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Flashcards in Constitutional Law Deck (89):

Eleventh Amendment

Bars citizens of one state from suing another state in federal court; bars suits against state officials for violating state law


Exceptions to Eleventh Amendment

Consent; injunctive or declaratory relief against state official (for enforcing state law that violates federal law); damages paid of state officer in individual capacity; Congressional enforcement of 14th amendment rights


Original jurisdiction

all cases affecting ambassadors; other public ministers/consuls; when state is a party


Adequate and independent state grounds

Not reviewable by Supreme Court; state law must fully resolve the matter (adequate) and must not incorporate a federal standard by reference (independent)



Injury in fact (concrete and particularized; injury need not be physical/economic and future injury must be actual and imminent); causation (injury caused by D's conduct); redressability (relief requested is likely to prevent/redress injury)


Prudential standing

requires the P is the proper party to invoke judicial resolution of dispute


Taxpayer status standing

Generally no standing to challenge government allocation of funds EXCEPT to challenge a specific congressional appropriation made under the taxing and spending powers for violation of the Establishment clause


3rd party standing

Generally no standing except: (i) when third parties are unable to assert their own rights; (ii) there is a special relationship between the parties (doctor/patient, school/student); (iii) P's injury adversely affects P's relationship with the third party


Organizational standing

Organization can sue on behalf of its members if (i) its members would have standing to sue in their own right; (ii) interests at stake are germane to organization's purpose



P must have experienced a real injury; federal court will not consider a cliam before it has fully developed



A case has become moot if further legal proceedings would have no effect; a live controversy must exist at each stage of review


Mootness exceptions

capable of repetition but evading review; defendant voluntarily ceases its illegal/wrongful action until the court is assured wrong will not be repeated; named plaintiff's claim in class action suit is resolved


Pullman doctrine

A court may refrain from ruling on federal constitutional claim that depends on resolving an unsettled issue of state law best left to state courts


Younger abstention

court will generally not enjoin a pending state criminal case in which an especially strong state interest is involved


Interstate commerce

Power to regulate channels and instrumentalities of interstate commence and any activity that substantially affects it


Substantial economic effect

power to regulate any activity or combination thereof that has substantial economic effect on interstate commerce



Tax will be upheld if it has reasonable relationship to revenue production; Congress has plenary power to impose taxes to raise revenue (or any public purpose) through the General Welfare Clause



Power to spend for the general welfare, including conditional federal spending


Congress's war powers

power to declare war; raise and support armies; govern land/naval forces; organize militia; establish military courts and tribunals


Enabling Clause of 14th amendment

Congress can enforce equal protection and due process rights as defined by SC (can't create new rights); enforcement must have congruence and proportionality between injury to be prevented and means adopted to achieve that end


President's domestic powers

power to pardon federal offenses; veto power; appoint officers of US with advice/consent of Senate, remove executive appointees without cause or Senate approval


Judicial immunity

absolutely immune for civil liability for damages resulting from judicial acts, including grave procedural errors and acts done maliciously or in excess of authority unless there is a clear absence of all jurisdiction


Legislative immunity

No civil/criminal liability for statements and conduct made in regular course of legislative process


Executive privilege

Presidential communications must be made available in a criminal case if the prosecution demonstrates a need for the information; in a civil case, the executive branch decision to withhold production of information will be given greater deference


Executive immunity

No civil damages for any acts performed as part of president's official responsibility; but not for acts that occurred before president took office or completely unrelated to carrying out his job



Congress cannot commandeer state legislatures by commanding them to enact specific legislation or administer a federal regulatory program; or by conscripting a state executive officer direcly


Dormant commerce clause

If Congress has not acted, states are free to regulate as long as the state/local action does not: (i) discriminate against out of state commerce; (ii) unduly burden interstate commerce; regulate extraterritorial (wholly out of state) activity


Discrimination against out of state commerce

Okay if (i) an important local interest is being served and no other nondiscriminatory means are available to achieve that purpose; (ii) market participant; (iii) state/local entities performing traditional government function (waste disposal); (iv) Congressionally permitted discrimination


Undue burden on intestate commerce (dormant commerce clause)

Balancing test: purpose of state law against burden on interstate commerce and evaluate whether there are less restrictive alternatives


State taxation of interstate commerce

(1) substantial nexus between activity being taxed and taxing state; (2) fair tax apportionment; (3) no local direct advantage over interstate competitors (even if neutral on face); (4) tax must be fairly related to services provided by taxing state


Express preemption

When Constitution makes federal power exclusive or Congress enacted legislation explicitly prohibiting state regulation in the same area


