Con Law Flashcards

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1
Q

Procedural Due Process

A

Concept of “fundamental fairness.” Protects (1) right to be notified and (2) opportunity to be heard.

Questions:

(1) is the interest protected?
(2) if so, what process is due?
(3) Is there a neutral decision maker?

Public employees at-will have no property interest. But for-cause employees do. If there is a significant reason for removing a for-cause public employee, a prompt post-termination hearing can be used with reinstatement and back pay if the employee prevails.

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2
Q

Abortion restriction standard

A

“Undue burden” test = state may regulate abortions as long as the regulations do not place substantial obstacles in the way of the women’s right to seek an abortion.

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3
Q

Contracts Cause

A

Art I, § 10 prohibits states legislation (but not feds or state court orders) from passing any law impairing the obligation of contracts. Only applies to state legislative that retroactively impairs contractual rights.

Impairment of private contracts is invalid unless gov’t can show it was reasonable and necessary to serve an important governmental interest.

Impairment of public contracts gets the same test, but with a slightly stricter application.

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4
Q

Regulation of commercial speech

A

Intermediate First-Amendment protection. Elements:

(1) commercial speech concerns lawful activity that is neither false nor misleading
(2) asserted gov’t interest must be substantial
(3) regulation directly advances the asserted interest
(4) regulation is narrowly tailored to serve that interest (i.e., a “reasonable fit” between the gov’t ends and its means).

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5
Q

Congressional immunity

A

Members of Congress enjoy immunity for statements made in the regulator course of legislative process. But no immunity for statements made outside Congress.

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6
Q

Presidential immunity

A

President enjoys absolute executive immunity from civil suits for money damages while in office.

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7
Q

Dormant Commerce Clause

A

States cannot:

(1) Discriminate against out-of-state commerce.
(2) Unduly burden interstate commerce (balancing test)
(3) Regulate wholly out-of-state commerce

Exceptions:

(1) traditional local government function (e.g., trash removal).
(2) Important governmental interest and no nondiscriminatory means available
(3) State acting as market participant
(4) Congressionally permitted discrimination

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8
Q

Congressional investigation

A

Congress has power to conduct investigations through the Necessary and Proper clause. But procedural due process rights apply, including presence of counsel.

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9
Q

Key to Art III jurisdiction

A

Cases and controversies

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10
Q

Supreme Court’s Original Jurisdiction

A

(1) cases affecting ambassadors
(2) Other public ministers/consuls
(3) when a state is a party

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11
Q

Adequate and independent state ground

A

If state’s highest court rests its decision on an adequate and independent state ground, SCOTUS will not hear appeal.

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12
Q

Elements of standing

A

(1) injury-in-fact
(2) causation
(3) repressibility

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13
Q

Taxpayer standing

A

Generally not grounds for standing. However, taxpayers have standing to (1) litigate how much they owe on a tax bill and (2) challenge government expenditures as violating the Establishment Clause.

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14
Q

Third-party standing

A

Generally no standing for third parties to bring lawsuits. Exceptions include:

(1) when 3rd party unable to assert his own rights
(2) if there is a special relationship between π and 3rd party
(3) π’s injury adversely affects the π’s relationship with 3rd party

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15
Q

Organizational standing

A

Organization CAN sue on its own behalf or on behalf of members if: (1) member has standing in his own right, AND (2) interest at stake is germane to organization’s purpose.

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16
Q

Timeliness of lawsuit

A

Ripeness = π must experience real injury
Mootness = must be live controversy. Not moot if:
(1) is capable of repetition but evading review
(2) ∆ voluntarily ceases illegal/wrongful act upon commencement of the litigation
(3) named π’s claim in class action is resolved

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17
Q

Three justiciability concerns

A

(1) No advisory opinions (need actual case or controversy)
(2) No declaratory judgments (must be “real and immediate” danger to party’s interest
(3) Political question matters

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18
Q

Pullman abstention

A

Federal court may abstain from ruling on unsettled issues of state law.

