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Flashcards in Constitutional Law Deck (98)
1

Article III Courts have power to hear

(1) Interpret constiutiton
(2) Fed laws
(3) Treaties
(4) Admirality
(5) Maritime
(6) Disputes between states/diverse citizens/foreign citizens

2

Judicial Review

Review constiutionality of acts of other branches of government

3

Article I courts have power to hear

Tax courts

4

Original jurisdiction of supreme court

(1) Ambassadors
(2) Public ministers
(3) consuls
(4) suites against states

5

Cases come to Supreme court by

(1) Writ of Certioari - DISCRETION
(2) Appeal - must hear it

6

Requirements for a fed court to hear a case

(1) must be a "case or controversy"
(2) No advisory opinions
(3) Ripeness (bars claim BEFORE developed)
(4) Mootness (bars claim AFTER resolved)
(5) Standing

7

Components for Standing

(1) Injury
(2) Causation
(3) Redressability

8

Common Standing Issues

(1) Congress cannot confer standing w/o injury
(2) P has standing to enforce statute if within "zone of interest" of statute
(3) Assert rights of others
(4) Standing of organizations
(5) No citizenship standing
(6) No tax standing

9

Standing of organizations elemetns

(1) injury to members that would give right to sue on own behalf
(2) injury related to org's purpose
(3) individual member participation not required

10

Will Supreme court exercise jurisidction if state court judgment based on adequate and independent state law grounds - even if fed issues involved?

NO - unless it is unclear that the decision was based only on state law grounds.

11

What's a political question

matter that is not capable of judicial decision. Some PQ include:
(1) gerrymandering
(2) partisan leg appointment
(3) procedures for ratifying constitutional amendments
(4) President's foreign policy

12

11th Amendment Bars

Fed Coruts from hearing private or foreign party's claims against a state government.

13

Doctrine of sovereign immunity

bars suits against a state government in state court, even on fed claims, unless the state consents

Doesn't bar suit against an officer whose act violates constitution or fed law, even if state has to pay, and actions against the officer personally

14

Congress's Powers

(1) Necessary and Proper power (attached to another fed power)
(2) Tax Power
(3) Spending power
(4) Commerce
(5) War
(6) Investigation
(7) Property
(8) Bankruptcy
(9) Postal
(10) Citizenship
(11) Admiraility
(12) Coin money
(13) Patent/Copyright

15

Necessary and Proper Power

Power to make all laws necessary and proper for executing any power granted to any branch of the federal government

16

Tax Power

Only needs to be reasonable related to revenue production

17

Spending Power

Any public purpose

18

Commerce Power

(1) Regulate CHANNELS of interstate comerce
(2) Regulate the INSTRUMENTALITIES, or
(3) Regulate activities that have a SUBSTANTIAL EFFECT

19

If congress relies on commerce power to regulate interstate activities that have a substantial effect, then a court will uphold it if...

(1) Economic: rational basis that it effects interstate commerce
(2) Noneconomic: congress must show a direct substantial economic effect on interestate commerce

20

Property power

No limits to dispose property
Takings must be for purpose of an enumerated constitutional power

21

is there police power by congress?

NO - unless you're in the terrible place known as DC

22

Alien rights

Alien: no rights
Resident alien: notice and hearing before deportation

23

Speech and Debate clause

Can say anything and not be prosecuted

24

Can delegate legislative power when...

Congress provides intelligible standards

25

Can congress veto an executive action?

NO

26

Appointment powers

Congress cannot appoint
Requires advice of senate unless it's an inferior officer

27

Removal of appointees

President: can remove exec high level without intereference from Congress. Congress can put limits on President's power to remove all other executives (ex. good cause only).

Congress: Can remove exec officers through impeachment only.

28

Pocket veto

President has 10 days to veto - if congress is not in session the bill is automatically vetoed. If congress is in session it becomes law.

29

Line item veto

unconstitutional - all or nothing

30

President's power as chief

(1) President acts with express or implied authority of congress - likely valid
(2) President acts where congress silent - likely uheld unless it usurps the power of another branch
(3) President acts against congress - he has little authority

31

Treaty power

President can enter into treaties with 2/3 vote of senate

32

Veto requires what in congress

2/3 in each house

33

Executive Agreement vs. Treaty

Exec agreement do not require consent of congress - treaties do

34

Executive Agreement priority of authority

(1) Exec agreement trumps state law
(2) Exec agreement does not trump federal law

35

Impeachment requirements

Majority vote in house to invoke charges
2/3 in senate to convict and remove

36

Preemption

Fed law supersedes state law either expressly or implicitly

37

Preemption by Operation of the entire field

State law can be preempted even if there isn't a conflict in the laws if congress intended to operate the entire field

38

Can US sue States?

