Constitutional Law Flashcards
(163 cards)
1
Q
What are the source and limit of judicial power?
A
Art. III and actual cases and controversies.
2
Q
What is justiciability?
A
Whether lawsuit is capable of judicial resolution.
3
Q
What is the no advisory opinions rule?
A
Federal courts may not render advisory opinions, which lack an actual controversy between adverse parties or any legally binding effect on the parties.
4
Q
When is a controversy not ripe?
A
Request for pre-enforcement review of laws aren’t ripe unless substantial hardship in absence of review and issues and record are fit for review.
5
Q
When is a controversy live (not moot)?
A
Courts may only decide live controversies. It is live if 1) in suit for declaratory or injunctive relief, challenged law or conduct continues to injure OR 2) in suit for damages, P not made whole.
6
Q
What are the exceptions such that when injury has passed the controversy is not moot?
A
1) Injury capable of repetition that evades review; 2) D voluntarily stops challenged activity, but may restart at will; 3) in class action, one P suffers ongoing injury.
7
Q
What does standing consist of?
A
Injury, causation, redressability.
8
Q
What is an injury?
A
Almost any harm counts. EX: physical, econ, environmental, loss of constitutional or statutory rights.
9
Q
What is not an injury?
A
Ideological injury or generalized grievances as a citizen or tax payer. EXCEPT: taxpayer may challenge own tax liability and congressional spending in violation of the Establishment Clause.
10
Q
When must the injury occur?
A
Must have occurred or will imminently occur. If injunctive or declaratory relief, must show likelihood of future harm.
11
Q
Who must be injured?
A
Injury must be permanently suffered by P rather than those not before the court. No 3d party standing.
12
Q
What are the exceptions to the no 3d party standing rule?
A
1) Close relationship: P injured, 3P unable to use, P can adequately rep 3d party. 2) Organizations: members have standing, member injury related to purpose of org, member participation not required. 3) Free speech overbreadth: substantial overbreadth in terms of law’s legit to illegit sweep + not commercial speech.
13
Q
When is there legislative standing?
A
Legislators may challenge acts that injury them personally rather than the legislature generally.
14
Q
What is the standing causation requirement?
A
P must show injury is fairly traceable to D.
15
Q
What is the redressability requirement?
A
P must show that favorable court decision can remedy the harm.
16
Q
What is the political question doctrine?
A
Federal courts will not decide political questions i.e. questions 1) committed by Constit to political branches of govt or 2) incapable of or inappropriate for judicial resolution.
17
Q
What are examples of political questions?
A
Challenges under guarantee clause, foreign affairs, impeachment process, partisan gerrymandering, election or qualifications of members of Congress, seating of members at national political conventions.
18
Q
What is sovereign immunity?
A
Can’t sue the government.
19
Q
What are the exceptions to sovereign immunity?
A
State can be sued if 1) waiver, 2) P is other state or fed govt, 3) bankruptcy proceedings, 4) clear abrogation by Congress under 14th AM powers to prevent discrim.
20
Q
What suits are not barred by sovereign immunity?
A
Any suit against local govt or any suit against state officers for injunctive relief or money damages from own pocket.
21
Q
What is abstention?
A
Federal courts generally decline to decide a federal constitutional claim that turns on an unsettled Q of state law. Federal courts generally may not enjoin pending state judicial or administrative proceedings.
22
Q
What is the final judgment rule?
A
SCOTUS only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or a 3 judge DC.
23
Q
What is the independent and adequate state grounds doctrine?
A
SCOTUS won’t review a federal Q if the state court decision rests on an independent and adequate state law ground. IASG exists if outcomes would be the same regardless of how the FQ is decided.
24
Q
What are the source and limit of legislative power?
A
Art. I; enumerated powers (no general police power)
25
How does the necessary and proper clause work?
Not a basis of legislative power. Allows Congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution.
26
What's the general rule for taxing and spending power?
Congress may tax and spend to provide for the general welfare. This includes any public purpose not limited by the constitution, even if not w/in an enumerate power.
27
When may Congress attach spending conditions?
Strings must relate to the purpose of spending and not violate the Constitution. The may not be unduly coercive.
28
What commerce may congress regulate?
Commerce w/ foreign nations, Indian tribes, and among states.
29
What may Congress regulate w/ respect to interstate commerce?
Channels if IC, instrumentalities of IC, and substantial effect on IC in aggregate even if purely local activities. This is the broadest basis for CC regulation.
30
What are the limits to IC regulation?
Non-economic activity in area traditionally regulated by states and compelling participation in commerce.
31
How does the 14A impact Congress's power to regulate commerce?
