Constitutional Law Flashcards
(317 cards)
1
Q
What does Art. I of the Constitution establish?
A
The United States Congress
2
Q
What does Art. II of the Constitution establish?
A
The Executive Branch; i.e. the Presidency
3
Q
What does Art. III of the Constitution establish?
A
The Judiciary
4
Q
Under what circumstances will the SCOTUS refuse to hear a case appealed to it from a state’s highest court?
A
When adequate and independent state grounds support the state court’s decision.
5
Q
Do taxpayers have standing to challenge the constitutionality of government spending?
A
No. Generally, taxpayers do not establish standing to challenge a tax expenditure purely by their being taxpayers.
6
Q
What is necessary for an organization to have standing to sue on behalf of its members?
A
To have standing to sue on behalf of its members, an organization must show that the members’ injuries are related to the organization’s purpose.
7
Q
Does standing require economic harm?
A
No.
8
Q
To establish standing, a plaintiff’s injury must be _______________ and _____________. It cannot be _______________.
A
concrete; real; theoretical.
9
Q
What does the Eleventh Amendment do?
A
It prohibits the bringing of suits by private parties against a state for damages or equitable relief without the state’s consenting to such suits.
10
Q
May a private citizen bring a suit against a state which would divest the state of land if the court ruled for the plaintiff?
A
No. The Eleventh Amendment prohibits the bringing of suits by private parties against a state without that state’s consent. The divesting of a state of land is the same as damages, and therefore is prohibited by the Eleventh Amendment.
11
Q
A state court defers judgment in a case involving federal law and refers it to a federal court, asking for clarification of the federal law. May the federal court clarify the law?
A
No. Art. III courts can only hear cases and controversies arising under federal law. A clarification of the law is a form of advisory opinion, which is prohibited under Art. III of the Constitution.
12
Q
What courts, if any, can issue advisory opinions?
A
Art. I courts (Tax Court; Bankruptcy Court; etc.)
13
Q
What kinds of courts are there under the Constitution?
A
The Constitution expressly establishes only one court: the United States Supreme Court. However, it also allows for the establishment of additional courts: Article III courts, i.e. federal district courts and federal appellate courts, all of which are established by Congress; Article I courts, which are also established by Congress and given limited jurisdiction (tax, bankruptcy, etc.); and Article IV courts, which includes only American territorial tribunals.
14
Q
How can Congress limit the avenues by which someone can make a constitutional claim before the SCOTUS?
A
Under Art. III, sect. 2, Congress can eliminate specific avenues of achieving SCOTUS review, but not all avenues of review of an alleged violation of a specific constitutional right.
15
Q
Is legislative procedure an issue which can be reviewed by a federal court?
A
No. Legislative procedure is solely under the jurisdiction of the relevant legislative authority, and therefore is a political question, which cannot be reviewed by courts.
16
Q
Is whether a candidate for political office of the proper age and residency an issue which can be reviewed by a court?
A
No, it is a political question. The Constitution grants the Congress the power to determine the qualifications for membership, making it a political question and incapable of being reviewed by the courts.
17
Q
What are the two methods by which a case can make it to the SCOTUS?
A
1) the SCOTUS, in its discretion, grants a writ of certiorari to the case; or 2) the case is appealed to the SCOTUS from a three-judge appellate panel.
18
Q
When must the SCOTUS hear a case; i.e. what is the mandatory jurisdiction of the SCOTUS?
A
The Supreme Court must hear a case which is appealed to it from a three-judge panel.
19
Q
The United States sues Texas to claiming that land held by Texas is rightfully the land of the United States. What court has original jurisdiction to hear the case?
A
The Supreme Court of the United States
20
Q
Kansas sues Missouri. What court has original jurisdiction to hear the case?
A
The Supreme Court of the United States.
21
Q
How many justices of the SCOTUS must agree to hear a case in order for the Court to grant a writ of certiorari?
A
Four
22
Q
When does a plaintiff have standing to sue on behalf of a 3rd party?
A
A plaintiff has standing to sue on behalf of a third party if 1) the plaintiff was injured and the plaintiff’s injury adversely affected her relationship with the 3rd party; and 2) the third party has difficulty asserting its rights, but only if the plaintiff is also injured.
23
Q
Congress passes a bill which transfers the power to hear a criminal case to the U.S. Tax Court. Is this constitutional?
A
No. Congress cannot transfer the powers of Art. III courts to an Art. I court. However, appeals from Art. I courts often go to a U.S. Court of Appeals, but this is not the same as a transfer of power.
24
Q
Rob sues Eric Greitens in the U.S. District Court for the Eastern District of Missouri for prospective injunctive relief. Is this constitutional?
A
Yes. The Eleventh Amendment does not prohibit suing a state official for injunctive relief in federal court.
25
A governmental organization discriminates against certain people based on their age. What standard of review is used by the reviewing court to assess the constitutionality of the discrimination?
Rational basis review is used in assessing the constitutionality of discrimination based on age.
26
The one person, one vote rule requires almost exact mathematical equality between ________________ districts within a state.
congressional
27
Under current SCOTUS jurisprudence, when may the government impose an undue burden on a woman's ability to obtain an abortion?
After viability of the fetus.
28
What standard is used in determining whether a state government district's variance in population is too large?
The variance in population between two state government districts cannot be unjustifiably large.
29
What standard of review is used in assessing the constitutionality of a state denying aliens governmental benefits?
