Con Law Flashcards
1
Q
Federal courts cannot issue:
A
Advisory opinions
2
Q
What are advisory opinion?
A
Decisions that lack an actual dispute between adverse parties or lack any legally binding effect on the parties.
3
Q
What are the elements for ripeness?
A
- The issue is fit for judicial decision AND
- P would suffer substantial hardship in absence of review
4
Q
Is an issue fit for judicial review if it relies on uncertain or contingent future events?
A
No
5
Q
What is mootness?
A
A live controversy must exist at all stages of review otherwise it is moot
6
Q
What three situations are not considered moot?
A
- the controversy is capable of repetition but evades review because it is short in duration
- D voluntarily stops the offending practice but can resume it
- Class actions where the class rep’s controversy is moot but another member is still viable
7
Q
Ripeness bars consideration of claims ___ they have been developed; mootness bars their consideration ___
A
before
after
8
Q
What are the three elements of standing?
A
- Injury
- Causation
- Redresssability
9
Q
What is an injury in fact?
A
- A particularized injury (affects P in a personal and individual way)
- A concrete injury (not hypothetical)
10
Q
Do people have standing as “citizens” or “taxpayers”
A
No
11
Q
Does a tax payer have standing to challenge their tax bill?
A
Yes
12
Q
Do people have standing to challenge congressional spending?
A
Yes
13
Q
Are political questions decided by Article 3 courts?
A
No
14
Q
What kind of actions does the 11th amendment prohibit federal courts from hearing?
A
The 11th amendment prohibits federal courts from hearing most private actions against state governments. This prohibition includes actions in which the state is a named party or in which the state would have to pay damages.
15
Q
May Congress remove the 11th amendment immunity?
A
Yes, as to actions created under the 14th amendment
16
Q
Can the SC exercise jurisdiction if the state court judgement is based on adequate and independent state law grounds?
A
No
17
Q
Where does Congress have police power type powers?
A
DC, federal lands, military bases, and Indian reservations
18
Q
Can the necessary and proper clause, standing alone, support federal law?
A
No
19
Q
What is the N&P clause?
A
Congress has the power to make all laws N&O (appropriate and rational) to carry out any of the legislative powers enumerated in Article I.
20
Q
What are the taxing & spending power?
A
Congress has the power to tax and spend to provide for the general welfare.
21
Q
Can non spending regulations be supported by the general welfare clause?
A
No
22
Q
When can Congress impose conditions on the grant of money?
A
- If the conditions are clearly stated
- Relate to the purpose of the program
- Not unduly coercive
- Do not otherwise violate the Const.
23
Q
When are federal taxes upheald?
A
When they bear some reasonable relationship to revenue or to promoting the general welfare and is not a penalty that compels behavior
24
Q
To be within Congress’s CC power, a federal law regulating interstate commerce must either:
A
- Regulate the channels of interstate commerce (highways, internet)
- Regulate the instrumentalities of IC (planes, trains, cars) and persons and things in IC OR
- Regulate activities that have a substantial effect on IC int he aggregate
25
Can Congress regulate purely intrastate activities?
Yes if there is a RB to conclude the activity in the aggregate substantially affects IC and the activity is commercial in nature
26
Can Congress regulate inactivity through the CC?
No
27
Can Congress prohibit private discrimination in activities that might have a sub effect on IC through the CC?
Yes
28
Does congress have plenary power over aliens?
Yes
29
When can Congress delegate rule making or regulatory power to another branch?
As long as intelligible standards are set and the power isn't something uniquely confined to Congress
30
What process is required to pass a law?
Bicameralism and presentment
31
Does the President have a line item veto power?
No
32
What are the guiding principles to a presidents inherent or implied powers (Youngstown)?
1. If president acts with the express or implied authority of Congress, pres. authority is at its max and likely valid
2. Congress is silent, courts will look to history, likely won't be upheld if it usurps another branches power
3. Pres. acts against express will of Congress action likely invalid
33
May Congress alone appoint members of a body with administrative or enforcement powers?
No
34
Who can appoint inferior officers?
President, the courts, or heads of departments
35
Who can the President remove?
1. High level, purely executive officers (Cabinet members) at will
2. Head of independent agency if that person is the sole director
36
How con Congress remove people?
Through the impeachment process
37
Does the president have the power to declare war?
No
38
Does the president have paramount power when it comes to foreign relations?
