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Con Law Flashcards

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1
Q

Article I courts (legislative courts)

A

Set up by Congress to review agency decisions, military courts-martial appeal courts, ancillary courts with judges appointed by Article III appeals court judges, or administrative agencies and ALJs

Basically do small, unimportant stuff - Congress can reduce their salaries and fire them whenever they want

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2
Q

Article III judges are district court trial judges

A

Fully separate from all the other branches
Pay is untouchable
Allowed to serve until their death or retirement

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3
Q

Article III allows Congress to strip the federal courts of appellate jurisdiction

A

Congress can restructure lower federal courts - can consolidate jurisdictions, change the scope of what federal courts can hear.

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4
Q

Congress can change shit with the lower federal courts

A

This is always allowed and this power is derived from Article III (The Judicial Vesting Clause)

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5
Q

Original Jurisdiction

A

The court has the authority to hear a case right when it starts, rather than hear it on appeal

SCOTUS has both original AND exclusive
jurisdiction over cases between two states.

SCOTUS has original jurisdiction but not exclusive over cases involving:
Public Ministers
Ambassadors
Consuls
and cases where one state is a party

Congress cannot change the original jurisdiction of the SCOTUS

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6
Q

Congress can mess with the federal courts BUT

A

they can’t mess with SCOTUS

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7
Q

Appellate jurisdiction

A

Some courts have the power to review and modify the decision of a lower court

Cases can come through appeal by RIGHT or appeal by writ of certiorari (a discretionary appeal that judges have to agree to hear)

Congress can enlarge or restrict the supreme court’s appellate jurisdiction

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8
Q

Congress can fuck with

A

Supreme Court’s Appellate Jurisdiction - Congress can strip down to virtually nothing

Lower Federal Courts

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9
Q

Congress isn’t fucking with

A

Original jurisdiction of Supreme Court

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10
Q

11th Amendment

A

We don’t want citizens suing a state in federal court
b/c we want to limit the power of the FEDS and separate the jurisdiction of the state courts and federal courts (Federalism)

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11
Q

Under 11th Amendment, citizens can’t sue:

A

Their own state in federal court
Another state in federal court
State officials in their official (not private) capacity in federal court

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12
Q

Exceptions to the 11th Amendment

A

Waiver - a state can consent to being sued by citizens in federal court

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13
Q

The federal government CAN sue a state government in federal court

A

The federal government runs shit - the supremacy clause

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14
Q

Congress can abrogate a state’s immunity

A

Congress can enforce the provisions of the 14th Amendment through “appropriate legislation”

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15
Q

Congress can authorize suits and damages against states in Federal Court under…

A

the 13th (slavery),
the 14th (equal protection under the laws and civil rights), and
15th Amendments (cannot prevent voting based on race)

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16
Q

Two states may sue each other in federal court

A

as long as one state isn’t “secretly” bringing the suit on behalf of their citizens

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17
Q

Suits against state officers

A

A state citizen can only sue state officials if they are acting outside of their legal authority and violating federal law…and they can only sue to enjoin them from violating federal law (only for an INJUNCTION to stop them violating federal law and NOT money damages)

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18
Q

Can a citizen sue a state official in federal court for money damages?

A

No - violation of the 11th Amendment

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19
Q

Can you sue a state official in their PERSONAL CAPACITY if they will be paying OUT OF THEIR OWN POCKETS?

A

Yes

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20
Q

When can a citizen sue a state in federal court?

A

(1) State waives their right to be sued to virtue signal.
(2) Congress abrogates because a state was fucking around with civil rights.
(3) Federal government sues state in fed court - THIS IS ALLOWED
(4) you can sue a state official for injunctive relief if they are acting OUTSIDE the scope of their authority by violating FEDERAL LAW or IN THEIR PERSONAL CAPACITY IF THEY HIT YOUR CAR

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21
Q

11th Amendment doesn’t apply to city or town officials

A

ONLY state officials
You can sue a city official in federal court.

States have also lost their sovereign immunity in bankruptcy proceedings, so they can be brought into federal court by state creditors as well

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22
Q

Justiciability doctrine

A

Meant to ensure that courts deal with actual, real, and concrete issues - not theoretical or political issues

Courts only hear true “cases or controversies”
Plaintiff must have sufficient interest in the dispute to be able to satisfy this case or controversy - show (1) have been injured or (2) they will soon be injured
Injury can come from a violation of their statutory rights or their constitutional rights

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23
Q

If you are seeking injunctive relief, you must show a likelihood of future harm

A

Your case for standing will be strongest if you are alleging likelihood of future monetary harm

need Causation and Redressability

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24
Q

Third-party standing when

A

1) close relationship between plaintiff & injured party
2) injured party is unlikely to assert their own rights
3) assignee of a contract can sue even if the money will go to the assignor
4) organizational standing

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25
Q

Ripeness

A

The plaintiff is NOT entitled to review of a statute or regulation before its enforcement unless they will suffer some IMMEDIATE HARM or IMMEDIATE THREAT OF HARM

No speculative harm allowed - must be an existing controversy that warrants judicial intervention

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26
Q

Mootness

A

There needs to be an ongoing injury or there won’t be a case or controversy in front of the court

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27
Q

Exceptions to mootness

A

1) voluntary cessation
2) class action suits won’t be dismissed for mootness so long as one member of the class still has an ongoing injury
3) wrong capable of repetition but evading review

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28
Q

Wrong capable of repetition but evading review

A

The challenged action only lasts a short time, and it can’t be fully litigated prior to its logical end
The complaining party will likely get hit with the same injury again