Implied preemption

(1) Congress intended for federal law to occupy the field (framework of regulation so pervasive Congress left no room for states to supplement or when federal interest so dominant that federal system will be assumed to reclude enforcement of state law on same subject); (2) state law directly conflicts with federal law; (3) state law indirectly conflicts with federal law by creating obstacles to law's purpose


Full faith and credit

Out of state judgments must be given in-state effect if: (1) court rendering judgment had jurisdiction over parties/subject matter; (2) judgment was on the merits; (3) final judgment


State action

Private person carries on activities that are traditionally performed exclusively by the state; state act affirmatively to facilitate, encourage, or authorize the activity (licensing/regulation of private party not enough)


Procedural due process

Right to be notified of charges/proceedings against him and the opportunity to be heard at those proceedings; neutral decision maker; intentional government conduct


Liberty interests

Significant governmental restraint on physical freedom, exercise of fundamental right or freedom of choice/action


Property interests

Legitimate claim of entitlement by virtue of statute, employment, contract or custom (licenses, welfare, disability benefits etc.)


Notice and hearing

(1) private interest affected by the governmental action; (2) risk of erroneous deprivation of that interest using current procedures and probable value of additional or substitute safeguard; (3) burden (fiscal and administrative cost) involved in providing the additional process


PDP: enemy combatants

meaningful opportunity to dispute facts of detention by neutral decision maker


PDP: parental status

Termination of parental right: clear and convincing evidence to support allegations of neglect

Paternity suit: preponderance of evidence


PDP: forfeitures

Involuntary relinquishment of property that is alleged to be connected to criminal activity; require notice + hearing prior to seizure of real property; no prior notice for personal property


PDP: public employees

Notice of termination, pre-termination opportunity to respond, post-termination evidentiary hearing;

Unless significant reason for immediate removal --> post suspension hearing with reinstatement/back pay okay


PDP: public education

Academic dismissal: no hearing required

Disciplinary suspension: oral/written notice of charges, explanation of evidence and opportunity to be heard

Corporal punishment: no notice/hearing required


PDP: government benefits

Welfare benefits: notice and hearing prior to termination

Disability benefits: prior notice, post-termination hearing


Strict scrutiny

Least restrictive means to achieve a compelling governmental interest


Rational basis

Rationally related to a legitimate state interest


Intermediate scrutiny

substantially related to important governmental interest



Federal classification valid unless arbitrary and unreasonable

State laws -> Strict scrutiny

State restrictions on participation in government functions -> rational basis


Comity Clause

Prohibits one state from discriminating against the citizens of another state absent substantial justification. Does not include corporations or aliens; only applies to fundamental rights or essential activities (right to earn living, private employment, transfer of property, access to state courts, engaging in political process)


Comity Clause Exception

Discrimination is valid if there is a substantial justification: (i) the nonresidents either cause or are part of the problem the state is trying to solve; and (ii) no less restrictive means to solve problem


Takings clause

private property (real, tangible/intangible person property) may not be taken for public use (rationally related to a conceivable public purpose) without just compensation


Takings clause: public peril exception

Governmental destruction of private property in response to public peril does not trigger a right to compensation


Regulatory taking

(1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with owner's reasonable investment backed expectations regard use of property: (3) character of regulation, including degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner's essential attributes of property ownership


Per se taking

(1) Permanent physical occupation; (2) permanent total loss of property's economic use


Exaction as taking

May exact promises from a developer and not violate takings clause if: (1) essential nexus between legitimate state interests and conditions imposed on property owner; (2) rough proportionality between burden imposed on property owner and impact of proposed development


Bills of attainder

legislative act declares persons guilty of crime and punishes without trial; only applies to criminal/penal measures


Ex Post Facto law

(1) criminalizes act that was not crime when committed; (2) authorizes more severe penalty after act committed; (3) deprives D of defense available when act committed; (4) decreases prosecution's burden of proof
Only applies to criminal/penal law; law that is civil in purpose is treated as criminal only if its punitive effect clearly overrides its civil purpose


Impairment of contracts

State legislation that substantially impairs a contract between private parties is invalid unless government can demonstrate that the interference was reasonable and necessary to serve an important governmental interest; only applies to state legislation that retroactively impairs contractual rights


Lemon test

A governmental action that impacts religion is valid if (1) secular purpose; (2) principal/primary effect either advances nor inhibits religion; and (3) does not result in excessive government entanglement with religion


Religious belief

Absolutely protected and cannot be restricted by law; cannot deny benefits or impose burden based on religious belief; can determine sincerity of belief, but not reasonableness


Religious conduct

state law that intentionally target religious conduct subject to strict scrutiny; neutral state laws of general applicability that have an adverse impact on religious conduct only subject to rational basis test (federal laws subject to strict scrutiny)