Yes
39
How can the president enter into treaties?
w/ consent of 2/3 senate
40
What is the hierarchy of US law?
Const., treaties and federal statutes (last in time prevails), executive agreements, state law
41
What are states police powers?
States can regulate health, safety, and welfare of their people
42
The Article IV privileges and immunities clause prohibits discrimination by a state against ___
nonresidents
43
Are corporations and aliens protected by Article 4 PIC?
No
44
What is the standard for Article 4 PIC?
If a state law burdens an important commercial activity/fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose AND there are no less restrictive means available.
45
Even where Congress has not acted, the CC restricts state regulation of IC unless:
The state does not favor local economic interests or unduly burden IC
46
if a state or local regulations discriminates against IC, it will be invalid unless:
1. It furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives OR
2. The state is a market participant
47
What does it mean for a regulation to discriminate against IC?
Treats economic interests from within a state different than economic interests from outside the state
48
What is the standard if the state regulation does not discriminate (i.e., treats in state and out of state interests alike) but burdens IC?
it will be invalid if the burden on commerce outweighs the state interest
49
What regulations get RB?
Regulations that do not affect fundamental rights or involve suspect or quasi suspect classifications
50
What is the RB standard?
The law is upheld if it is rationally related to a legitimate government purpose
51
Who has the burden of proof in RB?
The person challenging the law
52
What are some classifications that get RB review?
Age, disability, poverty
53
What regulations get IS?
Quasi-suspect classifications such as gender and legitimacy
54
What is the IS standard?
The law is upheld if it is substantially related to an important government purpose
55
Who has the burden of proof IS?
Usually the gov
56
What regulations get SS?
Regulations affecting fundamental rights (interstate travel, voting, privacy, 1st amendment) or involving suspect class (race, national origin, and alienage)
57
What is the SS standard?
The law is upheld if it is necessary to achieve a compelling government purpose
58
Who has the burden of proof SS?
Gov.
59
Does the DP Clause of the 5th amendment apply to fed or states?
Fed
60
Does the DP Clause of the 14th amendment apply to fed or states?
States
61
What does the DPC provide for?
A person has the right to a fair process when the gov deprives them of life, liberty, or property.
62
Procedural DP requires:
1. Notice
2. Opportunity to be heard
3. A neutral decision maker
63
What is substantive due process of the 5th amendment?
Guarantees that the laws will be reasonable and not arbitrary
64
What are some privacy related rights?
Marriage, procreation, contraception, and childrearing
65
What standard do regulations burdening privacy rights applies?
SS
66
Is international travel a fundamental right?
No
67
What must be present for SS or IS to be applied?
Intent to discriminate on the part of the government
68
How may intent be shown?
1. A law is discriminatory on its face
2. A discriminatory application of a facially neutral law
3. A facially neutral law with disparate impact on a protected class
2 and 3 alone are not enough, must also legislative intent
69
Does assigning students to a public primary or secondary school on the basis of race solely to promote diversity, as opposed to remedying past intentional segregation, satisfy SS?
No
70
Can race and ethnicity be used as a factor in assessment for college admissions?
Yes
71
What standard applies to affirmative action?
SS
72
Are FEDERAL alienage classifications subject to SS?
No, valid if they are not arbitrary and unreasonable
73
Are STATE laws on alienage subject to SS?
Yes
74
What standard applies if a law discriminates against alien participation in state government (voting, jury service, elected offices)?
RB
75
What standard applies to undocumented aliens?
RB
76
What standard of review is applied to distinctions between marital and non-marital children?
IS
77
What is the takings clause (5th amendment)?
The 5th amendment provides that private property may only be taken (1) for public use and (2) the government must pay just compensation.
78
May temporary occupations constitute a taking?
Yes
79
Is a taking likely to be found if it's made pursuant to public emergency?
No
80
If a government regulation denies a landowner of all economically viable use of their land is there a taking? Temporarily denies economic use? Decreases economic value?
Yes; not necessarily; not necessarily
81
What is the development exception to the takings clause?
Municipalities can condition building or development permits on a landowner's conveyance of part of the property to the government or public easements if:
1. The condition relates to a legitimate government interest; and
2. The adverse impact of the proposed development is proportional to the loss caused to the property owner
82
What is the public use requirement of the takings clause?
If the government action is rationally related to a legitimate public purpose the public use requirement is satisfied.
