Constitutional Law Flashcards
(67 cards)
What is the scope of the President’s power to remove executive officials?
The Constitution says nothing about the President’s power to remove executive officers, but it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval). But when creating an independent agency, Congress may require good cause to remove officers from a multimember body balanced along partisan lines that exercises no executive power. Congress may also require good cause to remove inferior officers with limited duties and no policymaking or administrative authority.
Note: federal judges are excepted and hold their offices during good behavior and until impeached.
(A) If the Constitution and a treaty conflict, which controls?
(B) If a treaty and an act of Congress conflict, which controls?
(A) The Constitution is superior to a treaty.
(B) The most recently adopted will control.
In what two scenarios does private conduct amount to state action?
(i) When a private person carries on activities that are traditionally performed exclusively by the state; and
(ii) When the government is significantly involved in private discrimination.
How does injunctive relief operate as an exception to the application of the Eleventh Amendment?
When a state official, rather than the state itself, is named as the defendant, the state official may be enjoined from enforcing a state law that violates federal law, or may be compelled to act in accord with federal law despite state law to the contrary. However, federal courts generally may not issue injunctions against state court judges or clerks because they generally do not enforce state laws but resolve disputes between parties.
What does it mean in terms of mootness when a case is capable of repetition, yet evading review?
A case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subject to the same action again (capable of repetition) but that the action will not last long enough to work its way through the judicial system (yet evading review).
Note: Roe v. Wade provides the classic constitutional example. By the time the woman seeking to terminate her pregnancy finally came before the Supreme Court, she was no longer pregnant, therefore the argument was made that her claim was moot. However, she could once again find herself in a similar situation, and would again be without judicial recourse.
Over what types of cases does the Supreme Court have original jurisdiction?
The Supreme Court has original jurisdiction over:
(i) All cases affecting ambassadors
(ii) Other public ministers and consuls
(iii) Those in which a state is a party
What does it mean for a judgment to rest on “adequate and independent state grounds”?
The state law grounds fully resolve the matter (i.e., be adequate) and do not incorporate a federal standard by reference (i.e., be independent). The U.S. Supreme Court may not review a final state-court judgment that rests on adequate and independent state grounds.
A state may impose a nondiscriminatory tax on interstate commerce, as long as the following three requirements are met:
(i) There is a substantial nexus between the taxing state and the property or activity to be taxed;
(ii) There must be fair apportionment of tax liability among states; and
(iii) The tax must be fairly related to the services provided by the taxing state.
What is a pocket veto?
If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden. Instead, Congress must reintroduce a new bill, which must pass through both houses of Congress before being presented to the president again.
To have standing, a plaintiff bears the burden of establishing three elements. Name the elements.
(i) Injury in fact;
(ii) Causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right); and
(iii) Redressability (the relief requested must prevent or redress the injury).
Note: The federal judiciary has also established a “prudential standing” requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute.
Under Equal Protection, in what two instances does the court apply the strict scrutiny test?
When the state action in question involves a fundamental right or suspect classification.
What is required for a governmental affirmative action program based on race to be constitutional?
To pass strict scrutiny:
(i) The government must itself be guilty of specific past discrimination against the group it is seeking to favor; and
(ii) The remedy must be narrowly tailored to end that discrimination and eliminate its effects.
Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.
The restriction must:
(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.
What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?
(i) Race
(ii) Ethnicity
(iii) National origin
(iv) If the classification is by state law, citizenship status
Name the four situations where a federal or state statute will be struck down as being ex post facto.
If the law:
(i) Creates a new crime and applies retroactively;
(ii) Increases the penalty for past conduct;
(iii) Deprives the defendant of a defense available at the time the act was committed; or
(iv) Decreases the prosecution’s burden of proof required for a conviction below what was required when the alleged offense was committed.
What is the difference between the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment?
Article IV applies to state citizenship and the Fourteenth Amendment applies to national citizenship.
Note: The Fourteenth Amendment’s Privileges or Immunities Clause applies, in practice, only to the right to travel.
What four requirements must be met in order for government regulation of expressive conduct to be upheld?
(i) The regulation is within the government’s power to enact;
(ii) The regulation furthers an important governmental interest;
(iii) The governmental interest is unrelated to the suppression of ideas; and
(iv) The burden on speech is no greater than necessary.
What is the difference between the Due Process Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment?
The Due Process Clause of the Fifth Amendment applies against the federal government, and the Due Process Clause of the Fourteenth Amendment applies against the states.
There is a general rule that states cannot enact legislation that discriminates against out-of-state commerce. What are the five exceptions to this rule?
(i) Necessary to important state interest and no other nondiscriminatory means are available
(ii) State as a Market Participant
(iii) Traditional government function exception
(iv) Subsidies
(v) Federal/Congressional Approval
A political question not subject to judicial review arises when: [Name the two possibilities.]
(i) The Constitution has assigned decision making on this subject to a different branch of the government; or
(ii) The matter is inherently not one that the judiciary can decide.
Who may impeach the president and who may convict the president?
The House of Representatives determines what constitutes “high crimes and misdemeanors” and may impeach by a majority vote. The Senate tries the impeached official, and a 2/3 vote is necessary for conviction.
What must the plaintiff show in order to trigger strict or intermediate scrutiny under the Equal Protection Clause?
Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive
What powers does Congress use to encourage state action that it cannot directly compel?
The Taxing and Spending Power
Note: Congressional encouragement may not exceed the point at which pressure turns into compulsion.
When does a taxpayer have standing to file a federal lawsuit?
A taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause. A taxpayer also has standing to litigate whether, or how much, she owes on her tax bill.