Ministerial exception

affirmative defense to federal and state employment discrimination laws for religious institutions discharging a minister from employment


Expressive conduct

Regulation upheld if (1) within government's power to enact; (2) furthers an important governmental interest; (3) unrelated to suppression of ideas; (4) burden on speech no greater than necessary



Void if burdens substantially more speech than necessary to protect a compelling governmental interest; may be challenged as facially invalid to prevent chilling effect on protected speech



Void if fails to provide a person of ordinary intelligence fair notice of what is prohibited


Prior restraint

Generally unconstitutional unless: (1) particular harm to be avoided; (2) certain procedural safeguards are provided to speaker (narrowly drawn/reasonable/definite standards, promptly sought injunction, prompt/final judgment on validity of restraint)


Unfettered discretion

Statute giving official unfettered discretion is void on its space; must provide definite standards on how to apply the law to restrict speech; statute much relate to important governmental interest and contain procedural safeguards of prior restraint


Speech by government employee

Whether she was speaking a citizen on matter of public concern (is employee speaking pursuant to official duties); if so, interest of employee must be balanced against the interest of the state in effective and efficient management of its internal affairs


Campaign related speech

Contributions: intermediate scrutiny

Expenditures: strict scrutiny


Time, place, manner: public forum

(1) content-neutral as to both subject matter and viewpoint; (2) narrowly tailored to serving a significant governmental interests, and (3) leave open ample alternative channels for communication

Strict scrutiny if not content-neutral


Time, place, manner: non-public forum

(1) viewpoint neutral; (2) reasonably related to a legitimate governmental interest



Average person, applying contemporary community standards must find that the material taken as a whole (1) appeals to the prurient interest; (2) depicts sexual conduct in a patently offensive way; (3) lacks serious literary, artistic, political or scientific value (national standard)


Incitement to violence

may prohibit use of force or unlawful action if: (1) speech is directed to inciting or producing imminent lawless action, and (2) it is likely to incite or produce such action (a clear present danger)


Fighting words

Words by their very nature are likely to incite an immediate breach of the peace; genuine likelihood of imminent violence by hostile audience; actual threats of violence are not protected by first amendment


Commercial speech

Restrictions on commercial speech when speech concern lawful activity and neither false or misleading: (1) asserted governmental interest must be substantial; (2) regulation must directly advance asserted interest; (3) reasonable fit between the government's ends and means chosen to accomplish them


Freedom of association: public employment

Deprivation of public employment based on political association is allowed if: (1) person is active member of subversive organization; (2) has knowledge of organization's illegal activity; and (3) has specific intent to further those illegal activities


Zoning ordinance

Local governments have the power to pass zoning ordinances, so long as they are reasonably related to a legitimate government purpose (health, safety, morals, and general welfare).



If owner can demonstrate a particular zoning ordinance exacts a unique hardship on him; can request variance as long as variance is not contrary to public welfare


13th amendment

Congress has power to adopt legislation rationally related to eliminating racial discrimination as it is among the badges or incidents of slavery. Can regulate public and private conduct.


Presumption against preemption

An express federal preemption must be narrowly construed; but presumption is rebutted if Congress manifests its intent to preempt state law


Political question doctrine

whether the Constitution has assigned decision-making on this subject to a different branch of government or if the matter is inherently one that the judiciary cannot decide; only applies to federal government


Employment requirements

P&I: No residency requirement for private employment; requirement for public employment okay

14th: No citizenship requirement for private employment or government benefits; OK for government functions


government functions (alienage restriction)

Rational basis; voting, jury, police officer, probation, public school teachers

Whether the position or license would allow the alien to participate directly in the formulation, execution or review of broad public policy


Right to travel

interstate travel and settlement; can impose reasonable residency requirements for political participation and government benefits (30-90 days); one year is too long for everything except in-state tuition and jurisdiction to grant divorce; all residents have right to be treated equally (no discrimination based on length of residency)


Voting (residency)

can restrict voting to residents within borders; short-term residency requirement okay; congress controls residency requirement for presidential elections


Vote (property ownership)

not valid ground to restrict right to vote; limited exception for elections involving special-purpose entities (water-storage district)


Right to vote

Poll tax not okay; voter ID okay; felon okay


Ballot access

states can impose requirements for candidates to be listed on ballot so long as serious candidates can reasonably comply; requirements so onerous that they effectively bar access are unconstitutional


Freedom of association

Freedom of association protects right to form or participate in any group, gathering, club or organization virtually without restriction. Infringement upon this right may be justified by compelling state interest.