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Bar Exam > Bare Bones Con Law > Flashcards

Bare Bones Con Law Flashcards

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1
Q

Article III JXN

A

Cases and Controversies

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2
Q

Cases and Controversies Requirements

A

Standing
Ripeness
Mootness
Political Questions

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3
Q

Standing Requirements

A

Injury in Fact or likelihood if seeking injunction
Causation–D caused injury
Redressable–favorable court can remedy

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4
Q

Standing Limitations

A 
No generalized greviances
Generally no third party standing
Exception, person with standing in own right if:
Special Relationship
Unlikely to assert their own
Organizational Standing
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5
Q

Organizational Standing

A

Organization can assert members rights if:
Members have standing;
Interests are germane to organization; and
Claim or relief does not require member’s participation

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6
Q

Ripeness

A

Claim must be ripe at all stages

Note: Extreme hardships suffered without pre-enforcement review claim may be ripe

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7
Q

Mootness

A

Injury ended after filing=moot

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8
Q

Exceptions to Mootness

A

Capable of Repetition but Evades Review
Voluntary Cessation
Class Action

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9
Q

Political Questions

A

Challenges to Republican Form of Government Clause
Challenges ti President’s Conduct of Foreign Policy
Challenges to Impeachment or Removal Proceedings
Challenges to Partisan Gerrymandering

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10
Q

Supreme Court Review

A

Most by Writ of Certiorari
Three Panel Federal Judges
Original and Exclusive JXN for suits between states

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11
Q

Writ of Certiorari

A

All State Cases must this way

Court of Appeals cases

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12
Q

Final Judgment

A

will generally only hear if final judgment from lower court

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13
Q

Adequate and Independent

A

If reversed on federal law and will not change outcome SCOTUS will not hear

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14
Q

Sovereign Immunity

A

11th Bars suits against states in federal Courts

Sovereign Immunity bars suits against states in state courts or federal courts

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15
Q

Exceptions to Sovereign Immunity

A

Waivers
14th Amendment (Article V)
Federal Gov sues States
Bankruptcy

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16
Q

Suits Against State Officers

A

OK if seeking injunctive relive
Suing them individually
Not allowed if state treasury will pay

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17
Q

Abstention

A

Fed courts may not enjoin pending state proceedings

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18
Q

Federal Legislative Power

A

Congressional Authority must be express or implied congressional power
No federal police power unless MILD

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19
Q

Necessary and Proper

A

Congress may do all things which are necessary and proper in carrying out their duties
Article 1 Section 8

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20
Q

Taxing and Spending

A

May do so for general welfare

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21
Q

Commerce Power

A

Congress may regulate:
Articles of Commerce
Instrumentalities of Commerce
Economic Activity which has substantial effect on interstate commerce

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22
Q

10th Amendment Limitations

A

Congress cannot compel state regulations or legislation

Can put conditions on grants as long as they are expressly stated and not unduly coercive

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23
Q

Congressional Delegation of Power

A

No limit on Congress power to delegate LEGISLATIVE powers

Must have Bicameralism and Presentment to act

May not delegate executive powers
NOTE: no legislative vetos or line item vetos

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24
Q

Federal Executive Powers

A

Two Types Foreign Policy and Domestic Affairs

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25
Q

Executive Foreign Policy

A

Treaties–require consent of Senate; will prevail if later than federal statute

Executive Agreement–no consent necessary; federal statute prevails

Broad powers to use troops in foreign countries

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26
Q

Executive Domestic Affairs

A

Appointment and Removal Powers

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27
Q

Executive Appointments

A

President appoints ambassadors; federal judges; and officers of US

Congress may vest appointment of inferior officers in President

Congress cannot give appointment power

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28
Q

Executive Removal Power

A

Unless limited by statute President may fire any executive branch office

For Congress to limit must be office independent from President, i.e. a Special Prosecutor

Congress cannot prohibit but only limit to good cause

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29
Q

Impeachment and Removal

A

President, VP, federal judges, and officers can be impeached and removed from office for treason, bribery, or high crimes and misdemeanors

Impeachment does not remove from office–trial forthcoming in Senate

Impeachment requires majority in House
Conviction requires 2/3 vote by Senate

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30
Q

Presidential Immunity

A

All civil suits for actions while in office

Does not have immunity for actions occurred prior to taking office

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31
Q

Executive Privilege

A

Applies to presidential papers and conversations but must yield to other important governmental interests