Strict scrutiny.
30
What standard of review is used in assessing the constitutionality of the federal government denying aliens governmental benefits?
Rational basis review, because the Constitution gives Congress plenary power over immigrants.
31
What standard of review is used in assessing the constitutionality of a discriminatory action based on gender?
Intermediate scrutiny.
32
For a law discriminating according to gender to pass the test for constitutionality, the government must show:
an exceedingly persuasive justification for the law.
33
What is meant by the term "heightened scrutiny?"
Either intermediate or strict scrutiny. Anything higher than rational basis.
34
If it is alleged that the government has discriminated on the basis of a suspect or quasi-suspect classification, proof of what will be sufficient to *trigger heightened scrutiny?*
To trigger heightened scrutiny in regards to a law which discriminates against a suspect or quasi-suspect class, it is sufficient to show 1) facial discrimination; 2) discriminatory motive; or 3) discriminatory application.
35
Must a law analyzed under rational basis review be the least burdensome means of achieving a legislative goal?
No.
36
A state government agency is hiring. They prefer to hire black and latino employees, despite having a history of discrimination against those groups. The purpose of the preference is to remedy the past governmental discrimination. Is this constitutional?
Yes. Remedying past governmental discrimination at a government agency is sufficient justification for a state government hiring program to favor one race over another.
37
What is not sufficient, in itself, to trigger heightened scrutiny when a law discriminates against a suspect or quasi-suspect class?
Discriminatory *effect*
38
Rational Basis Review —
laws will be upheld unless they are arbitrary; i.e. they must be rationally related to a legitimate government interest.
39
Does the press/media enjoy broader or narrower First Amendment freedoms than the general public?
Neither. The press enjoys the same freedom as the general public under the First Amendment.
40
Under the free speech clause of the First Amendment, a regulation of speech on a particular topic in a nonpublic forum must be . . .
viewpoint neutral.
41
What standard is used to analyze the constitutionality of a government regulation which burdens speech based on its content?
Strict scrutiny
42
What is the minimum level of fault a private citizen must show when suing for defamation arising from a statement of public concern?
Negligence
43
What are the requirements for government regulations of speech in public forums and designated public forums?
Government regulations of speech in public and designated public forums must be 1) content neutral; 2) narrowly tailored to serve an important interest; and 3) leave open alternative channels of communication.
44
What is the measure of an overly broad government regulation of speech?
An overly broad government regulation of speech is a regulation which "prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest."
45
When can a pretrial criminal proceeding be closed to the press?
If it is essential to preserve a higher value and the order is narrowly drawn.
46
What standard is used to analyze the constitutionality of symbolic conduct?
Intermediate scrutiny.
47
What are the requirements for a time, place and manner restriction on speech in a limited public forum?
The regulation must be 1) viewpoint neutral; and 2) rationally related to a legitimate government interest.
48
If a regulation of speech is overly broad, but when judged in relation to its plainly legitimate sweep is found to not prohibit a substantial amount of protected speech, may it nonetheless be enforced?
Yes, but only against persons who engage in activities which are not constitutionally protected.
49
Obscenity —
1) appeals to the prurient interest in sex; 2) portrays sex in a patently offensive way; and 3) does not have serious literary, artistic, political or scientific value.
50
What standard is used in determining whether material appeals to a prurient interest in sex?
A community standard.
51
May a regulation of speech target truthful advertisements concerning lawful activities?
Yes, but only if it 1) serves a substantial government interest; 2) is narrowly tailored to serve that interest; and 3) directly advances that interest.
52
Intermediate Scrutiny —
a regulation is substantially related to achieving an important government interest (check this).
53
Strict Scrutiny —
a government regulation must be narrowly tailored to accomplish a compelling government interest and be the least restrictive means of achieving such end.
54
What are the known suspect classes?
Race, national origin, alienage (for state regulations) and religion.
55
What are the known quasi-suspect classes?
Gender and legitimacy of birth.
56
What are the two main requirements for a court to hear a case or controversy?
Standing and Ripeness
57
Standing —
determining whether the plaintiff is the proper party to bring a matter to the court for adjudication.
58
For the purposes of standing, what must a plaintiff show in order to prove they have suffered an injury?
The plaintiff must show 1) that he has been injured; or 2) imminently will be injured.
59
Plaintiffs may only assert injuries which they have _____________ suffered.
personally
60
What must plaintiffs show if they are requesting a injunction or declaratory relief from the Supreme Court in regards to injury?
That there is a likelihood of future harm that they will suffer.
61
What are the three requirements for establishing standing?
Injury, causation and redressability.
62
Third parties do not have standing to sue on behalf of a third party, with several exceptions:
1) when there is a close relationship between the party and the third party; 2) if the injured party is unlikely to be able to assert their rights; and 3) an organization may sue for its members if a) the members would have individual standing to sue; b) the interests are germane to the org's purpose; and c) neither the claim nor the relief requires participation by all the members.
63
Generally, taxpayers and citizens do not have standing to sue the government solely to ensure the government is following the law. However, taxpayers may have standing to challenge government expenditures . . .
pursuant to federal or state statutes which violate the establishment clause of the Constitution.
64
The government gives money to a parochial school. Does the plaintiff have standing?
Yes.
65
The government grants property to a religious organization. Does the plaintiff have standing?
No.
66
The taxpayer does not like the way the government is spending his money. Does he have standing?
