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Con Law Flashcards

1
Q

Two tests apply to punishment of a government employees’ speech:

A

No first amendment right:
On the job speech that is made according to employee duties (even if on pubclic matters) or speech regarding private matters made while on the job may be punished if disruptive

First amendment right:
-If the speech is not related to an employee’s official duties
-and involves a matter of public concern
-courts balance the employee’s rights as a citizen against the government’s interest in efficient performance of public service.
-Private concern out of work is likely protected absent detrimental effect on the workplace.

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2
Q

Overbreadth invalidates actions that

A

punish substantially more speech than intended to be proscribed

such laws are facially invalid

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3
Q

Article III courts have power to adjudicate cases involving

A

Interp of Constitution, federal laws, treaties, admiralty and maritime laws

Disputes between states, states and foreign citizens, and diverse citizen disputes

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4
Q

An issues is non-justiciable if it is

A

-An advisory opinion
-Not ripe or it is moot
-The plaintiff lacks standing

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5
Q

Ripeness will not bar a suit if

A

-the issues are fit for judicial decision (only legal questions)
AND
-P would suffer substantial hardship if no review

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6
Q

A moot issue does not bar a suit if

A

-The wrong is capable of repetition evading review
-The defendant voluntarily stops, but can resume at any time
-Class actions where the rep’s claim is moot but at least one other claim is viable

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7
Q

Standing Requirements

A

-Injury in fact (particularized and concrete)
-Cause
-Redressability

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8
Q

Citizens generally cannot claim standing to challenge gov action based on their citizenship EXCEPT they can challenge

A

-their tax bill
-federal action violating the 10th A reservation of powers to the states as long as the P has a redressable injury
-Congressional spending on 1st A Establishment Clause grounds
-to enforce federal statute IF they are within the zone of interest Congress meant to protect

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9
Q

Third party standing exists if

A

It is difficult for the 3P to assert their own rights
OR
A close relationship exists between claimant and 3P

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10
Q

Organizational standing exists if

A

-There is an injury in fact to the members
-The injury is related to Org’s purpose
-Individual participation is not required (only injunctive relief can be sought)

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11
Q

11th Amendment establishes ____ except for _____

A

Sovereign immunity barring private suits from citizens or foreign governments against a state except for:

-Where expressly waived (ie tort claims)
-Implicitly/structurally waived

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12
Q

A state is liable to suit through implicit waiver of 11th A rights where

A

the federal power is complete in itself (ie suits by veterans against states are allowed because the federal gov has exclusive power of the military)
AND
the states implicitly waived the right at the convention

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13
Q

A state officer can be sued without violating the 11th A if

A

Sued for damages in their personal capacity
OR
to enjoin future conduct violating the constitution or federal law

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14
Q

Federal courts will abstain when

A

-Disposition of a case rests on an unsettled question of state law
-When there is a pending state criminal proceeding (unless harrassment or bad faith prosecution)

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15
Q

Political questions are nonjusticiable because they are

A

-Traditionally committed to another branch of government
-Inherently incapable of judicial resolution

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16
Q

The Supreme Court has original jurisdiction over cases

A

-Affecting ambassadors, public ministers, consuls (concurrent federal jurisdiction)
-Actions in which a state is a party (concurrent federal jurisdiction)
-Actions between states (only SCOTUS has OG jur)

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17
Q

The SC will only hear a case on appeal if

A

-There has been a final judgment of the highest state court/federal court of appeals

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18
Q

Adequate independent state grounds rule states that

A

SC will decline jurisdiction if a decision would not alter the outcome

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19
Q

Congress can exercise powers that are

A

-Enumerated
AND
-Any powers necessary and proper to carry out those enumerated powers

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20
Q

Congress has the power to tax and spend for

A

the general welfare - meaning any public purpose not prohibited by the constitution

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21
Q

Money with strings from Congress is not invalid so long as:

A

-The condition is clearly stated
-Relates to the purpose of the program
-Is not unduly coercive

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22
Q

Federal taxes are generally valid if they bear some reasonably relationship to

A

revenue production
OR
promoting the general welfare

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23
Q

Under the commerce clause, Congress can regulate these areas

A

-Instrumentalities - vehicles
-Channels - road/water ways
-Activities that have a substantial effect on interstate commerce

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24
Q

Intrastate commercial or economic activity regulation by congress will be upheld by the court if

A

The court can think of a rational basis Congress could have relied on to conclude that the activity in the aggregate would substantially affect interstate commerce