May ban private discrimination under commerce power and seek to prevent and remedy state discrimination under 14A power to enforce the guarantee of equal protection.
32
When may congress delegate power to agencies?
May broadly delegate power as long as some intelligible principal guides the exercise of delegated power.
33
What power may not be delegated to the president?
Line item veto. Violates bicameralism and presentment.
34
What power may congress not delegate itself?
No delegation of legislative veto to void duly enacted laws w/o bicameralism and presentment.
35
What is the speech and debate clause?
Members of congress enjoy immunity from civil and criminal liability for legislative actions.
36
What is prez enforcement power?
Power and duty to enforce and execute the laws.
37
What is prez appointment power?
Must appoint ambassadors, federal judges, and officers of the US w/ advice and consent of majority of senate. Congress may also vest appointment power in Prez, department heads or judiciary for "inferior officers."
38
What is prez removal power?
Prez may remove high level exec officers at will. Congress may limit prez removal of other exec officials to good cause. Congress may not remove exec officials except through impeachment.
39
What is prez pardon power?
May pardon anyone accused or convicted of federal crime EXCEPT no power to pardon crimes underlying impeachment by HoR and does not extend to civil liability.
40
Who holds the war power?
Congress alone has power to declare war. Prez as commander in chief has broad discretion to deploy troops internationally to protect American lives and property (Congress checks through power of purse).
41
How does Prez create treaties?
Prez negotiates; senate approves by 2/3 majority; treaty trumps existing and future state law; treaty trumps existing but not future federal law.
42
How does Prez create exec agreement?
Prez negotiates; no senate approval required; EA trumps existing and future state law; Fed law trumps EA.
43
Who may be impeached and for what?
Congress may impeach Prez, VP, federal judges, and all officers of US for treason, bribery or other high crimes and misdemeanors.
44
What is the impeachment process?
House passes articles of impeachment by majority vote; senate convicts by 2/3 vote; removal requires both.
45
What does prez have immunity?
Absolute immunity from civil damages for any actions arguably w/in official responsibilities. No immunity from private suits for conduct prior to taking office.
46
What is exec privilege?
Protects confidentiality of prez communications. May yield if outweighed by other important govt interests.
47
What does the 10A do?
Powers not granted to US or prohibited to states are reserved to states or people i.e. general police powers are reserved to states.
48
What is the anti-commandeering principal?
Congress cannot compel states to enact or administer federal programs.
49
What is the Supremacy Clause?
Art IV. Makes federal law preempt inconsistent state and local laws.
50
What are the three ways preemption may be implied?
1) Impossible to follow both federal and state law. 2) State law impedes federal law. 3) Extensive federal regulation indicates congressional intent to occupy the field.
51
What is the dormant CC?
Prohibits state laws that discriminate against or unduly burden interstate commerce. Protects out of staters from interstate commerce discrimination.
52
What state laws does the privileges and immunities clause of the 4A forbid?
Laws that discriminate against out of state US citizens in important commercial activities and fundamental rights.
53
What does the privileges or immunities clause of the 14A prohibit?
State laws that interfere w/ interstate travel or petitioning govt. NOT BoR.
54
If there's a DCC potential violation, what is the test?
Discriminatory laws are presumptively invalid unless necessary to achieve imp govt purpose and no less discriminatory purpose. Non-discriminatory laws are presumed valid unless burden on IC clearly outweighs non-protectionist benefits.
55
What are the exceptions that make DCC not apply?
Congressional approval of law and when the state govt acts as a market participant subject to the same restriction.
56
If there's a privileges and immunities violation, what's the test?
Discriminatory laws are presumed invalid unless necessary to achieve important govt purpose and no less discriminatory alternatives. NO EXCEPTION.
57
How may states tax interstate commerce?
Discriminatory taxes generally invalid. Non-discriminatory taxes general valid if substantial nexus between taxpayer and state AND fair apportionment to business done or benefits received in state.
58
What is federal immunity for tax purposes?
States may not tax or regulate the federal govt w/o its consent.
59
What does the privileges or immunities clause of 14A protect?
Right to petition federal government and fundamental right to interstate travel (right to enter/leave a state and equal treatment once become permanent resident of state). BUT no fundamental right to international travel.
60
Who does 13A apply to?
Applies to state action and private conduct.
61
What is incorporation?
BoR protections incorporated against states through 14A.
62
What rights haven't yet been incorporated?
3A right to have soldiers quartered in home; 5A right to grand jury indictment; 7A right to jury trial in civil cases; 8A right against excessive fines.
63
What is state action?
State law; state officials acting officially; public function; state involvement.
64
What is public function?
