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Con Law Flashcards

1
Q

When does a taxpayer have standing to challenge government spending?

A
  • challenging legislation enacted under taxing & spending power AND
  • legislation exceeds limits imposed by establishment clause (i.e. religion)
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2
Q

Is the necessary and proper clause a independent source of congressional power?

A

NO, it gives Congress power to execute specifically granted powers

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3
Q

What are the restrictions on conditions for states to receieve federal funds?

A
  • be clearly stated & unambiguous
  • be reasonably related to federal interest in funded program
  • not require states to engage in unconstitutional activity and
  • not unduly coerce states into accepting
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4
Q

Article IV Privleges and Immunities

Comity Clause

A

Prevents state discrimination against citizens of other states & interference with rights of state citizenship:

  • Travel/reside in state
  • Pursue employment
  • Practice commercial trade/business
  • Own/transfer property
  • Seek medical services
  • Civil liberties
  • Creditor’s rights
  • Tax exemptions
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5
Q

Fourteenth Amendment

A

Prevents state interference with its citizens’ rights of national citizenship:

  • Interstate travel
  • Assemble peacefully
  • Vote for national offices
  • Enter public lands
  • Petition Congress for redress of grievances
  • Protection when in custody of U.S. Marshal
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6
Q

What are the five types of takings under the Fifth Amendment?

A

Physical
Possession or permanent physical invasion of property
Regulatory
Deprivation of all economically beneficial uses
Restricts use under totality of circumstances:
-character of government action
-economic impact
-reasonable investment-back expectations
Exaction
Condition to obtain building/development permit
Destruction
Destruction of property or property interest (eg, easements, liens)

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7
Q

Exclusive Powers of the President (executive)

A
  • Nominate principal officers
  • Veto bills
  • Prosecute & pardon federal offenses
  • Communicate & negotiate with foreign governments
  • Recognize foreign governments
  • Enter executive agreements
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8
Q

5th Amendment “takings” clause

A

The takings clause requires that the government pay just compensation when taking private property—including real, tangible, and intangible property (e.g., contract rights)—for public use.

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9
Q

When is a public employee entitled to procedural Due Process?

A

If the employee has a legitimate property interest in the employment. This exists when employee has:
* An ongoing employment contract
* Can only be fired for cause
* Receives assurances of continued employment

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10
Q

Substantive Due Process

A

Gov’t cannot deprive individuals of life, liberty or property without proper justification

Applies to ALL persons (vs. equal protection applies to a class of people)

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11
Q

Rational Basis Test

Substantive Due Process & Equal Protection

A

under the rational basis test, the law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest

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12
Q

Strict Scrutiny Test

Substantive Due Process & Equal Protection

A

under the strict scrutiny test, the law is presumed invalid until the government shows that the law is necessary to achieve a compelling government interest.

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13
Q

Ordinary Rights

Substantive Due Process

A
  • Economic
  • Employment
  • Education
  • Social Welfare
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14
Q

Fundamental Rights

Substantive Due Process

A
  • First Amendment Rights
  • Voting
  • Interstate Travel
  • Privacy (e.g. family, children)

FIRST VIP

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15
Q

Ministerial Exception

A

Protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles (e.g., a school teacher providing religious instruction).

Affirmative Defense (not a jurisdictional bar)

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16
Q

Free Exercise Clause

First Amendment

A

This clause prohibits government interference with or discrimination against sincere religious beliefs or conduct. As a result, the government may determine whether a professed religious belief is sincere—but not whether that belief is reasonable or true.

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17
Q

What are the 14th amendment protections?

A

Equal protection
Discriminatory treatment of similarly situated people

Due process
Substantive – deprivation of life, liberty, or property without adequate justification

Procedural – deprivation of life, liberty, or property without adequate process

Privileges or immunities
Interference with rights of national citizenship

Privileges or immunities is rarely the correct answer

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18
Q

Article IV Section 2

A

The Article IV, Section 2 privileges and immunities clause prohibits states from treating citizens of other states in a discriminatory manner by denying them a right of state citizenship.

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19
Q

What is the default test for an 14th Amendment Equal Protection analysis?

Treating similarly situated persons diferently

A

Rational Basis test

21
Q

When do exceptions apply to a 14th Amendment Equal Protection analysis?

