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Con Law Flashcards

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1
Q

what does the dormant CC do?

A

prohibits states from discriminating against out of state business or unduly burdening IC

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2
Q

Test for dormant CC

A

State passes a law that is discriminatory in any way –> SS

State passes a law that is just a little burdensome, but not discriminatory –> balancing test where the court will weigh the burdens to IC against local benefits

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3
Q

if a question looks like a state is discriminating against IC, make sure to ensure what could apply?

A

the market participant exception (where the state is acting as a business, not a regulator)

ex. selling energy to consumers in the state

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4
Q

The Contracts Clause

A

state laws cannot substantially impair preexisting contracts unless they can pass some form of heightened scrutiny

(1. serve important govt interest
2. reasonably relate to a govt interest)

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5
Q

Interstate commerce is a federal power, but states can regulate subject to

A

negative implications of the CC (Dormant CC)

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6
Q

a state law burdening interstate commerce is valid if the state is a market participant. what does this mean?

A

state can favor its own citizens in buying or selling products, hiring labor, giving subsidies (tuition discounts at state universities to in state residents)

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7
Q

exceptions to Dormant CC (when state can discriminate against out of staters)

A
  1. state acts as market participant (can favor its own citizens)
  2. regulation is necessary to further important noneconomic state interests (health and safety)
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8
Q

States may regulate local aspects of interstate commerce as long as the local regulation does not conflict with, or is not preempted by, federal regulation and the regulation meets the following tests:

A

(i) the regulation does not discriminate against out-of-state competition in order to benefit local economic interests, and
(ii) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation.

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9
Q

Large semi-trailer trucks use one of two basic designs of tires. There are some differences in the two designs of the tires, but both are deemed to be equally safe by independent testing labs. A state has enacted a statute banning the use of one of the tire types. The other tire design is legal and available for sale in all states. A trade association of interstate trucking firms has brought suit to have the statute declared unconstitutional. The state argues that no burden exists because the other tire design can be used in all states.

How should the Court rule on the constitutionality of the statute?

A

It is an undue burden on IC - unconstitutional.

. By not permitting equally safe alternative types of tires, which might be cheaper or more readily available, the state is imposing an undue burden on all trucking companies in other states whose trailers might at some time pass through the state

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10
Q

Under the Supremacy Clause, a state law that directly conflicts with a federal law will be held invalid. Even if a state law does not directly conflict with a federal law, it may still be held invalid if:

A

the law prevents achievement of federal objectives or it appears that Congress intended to preempt the entire field of regulation

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11
Q

procedural due pcess

A

the govt cannot intentionally deprive someone of life/liberty/or property without notice and an opportunity to be heard

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12
Q

examples where procedural DP required

A

-govt jobs but not at will employment
- public education
-real property
-govt benefits/welfare

you need to have a reasonable expectation of continued receipt

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13
Q

how will a court determine the type of procedural due process that is required?

A

(i) The importance of the individual’s interest that is involved,

(ii) The value of specific procedural safeguards of the individual’s interest, and

(iii) The government’s interest in fiscal and administrative efficiency.

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14
Q

Under the rules the Supreme Court currently uses regarding abortion, what is required?

A

States may regulate abortions at all stages of pregancy because the right to an abortion is not protected by the US constitution

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15
Q

even tho the right to vote is a fundamental right, when is the right to vote reviewed under rational basis standard?

A

Laws limiting voting to residents, resident voting limitation appears to be rationally related to a legitimate government interest

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16
Q

3 suspect classifications for equal protection purposes

what standard

A

1) race
2) national origin
3) alienage

Strict scrutiny

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17
Q

quasi suspect classifications?

What standard

A

1) gender
2) non-marital children

intermediate scrutiny

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18
Q

When is alienage a suspect class that is subject to strict scrutiny vs. rational basis?

A

SS: state and local laws on alienage
RB: federal law

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19
Q

what are the e exception to the general rule that state laws that discriminate against aliens are subject to SS?

A

1) when a law discriminates against alien participation in state government, RB is applied.
2) government positions being reserved for citizens (those that relate to self governance) = RB
2) when undocumented aliens are involved = RB

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20
Q

what positions relate to self governance and earn RB review?

A

police officers
probation officers
teachers

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21
Q

3 ways of Proving Discriminatory classification (need this to determine what level of scrutiny):

A

1) facial discrimination
2) discriminatory application of facially neutral law
3) disparate impact on protected class (makes it a crime to bus or carpool voters, that does not mention race on its face. But high impact on black ppl)

*THE LAST TWO REQUIRE A SHOWING OF DISCRIMINATORY INTENT)

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22
Q

strict scrutiny test:

A

is the law necessary to achieve a compelling govt purpose?

need compelling interest and the means selected are narrowly tailored because no other nondiscriminatory action would work.