YES

39

Can States sue US?

NO - unless US consents

40

Can State sue a state?

Yep - even without other's consent - SC has exclusive jurisdiction.

41

Is a tax applying to both state and private actors valid?

YES,

Flip side: it is not valid if it only applies to the state or local government activity based on tenth amendment - BUT COURTS HARDLY DO IT SO DON'T CHOSE THIS ANSWER

42

Can congress indirectly control a state through its spending power

YES - congress can add conditions on the grant of money, if conditions
(1) clearly stated
(2) relate to the purpose of the program
(3) not unduly coercive

43

Fourteenth Amendment - National citizenship privilege

State cannot deny citizen privilege and immunities to national citizenship

44

Can a state regulate/tax commerce in absence of congressional action?

Yes, as long as it doesn't discriminate or unduly burden interstate commerce

45

State action DISCRIMINATES against nonresident - Privileges and immunities clause

invalid UNLESS state has a substantial justification and there are no other less restrictive means

This only protects fundamental rights

Alein or corporation CANNOT be Plaintiff
NO MARKET PARTIPCIATION EXEMPTION

46

State action DISCRIMINATES against nonresident - Commerce Clause

If there is no applicable fed legislation and it burdens interstate commerce, then invalid, UNLESS
(1) important noneconomic state interest
(2) state is a market particpant
(3) usual government function

Alien or corporation MAY be Plaintiff

47

State action does NOT discriminate against nonresident - both privilege and immunities and commerce clause

PI does not apply because you need discrimination.

Under commerce clause, if the law burdens interstate commerce and it outweighs the state interest then it is invalid

48

Does the state need to be involved to show a constitutional violation?

YES - must be a public function or a significant state involvement.

49

The Contract Clause

Limits states ability to enact laws that retroactively impair contract rights. Private contract given intermediate scrutniy and public contracts given strict scrutiny

DOESN'T APPLY TO FEDS

50

Ex Post Facto Laws

No alteration of criminal offenses or punishments retroactively - only applies to criminal world not civil

51

Procedural due process definition

Fair process required for government to take a persons life, liberty or property

Property includes more than just personal belongings or relaty - also includes legitimate claims or entitlements to the benefit under state/fed law

52

What constitutes fair process

Weighing
(1) importance of the interest
(2) procedural safeguards
(3) government interest

53

Can you waive due process?

YES - must be "voluntary and made knowingly"

54

Fifth amendment taking clause (applicable to states via 14th amendment)

private property cannot be taken for PUBLIC USE without just compensation.

It doesn't matter how small the taking is - must be given compensation

55

What burden of proof for fifth amendment taking?

rationally related to a legitimate public purpose

56

Is it a taking if no physical invasion but impacts economic use?

Depends

Denies all economic value - taking
Temporary denied - no taking
lowers economic value but still economically viable - no taking

57

What is just compensation

fair market value at the time of the taking

58

Substantive due process vs equal protection on MBE

If limits liberty of ALL - due process question
If limits a class/race - equal protection question

59

Strict Scruitny

Affects fundamental rights or suspect classifications
Law upheld if it is necessary to achieve a compelling interest. Government has burden

60

What are the classifications subject to strict scrutiny

Race
National origin
Alienage (state only)
Interstate travel
Privacy
Voting
First Amendment

61

Intermediate Scrutiny

Quasi-suspect classifications
Law upheld if it is substantially related to an important interest. Unclear who has the burden but likely government

62

What are the classifications subject to intermediate scrutiny

Gender
Legitimacy of children

63

Rational Basis

All other classifications and laws
Law upheld if it is rationally related to a legitimate interest. Plaintiff has burden of proof

64

Substantive due process 5th vs. 14th amendment

5th amendment - federal government
14th amendment - state government

65

Substantive due process analysis

Fundamental right - strict scrutiny
All others - rational basis

66

For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Ways you can show intent:

(1) law discriminatory on its face
(2) discriminatory application
(3) discriminatory motive

67

Race and nationa origin - school integration

only intentional segregation violates constitution.

68

Remedying past discrimination ok?

YES - but general past societal discrimination is not

69

Race OK to be considered in drawing up districts?

YES - but it cannot be the predominant factor

70

Is diversity of a student body in primary/second school a compelling interest under strict scruitny?

NO - but court has deferred to higher education, except the court has not endorsed higher ed schemes for assuring diversity - the school must show that no workable race-neutral alternative would assure diversity sought

71

Alienage rules between fed and state

If fed action - its' valid if it isn't unreasonable
If state action - strict scrutiny applies. UNLESS it's participation in self-government or non-elective offices servicing the people (police, teachers), then rational basis applied

72

Fundamental right - right to privacy - abortion rules

Strict scruitny but slightly modified to include a (1) pre-viability and (2) post viability analysis.

