Black Letter Law Flashcards
The doctrine of “field preemption” means that:
Federal laws can occupy an entire field, and preempt any state laws in that field, whether conflicting or complementary.
A time, place, and manner regulation of a limited public forum will be invalid unless it is:
Viewpoint natural and rationally based related to a legitimate government purpose.
The Supreme Court can review a decision from the highest court in a state if ____.
the state court decision turns on federal grounds
When a private individual is suing for defamation arising from a statement regarding a matter of public concern, what is the minimum level of fault that the individual must prove in order to prevail?
negligence
Congress’s power to investigate ____ limited to areas directly related to contemplated legislation.
is not
Congress has the implied power to investigate to secure information as a basis for ____.
potential legislation or other official action (such as impeachment or trying impeachments)
Congress does have the power to subpoena witnesses to ____.
compel their presence at congressional investigatory hearings
Regarding intersovereign litigation among the states and the federal government, a state ____ sue ____ without that party’s consent.
may not; the United States
Any regulatory system, injunction, or other action by the government that serves to stop speech from reaching the public is called ____.
prior restraint
A suit seeking a ____ can meet the case or controversy requirement.
declaratory judgment
If the limitation on First Amendment activities is severe, it will be upheld only if ____.
narrowly tailored to achieve a compelling interest
In First Amendment law, a prior restraint is:
government action that prohibits speech or other expression before the speech happens
Generally for government action to be valid under the Establishment Clause, the action ____.
must be religiously neutral or in accord with history and the understanding of the Founding Fathers
A person has a property interest in continuation of a government benefit if the person has ____.
a legitimate claim or entitlement to the benefit
The war-making power can be used by Congress to ____.
regulate civilian activities outside the theater of active war zones
The Twenty-First Amendment allows states to:
prohibit all sellers from making direct shipments of liquor to customers within the state
Executive agreements may not ____.
conflict with existing federal statutes
A state may impose an ad valorem property tax on goods shipped through interstate commerce when:
the goods reach their destination
A content-neutral speech regulation will be upheld if it:
(i) furthers important interests that are not related to the suppression of speech
(ii) does not burden more speech than is necessary to advance such interests
May a state tax discriminate against interstate commerce?
Yes, if Congress authorizes the tax.
____ are the three suspect classifications designated by the Supreme Court as requiring a strict standard of review for a challenge to a government action or law on the basis of equal protection.
race, national origin, and alienage
The grounds for impeachment are ____.
(a) treason
(b) bribery
(c) high crimes
(d) misdemeanors
Impeachment requires a ____ vote of the House and a ____ vote of the Senate.
majority; two-thirds
Congress can choose to ____ to children born aboard to United States citizens and choosing to deny entry to ____.
denying citizenship; aliens based on their political beliefs
What are the power not specifically granted to the federal government by the Constitution?
(a) general police power
(b) power to fix weights and measures
The Tenth Amendment prohibits Congress from:
commandeering state officials
When a public figure is suing for defamation, what is the minimum level of fault that the official must prove in order to prevail?
malice
(i) knowledge that the statement was false
(ii) reckless disregard as to its truth or falsity
If a state law violates the Privileges and Immunities Clause of Article IV, it might also violate the ____.
Dormant Commerce Clause
The Privileges and Immunities Clause of Article IV limits state discrimination against ____.
nonresidents with regard to fundamental rights, which includes commercial rights
The Commerce Clause has an exception for discrimination where the state is ____.
acting as a market participant
If the government allows an issue to be presented in a nonpublic forum, the government may not limit the presentation to only one view; the regulation must be:
viewpoint neutral
The Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment provide that the government shall ____.
not take a person’s life, liberty, or property without due process of law
The power to regulate foreign commerce lies ____.
nearly exclusively in the federal government
Under current law, when will Congress’s regulation of noncommercial, noneconomic intrastate activities be upheld?
Only if Congress can factually show a substantial economic effect on interstate commerce.
A law or government program that prefers one religious sect over others probably will be held invalid unless it can be shown that it is:
Necessary to serve a compelling government interest.
Government actions that include sect preferences must meet a ____ standard to be valid under the ____.
strict scrutiny; Establishment Clause
Like treaties, executive agreements prevail over ____.
conflicting state laws
The federal courts will not hear a case unless the plaintiff can show a concrete stake in the outcome of the litigation.