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23
Q

intermediate scrutiny test

A

Is the law substantially related to an important government purpose?

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24
Q

RB test

A

is the law rationally related to a legitimate govt purpose?

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25
Q

commercial speech is only protected by the 1st amendment wen it is

A
  1. lawful and not misleading
    2.serves substantial govt interest
  2. statute directly advances that interest
  3. statute is not more excessive than it need be.
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26
Q

Even though fighting words are unprotected, the Supreme Court won’t allow fighting words statutes that are designed to punish only…

A

certain viewpoints (for example, prohibiting only fighting words that insult on the basis of race, religion, or gender).

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27
Q

true threats are/are not protected speech

A

are not protected speech -

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28
Q

what is required for a true threat

A

speaker must have had some subjective understanding that their threats were of a threatening nature (but recklessness is sufficient)

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29
Q

The government can limit rights of speech in a public forum (parks) only when there is a…

A

serious and imminent threat to public order (police are ABSOLUTELY unable to control the crowd)

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30
Q

speech meant to communicate an intent to place a person in fear of bodily harm

A

true threats

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31
Q

personally abusive epithets inherently likely to incite an immediate response

A

fighting words (unprotected speech)

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32
Q

The Supreme Court has held that businesses selling material that is sexually explicit, although not necessarily obscene, may be regulated through

A

land use ordinances designed to promote substantial govt interests (property interests)

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33
Q

to avoid strict scrutiny and be upheld, a governmental regulation of speech in public or designated public forum must be..

A

content neutral;
narrowly tailored to serve an important governmental interest
must leave open alternative methods of communication

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34
Q

To be valid, a time, place, and manner regulation of a limited public forum must be:

A

viewpoint neutral and rationally related to a legitimate government purpose.

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35
Q

what does viewpoint neutral mean?

A

it cannot permit presentation of one side of an argument and exclude the other side.

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36
Q

regulation that is neutral as to subject matter and viewpoint

A

content neutral

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37
Q

Despite the free exercise clause, if relevant a court may assess

A

the sincerity of a person’s religious beliefs

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38
Q

the first amendment free exercise clause prohibits

A

government from punishing conduct just because it is religious

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39
Q

a law is discriminatory relating to religion if:

A

1) not neutral on its face
2) facially neutral but by design, it targets religion

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40
Q

If a law is discriminatory against religion, what applies

A

strict scrutiny (the govt would need to show a compelling interest to deny benefits)

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41
Q

under the establishment clause, what is the test when no sect preference is involved?

A

1) neutrality/coercion (if neutral, no need to go further)
2) whether the action aligns with history
3) accords with intent of founding fathers

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42
Q

Govt action that prefers one sect over another violates the….. and what test is applied?

A

Establishment clause
Strict scrutiny is applied.

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43
Q

when thinking of freedom of religion, think of what 2 clauses:

A

1) Free exercise
2) establishment clause

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44
Q

Govt action is valid under the Establishment clause if..

A

it is religiously neutral.

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45
Q

the Free exercise clause does not prohibit government from …

A

regulating general conduct, even if the regulation happens to interfere with a person’s ability to conform conduct to sincerely held religious beliefs.

If you are challenging a neutral regulation, strongest argument is that the statute is being applied only to interfere with religion.

46
Q

Justiciability means that there is a

A

case or controversy

47
Q

to determine whether there is a case or controversy, the case needs:

A

1) standing
2) ripeness
3) mootness (cannot be)
4) Political question

48
Q

if you see a proposed statute or amendment of a statute, what can there NOT be

A

an actual case or controversy

49
Q

what needs to be proven for standing

A

1) Injury — P must have suffered some injury or show a likelihood of imminent injury
2) Causation — P must allege that D caused the injury
3) redress: that the court can grant a proper remedy

50
Q

Plaintiffs cant sue solely as a US citizen or taxpayer to compel the govt to …

A

act in a particular way

51
Q

when can taxpayers have standing to challenge govt action?

A

to challenge specific govt expenditures pursuant to Establishment clause

52
Q

for an organization to have standing it must show:

A
  1. Injury to the members that would give members standing to sue individually;
  2. Injury is related to the organization’s purpose; and
  3. Neither claim nor relief requires participation of individual members
53
Q

2 requirements for third party standing

A

1) P must have standing
2) non-P also have suffered injury but is unlikely to sue for some reason
3) P can adequately represent the 3rd parties interests

54
Q

when can the Supreme Court hear decisions made by state courts?

