Constitutional Law Flashcards
(127 cards)
1
Q
What does the commerce clause give Congress the broad ability to regulate?
A
(1) channels of interstate commerce (ex. airports) (2) the instrumentalities of interstate commerce (ex. planes) (3) peoples and things moving in interstate commerce (ex. commercial shipments), and (4) in-state activities that, singly or in the aggregate, substantially affect interstate commerce (presumed when activity is economic in nature)
2
Q
What are the limits on spending of funds tax funds by Congress?
A
Must be spent for the general welfare, that’s all
3
Q
What are the requirements that must be met if Congress imposes a condition on the receipt of funds to states?
A
Condition must (1) be clearly stated and unambiguous, (2) be reasonably related to federal interest in funded program, (3) not require states to engage in unconstitutional activity, and (4) not unduly coerce states into accepting
4
Q
What does the Privileges and Immunities Clause of Article IV protect against (also known as comity clause)?
A
A state discriminating against citizens of another state by denying them a right of state citizenship, including: travel and residing in state, pursuing employment, practice commercial trade, own or transfer property, seek medical services, civil liberties, creditor’s rights, tax exemptions
5
Q
What does the Privileges and Immunities clause of the 14th Amendment protect against?
A
States interfering with its citizens’ rights of national citizenship, including: interstate travel, assembling peacefully, voting for national offices, entering public land, petitioning congress, protection when in custody of US Marshalls
6
Q
When is a 5A Taking allowed?
A
When the taking is (1) for public use and (2) the owner receives just compensation (property’s fair market value)
7
Q
What is the negative implication of the commerce clause as applied to states?
A
States cannot unduly burden interstate commerce, undue burden can arise from a discriminatory law, use Pike balancing test - challenger of law must show that the law’s burden on interstate commerce clearly exceeds its local benefits
8
Q
What are the exclusive executive powers?
A
Nominate principal officers, veto bills, prosecute and pardon federal offenses, communicate and negotiate with foreign governments, recognize foreign governments, enter executive agreements
9
Q
When does a private actor qualify as a government actor under the state-action doctrine?
A
When (1) the private actor performs a traditional government function or (2) the government is significantly involved in the private actor’s activities
Significant involvement - when gov has: mutually beneficial relationship with private actor (joint venture), creates a nexus by affirmatively facilitating or authorizing private action, or is pervasively intertwined int he private actor’s management or control
10
Q
What does procedural due process of the 5A give persons rights to?
A
When the gov wants to deprive a person of life, liberty, or property, due process is necessary, like (1) notice of charges, proceedings, or other actions against them, and (2) a meaningful opportunity to be heard by a neutral decision-maker
11
Q
When is a public employee entitled to the protections of procedural due process derived from the 5A?
A
If the employee has a legit property interest in their employment, which occurs when the employee (1) has an ongoing employment contract, (2) can only be fired for cause, or (3) receives assurance of continued employment
12
Q
Substantive due process requires what extent of justification for deprivation of an ordinary right? And what is considered an ordinary right?
A
Must pass rational basis test, law is presumed valid until the challenger shows the law has no rational relation to any legit gov interest
Ordinary right - economic, employment, education, social welfare
13
Q
Substantive due process requires what extent of justification for deprivation of a fundamental right? And what is a fundamental right?
A
Must pass strict scrutiny test, the law is presumed invalid until the government shows that the law is necessary to achieve a compelling gov interest
Fundamental right - 1A rights, voting, interstate travel, privacy
14
Q
What does the EPC of the 14A protect from?
A
Discriminatory treatment of similarly situated people
15
Q
What does the DPC of the 14A protect from?
A
Substantive - deprivation of life, liberty, or property without adequate justification
Procedural - deprivation of life, liberty, or property without adequate process
16
Q
What does the PI clause of the 14A protect from?
A
Interference with rights of national citizenship
17
Q
In the EPC analysis, what is the default analysis?
A
Rational basis test, challenger must show the law is not rationally related to a legit state interest
18
Q
In the EPC analysis, what parties, when substantially impacted, can invoke intermediate scrutiny?
A
Quasi-suspect classes, like sex/gender, or legitimacy
Intermediate scrutiny - state must show the law is substantially related to an important state interest
19
Q
In EPC analysis, what classes, when substantially impacted by a law, can invoke strict scrutiny?
