Con Add-Ons Flashcards
Does taxpayer have standing to challenge use of funds by president that violate Establishment clause?
NO, only use of funds by CONGRESS that violate establishment clause
Can president pardon future acts or before charges are raised?
Future acts: NO
Before charges are raised: YES
Standard of review for denial of ordinary right vs. denial of fundamental right
Ordinary right: rational basis
Fundamental right: strict scrutiny
Can campaign expenditures be regulated as contributions?
It coordinated with candidate: YES
If independent: NO
Burford abstention
Federal courts will abstain from hearing case when it involves COMPLEX ADMINISTRATIVE PROCESSES
Standard of review for statutes limiting campaign contributions?
Strict scrutiny
Colorado River abstention
Federal courts will abstain from hearing case when PARALLEL LITIGATION is being carried out (with respect to same questions of law)
Does procedural due process apply to unintentional government acts of deprivation?
NO, only to INTENTIONAL government action causing life/liberty/property to be taken
Can SCOTUS review any final state court decision?
YES, so long as no adequate + independent state grounds
Does discrimination on basis of non-citizenship trigger strict scrutiny? (Federal v state classifications)
Federal: classification is valid unless arbitrary and unreasonable
State classification: strict scrutiny
State law prohibiting participation in govt: rational basis
Is Congress’s power to impose tariffs and regulate foreign commerce absolute?
YES
Therefore undue burden analysis does not apply
What PDP is due to public employee with property interst?
1) notice
2) pre-termination hearing (unless already a showing of guilt/not debatable)
3) post-termination evidentiary hearing
Is geographic uniformity requirement in place for state or fed taxes?
ONLY federal AND Indirect, does not exist for state-imposed taxes
When will the use of racial classifications on basis of history of discrimination pass strict scrutiny muster?
When used to address a state’s OWN history of discrimination, rather than general discrimination
Is wealth always a non-suspect class?
Yes, UNLESS lack of wealth prevents person from exercising fundamental right, in which case STRICT SCRUTINY applies
Does ex post facto prohibition apply to civil penalties?
NO (unless so punitive that overrides non-punitive purpose)
If non-economic activity has no impacts on interstate commerce, may federal government regulate?
NO, this is traditional area of state concern
What may Congress do under Property Clause?
Can regulate private property that affects public lands when necessary to protect those lands
Can state create regulations for Congressional elections, or just state?
Both, BUT regulations for national elections subject to Congressional override
Who has power to recognize foreign governments?
EXCLUSIVELY president
Is the federal government immune from taxation?
YES, govt/agencies/instrumentalities are immune from direct taxation by states UNLESS Congress expressly consents
Can Congress override dormant commerce clause?
YES, if conduct is authorized that would be in violation
21st Amendment?
Grants states broad authority to regulate alcohol within their borders
Does government funding or licensing of private facility trigger state action doctrine?
NO, insufficient to make facility govt actor
Standard of review for ordinary vs. severe burden regulations on state elections
Ordinary (nondiscriminatory) burden: rational basis
Severe (discriminatory) burden: strict scrutiny
Should rational basis or strict scrutiny apply to 2A issues?
UNCLEAR, SCOTUS has not decided
Can Congress make exceptions to SCOTUS appellate jdx?
Yes, under Article III
Does plaintiff always bear burden of establishing standing?
YES
Does assignee have standing to enforce rights of another in federal case?
Yes, so long as
1) original requirements for standing met AND
2) assignment made for ordinary business purpose in good faith
Does Congress have authority to enact laws to enforce treaty?
Yes, under Article II
Direct vs. indirect federal tax apportionment
Indirect federal taxes: Must be GEOGRAPHICALLY UNIFORM in each state where goods are located
Direct federal taxes: must be APPORTIONED appropriately among states based on POPULATION
What is 16th Amendment?
Gives Congress power to lay and collect INCOME tax
Does Takings Clause apply to govt purchases of land?
NO, just takings
Article I Suspension Clause
Allows people in federal custody to file writ of habeas corpus UNLESS Congress has suspended the writ
10th Amendment vs. 11th Amendment
10A: anti-commandeering, all non-federal powers reserved to states
11A: prohibits private parties + foreign govts from suing states in federal court
Can the federal government sue a state?
YES
Public university PDP requirements for disciplinary vs. academic dismissal
Disciplinary: notice + opportunity to be heard
Academic: just notice (opportunity to be heard NOT required)
One person, one vote principle for legislative districting
Legislative district populations must be APPROXIMATELY equal (deviations of 10% or less in total)
Do Establishment Clause restrictions apply to federal or state government?
BOTH
Does the fundamental right to travel involve visitation to other states?
NO, also refers to people who MOVE to new states
Durational residency requirements are thus evaluated with strict scrutiny bc they discourage movement (travel) into state
Does a tax credit to a religious group by fed or state govt violate the Establishment Clause?
NO, only tax appropriation, NOT credit
Relationship between non-enforcement and ripeness?