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25
Non commercial or economic activity that is purely _____ can't be ____ so its validity requires ____
Intrastate aggregated Congress showing that even unaggregated it has a direct substantial economic effect on interstate commerce
26
The 10th A limitation on the commerce power bars congress from regulating
noneconomic intrastate activity that is traditionally regulated by state or local govs (ie domestic violence)
27
A Congressional subpoena of presidential info is valid if
there is a legitimate legislative purpose AND the balance favors Congress's interests over the burden on the president
28
Congress' property power allows it to
Dispose of and make rules for all properties and territories of the US
29
A congressional delegation of power is valid if
-it includes an intelligible standard AND -it is not a power reserved for Congress alone
30
The Major Questions Doctrine is triggered by
An agency claiming broad power to enact regs of extraordinary economic and political significance. The court will look to: -Historical assertion of such power -Clear congressional authorization
31
Separation or powers for legislative actions requires
-Bicameralism -Presentment -No line item or legislative vetoes
32
Speech in the course of federal legislative process is
Immune from suit
33
The validity of the President's authority when empowered by congress is determined by
-Express or implied auth from Congress - likely valid -Silence from Congress - invalid if usurpation of power in violation of SoP -Against Congress' will - likely invalid
34
Congress can vest the power of appointment of inferior officers in ____. They cannot _____.
The president alone, the courts, or heads of departments Congress itself may not appoint members of a body with administrative or enforcement powers.
35
The removal of executive officers is possible through
President at will -If it is the person being removed is the head of an agency who has significant power, the removal power of the president cannot be restricted by congress -For all other executive appointees, Congress can statutorily limit the removal power Congress by impeachment
36
The President's powers with regard to the military are:
-No power to declare war -Can act militarily in actual hostilities w/o congressional approval
37
The President's power in foreign relations is
paramount to all other branches
38
A treaty can be entered into by
the president with 2/3 consent of the Senate
39
When there is a conflict between a congressional act and a valid treaty, ____ prevails
the last in time
40
Anti-commandeering prohibits
Congress from compelling states to enact laws or enforce federal laws
41
Preemption of state by federal law exists where
-A direct conflict between state and federal law -A state law prevents achievement of a federal objective -field preemption - where federal law occupies the entire field Laws regarding traditional state police powers are presumed to not have been preempted absent a clear and manifest purpose of congress
42
The Article IV Privileges and Immunities clause prohibits
Discrimination by a state against non-residents through inherently protectionist laws burdening an important commercial activity or fundamental right (does not apply to new residents, only nonresidents)
43
If a state law burdens an important commercial or fundamental right in violation of the Art IV P&I clause, it is invalid unless
It is necessary to achieve an important government purpose AND there are no less restrictive means
44
The 14th A P or I clause prohibits
states from denying their citizens the privileges and immunities of national citizenship
45
Examples of rights preserved by the 14th A P or I clause
-Right to vote for federal officers -Right to interstate travel -Right to petition congress
46
The dormant commerce clause bars states from
Discriminating against or unduly burdening interstate commerce in the absence of congress action
47
A law that violates the DCC by burdening interstate commerce is valid if
Necessary to achieve an important noneconomic interest AND There are no reasonable nondiscrim alternatives
48
A state law that is not discriminatory but still burdens interstate commerce is valid
unless the burden outweighs the promotion of a legitimate local interest
49
A violation of the DCC may be valid if Congress
approves it
50
A state is not in violation of the DCC if it is
acting as a market participant, so long as it is not controlling down stream effects
51
Rational basis applies to ____ and the law will be upheld if _____
Regulation of non-suspect classifications or anything other than a fundamental right the law is rationally related to a legitimate government purpose (not arbitrary or irrational) The burden is on the challenging party
52
Intermediate scrutiny applies to _____ and the law will be upheld if ____
Quasi suspect classifications -Gender - exceedingly high justification req'd -Legitimacy of children The law is substantially related to an important government purpose
53
Strict scrutiny applies to _____ and the law will be upheld only if ____
Regulation of fundamental rights or suspect classes (race, national origin, or alienage at state level) the law is necessary (meaning least restrictive means necessary ) to achieve a compelling government purpose Burden is on the government
54
PDP is provided by ____ and requires ____
5th A for federal gov, 14th for states fair process for an intentional or reckless gov deprivation of life, liberty, or property
55
Liberty, for PDP purposes, includes
-loss of a significant freedom of action OR -denial of a freedom provided by the Constitution or a statute Injury to reputation is not a deprivation of liberty
56
Property, for PDP purposes, includes
personal and real property AND Government benefit entitlements (a reasonable expectation of continued receipt)
57
Process required for PDP is
-Notice -Opportunity to be heard -Neutral decision maker Generally a pre-dep hearing is required unless impracticable
58
SDP applies when