No.
67
Missouri gives St. Francis Xavier Parish a tax credit because it does considerable charitable work. Does the taxpayer have standing to challenge the tax credit?
No.
68
Ripeness —
whether a federal court may grant a pre-enforcement review of a statute or regulation.
69
A ripeness question is suggested by a question which requests . . .
a declaratory judgment; e.g. the court declares the law unconstitutional.
70
Need a law be violated before it can be challenged for ripeness?
No, if the elements are met for challenging ripeness.
71
What will the court consider in determining whether a law is ripe and therefore can be subject to a pre-enforcement review?
1) the harm which will be suffered without a pre-enforcement review; and 2) the fitness of the issues and the record for judicial review.
72
Explain the prohibition on generalized grievances.
The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.
73
Mootness —
if events after the filing of the suit end the plaintiff's injury, the case will be dismissed as moot.
74
What are the exception to the mootness doctrine?
1) where the wrong is capable of repetition in the future; 2) where the defendant voluntarily quits the harm, but is free to resume it at any time; and 3) class actions, which cannot be dismissed despite the named plaintiff's claim becoming moot IF* there is at least one member of the class with an ongoing injury.
75
What are the four known types of political questions the courts will not hear?
Challenges to 1) the guarantee of a republican form of government; 2) the president's conduct of foreign policy; 3) the impeachment and removal process; and 4) to partisan gerrymandering.
76
How do virtually all cases come before the SCOTUS?
By writ of certiorari.
77
How do state court cases come to the SCOTUS?
By writ of certiorari.
78
How do cases from the U.S. Courts of Appeals come to the SCOTUS?
By writ of certiorari.
79
From what can a case be *appealed* to the SCOTUS?
A three-judge federal district court.
80
Over what kinds of cases does the SCOTUS have original jurisdiction?
suits between states.
81
How can Congress change the original jurisdiction of the SCOTUS?
Congress cannot change the original jurisdiction of the SCOTUS.
82
What must a state case do before it can appeal for a writ of certiorari?
It must exhaust all state remedies; i.e. it must have already been heard and decided by a state's highest court.
83
When is the Supreme Court barred from hearing a state case?
Where there is an independent and adequate state law ground of decision.
84
A case is heard by the state's highest court. It's decision rests on two grounds: one state law, and one federal la.w When in this case can the SCOTUS be barred from hearing this case?
If the overturning of the federal ground for the holding is overturned, yet has no effect on the holding.
85
Against what can a federal or state court never hear a case against?
A state government.
86
What source of law prohibits suits against state governments in federal court?
The Eleventh Amendment.
87
What source of law prohibits suits against states in state courts or federal agencies?
The doctrine of sovereign immunity.
88
States may be sued in the what circumstances?
1) the state waives their privilege; 2) where a federal law allows it in pursuance of sect. 5 of the 14th Amend.; 3) the federal government itself sues the state; and 4) the state is in a bankruptcy proceeding.
89
Sovereign immunity does not extend to whom?
State officers.
90
State officers may not be sued if what?
If the damages are paid out of the state treasury.
91
Under what powers may Congress derive its power to make laws.
1) an implied or express power of Congress; or 2) the necessary and proper clause.
92
There is no general federal _______________.
police power.
93
Under the necessary and proper clause, Congress can . . .
use any means not prohibited by the Constitution to carry out its authority.
94
Congress may tax and spend for the ___________________.
General welfare.
95
Congress can regulate what under the commerce clause?
1) channels of interstate commerce; 2) the instrumentalities of interstate commerce; 3) persons or things in interstate commerce; and 4) economic activities which have a substantial impact on interstate commerce when considered in the aggregate.
96
In the area of non-economic activity, a substantial impact on interstate commerce cannot be based on _________________
cumulative impact.
97
Congress cannot regulate ______________ under the commerce clause.
inactivity.
98
What does the Tenth Amendment say?
All powers not granted to the United States nor prohibited to the states, are reserved to the states or the people.
99
Under the Tenth Amendment, Congress cannot compel states to do what?
To write regulations or statutes.
100
Congress can induce state governments to take particular actions by putting strings on grants, so long as the conditions are . . .
1) expressly stated; 2) relate to the purpose of the spending program; and 3) are not unduly coercive.
101
In regard to state economic activity, Congress can prohibit what kind of activity?
Harmful economic activity by state governments.
102
Regarding Congress's powers under sect. 5 of the 14th Amendment, what can Congress not do?
Create new rights or expand the scope of rights.
103
Pursuant to sect. 5 of the 14th Amendment, what can Congress do in regards to rights under the Constitution?
The Congress may act only to prevent or remedy violations of rights recognized by the courts. Such laws must be proportionate and congruent to remedying the constitutional violations.
104
Is there a limit to Congress' ability to delegate its legislative authority?
Technically yes, but in reality no. No congressional act has been struck down as a violation of the non-delegation doctrine since 1937.
105
Legislative Veto —
where the Congress nullifies an agency act by a joint resolution. THESE ARE UNCONSTITUTIONAL.
106
Line-Item Veto —
where the president vetoes particular parts of a law without vetoing the whole thing. THESE ARE UNCONSTITUTIONAL.
107
For Congress to act properly in passing a law, there must always be:
1) bicameralism (bill passes both houses of Congress); and 2) presentment (the president signing it into law).
108
May Congress enforce the laws it passes?