Pre viability - state can put a regulation in place if it doesn't place an "undue burden" on right to get an abortion (only undue burden is notifying spouse).

Post viabilie - state's interst in fetus overrides woman's right to abortion, unless her health at risk

73

Fundamental right - right to privacy - extended fmaily together

Zoning regs that prevent it are invalid. Does not extend to unrelated people

74

Fundamental right - right to vote - congressional election mapping

States must use almost exact mathematical equality in creating congressional district. Congress does not have this high of burden when apportioning representatives

75

Freedom of speech - government speech elements

Only restricts government regulation of private speech. Does not prevent government from voicing its views or funding its views (but look for government trying to regulate speech by attaching stipulations to grant receiver).

Government speech need only be rationally related to a legitimate interest

76

Content regualation of speech - restrictions

Presumptively unconstitutional - must be necessary to achieve a compelling interest

77

Conduct regulation of speech

CAN be regulated by content-netrual time, place and manner

78

Void for Vagueness doctrine

law gives no reasonable notice as to what is prohibited (ex. prohibit "lewd" speech).

79

Four types of forums for conduct regulation

Public forum
Designated public forum
Limited public forum
Nonpublic forum

80

Public forum

Streets/sidewalks/parks - any area that has been historically open to speech. To regulate on time/place manner, it must be
(1) content neutral
(2) narrowly tailored to serve an important interest
(3) Leave open alternative channels

81

Designated public forum

Not historically open to speech-related activities but government allows on a limited basis. To regulate on time/place/manner, it must be
(1) content neutral
(2) narrowly tailored to serve an important interest
(3) Leave open alternative channels

82

Limited or nonpublic forums

Generally not open to speech-based activities. Regulations for time/place/manner restrictions valid if
(1) viewpoint neutral
(2) reasonably related to a legitimate interest

83

What areas CAN government regulate speech

(1) Inciting imminent lawless action (likely that it will happen)
(2) Fighting words (true threats)
(3) Obscenity
(4) Defamatory speech
(5) Some commercial speech

84

Speech is obscene when...

(1) Appeals to the prurient interest using a community standard
(2) Patently offensive using a community standard
(3) Lacks serious value using a national standard

85

Obscene business can be regulated, but...

Cannot be an all out ban -

86

Regulation of commercial speech upheld when..

(1) Serves a substantial government interest
(2) Directly advances that interest
(3) narrowly tailored

87

Prior Restraint is...

restricting speech before it happens - hard for government to do unless it shows
(1) narrowly drawn, reasonable and definite
(2) Injunction my promptly be sought
(3) Prompt and final determination on validity of restraint

88

Freedom of Association

Government must show a compelling interest unrelated to suppression of ideas, if restrictions are least restrictive means.

89

Limits on contributions

Subject to intermediate scrutiny
Can limit amount of money to a political candidate, but may NOT to a ballot referrendum
CANNOT limit the aggregate amount of one person or entity
CANNOT limit amount one person can spend on expenditures not contributed to the candidate

90

Religious regulation

Government cannot interefere with BELIEFS (or target religious groups)

but government can interfere with CONDUCT if it is rationally related to a legitimate government interest and netural toward regligion.

If the law is not netural toward religion, then must pass strict scrutiny.

91

Government action toward religion is found invalid, unless

Lemon test
(1) it has a secular purpose
(2) primary effect that neither advances or inhibits religion
(3) No excessive entaglement with religion

92

Fighting Words

Inciting imminent lawless action is not protected speech

93

Bona Fide State resident protections (ex. colleges)

rational basis standard if it (1) applies to all, (2) doesn't involve a suspect class and (3) doesn't involve a fundamental right.

94

Trial and pretrial hearings - what standard to close out public?

can only be closed if necessary to preserve an overriding interest

95

When is a matter considered moot?

must be a real, live controversey AT ALL STAGES OF THE PROCEEDING.

Class action exception: if named member no longer satisifying, class will.

96

Power of state to tax under commerce clause

(1) tax does not discriminate against interstate commerce
(2) nexus between activity taxed and taxing state
(3) fairly approprined
(4) relates to services or benefits provided by the state

97

Continued Public Employment - Due Process Requirements

Property interest if
(1) statute or ordinace that creates a public employment K, or
(2) clear practice that employee can only be terminated for "cause"

98

What type of process usually required when government depriving life, liberty, property?

Generally, notice and a hearing before termination of interest (welfare, suspension from public school

In some cases - notice and a post termination (disability

In some cases - must give all three notice pre and post termination hearing (public employee for cause,