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Flashcards in Constitutional Law Deck (120)
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What are the four justice ability requirements?

Standing, ripeness, mootness, political question


What are the 3 requirements to establish standing?

1. Injury
2. Causation
3. Redressability


To meet the injury requirement for standing, what must the laintiff allege and prove?

That plaintiff has been personally injured or imminently will be injured personally. If seeking injunctive or declaratory relief, must show a likelihood of future harm.


What must the plaintiff allege and prove to meet the causation and redressability requirement?

1. Defendant cause the injury
2. Favorable court decision is likely to remedy injury.
No advisory opinion.


What are the three exceptions to 3rd party standing?

1. Close relationship between plaintiff in the injured third party.
2. Injured third party is unlikely to be able to assert his or her own rights.
3. Organization on behalf of members if
(a) members would have standing,
(b) members interests germane to organization's purpose
(c) neither the claim nor relief requires participation of individual members.


Does a person by virtue of being a citizen or taxpayer have standing?

No, that's a generalized grievance unless challenging governments expenditures pursuant to Federal, state, or local statutes as violating the establishment clause.


What are the requirements for ripeness?

Federal Court may not grant a declaratory judgment unless of a statute or regulation unless Plaintiff will suffer some hardship or threat of hardship without the review


What are the three exceptions to the application of mootness?

Events after the filing of a lawsuit will end plaintiffs injury and be dismissed as moot unless one of the following apply:
1. The wrong is capable of repetition but the fading review
2. Defendant voluntarily stops offending conduct but may resume at any time
3. Class action suits as long as one member of class has ongoing injury, even though named plaintiffs injury is done


What are four examples of the political question doctrine?

1. Article 4 " republican form of government" clause challenge
2. Challenges to the president's conduct of foreign policy
3. Challenges two of the impeachment and removal process
4. challenges to partisan gerrymandering


When may the Supreme Court hear cases?

On certiorari: final judgment of highest state court or the U.S. Court of appeals where a state law, federal statute, treaty, or state statute violates federal law or is unconstitutional.

On appeal: three judge Federal District court

Original and exclusive jurisdiction for suits between state governments


What if a state court decision rests on state law and Federal law grounds, can the supreme court hear it?

No. There must not be an independent and adequate state law ground of decision.


What source of law generally prevents courts from hearing suits against states? What exceptions apply to subject states to suits?

The 11th amendment bars suits against states in Federal Court. Sovereign immunity bars suits against states in state courts or Federal agencies.

1. Explicit waiver
2. Federal laws adopted under section five of the 14th amendment.
3. Federal government may sue state governments
4. Bankruptcy proceedings


When may state officers be sued?

1. Injunctive relief
2. Money damages to be paid out of their own pockets, but not from state Treasuries.


If asked whether Congress had authority to enact a law, what are the 8 main constitutional sources to consider that could justify Congress' exercise of power in this instance?

"Necessary commerce tax 5 of 14"
1. Necessary and proper clause
2. Tax and spend for general welfare
3. Commerce Power
4. Section five of the 14th amendment
5. Military
6. Indian reservations
7. Land federally owned
8. District of Columbia


What types of laws is Congress able to pass under its Commerce Power?

Congress may regulate:
1. Channels of interstate commerce, such as highways
2. Instrumentalities of interstate commerce, persons or things in interstate commerce, such as trucks telephones Internet
3. Economic activities that have a substantial effect on interstate commerce, but cumulative impact is no basis for legislation if the area is not an economic activity.


What limit is placed upon Congress' Power under section five of the 14th amendment to legislate?

Congress may not create new rights or expand the scope of rights; may act only to prevent or remedy violations of rights recognized by courts. Such laws must be"proportionate" and "congruent" two remedying constitutional violations.

Example: religious freedom restoration act was unconstitutional because Congress was creating new rights rather than protecting existing rights


What are legislative and line item vetoes?

A legislative veto is an attempt to overturn an executive action without bicameralism and presentment.
A line item veto is a presidential attempt to strike individual provisions of the law.


What limits exist on congress's ability to delegate legislative power?

Since 1937 no delegation of legislative power has been found unconstitutional. However Congress may not delegate executive power to itself or its officers.


What are the three treaty conflict rules?

1. Treaties prevail over conflicting state laws
2. If the treaty conflicts with a Federal statute, the one adopted last in time controls.
3. That if a treaty conflicts that the U.S. constitution it is invalid


What are the three main differences between an executive agreement and a treaty?

1. No senate approval is required for an executive agreement, only signature by president and head of foreign country.
2. Federal statute controls over executive agreement but whichever was last in time controls with treaty.


Which officials may be appointed under the president's appointment power?