No. It cannot delegate enforcement power (an executive power) to itself.
109
May Congress implement the laws it passes?
No. It cannot delegate implementation power (an executive/administrative power) to itself.
110
What happens if a treaty conflicts with a state law?
The treaty prevails.
111
What happens when a treaty conflicts with a federal law?
Whichever one was adopted most recently controls.
112
What happens if a treaty conflicts with the United States Constitution?
It is invalid.
113
What is the difference between an executive agreement and a treaty?
Treaties require ratification by the Senate, whereas executive agreements do not.
114
For what purposes can executive agreements be made?
Literally any reason.
115
What happens when an executive agreement conflicts with a state law?
The executive agreement prevails.
116
What happens when an executive agreement conflicts with a federal law or the Constitution?
The executive agreement is invalid.
117
Under the president's recognition power, the president can effectively recognize new nations. However, it is unconstitutional for the president to . . .
designate, by statute, the capitol of a foreign country.
118
Who appoints ambassadors, federal judges and officers of the United States?
The president.
119
In regards to officers of the United States, what powers does Congress have?
Congress may vest the appointment of inferior officers in the president, the heads of departments, or the lower federal courts. Neither Congress nor its officers may appoint anyone.
120
What is the limit to the president's recess appointment power?
The president cannot make recess appointments during intrasession recesses that are less than 10 days.
121
What is the removal power?
Unless limited by statute, the president can fire an executive official for any reason or no reason.
122
Can Congress prohibit the removal of someone?
No. Congress cannot prohibit the removal of an officer. Rather, it can only limit it.
123
For Congress to be able to limit the removal of an officer, what must be present?
The office must be one in which independence from the president is desirable. Ex: a special prosecutor investigating the president.
124
For what offenses can the president, VP, federal judges and officers of the United States be impeached and removed from office?
Treason, bribery, or high crimes and misdemeanors.
125
What does it take to impeach someone?
Impeachment must receive a majority vote in the House of Representatives.
126
What does it take to convict someone of an impeachable offense?
The Senate must vote 2/3 to convict.
127
Can a sitting president be held liable for civil wrongs performed while in office?
No. The president enjoys absolute immunity from civil liability while in office. However, he will be liable for civil wrongs which occurred before he took office.
128
When does the president's privilege in all presidential papers and conversations end?
When there is an important government interest.
129
What kind of offenses can the president pardon someone?
Federal criminal offenses. The president cannot pardon someone for an offense which is not a federal criminal offense.
130
The president has the power to pardon someone of a federal criminal offense, unless . . .
the person was impeached. Those who are impeached, even if they are not convicted, cannot be pardoned by the president.
131
What does the Supremacy Clause state?
The Constitution, laws and treaties of the United States are the supreme law of the land.
132
What are the two types of preemption?
Express and implied.
133
What must be present for express preemption?
A federal statute must expressly state that federal law is exclusive in a particular area of policy.
134
If there is no express preemption, there may be implied preemption of state law if . . .
1) if federal and state law cannot both be complied with; 2) if state law impedes the accomplishing of a federal objective; or 3) if Congress evidences a clear intent to preempt state law.
135
How is a clear intent to preempt state law by Congress evidenced?
Legislative history.
136
May a state government tax the federal government?
No. Under inter-governmental immunity, the federal government cannot be taxed by a state government.
137
Explain the dormant commerce clause:
A state or local law is unconstitutional if it places an undue burden on interstate commerce.
138
Where are the privileges and immunities clauses in the Constitution?
There are two privileges and immunities clauses in the Constitution: in Art. IV and in the 14th Amendment.
139
Under the privileges and immunities clause of Art. IV:
a state cannot deprive out-of-state residents of the rights afforded to residents of that state.
140
Under the privileges and immunities clause of the 14th Amendment:
a state cannot deprive its citizens of the benefits of national citizenship; i.e. the right to travel.
141
Which privileges and immunities clause is violated if a state discriminates against non-residents?
The privileges and immunities clause of Art. IV.
142
If a law does not discriminate against out-of-state residents, but burdens interstate commerce more than it benefits, it violates:
the dormant commerce clause.
143
If a state law burdens interstate commerce, it violates the dormant commerce clause unless . . .
it is necessary to achieve an important government purpose.
144
When might a state be able to enforce a discriminatory law despite its burdening interstate commerce?
When 1) Congress approves it by affirmative legislation; or 2) under the market participant exception, the state prefers its own citizens in receiving government benefits or in dealing with government owned businesses.
145
If a state law discriminates against out-of-staters with regard to their making a living, it violates the privileges and immunities clause unless . . .
the discrimination involves a fundamental right and it is necessary to achieve an important government purpose.
146
Who cannot claim the privileges and immunities clause in an action?
Corporations and aliens.
147
May a state use its tax systems to help in-state businesses?
Nope.
148
A state may only tax activities if there is a _________________ to the state.
substantial nexus between the taxed activity and the taxing state
149
State taxation of interstate businesses must be what?
Fairly apportioned.
150
What is the first thing that must be present in determining whether a plaintiff has a viable claim of a violation of an individual right?
State action
151
Congress, by statute, may apply constitutional norms to ____________________.
private conduct.
152
Does private discrimination violate the 13th Amendment?
No. However, private discrimination DOES violate a statute which Congress is authorized to pass in order to enforce the 13th Amendment.
153
What action violates the 13th Amendment?
Slavery.