A
Suspect classes - ethnicity, citizenship, race, nationality
Fundamental rights - voting, interstate travel, privacy, first amendment rights
Strict scrutiny - state must show the law is necessary to achieve a compelling state interest
20
Q
What type of scrutiny is applied to regulations of protected speech that is content-based?
A
Strict Scrutiny
21
Q
What type of scrutiny is applies to regulations of protected speech that is content-neutral?
A
intermediate scrutiny
22
Q
What type of scrutiny is applied to regulations of commercial speech that is protected?
A
intermediate scrutiny
23
Q
What scrutiny is applied to regulations of commercial speech that is misleading or unlawful?
A
None
24
Q
Can the gov, when giving funds to recipients, restrict protected conduct unrelated to funding’s purpose?
A
No
25
Can the gov, when giving funding, restrict use of the funds to authorized purposes?
Yes
26
What are the domestic executive powers the President possesses under Art 2?
Manage federal exec agencies and officers, execute federal laws, recommend leg to C, sign or veto bills, appoint/remove federal officers, prosecute and grant pardons for federal crimes
27
What are the foreign powers the President possesses under Art 2?
Serve as commander in chief, negotiate/enter treaties and executive agreements, recognize foreign governments, appoint/receive foreign diplomats
28
What are the establishment clause tests?
Historical - longstanding tradition and historical foundation
Endorsement - no appearance that gov endorses religion
Coercion - no forced conformity with religious belief or practice
29
What is expressive conduct, NOT speech under the 1A?
Expressive conduct can include picketing, leafleting, flags, etc.
30
What is the test for regulation of expressive conduct under the 1A?
A governmental regulation of expressive conduct will be upheld if (1) the regulation is within the gov's power to enact, (2) the regulation furthers an important gov interest, (3) the gov interest is unrelated to the suppression of ideas, and (4) the burden on speech is no greater than necessary (narrowly tailored)
31
When do constitutional restrictions apply to private person's conduct?
When the conduct constitutes state action, when a private person carries on activities that are traditionally performed exclusively by the state, like running primary elections or governing a company town
32
In due process claims, what does the challenging party have the initial burden of showing?
That they have a protected life, liberty, or property interest at stake
In the employment context, must demonstrate constitutionally protected interest in employment or procedures by which she was terminated
33
Can Congress modify SCOTUS's appellate jurisdiction?
Yes, unless the modification would violate separation of powers (usurping judicial power), OR other constitutional protections (violating ECP by only allowing men to appeal or something like that)
34
Is commercial speech protected?
Yes, but NOT if it is false and misleading or concerns unlawful activity
35
Define standing
plaintiff must allege an injury in fact caused by the challenged action and redressable by the remedy sought
36
Define ripeness
claim must be present actual controversy involving past injury or present threat of injury
37
Define mootness
claim must be unresolved
38
What does the ex post facto clause prohibit? When is a civil law considered ex post facto?
Prohibits federal and state govs from enacting criminal laws that have retroactive punitive effects (ex post facto laws)
A CIVIL LAW will be considered ex post facto when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose
39
When is heightened scrutiny appropriate under the EPC for discriminatory laws? When is a law considered discriminatory?
Only when the law substantially impacts a fundamental right OR intentionally discriminates against a suspect or quasi-suspect class
Can discriminate on its face, in its application (purposefully applied differently to different classes), or in its motive
40
What test is applied to a federal law that discriminates against resident noncitizens?
5A applies, rational basis review, must show the law is not rationally related to a legit state interest
This is because Art 1 of Const gives C plenary power over immigration and naturalization
US SC has held that C has a legit interest in providing benefits only to citizens because US citizens have closer ties to US than noncitizens
41
What test is applied when a state law discriminates against resident noncitizens?
14A applies, strict scrutiny is default,
42
What is express preemption?
When constitution says federal regulation is exclusive or federal law expressly prohibits state regulation
43
What is field preemption?
Congress's pervasive regulation shows intent to occupy the entire field
44
What is conflict preemption? Indirect and direct?
Direct - nearly impossible to comply with both laws
OR
Indirect - state law frustrates federal law's purpose
45
When a public employee can only be terminated for cause is in fact terminated, what process is due?