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29
Q

If there are collateral consequences at play

A

the case is not moot

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30
Q

Political question doctrine

A

The federal courts won’t mess with certain constitutional violations b/c they are better left to a political breach or just inherently incapable of being resolved by the courts

Ex: Challenges to president’s foreign policy, challenges to the removal and impeachment process

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31
Q

Racial gerrymandering is when politicians split up the map so voters of one race are all grouped together to dilute their votes

A

illegal and can be decided by the courts

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32
Q

Political gerrymandering is dividing the map based on the political affiliation of certain populations to gain a voting advantage

A

Hard for the court to develop standards to judge or regulate this

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33
Q

Abstention

A

Federal courts shouldn’t interfere in certain cases which involve state law issues

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34
Q

Colorado River Abstention

A

Federal court should dismiss a federal case if there is an identical state case happening to promote judicial efficiency

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35
Q

Pullman Abstention doctrine

A

If there is a state law case which has an unresolved STATE law issue and a federal issue at the same time BUT
a resolution of the STATE LAW issue would eliminate the need for the federal court to decide the FEDERAL issue, the federal courts should abstain from hearing the case and let state courts resolve

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36
Q

Separation of Powers

A

Each branch of government has separate powers that can’t be interfered with by other branches

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37
Q

Powers of Congress

A

Necessary and Proper Clause - Congress can use any means not prohibited by the Constitution to carry out their authority

it cannot stand on its own, it HAS to be combined with another power

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38
Q

Congress can combine the Necessary & Proper Clause with the Commerce Power, what power does this give them?

A

UNLIMITED power

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39
Q

Congress used the Necessary & Proper clause along with the Commerce Clause to enact things like The Affordable Care Act

A

Congress controls commerce
Congress controls healthcare
and does whatever is Necessary & Proper for everyone to get some healthcare

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40
Q

Commerce Clause

A

is about moving money across state lines

Congress can also regulate commerce between the United States and foreign nations and with the Indian tribes

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41
Q

Can Congress regulate Indian reservations?

A

Congress can regulate the commerce of Indian tribes through the commerce clause, and
If you’re found not guilty in an Indian tribe court you can still be charged federally

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42
Q

Can the states regulate commerce within Indian tribes?

A

NO nor can they regulate the tribes themselves

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43
Q

Congress controls commerce which moves across state lines

A

States don’t actually control a thing

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44
Q

Three main aspects of interstate commerce which Congress controls

A

1) The channels of interstate commerce (river ways, highways, airways, the internet)

2) The instrumentalities of interstate commerce (peoples and things)
The planes, trains, and automobiles that operate in the channels listed above.

Most important
3) Things that happen within the state that has a SUBSTANTIAL effect on interstate commerce
Congress can regulate economic stuff that not just moved across state lines, but ANYTHING so long as it had a “substantial effect on interstate commerce”

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45
Q

Non-economic activities are NOT controlled by Congress

A

If something is grown in a state which has NO secondary market and is NOT sold at all across state lines or within the state

Congress can’t get involved in purely local matters which involve NO economic activity (ex. state law enforcement, family law, or state education)

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46
Q

The provision in the ACA which penalized you for not having insurance was characterized as a TAX penalty,

A

NOT a commerce clause issue

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47
Q

Private businesses (hotels, restaurants, etc) cannot discriminate based on race or gender even if they are not engaged in interstate commerce and operate fully within a state.

A

This is a provision in the Civil Rights Act

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48
Q

What Tax & Spending Power does Congress have?

A

Congress can tax & spend for the general welfare

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49
Q

Congress can tax to regulate or prohibit behavior so long as it raises revenue.

A

Tax will be valid if it raises revenue

Congress can’t tax anything they can’t regulate directly.

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50
Q

Direct Taxes

A

These are taxes on individuals and corporations from income and profits that are paid DIRECTLY to the government

Limitation - they must be apportioned evenly among states based on population and how rich the state is

Not a common test topic

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51
Q

Indirect Taxes

A

Secret taxes on goods and services

Limitation is that they must be applied uniformly in every state

Congress can’t tax exports (things leaving the US)

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52
Q

Congress can spend money on whatever they want as long as ….

A

it falls within one of their enumerated powers (defense, international trade, commerce)

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53
Q

The federal government can give money to the states, BUT

A

if the states want to take the money, they have to do what Congress wants them to do - it can be a condition to receiving the federal funds.

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54
Q

Conditions placed on federal funds must be:

A

Clear (unambiguous), non-coercive (no gun to the head), and related to a federal interest

Coercive is like telling someone a state they would lose 95% of their funds if they don’t do XYZ

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55
Q

Congress can regulate through spending conditions on states, but not tax penalties on states for things outside of their

A

enumerated powers

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56
Q

War & Foreign Affairs Powers - What can Congress do?

A

Raise an army or a navy.
Create military courts to punish WAR crimes
Declare war and during war/after war can make economic regulations they want in order to HEAL the country
Make treaties
Run shit when it comes to immigration, deport people, admit new citizens
Print money and punish counterfeiting
Establish post offices
Control copyright and patent issuing

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57
Q

Federal police can only regulate

A

Washington D.C.
Indian reservations
Lands owned by federal government
Armed forces (the military)

Violations of federal law and everything else falls to the state police

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58
Q

Remedy under Section 5 of the 14th Amendment

A

Must be congruent and proportional

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59
Q

Difference between the Commerce Clause and Section 5 of the 14th Amendment

A

Commerce clause - focused on money
Hotels = Money = Commerce = Affect on Interstate Commerce

Section 5 - focused on civil rights

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60
Q

Congress can actually legislate against racial discrimination, whether its public OR private

A

Congress can also control and legislate against voting discrimination under the 15th Amendment

Congress prefers to use the commerce clause because it is easier and more flexible to legislate with the commerce clause

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61
Q

If Congress appropriates money for something, can the president overrule it?