A history of non-enforcement could mean that a case is not ripe when it may usually be due to imminent injury (bc state has shown that there is no imminent risk)
Under Commerce Clause, can commerce involve non-business/non-financial movement among states?
YES, even movement of kidnapping victims
What rationale must Congress have to exercise its tax power?
it may exercise for ANY PUBLIC PURPOSE
Executive immunity vs. legislative immunity
Executive immunity: absolute immunity to civil suits for money damages while in office
Legislative immunity: immunity for statements made in regular course of legislative process, but NOT outside Congress
What process is due for forfeiture of property
Forfeiture (government seizure of property due to connection to criminal activity) requires:
notice + hearing
When can Congress abrogate state immunity and exercise its Art I powers?
ONLY to allow states to be sued to enforce civil rights under 13A, 14, 15A OR Bankruptcy proceedings.
NOT for other areas of regulation, in this case states preserve their immunity
Does Art IV Privileges and Immunities clause apply to people or corporations?
ONLY people
Does Dormant Commerce Clause apply to discrimination against all out-of-state actors?
No, ONLY COMMERCIAL actors
Are environmental concerns or aesthetic purposes legitimate govt interests under Takings Clause?
YES
Does a 1-3% reduction in property value due to govt restrictions qualify as a taking? What about a taking of small amount of property?
NO, restrictions on new builds in negligible amt likely not taking
But taking of SMALL AMT of property (a persons resource rights are 1% of total in tract of land) ARE a taking
Does requiring states to apply federal standards to state workers violated 10th Amendment?
NO, this is not commandeering because does not require state to enforce a federal law
To remedy racism in contracting by a private party, should courts rely on 14A EPC, Contracts Clause, or 13A?
13A, because it does NOT require state action
14A and Contracts Clause can ONLY be applied to state actors
Can cities regulate strip clubs/pornography under 1A?
Yes, can localize in particular area, but CANNOT impose blanket bans on pornography
What types of actions can be taken under war and defense powers toward civilians
-excluding civilians from military areas
-implementing military draft
-imposing wage, price, and rent controls on civilian economy
What is allowed under Congress’s property power?
Ability to dispose of and regulate FEDERALLY OWNED property
Public OR private use okay
When does rational basis apply to state or local laws that substantially impact right to vote?
When the law limits right to vote in governmental unit’s election TO ITS RESIDENTS
Does SCOTUS have original jdx over cases where a) one state is party and b) where two or more states are parties?
When ONE STATE is party: SCOTUS AND federal courts have concurrent jdx
When TWO OR MORE STATES are parties: SCOTUS has EXCLUSIVE jdx
Do public employees have right to free speech in their official duties?
NO, not within scope of job
Do public employees have right to free speech as private citizen on matter of public concern?
YES, govt can limit that speech only if its interest in efficient govt function OUTWEIGHS employee’s right to free speech
When is media shielded from liability for publishing unlawfully obtained information?
When that information was 1) matter of public concern and 2) publisher did not obtain unlawfully OR know who did
When may Congress regulate state govt without commandeering ?
Any time it acts within enumerated powers , NOT to enact legislation
Eg may require a federal agency (rather than state itself) to enforce federal statute within state
When may third-party standing apply for non-parents?
When 1) parties share inextricably close relationship AND 2) genuine obstacles prevent party from asserting rights
E.g. school may bring suit on behalf of child due to privacy concerns for family
Does 14A S5 give Congress power to expand or limit rights guaranteed by amendment?
NO, only to enforce, rather than expand or limit
3 categories of state election restrictions that require rational basis scrutiny?
1) voter registration
2) photo ID
3) disallowing write-ins
3 categories of state election restrictions that require strict scrutiny?
1) poll tax
2) disallowing third party candidates
3) property-ownership/minimum residency requirements
If a law criminalizing an act is created after a person’s act, but before his arrest, is it ex post facto?
YES, it is retroactive criminal law, and thus is unconstitutional
Can government regulate viewpoint-based regulation?
NO, bc this punishes speech targeting specific groups, is thus unconstitutional
For military courts that deny due process to combatants, if a US citizen is detained, is he afforded due process?
YES, even if they are classified as enemy combatants, US citizens are still afforded due process
When federal statute conflicts with executive agreement, which dominates?
FED STATUTE
When federal statute and federal treaty conflict, which governs?
Whichever was enacted MORE RECENTLY
Is prosecutor immune from civil liablility for damages?
YES, UNLESS he did not have jurisdiction to try the case
When a state employee has property interest in her job, is she entitled to formal pre-termination hearing?
NO, just pre-termination opportunity to respond, unless there is significant reason for cause
Does political question doctrine bar actions related to recognition of foreign govts?
YES, but NOT when it relates to validity of federal statute involving related disputes
WHEN may Congress regulate non-economic activities that have significant economic impact in aggregate?
ONLY WHEN there is strong link between activity and interstate commerce
May Congress remove federal officers by methods other than impeachment?
NO, this violates separation of powers
Can state govt tax federal monies that are placed into bank account and spent by private contractor?
YES, because the purchases were made by contractor and NOT directly by federal govt
Is supplying water to a city a “traditional and exclusive government function”?