(1) notice of alleged misconduct, (2) pre-termination opportunity to respond to allegation, (3) post-termination evidentiary hearing
If only suspension without pay, just need notice of alleged conduct and prompt post-suspension evidentiary hearing
46
Under the 10A, does C have authority to tell states to enact laws or enforce federal laws?
No
47
What is considered regulation of interstate commerce?
regulation of (1) channels of interstate commerce, (2) instrumentalities of interstate commerce, (3) persons/things moving in interstate commerce, (4) activities that substantially affect interstate commerce
48
Does the 1A guarantee press right to attend every state of criminal trial?
Yes, but Court can order proceedings closed if court's findings on the record demonstrate that the closure withstands strict scrutiny
49
What are the 5A types of takings?
Physical - possession or permanent physical invasion
Regulatory - restricts use under totality of circumstances, OR deprivation of all economically useful uses: character of gov action, gov impact, reasonable investment-back expectations
Exaction - condition to obtain building/development permit
Destruction - destruction of property or property interest
50
What discriminatory laws are presumptively constitutional?
Econ/education regulations, taxation/gov spending, preservation of natural resources
51
What discriminatory laws are presumptively unconstitutional?
Those that substantially impact a quasi-suspect class (sex, gender), suspect class (ethnicity, citizenship, race, nationality), fundamental rights (voting, interstate travel, privacy, 1A rights)
52
What are the enumerated congressional powers from Art 1 Section 8?
Taxing and spending, interstate and foreign commerce, war and armed forces, immigration and naturalization, mail, copyright and patent laws, federal courts, DC, bankruptcy, rules concerning captures
53
Describe the 1A's right to freedom of association?
Right to associate with any group or org, but gov CAN punish those who are: (1) active members of subversive org, know of org's illegal objectives, AND (3) specifically intend to further those objectives
54
In Constitutional law, what are the "fundamental rights" that deserve strict scrutiny?
First Amendment freedoms, voting, interstate travel, privacy (marriage/family, parental rights, sexual acts, contraceptives)
55
What does the 11A ban?
Suits brought by a private party against foreign gov, suit against state official for violating state law
UNLESS, state consents, immunity removed by 13,14, 15A, damages paid by state officer personally, state official sued prospectively (not retroactive) damages to be paid by state treasury
56
What is Younger abstention and when does it apply?
Basically when a federal court will refuse to step in
It applies when there is a federal suit asking for declaratory judgment or injunction that interferes with a pending state proceeding and the suit involves an important state interest where the litigant has the opportunity to litigate the federal matter in the state proceeding
57
What does Congress's tax power allow them to tax and what does it not allow them to tax?
It ALLOWS direct taxation (tax on personal property) and indirect taxation (sales, excise, etc.) as long as uniformly applied and reasonably related to revenue raising
Does NOT allow taxes on exports OR services and activities closely related to the export process
58
When is a 5A taking constitutional?
When the taking is for public use (rationally related to a legit public purpose) and the gov provides just compensation
59
When can personal property be seized prior to a notice and hearing under procedural due process?
(1) seizure serves a significant gov interest, (@) that interest would be frustrated by advance notice of the seizure, AND (3) the seizure is performed by the gov
60
When can real property be seized by the gov prior to notice and hearing?
Must use balancing test: (1) private interest affected by deprivation, (2) risk of erroneous deprivation and probable value of additional procedural safeguards, (3) gov's interest in seizure
61
What are the exclusive Art 2 powers?
Nominate principal officers, veto bills, prosecute/pardon federal offenses, communicate/negotiate with foreign governments, recognize foreign governments, enter executive agreements
If C opposes President's action, the action is likely invalid
If C has remained silent on the President's action, middle zone
If C has authorized the President's action, likely valid
62
Can the media be liable for publishing truthful info that was unlawfully obtained by a 3rd party?
No, as long as the info (1) involves a matter of public concern, and (2) the publisher obtained it lawfully
63
When is the federal government immune from a state tax or regulation?
When it is a direct tax/regulation, immune unless C expressly consents
When it is an indirect tax, that is, a tax on an affiliate of the fed gov (employee, contractor), must comply unless C grants immunity or discrimination against or substantial interference w fed gov
64
Does Congress or the states have the power to enact laws that regulate the time, place, and manner of congressional elections?
