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Bar Prep > Con Law > Flashcards

Con Law Flashcards

1
Q

Elements of Standing

A

1 - injury in fact
2 - Causation
3 - Redressability

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2
Q

Eleventh Amendment limitations

A

Citizens of one state can’t sue another state. Citizens of own state can’t sue their own state

Exceptions
Consent
Injunctions against state official (not judges or clerks)
Personal suit against state officer, with damages paid by state officer
enforcement of civil war amendments
structural waivers in Const

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3
Q

Adequate and Independent State Grounds (AISG)

A

Prevents SCOTUS from hearing case if decided on

adequate - fully resolve matter

Independent - without reference to federal law

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4
Q

Standard for power to tax

A

rationally related to raising revenue

If direct - must be apportioned evenly among states
If indirect - must be uniform in every state

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5
Q

Taxpayer standing

A

(1) Litigate how much they owe on taxes

(2) challenge expenditures made by Congress’s power to tax and spend that violate Establishment Clause

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6
Q

Impeachment of President

A

(1) House of Reps votes by majority if “high crimes and misdemeanors”

(2) Senate convicts by super majority (2/3)

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7
Q

Ripeness vs Mootness

A

Ripe - fully developed, P suffers real injury

Moot - live controversy. Not moot if:
-capable of repetition yet evading review
-D voluntary ceases wrongful action

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8
Q

Requirements for a valid TPM restriction (public and designated public)

A

1 - content neutral
2 - narrowly tailored to serve significant state interest
3 - Leave alternate modes of communication open

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9
Q

Speech restrictions on non-public forums (e.g. military bases, prisons)

A

Must be (1) viewpoint neutral, and (2) reasonably related to legitimate government interest. Kind of like rational review

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10
Q

Commerce Clause can regulate which activities

A

(1) channels
(2) instrumentalities
(3) activities that have a substantial economic impact on interstate commerce (aggregate, presumed if economic in nature)

Cannot aggregate noneconomic things

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11
Q

Anti-Commandeering Doctrine

A

Federal congress cannot commandeer state legislatures by either forcing them to enact or enforce specific legislation, or prohibit them from enacting new laws.

BUT can use taxing and spending powers to incentivize state legislative action

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12
Q

Advisory Opinions

A

Court cannot review advisory opinions, must decide an actual case or controversy.

Asking for constitutionality or interpretation of law without an actual case not allowed.

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13
Q

SCOTUS original jurisdiction

A

(1) ambassadors
(2) public ministers and consuls
(3) case in which state is a party

CANNOT be modified by Congress

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14
Q

When can Congress regulate purely private conduct?

A

To eliminate badges and incidents of slavery (Thirteenth Amendment)

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15
Q

Expressive Conduct regulation requirements (think flag burning)

A

(1) - furthers important government interest
(2) - unrelated to suppression of ideas
(3) - burden on speech no greater than necessary

Prohibiting nudity is constitutional
Prohibiting flag burning is not

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16
Q

When can a state discriminate against out of state commerce?

A

(1) - Necessary to state interest and no other non-discriminatory alternative

(2) - State as Market Participant

(3) - Traditional government function exception (can favor state and local gov entities when performing a traditional gov function)

(4) - Subsidies

(5) - Federal/Congressional approval

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17
Q

Dormant Commerce Clause

A

Pre-req: Congress has not enacted legislation on particular area of interstate commerce.

THEN, states can regulate it as long as it does not:
1 - discriminate against out of state commerce (subject to strict scrutiny)
2 - unduly burden interstate commerce (subject to clearly excessive review)
3 - purposely regulate wholly out of state activity

There are exceptions to discrimination against out of state commerce.

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18
Q

Presidential pardon power

A

only for federal offenses, not state

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19
Q

Fundamental rights for SDP

A

Right to travel

Right to Vote

Right to privacy (family reside together, contraceptives, marriage, sexual relations, avoid disclosure of medical info, parental rights to control upbringing and education, obscene material, refuse medical treatment)

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20
Q

Federal Preemption

A
  • Express

-Implied
——Conflict (indirect or direct)- impossible to comply with both state and federal
——-Field - rare, but if congress has occupied field so pervasively that state cannot regulate

State can pass MORE, but not LESS than federal

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21
Q

Pocket Veto

A

Congress adjourned within 10 day period following presentment. If President has not acted yet, then this is a pocket veto. Cannot be overridden

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22
Q

Are legislative vetos valid?

