th Amendment, which authorizes congress to **adopt laws **prohibiting race discrimination. **Discrimination does not violate the 13th amendment. ** (b) Commerce power can be used to apply constitutional norms to private conduct BUT can apply constitutional norms to private conduct by statute. **EXAMPLE**: (1) Restaurant refusing to serve black customers was sued for violating the civil rights act. It defended by saying it wasn't part of interstate commerce, it was just a small restaurant in the state. Supreme rueld against the restaurant stressing a great deal of the restaurant's supplies - it's meat - came across state lines. There is substantial economic effect, thus Congress can use its commerce power to apply the norm of equality in private conduct. (c) Congress cannot use section 5 of the 14A to regulate private behavior. However, there are exceptions: (1) Public Function; and (2) Entanglement Exception.

Answer 47

The Constitution applies if a private entity is performing a task **traditionally and exclusively** done by the government. i.e. holding a primary was originally done by the gov't but changed to have private entities to run the private elections. Task that has been traditionally and exclusively done by the gov't. So private entity must comply w/ the Constitution i.e. Private company owned all the land, religious group wanted to distribute literature. Company told them to get out as it was private property. SCOTUS ruled in favor of the religious group as running a town has been traditionally and exclusively done by the gov't. When a private entity does it - it must comply w/ the Constitution.

Answer 48

The Constitution applies the entanglement exception if the government: (1) Affirmatively authorizes; (2) Encourages; **or** (3) Facilitates unconstitutional activity. If the case involves race discrimination, courts are more likely to apply the entanglement exception. ## Footnote **Examples**: (1) Courts cannot enforce racially restrictive covenants - Contract among members of a neighborhood that they wouldn't sell their property to blacks or jews. (2) There is state action when the government leases premises to a restaurant that racially discriminates. (3) There is state action when a state provides free books to schools that racially discriminate. (Gov't encouraging segregation) (4) There is NO state action when a private school that is over 99% funded by the government fires a teacher because of her speech. (Gov't subsidy by itself is NOT enough for state action) (5) There is NO state action when the NCAA orders the suspension of a basketball coach at a state university. (NCAA is a private entity - operates all over the country) (6) There is state action when a private entity regulates interscholastic sports within a state. (Intwinement between the gov't and the athletic association - almost all the money came from public schools - operates in only one state) (7) There is NO state action when a private club with a liquor license from the state racially discriminates.

Answer 49

Private company does not have to comply with the Constitution. And an at-will employee can be fired at any time.

Answer 50

A person has a property interest in a continued public employment only if: (1) There is a state statute or ordinance that creates a public employment contract; or (2) There is some clear practice or mutual understanding that an employee can be terminated only for cause. If public employee holds their position at will of the employer, there is no property interest in continued employment.

Answer 51

(1) Bill of Rights applies directly to the Federal gov't. (2) Now, all of the Bill of Rights is applied to State and local gov't through its incorporation into the due process clause of the 14A **EXCEPT:** (a) 3A right to not have a soldier quartered in a person's home (never applied to state and local gov'ts); (b) 5A right to grand jury indictment in criminal cases; (c) 7A right to jury trial in civil cases.

Answer 52

(1) Rational Basis Test; (2) Intermediate Scrutiny; (3) Strict Scrutiny.

Answer 53

Under the rational basis test, a law is constitutional only if it is rationally related to a **legitimate conceivable** gov't purpose. The **challenger** *has the burden of proof*. - ANY conceivable permissible purpose. - Rational = reasonable! - Deferential to the gov't - Gov't usually wins under this review. (1) No conceivable legitimate purpose; or (2) Law is not rationally related to it.

Answer 54

Under the intermediate scrutiny test, a law is constitutional only if it is **substantially** related to an **important** gov't purpose. The **gov't** has *the burden of proof*. - Court will look to the actual purpose - The actual goal of the gov't be an important one - Means chosen are substantially related to achieving the goal (does not need to be the least restrictive means)

Answer 55

Under the strict scrutiny test, a law is constitutional only if it is **necessary** to achieve a **compelling** gov't purpose. The **gov't** *has the burden of proof.* * Court will look to only the actual purpose * Means used by the gov't must be necessary (narrowly tailored) * Gov't must prove no less restrictive alternative can achieve its objective. * Gov't usually loses under strict scrutiny.