A

if the case involves a matter of federal law, it is a final judgment from the highest state court, and there are no adequate and independent state grounds

55
Q

to be justiciable, claims must be ___ and not ___

A

ripe and not moot

56
Q

Ripe and NOT moot (exceptions, 3):

A

1) wrongs capable of repetition but evading review
2) voluntary cessation by D (D can resume wrongs at any time)
3) one member of class action suffering on going injury

57
Q

federal courts will OR will not adjudicate political Qs?

A

Will not!

58
Q

Common political questions deemed non-justiciable:

A

Actions under the “republican form of government” clause
Challenges to the conduct of foreign policy
Challenges to impeachment and removal proceedings

59
Q

Non-political questions deemed justiciable:

A

Production of presidential papers/communications

Validity of a fed. statute (even if case involves dispute between branches of the fed. govt. regarding foreign affairs)

60
Q

Supreme Court only hears cases on review if there has been a

A

supreme Court only hears cases on review if there has been a final judgment of a lower fed. court or a state’s highest court

61
Q

the 11th amendment and sovereign immunity bar suits against…

A

state goverments in federal court (foreign govts can’t sue states)

62
Q

A private party under the 11th amendment cannot..

A

sue a state government for money damages in federal court

63
Q

who can ONLY hear cases between states

A

Supreme court

64
Q

Exclusive federal jurisdiction:

A

International trade
2) govt contracts
3) patents
4) trademarks
5) monetary claims against the US govt
6) federal personnel
7) veterans benefits

65
Q

congress needs (WHAT) in order to pass a law

A

bicameralism and presentment

66
Q

congress gets its power from

A

the constitution

67
Q

enables Congress to take any action not constitutionally prohibited to carry out its express powers

A

necessary and proper clause (combined with another power)

68
Q

congress’s powers:

A

1) taxing and spending
2) regulating commerce
3) establishing uniform naturalization rules and bankruptcy laws
4) raising and supporting a military

69
Q

congress taxing and spending power allows:

A

Congress may tax and spend in any way deemed necessary for the “general welfare” (a very broad power)

ex. spending funds for alien research is even ok because congress has broad spending power

70
Q

congress’s taxing and spending powers are subject to what level of scrutiny

A

rational basis

71
Q

congress can really only use their taxing and spending power if the question concerns

A

federal land, DC, military res, Indian res

72
Q

congress has no general police power except for legislating concerning:

A

Military
Indian reservations
Land — i.e., fed. land or territories
District of Columbia (MILD)

73
Q

congress’s power to regulate interstate commerce

A

can always regulate activity that substantially effects IC

1) instrumentalities/things in IC
2) channels of IC
3) things that substantially effect IC (can consider in the aggregate)

Can regulate intrastate activities but depends on if its noneconomic or economic

74
Q

congress intrastate power to regulate economic vs. non economic

A

Economic activities — Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce

Non-economic activities — Congress may only regulate non-economic activity if it has a direct, substantial economic effect on interstate commerce (tougher burden to satisfy)

75
Q

who has the power to declare war

A

congress

76
Q

10th A anti-commandeering principle

A

Congress cannot commandeer states by requiring them to enact laws or administer fed. law. EXCEPT IN CIVIL RIGHTS SITUATIONS

77
Q

can congress condition state regulatory/legislative action on a condition?

A

yes E.g., fed. highway funds conditioned on states maintaining a minimum drinking age of 21
Requirements:
Condition must be expressly stated;
Condition must relate to the purpose of the law at issue; and
Condition cannot be unduly coercive

78
Q

Congress has ___ authority to delegate ____ powers

A

Congress has broad authority to delegate legislative powers to executive officers and administrative agencies

79
Q

limitations on congress’s delegation power

A

Congress must provide “intelligible principle” to define the scope of legislative authority it delegates

Congress may not delegate executive or judicial powers to itself or its officers (e.g., Congress cannot create commissions that enforce or prosecute violations of law)

80
Q

legislative and line item vetos are

A

unconstitutional

81
Q

legislative veto

A

Congress cannot veto a decision by an agency acting pursuant to delegated power (exec branch)

82
Q

what is a line item veto

A

President cannot veto part of a bill; would be impermissible delegation of power to the President - must sign or veto a bill in its entirety

83
Q

who can appoint ambassadors, fed. judges, and other high-level officers with advice and consent of Senate

A

president

84
Q

who can’t give itself appointment powers

A

congress

85
Q

congress’s removal powers?