A

No, if the legislature reserves a right to disapprove of future execute actions, not allowed.

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23
Q

Suspect Classes for EQP

A

Race

Ethnicity

National origin

If state law, then Non-Citizens

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24
Q

Presidential immunity

A

Immune for civil liability for acts performed as part of official responsibilities.

NOT immune for acts committed before president or completely unrelated to carrying out the job

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25
Q

Intermediate Scrutiny - EQP

A

Gender - exceedingly persuasive justification. If separate facilities provided for men and women, then the facilities must be substantially equivalent.

Illegitimacy - almost always invalid though

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26
Q

Deprivation of Property as Job rules

A

If employee could only be fired for cause or terms of contract show they were entitled to more, then losing job can be a deprivation of property for PDP to kick in.

Even if at will, cannot be fired for unconstitutional reasons

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27
Q

When can Gov restrict speech on basis of content?

A

Obscenity
Incitement
Fighting words
Defamation
Commercial Speech

28
Q

Presidential Veto process

A

Once presented, President has 10 days to veto. Must send it back to house in which it originated.

Congress can override veto with 2/3 vote in each house.

29
Q

Strict Scrutiny

A

The law must be narrowly tailored to a compelling government interest

Narrowly tailored - least restrictive means

30
Q

When can state tax instrumentalities of commerce?

A

If the instrumentality has
(1) - situs within the state
(2) - sufficient contacts with the state

Must be fairly apportioned

31
Q

Strict Scrutiny - EQP

A

When either (1) suspect class, or (2) fundamental right

32
Q

Rational basis

A

law is rationally related to a legitimate government interest

33
Q

Intermediate Scrutiny

A

Law is substantially related to an important government interest

34
Q

When can a third party have standing?

A
  • special relationship (includes school and its students)
  • third party is unable to assert its own rights
  • disallowing would dilute third party’s rights
35
Q

Section 1983 claims

A

Can sue to enforce constitutional rights

Proper Ds? Government employees at any level

Must show that the person was acting under color of state law

36
Q

Political Questions

A

Not subject to judicial review when

(1) - Constitution assigns to another branch

(2) - matter is inherently one that the judiciary can decide

37
Q

Congress right to enforce 14th amendment (in Section 5)

A

must be congruent and proportional between the injury to be prevented and the means adopted to achieve that end.

Cannot expand rights or create new ones

38
Q

Delegation of legislative power

A

Congress may delegate power to agencies as long as it gives an intelligible principle to guide decision making

39
Q

Limitation on conditional spending

A

(1) must be for general welfare

(2) condition must be unambiguous

(3)condition must be related to the funds

(4) must not require states to violate constitution

(5) condition must not be coercive (the more money at stake the more likely it will be coercive)

Claim that it is commandeering state power is not valid if conditional spending

40
Q

Full Faith and Credit Clause

A

out of state judgments must be given effect if:
-PJ and SMJ proper
-final judgment
-on the merits

41
Q

Is negligence enough to trigger due process?

A

No, it must be intentional act

42
Q

Mathews v. Eldridge factors - what process is due?

A

1- private interest affected
2- value of additional procedures
3 - government interest and cost of additional procedural safeguards

43
Q

How to prove discrimination for EQP

A

Facial discrimination

Discriminatory in application

Discriminatory motive - if facially neutral, but had a discriminatory motive, invalid.