Answer 56

Procedural due process refers to the procedures the government must follow when it takes away a person's life, liberty, or property. If there has been a deprivation of life, liberty, or property, then due process under the 14th Amendment requires: (1) Notice; and (2) Opportunity to be heard before the government may deprive a person of property. ## Footnote NOTE: On the essay if there is no deprivation still state, "if there were a deprivation" the three-part balancing test would apply...

Answer 57

Deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute. - Generally involves taking away someone's Constitutional rights. ## Footnote **Examples** (1) Except in an emergency before an adult can be institutionalized, there must be notice and a hearing. (2) When a parent institutionalizes a child, there only has to be screening of a **neutral fact finder**. Parents are acting in the best interest of their child. (3) Harm to **reputation** by itself is NOT a loss of liberty. (4) Prisoners rarely have liberty interest.

Answer 58

A deprivation of property occurs if there is an **entitlement** and that entitlement is not fulfilled. **Entitlement** exists if there is a reasonable expectation of continued receipt of a benefit ## Footnote **Examples**: (1) Person works for the gov't and gov't promises the job will be his for the next year. The person gets fired in the middle of the year and he argues that due process should've been provided. Gov't was required to provide due process. Employee had a reasonable expectation that the job would be there for a year. When it was taken away middle of the year - property was deprived and due process required. (2) Employee worked at a school on a year to year contract. Each contract made it clear that he should have no expectation that the contract will be renewed. Once the contract was not renewed, employee sued claiming failure to renew the contract deprived him of his property without due process. Employee lost. Court claimed employee had no reasonable expectation the contract will be renewed. Thus, no property interest and no deprivation of due process.

Answer 59

Gov't **negligence** is **insufficient** for a deprivation of due process. Due process generally requires an **intentional** or **at least reckless action **for liability to exist. However, in emergency situations, the gov't is liable under due process only if its conduct **"shocks the conscience"**. * Shocking the conscience requires demonstrating that the officers acted w/ the intent of causing the harm to the victim. ## Footnote **Examples**: (1) Prisoner who slipped on a pillow that was negligently left on a prison step. Prisoner claimed the prison's negligence deprived him of his body safety, his liberty without due process. SCOTUS ruled against the prisoner because gov't negligence is NOT enough for a claim of due process. (2) High speed police chase that ended tragically in the death of the teenage boy. Boy's parents argued that the recklessness of the officers had caused the boy's life without due process. SCOTUS ruled in favor of gov't because in emergency situations - like high speed chase - gov't may be held liable only if the officer's conduct "shocks the conscience". Here it did not.

Answer 60

Generally, the government’s failure to protect people from **privately** inflicted harms does not deny due process. ## Footnote **Examples**: (1) 4 year old boy who was severely beaten by his father and suffered irreversible brain damage. The boy's guardian sued the dep't of social services saying its failure to respond to complaints of child abuse over a two year period caused Joshua his liberty without due process. SCOTUS ruled against the guardian - the gov't had no duty to protect from his father (privately inflicted harm). Only if the gov't creates the danger or only if the person is in gov't custody is the gov't held liable.

Answer 61

If there has been a deprivation of life, liberty, or property, the procedures require a balancing test: (1) **Importance** of the interest on the individual; (2) **Ability of additional procedures** to increase the accuracy of the fact-finding; and (3) **Gov't's interest** in fiscal (saving money) and administrative efficiency. ## Footnote **Examples**: (1) Before welfare benefits are terminated there must be notice and a hearing before it's terminated (2) When Social Security disability benefits are terminated, there need be only a post-termination hearing (3) Before a school can discipline a student there must be notice of the charges and an opportunity to explain (NOTE: Corporal punishment in schools - spanking - does not require any due process) (4) Before a parent’s right to custody of a child can be permanently terminated there must be notice and a hearing (5) Punitive damage awards require instructions to the jury and judicial review to ensure awards are reasonable (grossly excessive punitive damages violate procedural due process) (6) An American citizen detained as an enemy combatant must be accorded due process (7) Except in exigent circumstances, prejudgment attachment or government seizure of assets require notice and a hearing (NOTE: Gov't may seize property used in illegal activity, even if it has an innocent owner)

Answer 62

Whether the government has an adequeate reason for taking life, liberty, or property. The adequate reason will depend on the levels of scrutiny. - Usually protects economic liberties and privacy

Answer 63

Whether the government has an adequate reason for the difference in its treatment of people. - Depends on type of discrimination and level of scrutiny.