A

can only remove executive officers through impeachment power

86
Q

president’s removal powers?

A

can remove at will/without cause, high-level, purely executive officers and some heads of independent agencies

but congress can limit this removal power requiring good cause

87
Q

presidents absolute immunity from civil suits

A

President has absolute immunity from civil suits arising from official actions taken while in office (but not personal acts)

No immunity for actions occurring prior to taking office

88
Q

president has the power to pardon those accused/convicted of…

A

federal crimes, NOT state

89
Q

treaties/agreements between the US and foreign counties negotiated by the president become effective upon…

A

ratification by 2/3 of the Senate

90
Q

if a treaty conflicts with other sources of law, these rules control: (conflicts with state law, fed law, constitution)

A

Conflicts with state law — treaty prevails
Conflicts with fed. law — most recent prevails
Conflicts with the Const. — Const. prevails

91
Q

presidential war power

A

can respond to attacks, direct US foreign reps, plan, and respond to emergencies

Congress declares war

92
Q

supremacy clause (when to know this is at issue in a question)

A

anytime you see a state law contradicting with a fed law — fed. laws trump conflicting state and local laws aLWAYS

93
Q

if fed law provides that it is the exclusive authority in a given area, it ..

A

preempts state and local laws in that area

94
Q

if a fed. law is silent on preemption, it implicitly preempts state law in three situations

A
  1. Mutual exclusivity — fed. and state laws are mutually exclusive (i.e., complying with both is impossible)
    States can set stricter requirements if compliance with both fed. and state laws is possible
  2. State law impedes a fed. objective
  3. Congress evidences a clear intent to legislate exclusively and/or preempt state law
    E.g., immigration and bankruptcy law
    If a state law doesn’t run afoul of any of the above three situations, it is likely valid under the Supremacy Clause
95
Q

highly tested: what is federal immunity from state law

A

a state cannot regulate or tax the federal government (federal govt does not need to abide by state environmental regulate bc immune)

ex. mayor trying to compel the base commander of a military camp to allow it to do something (fed lands)

96
Q

a state cant tax the fed govt, but they can tax…

A

federal employees the same that they would tax anyone else

97
Q

Article IV privileges and immunities clause

A

states cannot discriminate against out of staters with respect to fundamental rights unless there is:
1) substantial justifiication
2) no less restrictive means

98
Q

distinct from the Art. IV privileges and immunities clause, what is the 14th A version?

A

14th A P&I’s clause prohibits states from denying their citizens the rights of natural citizenship
(ex. Right to petition Congress for redress of grievances, vote for federal officers ports/waterways)

99
Q

the constitution only applies to

A

govt action (state, local, federal)

100
Q

When can the constitution apply to private conduct?

A

when a private entity performs a task traditionally performed by govt (private prisons, elections)

101
Q

anti-commandeering - what is it and what part of constitution does this come from

A

10th Amendment: feds cant compel state officials to act for it or regulate in a certain way (Printz)

102
Q

speech and debate clause

A

congress/senators have absolute immunity from statements made on the senate floor. cant be sued for these statements

103
Q

ex post facto laws

A

the state and fed govt cannot pass laws that retroactively alter a crim law to punish someone for past activity

104
Q

The EPC applies to the states through…
the EPC applies to the federal govt through….

A

The EPC apples to states through the 14th A
Fed govt through the DP clause of the 5th A

105
Q

what provisions of the constitution ONLY apply to states (so if you see congress passing a statute, these are not at issue)

A

1) The Contracts clause
2) P&I’d clause of Art. IV
3) P&Is clause of 14th A
4) Dormant CC

106
Q

what is a prior restraint

A

preventing speech before it occurs (1st A)

ex. Judge forbidding any press from doing stuff in her court room

107
Q

What is a gag order an example of? Are these okay?

A

Gag orders are a prior restraint.

They are rarely upheld unless it can be shown that they can pass SS and a less restrictive alternative is not available.

108
Q

A time place, manner restriction in a public forum will be upheld if

A

1) content neutral (if content based, then SS)
2) narrowly tailored to serve important govt purpose
3) leaves open adequate channels of communication

109
Q

The DP clause applies to the fed govt through…..
The DP clause applies to states through….

A

The DP clause is found in 5th A.
It applies to the states through the 14th A.

110
Q

the free exercise clause says

A

a neutral law of general application will always be upheld. (the goal cannot be to burden religion)

ex. church closes because they are not complying with fire code regs - not a free exercise violation because the fire code applies to everyone.

111
Q
A

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