Ambassadors, Federal judges, and "officers"


What is an "inferior officer" (as opposed to a" officer") and who appoints them?

An "inferior officer" can be fired by an "officer." Congress may vest the appointment of inferior officers in the president, the heads of departments, or the lower Federal courts (but not itself).


Can Congress prohibit the president's removal power?

No. It can only limit the removal to where there is a good cause and only where independence from the president is desirable.


Can the vice president, Federal judges, and officers of the United States be removed?

No, they must be impeached first for treason, bribery, or high crimes and misdemeanors.


Does impeachment remove a person from office?

No impeachment requires a majority vote by the house of representatives and conviction in the senate by 2/3 vote


What is the extent of a presidential immunity?

Absolute immunity to civil suits for money damages for any actions while in office but not for actions that occur prior to taking office that


What is the extent of the president's executive privilege?

Presidential papers and conversations unless outweighed by important gov't interests


What is the extent of the president's power to pardon?

Can pardon those accused or convicted of Federal crimes but not state criminal crimes or any (Federal or state) civil liability or impeachment.


What is the source of preemption?

The supremacy clause of article six and provides that the constitution, along with laws and treaties made pursuant to it, are the supreme law of the land.


When is there express preemption?

When the Federal law explicitly mentions that it is the "exclusive" law.


What are the three types of implied preemption?

1. Federal and state laws are mutually exclusive.
2. State law prevents achievement of Federal objective. For example, Florida law that barred NLRB claimants from filing Florida unemployment
3. Field preemption, in which a Federal statute or regulation occupies the entire field, even if the state or local regulation is nonconflicting, such as immigration law.


Can states tax the Federal gov't?

Not unless it's a nondiscriminatory, indirect tax that doesn't unreasonably burden the Federal government.


What limits are placed upon Congress is ability to make laws?

There must be expressed or implied congressional power. The 10th amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.


What is the difference between the commerce clause and the dormant commerce clause?

The commerce clause limits Congress; the dormant commerce clause limits states' ability to burden interstate commerce.


What is the difference between the privileges and immunities cause of article 4 and the 14th amendment?

The privileges and immunities clause of article 4 prohibits states from denying to residents of other states the same rights that it gives to its own residents.

The privileges and immunities clause of the 14th amendment concerns the right to travel only.


In determining whether the dormant commerce clause or the privileges and immunities clause of article 4 applies to a state action at issue, what is the first question to answer?

Does the state law discriminate against out of staters? If so, the privileges and immunities clause may apply. Otherwise, the dormant commerce clause may apply.


If a state law does not discriminate, when does it violate the dormant commerce clause?

If the burdens exceed the benefits.

For example, an Illinois law that required trucks to have curved mud guards while every other state allowed straight mud cards, wasn't discriminating against out of state residents, but violated the dormant commerce clause because the law added a significant burden and no significant benefit was achieved.


When does a law that discriminates against out of state residents also violate the dormant commerce clause?

If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve in important government purpose.


When analyzing a dormant commerce clause issue, what burden must the state meet to show that the law or state government action was necessary to achieve D important government purpose?

What exceptions apply?

No less discriminating could achieve the purpose.

1. Congress gives its approval of the state action
2. A state or local government they prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses (market participant exception). For example a state owned cement factory can charge more to out of state customers than in state customers. For example University of California can charge more to out of state students.


When does a discriminatory state law violate the privileges and immunities clause?

Unless it is (a) necessary (no less discriminatory alternative) to achieve (b) an important government purpose, if it discriminates against out of state residents with regard to
1) their ability to earn a livelihood or
2) their civil rights.


Can corporations and aliens use the privileges and immunities clause?

No, only individuals. But corporations and aliens can use the dormant commerce clause.


Can congressional approval of the state action and the market participant exception be applied to a state action that otherwise violates the privileges and immunities clause?



When can a state tax interstate commerce?

States cannot use their tax system to help in-state businesses but can tax out of state residents if:
1) there is substantial nexus to the state; and
2) the tax is fairly apportioned to the state.


What does the full faith and credit clause provide and when does it apply?

Courts in one state must enforce judgments of courts of another state so long as:
1) the court that rendered the judgment had jurisdiction over the parties and subject matter;
2) the judgment was on the merits; and
3) the judgment was final.


Can Congress prohibit racially discriminatory action by a private citizen under the 13th amendment?

Yes, the 13th amendment prohibits slavery, involuntary servitude, and the badges of slavery by both governments and private citizens.


What causes certain provisions of the bill of rights to apply to the states and what are those provisions?