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19
Q

Power to regulate interstate commerce (three ways)

A

(1) channels of commerce
(2) instrumentalities of interstate commerce AND
(3) any activity that substantially affects interstate commerce (aggregation if rational basis for concluding that the “total incidence” of activity in the aggregate substantially affects interstate commerce)

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20
Q

Taxing and spending powers

A

Tax upheld if reasonable relation to revenue product OR if Congress had power to regulate the activity being taxed

Spending upheld if connected to general welfare or any public purpose (almost always upheld).

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21
Q

Congress’s War and Defense Powers

A

(1) power to declare ware
(2) raise and support armies/navy
(3) govern land/naval forces and
(4) organize militia

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22
Q

Congress’s power of aliens and citizenship

A

Plenary power over aliens (subject to DPC)

Exclusive authority over naturalization.

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23
Q

Necessary and Proper Clause

A

Power to enact legislation necessary and proper to execute any other federal authority. NOT an independent source of power. Must link to another enumerated power.

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24
Q

Enabling clause of 14th Amendment

A

Enables Congress to enforce equal protection and due process. Enforcement must have “congruence and proportionality” between injury prevented and means adopted to achieve that end.

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25
Q

Delegation of legislative power

A

Allowed if Congress specifies an “intelligible principle” to guide the delegate.

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26
Q

When can states tax interstate commerce?

A

General Rule: Permitted only if Congress has NOT already regulated and tax does not discriminate against or unduly burden interstate commerce.
Four-part test:
(1) substantial nexus between activity taxed and taxing state
(2) fair tax apportionment
(3) No local direct commercial advantage over intestate competitors
(4) Tax must be fairly related to services provided by taxing state

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27
Q

When can states tax foreign commerce?

A

Never, unless states have congressional consent.

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28
Q

Preemption (express and implied)

A

Express = Congress makes federal power exclusive or prohibits state regulation in the same area (narrowly construed)
Implied = three ways:
(1) Congress intended for federal law to occupy the field
(2) State law directly conflicts with federal law
(3) state law indirectly conflicts by creating an obstacle to federal law’s purpose

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29
Q

Full faith and credit applies to court judgments if…

A

(1) court rendering judgment had jurisdiction over parties and subject matter
(2) judgment was on the merits AND
(3) final judgment

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30
Q

Substantive Due Process Standards

A

Strict Scrutiny = Law must be least restrictive means to achieve compelling governmental interest. Applies to fundamental rights.

Rational basis = Law must be rationally related to a legitimate state interest.

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31
Q

Fundamental rights (substantive due process)

A

(1) Travel
(2) Voting and ballot access
(3) privacy
(4) Second amendment firearm right

Triggers strict scrutiny (least restrictive means to achieve compelling governmental interest)

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32
Q

Equal protection standards

A

(1) strict scrutiny = least restrictive means to achieve a compelling governmental interest (suspect classes)
(2) intermediate scrutiny = substantially related to important governmental interest (Gender or legitimacy)
(3) Rational basis = rationally related to legitimate state interest (all others; age, wealth, weight, etc.)

Note: Discriminatory intent always required.

33
Q

Suspect classifications (equal protection)

A

(1) race, ethnicity, or national origin
(2) alienage, if classified by state (fed classifications subject to rational basis) Exception for state restrictions on alien participation in governmental functions.

Receive strict scrutiny

34
Q

Quasi-suspect classes (equal protection)

A

(1) gender

(2) legitimacy

35
Q

Strict scrutiny standard

A

least restrictive means to achieve a compelling governmental interest

36
Q

Intermediate scrutiny standard

A

substantially related to important governmental interest

37
Q

Rational basis standard

A

rationally related to legitimate state interest

38
Q

Fundamental rights unique to equal protection clause (not substantive due process)

A

(1) “one person, one vote”

2) gerrymandering (based on race or political discrimination

39
Q

Comity clause

A

Prohibits one state from discriminating against citizens of another state with respect to fundamental rights or essential activities (e.g., employment, transfer of property, access to state courts). Applies only to citizens (not corporations or aliens)

Exception: if (1) non-residents are cause or part of problem state is trying to solve, and (2) no less-restrictive means.

