BAR FLASHCARDS - CL Qs

Question 1

A deprivation of liberty occurs if a person: (2)

Answer 1

A deprivation of liberty occurs if a person (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute.

Question 2

Damage to one’s reputation…

Answer 2

Damage to one’s reputation generally does not involve a loss of significant freedom of action or of a freedom provided by law

Question 3

For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has __________.

Answer 3

There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy.

Question 4

An intentional deprivation of life, liberty, or property requires…

Answer 4

An intentional deprivation of life, liberty, or property requires fair procedures and an unbiased decision maker.

Question 5

The level of due process that is required depends on the circumstances surrounding the deprivation of the interest. The courts consider these factors: (3)

Answer 5

The level of due process that is required depends on the circumstances surrounding the deprivation of the interest. The courts consider these factors:
(i) The importance of the individual’s interest that is involved,
(ii) The value of specific procedural safeguards of the individual’s interest, and
(iii) The government’s interest in fiscal and administrative efficiency. Normally, the person whose interest is being deprived should also receive notice of the government’s action and have an opportunity to respond before termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.

Question 6

Before the government may deprive a person of property, what is required?

Answer 6

Procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property. Thus, the store owner should be granted a hearing before his license can be suspended

Question 7

A business license is a…

Answer 7

A business license is a valid property right, and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property. Thus, the store owner should be granted a hearing before his license can be suspended

Question 8

public employee termination: What PDP is required?

Answer 8

Continued public employment may be a protected property interest if there is a clear practice or mutual understanding that an employee can be terminated only for “cause.”
Under the Due Process Clause of the Fourteenth Amendment, a public employee who is subject to removal only for “cause” under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law.

The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges.
The employee must also be given a subsequent evidentiary hearing regarding the termination (with reinstatement if the employee prevails).

Question 9

___ ___ is not itself sufficient to trigger strict or intermediate scrutiny on a claim that government action discriminates on the basis of a suspect or quasi-suspect classification?

Answer 9

Discriminatory Effect.
Only intentional discrimination violates the Equal Protection Clause, and the mere fact that government action appears to have a discriminatory effect does not show a discriminatory intent..

Question 10

Gender is a ___ classification. It triggers ___ scrutiny?

Answer 10

Gender is not considered a suspect classification for equal protection purposes. Gender is a quasi-suspect classification, triggering an intermediate standard of scrutiny in determining whether a government action or law violates equal protection.

Question 11

___, ___, and ____ are the three suspect classifications designated by the Supreme Court as requiring a strict standard of review (strict scrutiny) for a challenge to a government action or law on the basis of equal protection.

Answer 11

Race, national origin, and alienage are the three suspect classifications designated by the Supreme Court as requiring a strict standard of review (strict scrutiny) for a challenge to a government action or law on the basis of equal protection.

Question 12

What SC precedent is a sufficient justification for a government program differentiating on the basis of a person’s race?

Answer 12

A program of minority hiring to correct the effects of past discrimination in hiring by a government agency.

Question 13

Under the Equal Protection Clause, a government classification based on race is constitutional only if….

Answer 13

Under the Equal Protection Clause, a government classification based on race is constitutional only if the government can show that the discrimination is necessary to achieve a compelling interest.
Supreme Court has held that remedying past discrimination is a compelling interest and that the type of hiring program described in this choice was necessary to achieve that interest.

Question 14

A program assigning students to public high schools based on race in order to promote diversity among the student body is…

Answer 14

A program assigning students to public high schools based on race in order to promote diversity among the student body is not constitutional. The Supreme Court has found that promoting racial diversity in public high schools (or grade schools) is not a compelling government interest, and, as discussed above, race-based discrimination is constitutional only if necessary to achieve a compelling interest. Students can be assigned on the basis of race to remedy past discrimination (remedying past discrimination being a compelling government interest), but merely promoting diversity is not.

Question 15

A redistricting of legislative boundaries for the purpose of placing racial or ethnic minority voters in the majority is….

Answer 15

A redistricting of legislative boundaries for the purpose of placing racial or ethnic minority voters in the majority is unconstitutional for similar reasons. Racial balance is not a compelling interest and a compelling interest is needed to justify racial discrimination-even racial discrimination that favors minorities.