154
What is the most common, and easiest, method by which Congress can regulate private conduct?
The commerce power.
155
May Congress use sect. 5 of the 14th Amendment to regulate private conduct?
No. Sect. 5 of the 14th Amendment states that Congress has the power to pass legislation in order to enforce the 14th Amendment. However, the 14th Amendment only applies to regulating state and local governments. Thus, it cannot be used to regulate private, individual conduct.
156
What are the two exceptions where private conduct must comply with the Constitution regardless of whether there is federal legislation requiring its complying with the Constitution?
1) where a private entity is performing a task traditionally and exclusively is performed by the government; and 2) where the government impliedly authorizes, encourages or facilitates the unconstitutional activity.
157
A private school receives considerable federal funds from the government. It fires one of its teachers for statements made about its principal. Is this constitutional?
Yes. Despite the considerable government funding, the school remains a private institution, and therefore is privileged to do as it wishes regarding speech of its employees.
158
A neighborhood maintains a covenant on its land which prohibits certain minorities from owning land there. Is this constitutional?
No. Courts cannot enforce such rules because to do so would be to impliedly authorize discriminatory conduct.
159
The City of St. Joseph leases land to a restaurant, White Mike's Pasty Cakes, which caters only to white people. Is this constitutional?
No, because to do so would impliedly authorize discriminatory conduct.
160
A state ____________ is not considered sufficient state action to justify a finding of a state violation of an individual right.
license
161
Technically, the Bill of Rights only *directly* applies to . . .
the federal government.
162
The Bill of Rights is applied to state and local governments by the . . .
due process clause of the 14th Amendment
163
What rights are not considered as being incorporated to the states?
Right against having a soldier quartered in your home; right to a grand jury in a criminal case; right to a jury trial in a civil case; right against excessive fees.
164
Rational Basis Test —
a law is upheld if it is rationally related to a legitimate government interest.
165
Intermediate Scrutiny —
a law is upheld if it is substantially related to an important government purpose.
166
Strict Scrutiny —
a law is upheld if it is necessary to achieving a compelling government purpose.
167
Under intermediate and strict scrutiny, who has the burden of proof?
the government.
168
Under strict scrutiny, a law is "necessary" if it is . . .
the least restrictive means of accomplishing the compelling government interest.
169
Under intermediate scrutiny, "substantially related to an important government interest" means that it must be . . .
narrowly tailored.
170
Intermediate scrutiny does not require that a law be . . .
the least restrictive means of accomplishing the governmental objective.
171
Regarding procedural due process, when is there a deprivation of property?
When there is an entitlement that is not fulfilled by the government.
172
Government _____________ is not enough for a finding of a deprivation of due process.
negligence
173
In order to find a government deprivation of due process, the government must act with what?
Recklessness or intent.
174
In emergency situations, the government will be held liable for a deprivation of due process if its conduct does what?
shocks the conscience.
175
Is the government liable for a failure to protect someone from a private harm, assuming the harmed person was not in government custody and the government did not create the danger?
No
176
There is a deprivation of liberty when . . .
there is a loss of a significant freedom guaranteed by the Constitution or statute.
177
In determining whether there has been a violation of procedural due process, what must the court consider?
The court must balance: 1) the importance of the interest to the individual; 2) the ability of additional procedures to increase the accuracy of the fact-finding; and 3) the government's interests.
178
Procedural due process is considered as constituting what two things?
Notice and a hearing.
179
Where someone's welfare benefits are terminated, there must be what?
Notice and a hearing before they are terminated.
180
Where someone's social security benefits are terminated, what must there be?
Only a post-termination hearing.
181
Before a school can discipline a student, there must be:
notice and a hearing.
182
Where a school wishes to inflict corporal punishment on a student, there must be what?
Nothing. Schools need not provide notice or a hearing in order to initiate corporal punishment as a method of disciplining students.
183
Where the government wishes to terminate a parent's right to custody of a child, there must first be . . .
notice and a hearing.
184
Procedural due process requires that in the case of punitive damages, there must be what?
An instruction to the jury to ensure reasonableness.
185
An American citizen went to Syria to fight for ISIS. He later returned to the United States, and was detained as an enemy combatant. What must happen?
He is entitled to notice and a hearing.
186
Where the government seeks to seize property, it must first do what?
Hold a hearing and give notice to the owner of the property.
187
What standard of review is used in reviewing government regulations of economic activity?
Rational basis review.
188
Under the takings clause of the Constitution, the government may take _____________ property for _____________ use if it provides __________________.
private; public; just compensation.
189
Government confiscation or physical occupation amounts to a _________________ taking.
possessory
190
Government regulation which leaves no reasonable economically viable use of the property is a _______________ taking.
regulatory
191
When the government places a condition on the development of property, the condition must be what in order to not be a taking?
justified by a benefit which is roughly proportionate to the burden imposed.
192
The government regulates a piece of land. A person but takes issue with the governmental regulation of the land which was present when he moved there. Can he do this?
Yes. A property owner may bring takings challenges to regulations that existed at the time the property was acquired.
193
When is the government's temporarily denying an owner the use of their property not a taking?
Where the government's action is reasonable.
194
How is "just compensation" measured for purposes of the takings clause?
The fair market value of the land at the time it is taken.
195
A piece of land is worth $100,000 in the hands of its private owners. The government seizes the land by confiscating it from the owner. Under the government's intended use of the land, the land's value would increase ten-fold. How much is owed to the owner of the land?