40
Q

14th Amendment Privileges and Immunities

A

Protects against infringement on privileges and immunities of natural citizenship: Right to travel interstate, vote for national offices, enter public lands, and peaceably assemble

Applies only to citizens

41
Q

Takings Cause triggers when… (5 times)

A
  1. Seizure of property for a public purpose
  2. destruction or damage to property
  3. Re-characterization of private property as public
  4. Regulatory taking, and
  5. Exaction of promises from developer
42
Q

Measure of compensation under Takings Clause

A

Fair market value at time of taking measured in terms of loss to the owner (not benefit to government)

43
Q

Lemon test (Establishment clause)

A

Governmental action benefitting religion is valid if:

(1) Secular purpose
(2) primary effect neither advances nor prohibits religion, AND
(3) Does not result in excessive government entanglement with religion

44
Q

Free exercise (belief versus conduct)

A

Religious belief = absolute protection
Religious conduct = not absolutely protected.
State laws that intentionally target religious conduct = strict scrutiny.
Neutral state laws of general applicability = rational basis test.

45
Q

Regulation on expressive conduct / symbolic speech

A

Only upheld if:

(1) within government’s power to enact
(2) furthers an important government interest
(3) interest is unrelated to suppression of ideas
(4) burden on speech no greater than necessary

46
Q

Prior restraints (on speech in advance of expression)

A

Invalid unless there is a particular harm to be avoided and certain procedural safeguards are provided to the speaker.

47
Q

Restrictions on campaign speech

A

Limiting campaign contributions = intermediate scrutiny

Limiting campaign expenditures = strict scrutiny

48
Q

Public forum

A
Implied = historically associated with expression (sidewalks, streets or parks)
Designated = government has opened for such a use (civic auditoriums, publicly owned theaters, schools in off-hours).
49
Q

When are restrictions on speech in a public forum valid?

A

(1) content-neutral as to subject matter AND viewpoint
(2) narrowly tailored to serve significant government interest AND
(3) leave open ample alternative channels for communication

Content neutral = intermediate scrutiny (Must not burden more speech than is necessary to achieve an important governmental interest)
Content-based = strict scrutiny (Must be necessary for the government to achieve a compelling governmental interest)

50
Q

Restrictions on speech in non-public forum

A

Rational basis test: Must be…

(1) “viewpoint neutral”
(2) “reasonably related” to
(3) a “legitimate governmental interest.

viewpoint neutral = can prohibit speech on a certain issue altogether but cannot allow only one side of the issue to be presented.

51
Q

Obscenity test

A

Valid if average person, applying contemporary community standards, must find that material taken as a whole:

(1) appeals to the prurient (sexual) interest
(2) depicts sexual conduct in patently offensive ways AND
(3) lacks serious literary, artistic, political, or scientific value (national standards)

“SSS” = Sexy, sick, and lacks serious value

52
Q

When can the government regulate speech inciting violence / fighting words?

A

(1) speech is directed toward imminent lawless action AND (2) is likely to incite or produce that action (clear and present danger).

53
Q

What level of scrutiny is given to regulation of commercial speech? (four elements)

A

Intermediate scrutiny:

(1) speech concerns lawful activity and is neither false nor misleading
(2) substantial governmental interest
(3) Regulation directly advances asserted interest
(4) Regulation is narrowly tailored to serve interest (“reasonable fit” between government’s ends and means chosen to accomplish them)

54
Q

What level of scrutiny is given to regulation of the right to associate?

A

Strict scrutiny = infringement only allowed if justified by compelling state interest

55
Q

How can Congress enforce the 13th Amendment?

A

Can adopt legislation rationally related to eliminating racial discrimination, including its “badges or incidents.” Covers government and private actions.

56
Q

What does the 15th Amendment protect?

A

Prohibits state or federal government from denying any citizen the right to vote based on race, color, or previous condition of servitude.

57
Q

Can states pass any restrictions on the right to have an abortion?

A

Yes. Reasonable waiting period or attempts to persuade a woman to keep child do NOT unduly burden the right to choose, as long as woman gets a chance to choose after that.

