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Con Law Flashcards

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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
Q

Non commercial or economic activity that is purely _____ can’t be ____ so its validity requires ____

A

Intrastate

aggregated

Congress showing that even unaggregated it has a direct substantial economic effect on interstate commerce

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26
Q

The 10th A limitation on the commerce power bars congress from regulating

A

noneconomic intrastate activity that is traditionally regulated by state or local govs (ie domestic violence)

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27
Q

A Congressional subpoena of presidential info is valid if

A

there is a legitimate legislative purpose AND the balance favors Congress’s interests over the burden on the president

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28
Q

Congress’ property power allows it to

A

Dispose of and make rules for all properties and territories of the US

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29
Q

A congressional delegation of power is valid if

A

-it includes an intelligible standard
AND
-it is not a power reserved for Congress alone

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30
Q

The Major Questions Doctrine is triggered by

A

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

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31
Q

Separation or powers for legislative actions requires

A

-Bicameralism
-Presentment
-No line item or legislative vetoes

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32
Q

Speech in the course of federal legislative process is

A

Immune from suit

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33
Q

The validity of the President’s authority when empowered by congress is determined by

A

-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

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34
Q

Congress can vest the power of appointment of inferior officers in ____. They cannot _____.

A

The president alone, the courts, or heads of departments

Congress itself may not appoint members of a body with administrative or enforcement powers.

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35
Q

The removal of executive officers is possible through

A

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

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36
Q

The President’s powers with regard to the military are:

A

-No power to declare war
-Can act militarily in actual hostilities w/o congressional approval

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37
Q

The President’s power in foreign relations is

A

paramount to all other branches

38
Q

A treaty can be entered into by

A

the president with 2/3 consent of the Senate

39
Q

When there is a conflict between a congressional act and a valid treaty, ____ prevails

A

the last in time

40
Q

Anti-commandeering prohibits

A

Congress from compelling states to enact laws or enforce federal laws

41
Q

Preemption of state by federal law exists where

A

-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
Q

The Article IV Privileges and Immunities clause prohibits

A

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
Q

If a state law burdens an important commercial or fundamental right in violation of the Art IV P&I clause, it is invalid unless

A

It is necessary to achieve an important government purpose AND there are no less restrictive means

44
Q

The 14th A P or I clause prohibits

A

states from denying their citizens the privileges and immunities of national citizenship

45
Q

Examples of rights preserved by the 14th A P or I clause

A

-Right to vote for federal officers
-Right to interstate travel
-Right to petition congress

46
Q

The dormant commerce clause bars states from

A

Discriminating against or unduly burdening interstate commerce in the absence of congress action

47
Q

A law that violates the DCC by burdening interstate commerce is valid if

A

Necessary to achieve an important noneconomic interest
AND
There are no reasonable nondiscrim alternatives

48
Q

A state law that is not discriminatory but still burdens interstate commerce is valid

A

unless the burden outweighs the promotion of a legitimate local interest

49
Q

A violation of the DCC may be valid if Congress

A

approves it

50
Q

A state is not in violation of the DCC if it is

A

acting as a market participant, so long as it is not controlling down stream effects

51
Q

Rational basis applies to ____ and the law will be upheld if _____

A

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
Q

Intermediate scrutiny applies to _____ and the law will be upheld if ____

A

Quasi suspect classifications
-Gender - exceedingly high justification req’d
-Legitimacy of children

The law is substantially related to an important government purpose

53
Q

Strict scrutiny applies to _____ and the law will be upheld only if ____

A

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
Q

PDP is provided by ____ and requires ____

A

5th A for federal gov, 14th for states

fair process for an intentional or reckless gov deprivation of life, liberty, or property

55
Q

Liberty, for PDP purposes, includes

A

-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
Q

Property, for PDP purposes, includes

A

personal and real property
AND
Government benefit entitlements (a reasonable expectation of continued receipt)

57
Q

Process required for PDP is

A

-Notice
-Opportunity to be heard
-Neutral decision maker

Generally a pre-dep hearing is required unless impracticable

58
Q

SDP applies when

A

a fundamental right is limited such as:
-1st A rights
-Right to interstate travel
-Privacy related rights
-Voting

59
Q

An unenumerated right is fundamental for purposes of SDP if it is

A

-Deeply rooted in the nation’s history and tradition
AND
-Essential to the concept of ordered liberty

60
Q

Determining if SDP or EPC applies:

A

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
Q

SDP Requirements for voting in Federal vs State elections are:

A

Federal elections - almost exact mathematical equality

State elections - substantially equal (10% variance has been upheld) unless at large election

62
Q

The EPC applies when

A

the government treats a person or class differently from others (5th Fed/14th states)

63
Q

Scrutiny for EPC claims are:

A

-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
Q

State laws based on alienage are subject to

A

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
Q

The 5th A provides that private property can only be taken

A

For public use AND if with just compensation

66
Q

For the purpose of 5th A takings, a taking will be found if

A

-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
Q

To satisfy the requirements of the 5th A takings just compensation requirement, the gov must pay

A

FMV at the time of the taking

68
Q

The contract clause only applies to ____ and bars ____

A

states

enacting law that retroactively impair contract rights

69
Q

Ex post facto are barred because they retroactively (any of the following)

A

-criminalize action
-Increase punishment
-reduce evidence required to convict

70
Q

Speech for 1st A purposes includes

A

Words, symbols, and expressive conduct:
-intended to convey a message and likely to be perceived as such OR
-Inherently expressive

71
Q

The unprotected speech categories are:

A

-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
Q

For the 1st A, obscenity is

A

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
Q

Defamation for the 1st A requires fault of

A

Actual malice (knowledge or reckless disregard of falsity) for public figures/matters of public concern

Negligence for private matters/persons

74
Q

Commercial speech is not protected by the 1st A if

A

False, misleading, or regarding illegal products/services

75
Q

Protected commercial speech can be regulated if:

A

-It serves a substantial government interest
-Directly advances that interest
-Is narrowly tailored to serve that interest

76
Q

Content based restrictions are subject to

A

Strict scrutiny

77
Q

Content neutral restrictions are subject to

A

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
Q

Regulation of speech on government property depends on the type of forum:

A

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
Q

Criminal laws or regulations are void for vagueness if

A

they fail to give reasonable notice of what is prohibited

80
Q

A prior restraint on speech is valid if

A

-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
Q

The Free Exercise Clause is found in the ____ and bars ____

A

1st A

the government from punishing someone on the basis of their beliefs

82
Q

Laws that discriminate on the basis of religion are those that ____ and are subject to ____

A

Are facially discriminatory or designed to discriminate

Strict scrutiny

83
Q

Laws that cannot be challenged under the Free Exercise Clause are ____ unless _____

A

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
Q

Under the FEC, general eligibility for government benefits may not be denied to

A

organizations on the basis of their religious status

85
Q

The Establishment clause is found in the ____ and bars ____

A

1st A

the government sponsorship of religion

86
Q

To be valid under the establishment clause, gov action must be

A

neutral with respect to religion

87
Q

Laws that favor religion may be valid under the Establishment clause if

A

there is a history of such practice AND whether the founders would have considered it acceptable

88
Q

The Appointment Clause of the Constitution permits Congress to vest appointments of inferior officers only in the

A

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
Q

Schools have the ability to reasonably restrict constitutional rights if

A

necessary to enable schools to accomplish their mission and keep the students safe

90
Q

Congress’ exertion of control without presidential approval after bicameralism and presentment is

A

a violation of the separation of powers

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