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Flashcards in Constitutional Law - MBE Deck (77):
1

Judicial power:

What is within SCOTUS's original jdx?

- Ambassadors, public ministers, consuls
- State is a party (concurrent with Fed Cts.—EXCEPT if a case between states)

2

Judicial power:

What is within SCOTUS's appellate jdx?

Which appeals are mandatory and which are permissive?

WRIT OF CERT—Appeals involving a federal question:
- Appeals from STATE courts: constitutionality of a federal statute, federal treaty, or state statute; state statute that allegedly violates federal law
- Appeals from FEDERAL courts: all cases from federal courts of appeals

MANDATORY APPEALS:
- Decisions by a three-judge panel that grants/denies INJUNCTIVE relief

3

Judicial power:

What must be true for an opinion to not be "advisory?"

- Must be an actual dispute
- Must have some legally BINDING effect on the parties

4

Judicial power:

What are three important exceptions to mootness?

- Capable of repetition but evading review
- Class actions (class rep may continue to represent class as long as SOME class members' claims are still in controversy)
- D has voluntarily stopped, but could restart anytime at will

5

Judicial power:

What is required for standing?

A party must have a STAKE IN THE OUTCOME of the lawsuit:
- Injury
- Causation
- Redressability

6

Judicial power:

Plaintiff sues to enforce a government statute. What is required for her to have standing?

Must be within the "zone of interests" Congress meant to protect

7

Judicial power:

What is required for a plaintiff to assert the rights of a third party?

CLOSE RELATIONSHIP:
- P has standing
- 3P unable or unlikely to sue
- P can adequately represent 3P

ORGANIZATION (on behalf of members):
- Members have standing
- Members' injury is related to the purpose of the org
- Members' individual participation not required (e.g. not seeking individualized damages)

FREE SPEECH OVERBREADTH:
- Not commercial speech

8

Judicial power:

What is required for a plaintiff to have standing to challenge government taxation or spending?

- Taxpayer can litigate his OWN tax liability, but cannot litigate general tax policy
- A citizen cannot sue to challenge government expenditures—EXCEPT suits attacking CONGRESSIONAL spending on Establishment Clause grounds (e.g. federal expenditures to aid parochial schools)

9

Judicial power:

What is the test for adequate and independent state grounds?

Adequate = fully dispositive
Independent = not based on the interpretation of fed law

*State court must CLEARLY INDICATE that its decision is based on adequate and independent state grounds—if it doesn't do this, SCOTUS may hear the case.

10

Judicial power:

What is abstention, and when does it apply?

Federal court abstains from hearing a case that it could otherwise hear.
- Unsettled Q of state law is at issue
- Pending state CRIMINAL proceedings—EXCEPT if the criminal proceedings were brought in bad faith simply to harass

11

Judicial power:

P wants to challenge a law that hasn't been enforced yet. Is the case ripe?

ONLY IF:
- The law is LIKELY to be enforced someday
- Substantial hardship in the absence of review
AND
- Issues and record are fit for review right now—i.e. is a primarily "legal" issue

12

Judicial power:

What is required for legislative standing?

Personal injury, rather than the leg generally (e.g. nullifies a legislator's vote)

13

Judicial power:

When can a plaintiff sue a state (exception to Sovereign Immunity)?

- Waiver
- The P is another state, or the feds
- Bankruptcy proceedings against the state
- Clear abrogation by Congress (e.g. 14th A)

14

Judicial power:

Is a lawsuit against state officials barred under sovereign immunity?

What about a lawsuit against a local government (municipal)?

No, can sue for damages (out-of-pocket) or an injunction

No, can sue for anything against a municipal gov't

15

Legislative power:

What are some of the more important powers of Congress?

- Necessary and proper (anything "necessary and proper" to carry out one of the enumerated powers)
- Taxing and spending
- Commerce
- War and related powers
- Bankruptcy
- Postal power
- Citizenship and naturalization
- Admiralty
- Patent/copyright

16

Legislative power:

What can Congress do under the taxing power?