Answer 64

Only a rational basis test is applied for laws affecting economic rights.The Constitution provides only minimal protection for economic liberties. - Government usually wins under the rational basis test. ## Footnote (1) If there is a due process challenge to an employment regulation - minimum wage or maximum hour law - it'll be reviewed under rational basis and likely the gov't will win. (2) Due process challenge to regulations of trades or professions and people claim a constitutional right to practice their trade or profession it'll be reviewed under rational basis and likely the gov't will win. (3) Due process challenge to consumer protection law - requirement to pass the bar exam to be lawyers - it'll be reviewed under rational basis and likely the gov't will win.

Answer 65

The government may take private property for public use if it provides just compensation. **Test applied for a taking:** Is there a taking? (1) Possessory taking; or (2) Regulatory taking.

Answer 66

Government confiscation or physical occupation of property is a taking. ## Footnote **Examples**: (a) CA law that said agricultural employers had to allow union organizers to meet w/ employees certain # of hours, # of days, Court found that was a possessory taking because part of owning property is being able to control it - to exclude others. (b) NYC adopted an ordinance requiring apt owners to make available space for cable tv boxes. The amount of space was just one cubic foot. Court held this was a taking because gov't confiscated space.

Answer 67

Government regulation is a taking if it leaves **no reasonable economically viable** use of the property. (1) Gov't conditions on development of property must be justified by benefit that is roughly proportionate to the burden imposed; otherwise it is a taking; (2) Property owner may bring a takings challenge to regulations that existed at the time the property was acquired (knowing beforehand is ok); (3) **Temporarily** denying an owner use of property is **not** a taking so long as the gov't's action is reasonable. NOTE: Gov't regulation is not a taking simply because it decreases the value of someone's property, only if it leave no reasonable economic use. ## Footnote **Examples**: (1) Company purchased grand central station in NY planning to add an additional structure on top of it. Subsequent to the purchase the building was classified a historical landmark and the new construction was not allowed. Owner sued and said the gov't had taken their property and therefore should compensate. Court ruled in favor of NYC. Even though there was decrease of the property, the owner still had reasonable economical viable use of the building. So there was no regulatory taking. (2) A man purchased a beach front property, subsequent to the purchase the state adopted a coastal protection plan that prevented any development on his property. Man won because he was prevented ANY development of his property so gov't had to compensate.

Answer 68

Possessory taking or regulatory taking for public use is allowed so long as the gov't acts out of a **reasonable belief** that the taking will **benefit** the public. * If the taking is for public use, there must be **just compensation**. Just compensation is measured in terms of the loss to the owner in reasonable market value - The gain to the taker is irrelevant. If it is **not** for public use - the gov't has to give the property back. * BUT, public use is defined broadly so virtually any taking will meet this requirement. ## Footnote Example: Person has a piece of property worth $100k, the gov't takes the property under its eminent domain power and is going to get $10 million of benefit from the property. Just compensation will be $100k - the reasonable market value to the owner.

Answer 69

No state shall impair the obligations of contracts. (1) Applies only to state or local interference w/ **existing** contracts * Contracts Clause does not apply if gov't is regulating terms of future contracts * Contracts clause never applies to the federal gov't. If it's the FG interfering the challenge will be under due process where rational basis review; (2) State or local interference w/ private contracts must meet intermediate scrutiny **(heightened)** * (a) Substantial impairment; * (b) Reasonably & narrowly tailored to legitimate & important gov't interest (3) State or local interference w/ gov't contracts must meet strict scrutiny (4) The ex post facto clause does **not** apply in civil cases. - **Ex post facto** law only applies to criminal cases or that increases punishment for a crime after it was committed. **An ex post facto law punishes conduct that occurred BEFORE the law became effective!!!!!** - Retroactive civil liability gets rational basis review - **Bill of Attainer** - Directing punishment of specific individuals without trial. (i.e. CA legislature adopting a law that X person shall be imprisoned)

Answer 70

Under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law. The Court has held that such an employee generally must be given: (1) Notice of the charges; and (2) Pretermination opportunity to respond to those charges; (3) Employee must also be given a subsequent evidentiary hearing regarding the termination

