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Con Law Flashcards

1
Q

What are the 4 requirements to establish that a case or controversy exists?

A

Standing of P
Claim is Ripe
Claim is not Moot
Does not pose a Political Question

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2
Q

Article 3 limits the power of federal courts to what?

A

Cases and controversies

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3
Q

What are the 2 requirements to have constitutional standing?

A

Personal Injury-doesn’t have to be physical or monetary.
Causation and redressability

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4
Q

Regarding standing, what is causation?

A

That the defendant caused the injury.

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5
Q

Regarding standing, what is redressability?

A

That a court decision would remedy the injury.

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6
Q

When are the 3 times one can sue on behalf of a 3rd party??

A

close relationship
3rd party unlikely to be able to do it.
Organizations sometimes

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7
Q

When can an organization sue on behalf of a member…3 requirements?

A

Member would have standing,
Interests are germane to organization’s purpose,
Neither claim nor relief requires members participation.

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8
Q

What is the only kind of case a citizen can bring as a generalized grievance without regular standing?

A

When challenging federal statutes alleging expenditures violating the establishment clause.

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9
Q

What is Ripeness?

A

Whether a court may grant pre-enforcement review of a statute or regulation.

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10
Q

What are the 2 main factors courts look at for Ripeness?

A

Hardship suffered without pre-enforcement review,
Fitness of the issues and record for review.

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11
Q

What is Mootness?

A

Whether a claim is a live controversy at the time of review.

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12
Q

What are the 3 exceptions to a claim needing to NOT be moot?

A

Wrongs capable of repetition but evading review,
Voluntary cessation by D,
Class actions

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13
Q

What is the Political Question Doctrine?

A

A federal court will not hear cases that involve issues constitutionally committed to another branch of government OR are inherently incapable of judicial resolution.

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14
Q

What are the 4 most common political question kinds of challenges federal courts won’t hear?

A

challenges based on republican form of government,
president’s foreign policy conduct,
impeachment/removal process,
partisan gerrymandering

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15
Q

What are 3 kinds of federal expenditure establishment clause violations claims that are not allowed?

A

giving property to religious places,
general executive revenue spending,
state tax credits to religious places.

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16
Q

What is the only 2 kinds of suits that SCOTUS has automatic jurisdiction?

A

Suits between States,
Appeals from 3-judge federal district courts.

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17
Q

SCOTUS won’t hear a case involving a state law that has been adjudicated by that state’s highest court unless:

A

There is a federally based challenge to the state issue.

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18
Q

Generally, the 11th Amendment bars filing suit against:

A

States

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19
Q

What are the 4 exceptions to sovereign immunity for States?

A

State expressly waives it.
Federal statutes under the 14th Amendment allow it.
Federal Govt can sue States.
Bankruptcy proceedings.

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20
Q

Rather than suing a State, a plaintiff should sue:

A

The State officer

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21
Q

To sue a State officer, a P needs 1 of what 2 things?

A

Personal Damages, or
Enjoin officer from future federal violations.

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22
Q

Absent a few MILD exceptions, does Congress have police powers?

A

No

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23
Q

What are the MILD exceptions in which Congress does have police powers?

A

Military
Indian lands
Federal lands
D.C.

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24
Q

What does the Necessary and Proper Clause do?

A

Allows Congress to take action that is not constitutionally prohibited to carry out its powers.

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25
Q

Is the Necessary and Proper Clause a Congressional power alone?

A

No-It must accompany an express power.

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26
Q

The Constitution grants Congress the power to tax and spend for what?

A

General welfare constituting any public purpose not prohibited by the Constitution.

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27
Q

According to the Commerce Clause, Congress can regulate what 3 things within interstate commerce?

A

The channels,
Instrumentalities,
Activities that have substantial effect.

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28
Q

When can Congress regulate intrastate commerce that is economic…non-economic?

A

Economic-When there’s a rational basis, that in aggregate, substantially affects interstate.
Non-economic-When direct, substantial effect on interstate.

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29
Q

Can Congress regulate inactivity?

A

No

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30
Q

The federal govt being restricted from commandeering state powers is established through which Amendment?

A

10th

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31
Q

When Congress grant’s money to States with stipulations for them to get the money, what are the 4 requirements so it doesn’t violate 10th Amendment??

A

Grants are expressly stated,
Relate to purpose of program,
Not unduly coercive,
Don’t violate Constitution.

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32
Q

What are the 3 ways federal law impliedly preempts state law?

A

Mutual exclusivity,
State law impedes federal objective,
Field preemption (clear intent by congress to preempt).

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33
Q

What does the Dormant Commerce Clause state?

A

State and local laws are unconstitutional if they place an undue burden on interstate commerce.

34
Q

What 2 places in the Constitution are there a Privileges and Immunities Clause?

A

Article 4 and 14th Amendment

35
Q

What does the Privileges and Immunities clause of Article 4 state?

A

States may not deprive citizens of other states of the privileges and immunities it provides its citizens.

36
Q

What does the Privileges and Immunities Clause of the 14th Amendment state?

A

States may not interfere with the right to interstate travel.

37
Q

Are corporations and aliens protected by the P&I Clause of Article 4?

A

No

38
Q

Are corporations and aliens protected by the P&I Clause of the 14th Amendment?

A

Yes

39
Q

What is the first question to ask when evaluating privileges and immunities cases?

A

Does the state law discriminate against out-of-staters? If not, it does not fall under Article 4.

40
Q

What is the second question to ask when evaluating P&I cases?