States according to Art 1 Sec 4
65
What is the standard of review for state electoral regulations?
If ordinary nondiscriminatory (voter registration, photo-ID, disallowing write-in) Must comply with 1A and EPC, rational basis review
If discriminatory (poll tax, disallowing 3rd party candidates, property-ownership requirement), must pass strict scrutiny
66
What do Courts consider to determine if Congress can regulate an activity?
Whether (1) the activity is economic in nature, (2) the regulation contains a jurisdictional element, (3) Congress made express findings on the activity's effect on interstate commerce, and (4) there is a strong link between the activity and that effect
67
Can Congress ever institute a legislative veto process for agency actions?
No, can only lawfully delegate power, cannot bypass that
68
Can Congress authorize conduct that would otherwise violate the dormant commerce clause?
Yes
69
Where does the dormant commerce clause derive itself from, and what does it prohibit?
From Art 1 commerce clause, prohibits states from (1) discriminating against out of state commerce OR (2) otherwise unduly burdening interstate commerce
UNLESS, state proves law furthers an important noneconomic state interest (health, safety) AND there is no reasonable, nondiscriminatory alternative
70
Can Congress revoke citizenship?
No, cannot revoke citizenship without their consent unless the citizenship was obtained by fraud or in bad faith
71
What government restrictions are proper under the 2A for ownership of firearms?
Banning unusually dangerous weapons, imposing conditions and qualifications on commercial sales of firearms, forbidding possession of firearms by felons and mentally ill individuals, AND prohibiting the open carry of firearms in certain areas or concealed carry of firearms in public
72
What is a bill of attainder clause? Is it permitted?
A legislative act that inflicts civil or criminal punishment against identified persons without a trial, NOT permitted
73
When do 1A free speech rights apply to public employees, and when do they not?
They DO NOT apply when public employees speak pursuant to their official duties, they DO apply when the employee is speaking as a private citizen on a matter of public concern
Gov can limit private speech only if its interest in efficient gov function outweighs the employee's right to free speech
74
What does the Property clause of Article IV give Congress the power to do?
to dispose of and regulate federal land/territories
75
What does the Privileges and Immunities clause counsel?
States cannot deny rights of state citizenship to citizens of other states
76
When will state taxation of imported goods comply with the state import-export clause?
(1) federal gov can speak with one voice, (2) interstate harmony not disturbed, (3) import revenue not diverted from fed gov
77
What is the standard discriminatory state laws regarding commerce (favoring state interests and discriminating against interstate or foreign commerce) are judged by according to the dormant commerce clause?
Unconstitutional unless: (1) furthers legit state interest, AND (2) no reasonable alternative
78
What is the standard nondiscriminatory state laws (but otherwise burdensome on interstate commerce) are judged by according to the dormant commerce clause?
Unconstitutional if: burden clearly exceeds local benefits
79
When is regulation of commercial speech that is NOT misleading or false constitutional?
If the regulation (1) directly advances a substantial gov interest, AND (2) the regulation is NOT more extensive than necessary to serve that interest
80
Under the taxing and spending clause, can Congress place conditions on receipt of federal funds?
Yes, as long as the conditions comply w Constitution, gov can insist funds be spent for authorized purpose, but cannot restrict recipient's right to engage in constitutional protected conduct that falls outside funding's purpose or scope
81
When does a regulatory taking occur under the 5A?
When the gov substantially restricts (or destroys all economically beneficial) use of private property
82
What compensation is the owner of land that was "taken" by regulation due?
Just compensation in the amount of the property's fair market value at the time of taking, NOT lost profits
83
Does the 1A right to free speech shield press from generally applicable law?
No, even if such laws incidentally affect the press's ability to gather and report news
84
What do courts consider when determining if activities have a substantial effect on interstate commerce, thus warranting regulation by Congress?
If (1) the activities are economic in nature (if so, substantial effect presumed), (2) the regulation has a jurisdictional element that limits its reach to activities with a direct connection to or effect on interstate commerce, (3) there are express congressional findings concerning the activities' effect on interstate commerce, AND (4) there is a strong link between the regulated activities and the effect on interstate commerce
85
Can the President refuse to spend earmarked Congressional funds?