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32
Q

Executive Pardon

A

President may pardon those accused or convicted of federal crimes

33
Q

Federalism Concepts

A

Preemption
Dormant Commerce Clause & Privileges and Immunities of Article IV
State Taxation of Interstate Commerce
Full Faith and Credit

34
Q

Preemption

A

Based in Supremacy Clause

Express–fed law says it is exclusive in field

Implied if:
Mutually Exclusive–Conflict
Impedes Achievement of Federal Objective–Field
Clear Intent to Preempt State law–Immigration

35
Q

Dormant Commerce Clause

A

state and local laws are unconstitutional if places excessive burden on interstate commerce

36
Q

Privileges and Immunities Clause of Article IV

A

No state may deny other state citizens privileges and immunities granted to their own
P & I in 14th wrong unless involves right to travel

37
Q

Application of Dormant and P & I of Art. IV

A

Ask, does it discriminate against out of states

If no, P & I does not apply; Violates Dormant Commerce clause if burden exceeds benefits on interstate commerce

If yes, violates P & I if discriminates on ability to earn livelihood or fundamental right unless necessary to achieve important governmental purpose; Violates Dormant Commerce clause unless necessary to achieve important governmental purpose

38
Q

Exceptions to Dormant Commerce Clause

A

Congressional Approval

Market Participant Exception–may prefer own citizens in receiving benefits from government or in dealing with government owned business

39
Q

State Taxation of Interstate Commerce

A

May use tax systems to help in state businesses

May only tax activities if substantial nexus

State taxation of interstate business must be fairly apportioned

40
Q

Full Faith and Credit

A

State must give full faith and credit to judgments of other states so long as state had jurisdiction over parties and subject matter, judgment on the merits, and judgment is final

41
Q

Individual Liberties Structure

A

Is there governmental action
Application of Bill of Rights
Levels of Scrutiny

42
Q

Governmental Actors

A

Constitution applies only to government action
Congress may apply constitutional norms by statute to private conduct, e.g. 13th to prohibit private race discrimination, Commerce Power, 14th

43
Q

Exceptions to Governmental Actors

A

Public Function Exception–task traditionally and exclusively done by government

Entanglement Exception–Gov affirmative authorizes, encourages, or facilitates unconstitutional activity

44
Q

Application of Bill of Rights

A

Bill of Rights applies directly to Federal Government

Applied to state and local through 14th except solider quartered (3rd), right to grand jury indictment in criminal case (5th), right to jury trial in civil cases (7th), excessive fines (8th)

45
Q

Levels of Scrutiny

A

Strict
Intermediate
Rational

46
Q

Strict Scrutiny

A

Must be necessary to a compelling governmental interest
Must be the least restrictive means
Burden on the Government

47
Q

Intermediate Scrutiny

A

Must be substantially related to an important governmental interest
Burden on Government

48
Q

Rational Basis

A

Must be rationally related to important governmental purpose

Burden on Challenger

49
Q

Individual Rights

A

Procedural Due Process
Substantive Due Process
Equal Protection

50
Q

Procedural Due Process

A

Has there been a deprivation of life, liberty or property
“Loss of significant freedom provided by Constitution or Statute”

Deprivation of Property if entitlement and entitlement not fulfilled

Government Negligence not enough; must be intentional governmental action or reckless action

51
Q

Procedures Required for Procedural Due Process

A

Balance the importance of the individual interest, ability of additional procedures to increase accuracy of fact finding, and the governmental interest

52
Q

Economic Liberties & Takings

A

Rational Basis will suffice
Takings–government may take private property for public use if provides just compensation

Possessory Taking–gov confiscation or physical occupation

Regulatory Taking–leaves no reasonably economically viable use of property

53
Q

Contracts Clause

A

No state shall impair obligations of contracts

Applies only to state/local interference with EXISTING contracts

Interference with private contracts must meet intermediate scrutiny–reasonably and narrowly tailored of promoting important and legitimate public interest

Interference with government contracts must meet strict scrutiny

54
Q

Substantive Due Process Fundamental Rights

A 
These are Fundamental Rights
Marry
Procreate
Custody of Children
Keep Family together
Control Child's Upbringing
Contraceptive
Abortion--note viability distinction
Private Consensual Homo Sex
Refuse Medical Treatment--Child distinction
Bear Arms
Travel--foreign travel only requires rational basis
Vote
55
Q

Right to Vote

A

Poll taxes=unconstitutional

At large is constitutional unless proof discriminatory purpose

56
Q

Equal Protection Approach

A

What is the classification?
What level of scrutiny to apply?
Does law meet level of scrutiny?