- Anything that bears a reasonable relationship to revenue production
OR
- Congress can tax in whatever way it likes if it can regulate the activity (e.g. under the Commerce power)

17

Legislative power:

What can Congress do under the spending power?

Spend for the:
- Common defense
- General welfare (any public purpose)

18

Legislative power:

What can Congress do under the commerce power?

When can it regulate purely intrastate activity?

Regulate:
- Channels and instrumentalities of INTERSTATE commerce

Regulate INTRASTATE IF:
- Economic/commercial activity
- In the aggregate, it substantially effects interstate commerce

19

Legislative power:

What can Congress do under the war and related powers?

- Declare war, raise armies, etc.
- Economic regulation to remedy wartime disruption of the economy
- Establish military courts and tribunals (insulated from fed/state court review)

20

Legislative power:

What can Congress do under the citizenship/nationalization power?

- Establish UNIFORM rules for naturalization and denaturalization
- Deport aliens—but they are entitled to a NOTICE and a HEARING

21

Legislative power:

When is it permissible for Congress to delegate its legislative powers?

- There are intelligible standards in place
- The power being delegated is not a power exclusively confined to Congress (e.g. powers to declare war, impeach)

22

Legislative power:

What is the test for evaluating a condition/string attached to a state receiving federal funds?

- The condition must relate to the purpose of the spending
- The condition cannot be UNDULY COERCIVE

23

Executive power:

What are some important domestic powers of the executive?

- Appointment and removal
- Pardons
- Veto

24

Executive power:

Appointment and removal power?

APPOINTMENT:
- Ambassadors, federal judges, officers of the US (e.g. cabinet secretaries)
- Senate gives advice and consent (majority approval)
- Recess appointments: can appoint during a recess of at least 10 DAYS; the appt will only last until the end of the next Senate session.

REMOVAL:
- Pres may remove high-level officers at will
- Need good cause to remove low-level

25

Executive power:

Pardon power?

- May pardon anyone accused or convicted of a FEDERAL crime

26

Executive power:

What are some important foreign powers of the executive?

- War
- Treaties and executive agreements

27

Executive power:

Treaties and executive agreements—what trumps them and vice versa?

TREATIES:
- Senate must approve (2/3)
- Trumps existing and future state law
- Trumps existing federal law (i.e. they are on par with federal law)

EXECUTIVE AGREEMENTS:
- Just a contract, no Senate involvement
- Trumps existing and future state law
- Never trumps federal law

28

Executive power:

What is included in executive immunity?

- Absolute bar for civil liability for actions taken within official responsibilities
- NO immunity for civil liability for actions taken BEFORE taking office (e.g. Clinton v. Paula Jones)

29

Federalism:

What is the anti-commandeering principle?

Congress cannot compel states to enact or administer federal programs

(but they can attach non-coercive conditions to receiving federal funds)

30

Federalism:

The dormant commerce clause prohibits ______.

state laws that discriminate against interstate commerce

31

Federalism:

Who is a proper plaintiff for a DCC claim?
What is the claim aimed at protecting?

- All out-of-staters
- The flow of interstate commerce

32

Federalism:

What's the test for whether a law violates the DCC?

DISCRIMINATORY:
- Invalid UNLESS
- Nec to achieve an impt govt purpose
- No less-discriminatory alternatives
(this is the same test as a discriminatory law under P&I)

NON-DISCRIMINATORY:
- Valid UNLESS
- Burden on IC clearly outweighs non-protectionist benefits

EXCEPTIONS to both:
- Congressional approval of the state law
- Market participant

33

Federalism:

What does Privileges AND Immunities (4th Amendment) clause prohibit?