If only a disparate impact, then only rational basis

44
Q

Regulatory Taking

A

Generally, regulation not a taking. But sometimes it can rise to this level

Per se taking - Regulation (1) involves physical possession of property or (2) results in a total loss of economic value

Partial taking - (1) economic impact, (2) private party’s investment expectation, and (3) amount of people impacted

45
Q

Standard of review for Establishment Clause

A

historical practices and understandings are considered

46
Q

Commercial Speech - four part test

A

Prelim for analysis: Commercial speech is only protected if it is lawful and not false or misleading (if it is then you can totally restrict). If it is lawful and not false, then any regulation must meet the following:

-government interest must be substantial
-law must directly advance asserted interest
-must be a reasonable fit between means and end

47
Q

Privileges and Immunities clause (difference between Article IV and Fourteenth Am)

A

Article IV - state discriminates against citizens of OTHER states (N/A to corporations)

Fourteenth - state interferes with is OWN citizen’s rights, but only with issues of national citizenship (very limited)

48
Q

When will a private party be treated as a state actor?

A

(1) - carrying out an activity traditionally performed by government

(2) - Intwined with state actor (joint-venture)

49
Q

What is an exaction?

A

Local government can exact promises from developer in exchange for permits subject to some relevance limitations. Requires essential nexus and rough proportionality

50
Q

Incitement vs. Fighting Words

A

Incitement - advocates for use of force or unlawful action that is (1) imminent, and (2) likely to cause such action (among a group of friends, a mob)

Fighting Words - by their very nature, they are likely to incite immediate breach of peace (between two opposing parties)

51
Q

Obscenity

A

average person in contemporary community finds the speech

(1) appeals to prurient interest
(2) Depicts sexual conduct in a patently offensive way
(3) lack serious literary, artistic, political, or scientific value.

52
Q

Ex-post facto laws

A

Prohibits government from passing CRIMINAL laws that have retroactive effect.

Only applies to Civil violations if the retroactive effect is so punitive that it overrides non-punitive purpose

If retroactive civil application, it is given rational basis review

53
Q

Citizenship as a suspect class

A

Only when state discrimination.

With federal discrimination, it is allowed and only subject to rational review

54
Q

Freedom of the press

A

prohibits the government from restricting publishing lawfully obtained, truthful information regarding matter of public concern.

Regulation must survive strict scrutiny.

55
Q

Can states prohibit felons from voting in state elections?

A

Yes, under Section 2 of Fourteenth Amendment

56
Q

Tariffs vs. Export tax

A

Congress CAN impose tariffs (imports)

Congress CANNOT impose an export tax

57
Q

Exclusive President Power

A

Nominate principal officers

veto bills

prosecute/pardon federal offenses

recognize foreign governments

enter executive agreements

58
Q

States Taxing Federal Government

A

Direct - CANNOT do it unless congress authorizes

Indirect - can tax affiliates of government like employees on income tax, or contractors

59
Q

Standard of review for electoral regulations

A

If non-discriminatory and reasonably - rational basis

If discriminatory or severe - strict

60
Q

SCOTUS appellate jurisdiction

A

(1) decisions by lower federal courts
(2) decisions by highest state courts if based on federal law

CAN be modified by Congress - Article III Exceptions Clause

61
Q

One person, one vote

A

Congressional elections - Article I, S 2- district needs to be almost exact 3% or less

State or local - EQP, 10% or less

62
Q

Free Speech rights of government employee

A

Restricted if it is speaking pursuant to official duties.

If it is spoken as a private citizen on a matter of public concern, then balance the interests.

63
Q

Presidential Appointment and Removal Powers

A

President appoints, upon advice and consent of Senate, PRINCIPAL OFFICERS and Justices of SCOTUS.

President can appoint INFERIOR OFFICERS, Heads of executive committees, or courts, without Senate consent

Can generally remove principal officers without cause. Congress can impose for cause requirements on other officers. But cannot shield from removal with multiple officers.

64
Q

Legislative Immunity

A

No liability for statements made in regular course of legislative process

65
Q

welfare vs disability

A

welfare- pre-termination notice and hearing

disability - OK for post-termination hearing

66
Q

Abstention Doctrines

A

Pullman = unsettled law

Younger = Pending Criminal Case

Burford = Complex state regulatory scheme

Colorado River = Simultaneous state/federal cases

67
Q
A

Bar Prep (16 decks)

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