No, President has the duty to faithfully execute the laws, so the President cannot unilaterally alter how appropriated funds will be spend or suspend distribution of those funds
86
It is well accepted that states cannot tax federal agencies and instrumentalities, but can a state tax a federal gov's affiliates?
Yes, including persons or entities employed by or doing business with fed gov, they must pay taxes UNLESS: (1) C has granted the affiliate immunity, (2) the tax discriminates against the fed gov or the affiliate, OR (3) the tax substantially interferes with the affiliate's ability to accomplish its federal purpose or duties
87
When can a private actor be considered a government actor, and thus bound by the Constitution?
When (1) the private actor performs a traditional and exclusive gov function, OR (2) the gov is significantly involved in the private actor's activities, which requires more than funding, licensing, regulating, or granting a franchise
88
Describe the rational basis test
Challenger must prove law has no relation to legit state interest
89
Describe intermediate scrutiny
State must prove law has a substantial relation to an important state interest
90
Describe strict scrutiny
State must prove that law is necessary to achieve compelling state interest
91
When does strict scrutiny apply?
If (1) a fundamental constitutional right is infringed by a law, OR (2) a government action applies to a "suspect" class (race, national origin, ethnicity, etc.)
92
What is the suspension clause of the Constitution and what does it do?
Provides right of person in federal custody to challenge their detention through habeas corpus in a federal court
C can only suspect habeas during cases of rebellion or invasion and the public safety may require it
93
Does C have the power to alter SCOTUS's appellate jx?
Yes, under Art III exceptions clause, C has power to expand, regulate, or make exceptions to SCOTUS appellate jx
94
Can the federal gov tax states?
Not directly, the 10A forbids it, but the federal gov can tax states indirectly through their affiliates so long as the taxes are nondiscriminatory
95
What test should be employed when a law directly benefits or burdens religion?
Strict scrutiny
96
What are the requirements of an indirect tax?
Must (1) be imposed identically in every state where the taxed goods are found, AND (2) reasonably related to revenue production
97
When can the government regulate speech by public employees who are speaking as citizens about matters of public concern?
If the interest in efficient gov function outweighs the employee's free-speech right
98
Can an individual assign rights to bring a suit for that individual's injury?
Yes, an assignee has standing to sue to enforce the rights of an assignor provided (1) the requirements for standing are met, (2) assignment was made for ordinary business purposes, and (3) assignment was made in good faith
98
Must the gov pay a property owner if they simply regulate the land?
No, but must pay property owner fair market value if the gov "takes" the property, which is almost always found when there is a permanent total loss of economic value in the land
98
Under the takings clause, incorporated to the states by the 14A, can the gov seize property for use of a private party? Under what circumstances?
Yes, for the gov itself or the private party as long as the seizure is rationally arelated to a conceivable public purpose
99
What is the two part test for establishing ineffective assistance of counsel?
(1) the representation of a def by the def's atty must fall below an objective standard of reasonableness, AND (2) the atty's deficient performance prejudiced the def
100
A state tax imposed on interstate commerce must satisfy the Complete Auto test, what is the test?
(1) the activity taxed must have a substantial nexus to the taxing state, (2) the tax must be fairly apportioned, (3) the tax may not discriminate against interstate commerce, and (4) the tax must be fairly related to the services provided by the state
A state tax on foreign commerce must additionally (1) not create a substantial risk of international multiple taxation or (2) not prevent the fed gov from "speaking with one voice" regarding international trade or foreign affairs issues
101
What factors are considered in determining whether a def has been deprived of his post-accusation right to a speedy trial?
(1) the length of the delay, (2) the reason for the delay, (3) the def's assertion of a right to speedy trial, AND (4) the prejudice to the def resulting from the delay
102
Congress is permitted to encourage state action through the use of the taxing and spending powers, what are the five limitations of that encouragement?
(1) C must spend for the general welfare (any public purpose), (2) condition must be unambiguous, (3) condition must relate to the federal interest in particular national projects or programs, (4) condition must not induce the states to act in an unconstitutional way, (5) condition may not exceed the point at which "pressure turns to compulsion"
103
What is the test for restrictions on speech in public forums?
