Flashcards in Constitutional Law Deck (84):
What are bad answers for mbe?
1. General Welfare as an independant answer
2. Necessary and Proper Clause as an independent answer
3. Privileges or Immunities
4. Contract Clause
5. Enabling Power or Enforcement
6. 10th amendment
what are the case and controversies requirement for federal law?
2. Advisory Opinions
4. Political Questions
What do you need for standing?
1. Injury: P suffered injury or its imminent
2. Causation: that D caused the injury
3. Redessability: the court can remedy that injury
When can an organization sue for its members?
1. the members would have standing
2. the interests are germane to the organizations interest.
3. the claim does not require participation of individual members.
when can a plaintiff assert claims of others?
1. injured third party is unlikley to be able to assert his rights.
2. close relationship between the p and the injured party.
What is the ripeness requirement?
genuine, immediate threat to harm
What is the mootness requirement?
an actual controversy will exist at all stages of review.
what cases does the supreme court have original and exclusive jurisdiction?
case between state governments.
when can the supreme court review a state court decision?
when there is an independent state law ground of decisions.
when can federal courts and state courts hear suits against state governments?
1. state expressly consents,
2. the federal government sues state governments
3. bankruptcy proceedings.
are suits against state officers allowed?
yes. if personally liable.
what powers does Congress have?
1. tax and spend for the general welfare
2. Commerce Power
3. declare war, some foreign
4. no limit to power to delegate
is there such thing as a federal police power?
NO. Except for military, indian reservations, federal lands, D.C.
what does Mild stand for?
what commerce powers does congress have?
1. regulate the channels of interstate commerce
2. regulate instrumentalities or persons
3. economic activities that have a substantical effect.
are there limits to the powers congress has to delegate?
what does the 14th amendment apply to?
what does the 5th amendment apply to?
must treaties be ratified by senate?
do executive agreements have to be approved by senate?
what powers does the president have?
1. broad powers as Commander-in-Chief- touse American troops.
2. Appointment and removal power.
3. Can pardon those to federal criminal crimes.
4. Absolute immunity to civil suits for money damages for actions while in office.
can congress prohibit removals?
no, but it can limit them.
When do the federal laws preempt state laws?
express preemption or implied preemption.
what is express preemption?
if federal statute says federal law is exclusive in field.
when is there implied preemption?
1. mutually exclusive
2. impedes the achievement of a federal objective
3. clear intent to preempt state law
can states tax or regulate federal activity
when do we apply the dormant commerce clause?
if there is state or local law on interstate commerce
What do we do if the state law discriminates against out of staters?
we try to apply the dormant commerce clause or the privilege and immunities clause
if the state law not discriminate what do we do?
we check to see if the dormant commerce clause applies. if the law burdens interstate commerce, we see if the burden exceeds its benefits.
if the state law does discriminate what do we do?
we try both the dormant commerce clause and the privilege and immunities clause. It violates unless it is necessary to achieve an important government purpose.
can corporations or aliens sue under the privileges or immunities clause?
no because they dont have fundamental rights. but they can sue under dormant commerce clause.
what is the first step to a constitution's protection of Individual Liberties Question?
have to see if there is government action. can only get at private action by statute.
when does private conduct have to comply with the constitution?
Public function exception
what is the public function exception?
if private party is performing task traditionally, exclusively done by the government
what is the entanglement exception?
the constitution applies if government facilitates unconstitutional activity.
what are the 3 levels of scrutiny?
1. rational basis
2. intermediate scrutiny
3. strict scrutiny
what is rational basis?
law is upheld if rationally related to a legitimate government interest.
challenger has burden of proof
what is intermediate scrutiny?
law is upheld if substantially related to an important government purpose.
government has burden of proof; narrowly tailored
what is strict scrutiny?
law is upheld if necessary to achieve a compelling government purpose.
government has burden of proof; least restrictive alternative.
what is due process?
whether the government has provided sufficient procedures when depriving life liberty or property?
what is substantive due process?
does the government has an adequate reason in taking away life, liberty, or property?
what is equal protection?
is the governments difference in treatment of people justified?
when does a deprivation of liberty occur?
when there is a loss of significant freedom provided by constitution.
when does a deprivation of property occur?
when there is an entitlement, and entitlement is not fulfilled.
when there is a due process claim? what is the test?
balance the interests of individual and government.
the ability of additional procedures to increase the accuracy of the fact finding.
if a law affects economic rights what level of scrutiny do we apply?
when is there a taking?
if there is a permanent regulatory taking or a possessory taking.
when is there a possessory taking?
confiscation or physical occupation
when is there a regulatory taking?
leaves no reasonable economically viable use of the property.
if the goverment takes the property for public use to benefit the public, what happens?
there has to be just compensation. if not government must return property.
so what are the two taking ?S
1. is there a taking?
2. is it to benefit the public?
who does the contract clause apply to?
the state government. if interferes with private contracts, then must meet intermediate scrutiny. If it interefes with government contracts must meet strict scrutiny.
what are the strict scrutiny rights?
3. custody of children
4. keep family together
5. control upbringing of one's children
6. purchase and use contraceptives
what right triggers the undue burden test?
abortion before viability
right to practice a trade or profession
right to physician-assisted death
right to education
when do equal protection questions apply?
when there is distinction between people
what are three questions to ask for equal protection problems?
1. what is the classification
2. what level of scrutiny
3. does the law meet the level of scrutiny.
how is equal protection applied to fed and state gov.
14th applies to states
5th applies through due process.
what level of scrutiny applies to race and national origin?
how is the existence of classification proven?
1. on the face of the law
2. facially neutral, discriminatory impact and intent
what level of scrutiny applies to gender classifications?
when can gender classifications benefiting women be allowed?
when remedying past discrimination and differences
not based on role stereotypes.
what level applies to alienage?
generally strict scrutiny
when does rational basis apply for alienage?
1. Concerns self-government and the democratic process
2. Congressional Discrimination
What about undocumented alien children and bastards?
what level of discrimination for age?
what level of discrimination for disability?
what level of discrimination for wealth?
what level of discrimination for sexual orientation?
what two types of free speech restrictions?
1. Content based restrictions
2. Content neutral restrictions
what level of scrutiny applies to content based restrictions?
what level of scrutiny applies to content neutral restrictions?
what level of scrutiny applies to a prior restraint?
what attacks can be made on the law?
its overbroad and vague
what does it mean to be vague?
a reasonable person cannot tell what speech is prohibited and what is allowed
what does it mean to be overbroad?
it gets unprotected and protected speech.
what speech is unprotected by the first amendment?
1. incitement of illegal activity.
what are the elements for obscenity speech?
1. appeals to a prurient interest
2. patently offensive
3. laps value
what are the elements for incitement?
substantial likelihood of imminent illegal acitivity
directed to causing imminent lillegality.
laws that prohibit or punish group membership must meet what level of scrutiny?
what is the free exercise clause?
law that burdens free exercise of religion must not be religiously motivated.
what is the establishment clause? (sex clause)
the government must make no law respecting establishment of religion.
what is the test for establishment ? (Sex)
1. Secular Purpose
2. effect must be neither to advance nor inhibit religion
3. must not be excessive entanglement with religion.