A

No - the president can’t unilaterally overrule it

Congress controls the power of the purse.

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62
Q

Powers of the President

A

1) Control executive agencies
2) Immunity from civil lawsuits for money damages while in office (NOT immune from criminal prosecution, but impeachment will come first)
3) Executive Privilege
4) Power to Pardon
5) Power to ensure that the laws are “faithfully executed” - the Take Care Clause
6) Commander in Chief - can’t declare war but can act quickly to repel a sudden attack
7) Treaty Power & Foreign Affairs Power
8) Executive Orders/Agreements
9) Appointment Power
10) Removal Power

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63
Q

President’s Treaty Power & Foreign Affairs Power

A

On his own - he can deploy troops to foreign countries, make executive agreements, foreign negotiations

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64
Q

The Take Care Clause - If Congress appropriates money for a certain thing

A

President cannot refuse to spend them he has to make sure the laws are faithfully executed

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65
Q

President has pardon power

A

Federal crimes ONLY - can pardon CRIMINAL cases only, NOT civil crimes, can’t pardon for impeachment or the crime underlying impeachment

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66
Q

Treaty is an international agreement between the United States and a foreign country that is

A

NEGOTIATED by the President with advice and consent of the Senate

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67
Q

Treaties need to be RATIFIED by 2/3 approval vote of the Senate

A

The House of Representatives doesn’t have anything to do with treaties, it’s ONLY the Senate and the President

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68
Q

Self-executing treaty

A

Comes law immediately

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69
Q

Non self-executing treaty

A

Additional legislation needed for it to become law

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70
Q

Federal law vs. Self-executing treaty

A

Whichever one was adopted last wins

Self-executing treaty beats state law

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71
Q

Executive Orders/ Agreements

A

The President can enter into agreements without the consent of the Senate

Executive orders - usually deal with domestic policy and the
Executive agreements - deal with agreements between the US and foreign nations

Congress can overturn an executive order by legislation

Federal law trumps an executive agreement or order

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72
Q

The President can appoint principal officers with ADVICE AND CONSENT of the Senate

A

Principal officers basically people without bosses
Cabinet secretaries, federal judges, ambassadors, the big dogs

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73
Q

Congress appoints inferior officers (more like gives appointment power to other people)

A

People WITH bosses that supervise them and boss them around

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74
Q

Congress can give appointment power to:

A

The president
Power to appoint inferior officers to the heads of departments
Power to appoint to the lower federal courts

BUT “Congress does not appoint, they appoint other people to appoint”

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75
Q

Unless removal is prohibited by a certain statute

A

The President can fire whoever they want
An executive branch official
Principal or inferior officers

The President appoints and removes

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76
Q

Congress can reserve to OTHER branches the power to remove inferior officers, but they can’t reserve that power for themselves

A

Congress can impose limits on what the president can remove an inferior officer for

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77
Q

Congress can limit some positions to “good cause” removal

A

Can impeach
Can vest certain removals to department heads or the courts
Can conduct little oversight meetings and investigate

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78
Q

Interbranch Relationships

A

Congress limits the executive branch through impeachment

The House actually “impeaches” them and the Senate “tries the case”

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79
Q

Impeachment is ALWAYS a political question

A

Impeachment doesn’t actually REMOVE them from office, it just means there will be a trial in the senate

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80
Q

To get impeached in the House, we need a majority vote

A

To get convicted in the Senate, need 2/3 vote
Impeachment is not a criminal conviction, it just prevents you from holding office

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81
Q

2nd way Congress messes with the Executive branch - Appropriations

A

Requires the vote of both houses and a possible veto by the President

President can’t just spend funds in the treasury - needs appropriation by Congress

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82
Q

3rd way Congress messes with the Executive branch: investigations

A

Congress can hold investigations to discover information needed to pass legislation and expose corruption or inadequacies in the executive branch in order to try to correct them

Can subpoena people to testify and punish people with contempt if they don’t cooperate

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83
Q

Legislation by Congress always must be presented to the President - and he can veto it.

A

President has 10 days to veto legislation once Congress approves it
If President does not veto it within 10 days, it becomes law
Congress can then override the vote with 2/3rd vote from EACH house (both Congress and Senate)

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84
Q

Non-Delegation Doctrine

A

Congress can delegate their powers to the executive branch

but they cannot give away some powers

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85
Q

Powers Congress can’t give away

A

Making laws
Declaring war
Impeaching people

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86
Q

Congress can give their rule-making authority to executive agencies so long as they give them a “clear and intelligible principle” to work with…

A

a clear statement describing what kind of power they are slinging around

it has to say:
What agency is getting a little slice of Congress rule-making power
The scope of the power to be given
The policy Congress seeks to advance by giving their power to the agency

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87
Q

Legislative Vetoes

A

Bicameralism - approve the bill in the house and Senate
Presentment - then we have to present the bill to the president

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88
Q

Judicial Immunity

A

Judges have absolute immunity for any decisions made in their official capacity as a judge

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89
Q

Executive immunity

A

Judges have absolute civil liability when conducting official acts
But no immunity for acts committed in the President’s private capacity or acts BEFORE he became president

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90
Q

Legislative immunity

A

Speech and debate clause in the constitution says that people in Congress and in the Senate AND their assistants are immunized from criminal and civil liability for statements made ON the house/Senate floor while they are engaged in legislative acts

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91
Q

Exceptions to legislative immunity

A

It does NOT protect against criminal acts OUTSIDE the scope of legislative duties

It does NOT protect against press releases and saying things to the public OUTSIDE OF THE FLOOR of Congress/the Senate

92
Q

Congress cannot enact a law which forced the state legislature to enact a law

A

This is unlawful commandeering of the state legislature & a violation of the 10th Amendment.