57
Q

EP: Race and National Origin

A

Apply Strict Scrutiny

Prove Racial Classification by face or as applied (discriminatory impact and intent)

58
Q

EP: Gender Classification

A

Apply Intermediate Scrutiny

Prove Gender classification by face or as applied (discriminatory impact and intent)

59
Q

EP: Alienage Classification

A

Generally, apply strict scrutiny
Rational Basis if concerns self-government or democratic process
Intermediate for undocumented alien children

60
Q

EP: Legitimacy

A

Apply Intermediate Scrutiny

Cannot be punitive nature

61
Q

Where Rational Basis is Used

A 
Age
Disability
Wealth
Economic
Sexual Orientation---shouldn't be tested, they are now getting intermediate
62
Q

First Amendment Concepts

A 
Free Speech
Protected v. Unprotected Speech
Places for Speech
Freedom of Association
Freedom of Religion
63
Q

Free Speech Methodology

A

Content Based v. Content Neutral Restrictions
Prior Restraints
Vagueness and Overbreadth
Symbolic Speech

64
Q

Speech: Content Restrictions

A

Content Based–generally must meet strict scrutiny

Content based laws included subject matter restriction (topic of message) and viewpoint restrictions (depends on ideology)

Content Neutral–generally must meet intermediate scrutiny

65
Q

Prior Restraints

A

Judicial order stopping speech before it occurs
Must meet strict scrutiny

Procedurally proper court orders must be complied with until vacated or overturned; if violate barred from later challenging

66
Q

Vagueness and Overbreath

A

Vagueness-unconstitutional if reasonable person cannot tell what speech is prohibited and what is allowed

Overbreadth–regulates substantially more speech than constitution allows

Fighting words are unconstitutionally vague and overbroad

67
Q

Unprotected/Less Protected Speech

A

Incitement of illegal activity–substantial likelihood of imminent illegal activity and speech directed to cause imminent illegality

Obscenity & Sexually Oriented Speech

Material must appeal to prurient interest; patently offensive, and taken as a whole lacks serious redeeming artistic, literary, political, or scientific value

68
Q

Obscene & Sexually Oriented Speech

A

Material must appeal to prurient interest; patently offensive, and taken as a whole lacks serious redeeming artistic, literary, political, or scientific value

Zoning may be implemented for porn stores/movies

Child porn may be completely banned

May not punish private possession unless child porn

69
Q

Commercial Speech

A

Advertising for illegal activity, and false/deceptive ads are not protected by First Amendment

Must be narrowly tailored but does not have to be least restrictive

70
Q

Defamation

A

Actual malice required of public official

71
Q

Places for Speech

A

Public Forum
Designated Public Forums
Limited Public Forums
Non-public forums

72
Q

Public Forums

A

Government constitutional required to make available for speech

Must be subject matter and viewpoint neutral, if not apply strict scrutiny

Regulations must be time, place, or manner that serves important government purpose and leaves open adequate and alternative channels of communication

Need not use least restrictive

73
Q

Designated Public Forum

A

Government could close but chooses to open

Apply same rules as public forums

74
Q

Limited Public Forum

A

Government properties limited to certain groups/dedicated to discussion of only some subjects

Can regulate so long as regulation is reasonable and viewpoint neutral

75
Q

Non-Public Forum

A

Government can and do close constitutionally

Can regulate so long as regulation is reasonable and viewpoint neutral

76
Q

Freedom of Association

A

Fundamental Right
Laws which punish or prohibit group membership must meet strict scrutiny

To punish must prove person was actively affiliated with group which they knew to be engaging in illegal activities and had specific intent to further those illegal activities (conspiracy ?)

Laws requiring disclosure must meet strict scrutiny

77
Q

Freedom of Religion

A

Two Components
Free Exercise
Establishment Clause

78
Q

Free Exercise Clause

A

Free exercise clause cannot be used to challenge neutral law of general applicability (Indians tripping balls)
Government may not deny benefits to individuals who quit jobs for religious reasons
Government may not hold religious institution liable for choices it makes as to who will be ministers

79
Q

Establishment Clause

A

The Test: Must be secular purpose for law, the effect of which neither advances nor inhibits religion, and no excessive entanglement with religion

Cannot discriminate against religious speech or among religions unless meets strict scrutiny

Government sponsored religious activity in public school is unconstitutional

May provide assistance to religious schools so long as not used for religious instruction

Bar Exam (19 decks)

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