Question 16

Alienage classifications

Answer 16

Generally, alienage classifications made by states are subject to strict scrutiny. (However, there is an exception where the law is related to participation in the self-government process. Such laws are subject only to the rational basis test.)

Question 17

Alienage classifications - State law vs Federal

Answer 17

A STATE LAW that denies government benefits to an individual based on alienage is subject to strict scrutiny and will be upheld only if the state proves the discrimination is necessary to achieve a compelling government interest. Generally, alienage classifications made by states are subject to strict scrutiny. (However, there is an exception where the law is related to participation in the self-government process. Such laws are subject only to the rational basis test.)
A FEDERAL LAW that denies government benefits to an individual based on alienage is not subject to strict scrutiny. Because the Constitution gives Congress plenary power over aliens, federal classifications based on alienage generally are tested under the rational basis test (i.e., valid unless the challenger can prove that the classifications are not rationally related to a legitimate government interest).

Question 18

state classifications based on alienage - government position related to self-governance

Answer 18

Although state classifications based on alienage are generally suspect, a state may reserve a government position for citizens if it is related to self-governance, involves policymaking, or requires exercise of important discretionary power over citizens. In these cases, only a rationality test is used.

Question 19

State action that is facially neutral will nevertheless be struck down if….

Answer 19

State action that is facially neutral will nevertheless be struck down if it can be shown that it was intended to discriminate on the basis of race or national origin and does in fact have that effect.

Question 20

substantial nexus

Answer 20

In determining the validity of a state tax affecting interstate commerce, courts will consider whether there is a substantial nexus between the activity taxed and the taxing state

Question 21

State taxes on the federal government

Answer 21

A state cannot impose a tax on the federal government, federal government property, or federal agencies!!!

Scenario 1: the National Park Service will be putting together some weirdass memorial of Abrahams Lincolns house or something and they will hire some “independent contractor” antique collector dude to go buy Abraham Lincolns old chair or some shit. He will then have to pay a state tax when he buys it. ALLOWED.
Scenario 2: Federal government will create a national lottery then have a federal agency run it. Then the agency will set up little lottery offices in each state. Then the state will tax the agency lottery offices within the state. NOT ALLOWED.
Scenario 3: the Federal Government will set up some type of “special bank account” to pay their contractor to buy materials to build a bridge or some shit. Then he will use the money from the “special bank account” to go buy the wood and get taxed with State sales tax. This is ALLOWED.
Scenario 4: a state law imposes taxes on all leases of real estate. Then they will say that the state wants to tax office space of the U.S. Social Security Office or some federal agency. This is NOT allowed.

Question 22

If a state law discriminates on its face between in-state and out-of-state economic actors, the state must show that:

Answer 22

(1) the regulation serves a compelling state interest; and (2) the regulation is narrowly tailored to serve that interest.

Question 23

If a state law merely incidentally (nondiscriminatory) burdens interstate commerce, the state must show that:

Answer 23

(1) the regulation serves an important state interest; and (2) the burden on interstate commerce is not excessive in relation to the interest served.

Question 24

The doctrine of sovereign immunity.

Answer 24

Sovereign immunity precludes suits against the sovereign (here, the state) without its consent. However, state officials can be sued to enjoin them from enforcing unconstitutional statutes.

Question 25

impairment of the obligations of public contracts by the state may be justified by …

Answer 25

a showing of necessity.

Question 26

The Contract Clause provides that…

Answer 26

…no state shall pass a law impairing the obligation of contracts.

However, a state may impair the contractual rights of parties to public contracts if the state meets a high burden of proof.

When an important state interest is at stake and no less restrictive means exist to advance that interest, the state may exercise its police power in a manner that impairs contract rights if the state can show:
- the impairment is necessary to serve an important and legitimate public interest (strict scrutiny), and
- the regulation is a reasonable and narrowly tailored means of promoting that interest (narrowly tailored).

Question 27

A designated public forum

Answer 27

A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school).

Question 28

A limited public forum…

Answer 28

A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate).

Question 29

For a governmental regulation of speech in a public or designated public forum to avoid strict scrutiny and be upheld…

Answer 29

To avoid strict scrutiny and be upheld, a regulation must be
content neutral,
and narrowly tailored to serve an important government interest,
and it must leave open alternative methods of communication.