93
Q

Commandeering

A

Cannot tell a state how to regulate
Cannot force a state to adopt a law
Cannot force a state agency to adopt a regulation

94
Q

Dormant Commerce Clause

A

Local laws are unconstitutional if they place an undue burden on interstate commerce

95
Q

Dormant Commerce Clause test - Does the state law discriminate against out-of-staters?

A

Laws which discriminate against interstate commerce ON THEIR FACE
law itself says “we are discriminating against other states” - always shut down by the courts - to win - the state has to show that the discriminatory law serves (1) a LEGITIMATE PUBLIC PURPOSE and (2) NO reasonable alternative means exists (Could the purpose be served by reasonable nondiscriminatory alternative means?)

Pike Balancing Test - neutral facing (benefits outweighs the burdens)
The law itself doesn’t really talk about discriminating against other states - but when you look at it closer, it kind of does.

96
Q

Two exceptions to when states CAN violate the dormant commerce clause are when

A

(1) Congress approves it, and (2) when they are acting as a player in the market, not a referee

96
Q

Exceptions to the Dormant Commerce Clause

A

Congressional Approval Exception - Congress can authorize states to violate the Dormant Commerce Clause.

Market Participant Exception - When the state acts as a business person rather than a REGULATOR and are spending their own money to buy goods and services rather than going through private companies…they can discriminate

96
Q

Express Preemption

A

When the Federal government literally says “do not make any laws in this area” - like federal aviation laws

96
Q

Under the Supremacy Clause,

A

Federal Law preempts state law

97
Q

Saving clause exceptions

A

where the federal government will expressly preempt a law or group of laws then allow states to make small state-specific laws which would otherwise be preempted for things like local safety concerns and niche issues.

98
Q

Implied Preemption

A

If the law doesn’t actually SAY outright the states are preempted - the courts will look at a few things to see if Congress MEANT for states to be preempted

Impossibility preemption
Obstacle preemption
Field preemption

99
Q

Impossibility preemption

A

Mutual exclusivity preemption meaning you can’t comply with BOTH the federal and the state law at the same time

100
Q

Obstacle preemption

A

if a state law impedes the achievement of a federal objective
Sometimes the federal government has a strong purpose in mind then the state creates a law which fucks up that purpose or makes it harder to carry out
Not allowed

101
Q

FIeld preemption

A

Certain sectors where Congress has legislated so extensively that they just run shit

Ex. Immigration, OSHA, water quality laws, Airline regulations, etc.

102
Q

Constitution only applies to STATE ACTION by the ….

A

Government

103
Q

Bill of Rights applies only to the Federal Government but it got incorporated to the state/local governments through the due process clause of…

A

the 14th Amendment

104
Q

Who can’t violate the Constitution?

A

Private citizens
private companies

105
Q

Three exceptions to the STATE ACTION DOCTRINE

A

1) The 13th Amendment/Slavery/Racial Discrimination

2) Public Function Exception - basically only applies in a narrow situation where a private company or person is role-playing as the government
(Ex. The court said the town had to follow the Constitution because they were performing “traditional and exclusive” government functions)

3) Entanglement - If the state authorizes, encourages, or helps a private actor carry out unconstitutional activity, the private actor could be considered a state actor. (Argue whether there is truly enough pressure to make the government so intertwined that the private party was acting as a state actor)

106
Q

Just because a private company might get a government subsidy, this doesn’t mean they are ….

A

“entangled in the government.”

107
Q

Procedural Due Process

A

The government needs to give you fair process if they want to take your:
Life, Liberty, or Property (includes tenured public employment)

108
Q

The government can commit a due process violation if they don’t give you proper procedure before taking away your ENTITLEMENTS.

A

Entitlement: means you have a reasonable expectation you are going to keep getting some shit you’ve already been getting (welfare benefits, disability benefits, tenured employment)

109
Q

Procedural due process balancing test

A

Can additional procedures discover more facts?

Government interest in efficiency
Importance of interest of individual
more important = more procedure
Entitlements

110
Q

Substantive due process

A

about whether the government has adequate reason for taking away your most important rights — “fundamental” rights

111
Q

If a right is determined to be “fundamental” and the government wants to get their hands on it, the law will face what level of scrutiny?

A

Strict Scrutiny

112
Q

If the right is not fundamental, what level of scrutiny?

A

Rational basis

113
Q

Non-fundamental rights

A

–Anything economic (right to have a job, practice a trade, make money, any type of shit involving money)
–No right to physician assisted suicide
–No right to education (but we DO have a right to choose our child’s education)
–No right to be a candidate in an election
–No right to foreign travel
–No right to abortion

States have broad discretion on how to handle this, so these laws only meet rational basis

114
Q

What rights are fundamental?