The 14th amendment to process clause applies all provisions of the bill of rights (first 10 amendments) to the states except the fifth amendment's prohibition of criminal trials without a grand jury indictment and the seventh amendment's right to a jury trial in civil cases.


Is the 14th amendment a basis to prohibit private action? What about the commerce clause?

No. The 14th amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law.

The commerce clause is a basis to prohibit private racial discrimination because almost any activity taking cumulatively might have a substantial effect on interstate commerce.


Aside from the 13th amendment and the commerce clause as a source for regulating private behavior, under what two circumstances does the constitution apply to private conduct?

1. Public function: Activities that are so traditionally the exclusive prerogative of the state are state action matter who performs them.
2. Entanglement: Whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.


What are the three standards of review that a court will apply in analyzing whether a government action violates substantive due process or equal protection, when does each apply, and who carries the burden of proof?

1. Rational basis (lowest level):
(a) laws or regulations that do not affect fundamental rights or involve suspect or quasi suspect classifications (most laws)
(b) person and challenging the law has the burden of proof.

2. Intermediate scrutiny:
(a) regulations involving quasi suspect classifications (gender, legitimacy)
(b) government has the burden of proof.

3. Strict scrutiny (highest level):
(a) regulations affecting fundamental rights (interstate travel, privacy, boating, and first amendment rights) or involving suspect classifications (race, national origin, and alienage)
(b) government has the burden of proof.


What is the standard for rational basis review?

To be upheld, law must be rationally related to a legitimate government purpose. The law is valid unless it is arbitrary or irrational. Purpose does not need to be actual, only conceivable. Law doesn't need to be least restrictive alternative.


What is the standard for intermediate scrutiny?

A law is upheld if it is substantially related to an important government purpose. Law doesn't need to be least restrictive alternative.


What is the standard for strict scrutiny?

The law is upheld if it is necessary to achieve a compelling government purpose. Law must be least restrictive alternative.


What is a deprivation of liberty for purposes of procedural due process?

The deprivation of liberty occurs if there is a loss of a significant freedom provided by the constitution or a statute


What is the deprivation of property for purposes of procedural due process?

A deprivation of property occurs if there is an entitlement and that entitlement is not filled. There is an entitlement if there's a reasonable expectation of a benefit.


Must the deprivation of property be of real or personal tangible or intangible property to be a violation of procedural due process?

No, any right, privilege, or other interest, such as a government job, constitutes property.


Is government negligence a sufficient basis for a claim of deprivation of due process?

No, there must be intentional government action or least reckless action for liability to exist. And in emergency situations the garment is liable under due process only if its conduct shocks the conscience.


Is government failure to protect people from privately inflicted harms a sufficient basis for a claim of deprivation of due process?



If there is a deprivation of life liberty or property, what procedures are required?

Balancing test:
1. The importance of the interest to the individual
2. The ability of additional procedures to increase the accuracy of the fact finding
3. The government's interests


Welfare benefit termination, custody of child, prejudgment attachment or seizure require what level of procedural due process?

Notice and hearing


What test is used for laws that affect economic rights?

Rational basis test: rationally related to a legitimate government purpose.
1) Rational: The law is valid unless it is arbitrary or irrational.
2) Purpose: does not need to be actual, only conceivable.
3) Related: Law doesn't need to be least restrictive alternative.


What is the takings clause?

The government may take private property for public use if it provides just compensation


What are the two types of takings under the takings clause?

Possessory taking: government confiscation or physical occupation of property

Regulatory taking: government regulation is it taking if it leaves no reasonable economically viable use of property.


Is there a regulatory or possessory taking if the property's value is reduced?



What are the three questions that I must ask in order when examining the takings clause question?

1. Is there a taking?
2. Is it for public use? Government only must act of reasonable belief that taking will benefit public.
3. Is just compensation paid? Gain to taker (government)irrelevant in determining amount of compensation; compensation amount is value to owner, not government


Is temporarily denying an owner use of property to taking?

No, as long as the government's action is a reasonable.


When our governments conditions on development of property is taking?

When the public benefit is not proportionate to the burden imposed.


If the government cannot demonstrate that the taking is for public use, can the government compensate the owner?

No, the government must return the property.


To what does the contracts clause apply?

No state shall impair the obligations of contracts.
1. Applies only to state or local (not Federal) interference with
2. Existing contracts (future contracts can be impaired).


Can a state or local government interfere with private contracts?

Yes, provided that the government's legislation substantially impairing the parties' rights under an existing contract is
1) a reasonably and narrowly tailored means of
2) promoting an important and legitimate public interest.

(intermediate scrutiny)


Can a state or local law interfere with a government contract?

Yes provided it meets strict scrutiny.


