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Constitution Law Bar Prep > Con Law > Flashcards

Con Law Flashcards

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1
Q

What are the requirements for case and controversy?

A

Ripeness, Mootness, and Standing

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2
Q

When does a court opinion constitute an advisory opinion?

A

there has to be an actual controversy (no controversy between the parties) or the court can’t legally bind either of the parties

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3
Q

Can a court review a law or policy before it takes effect?

A

Yes, if P. can show the issue is fit for a judicial desicion AND the plantiff would suffer substantial hardship abest review

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4
Q

What is mootness?

A

P. must be suffering from an ongoing injury at all stages of the case

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5
Q

What are the exceptions to the mootness rule:

A

if a P. has a controversy that is capable of repetition b/c of inherently short duration OR cases where D voluntarily stops behavior but can resume at any moment

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6
Q

What are the req for Standing?

A

An injury in fact, which req both a particularied injury that affects P in a personal and individual way AND a concrete injury (not hypothetical)

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7
Q

Who can’t sue for general standing?

A

Standing solely based on citizenship or taxpaying status (unless a tax liability issue)

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8
Q

Can any person sue on congressional spending grounds?

A

Yes, but only for first amendment establishment clause (religious establishment clause) grounds, and only for spending power

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9
Q

For Standing, when must injury occur?

A

already occurred or imminent

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10
Q

How does one claim standing for a third party?

A

ONLY if it is difficult for the third party to assert their own rights OR if there is a close relatiohshop between the claimant and the third party

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11
Q

How do you determine standing for organizations?

A

if there is an injury to a member, the members injury is related to the organizations purpose AND the individual members participation in the lawsuit is not req (they are not seeking individualized damages)

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12
Q

What is the free speech exception for standing?

A

one can claim a free speech violation on behalf of a group of which they are a part even if their own speech is unprotected, so long as the speech of the members of that group is protected. Rule does NOT apply to commercial speech

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13
Q

Do people have standing to sue states?

A

No, UNLESS states consent. Can sue local governments

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14
Q

What is a political question?

A

Ones inherently incapable of judicial relief or are constitutionally vested with the other branches

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15
Q

What are the elements of constitutional conditions on Congress’ spending power?

A
  1. clearly stated 2. serves the purpose of the program 3. not unduly coercive on state (rare) 4. not otherwise unconstitutional
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16
Q

Are taxes generally valid?

A

Yes, so long as they are reasonably related to revenue production and not a penalty (CAN be labelled as a penalty but still permissibile)

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17
Q

What is Congress’ Commerce power?

A

congress has the enumerated power to regualte interstate commerce. the three parts are 1. Channels 2. Insrtumentalities 3. activity that substantially affects interstate commerce (can includ epurely intrastate activity

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18
Q

Can Congress regulate non-economic activity that substantially effects interstate commerce>

A

NO, key on NON-economic activity

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19
Q

True/False: congress cannot compel states to act for insterstate commerce

A

True

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20
Q

Rights of Aliens controlled by congress

A

resident aliens: right to notice and hearing for deport

non-resident aliens: no right to enter US

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21
Q

Basic outline for presidential actions

A

if authorized by statute or Congress: likely to be upheld
if congress is silent: balance of history. Unlikely to be upheld if it usurps power from a branch or prevents another branhc from performing tasks

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22
Q

Rank treaties against other laws

A

Treaties trump state and local law, are on par with federal law, and are inferior to the constitution

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23
Q

What is the anti-commandeering principle?

A

Congress can’t compel states to pass state law OR enforce federal law through use of enumerated powers (tax, spending)

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24
Q

What is implied preemption of state law by federal law?

A

when state law makes following a federal law impossible OR when state law prevents achievement of a federal objective, state law is impliedly preemepted through supremecy clause

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25
Q

What is the privileges and immunities clause?

A

prevents states from discriminating against non-residents

  • does not include corporations and aliens
  • ONLY protects important commercial activities and fundamental rights
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26
Q

Can a state discriminate against a non-resident for important commercial activities?

A

Yes, BUT ONLY if there is and importnat govt purpose AND there is no less restrictive method available

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27
Q

What is the dormant commerce clause?

A

when congress has not enacted a law regulating an aspect of interstate commerce and a state has, that state law can’t discriminate OR unduly burden interstate commerce

28
Q

what happens when a state discriminates against interstates commerce?

A

dormant commerce clause violation, invalid unless there is an important noneconomic stat interest AND no reasonable nondiscriminatory alternative

29
Q

what happens when a state unduly burdens interstate commerce?

A

dormant commerce clause, balancing test that presumes validity UNLESS the burden on interstatwe commerce outweighs the legitimate state interest

30
Q

Can a state prefer its own citizens when the govt owns the business or is providing the services?

A

yes, then the govt is a MARKET PARTICIPANT and can prefer its own citizens w/violating the dormant commerce clause

31
Q

What is the thought process for a question for regulation of interstate commerce?

A

does the state regulation affect an activity addressed by fed regualtion? does the state regualtion discriminate against interstate commerce? does the state regualtion burden interstate commerce?

32
Q

Can states discriminate against interstate commerce with taxes?