A

–Right to keep your family together
–Right to marry
–Right to procreate
–Right to vote
–Right to custody of your children
–Right to picket
–Right to refuse medical treatment (unless you’re mentally insane and they need you to be normal to stand trial)
–Freedom of religion
–Right to travel within the states
–Right to purchase & use contraceptives
–Right to control raising of children
–Freedom of speech & association

115
Q

Fundamental right to vote

A

–But states can have an age and residency requirement to vote, but not POLL TAXES allowed!
–Cannot restrict voting based on property ownership

116
Q

What is due process?

A

About the government interfering with people’s rights

117
Q

Equal protection

A

is about whether the government is treating people EQUALLY under the law

118
Q

When the government LIMITS EVERYONE’S ABILITY to do something, it’s…..

A

a due process clause issue

119
Q

When a government limits A CERTAIN CLASS OF PEOPLE from doing something, it’s..

A

an equal protection issue

Plaintiff must show that he or she is being treated differently from others
AND
That the discrimination either appears on the FACE of the law, OR
that there is discriminatory intent combined with a discriminatory IMPACT of the law

We need BOTH a discriminatory intent AND a discriminatory impact

120
Q

If an answer choices says “the 14th Amendment” this ONLY applies to state and local governments

A

NEVER applies to the federal government

121
Q

Equal protection is applied to the federal government through the….

A

Due process clause of the 5th Amendment

122
Q

Ex. the TSA at the airport is being racist against middle eastern people

A

Due Process Clause of the 5th Amendment

123
Q

If the problem is talking about the STATES fucking with people and treating certain classes of people differently than others

A

Violation of the 14th Amendment Equal Protection clause

124
Q

Equal Protection - Strict Scrutiny

A

Law must be NECESSARY to achieve a COMPELLING GOVERNMENT PURPOSE

We need the LEAST RESTRICTIVE alternative - the law has to be a perfect fit and not over-inclusive or under-inclusive AT ALL.

125
Q

What falls under Equal Protection Strict Scrutiny?

A

–Race
–Alienage
–National Origin
–Travel (BETWEEN states - NOT overseas)
–Voting

126
Q

Equal Protection - Intermediate Scrutiny

A

Law is SUBSTANTIALLY RELATED to an IMPORTANT GOVERNMENT PURPOSE
Need the law to be NARROWLY TAILORED

127
Q

What falls under Equal Protection Intermediate Scrutiny?

A

–Legitimacy (non-marital children)
–Gender
–Sexual orientation
–Undocumented alien children (like a law depriving them of public education)

128
Q

Equal Protection - Rational basis

A

Law is (hypothetically) RATIONALLY related to a legitimate government interest

right answer quite often

129
Q

What falls under Equal Protection Rational Basis?

A

–Age is NOT a suspect class
–Being disabled does not put you in a suspect class
–Being poor is not a suspect class
–Alienage related to self-government
–Congressional regulation of alienage
–EVERYTHING else

130
Q

Who has the burden with rational basis?

A

The challenger has the burden and they ALWAYS lose.
Government only has to prove plausible rational basis - regardless of their actual reasons

131
Q

Who has the burden with intermediate & strict scrutiny?

A

–The government!
–With strict scrutiny, government always loses

132
Q

Racial classifications that benefit minorities, are subject to _______ scrutiny

A

strict

133
Q

Gender-based classifications are subject to _______ scrutiny

A

intermediate

Government may treat women and men differently if:
–There is an EXCEEDINGLY PERSUASIVE justification for the separate treatment
–The separate facilities are SUBSTANTIALLY EQUIVALENT (like separate male and female dorms or bathrooms)

134
Q

Gender classifications benefitting women are sometimes allowed, but

A

they cannot be based on role stereotypes

135
Q

If a law is meant to remedy past discrimination and historical differences in opportunity,

A

there can be a gender classification involved

Ex. if women were historically not allowed to be firefighters, a law mandating that a certain percentage of the firefighter squad must be women would be constitutional.

136
Q

Alienage - Laws that straight up discriminate are subject to:

A

Strict Scrutiny
A law saying ONLY a U.S. citizen can practice law or hold certain jobs or receive medical or social security benefits… this will be met with STRICT SCRUTINY

137
Q

Laws about documented alien children are subject to:

A

Intermediate Scrutiny

138
Q

Self-goverment, democratic process, or IMMIGRATION is subject to:

A

Rational basis
Some privileges can be reserved for U.S. citizens, like: (1) voting, (2) being a teacher/cop, (3) serving on a jury, (4) being a probation officer.
Also, if Congress regulates immigration = rational basis standard

Remember: Laws related to undocumented (ILLEGAL aliens) are subject to rational basis only.

139
Q

Discrimination against people whose parents are not married will be met with _______ scrutiny

A

Intermediate

Ex. People with parents who are married get a tax benefit, but those who are not, don’t.

140
Q

Sexual orientation discrimination (could be an experimental question) met with ______ scrutiny

A

“Heightened scrutiny” but not necessarily intermediate scrutiny

Rational basis +

141
Q

Trick about age to make you feel sorry for the person, question will say there’s a mandatory retirement age but the person is physically fit

A

The answer is NOT that the government will have to show a compelling interest
this is RATIONAL BASIS.
Old people is not a suspect class

142
Q

Being a drug addict
Being poor

A

NOT suspect classifications

143
Q

Economic regulations
Licensing requirements
People with physical and mental disabilities
Minimum & maximum prices on goods or wages - this is economic - met with ________

A

Rational basis

144
Q

Privileges & Immunities Clause of Article 4

A

Prevents discrimination against out-of-staters when it comes to (1) work opportunities (ability to earn a livelihood), or (2) fundamental rights

WORK 4 ME

145
Q

Let’s say Rainbow Brown wants to be admitted to the Nevada bar, but he isn’t a resident of Nevada, the rulebook says to be admitted to the Nevada bar, you HAVE to be a resident of Nevada. This is a violation of….