Answer 71

(1) Right to marry (same-sex) * Ex. law requires certificate from counselor saying they're compatible in order to marry --> ok if can show satisfies strict scrutiny (2) Right to procreate * Gov can impose involuntary sterilization only if it meets strict scrutiny (3) Right to custody of one's children * Strict scrutiny * State can create irrebuttable presumption that married woman's husband is father of child (4) Right to keep family together * Includes extended family * Law limiting # unrelated people in same house --> invalid when challenged by grandma (5) Right to control upbringing of one's children * Law prohibiting parents from sending kids to religious schools --> invalid (6) Right to purchase and use contraceptives * Strict scrutiny (7) No right to abortion --> rational basis (8) Right to privacy protects right to engage in private consensual homosexual activity --> unclear level of scrutiny (9) Right to refuse medical treatment: * competent adult has right to refuse med treatment - even life-saving treatment * State may require clear and convincing evidence that person wanted treatment terminated before it ended * State may prevent family members from terminating treatment for another (10) No constitutional right to physician assisted death

Answer 72

(1) 2A protects right to have handguns in HOME for sake of SECURITY (2) State law that conditions having concealed weapon in public on needing to show a safety need for a permit is unconstitutional * If clear criteria WITHOUT discretion to licensing authority --> constitutional (3) State laws regulating guns are allowed only if they were a type of regulation that historically existed * Sensitive areas, persons with gun (felon), dangerous weapon

Answer 73

(1) Laws that prevent people from moving into a state must meet STRICT scrutiny * law required showing person could support themselves before moving into CA --> invalid (2) Durational residency requirements must meet STRICT scrutiny * Voting = 50 days maximum allowable durational residency required (3) Restriction on foreign travel need meet only RATIONAL BASIS test

Answer 74

(1) Laws that deny some citizens right to vote must meet STRICT scrutiny, but regulations of electoral process to prevent fraud (photo ID requirement) only need be on BALANCE desirable (2) One-person - one-vote must be met for all state and local elections * For all elected bodies with districts, all districts must be about same in population (3) At-large elections are unconstitutional unless there is a proof of discriminatory PURPOSE (not effect) (4) The use of race in drawing election district lines must meet STRICT scrutiny (5) Counting uncounted votes without standards in a presidential election violates equal protection

Answer 75

(1) What is the classification? (2) What level of scrutiny should be applied? (3) Does this law meet the level of scrutiny?

Answer 76

(1) The equal protection clause of the 14A applies only to state and local governments; (2) Equal protection is applied to the federal government through the due process clause of the 5A.

Answer 77

Apply Strict Scrutiny! - Proof of classification of race or national origin: (a) Facial discrimination (law itself is discriminatory) (b) Law is facially neutral, proving a racial classification requires demonstrating **BOTH** discriminatory **impact** and discriminatory **intent**.

Answer 78

Apply Strict Scrutiny! - Numerical set-asides require clear proof of past discrimination - Educational institutions may not use race as a factor in admissions decisions to help minorities and enhance diversity. - Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met

Answer 79

Apply intermediate scrutiny and there must be "exceedingly persuasive justification". - Classification exists on the face of the law; - If the law is facially neutral, proving a gender classification requires demonstrating **BOTH** discriminatory **impact** and discriminatory **intent**. Ex. Police Dep't requiring applicants to meet 5'10 and 150 lbs. height and weight requirement will disproportionately hire men over women. But the Court will only apply Rational Basis review unless Plaintiff can demonstrate there was both discriminatory impact and discriminatory intent to disadvantage women.

Answer 80

Apply Intermediate Scrutiny! - Based on role stereotypes are not allowed. **Example**: Women being awarded alimony, but not men - stereotype that women are economically dependent on their husbands. Court declared this law unconstitutional - Gender Classifications designed to remedy past discrimination or limited opportunities will be allowed. **Example**: Today Social Security benefit formula is different for women, because there has been a long history of wage discrimination towards women, so the law is constitutional.