- State laws that discriminate against out-of-state US citizens
- Regarding: important commercial activities (e.g. a person's livelihood) AND individual rights

34

Federalism:

Who is a proper plaintiff for P&I clause claim?
What is the claim aimed at protecting?

- US citizens
- The privileges of out-of-staters to in important commercial activities (e.g. a person's livelihood) AND individual rights

35

Federalism:

What is the test for whether a state law violates the P&I clause?

DISCRIMINATORY state law is invalid UNLESS substantial justification:
- Nec to achieve an impt govt purpose
- No less-discriminatory alternatives

(this is the same test as a discriminatory law under DCC)

36

Federalism:

States cannot regulate in ways that burden interstate commerce—they also cannot TAX in ways that burden interstate commerce. What is the test for this?

DISCRIMINATORY:
- Generally invalid

NON-DISCRIMINATORY:
- Valid IF
- Substantial nexus b/w the taxpayer and the state
- Fair apportionment to business done or benefits received in the state

37

Federalism:

Can a state assess property taxes for a military base located within the state?

No—states cannot assess taxes against the federal government

38

Federalism:

Can a state require a contractor who is building on a military base to pass a state environmental inspection?

No—states cannot regulate the federal government, which includes federal government property within the state

39

Federalism:

What does the privileges OR immunities clause of the 14th A protect?

States may not deny their citizens:
- Fundamental right of interstate travel
- Right to petition the government
- other stuff...

40

Individual rights:

Obviously state action is satisfied whenever a state law or state official affects an individual's rights. What is the test for these harder calls?
- Private entity providing a public function
- State involvement in private conduct

PUBLIC FUNCTION:
Private services provider is state action if the function is TRADITIONALLY AND EXCLUSIVELY a government function.

STATE INVOLVEMENT:
Private services provider is state action if there is SIGNIFICANT state involvement in encouragement, supervision, entwinement, or approval of the action.

41

Individual rights:

What does the contracts clause prohibit?
Does it apply to state and/or federal government?
What level of scrutiny applies?

Cannot enact laws that RETROACTIVELY impair the rights of EXISTING contracts

State govt only. But a flagrant impairment of an existing contract right would violate the due process clause

42

Individual rights:

What are the levels of scrutiny for laws that allegedly violate the contracts clause?
- Private contracts
- Public contracts

PRIVATE K:
- Intermediate scrutiny

PUBLIC K:
- Intermediate scrutiny PLUS (these are a little more suspect because the state could be passing a law that limits its own contractual burdens/liabilities)

43

Individual rights:

What is the test for an ex post facto law, whether it retroactively alters criminal liability?

If any of these things are different than what was in place when the act was committed:
- Makes criminal an act that was innocent
- Prescribes greater punishment than
- Reduces the evidence

44

Individual rights:

What does due process require?

- Fair process (notice and a hearing)
- Before the STATE
- Can INTENTIONALLY (doesn't apply to negligent)
- deprive someone of LIBERTY or PROPERTY

45

Individual rights:

What type of "process" is required by due process?

Usually requires:
- Notice
- Fair procedures
- Unbiased decision-maker

Apply BALANCING test:
- Importance of the individual's interest
- Value of the specific safeguards to that interest
VERSES
- Govt interest in fiscal and administrative efficiency

46

Individual rights:

Can the imposition of filing fees violate due process or equal protection?

Yes, if it denies the person a FUNDAMENTAL RIGHT

47

Individual rights:

What type of due process is generally required for the termination of parent's custody rights?

- PRIOR notice

- PRE-deprivation hearing

48

Individual rights:

What type of due process is generally required for deprivation of welfare benefits?

- PRIOR notice

- PRE-deprivation hearing

49

Individual rights:

What type of due process is generally required for deprivation of disability benefits?

- PRIOR notice

- POST-deprivation hearing

50

Individual rights:

What type of due process is generally required for deprivation of public eduction (e.g. expulsion, or temporary deprivations, like suspension)?