A

Privileges & Immunities of the 4th –> Work 4 ME

You can’t discriminate against out-of-staters when it comes to working - the discrimination has to relate to the ability to earn a livelihood.

146
Q

You can tax out-of-staters higher for hobbies (like hunting, recreational fishing, etc) and that will ….

A

NOT violate the privileges & immunities clause

147
Q

Who CANNOT bring a claim under the Privileges & Immunities Clause?

A

Corporations and aliens - because it is about discrimination against out-of-state citizens - because they ARE NOT REAL citizens

148
Q

If the bar exam question is about discrimination against out-of-state corporation, the answer is…

A

Dormant Commerce Clause

149
Q

If the bar exam is asking a question about discrimination against citizens (non-aliens and non-corporations), the answer will be

A

Privileges & Immunities clause of the 4th

150
Q

Trick alert: A question where a state is discriminating against it’s own citizens, not citizens of other states…

A

This is NOT a violation of the Privileges & Immunities Clause because it ONLY relates to out-of-staters

151
Q

Privileges OR Immunities Clause of the 14th

A

Forbids state infringement of the right to travel BETWEEN states

152
Q

Durational residency requirements are subject to _______ scrutiny

A

STRICT

153
Q

A state CANNOT give REDUCED state benefits to citizens that have been in a state for two months v. citizens that have been there for a year.

A

If you move states, they cannot stop you from getting welfare benefits or make you wait a year.
Same for in-state healthcare benefits and food stamps.

BUT there are TWO exceptions

154
Q

Two exceptions to residency requirements

A

Things that DO NOT involve the “necessities” or life, like healthcare and welfare benefits - are EXEMPT from the rule…
1) In state tuition
2) Obtaining a divorce

155
Q

New citizens have full rights to social benefit programs AND

A

50 days is the maximum time you have to wait when you move to a new state to begin voting

ANYTHING OVER ONE YEAR is too long for any durational reisdency requirements

156
Q

For INTERSTATE travel, any restrictions on foreign travel will be met with _______

A

Rational basis review

157
Q

Takings

A

The government has the power under the 5th Amendment to take private property for public use in exchange for reasonable compensation

158
Q

What is “public use?”

A

Basically means for ANY reason they want.
Anything the government REASONABLY BELIEVES will BENEFIT the public

159
Q

Even if property is not USED at all by the general public - they can even take your house for aesthetic reasons, as long as…

A

it BENEFITS the public - that is good enough to condemn your property - for JUST COMPENSATION

160
Q

What is JUST COMPENSATION?

A

It means you will be entitled to FMV at the time of the taking

161
Q

Two types of takings

A

Possessory takings
Regulatory takings

162
Q

Possessory Takings

A

If the government takes your property from you, it is a taking…
Even if the government installs a tiny power line on your roof, it is a taking.

163
Q

Supreme Court case where some dudes land was near a national park and the government allowed an easement for tourists to walk across his land to get to the park…and then they tried not to pay him - what is this?

A

A PERMANENT taking
JUST COMPENSATION is needed

164
Q

Regulatory Taking

A

The government can use their police power to regulate land with things like zoning without having to pay as long as it is for health, safety, and welfare of the community

It is a “regulatory taking” if they go too far with their “zoning” plan and destroy all the value in your property

165
Q

Two ways to prove a regulatory taking:

A

If the regulatory taking leaves NO REASONABLE ECONOMIC USE OF YOUR PROPERTY, or if the taking UNREASONABLY interferes with DISTINCT INVESTMENT BACKED EXPECTATIONS you had in the property

166
Q

In Penn Central case, SCOTUS developed a THREE part test to determine whether it is a regulatory taking

A

1) Economic impact of the ordinance (historical landmark ordinance had a huge economic impact on the train station - can’t build their office spaces and make money)

2) Investment-backed expectation (permits, construction crews began working)

3) Character of government action (Does the regulation benefit the public at the cost of a huge burden on a single property owner? If so, the burden may be unfair. Is the restriction just for monetary reasons or truly for the public good?)

167
Q

You can bring an action claiming a taking even if the regulations EXISTED at the time…

A

You bought the property

168
Q

A temporary taking of a property is NOT a taking, it must be

A

PERMANENT

169
Q

If the government says you can’t build on your property for a few weeks because there is a parade coming through town - this is….

A

NOT a TAKING

170
Q

Taking is FMV of property, you don’t get:

A

Expected profits or any additional compensation

171
Q

Contracts Clause

A

A state law that substantially impairs PREEXISTING contracts is unconstitutional UNLESS the state can establish that the law is a reasonable way to achieve a significant and legitimate public purpose

172
Q

Contracts Clause is only about EXISTING contracts…

A

it has NOTHING to do with people’s ability to contract in the future
because this NEVER applies to the Federal government

ONLY for state laws which interfere with EXISTING contracts

173
Q

Bill of Attainder

A

a state of federal law that inflicts punishment on specifically named persons (or very easily identifiable persons) without them going to trial

174
Q

Ex-Post Facto Clause

A

ONLY applies to criminal cases, not civil cases

Two ways to violate this prohibition against ex-post facto laws
1) Retroactively increasing the penalty of a crime & trying to apply it to a person who was ALREADY CHARGED WITH THAT CRIME is NOT allowed
2) You cannot make something that was legal when it was done, illegal later on, then punish someone for it.