Answer 81

(1) Generally, Strict Scrutiny is used. **Example**: State had a law that only U.S. Citizens can be admitted to the bar to practice law - applied Strict Scrutiny and the law was deemed unconstitutional. (2) But, Rational Basis is used for discrimination against non-citizens that concern self-gov't and the democratic process. i.e. Voting, serving on a jury, police officer, teacher, probation officer. *Do not have to be a U.S. citizen to be a notary!! (3) Rational Basis used for Congressional discrimination against non-citizens. (4) Apply intermediate scrutiny for discrimination against undocumented immigrant children

Answer 82

Apply Intermediate Scrutiny! Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional. **Example**: State law that only marital children could inherit from their fathers. Unconstitutional! **Example**: (benefitting only some) In order for a non-marital child to inherit from its father, must prove paternity during father's lifetime. Court applied intermediate scrutiny and upheld the law because the Gov't had an important interest in preventing fraud, law was substantially related to the goal.

Answer 83

Apply Rational Basis Review!!! This includes: (1) Age Discrimination; **Ex.** equal protection challenges to mandatory retirement laws - rational basis - and gov't always wins! SCOTUS has NEVER found any age discrimination to violate Equal Protection!!! (2) Disability Discrimination; (3) Wealth Discrimination; (4) Economic Regulations; (5) Sexual Orientation Discrimination.

Answer 84

The First Amendment provides that Congress shall make no law abridging the freedoms of speech, press, association, and religion. As a preliminary matter, speech is broadly defined under the 1st Amendment, and it can include symbolic/expressive conduct that would not be traditionally thought of as speech.

Answer 85

Generally must meet Strict Scrutiny. Two types of content-based laws: (1) Subject matter restrictions - application of the law depends on the topic of the message; (2) Viewpoint restrictions - application of the law depends on the ideology of the message.

Answer 86

Apply Intermediate Scrutiny!

Answer 87

Typically restraining order or injunction. Court order suppressing speech is subject to strict scrutiny. - Must be complied w/ until vacated or overturned if procedurally proper. - Person who violates court order is barred from challenging it.

Answer 88

Licensing and permits can be required if: (1) Important reason for licensing; (2) Clear criteria and almost no discretion; (3) Procedural safeguards

Answer 89

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

Answer 90

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Answer 91

Words directed at another that are likely to provoke a violent response. - Unprotected category of speech: Always unconstitutionally vague and overbroad. **NOTE:** On the exam, conviction under the fighting words law, the answer is always the law prohibiting fighting words is unconstitutionally vague and overbroad.

Answer 92

Government can regulate conduct that communicates if: (1) Important interest unrelated to suppressing message; (2) Impact on communication is no greater than necessary to achieve the purpose.

Answer 93

Constitutionally protected speech!! People have a right to burn the flag as freedom of speech.

Answer 94

Not a protected speech and government can punish. Gov't has an important interest making sure men kept their draft cards for emergency military mobilization. Effect on speech was no greater than necessary to achieve gov't purpose.

Answer 95

Not a protected speech. Local gov't can prohibit nude dancing.

Answer 96

Generally, protected speech unless it is done w/ the intent to threaten.

Answer 97

Generally constitutional, but expenditure limits are unconstitutional.

Answer 98

Violation of the first amendment right to free speech. ## Footnote Ex. It is impermissible compelled speech to require a web designed to provide website for same-sex weddings when that would violate her religious beliefs.

Answer 99

Protected speech.

Answer 100

Cannot be challenged as violating the speech clause of the 1A.

Answer 101

Unprotected by First Amendment. The gov't may punish speech if there is a substantial likelihood of: (1) Imminent illegal activity; AND (2) Speech is directed to causing imminent illegality.

Answer 102

The material must: (1) Appeals to the prurient interest (shameful or morbid interest in sex); (2) Patently offensive under the law prohibiting obscenity; and (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value. Last part of the test, the social value, is determined by a national standard NOT a community standard.

Answer 103

Gov't may use zoning ordinances to regulate the location of adult bookstores and movie theaters. Erogenous zoning is permissible!!!

Answer 104

Gov't may prohibit child porn even if not obscene.

Answer 105

Gov't cannot punish private possession of obscene material (generally, people have the right to view/read what they want in the privacy of their home) BUT it's different if it's child porn. In order to safeguard children, gov't may punish for child porn even if it's a private possession.

Answer 106

Gov't may seize the assets of businesses convicted of violating obscenity laws.

Answer 107

Generally protected by 1A. **Exception**: (1) Free over the broadcast media (less likely over streaming services/cable); and (2) In schools (schools have an important interest in teaching civilized discourse to children) School have latitude to punish profanities of language, however, it is not unlimited. *Ability to regulate out-of-school speech is limited. Need substantial likelihood of disrupting school actives.

