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Flashcards in Constitutional Law Deck (41):

What are the three requirements for standing?

(1) the litigant must have suffered [or likely to suffer] some concrete, individual injury in fact which was (2) caused by the act being complained of, and (3) there must be a significant possibility that this injury will be redressed by giving the litigant the relief he seeks.
** generally there is no text payer standing.


When is third-party standing appropriate?

--A party who has satisfied the constitutional minimum for standing will be allowed to raise a claim of an absent third-party if: (1) there is a close relationship, (2) the injured party is unlikely to be able to assert his own rights
--an organization may sue for its members if (1) the member would have standing (2) interest has germane to the organization's purpose, (3) claim nor relief requires participation of individual members.


What is ripeness?

Concerns wanted plaintive may obtain pre-enforcement review of a statute or administrative regulation.


What is mootness?

A case of not justiciable if it is moot. A case is moot if it is raised a judicial controversy at the time the complaint was filed, but events occur after filing have deprived the litigant of an ongoing stake in the controversy.
--exception: the issue is capable of repetition, yet evading review.


What is sovereign immunity?

The 11th amendment bars suits against states in federal court and bar suits against states and state courts or federal agencies.
--exceptions: waiver; states may be sued pursuant to federal laws adopted under section 5 of the 14th amendment; federal government may sue state governments; and bankruptcy proceedings.


What is congresses taxing and spending power?

Congress may lay and collect taxes, duties, import and excises, to pay the debts and provide for common defense and general welfare of United States.


What is the commerce clause?

Congress has authority under the commerce clause to regulate commerce in three main areas. These are the (1) channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) those activities that substantially affect interstate commerce.


What is congresses property power?

Congress has the power to dispose of and make rules for territories and other properties of United States [including Washington DC]. There is no express limitation on congresses power to dispose of property, federal takings [imminent domain] must be for the purpose of effectuating an enumerated power under some other provision of the Constitution.


What are congresses war Powers?

Congress has the power to declare war, raise and support armies, and provide for and maintain a Navy.


What is congresses bankruptcy power?

Congress has the power to establish uniform rules for bankruptcy; states may legislate so long as their laws do not conflict with federal law.


What is congresses Admirality power?

Congress's admiralty power is plenary and exclusive unless Congress leaves maritime matters to states.


What is Congress's patent/copyright powers?

Congress has the power to control the issuance of patents and copyrights.


What is the 13th amendment?

The 13th amendment, unlike the 14th and 15th, is not explicitly limited to governmental action. It is practically the only clause in the Constitution that prevents one private citizen from doing something to another.
--allows Congress to stamp out the badges of slavery. All other racial minorities are also protected.


When can Congress delegate its powers?

There is no limit on congresses ability to delegate legislative powers. Legislative vetoes and line-item veto's are unconstitutional.
Congress may not delegate executive powers to itself or its officers.


What is the executive powers right to execution of laws?

The president holds the executive power. This is, he carries out the laws made by Congress. It is his obligation to make sure that the laws are faithfully executed. However, Pres. has no power to impound funds appropriated by Congress.


What is the commander in chief executive power?

He it is commander-in-chief of the Armed Forces. So he directs and leads our Armed Forces [but he cannot declare war – only Congress can]. Never, has a presidential use of troops in foreign nations been declared unconstitutional.


What are the treaty and foreign affairs executive powers?

The president can make treaties with foreign nations [but only if two thirds of the Senate approves]. He appoints ambassadors. Also he effectively controls our foreign-policy – some of this power over foreign-policy stems from his right to appoint ambassadors, but much is simply implied from the nations need to speak with a single voice.


Who appoints federal officers?

The present appoints all federal officers. These include cabinet members, federal judges, and ambassadors [but the Senate must approve all such federal officers by majority vote]. As to inferior federal officers it is up to Congress to decide whether they should be appointed by the Pres., by the judicial branch, or by the heads of departments. Congress cannot make these lower-level appointments itself, it may merely decide who can make these appointments.


Who can the Pres. pardon?

The president can issue pardons, but only for federal offenses. [He cannot pardon anyone who is been impeached].


What is the presidents veto power?

The present may veto any laws passed by both houses [this may be overruled by two thirds majority of each house]. If the president doesn't veto the bill within 10 days after receiving it, it becomes law [unless Congress has adjourned by the 10th day after it sent him – this is a so called pocket veto]. Present may not line-item veto [all or nothing].


What are the four limitations to congress' delegation authority?

Cannot delegate the powers that are unique to Congress [power to declare war in impeachment].

Must include some intelligible standards to be followed.

Cannot retain executive powers unto itself.

May delegate authority to enact regulations.


What is the speech and debate clause?

Members of Congress are given broad immunity by the speech and debate clause: for a speech or debate in either house, shall not be questioned in any other place, this clause shields members of Congress from civil or criminal suits relating to the legislative actions and grand jury investigations relating to those actions.


What is the supremacy clause?