NO, often taken on by private entities
Is procreation a fundamental right?
YES, encompassed under right to privacy
Can govt condition hiring an employee based on his political views?
NO, violation of 1A unless those factors are required for JOB PERFORMANCE
Can Congress restrict right to interstate travel?
NO, fundamental right that cannot be restricted by states OR Congress
When is a discriminatory state or local law valid?
ONLY IF it 1) furthers legitimate noneconomic interest and 2) no reasonable nondiscriminatory alternative exists
Under Fair Housing Act, what size does building have to be for owner-occupied dwelling exception to apply?
4 units or less
Does allowing a party to charge fees for land constitute just compensation for taking?
NO, must pay fair market value
Can SCOTUS original jdx be modified?
NO
Is bullshit acceptable to reach threshold of intelligible standard?
YES, literally ANYTHING
If a statute provides for Congressional veto, is congressional veto valid?
NO, still a legislative veto
Presentment (showing to president for approval or disapproval) ALWAYS required
Can states regulate activity by federal government
NO, unless there is Congressional consent
Are presidential electors required to 1) swear to vote for candidate chosen by state’s popular vote 2) punish electors with removal if they do not comply and 3) punish electors with fine if they do not comply?
YES, all acceptable
Does Takings Clause apply to professional licenses?
NO, not personal property
Instead, look to DP issues for professional licensing questions
Are zoning restrictions on adult entertaining content-based or content neutral?
CONTENT NEUTRAL because they target secondary effects rather than content itself
So subject to intermediate scrutiny
Do people have due process protections for privileges, or just rights?
BOTH
the historical rights/privileges framework has been abandoned for life, liberty, and property interests
When may the federal govt abrogate 11A ?
Can allow suits against states if clearly acting under 14A S5 to enforce rights
If a state is alleged to have violated a non-suspect class’s rights, is this still basis for federal abrogation of state immunity?
YES, if Congress expressly abrogates for damages arising under statute relating to rights of non-suspect class, this still arises under 14A S5 and thus abrogation is appropriate
Can President refuse to spend or delay spending of funds allocated by Congress?
NO, when Congress mandates allocation, President cannot impound funds
When Congress and president share powers, does president act within her authority when 1) she is authorized by Congress to act
2) Congress is silent about action
3) Congress opposes
If Congress authorizes: president’s act is LIKELY VALID
If Congress is silent: president’s act is valid IF under Art II powers and does not interfere with another branch
If Congress opposes: LIKELY INVALID
Can Congress insist that funding recipient make certain statements as a condition?
NO, can insist funds be used for particular purpose, but CANNOT violate 1A by restricting recipient’s right to speech if UNRELATED to funding purpose
Must a tax be rationally related to use f proceeds?
NO, can be for ANY PUBLIC PURPOSE
May Congress take action to violate Dormant Commerce Clause?
YES, bc it has exclusive authority over interstate commerce, may act in ways that violate Dormant Commerce Clause (even if a STATE could not act in such a way)
If SS and IS do not apply, does rational basis apply by default?
YES
Can Congress restrict funds to e.g. top 10 research universities?
YES, not arbitrary and capricious, still for general welfare
Are 2A restrictions on use of firearm in home okay?
NO, some govt restrictions are permissible, but cannot infringe on self-defense in home
Can a PRIVATE ORGANIZATION be forced to accept members that burden its views?
NO, unless it is NECESSARY to achieve COMPELLING INTEREST (SS)
Is segregation permissible in private schools?
ONLY IF no significant govt involvement (accreditation/licensing etc. unlikely to happen in reality)
Can school-imposed punishment violate due process of 14A
YES, if grossly disproportionate to circumstances, as SUBSTANTIVE DUE PROCESS prohibits GROSS DISPROPORTIONALITY
Do fed laws and treaties preempt conflicting state constitutions/laws?
YES, ALWAYS
Under SUPREMACY clause
Two legislative action requirements
1) bicameralism (approved by both houses of Congress)
2) presented to president (presentment)
If this doesn’t happen, UNCONSTITUTIONAL LEG VETO
Similar standard to ‘undue burden’ analysis
LESS RESTRICTIVE ALTERNATIVE
What is minimum standard of evidence for parental rights termination?
CLEAR AND CONVINCING EVIDENCE required to comply w due process
Is any affiliation with subversive group as basis for denying bar admission sufficient to violate 1A?
YES, association alone insufficient, must be active member with specific intent to further org’s illegal activities
What subject matter areas implicate state police power?
state’s public health, safety, and welfare (e.g. changes to rates for protecting financial welfare)
can states impose property taxes on moveable property coming in/out of state?
YES, so long as
SUBSTANTIAL NEXUS
FAIRLY APPORTIONED
NONDISCRIMINATORY
FAIRLY RELATED
If federal law preempts state law, but state law is identical to fed law, is state law still preempted?
YES
Can president regulate private actors with exec order?
NO, under Art II, must be just people in executive branch, NOT privately owned companies unless there is sudden attack on US