A

No and there are no exceptions

33
Q

When is procedural due process triggered?

A

Any time a US person is being deprived of life liberty or property

34
Q

What level of intentionality must the deprivation of life liberty and property be to require procedural due process?

A

At least recklessness, negligence insufficient

35
Q

What process is required for procedural due process?

A

notice, neutral decisionmaker (no actual or serious risk for bias), and a hearing at which they can be heard (typically pre deprivation unless impractical)

36
Q

Can you waive due process rights?

A

Yes, so long as the waiver was made knowingly and voluntarily

37
Q

What is substantive due process?

A

guarantees laws will be reasonable and not arbitrary. for the federal govt comes from the fifth amendment, for the state govt comes from the 14th

38
Q

What is the standard for review for substantive due process claims?

A

If the law limits a fundamental right (right to interstate travel, right to vote, privacy rights, bill of rights) then strict scrutiny used. Everything else is rational basis

39
Q

What are the components of the right to interstate travel?

A

the right to travel state to state (no right to travel internationally), and the right to be treated equally after moving into a new state

40
Q

Are there permissible restrictions on the right to vote?

A

Yes, but ONLY based on residence (reasonable time), identification, age, and citizenship

41
Q

in equal protection claims, what are the different government intentions? At least one must be shown to have a valid claim

A

facial discrimination, discriminatory application, and disparate impact

42
Q

What is required under the taking clause?

A

The govt may only take property from someone 1. for public use and 2. with just compensation

43
Q

When will a taking always be found?

A

physical taking 1. taking of property 2. permanent of regular occupation of property

44
Q

what are exceptions to the taking rule?

A

emergency

45
Q

what are the rules on use restrictions for the Takings clause?

A

if govt denies a landowner of all economic use of their land, that constitutes a taking UNLESS nuisance prohibits the contested economic use of the land

46
Q

Can govt decrease the economic value of land?

A

yes, court will use balancing test of the govt interest sought, diminuation of value to owner, and substantil interference with distinct investment backed expectations of the land

47
Q

Are authorized takings by private enterprises public use under the Takings clause?

A

Yes, so lnog as they work to the publics advantage

48
Q

What constitutes speech?

A

words symbols and expressive conduct (intends to convey a message AND reasonably likely to be perceived as conveying a message)

49
Q

What constitutes incitement

A

intent to produce imminent lawless action AND likely to produce such action

50
Q

is obscene speech protected by the first amendment

A

No, speech is obscene if it depicts sexual conduct specified by statute that to the ordinary person
-appeals to prueint interst in sex (through modern standard)
-is patentnyl offensive (modern standard)
AND- lacks serious value using objective person standard

51
Q

When is commercial speech not protected?

A

Yes, only if it is not 1. false 2. misleading 3. about illegal stuff

52
Q

what are examples of commercial speech

A

ads, promotions, marketing

53
Q

What are the elements for testing regualtions on commercial speech?

A

regulation must serve a substantial govt interest

  • directyl advance the interest
  • marrowly tailored
54
Q

What is content based regualtion for free speech?

A

a reg that restricts speech BASED ON THE SUBJECT MATTER or VIEWPOINT of the speech. Strict scrutiny

55
Q

What are the rules for content neutral speech

A

intermediate scrutiny (advance an importnat interest unrelated to the supression of speech AND must not burden substantially more speech than nec. Ex. are time/place/manner restrictions or regs on conduct related to speech

56
Q

What is the free exercise clause?

A

prohibits govt punhisning someone for their religious beliefs or related religious status or conduct

57
Q

can court question the truthfulness of religious beliefs

A

No, can challenges the sincerity

58
Q

When does a law discirminate under the free exercis clause

A

not neutral facial discrim with respect to religious belief conduct or status OR targeting a religion generall or a religion in particular

59
Q

If a law is generally applicable and neutral can it violate the Free Exercise clause?

A

No, regulation must be show to specifically designed to interfere with religion

60
Q

What is the free exercise rule for law with exceptions?

A

Can be challegned under the free exercise clause by someone denied an exception

61
Q

What is the establishment clause?

A

req the govt to pursue a secualr non religuous course

62
Q

Lemon test

A
  • govt action must have
  • -a seuclar purpose
  • -neither advance nor detract any religion
  • -no excesssive entanglements with religion and govt
63
Q

What are the types of cases in Establishment clause?

A

cases preferring on religion over another
limited group of cases unconnected to financial aid or education
3 cases involving fin aid to religious institution
4cases concerning religious actviities in public school

64
Q

eleventh amendment does not prohibit federal court from hearing private party claim against a state government

A

false, it does prohibit

65
Q

eleventh amendment

A

The Supreme Court has held that the doctrine of sovereign
immunity reflected in the Eleventh Amendment bars a
private party’s suit against a state in federal and state courts.
Similarly, sovereign immunity bars claims against a state in
federal and state agencies

66
Q

can federal govt interfere with a state lgislature when conducting state legislature duty

A

no

67
Q

difference bw federal equal protection violation and state equal protection violation

A

state: 14th
federal: 5TH

Constitution Law Bar Prep (16 decks)

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