$100,000. The gain to the government is irrelevant for calculating just compensation under the takings clause.
196
The contracts clause of the Constitution applies to whom?
States and local governments; not the federal government!
197
May the federal government interfere with contracts?
Yes. Under the contracts clause of the Constitution, state and local governments may not interfere with rights of existing contracts. However, the federal government may do so.
198
In order for a state/local government's interference with contractual obligations is constitutional, the government must prove:
the interference is substantially related to an important government interest.
199
What level of review is applied to a state/local interference with a governmental contract?
Strict scrutiny
200
To what kind of cases does the prohibition against ex post facto laws apply? To what does it not apply?
Criminal cases; civil cases.
201
Retroactive civil liability is analyzed using what standard of review?
Rational basis review.
202
Under what standard of review are interferences with fundamental rights analyzed?
Strict scrutiny.
203
Is there a fundamental right to marry?
Yes.
204
Is there a fundamental right to procreate?
Yes
205
Is there a fundamental right to custody of one's children?
Yes
206
Is there a fundamental right to keeping one's family together?
Yes
207
Is there a fundamental right to control the upbringing of one's children?
Yes
208
Is there a fundamental right to purchase and use contraceptives?
Yes
209
What standard of review is used in analyzing a woman's right to an abortion?
The undue burden standard.
210
Prior to a fetus's viability, a state . . .
cannot prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions.
211
Is the requirement that there be a 24-hour waiting period for abortions an undue burden under current jurisprudence?
No
212
Is the requirement that an abortion be performed by a licensed physician an undue burden?
No
213
Is a prohibition on partial-birth abortions an undue burden?
No
214
Is a requirement that physicians have admitting privileges at a hospital within 30 miles and that a facility have ambulatory surgical facilities an undue burden?
Yes
215
After a fetus's viability, a state . . .
may prohibit abortions unless to protect the woman's life or health.
216
The government refuses to subsidize abortions in public hospitals in a particular state. Is this constitutional?
Yes. The government is under no obligation to subsidize abortions.
217
Texas passes a law requiring one's spouse to consent to an abortion. Is this constitutional?
No. Spousal consent and notification laws are unconstitutional.
218
When can the government require parental notice and consent for unmarried minors to receive an abortion?
So long as the government creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interest or that she is mature enough to decide for herself.
219
How is private, consensual homosexual activity protected by the Constitution?
Private, consensual homosexual conduct is protected by the Constitution under the right to privacy.
220
Is a person's right to refuse medical treatment a fundamental right?
Yes.
221
While a person's right to refuse medical treatment, including food and water, is a fundamental right, can the states require clear and convincing evidence that a person wants to refuse medical treatment?
Yes.
222
Missouri outlaws family members from having the power to terminate medical treatment for their loved ones. The law places the power to end treatment solely in those receiving the medical treatment. Is this constitutional?
Yes. A state may prevent family members from terminating medical treatment for another.
223
Dr. Kevorkian decides to open an assisted suicide clinic, where patients can receive consulting and treatment for assisted suicide. The state outlaws this practice. Is this constitutional?
Yes. There is no constitutional right to assisted suicide.
224
What level of scrutiny is the Second Amendment reviewed under?
The SCOTUS has not stated a scrutiny under which the Second Amendment is analyzed.
225
What does the decision in District of Columbia v. Heller state?
That the Second Amendment guarantees citizens the right to own a firearm in their home for security.
226
The Supreme Court has stressed that the Second Amendment is not ________________.
absolute.
227
Who can have their right to own a firearm infringed upon without violating the Second Amendment?
Those with histories of mental illness; convicted felons.
228
Can Congress regulate the kind of weapons Americans have access to?
Yes
229
Under what level of scrutiny must the court analyze a state's law restricting the ability to travel in or out of that state?
Strict scrutiny
230
A state passes a law requiring that in order to receive in-state tuition at a university, the person in question must have lived in the state for six months and intended to state there indefinitely. Someone challenges the law for being unconstitutional. Under what standard will it be analyzed?
Strict scrutiny.
231
Congress, unde the advice of the U.S. Department of State, cuts off foreign travel by American citizens to Somalia, citing the dangerous conditions in the country. A Somali emigrant who has family still in Somalia challenges the law, arguing it is unconstitutional. What level of review will it receive?
Rational basis review.
232
Restrictions on the right to vote are analyzed using what level of scrutiny?
Strict scrutiny
233
Regulations of the electoral process are analyzed using what level of scrutiny?
There is no level of scrutiny under which regulations to the electoral process are analyzed. Rather, the court must weigh the burden of the regulations against the government's need for effective electoral procedures.
234
The state of Kansas passes a law requiring that people pay a fee in order to vote. Is this constitutional?
No.
235
When will at-large elections be ruled unconstitutional?
When there is proof of a discriminatory purpose.
236
Kansas decides to redraw its district lines for congressional seats. It redraws its second congressional district to avoid including blacks, who often vote for democrats, in the second district. Under what level of scrutiny will this be analyzed if its constitutionality is challenged?
Strict scrutiny
237
Donald Trump runs for reelection in 2020 against Crazy Joe Biden. When the votes are counted, Crazy Joe demands a recount of the votes due to the closeness of the race. When the votes are recounted, uncounted votes are counted with no standard. Someone challenges this on constitutional grounds. Does it violate the constitution?