Keep in mind, however, that even if these requirements are met, the regulation may be invalidated for other reasons, such as for being vague or overbroad.

It is not necessary that the regulation affecting speech in a public or designated public forum be the least restrictive method of achieving the governmental interest. It is enough that the regulation is narrowly tailored to serve the interest at issue.

Question 30

To be valid, a time, place, and manner regulation of a limited public forum must be…

Answer 30

To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose.

Question 31

Limited Public Forus

Answer 31

Places controlled by the government that are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations.

Government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point.

Question 32

A courthouse and its grounds

Answer 32

A courthouse and its grounds are not a public forum.

Question 33

Conduct: The noncommunicative impact of speech-related conduct in a public forum can be regulated IF

Answer 33

furthers an important governmental interest and is not aimed at communication.

The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question, so that alternative channels for communicating the message are available.

Question 34

Free Exercise Clause ANALYSIS

Answer 34

Religiously neutral laws of general applicability: Upheld unless motivated by desire to interfere with religion.

Not neutral: Strict scrutiny.

Question 35

The Free Exercise Clause prohibits government from…

Answer 35

The Free Exercise Clause prohibits government from punishing conduct just because it is religious.

Generally applicable laws or other government action that burdens religious practices will be upheld under the Free Exercise Clause unless it can be shown that the law or action was motivated by a desire to interfere with religion (in which case, it will be upheld only if it passes strict scrutiny).

Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions with two historic exceptions:
- the Amish must be exempted from mandatory schooling beyond eighth grade, and
- workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.

Question 36

Establishment Clause Analysis

Answer 36

In determining whether government action is valid under the Establishment Clause, courts will consider whether the action is neutral with regard to religion. Next, courts will consider whether the government action accords with history and faithfully reflects the understanding of the Founding Fathers. If so, the action is unlikely to violate the Establishment Clause.

Question 37

Sincerely held religious beliefs

Answer 37

An asserted religious belief must occupy a place in the believer’s life parallel to that occupied by orthodox religious beliefs. Even an internally derived belief is entitled to protection.

Question 38

the First Amendment forbids a court from determining….

Answer 38

the First Amendment forbids a court from determining whether a person’s religious beliefs are true. A court must respect a sincerely held religious belief, even if it appears to be illogical or incapable of proof. (B) is incorrect because the Free Exercise Clause protects all sincerely held religious beliefs, regardless of whether a specific religion is deemed to be “established” or “traditional.

Question 39

restrictions on the right to travel abroad, imposed by the federal government… STANDARD?

Answer 39

restrictions on the right to travel abroad (e.g., limitations on travel to Cuba), at least when imposed by the federal government, do not have to meet the strict scrutiny standard

Question 40

One-person, one-vote Principle - Congressional districts

Answer 40

Regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required under the one person, one vote principle.

Question 41

One-person, one-vote Principle - State government districts

Answer 41

Regarding state government districts, almost exact mathematical equality between districts is NOT required under the one person, one vote principle. In state government districts, the variance from district to district may not be unjustifiably large. But this is a much more lenient standard than the almost exact mathematical equality standard.

The variance may not be unjustifiably large, but a variance of even 16% has been found to be valid.

Question 42

A bona fide residence requirement, such as this statute, that is not based on a suspect classification and does not limit the exercise of a fundamental right, is judged by…

Answer 42

A bona fide residence requirement, such as this statute, that is not based on a suspect classification and does not limit the exercise of a fundamental right, is judged by the rational basis test.

Question 43

Federal laws over state laws

Answer 43

Valid fed laws preempt state laws regardless of whether they interfere with traditional state or local government functions.
Federal laws are allowed even if they interfere with integral state government functions.
In Garcia v. San Antonio Metro- politan Transit Authority (1985), the Supreme Court stated that it would not invalidate federal laws on the ground that they usurp state authority.

Question 44

Supremacy Clause

Answer 44

The Supremacy Clause prevents such state control of the federal government.
State governments may not regulate federal government activities.
States thus lack the authority to impose regulations on federal military bases.