State action exists when private party performs function done by govt traditionally and exclusively.
65
What is state involvement?
Fairly significant state involvement in challenged private conduct may count as state action.
66
What are the provisions for procedural due process?
5A DPC applies to federal govt. 14A DPC applies to states and localities.
67
What is the general PDP rule?
Individual has a right to a fair process when government acts to deprive life, liberty or property.
68
What is a deprivation?
Intentional rather than negligent.
69
What is liberty?
Physical freedom as well as statutory and constitutional rights. NOT mere harm to reputation.
70
What is property?
Real and personal, tangible and intangible OR govt entitlement to which an individual has a reasonable expectation of continued receipt (not at will employment).
71
If deprived, what process was due?
Notice, opportunity to be heard, and a neutral decision maker.
72
What is notice?
Reasonably calculated to inform a person of deprivation.
73
What is a pre-deprivation hearing?
Required unless govt shows highly impracticable.
74
What is a post-deprivation hearing?
Only allowed in extreme circumstances like emergency institutionalization or suspension of license after failed breathalyzer.
75
What is the balancing test to determine the nature and extent of procedures necessary for DP?
Importance of interest to individual, risk of error through procedures used, accuracy gain from additional procedures, and burden on govt. More important right = more process.
76
What is a neutral decision-maker?
No actual or serious indication of bias.
77
When do we use SCOTUS levels of scrutiny analysis?
Equal protection, substantive due process, and free speech violations.
78
What is rational basis?
Attempt to achieve a legitimate ends that is rationally related to govt interest. Burden on challenger and presume validity.
79
What is intermediate scrutiny?
Attempt to achieve important state interest substantially related to govt interest. Burden on state and no presumption of validity/invalidity.
80
What is strict scrutiny?
Attempt to achieve compelling state interest narrowly tailored (least restrictive) to achieve. Burden on state and presume invalid.
81
Where does equal protection come from?
14A EPC for states; 5A DPC w/ equal protection component for fed govt. Triggered by govt treating people differently.
82
What are the 2 EPC analysis steps?
1) What is the basis of the different treatment? 2) What is the level of review?
83
What are the classification levels of scrutiny?
Suspect (SS): race, national origin, alienage classifications (citizen), or denial of fundamental rights.
Quasi-Suspect (Int.): gender, illegitimacy, undocumented alien kids, maybe sex orientation.
Rational basis: everything else.
84
How do we determine what class is involved?
1) Facial; 2) disparate impact and discriminatory intent.
85
Race and national origin
Test: strict scrutiny. EX: school integration, affirmative action in higher ed or govt hiring and contracting. Okay if compelling interest and narrowly tailored or remedying own past discrimination.
86
Alienage
If a congressional classification, test is rational basis (congress may choose not to give health benefits to non-citizens). If a state classification, strict scrutiny UNLESS state and local govts reasonably require U.S. citizenship for activities and positions integral to democratic self-governance.
87
Gender
Test: Intermediate scrutiny. Must have an important interest that requires exceedingly persuasive justification, not stereotype.
88
Legitimacy
Test: Intermediate scrutiny. Laws based on prejudice i.e. denying benefits to non-marital children are invalid. Laws that distinguish among non-marital children are more likely to be upheld.
89
Fundamental rights
Test: strict scrutiny. Class affected doesn't matter.
90
All other classifications
Test: rational basis. Prejudice is not rational. Can't have animus and moral disapproval.
91
What are fundamental rights?
1) Deeply rooted in national history and tradition OR 2) implicit in concept of ordered liberty.
92
Due process v. equal protection
Denying everyone a fundamental right is substantive DP only. Denying some people a fundamental right is substantive DP and equal protection.
93
What are the fundamental rights that get strict scrutiny analysis under substantive DP?
Marriage, procreation, contraception, custody/care/upbringing of children, living w/ extended family, interstate travel, and vote.
94
What are the fundamental rights that get undue burden scrutiny in SDP?
Abortion.
95
What are non-fundamental rights that get rational basis scrutiny in SDP?
Economic rights, physician assisted suicide, and education.
96
What rights are unspecified for SDP purposes?
Private consensual adult sexual intimacy, refuse medical treatment, bear arms.
97
What are the special SDP rules for marriage?
Substantial interference w/ right to marry is necessary to trigger strict scrutiny. Reasonable restrictions to protect rather than hinder the right to marry are upheld under rational basis.
98
What is the fundamental right to national travel?
Right to enter and leave a state; equal treatment once become permanent resident of the state; no fundamental right to international travel.
99
Right to vote gets what protection?