Yes. Counting uncounted votes without standards in a presidential election violates equal protection.
238
Is there a fundamental right to an education?
No
239
Generally, what does the equal protections clause do?
The equal protections clause of the Constitution prohibits government discrimination except where it can be shown to meet one of three different standards, depending on what kind of discrimination is taking place.
240
What part of the Constitution contains the equal protections clause?
The Constitution contains two equal protections clauses: the 5th Amendment, and the 14th Amendment.
241
Equal protection is applied to the federal government via what?
The 5th Amendment
242
Equal protection is applied to state/local governments via what?
The 14th Amendment
243
Classifications based on race are analyzed under what standard for equal protections purposes?
Strict scrutiny
244
Classifications based on national origin are analyzed under what standard for equal protections purposes?
Strict scrutiny
245
How are racial, national origin, or gender classifications proven to exist?
1) the classification exists on the face of the law; or 2) if the law is facially neutral, there is a discriminatory impact *and* a discriminatory intent.
246
A hiring program favors blacks and hispanics in hiring. A white person challenges this for its constitutionality. What level of scrutiny is it analyzed under?
Strict scrutiny.
247
Under what condition are racial quotas constitutional?
Where the quota systems are created to remedy past discrimination.
248
Under what conditions may a public university use race as a factor in admissions decisions?
To use race as a factor in admissions decisions, the university must show that there is no race-neutral alternative which could achieve diversity.
249
When can school districts use race in determining which school to send students?
When strict scrutiny is satisfied.
250
What must the government prove in order to discriminate based on gender?
That the classification is substantially related to achieving an important government purpose and that there is an exceedingly persuasive justification for the classification.
251
Florida passes a law stating that women who are receiving government welfare will receive considerably more welfare than men. Someone challenges the law based on equal protections violations. Is the law constitutional?
No. Gender classifications benefitting women which are based on role stereotypes will not be allowed. This law has the potential for perpetuating gender stereotypes about women being weaker and in more need of welfare than men.
252
What kind of classifications based on gender will be allowed?
Classifications which are designed to remedy past discrimination and differences in opportunity.
253
Under what standard of review are classifications based on alienage analyzed?
Alienage
254
The state of Missouri decides that legal aliens from other countries cannot receive the same benefits as citizens of Missouri. Is this constitutional?
No.
255
When will the court apply only a rational basis test for classifications based on alienage by a state?
When a state is using alienage classifications which concern self-government and the democratic process.
256
Congress passes a law which makes a discriminatory classification based on alienage. It is challenged for constitutionality. What level of review will is receive?
Rational basis review. Under the Constitution, Congress has plenary power over immigration. Therefore, the law must only be reasonably related to a legitimate government purpose.
257
What standard is used in cases of classifications regarding illegal immigrant children?
Intermediate scrutiny.
258
What level of scrutiny is applied to classifications based on the legitimacy of children?
Intermediate scrutiny.
259
The government premises a benefit on children being born of their parents. Non-marital children cannot receive this government benefit. Is this constitutional?
No
260
What level of review is used to analyze the constitutionality of discrimination based on age?
Rational basis review.
261
What level of review is used to analyze the constitutionality of discrimination based on disabilities?
Rational basis review.
262
What level of review is used to analyze the constitutionality of discrimination based on wealth/poverty?
Rational basis review.
263
What level of review is used to analyze the constitutionality of discrimination based on economic regulations?
Rational basis review.
264
What level of review is used to analyze the constitutionality of discrimination based on sexual orientation?
Rational basis review.
265
What level of scrutiny are content-based restrictions on speech analyzed under?
Strict scrutiny
266
What level of scrutiny are content-neutral restrictions on speech analyzed under?
Intermediate scrutiny
267
Prior Restraint —
a court order suppressing speech before it occurs.
268
What standard of review are prior restraint orders analyzed under?
Strict scrutiny
269
The New York Times receives confidential information regarding the war in Iraq which could compromise undercover agents operating there for the United States. Before it is published, the government requests and receives a court order from the U.S. District Court for the Eastern District of New York restraining the New York Times from publishing the information. The New York Times challenges the constitutionality of that order in that court. While the matter is pending, must the New York Times comply with such an order?
Yes. Procedurally proper court orders must be complied with until they are vacated or overturned.
270
When may the government require a license to speak?
1) if there is an important reason for licensing; 2) there are clear criteria leaving almost no discretion to the licensing authority; and 3) there are procedural safeguards in the licensing scheme.
271
When is a law unconstitutionally vague in regards to speech?
If a reasonable person cannot tell what speech is prohibited and what is allowed.
272
When is a law unconstitutionally overbroad in regards to regulating speech?
If the law regulates substantially more speech than the Constitution allows to be regulated.
273
When someone is convicted on violating a fighting words statute, what is the most likely result if the case is appealed?
The court will overturn the conviction due to the statute's being unconstitutionally overbroad and vague.
274
When can the government regulate symbolic speech?
When the government has 1) an important interest unrelated to suppression of the message; and 2) the impact on communication is no greater than necessary to achieve the government's purpose.
275
In regards to elections, ___________ limits are constitutional, whereas ______________ limits are unconstitutional.
contribution; expenditure
276
An anonymous citizen of St. Joseph, Mo. places offensive signs outside his residence criticizing city hall and members of the local government. Are his communications capable of being regulated by the government based on their being anonymous?