175
Q

Freedom of Religion

A

You can believe whatever religion you want and the government is prohibited from interference with you practicing your religion of choice

If a law targets religious practices specifically, it is NOT allowed

176
Q

Freedom of religion example:
You are not allowed to kill buffalo for a Native American religious ceremony.

A

This law is NOT allowed -
it directly targets religion and is motivated by a desire to suppress Native American religion

But if there is GENERAL, NEUTRALLY APPLICABLE LAW that just says “You aren’t allowed to kill buffalo”…and EVERYONE has to follow it - THEN IT’S FINE

177
Q

The law itself must be motivated by a desire to interfere with religion…if it is not a neutral law and motivated by a desire to discriminate THEN _______ scrutiny will apply

A

STRICT

If it’s neutral = rational basis

178
Q

The Establishment Clause

A

Forbids the government from forcing people to observe religious practices and prevents the government from unduly benefitting religion (essentially separates church & state)

179
Q

Establishment Clause - no longer uses the Lemon Test

A

The Lemon test took into account the purpose, effect, and potential entanglement of government with religion

180
Q

Establishment clause - New test

A

Looks at whether government actions violate the Establishment Clause only by reference to historical practices and traditions

181
Q

Schools can’t force kids to/into:

A

Salute the flag
School prayer

Can’t set aside a minute in the morning to do a silent moment for VOLUNTARY PRAYER - you can only have a “regular moment of silence”

Teacher-led or student-led prayer at football games or in class is NOT allowed

182
Q

Can the government give financial aid to benefit religion?

A

Not for religious instruction

But the government can give money to a defined class of people without mention of religion or using any religious criteria - then if those people HAPPEN to use it for a religious purpose, that’s fine.

183
Q

Freedom of Speech
Prior Restraints

A

Highest form of a restraint on speech is judicial order to STOP speech BEFORE it even occurs - “gag orders”

STRICT SCRUTINY - the government has to show that a SPECIAL SOCIETAL HARM will occur if the speech is not stopped at the outset
(Ex. details about ongoing military operations, highly confidential trade secrets about a business, publicizing information about a contagious disease outbreak)

184
Q

To be valid, a gag order must:

A

-Be reasonable, narrowly drawn, and definite;
-There must be an injunction given by the court; AND
-There has to be a final determination by a court of the validity of the restraint

No gag order to the press to prevent bad pretrial publicity from harming a court case - not allowed

185
Q

Licenses for speech

A

The government can require a license for you to host a parade but there must be an IMPORTANT REASON for the licensing AND there must be very little discretion vested in the licensing board

Must be FAIR PROCEDURAL SAFEGUARDS (such as a quick determination of whether you will get the license or not) and the licensing decision must be subject to REVIEW BY THE COURTS

Fair procedural safeguards…reviewable by court

186
Q

Void for vagueness

A

Law about speech can be void for vagueness if a REASONABLE PERSON OF COMMON INTELLIGENCE WOULD NOT BE ABLE TO DETERMINE WHAT’S PROHIBITED BY THE LAW

The person actually has to KNOW what they can’t say in order to be charged with breaking the law

187
Q

A law prohibiting material that is HARMFUL TO MINORS
A law prohibiting “annoying” language or “cursing”

A

TOO VAGUE

188
Q

Overbreadth

A

A law is considered OVERBROAD if it regulates way more speech than is necessary
Prohibits both PROTECTED and UNPROTECTED speech

Can’t prohibit ALL live entertainment in the city just to stop a few strip clubs
Can’t prohibit ALL leafleting at the airport

189
Q

Public forums (streets, sidewalks, trees, public parks)

A

The regulations MUST BE BOTH subject matter and viewpoint neutral

190
Q

What is subject matter neutral?

A

It bans all topics regardless of a particular viewpoint

Ex: “we ban all billboards in the whole town” - it bans all billboards, regardless of the message they convey

191
Q

What is viewpoint neutral?

A

A regulation is viewpoint neutral if it does not favor one viewpoint over another within a particular topic

Ex. If a jail said, “no picketing at all outside of the jail “ - this IS viewpoint neutral.

If a jail said “No anti-jail picketing outside the jail” this is NOT viewpoint neutral because it specifically singles out a particular viewpoint to be banned.

192
Q

Public forum regulations must:

A

be a time, place, or manner restriction that SERVES AN IMPORTANT GOVERNMENT PURPOSE AND LEAVES OPEN ADEQUATE ALTERNATIVE PLACES FOR COMMUNICATION

193
Q

Time, place, manner regulations example

A

Regulation: you can’t use a megaphone at night in park to protest

Important purpose (not to annoy everyone), and it leaves open normal speech at night

Time, place, manner regulations in public forums do not need to be the LEAST RESTRICTIVE MEANS

194
Q

Limited or “designated” public forums

A

Government properties the government COULD close to speech IF THEY WANTED…but they choose to OPEN them to speech

The government can have certain content-based restrictions on speech SO LONG AS they are REASONABLE AND VIEWPOINT-NEUTRAL

195
Q

Content-based restrictions on speech in public and limited public forums will be met with ________ scrutiny

A

STRICT

Denial of speech must be necessary to serve a COMPELLING government interest

196
Q

Non-public forum (courthouses, post-offices, airports)

A

Government properties which the government CAN FULLY CLOSE TO SPEECH

Government can regulate speech as long as the regulation on time place and manner is:
-Reasonable (rational basis standard); &
-Viewpoint neutral (they aren’t trying to suppress a singular point of view b/c they don’t like it)

197
Q

***Private Forum

A

No free speech protection

198
Q

***Public forums & Limited public forums

A

Time, place, manner.
Narrowly tailored.
Important interest.