Rational basis for reasonable requirements that protect rather than hinder right to vote via age, residency, and citizenship. Strict scrutiny for onerous or potentially discriminatory restrictions like poll tax or literacy tests.
100
What is the one person one vote principal?
For state and local reps, EP requires population of voting districts be substantially equal (16% okay in at least 1 case). For federal reps, Art. I requires population of congressional districts w/in a state be almost exactly equal.
101
What review does gerrymandering get?
If racial, SS if race was a predominant factor. If political, likely a non-justiciable political Q.
102
What is the SDP test for abortion?
Pre-viability: may regulate to protect mother's health or life of fetus, but can't place undue burden on abortion access.
Post-viability: may prohibit abortions unless necessary to protect mother's life or health.
103
Is there SDP for refusing medical treatment?
Competent adult may refuse lifesaving medical treatment, but state may require clear and convincing evidence of the individuals' wish and prevent fam from terminating treatment. No right to physician assisted suicide and state may compel vaccination.
104
What is the takings rule?
Feds (5A Takings Clause) and states (14A) may not take private property unless 1) for public use and 2) just compensation.
105
What is property?
Real and personal property. Some intangible property like interest on atty trust accounts and trade secrets (but not welfare benefits) count.
106
What is a physical taking?
Confiscation OR regular or permanent occupation. EXCEPT: traditional conditions on property development are not takings if benefits are roughly proportional to burdens and taking less likely to exist if pursuant to public emergency.
107
What is a regulatory taking?
Regulations on use that not merely diminish but leave no economically viable use.
108
What is a public purpose?
Any legit public use i.e. any purpose that government reasonable beliefs will benefit the public.
109
What is just compensation?
FMV at time of taking.
110
When does the contracts clause bar new legislation altering K benefits?
Applies to state and local laws only (not federal govt, judicial decisions).
111
What are the tests for the Contracts Clause's application?
With private contracts, substantial impairment of existing rights invalid unless 1) important govt purpose and 2) reasonably related means. With public contracts, heightened scrutiny (worry attempted self-dealing).
112
What is the rule for ex post facto laws?
Neither state nor federal govt may pass legislation that retroactively laters criminal liability to 1) criminalize an act that was innocent when done; 2) makes crime greater than when committed; 3) sets greater punishment than when act was done; 4) reducing evidence required to convict rom what was required at the time of the act.
113
What is the rule for bills of attainder?
Neither the state nor federal govt may pass legislation that designates particular individuals for punishment w/o judicial trial. Punishment = traditional sanctions and punitive measures.
114
What is the analysis for freedom of speech?
1) Is it speech?
2) Is the speech protected or unprotected?
3) What kind of restriction are we looking at?
4) Is the restriction vague, overbroad, or a prior restraint?
115
What is speech?
Words, symbols, or expressive conduct.
116
What is expressive conduct?
Conduct that is inherently expressive AND conduct intended to convey a message and that is reasonably likely to be perceived as conveying a message.
117
What kinds of speech are protected, partly protected, and unprotected?
UNPROTECTED: incitement, fighting words, true threats, obscenity, child porn, defamation w/ actual malice, misleading or false commercial speech.
PARTLY PROTECTED: defamation about public officials, figures, or matters of public concern; commercial speech.
PROTECTED: all else.
118
What is incitement?
Advocacy of lawless action that is INTENDED and LIKELY to produce imminent lawless action. Mere advocacy of lawlessness is protected speech.
119
What is the fighting words test?
Words likely to provoke an immediate violent response.
120
What is the true threats test?
Words intended to convey to someone a serious threat of bodily harm.
121
What is the obscenity test?
Depiction of sexual conduct that taken as a whole, by contemporary standards, appeals to the permient (lustful) in sex, is patently offensive, and lacks serious social value by national standards.
122
What is not obscene?
Mere nudity, soft-core porn, and dirty words
123
When does obscenity not apply?
Right to privacy extends to possession of obscene material in home, which may not be banned.
124
When may sexually explicit or indecent speech that is not obscene be subject to zoning?
1) To protect children and unwilling adults from exposure or 2) to prevent neighborhood crime or decay. CAVEAT: ample alternative channels must exist for the speech.
125
What is the child pornography test?
Depiction of children engaging in sexual conduct whether or not obscene. Must be actual children, and in home possession is banned.
126
What is the defamation rule?
To promote robust pubic debate, 1A bars recovery under state defamation law for speech made w/o actual malice about public officials, public figures, or matters of public concern.
127
What is actual malice?
Knowledge of falsehood OR reckless disregard of truth.
128
Who are public officials?
Holding or running for elective office; public employees in positions of public importance
129
Who are public figures?