- PRIOR notice and opp to respond

No formal hearing required

51

Individual rights:

What classifications are entitled to
- intermediate scrutiny
- strict scrutiny?

INTERMEDIATE:
- Gender ("exceedingly persuasive justification")
- Legitimacy (children born in/out of wedlock)

STRICT:
- Race
- National origin
- Alienage classifications (by A STATE)
- Denial of fundamental rights to some

52

Individual rights:

What are recognized compelling purposes for affirmative action?

- Remedying past discrimination (NOT general societal discrimination)
- Diversity in education (defer to HIGHER ed determination that diversity is a compelling interest for them)

53

Individual rights:

When will the consideration of race when drawing up voting districts constitute a racial classification?

As long as it's no the PREDOMINANT FACTOR

If this is proven, SS applies (racial classification)

54

Individual rights:

When does SS apply to classifications based on alienage?

When done by A STATE
- EXCEPT if the law discriminates against alien participation in positions integral to DEMOCRATIC SELF-GOVERNANCE (e.g. voting, jury service, elective office) or positions important to PUBLIC POLICY (e.g. police officers, teachers)—RBR applies.
- EXCEPT if the law discriminates against ILLEGAL aliens—RBR applies.

Congress has plenary power over aliens, so FEDERAL ALIENAGE classifications are subject to RATIONAL BASIS review

55

Individual rights:

What are the fundamental rights entitled to SS protection?

Privacy (CAMPERS)*
Vote
InterSTATE travel
Protected 1st A rights

* CAMPERS
- Contraception
- Abortion
- Marriage
- Procreation
- Education (PRIVATE, not public)
- Relations (related family)
- Sexual conduct (private, non-commercial)

56

Individual rights:

State law requires a person to live in the state for 2 years before they can receive state benefits. Is this a valid law?

NO

Impairs a fundamental right—INTERSTATE TRAVEL.

Likely doesn't pass SS.

57

Individual rights:

State law requires a person to live in the state for 30 days before they can vote in state elections. Is this a valid law?

YES

Impairs a fundamental right—VOTING.

But would likely pass SS

58

Free speech:

What level of scrutiny applies to a restriction on government speech?

RBR

1st A protects PRIVATE speech

59

Free speech:

State gov't commissions a permanent monument near its capitol. A private person designed and donated the monument and a private company installed it. Govt speech? What level of scrutiny applies?

Govt speech—RBR

60

Free speech:

The state of Texas provides funds to student organizations. The students use the funds to engage in speech/assemblies. Can the state allocate funds to some groups and not others based on what the groups advocate?

NO—govt funding of private speech must be VIEWPOINT NEUTRAL

EXCEPTION:
- The government can pick certain ARTISTS to promote with public funds (the gov't can possibly fund all artists, so they have to discriminate somehow, and content is okay)

61

Free speech:

What is the basic framework for a free speech issue?

(non-facial attack)

(1) CLASSIFY THE REGULATION:
CN (time, place, manner) or CB?

(2) APPLY SCRUTINY:

CN >>> IS-ish
- Significant gov't interest
- Narrowly tailored (leaves open alternate channels, doesn't burden substantially more speech than necessary)

CB >>> SS

62

Free speech:

What are the grounds for a facial attack on a speech regulation?

- Over-breadth
- Vagueness
- Prior restraint
- Unfettered discretion

63

Free speech:

When is this kind of speech un-protected or partially protected?
- Defamation
- Commercial speech

DEFAMATION:
- Actual malice >>> un-protected
- Public officials, public matters >>> partially protected

COMMERCIAL SPEECH:
- False, misleading >>> un-protected
- Not false/misleading >>> partially protected

64

Free speech:

What is the test for determining whether speech is obscenity (un-protected speech)?

