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Flashcards in Constitutional Law Deck (98)

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


Judicial Review

Review constiutionality of acts of other branches of government


Article I courts have power to hear

Tax courts


Original jurisdiction of supreme court

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


Cases come to Supreme court by

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


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


Components for Standing

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


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


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


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.


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


11th Amendment Bars

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


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


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


Necessary and Proper Power

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


Tax Power

Only needs to be reasonable related to revenue production


Spending Power

Any public purpose


Commerce Power

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


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


Property power

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


is there police power by congress?

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


Alien rights

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


Speech and Debate clause

Can say anything and not be prosecuted


Can delegate legislative power when...

Congress provides intelligible standards


Can congress veto an executive action?



Appointment powers

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


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.


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.


Line item veto

unconstitutional - all or nothing


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


Treaty power

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


Veto requires what in congress

2/3 in each house


Executive Agreement vs. Treaty

Exec agreement do not require consent of congress - treaties do


Executive Agreement priority of authority

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


Impeachment requirements

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



Fed law supersedes state law either expressly or implicitly


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


Can US sue States?



Can States sue US?

NO - unless US consents


Can State sue a state?

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


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


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


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


Fourteenth Amendment - National citizenship privilege

State cannot deny citizen privilege and immunities to national citizenship


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

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


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


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


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


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

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


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



Ex Post Facto Laws

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


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


What constitutes fair process

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


Can you waive due process?

YES - must be "voluntary and made knowingly"


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


What burden of proof for fifth amendment taking?

rationally related to a legitimate public purpose


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


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


What is just compensation

fair market value at the time of the taking


Substantive due process vs equal protection on MBE

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


Strict Scruitny

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


What are the classifications subject to strict scrutiny

National origin
Alienage (state only)
Interstate travel
First Amendment


Intermediate Scrutiny

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


What are the classifications subject to intermediate scrutiny

Legitimacy of children


Rational Basis

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


Substantive due process 5th vs. 14th amendment

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


Substantive due process analysis

Fundamental right - strict scrutiny
All others - rational basis


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


Race and nationa origin - school integration

only intentional segregation violates constitution.


Remedying past discrimination ok?

YES - but general past societal discrimination is not


Race OK to be considered in drawing up districts?

YES - but it cannot be the predominant factor


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


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


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


Fundamental right - right to privacy - extended fmaily together

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


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


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


Content regualation of speech - restrictions

Presumptively unconstitutional - must be necessary to achieve a compelling interest


Conduct regulation of speech

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


Void for Vagueness doctrine

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


Four types of forums for conduct regulation

Public forum
Designated public forum
Limited public forum
Nonpublic forum


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


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


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


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


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


Obscene business can be regulated, but...

Cannot be an all out ban -


Regulation of commercial speech upheld when..

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


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


Freedom of Association

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


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


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.


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


Fighting Words

Inciting imminent lawless action is not protected speech


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.


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

can only be closed if necessary to preserve an overriding interest


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.


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


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"


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,