Reasonable time, place, manner restrictions, which means the restrictions must be content-neutral, narrowly tailored to serve a significant gov interest, and leave open alternative channels for communication
104
When is a state tax that affects interstate commerce considered not "unduly burdensome" under the dormant commerce clause, and thus permitted?
(1) applies to activity that has substantial nexus to state, (2) fairly apportioned to avoid taxing activities performed in other states, (3) not discriminatory against interstate commerce, AND (4) fairly related to services or benefits provided by the state
105
If a state regulation of interstate commerce is considered discriminatory under the dormant commerce clause, what test is applied to it?
Strict scrutiny
106
Under what circumstances are state laws that discriminate based on citizenship permitted?
The political-function exception--rational basis scrutiny applies when such laws restrict a noncitizen's participation in gov function allowing the (1) direct formulation, execution, or review of public policy, OR (2) exercise of broad discretion
107
For a regulation to be considered a taking under the takings clause, must it be a complete taking?
No, it can be an easement or other access onto private land, just compensation is necessary
108
Under substantive due process, what is considered an ordinary right, and what is considered a fundamental right? When an individual is deprived of an ordinary right, what test is applied? What about fundamental right?
Ordinary right - economic, employment, education (actual right to education, not choice of parent), social welfare
CHALLENGER must show no rational relation to any legit state interest
Fundamental right - 1A voting rights, voting, interstate travel, privacy
GOV must show necessary to achieve compelling state interest
109
When does the political question doctrine apply?
Federal courts cannot decide issues that (1) the Constitution reserves to other branches of gov, OR (2) lack judicially discoverable and manageable standards for resolution
110
Do taxpayers have standing to challenge the way tax dollars are spent?
No, unless (1) challenge to legislation enacted under C's taxing and spending power, ANd (2) alleges a violation of a specific constitutional limitation on that power
111
What are the limits on taxes enacted under the tax and spend for general welfare clause?
Federal taxes cannot (1) discriminate against states, OR (2) unduly interfere with states' essential functions
112
What elements must be met for a state to be able to tax a foreign business?
(1) substantial nexus between business's activities and activities in state, (2) fairly apportioned, (3) nondiscriminatory (applies to domestic and foreign corps.), (4) fairly related to services and benefits given to state
113
Can the federal gov tax exports?
No, never
114
What does the 15A prohibit state and federal govs from doing?
Taking away right to vote based on race
115
What are the exclusive legislative powers that C cannot delegate to the executive branch?
Making/repealing laws, declaring war, impeaching federal officers
116
What are the two levels of analysis for when a state regulates in a way that affects interstate commerce?
First, does the regulation (1) discriminate against out of state commerce, (2) unduly burden interstate commerce, or (3) purposefully regulate extraterritorial conduct (wholly out-of-state)
Second, if yes to any of the three above, is (1) an important local interest being served, AND (2) is there no other nondiscriminatory means to achieve that purpose
117
What is the Bankruptcy Clause of the Constitution?
Gives power of C to abrogate state immunity to subject states to provisions of the Bankruptcy Act
118
Is the right to interstate travel a fundamental right?
Yes, protected by substantive due process
119
What does the Privileges and Immunities Clause protect citizens from?
Protects citizens of one state from discrimination by another state in exercising fundamental rights
120
If a state or local law discriminates--on its face, in its application, or in its effects-- against interstate commerce, it is invalid unless what?
(1) it furthers a legit, noneconomic state or local interest, AND (2) no reasonable, nondiscriminatory alternative exists
121
Does an erroneous denial of for-cause challenges for jury members warrant reversal on appeal if the potential juror did not ultimately serve on the jury?
No
122
What is a taking by exaction? When is compensation for owner of land required?
Condition to obtain building/development permit
Compensation required unless gov establishes: (1) an essential nexus -- imposed condition substantially advances a legit gov interest, AND (2) rough proportionality -- individualized and quantifiable findings show that the proposed building's or development's impact on the community is roughly proportional to the imposed condition's impact on the landowner
123
Through what portion of the Constitution does equal protection principles apply to actions of Congress?
5A due process clause
124
What scrutiny is applied to campaign finance restrictions on contributions?
Intermediate scrutiny
125
What scrutiny is applies to campaign finance restrictions on expenditures of a candidate or supporters of a candidate?
Strict scrutiny