Assumed roles of prominence in society; achieved pervasive fame and notoriety; thrust themselves into particular public controversies to influence their resolution.
130
What is a matter of public concern?
Matters important to society and democracy.
131
How to apply defamation standard?
1) Type of P being defamed AND 2) subject matter of the alleged defamation. This determines whether P must prove actual malice and what damages Ps may recover.
132
Defamation rule for all public matter?
Must prove actual malice; any damages allowed.
133
Defamation rule for private figure on a matter of public concern?
If prove actual malice, presumed and punitive damages
| If negligence, actual damages.
134
Defamation rule for all private matter?
No actual malice and any damages.
135
What is commercial speech?
Ads and promos of products and services and brand marketing (profit motive insufficient).
136
protected v. unprotected commercial speech?
Unprotected if false, misleading or about an illegal product/service. Otherwise, protected.
137
What is the commercial speech test?
1) Substantial govt interest and 2) Narrowly tailored.
138
What are content based general speech restrictions?
SS applies. Restrictions that suppress speech because of the message or harm that the message may produce.
139
What are content neutral general speech restrictions?
Restrictions suppressing speech for reasons unrelated to the message. Intermediate scrutiny applies. Usually this channels speech on basis of time, place or manner.
140
What is a traditional public forum?
Open to public as free speech zone from time immemorial. Cannot be undesignated as public forum. EX: parks, streets.
141
What is a designated public forum?
Opened by policy or purposeful practice as free speech zone. Can be undesignated as a public forum. EX: college email systems.
142
What is a non-public forum?
Not opened by tradition or designation as free speech zone. Catch all category. EX: classes, DMV, post office.
143
In public forums, what is the standard of review for speech regulation?
SS if content based restriction; intermediate if content neutral.
144
In private forums what is the standard of review for speech regulation?
Reasonable given the nature of the forum.
145
In public schools, how may personal student speech be restricted?
Cannot be censored absent evidence of substantial disruption EXCEPT when speech promotes illegal drug use.
146
In public schools, how may school speech (incl. co-opted student speech) be restricted?
Can be censored if reasonably related to a legit pedagogical concern.
147
What is unprotected public employee speech?
1) Private concern (office gossip) or 2) pursuant to official duties.
148
What is protected public employee speech?
Matters of public concern.
149
What is the public employee speech test?
Free speech value v. state interest in efficient operation.
150
What is the political patronage free speech rule?
Public employees may not be hired or fired based on political affiliation or expression UNLESS high-level policy maker or advisor.
151
What is the vagueness test?
Law is void for vagueness if persons of common intelligence can't tell what speech is prohibited and what is permitted.
152
What is the overbreadth test?
Law is invalid as overbroad if it prohibits substantial amount of speech that govt may not suppress. 3d party standing is allowed if claim raises concerns about speech on behalf of others whose speech may not be censored.
153
What is a prior restraint?
Licensing schemes or injunctions that prevent speech before it occurs rather than punishing speech afterward. These are disfavored. Content based prior restraints get SS; licensing systems must have sufficiently definite standards to cabin discretion as well as prompt judicial review of denials.
154
How do we treat press, expressive associations, and corporations and unions?
Generally the same as other speakers.
155
What is religion?
Traditional religion and beliefes that play role in life of believer similar to role that religion plays in life of traditional adherents. To decide religious claims, govt may inquire into the sincerity of belief, but not truth.
156
What are the free exercise tests?
If discriminatory law, SS.
If neutral law of general applicability, not subject to free exercise clause.
EXCEPTION: religious orgs are exempt form employment discrimination suits by ministers.
157
What are discriminatory religious laws?
Not neutral w/ respect to religion; not generally applicable but targeted at religion generally or a religion in particular.
158
What are all the establishment clause tests?
Neutrality, coercion, Lemon, endorsement, history and tradition. May violate EC on one or more of these theories.
159
What is the Neutrality Test?
Govt must remain neutral w/ respect to religion, neither favoring or disfavoring it.
160
What is the Coercion Test?
Govt may not directly or indirectly coerce individuals to exercise or refrain from exercising religion.
161
What is the Lemon Test?
1) primary purpose is sectarian
2) primary effect is sectarian
3) excessive entanglement between govt an religion
162
What is the endorsement test?
From standpoint of reasonable and informed observer, govt must not appear to endorse or disapprove of religion, making it seem relevant to a person's standing in the political community i.e. no signaling insider/outsider status.
163
What is history and tradition?
Sometimes the Court sets aside the above principles and finds that a state religious display or practice is a tolerable acknowledgement of the role religion has played in the history and tradition of the nation.