Question 45

Congress’s power to tax and spend for the general welfare.

Answer 45

The General Welfare Clause gives Congress the power to tax and spend for the general welfare.

Congress may spend for any public purpose, and may require entities that accept government money to act in a certain manner.

Conditions: Because the federal government has the power to tax, and because spending for education is for the general welfare, the govern- ment may attach any reasonable conditions to the expenditure it desires.

Question 46

Congress’s broad power to regulate interstate commerce includes the power to control production of items having
a substantial impact on such commerce.

Answer 46

Congress’s broad power to regulate interstate commerce includes the power to control production of items having
a substantial impact on such commerce.

Question 47

Contract Clause.

Answer 47

Limit on State and Local laws, not Fed. The impairment of the Contract Clause applies to state governments only, not to the federal.

Between Private parties, state and local law may not substantially impair existing contract rights unless (1there is an important gov interest, and (2) the law is reasonably related to promoting that interest.

Betweee the government contract, the burden is higher. Laws that retroactively impair govrnment contracts are subject to heightened scrutiny. When there is a government contract, ….. Financial reasons are not enough as a reason to cancel.

The Contract Clause limits the states’ ability to substantially impair existing contract rights

Question 48

Power to regulate foreign commerce

Answer 48

power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President.

Question 49

Anti-commandeering

Answer 49

The Tenth Amendment prohibits the federal government from commandeering state officials by requiring state officials to act.

Even though agency regulations supersede contradictory state laws, the regulations may not commandeer state officials

Question 50

Discriminating based on alienage

Answer 50

Although the Equal Protection Clause prohibits the states from discriminating based on alienage (subject to strict scrutiny), federal rules classifying people based on alienage are generally upheld so long as they are not arbitrary or unreasonable.

Question 51

Dormant Commerce Clasue

Answer 51

A state cannot discriminate against interstate commerce. A state cannot a protectionist law that favors in-state commerce over out of state commerce. But, one exception to that rule is the state acting as a market participant. Another exception is if the state law is necessary to protect an important state interet.

Question 52

State as market participant

Answer 52

The Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant

Question 53

Speech or Debate Clause.

Answer 53

Article I, Section 6 provides that “For any speech or debate in either House [members of Congress] shall not be questioned in any other place.”
Senators who make statements on the Senate floor have immunity from defamation suits, even if the defamation suit could otherwise overcome the high standard for suits against public figures.

Question 54

What gets intermediate scrutiny

Answer 54

Gender classifications, non-marital children.

State should be required to show that the classification is substantially related [For gender, exceedingly persuasive justification] to the achievement of important government objectives.

“The Court imposes an intermediate standard of review in cases involving sex discrimination, requiring the government to demonstrate an exceedingly persuasive justification that a classification based on gender is substantially related to the achievement of important governmental objectives “

Question 55

State classifications of aliens

Answer 55

a state may require citizenship for important state jobs that directly affect the political process, provided the state has a rational basis for such discrimination. [See, e.g., Foley v. Connelie (1978)—state troopers; Ambach v. Norwick (1979)—primary and secondary school teachers; Cabell v. Chavez-Salido (1982)—probation officer]

This is an exception to the usual rule that state classifications of aliens are “suspect” and subject to strict scrutiny

Question 56

When is the Due Process Clause applicable?

Answer 56

If there is a deprivation of life, liberty, or property, the Due Process Clause is applicable

Question 57

The Privileges or Immunities Clause of the Fourteenth Amendment.

Answer 57

the Privileges or Immunities Clause merely forbids a state from infringing on rights of national citizenship and has essentially been a dead letter since the Slaughterhouse Cases (1873).

Question 58

The Privileges and Immunities Clause of Article IV

Answer 58

The Privileges and Immunities Clause of Article IV protects against discrimination by a state in favor of its own citizens when it affects a fundamental right, such as the pursuit of a livelihood.

If the statute is a federal statute, the Privileges and Immunities Clause is not applicable.

Article IV prohibits discrimination by a state in favor of its own citizens.

Question 59

Under the Due Process Clause, a party is entitled to ….

Answer 59

Under the Due Process Clause, a party is entitled to notice and an oppor- tunity to be heard before being deprived of liberty or property.