A
  • Quasi Suspect Class
  • Suspect Class
  • Fundamental Rights
21
Q

Intermediate Scrutiny under a 14th Amendment Equal Protection analysis

A

Law is substantially related to an important state interest

Quasi Suspect Classes

22
Q

Quasi Suspect Class

14th Amendment Equal Protection

A
  • sex/gender
  • legitimacy (family)

Intermediate Scrutiny

23
Q

Suspect Class

14th Amendment Equal Protection

A
  • Ethnicity
  • Race
  • Citizenship
  • Nationality

Strict Scrutiny

24
Q

Fundamental Rights

14th Amendment Equal Protection

A
  • Voting
  • Interstate Travel
  • Privacy
  • First Amendment Rights

Strict Scrutiny

25
What types of scrutiny apply to protected free speech? | e.g. political speech
Content-based=Strict Scrutiny Content-neutral=Intermediate Scrutiny ## Footnote Content neutral = time place manner
26
What factors does the court use to determine whether a *ex post facto* civil law's retroactive effect is so punitive that is clearly overrides the nonpunitive purpose?
* imposes an affirmative disability or restraint (e.g., imprisonment) * has historically been regarded as punishment (e.g., public shaming) * promotes the traditional aims of punishment (e.g., retribution) * is rationally related to its nonpunitive purpose
27
What type of review are discriminatory laws subject to?
Generally, rational basis review.
28
When is heightened review used for discriminatory laws?
* Impacts a fundamental Right * **Intentionally** discriminates against a **suspect** or **quasi suspect** class
29
How can a law intentionally discriminate?
* **on its face** – the language of the law distinguishes between different classes (intent presumed) * **in its application** – a facially neutral law is purposefully applied differently to different classes or * **in its motive** – an otherwise neutral law was enacted to disproportionately impact a protected class.
30
How can the presumption of validity of federal citizenship laws be rebutted? ## Footnote Under 5th Amendment Due Process
Rational Basis (law is not rationally related to a legitimate government interest) ## Footnote i.e. arbitrary or unreasonable
31
What default level of scrutiny for a discriminatory **state** law against resident noncitizens? ## Footnote 14th Amendment Equal Protection
Strict Scrutiny (necessary to achieve a compelling state interest)
32
Political-Function Exception | For resident noncitizen discriminatory laws ## Footnote 14th Amendment Equal Protection
When law excludes non-citizen from government function that would allow: * direction participation in formulation, execution or review of broad public policy **OR** * exercise of broad discretion
33
Federal Legislative Immunity
**Member of Congress** * Absolute immunity for official legislative acts **Aide** * Absolute immunity for acts that would be immune if performed by member of Congress ## Footnote Applies to Civil and Criminal
34
Federal Executive Immunity
**President** * Absolute immunity for official executive acts * No immunity for acts before taking office or unrelated to executive function **Aide/official** * Qualified immunity for discretionary acts ## Footnote Civil
35
Federal Judicial Immunity
**Judge/prosecutor** * Absolute immunity for official judicial acts *unless* clearly lacks subject matter jurisdiction **Officer/employee** * Absolute immunity for acts pursuant to court order * Qualified immunity for discretionary acts ## Footnote Civil
36
Express Preemption ## Footnote Article VI Supremacy Clause
* Constitution says Federal regulation is exclusive **OR** * Federal law expressly prohibits state/municipal regulation
37
Implied Preemption ## Footnote Article VI Supremacy Clause
**Field Preemption** Congress's pervasive regulation shows intent to occupy entire field **Conflict Preemption** Direct - nearly impossible to comply with both laws Indirect - state/municipal law frustrates federal law's purpose
38
Deprivation of Public Employment Due Process
**Termination** (serious) * Notice of alleged misconduct * Pre-termination opportunity to respond to allegation * Post-termination evidentiary hearing **Suspension without pay** (less serious) * Notice of alleged misconduct * Prompt post-suspension evidentiary hearing
39
Article IV Section 3 Property Clause
Gives Congress complete power to dispose of and regulate federally owned lands
40
Export Clause
Prohibits Federal taxation of: * Exported goods * Services and activities closely related to the export process (e.g. insurance)
41
State-Action Doctrine
Rare circumstance where a private actor will be viewed as a government actor for purposes of constitutional rights. Occurs when: * Private actor performs a **traditonal and exclusive** government function (e.g. polling places) * Government is significantly involved in the private actor's activities
42
Significant Government Involvment under the State-Action Doctrine
* Government and private actor have **mutually beneficial** relationship (e.g. joint activity or venture) * Government creates **nexus** by affirmatively facilitating or authorizing private action (e.g. police officer acting under color of state law) * Government is pervasively **intertwined** in private entity's management or control
43
When is a state immune from suit in federal court under the 11th Amendment?
**Immune:** * Suit brought by private party or foreign government * Suit against state official violating state law **Not Immune:** * Suit brought by U.S. or other state * Suit against local government * Bankruptcy proceedings
44
What are the exceptions to state immunity from suit in federal court? ## Footnote 11th Amendment
* State consents to suit * Immunity removed by 13th, 14th, or 15th amendments * State official sued for injunctive or declaratory relief for alleged constitutional violation * Damages to be paid by state officier personally * State official sued for prospective (not retroactive) damages to be paid by state
45
When may a state tax a foreign corporation?
Substantial **Nexus** with state Fairly **apportioned** to activity within state Applied equally to foreign and domestic corps (**nondiscriminatory**) **Fairly related** to services/benefits provided by state

Themis Contracts (7 decks)

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