No. Anonymous communications are protected under the First Amendment.
277
Are government communications protected by the First Amendment?
Yes.
278
What are the major areas of speech which are either less protected by the First Amendment or not protected at all?
1) incitement of illegal activity; 2) obscenity; and 3) commercial speech.
279
When can the government punish speech which incites illegal activity?
When 1) there is a substantial likelihood of imminent illegal activity and 2) if the speech is directed to causing imminent illegality.
280
What is the test for determining whether something is obscenity?
1) the material appeals to the prurient interest in sex; 2) the material is patently offensive under the law prohibiting obscenity; and 3) taken as a whole, the material must lack serious redeeming cultural value.
281
A company is charged with breaking obscenity laws. May the government seize its property?
Yes
282
Is profane and indecent speech protected by the First Amendment?
Yes.
283
What are the exceptions to profane and indecent speech being protected?
Indecent speech over the broadcast media and in schools is not protected.
284
What kinds of commercial speech can be prohibited without violating the First Amendment?
1) advertisements for illegal activity; 2) advertisements which are false or deceptive; and 3) commercial speech which is true but which risks deception.
285
Alabama outlaws the in-person solicitation of legal services. Is this constitutional?
Yes.
286
The state of New York outlaws the in-person solicitation of accounting business by accountants. Is this constitutional?
No. The government cannot prohibit the in-person solicitation of accounting services because accountants are trained in accuracy, not advocacy, as are lawyers.
287
Generally, government regulations on commercial speech is analyzed under what standard of review?
Intermediate scrutiny
288
Must government regulations on commercial speech be the least restrictive alternative?
No
289
If information was lawfully obtained from the government, can the government create liability for its being reported by journalists?
No
290
The Washington Post receives a tape in the mail containing a phone call between the president and the secretary of state. The recording was made illegally by an unknown person. May the Washington Post be liable if it publishes the contents of the recording?
No. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality and it involves a matter of public importance.
291
A clerk of an Illinois District Court tells a same-sex couple that their relationship is lewd and immoral and that they are going to hell. The woman is subsequently fired from her job after having been given notice and a hearing. She sues the court, arguing that her being fired for what she said violated the First Amendment. Can she recover?
No. Speech by government employees on the job in the course of their official duties is not protected by the First Amendment.
292
Regulations of speech in public forums must be what?
1) be subject matter and viewpoint neutral; 2) be a reasonable time, place and manner restriction which serves an important government purpose; and 3) leaves open adequate alternative places for communication.
293
Must a government regulation of a public forum be the least restrictive alternative?
No. They must, however, be narrowly tailored.
294
Who cannot be given the discretion to set permit fees for public demonstrations?
City officials.
295
Public Forum —
government properties which the government is constitutionally required to make available for speech.
296
Designated Public Forum —
government properties which the government could close to speech, but chooses to open to speech.
297
Limited Public Forum —
government properties which are limited to certain groups or dedicated to the discussion of only some subjects.
298
Non-Public Forum —
government properties which the government constitutionally can and does close to speech.
299
What standard of review is used in determining the constitutionality of a law which prohibits or punishes membership in a group?
Strict scrutiny
300
In order to punish membership in a group, it must be shown that the person:
1) is actively affiliated with a group; 2) knows of the group's illegal activities; and 3) acts with the specific intent to further those illegal activities.
301
What standard is a law which requires disclosure of group membership analyzed under?
Strict scrutiny
302
Laws that prohibit a group from discriminating are constitutional unless:
they interfere with intimate association or expressive activity.
303
The free exercise clause cannot be used to challenge what kind of law?
A neutral law of general applicability.
304
A person quits their job for religious purposes. Can the government deny this person unemployment benefits because of their voluntarily leaving their job?
No. The government cannot deny benefits to individuals who quit their jobs for religious reasons.
305
A law will be found as not violating the establishment clause of the Constitution if:
1) there is a secular purpose for the law; 2) the effect neither inhibits nor advances religion; and 3) there is no excessive entanglement with religion.
306
Under what standard are laws discriminating against religious speech or among religions analyzed?
Strict scrutiny
307
May the government sponsor religious activity?
No
308
May the government give assistance to parochial schools?
Yes, so long as it is not used for religious instruction.
309
Do members of Congress have standing to challenge a statute they have passed for its constitutionality?
No.
310
In what circumstances can a state prohibit non-citizens from holding a job with the government?
Where the job directly affects the political process and has a rational basis for the prohibition.
311
A prior restraint will be upheld only if . . .
it is the only sure way of preserving a fair trial for the defendant. There will almost always be a way of reducing the risk to impartiality without a prior restraint.
312
Under Congress's taxing and spending power, government spending for the general welfare must be . . .
reasonably related to the purpose of the spending.
313
Can a state regulate federal government activities?
No, unless the federal government consents.
314
Who possesses police powers in the United States?
State and local governments, generally. There is no general federal police power, but Congress has *some* police powers in select areas of federal policy.
315
A state government prohibits particular conduct. The federal government subsequently allows such conduct. Is it legal to partake in that conduct?
Yes. Under the supremacy clause, federal law is supreme, including positive federal law which allows conduct that states have tried to prohibit.
316
For all practical purposes, the power to regulate foreign commerce lies exclusively with ______________. However, that power may be delegated to _______________.
Congress; the president.
317
For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has __________.
a legitimate claim or entitlement to the benefit