What is an ex post Facto law? a bill of attainder?

A law that criminally punishes conduct that was lawful when it was done or that increases the punishment for a crime after it was committed.

Law that directs the punishment of a specific person or persons without a trial


Can the government make retroactive civil liability?

Yes, provided it meets a rational basis test.


What are the fundamental rights encompassed by privacy that are protected under substantive due process?

Right to
1. marry
2. procreate
3. custody of one's children
4. keep family together
5. Control upbringing of children
6. Purchase and use contraceptives
7. abortion
8. Refuse medical treatment, although not Physician assisted death


What are the tests for the right to abortion?

Prior to viability, states may not prohibit but may regulate as long as don't create an undue burden on ability to obtain abortions.

After viability, states may prohibit abortions unless necessary to protect the woman's life or health.


Can a law require spousal consent prior to an abortion? Parental consent for an unmarried minor?

Spousal consent and notification laws are unconstitutional.

Parental notice and consent laws are constitutional, so long as it creates a procedure where a judge can approve.


What does a second amendment guarantee?

The right to bear arms for personal security in one's home. However, government can regulate who has, where has, and type of guns.


What level of scrutiny must laws that prevent people from moving into a state meet? Laws regarding to duration residency requirement before being allowed state benefits?

The right to travel from state to state is a fundamental right and is therefore subject to strict scrutiny review.

Restrictions on foreign travel require only rational basis.

Residential duration requirements are subject to rational basis review: 50 days maximum to vote, 1 year to get divorced (all other 1 yr is bad).


Can the use of race in trying an election district be constitutional?

Race cannot be the predominant factor in drawing the borders, unless the plan needs strict scrutiny.


Is there a fundamental right to education?



If a fundamental right is denied to everyone, is there a violation of substantive due process or equal protection?

Substantive due process. If fundamental rights are denied to some individuals and not others, it is an equal protection problem. In either case strict scrutiny is applied.


What levels of scrutiny are applicable to a substantive due process issue? What levels for equal protection?

Substantive due process: rational basis or strict scrutiny

Equal protection: rational basis, Intermediate scrutiny, strict scrutiny.


What are the three questions to ask in analyzing an equal protection issue?

1. What is the classification?

Facially discriminatory or facially neutral, but both discriminatorily intent and discriminatory impact

2. What is the level of scrutiny?

3. Does the law a meet the level of scrutiny?


Which amendment applies the equal protection clause to state and local governments?



Which amendment applies the equal protection clause to the Federal government?

through the due process clause of the Fifth amendment


If classification is facially neutral, how is racial classification proven?

By demonstrating both discriminatory impact and discriminatory intent.


Is a racial classification that benefits minorities through a numerical set aside sanctioned by the constitution?

Yes, but only if there's clear proof of past discrimination and under a strict scrutiny test.


May educational institutions use race as one factor in admissions decisions?

Yes, because colleges have a compelling interest in diversity, however, they must show that there is no race neutral alternative which could achieve diversity. In any case points may not be added to applicants and mission scores based on race.


May public school systems use race as a factor in assigning students to schools?

Not unless strict scrutiny is met.


What level of scrutiny is used for gender classifications?

Intermediate scrutiny (substantially related to an important government purpose; needn't be least restrictive alternative) plus "exceedingly persuasive justification"


If a gender based classification law is facially neutral, how is gender discrimination proved?

Demonstrating both discriminatory impact and discriminatory intent.


When will gender classifications generally be allowed?

To remedy past discrimination and differences in opportunity, but not differences based on a role stereotypes


What level of scrutiny is applied to alienage classifications?

Strict scrutiny, unless used for immigration laws, self government, and democratic process such as voting, jury, teacher, police officer, probation officer because these are rights of citizens integral to self government.


What level of scrutiny is used in discrimination against non marital children?

Intermediate scrutiny (substantially related to an important government purpose; needn't be least restrictive alternative). If law denies benefit to all non marital children, but grants it to all marital children it's unconstitutional


What level of review is used for age discrimination, disability discrimination, wealth discrimination, economic regulations, and sexual orientation?

Rational basis


What level of scrutiny is applied to content based restrictions on free speech? Content neutral restrictions?

Strict scrutiny on subject matter (topic of message) and viewpoint (ideology of message) restrictions. Intermediate scrutiny (substantially related to an important government purpose; needn't be least restrictive alternative) on content neutral laws.


If a court order suppresses speech before the speech occurs, must it be complied with?

Yes, as long as the court order was is procedurally proper (meet strict scrutiny) it must be complied with until it's vacated or overturned. A person who violates a court order is barred from a later challenging it.


When can government require a license for speech?