Answer 108

Commercial speech is protected by the First Amendment. However, false and deceptive ads are NOT protected by the 1A. - Gov't can prohibit ads for illegal activities. But, even **true ads** that inherently risk deception can be prohibited: (1) Gov't may prevent professionals from ads or practicing under a trade name; (2) Gov't may prohibit attorney, in-person solicitation of clients for profit (too great of deception/pressure); (3) Gov't may not prohibit accountants from in-person solicitation of clients for profit (accountants are trained in accuracy, so no need to distrust them)

Answer 109

Can be regulated if intermediate scrutiny met.

Answer 110

Must be narrowly tailored, but does not have to be least restrictive.

Answer 111

Plaintiff (a public official or running for public office) can recover for defamation if P can show: (1) Clear and convincing evidence; (2) Falsity of the statement; and (3) Actual malice. Actual malice - Speaker knew statement was false or acted w/ reckless disregard of the truth.

Answer 112

Same rules apply: (1) Clear and convincing evidence; (2) Falsity of the statement; and (3) Actual malice. Public Figures - those who thrust themselves into the limelight and who likely have access to media to respond to any attack.

Answer 113

Plaintiff can recover for defamation (compensatory damages) if P can prove (1) Falsity of statement; and (2) Negligence of speaker.

Answer 114

Plaintiff can recover presumed or punitive damages without showing actual malice. Compensatory damages - No standard articulated by Court.

Answer 115

(1) Must meet the defamation requirements: *Clear and convincing evidence; *Falsity of the statement; and *Actual malice; AND (2) Must not be a protected speech.

Answer 116

(1) The gov't may not create liability for the truthful reporting of information that was lawfully obtained from the gov't. (2) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call; if the media did not participate in the illegality and it involves a matter of public importance; (3) Gov't may limit its dissemination of information to protect privacy.

Answer 117

Speech by gov't employees on the job in the performance of their duties is not protected by the 1A.

Answer 118

Other gov't restrictions based on the content of speech must meet strict scrutiny.

Answer 119

Government properties that the government is constitutionally required to make available for speech. Ex. sidewalks and parks

Answer 120

* Must be subject matter and viewpoint neutral, or if not, strict scrutiny must be applied. * Regulations must be a time, place, or manner regulations that serve and important government purpose and leaves open adequate alternative places for communication * Government regulation of public forums need not use the lease restrictive alternative, but must be narrowly tailored.

Answer 121

Designated public forums are government properties that the government could close to speech, but choose certain time/dates to open to speech. * The same rules as public forum applies. ## Footnote Ex. Public school facilities that are open in evening or weekend.

Answer 122

Government properties that are limited to certain groups or dedicated to the discussion of only some subjects. Regulation must be: (1) **reasonable**;and (2) **viewpoint neutral**.

Answer 123

* Government properties that the government constitutolnally can and does close to speech * Regulation must be (1) **reasonable** and (2) **viewpoint neutral** * Ex) Military bases; Areas outside prisons/jails; Sidewalks **ON POST OFFICE PROPERTY**; Airports

Answer 124

Apply strict scrutiny! To punish membership in a group it must be proven that the person: (1) Actually affiliated with the group (2) Knowing of its illegal activities and (3) With the specific intent of furthering those illegal activities

Answer 125

Apply strict scrutiny!

Answer 126

Laws that prohibit a group from discriminating are constitutional UNLESS they interfere with intimate association expressive activity Ex) KKK can exclude black person

Answer 127

Free exercise clause CANNOT be used to challenge a **neutral law of general applicability** (Peyote / employment case) If not a neutral law (i.e., discretion to grant exemptions), apply strict scrutiny!

Answer 128

Strict Scrutiny

Answer 129

The government **cannot**: (1) Coerce religious beliefs or behavior; (2) Discriminate against religious speech or among religions unless strict scrutiny is met; (3) Sponsor religious activity in public schools. ## Footnote Ex. A football coach praying on the field does not violate the Establishment Clause; but punishing him for doing so violates free exercise of religion and free speech.

Answer 130

NO. Constitutional!

Answer 131

YES. As long as it is NOT used for religious instruction.

Answer 132

YES, UNLESS meets strict scrutiny.

Constitutional Law Flashcards

(163 cards)