58
Q

What does the Privileges and Immunities Clause of Art IV (the “Comity Clause”) protect?

A

Prohibits a state from discriminating against non-state residents with respect to the exercise of a fundamental right or engagement in an essential activity. Includes:

(1) pursuit of employment
(2) transfer of property
(3) access to state courts

Commercial vs. Recreational: Prohibitions on commercial activity violate the clause. But discrimination for recreational activity does not.

59
Q

What is the exception to Immunities Clause of Art IV (the “Comity Clause”) protection?

A

If there is substantial justification for the discrimination, including

(1) nonresidents are causing the problem addressed
(2) no less-restrictive means to solve the problem

60
Q

When is the Takings Clause not triggered by government destruction of property?

A

Public peril exception: government can damage private property in response to a public peril without triggering compensation.

61
Q

What factors do courts consider to decide whether something is a regulatory taking under the Takings Clause?

A

(1) economic impact of the regulation on the owner
(2) extent to which regulation interferes with owner’s reasonable investment-backed expectations
(3) character of the regulation (how much it benefits society, how it distributes burdens and benefits, etc.)

62
Q

When can a state seize property for public purposes?

A

Almost any reason. Includes health, safety, welfare, aesthetic, and environmental concerns.

63
Q

What are two per se takings under the Takings Clause?

A

(1) permanent physical occupation

(2) permanent loss of all economically viable use

64
Q

What are the exceptions to the dormant commerce clause? I.e., when can a state discriminate against interstate commerce?

A

(1) traditional local government function (e.g., trash removal).
(2) Important governmental interest and no nondiscriminatory means available
(3) State acting as market participant
(4) Congressionally permitted discrimination

65
Q

If Congress has not legislated to regulate an aspect of interstate commerce, may the states?

A

Yes.

66
Q

When can the government regulate expressive / symbolic speech?

A

(1) regulation is within government’s power to enact
(2) furthers an important governmental interest
(3) interest is unrelated to the suppression of ideas, AND
(4) burden on speech is no greater than necessary

67
Q

When can individuals who otherwise might lack standing bring a claim against a regulation that substantially burden’s speech?

A

To prevent a “chilling effect,” individuals can bring a challenge to the statute as “facially invalid.”

68
Q

When is a statute “void for vagueness”?

A

If it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

69
Q

Does a statute restricting speech need to provide some standard for officials to follow? Or can it leave enforcement to official discretion?

A

Statutes must provide definite standards. Unfettered discretion is void on its face.

70
Q

Must government speech conform to the 1st Amendment?

A

No. Government is free to speak from a non-neutral viewpoint.
Exception for funding of private messages. Such funding must be viewpoint-neutral.

71
Q

What level of scrutiny do laws regulating campaign contributions receive?

A

Intermediate scrutiny: They must be “closely drawn” to correspond with a sufficiently “important” interest.

72
Q

What level of scrutiny do laws regulating campaign expenditures receive?

A

Strict scrutiny. No limits can be imposed.

73
Q

When is deprivation of public employment based on political association allowed under the 1st Amendment right of association?

A

(1) person is active member of subversive organization
(2) has knowledge of group’s illegal activity AND
(3) has specific intent to further those illegal objectives.

74
Q

Can a state require local political parties to select presidential electors in an open primary when national party prohibits non-arty members from voting?

A

No.

75
Q

Can a state require a semi-closed primary to select presidential electors? (party members + independents vote)

A

Yes.

76
Q

Can a state prohibit a political party from allowing independents to vote in its primary?

A

No.

77
Q

Can a state allow a “blanket primary,” where candidates select and write in their political party and everyone votes?

A

Yes

78
Q

Can a state refuse to allow a political party’s candidate on the general election ballot?

A

Yes, unless the party demonstrates public support through voter signatures, registrations or previous success.

79
Q

Can a state prohibit a “fusion candidate” from appearing on the general election ballot? (candidate nominated by more than one political party)

A

Yes. This limitation is justified by a state’s interest in ballot integrity and political stability.