Only if there's an important reason for licensing and clear criteria leaving no discretion to with the licensing authority.


What is the difference between vague and overbroad speech restrictions?

Vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

Overbroad if it regulates substantially more speech than the constitution allows to be regulated.


When can government regulate conduct that communicates?

It can place reasonable time, place, and manner restrictions on conduct under intermediate scrutiny:

1) content-neutral (subject matter and viewpoint): unrelated to suppression of message
2) narrowly tailored to
3) serve an important interest (not least restrictive) and
4) leave open alternative channels of communication

For example, may burn flag but cannot burn draft cards.


When may the gov't punish speech if it incites an illegal activity?

It creates a clear and present danger of immediate lawless action.
The imminent illegal activity must be likely and the speech is directed to causing a imminent illegality.


When may the government limit obscenity and sexually oriented speech?

1. The material must appeal to the prurient interest, which is a shameful were morbid obsession with sex (local standard);
2. The material must be patently offensive under the law (local standard);
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national standard).


When can profane or indecent speech be limited?

Over the broadcast media or in schools.


When can commercial speech be limited?

If it meets intermediate scrutiny: the restriction directly advances and is narrowly tailored to serve a substantial government interest.

Substantial government interest show for commercial speech that:
1) promotes unlawful activity
2) misleading or fraudulent (e.g., practicing under a trade name, attorney in-person client solicitation).


What level of scrutiny is commercial speech subject to?

Intermediate scrutiny (substantially related to an important government purpose; needn't be least restrictive alternative).


When can a "public figure," public official, or someone running for public office recover for defamation?

By proving falsity of the statement and actual malice (knowingly false or reckless disregard of truth)


If the plaintiff is a "private figure" and the matter is of "public concern" when can the plaintiff recover for defamation?

By proving falsity of the statement and negligence by the defendant. Plaintiff may recover presumed (set sum) or punitive damages only by showing actual malice.


Speech by gov't employees on the job in performance of their duties is protected by the first amendment. True or false?



When may a gov't place a content based restriction on speech in a public forum?

It may not: restriction must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.


When maybe a government place a content neutral restriction on speech in a public forum?

Regulations must be only time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication (intermediate scrutiny). Need not use the least restrictive alternative.


What is a designated public forum and what rules apply?

Government properties that government could close to speech, but chooses to open to speech. Same as public forum.


What is a limited public forum and what rules apply?

Government property that is limited to certain groups or dedicated to the discussion of only some subjects. Gov't can place
1) viewpoint neutral subject matter restrictions that reserve the forum for its intended use
2) if the restrictions are reasonably related to a legitimate government purpose.


What is a non public forum and what set of rules apply?

Government properties that the gov't constitutionally can and does close to speech. For example, military bases, outside prisons, sidewalks in front of post Office Property, airports (no money solicitation, distribution of literature allowed). Same as limited public forum: Gov't can place
1) viewpoint neutral subject matter restrictions that reserve the forum for its intended use
2) if the restrictions are reasonably related to a legitimate government purpose.


What is the test to determine whether a restriction on freedom of association is constitutional?

Generally, strict scrutiny: regulation is necessary to achieve a compelling government purpose, using the least restrictive means.

Membership in a group can be punished if one is:
1. Actively affiliated with a group;
2. Knowing of its illegal activities; and
3. With the specific intent of furthering those illegal activities.


Laws requiring disclosure of companionship must meet what level of scrutiny?

Strict scrutiny


May the government make a law preventing a group from discriminating?

Yes, unless the law interferes with intimate association or expressive activity.


If a law is neutral or of general applicability, can it be challenged with the free exercise clause?



Can the government deny benefits to individuals who quit their jobs religious reasons?



What is the Lemon test?

A law won't violate the establishment clause if:
1. There's a secular purpose for the law
2. The effect must be neither to advance or inhibit religion; and
3. There must not be excessive entanglement with religion


What does the 11th amendment prohibit? and how is it different from sovereign immunity?

Federal courts cannot hear a private party's or foreign government's claims against a state (but not local) government, unless in federal bankruptcy courts.

Federal courts can hear suits by the United States or other states against a state.

Sovereign immunity bars suits against a state government in state court, even on federal claims, unless the state consents.


What are the categories of unprotected speech?

The government has a compelling interest in regulating and must only show how the regulation is necessary for:
1) inciting imminent lawless action
2) fighting words (usually U-C as vague or overbroad because can't proscribe viewpoint-based words)
3) obscenity

Defamatory speech against public persons or matters is unprotected if P proves defamation plus some degree of fault.

Commercial speech that promotes unlawful activity or is misleading or fraudulent (intermediate scrutiny).