a fundamental right is limited such as: -1st A rights -Right to interstate travel -Privacy related rights -Voting
59
An unenumerated right is fundamental for purposes of SDP if it is
-Deeply rooted in the nation's history and tradition AND -Essential to the concept of ordered liberty
60
Determining if SDP or EPC applies:
SDP applies if the law limits the rights of ALL persons EPC applies if a law treats a person or class differently from others
61
SDP Requirements for voting in Federal vs State elections are:
Federal elections - almost exact mathematical equality State elections - substantially equal (10% variance has been upheld) unless at large election
62
The EPC applies when
the government treats a person or class differently from others (5th Fed/14th states)
63
Scrutiny for EPC claims are:
-Fundamental right/suspect class = SS* -Quasi suspect class = IS* -All others = RB *Requires discriminatory intent (facially, as applied, or through disparate impact so long as it was intended to be discriminatory)
64
State laws based on alienage are subject to
Strict scrutiny EXCEPT when discrimination is related to -participation in state government (voting, jury service, elective office) -serving in non-elective offices (police, teachers) In these cases RB applies
65
The 5th A provides that private property can only be taken
For public use AND if with just compensation
66
For the purpose of 5th A takings, a taking will be found if
-There is confiscation of person's property -a permanent or regular occupation of a person's property -Denial of all economically viable use of land
67
To satisfy the requirements of the 5th A takings just compensation requirement, the gov must pay
FMV at the time of the taking
68
The contract clause only applies to ____ and bars ____
states enacting law that retroactively impair contract rights
69
Ex post facto are barred because they retroactively (any of the following)
-criminalize action -Increase punishment -reduce evidence required to convict
70
Speech for 1st A purposes includes
Words, symbols, and expressive conduct: -intended to convey a message and likely to be perceived as such OR -Inherently expressive
71
The unprotected speech categories are:
-Incitement - imminent lawless urge likely to cause such action -Fighting words - personally abusive words likely to result in violence -True threats - intended to convey serious threat of harm -Obscenity -Defamation -Some commercial speech
72
For the 1st A, obscenity is
Anything the average person would find that (1) appeals to prurient interest (community standard) (2) is patently offensive (community standard), and (3) lacks serious value (national reasonable person standard)
73
Defamation for the 1st A requires fault of
Actual malice (knowledge or reckless disregard of falsity) for public figures/matters of public concern Negligence for private matters/persons
74
Commercial speech is not protected by the 1st A if
False, misleading, or regarding illegal products/services
75
Protected commercial speech can be regulated if:
-It serves a substantial government interest -Directly advances that interest -Is narrowly tailored to serve that interest
76
Content based restrictions are subject to
Strict scrutiny
77
Content neutral restrictions are subject to
Intermediate scrutiny - they must be narrowly tailored (not burden more speech than necessary) to achieve an important government interest other than suppression of speech Often implicated by Time Place Manner restrictions whose validity may turn on the classification of the forum if the regulation is forum specific. To be content neutral, it must be subject matter and viewpoint neutral
78
Regulation of speech on government property depends on the type of forum:
Public or designated forum (streets, sidewalks, parks) -content based - SS -content neutral - IS (narrowly tailored for important gov interest) AND leave open alt channels Limited or Nonpublic forum -Viewpoint based = subject to SS -Viewpoint neutral = valid if reasonably related to legit gov purpose
79
Criminal laws or regulations are void for vagueness if
they fail to give reasonable notice of what is prohibited
80
A prior restraint on speech is valid if
-The standards are narrow, reasonable, and definite -Injunction is promptly sought -There is a prompt and final judgement on the validity of the restraint Gov bears the burden and can't be given unfettered discretion or it is void
81
The Free Exercise Clause is found in the ____ and bars ____
1st A the government from punishing someone on the basis of their beliefs
82
Laws that discriminate on the basis of religion are those that ____ and are subject to ____
Are facially discriminatory or designed to discriminate Strict scrutiny
83
Laws that cannot be challenged under the Free Exercise Clause are ____ unless _____
those that are neutral and generally applicable, even if they burden religion It is a law that gives the gov discretion to grant exemptions (in which case, it is challengeable if denied)
84
Under the FEC, general eligibility for government benefits may not be denied to
organizations on the basis of their religious status
85
The Establishment clause is found in the ____ and bars ____
1st A the government sponsorship of religion
86
To be valid under the establishment clause, gov action must be
neutral with respect to religion
87
Laws that favor religion may be valid under the Establishment clause if
there is a history of such practice AND whether the founders would have considered it acceptable
88
The Appointment Clause of the Constitution permits Congress to vest appointments of inferior officers only in the
President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint its own members to the commission to exercise enforcement powers.
89
Schools have the ability to reasonably restrict constitutional rights if
necessary to enable schools to accomplish their mission and keep the students safe
90
Congress' exertion of control without presidential approval after bicameralism and presentment is
a violation of the separation of powers

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