The supremacy clause of the article 6 provides that the Constitution and laws and treaties made pursuant to it, are the supreme law of the land.
--express: when a federal statute says that federal law is exclusive in an area.
--implied: where a statute is silent:
----if federal and state laws are mutually exclusive, federal law pram state law.
----if state law in peds the achievement of federal objective, federal law preamp state law.
----if Congress evidences a clear intent to preempt state law, federal law preempt state law.
*** note: states may not tax or regulate federal government activities [inter – governmental immunity].


What is the dormant commerce clause?

A state or local law is unconstitutional if it places an undue burden on interstate commerce.


What is the privileges and immunities clause of article 4?

No state may deprive citizens of other states of the privileges and immunities of citizens of that state [out-of-state discrimination].


What is the privileges and immunities clause of 14th amendment?

States may not deny their citizens the privileges or immunities of national citizenship [the right to vote for federal officers, and the right to interstate travel].


What is the strict scrutiny standard?

Under strict scrutiny, the laws upheld if it is proven necessary to achieve a compelling government purpose. The government has the burden of proof under strict scrutiny that it cannot achieve its objectives through any less discriminatory alternative.


What is intermediate scrutiny standard?

Discrimination based on gender and against nonmarital children [illegitimate]. Under intermediate scrutiny, a laws upheld if it is substantially related to an important government purpose. Government has the burden of proof


What is the rational basis standard?

All laws not subjected to strict or intermediate scrutiny [age, disability, wealth]. Under rational basis review a plaintiff must prove a law is not rationally related to a legitimate government purpose. The Challenger has the burden of proof.


What is the test for procedural due process?

Procedural due process requires that the government provide notice and an opportunity to be heard whenever there is a serious depravation of any person's life, liberty, or property.


What is the test for substantive due process?

Whether the government has a substantive reason for taking away persons life, liberty or property. When government abridges [or restricts] a fundamental right to all people, the court pursuant to substantive due process, will use strict scrutiny to review the law, if not it is rational basis. If a law deprives a fundamental right based on a "classification" use equal protection analysis. A fundamental right maybe enumerated or unenumerated.


What discrimination falls under strict scrutiny under equal production?

Discrimination based on race, national origin, alienage [state], and fundamental rights.


What is the special alienage rules?

Only rational basis review is use for state alienage classifications related to self government in the democratic process. Examples of this are voting, jury service, elected officials, police officers, elementary/high school teachers, judges.


When will a law failed the rational basis review?

Laws will fail rational basis when the classification of the law itself is so unrelated to the government's purpose in enacting it that there is no relation to it. Example federal foodstamp program excluded any household containing unrelated persons.



The government may take private property for public use if it provides just compensation.
--possessory taking: government confiscation or physical occupation of property.
--regulatory taking: government regulation is a taking if it leaves no reasonable economically viable use of the property. It is not taking if it reduces the value.


What speech is unprotected by the Constitution?

Incitement of illegal activity: there must be a substantial likelihood of eminent unlawful action and speaker must intend to cause imminent lawless action.

Obscenity: obscene speech must appeal to the prurient interest in applying local community standards, depict sexual conduct in a patently offensive way under law prohibiting conduct, and taken as a whole it lacks serious literary, artistic, political, or scientific value [national view].

Child pornography

Fighting words: restricted speech includes personally abrasive language likely to invite the average person to commit acts of physical violence; however, statutes designated to punish only particular viewpoints are invalid. Laws prohibiting fighting words are almost always unconstitutionally vague or overbroad.


Fraudulent commercial speech

Government employees: speech by government employees on the job in the performance of their duties is not protected by the First Amendment. Therefore government oaths requiring opposition of the violent overthrow the government and to support the castration have been held valid.


What is the scrutiny for content neutral public forums?

Substantially advances an important government interest unrelated to the suppression of speech; be narrowly tailored [it does not burden substantially more speech than necessary to further the governments interest – monopolies restrictive method]. Leaves open alternative channels of communication.


Limited public forms?

Government properties that are limited to certain groups or dedicated to the discussion of only some subjects. The government can regulate speech and limited public forums so long as the regulation is reasonable and you point neutral.


Nonpublic forums?

Government properties that government constitutionally Canon does close to speech. The government can regulate speech in nonpublic forum so long as the regulation is reasonable and viewpoint neutral.


Establishment clause?

Facially discriminatory: the government may not aid or prefer one religion or sect to another, subject to strict scrutiny.

Officially neutral: where the government legislation or government activity contains no preference it must satisfy the lemon three-part test.
--have a secular purpose [non-– religious],
--have a primary effect that neither advances nor inhibits religion,
--not foster excessive government entanglement with religion [government paying teacher salaries and religious schools = excessive entanglement].
** court does not use lemon test when looking at religious monuments.


What is the free exercise clause?

In general, a person's religious beliefs are absolutely protected by free exercise clause.
--valid and neutral law of general applicability: if a law is secular in nature and only has an indirect burden on religion it will be subject to the rational basis test.
--discriminatory on its face: if discrimination is the purpose of the law [look to history and traditions], strict scrutiny will be used and it will never be a compelling government interest. Examples: banning animal sacrifice because of religion and not protection of animals is unconstitutional; denying unemployment benefits because women quick job for religious reasons.