What is the name given to the standing concept that a decision in the plaintiff’s favor will eliminate the harm to the plaintiff?
redressability
The President’s veto of a bill may be overturned by ____.
a two-thirds vote of both houses
The Necessary and Proper Clause gives ____ the power to enact laws appropriate for carrying into execution any ____
Congress; power granted to any branch of the federal government
____ is a legislative act that imposes a punishment, criminal or otherwise, without a judicial trial, on one or more individuals who either are specifically named or are identified by their past conduct.
a bill of attainder;
An ____ refers to a law that retroactively changes the criminal law in a way that deprives an individual, for purposes of punishment, of a right the individual previously enjoyed.
ex post facto law
When a state acts as a market participant, may ____, such as by distributing state-owned resources only to residents or paying residents more for something than it would pay a nonresident.
favor its own citizens
As a general rule, the press’s First Amendment rights are the same as ____.
the public’s First Amendment rights
A ____ test must be met in order for a regulation affecting core political speech to be upheld.
strict scrutiny
Under its taxing power, Congress may tax for the purpose of ____.
raising revenue
The Fourteenth Amendment prohibits ____ from depriving any person of life, liberty, or property without due process and equal protection of the law.
states
The Supreme Court has stated that the Free Exercise Clause prohibits government regulations that ____.
punish conduct just because it is religious
Regarding the First Amendment freedom of speech, an overbroad regulation is one that ____.
prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest
It is not sufficient that economic activity within a state has ____ on interstate commerce; the effect must be ____.
“any” effect; substantial
Congress’s commerce power extends to:
- transportation
- internet
- electricity
- gas
- telegraph
- telephone
- television
- radio
The one person, one vote principle requires almost exact mathematical equality between ____.
congressional districts within a state
The needs of the ____ can outweigh the President’s interests in keeping papers and conversations confidential.
criminal justice system
The employer may ask about membership in ____.
any organization relevant to the employee’s position
A law or government program must be ____ if it includes a preference for some religious groups over others.
necessary to serve a compelling government interest
Under the rational basis test, a law will be upheld if it is ____.
rationally related to a legitimate government interest
(burden of proof on challenger)
It would be improper for the ____ to adjudicate a border dispute between states.
Senate
The power to adjudicate actions where two or more states are involved, which would include actions to adjudicate border disputes, is vested in the ____.
judicial branch (Supreme Court/ other federal courts)
Congress may “regulate” states through its spending power by ____.
imposing conditions on the grant of money to state governments
A federal court will hear an action to enjoin a pending state court prosecution if it is ____.
being conducted in bad faith (merely to harass the defendant)
A person has standing to challenge a governmental action if he can show ____ from the action that is ____ when the government acts unlawfully, and that a decision in his favor will remedy the injury.
an injury in fact; greater than the injury everyone suffers
If an ordinance is being applied unconstitutionally, a person has ____.
standing
Discrimination against illegitimate children is judged by a ____ similar to that used in gender discrimination cases.
quasi-suspect standard
Quasi-suspect standard requires that the classification be ____.
substantially related to an important state purpose
When a law that involves classifications based on gender or legitimacy is challenged, ____ standard is applied, and the burden of proving that the law is constitutional generally is on the ____.
an intermediate scrutiny; government
A case or controversy will exist if there is an ____.
actual dispute between parties having adverse legal interests
The Establishment Clause prohibits government sponsorship of ____.
religion
(meaning the government cannot aid or formally establish a religion)
The Supreme Court has held that a charitable appeal for funds involves a variety of speech interests protected by ____.
the First Amendment
The Supreme Court has found the ____ to be fundamental rights.
Thus, government limitations on these rights, if challenged, generally will be held invalid unless ____.
right to vote, to speak freely, and of privacy
the government can prove that the limitation is necessary to achieve a compelling government interest
Under his power as commander in chief, the President has the power to ____ but lacks the power to ____.
establish a military government in occupied territories; declare war unilaterally
Content-based regulations on protected speech are subject to ____. The government must prove that the regulation is the ____.
strict scrutiny; least restrictive means to achieve a compelling government interest
To be constitutional, restrictions on the content of speech (content-based) must be ____.
necessary to achieve a compelling government interest
The government has a compelling interest in categories of speech, which are deemed “unprotected speech.” What are the “unprotected speech?”
(1) inciting imminent lawless action
(2) true threats and fighting words
(3) obscenity
(4) defamatory speech
(5) some commercial speech
What are the elements of inciting imminent lawless action?
(1) imminent illegal conduct is likely
(2) speaker intended to cause it
Speech constitutes obscenity if it described or depicts sexual conduct that, taken as a whole, by the average person:
(1) appeals to the prurient interest in sex, using a community standard
(2) patently offensive
(3) lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard
Commercial speech that proposes ____ may be restricted as unprotected speech.
unlawful activity or that is false, misleading, or fraudulent
Commercial speech will be upheld only if it:
(1) serves a substantial government interest
(2) directly advances that interest
(3) is narrowly tailored to serve that interest