Depiction of sexual conduct that, by CONTEMPORARY COMMUNITY STANDARDS:
- Appeals to prurient interest in sex (community standard)
- Is patently offensive (community standard)
AND
- Lacks serious social value (NATIONAL reasonable person standard)

*State has more leeway to define pictures of minors as obscenity

65

Free speech:

What are the limits on zoning power re adult stores?

- Can limit the location or size of adult stores
- ONLY IF designed to reduce the "secondary effects" of those businesses (e.g. rise in crime rates, drop in property values)
- CANNOT ban altogether

66

Free speech:

Gov't can restrict false, or misleading commercial speech (it's not protected speech). What are the rules regarding partially protected commercial speech?

INTERMEDIATE-ish SCRUTINY
- Substantial government interest
- Directly advances the interest
- Narrowly tailored ("reasonable fit"—NOT least restrictive means)

67

Free speech:

When can the government compel commercial speech?

Can require advertisers to make certain DISCLOSURES about their products if:
- Not UNDULY BURDENSOME
- Reasonably related to preventing DECEPTION

68

Free speech:

Showing prior restraint of speech is one way to facially challenge a free speech regulation. What is required for the prior restraint to be valid?

Must be geared toward preventing some SPECIAL SOCIETAL HARM (e.g. the government can prohibit publishing of troop movements during wartime).

69

Free speech:

When can the government keep the press out of a courtroom during trial?

BALANCING: the public's need for information is outweighed by overriding interests (e.g. need for a fair trial)

*The prior restraint should be basically the ONLY way to protect the overriding interest

70

Establishment clause:

What are the two tests for establishment clause issues?

(1) STRICT SCRUTINY if the government is preferring one religion over another

(2) LEMON TEST if the government action is facially neutral

71

Establishment clause:

What is the Lemon test?

Applies to facially neutral government actions that potentially "establish" a religion.

The gov't action is VALID ONLY IF:
- It has a SECULAR PURPOSE
- Its PRIMARY EFFECT neither advances NOR inhibits religion
- It does not produce EXCESSIVE ENTANGLEMENT with religion

72

Free exercise clause:

What are the two tests for free exercise clause issues?

(1) DISCRIMINATORY (PURPOSEFUL interference with religion, very high standard)
- Apply STRICT SCRUTINY (gov't will lose)

(2) FACIALLY NEUTRAL (doesn't treat religious and non-religious people differently)
- Apply RATIONAL BASIS REVIEW (this basically means that the law doesn't raise 1st A issues)

73

Free speech:

Government has more leeway to regulate speech on public/government property. What are the different classifications of government property?

- Traditional public forum (e.g. parks, streets, sidewalks)

- Designated public forum (e.g. college student group kiosks)

- Non-public (e.g. post office, DMV, public airport)

74

Free speech:

Government has more leeway to regulate speech on public/government property.

What level of scrutiny applies for each kind of government property?

TRADITIONAL PUBLIC:
- Same rules as general speech regulations (SS if CB, IS if CN)

DESIGNATED PUBLIC
- Same as public forums, until they are un-designated as public forums

NON-PUBLIC:
- SS if VIEWPOINT-based
- Otherwise, just has to be REASONABLE given the forum

75

Free speech:

Special rules apply to limiting speech on public school grounds. What are the two tests?

(1) STUDENT SPEECH
- Cannot be restricted UNLESS SUBSTANTIAL DISRUPTION (includes promoting illegal drug use)

(2) SCHOOL SPEECH (includes student speech through a school newsletter)
- Restriction must be based on a legitimate TEACHING CONCERN

76

Free exercise:

A state law prohibits ritual slaughter of animals. The purpose was to prevent animal cruelty. Is it constitutional?

No—violates the free exercise of religion. The statute bans RITUAL slaughter of animals, so its purpose is to interfere with religion.

77

Free exercise:

A government employer asks a prospective employee about membership in organizations (some might be religious). Does this violate the prospective employee's religious liberty?

No—gov't employers can ask about organization membership that is relevant to the job, impacts that applicant's competence and loyalty.