Question 60

The Equal Protection Clause

Answer 60

The Equal Protection Clause prohibits the government from treating similarly situated people differently without sufficient justification.

If the classification involves neither a suspect nor quasi-suspect classification, the statute will be upheld as long as there is any rational basis for the disparate treatment.

Question 61

Prior Restraint

Answer 61

The Supreme Court made it clear that a prior restraint will be upheld only if it is the only sure way of preserving a fair trial for the defendant. Prior restraints are almost always unconstitutional.
Although prejudicial publicity can pose a serious problem, the Supreme Court held that it virtually always should be dealt with by means other than prior restraints.

Prior restraints are tolerable only if no less restrictive alternative would work.

Question 62

General framework for analyzing speech regulations

Answer 62

Content based laws are subject to strict scrutiny.
Content based laws are laws that suppres speech based on the message or the harm caused by the message.
Need a compelling state interest, and least restrictive means to achieve that interest.

Content-neutral laws are subject to intermediate scrutiny.
To avoid strict scrutiny and be upheld, a government regulation on the time, place, or manner of speech in a public forum must: (i) be content neutral, (ii) be narrowly tailored to serve an important government interest, and (iii) leave open alternative channels of communication.

The statute is content neutral, is narrowly tailored to serve an important government interest, and leaves open alternative channels of communication.

Question 63

commercial speech

Answer 63

A regulation of commercial speech will be struck down if the speech involves a lawful activity and is not misleading, unless the regulation serves a substantial government interest, it directly advances that interest, and it is narrowly tailored to achieving that interest.

The government can regulate truthful commercial speech if it passes intermediate scrutiny.

Question 64

Political speech

Answer 64

Protected speech.

The state may limit political protest speech as long as the restriction is a reasonable time, place, and manner limitation that is not content based. Must be Narrowly tailored and leave open alternative means.

Violent Political Speech: Political speech CAN advocate violent and illegal action as long as it does not amount to INCITEMENT.

Question 65

Vagueness

Answer 65

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause.

This principle is applied somewhat strictly when First Amendment activity is involved in order to avoid the chilling effect a vague law might have on speech.

Test: would a reasonable person know what is prohibited?

Question 66

Incitement

Answer 66

Can be regulated. Incitement is Advocacy with (1) intent to produce imminent lawless action, and (2) the likelihood to produce imminent lawless action.

Need BOTH INTENT and LIKELIHOOD of inciting imminent lawless action for the speech to be unprotected. Otherwise, it is protected under 1A.

Question 67

Free Exercise: Test

Answer 67

A neutral law of general application will be upheld.
As long as the regulation is intituted merely to discriminate, and not being applied in a discriminatory manner, it will be upheld.

Question 68

A state regulation promulgated to protect the health and welfare of the citizens of the state will prevail over constitutional objections, as long as…

Answer 68

A state regulation promulgated to protect the health and welfare of the citizens of the state will prevail
over constitutional objections, as long as the state regulation was not instituted merely to discriminate against a particular religious group and was not applied in a discriminatory manner.

Question 69

Establishment Clause

Answer 69

Government action will pass muster under the Establishment Clause if it is neutral with regard to religion;
NO preference for one religious sect over others: In the absence of a sect preference, the inquiry into neutrality, history, and the understanding of the Founding Fathers applies.

If the action is not neutral, it will be evaluated based on historical practice and whether the Founding Fathers would have considered it acceptable.

Preference for one religious sect over others: The Court uses the compelling interest test (legislation is narrowly tailored to promote a compelling gov- ernment interest) in Establishment Clause cases when legislation includes a preference for one religious sect over others.

The Supreme Court has said that a neutral benefit program does not violate the Establishment Clause, even if, as a result of the independent choices of private benefit recipients, it allows public funds to be directed to a religious organiza- tion (such as a religious private school)

Question 70

Government programs that aid religious schools

Answer 70

Government programs that aid religious schools are allowed if they are neutral with respect to religion.
A neutral benefit program does not violate the establishment clause, even if ti allows public funds to be directed to a religious organization.

If the government extends a program to private schools, then it cannot exclude religious schools simply because of their religious affiliation—the Supreme Court has said that such a limitation would violate the Free Exercise Clause.