A

Does the state law burden interstate commerce?

41
Q

If a state law doesn’t discriminate against out-of-staters (falls under 14th Amendment), and it burdens interstate travel, it violates the dormant commerce clause if:

A

The burden exceeds the benefit.

42
Q

If a state law discriminates against out-of-staters (falls under Article 4), and it burdens interstate travel, it violates the dormant commerce clause unless:

A

It is necessary to achieve an important govt purpose, AND there is no less discriminatory alternative.

43
Q

What is the ‘market participant’ exception to the dormant commerce clause?

A

Govt can prefer its own citizens in receiving benefits from govt programs or when dealing with govt-owned businesses.

44
Q

The dormant commerce clause will not be scrutinized as heavily when the state action involves what?

A

A traditional govt function not involving economic protection.

45
Q

Generally speaking, to show a constitutional violation, who must the claim be against minus a few exceptions?

A

The government.

46
Q

Regarding constitutional claims, activities of a private individual will be considered govt action if:

A

It’s an exclusive public function,
there is significant state involvement,
OR the activity is the traditional exclusive prerogative of the state.

47
Q

What gives Congress the power to enact laws that prohibit private racial discrimination?

A

13th Amendment

48
Q

What is the Rational Basis standard of review? What kind of cases?

A

Law must be rationally related to a legitimate government purpose.
No suspect class and not fundamental rights.

49
Q

What is the Intermediate Scrutiny standard of review? What kind of cases?

A

Law must be substantially related to important government purpose. Quasi-suspect classes (Gender).

50
Q

What is the Strict Scrutiny standard of review? What kind of cases?

A

Law must be necessary to achieve a compelling government purpose, and it is the least restrictive means.
Suspect classes and fundamental rights.

51
Q

Which standards of review do the govt have the burden of proof?

A

Intermediate and Strict Scrutiny.

52
Q

What is the focus of procedural due process?

A

Whether the govt has provided adequate procedures for taking away life, liberty, or property.

53
Q

What is the focus of substantive due process?

A

Whether the govt has an adequate reason for taking away life, liberty, or property.

54
Q

What is the first question to ask regarding procedural due process claims?

A

Is life, liberty, or property being taken?

55
Q

A loss of a significant freedom provided by the constitution or statute is what?

A

Loss of liberty

56
Q

When the reasonable expectation of one’s entitlement is taken away or not fulfilled, it is what?

A

Loss of property

57
Q

If there has been a deprivation of life, liberty, or property under a procedural due process claim, what are the 2 factors courts use to weigh proper process?

A

Importance of individual’s interest.
Improvement of fact finding against government interest.

58
Q

Generally, procedural due process requires what?

A

Fairness

59
Q

What is the Takings Clause and where does it come from?

A

5th Amendment - Govt may take private property for public use if it provides just compensation.

60
Q

What are the 2 main ways to get a ‘Taking’?

A

Physical invasion of property OR,
Total economic loss of property.

61
Q

Under the takings clause, to constitute ‘public use’, the government’s action must be what?

A

rationally related to a legitimate govt public purpose.

62
Q

Under the Takings Clause, just compensation equals what, and from whose perspective?

A

Fair market value at time of taking from the owner’s perspective.

63
Q

What does the Contract Clause state?

A

No State shall impair the obligation of contracts.

64
Q

Ex Post Facto laws are not allowed. What are they?

A

Newly created laws that criminalize, give greater punishments, or reduces required evidence for crimes already committed.

65
Q

Regarding substantive due process, what is the standard of review when the govt limits a fundamental right versus all other rights?

A

Fundamental-Strict Scrutiny
Others-Rational Basis

66
Q

What are the 3 ways to prove violation of equal protection?

A

Law is discriminatory on its face,
In application,
In motive

67
Q

Who does the equal protection clause apply to?

A

Government

68
Q

What are the 3 classes that fall under strict scrutiny for EP claims?

A

Race
National Origin
Alienage

69
Q

If a law is facially neutral regarding race, what are the 2 requirements to show it is still racially discriminatory?

A

Discriminatory intent
and impact

70
Q

Can the state or federal govt discriminate against aliens?

A

Only federal

71
Q

What kind of speech falls under strict scrutiny?

A

Content-based

72
Q

What are the 2 things that determine if speech is ‘content-based’?

A

Subject matter,
viewpoint

73
Q

What is the standard of review for content-neutral speech regulation?

A

Intermediate scrutiny

74
Q

What is the void for vagueness doctrine?

A

A law regulating speech is unconstitutional if a reasonable person doesn’t know what is allowed.

75
Q

What are the 2 requirements for the govt to license speech?

A

Important reason,
clear criteria with little discretion

76
Q

Inciting lawless action is not protected speech, what are the 2 requirements?

A

Substantial likelihood of imminent illegal activity,
Directed at causing imminent illegal activity

77
Q

What are the 3 elements of obscene speech?

A

Appeals to prurient interest of sex,
patently offensive,
lacks usable value

78
Q

Commercial speech is protected as long as it is?

A

truthful

79
Q

Commercial speech regulation will be upheld if it meets what 3 requirements?

A

Substantial govt interest,
directly advances that interest,
narrowly tailored.

80
Q

Speech regulation in public forums must meet what 3 elements?

A

Content neutral,
important govt purpose with alternative channels,
narrowly tailored.

81
Q

Speech regulation in nonpublic forums must be what 2 elements?

A

Viewpoint neutral,
reasonably related to legitimate govt interest.

82
Q
A

Bar Prep (7 decks)

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