83
What is considered just compensation in the takings clause?
Fair market value at the time of taking
84
What is the contract clause rule for private contracts?
Legislation that substantially impairs an existing private contract is invalid unless:
1. The legislation serves an important and legit public interest; and
2. It is a reasonable and narrowly tailors means of promoting that interest
85
What is the contract clause rule for public contracts?
Legislation that impairs a contract to which a STATE is party is invalid unless:
1. The legislation serves an important and legit public interest; and
2. It is a reasonable and narrowly tailors means of promoting that interest
Note: If the legislation reduces the contractual burden on the state, then it gets heightened scrutiny
86
Ex Post Facto law apply only to ___ cases
criminal
87
What is a bill of attainder
Punishing individuals without trial
88
What is speech?
Words, symbols, and expressive conduct that is inherently expressive or intended to convey a message the is reasonably likely to be perceived as conveying a message.
89
What are categories of unprotected speech?
Incitement, fighting words, true threats, obscenity, defamatory speech, and some commercial speech
90
What speech can be censored as incitement?
If it is:
1. intended to produce imminent lawless action; and
2. Likely to produce such action
91
What speech can be censored as fighting words?
Personally abusive words that are likely to incite immediate physical retaliation in an average person
92
What speech can be censored as a true threat?
Words that are intended to convey to someone a serious threat of bodily harm
93
Are fighting word statutes designed to punish only certain viewpoints constitutional?
No, they are usually vague and over-broad
94
What are the elements of obscene speech?
It describes pr depicts sexual conduct which taken by the average person:
1. Appeals to the prurient interest in sex based on the contemporary community (CC)
2. Is patently offensive (CC)
3. Lacks serious value (reasonable/national standard)
95
Can zoning regulations limit the location or size of adult entertainment establishments?
Yes, cannot ban them entirely though
96
If defamation involves a public official, public figure, or involves a matter of public concern, what must a P prove?
All the elements of defamation + falsity and some degree of fault
97
What must a public official or figure show for defamation?
Actual malice aka knowledge that it was false or reckless disregard for the truth
98
What must a private P show if the defamation involves a matter of public concern?
Negligence (actual damages)
Actual malice (punitive/presumed damages) aka knowledge that it was false or reckless disregard for the truth
99
What must P show for IIED if P is a public figure or if the speech is a matter of public concern?
Actual malice aka knowledge that it was false or reckless disregard for the truth
100
When is commercial speech not protected?
If it is false, misleading, or about illegal products/services
101
What standard are content-based regulations subject to?
SS
102
When is a regulation content-based?
If it restricts speech based on the subject matter or viewpoint of the speech
103
What standard of care are content-neutral regulations subject to?
IS
104
When is a regulation content neutral?
Subject matter neutral and viewpoint neutral
105
What is a public forum?
Public property (government-owned) that has historically been open to speech related activities (streets, sidewalks, parks)
106
What is a designated public forum?
Public property not historically open to speech related activities but open on a limited basis
107
If a regulation is on a traditional public forum or designated public forum and it content based what level of scrutiny applies?
SS
108
If a regulation is on a traditional public forum or designated public forum and it content neutral what level of scrutiny applies?
IS
109
What is IS for the purpose of free speech?
Narrowly tailored to serve an important gov. interest (need not be the least restrictive means) and leave open alternative channels of communication
110
What is the standard for limited public forums and nonpublic forums?
Valid if they are viewpoint neutral and reasonably related to a legit gov purpose
Viewpoint base = SS
111
Are primary/secondary schools public forums?
No
112
What is unprotected employee speech?
speech involving matters of private concern and speech made on the job pursuant to the employee's official duties
113
What is protected employee speech?
Matter of public concern not made pursuant to employee's official duties and matters of private concern outside the workplace that is not detrimental to the workplace
114
A regulation of speech will be invalidated as over broad if:
it punished substantially more speech than is necessary and is facially invalid unless the court has a limited construction to remove the threat to constitutionality
115
A law or other government conduct that discriminates on the basis of religion is subject to:
SS
116
When is a law discriminatory on he basis of religion?
If it is not neutral on its face or
it is facially neutral but not generally applicable
117
What is the establishment clause?
Prohibits the government from sponsoring a religion
118
Things to discuss on an establishment clause essay:
Focus on neutrality, coercion, history, and the Founders' intent