If content based restriction, strict scrutiny.

If limited - we might be able to limit off-topic speech by subject matter discriminating if we open it up for a SPECIFIC reason.

199
Q

***Non-public forum

A

Does not need to be subject matter neutral, just viewpoint neutral
Rational basis

200
Q

Advertising on buses

A

Designated public forum because the government chooses to “open up the side of their bus” for advertising.

No content based restrictions on the sides of buses

201
Q

Symbolic speech

A

The government can regulate conduct if:
(1) There’s an important unrelated to the suppression of speech; and
(2) The restraint on speech is no greater than necessary

can burn flags, can burn a cross

202
Q

Hate speech/True Threats

A

If you burn a cross with INTENT TO THREATEN a specific person, this is a TRUE THREAT, and is NOT PROTECTED

Sentencing enhancements for hate crimes are constitutional

203
Q

Fighting words

A

1) Statute just banning “fighting words” - answer is usually over-broad.

2) Can’t just be offensive or annoying - must be a genuine risk of IMMINENT incitement of ILLEGAL ACTIVITY - it is UNPROTECTED.

204
Q

Government worker speech - speech in the course of official duties

A

NOT protected

205
Q

Government worker speech - Water cooler talk
Two tests to determine if speech UNRELATED TO your official duties will be allowed:

A

1) If the speech DOESN’T involve a matter of public concern and it NOT in the course of your official duties, you can be punished/fired if it is DISRUPTIVE TO THE WORK ENVIRONMENT

2) If the speech DOES involve a matter of public concern and is NOT in the course of your official duties, there is a balancing test which balances out your right as a CITIZEN to comment on matters of public concern against the government’s interest in the efficient performance of their workplace environment

206
Q

Government contractor is the SAME as government employee!

A

If they try to discriminate against a government contractor by not giving him some construction work because of political views, this is violation of his rights

207
Q

Speech in Public Schools

A

You cannot have speech on school grounds that promotes illegal activity

Public schools = no promotion of illegal activity

208
Q

Nudity

A

It is constitutional to ban ALL public nudity.
It’s NOT a form of political expression
–Can pass regulations on how strip clubs and live entertainment is performed
–They can also zone adult entertainment

209
Q

Obscenity is unprotected

A

Three part test to see if it’s obscene and thus not allowed:
–Appeals to the prurient interest in sex (shameful or morbid) –> local standard
–Patiently offensive under the law –> local standard
–Lacks any political, scientific, artistic, or literary value

PPP Loans
Prurient - Patently (Offensive) - (NO) Political Value (or literary or artistic)

210
Q

Obscenity - child porn

A

PER SE obscene
must depict sexual conduct of a child to be considered child porn or be intended to elicit a sexual response

211
Q

Defamation (slander/libel) is unprotected speech

A

When it comes to public figures and officials we need to show ACTUAL MALICE and for private figures, we only need to show NEGLIGENCE to bring defamation claims

212
Q

Commercial speech

A

Speech done to make a profit or on behalf of a company making a profit

213
Q

When commercial speech is false or wildly misleading - it is NOT protected

A

Don’t even have to KNOW IT IS FALSE - SO LONG AS IT IS

214
Q

Truthful commercial speech can be regulated IF

A

Intermediate scrutiny test (regulation must be narrowly tailored - but doesn’t have to be the least restrictive alternative) is met

–The speech concerns lawful activity an is not misleading;
–Substantial government interest is at play;
–The regulation is no more extensive than necessary to serve the government’s interest

215
Q

Time limits on advertising to victims of violence are fine

A

narrowly tailored and there’s an important interest to protect

can’t have a TOTAL BAN on truthful advertising, that would not be narrowly tailored

But can zone advertising - ex. prohibit election advertising within 100 feet of a polling center

216
Q

Freedom of the Press

A

Right to publish most things without being censored

Press doesn’t have any special 1st Amendment privileges - they just can’t be singled out

Warrant is still needed to search a newsroom

Press still has to disclose their confidential sources at grand juries

217
Q

The press may publish lawfully obtained truthful information, IF

A

IT IS IN THE PUBLIC RECORD, even if it is highly sensitive

218
Q

Freedom of Association

A

1st Amendment right to gather in groups for any lawful purpose

Any law that prohibits or punishes group membership will be met with STRICT scrutiny

219
Q

Punishment of people for group membership

A

You have to have ACTUALLY AFFILIATED with a group, KNOWING OF ITS ILLEGAL ACTIVITIES…AND WITH…THE SPECIFIC INTENT OF FURTHERING THOSE ACTIVITIES

220
Q

Freedom to associate doesn’t apply to private groups who aren’t really political in nature

A

Two exceptions:
1) Dinner party exception - clubs that are fully intimate and private CAN discriminate, but if they are not FULLY PRIVATE AND OPEN TO NON-MEMBERS OR FOR BUSINESS PURPOSES

2) When it comes to expressive activity, if the whole point of your group is to express an ideological viewpoint, you CAN discriminate

221
Q

All government employee’s must take an oath to the U.S. Constitution

A

You can’t have a loyalty oath as a condition of public employment
But you can have an employee take an oath not to overthrow the government and support the constitution

222
Q
A

MBE (9 decks)

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