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IL Bar Prep > Con Law > Flashcards

Con Law Flashcards

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1
Q

Standing

A

Whether P is the proper party to bring the matter to court.

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2
Q

Requirements for standing

A
  1. Injury2. Causation and Redress ability3. No third party standing4. No generalized grievances.
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3
Q

Injury for standing

A

P must prove that she has been or will imminently be injured.P’s seeking injunctive relief must show a future harm.

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4
Q

Exceptions to ban on third party standing

A
  1. Close relationships (Dr/Patient)2. Unlikely or unwilling to assert standing (D for dismissed juror) 3. An organization may sue for its members
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5
Q

Generalized grievances

A

P may not sue SOLELY as a citizen or tax payer. Cannot sue government for wasting your money.

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6
Q

Ripeness

A

Whether federal court may grand a pre-enforcement review of a statute or regulation.Looks at: Hardship; andFitness of issues and the record for judicial review.

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7
Q

Mootness

A

If events after filing a lawsuit end P’s injury the case is dismissed as moot because P must present a LIVE CONTROVERSY.(Non-frivolous money damages claim will keep the case alive.)

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8
Q

3 exceptions to mootness

A
  1. Wrong is capable of repetition but evades review because of its inherently limited time duration. (Abortion)2. Voluntary cessation - if D an voluntarily stop the act and then start doing it again, the case is not moot.3. Class action suits - as long as there’s someone who has an injury to be resolved.
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9
Q

Political questions doctrine

A

Constitutional violations that federal courts will not adjudicate.

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10
Q

4 kinds of non-justicible political questions

A
  1. Art. IV, Sec 4 - republican form of government (guarantee clause) questions2. Challenges to the impeachment and removal process.3. CHALLENGES TO THE PRESIDENT’S CONDUCT OF FOREIGN POLICY.4. Challenges to partisan gerrymandering.
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11
Q

SCOTUS has original and exclusive jurisdiction for:

A

suits between state governments.

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12
Q

Exceptions to 11th Amendment bar against naming states as defendants in federal court cases:

A
  1. Waiver. State must expressly consent.2. Civil rights law. Under federal laws adopted pursuant to sec. 5, 14th Amd. 3. If you’re the federal government.4. Bankruptcy proceedings.
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13
Q

What may state officers be sued for?

A
  1. Injunctive relief.2. Money damages to be paid out of their own pockets. (but may not be sued if the state treasury will be paying for the retroactive damages)
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14
Q

Congressional Power

A
  1. Taxing2. Spending3. Commerce
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15
Q

Congress generally has no police power. What are the exceptions?

A

MILD1. Military2. Indian reservations3. Lands, federal4. D.C.

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16
Q

Commerce Power: Congress can regulate commerce: Art 1, Sec 8

A
  1. Foreign nations2. Indian tribes3. Among the states
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17
Q

Commerce clause powers. 3 situations:

A
  1. CHANNELS of interstate commerce (highways, waterways, internet)2. INSTRUMENTALITIES of interstate commerce and persons and things in interstate commerce. (trucks, planes, telephones)3. May regulate economic activities that have a SUBSTANTIAL EFFECT on interstate commerce.
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18
Q

State laws that conflict with treaties are:

A

invalid.

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19
Q

If a treaty conflicts with a federal statute:

A

the one adopted last in time controls.

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20
Q

Executive agreement

A

Agreement between the US and a foreign country that is effective when signed by the President and the head of a foreign nation.

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21
Q

Executive agreements prevail over:

A

conflicting state laws. But NEVER over conflicting federal laws.

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22
Q

Presidential Appointment Power

A

President appoints federal judges, ambassadors, and officers of the US. Must be approved by the Senate.

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23
Q

Presidential Removal Power

A

Unless removal is limited by statute, the President may fire any executive branch official.

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24
Q

When may Congress limit the presidential removal power?

A

When BOTH of the requirements are met:1. An office where independence from the President is desirable. (Special investigator.. investigating the President), and2. Where Congress cannot prohibit removal it may limit it to where there is GOOD CAUSE SHOWN.

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25
Q

Impeachment for:

A

Treason, bribery, high crimes, and misdemeanors.

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26
Q

Impeachment requires:

A

A majority vote by the House of Representatives.

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27
Q

Removal requires:

A

Impeachment and then conviction in the Senate by a 2/3 vote.

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28
Q

Presidential Immunity

A

Absolute immunity to civil suits for money damages for any actions WHILE IN OFFICE. No immunity for actions that occurred before taking office.

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29
Q

Presidential Pardon

A

Power to pardon anyone accused or convicted of a FEDERAL (not state) crime. Limited only where a person has been impeached by the House; that person can never be pardoned for underlying crimes. Does not apply to CIVIL liability.

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30
Q

Supremacy clause

A

Valid federal law overrider or preempts inconsistent state law.

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31
Q

Three ways to find preemption

A
  1. Express preemption: Congress states its power is exclusive in a field.2. Implied preemption3. Intergovernmental Immunity
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32
Q

Three ways to find IMPLIED preemption:

A
  1. If it is not possible for someone to simultaneously comply with both federal and state laws. State law is preempted.2. If state law impedes the achievement of a federal objective.3. If Congress evidences a CLEAR INTENT to preempt state law.
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33
Q

Intergovernmental Immunity

A

Federal government is immune from unwanted state tax or regulation. (Shopping on base.)

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34
Q

Dormant Commerce Clause (Negative Implications of the Commerce Clause)

A

The principle that state or local laws are unconstitutional if they place an undue burden on interstate commerce.

35
Q

Privileges and Immunities Clause of Art. IV

A

States may not deny citizens of other states the privileges and immunities it affords its own citizens WITHOUT substantial justification.

36
Q

Privileges and Immunities of the 14th Amd.

A

Protects a person’s right to travel from one state to another. (Almost always wrong unless the question involves the right to travel.)

37
Q

Interstate commerce balancing test(Used when there is no discrimination against out-of-staters)

A

Law violates the dormant commerce clause if its BURDEN on interstate commerce outweighs the BENEFITS of the law.

38
Q

Test if law DOES discriminate against out-of-staters

A

Law is a violation of the dormant commerce clause unless:1. It is necessary to achieve,2. an IMPORTANT government purpose3. and government must show that no less discriminatory alternative can achieve its goal.Only the out of state baitfish in Maine have ever overcome this test at SCOTUS.

39
Q

Exceptions to laws that would otherwise violate the dormant commerce clause

A
  1. If Congress approves.2. Market participation exception
40
Q

Market participation exception:

A

State may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.(Out of state tuition)

41
Q

Exceptions where private conduct must comply with the Constitution

A
  1. Public functions exception2. Entanglement exception
42
Q

Public functions exception

A

A private entity is performing a function that is traditionally, exclusively done by the government. (Pvt company running a town)

43
Q

Entanglement exception

A

Constitution applies if the government is affirmatively authorizing, encouraging, or facilitating unconstitutional activities.

44
Q

Weird SCOTUS holdings to know where Constitution applies (or doesn’t) to private entities.

A
  1. Courts cannot enforce racially restrictive covenants.2. There IS state action when government leases premises to a restaurant that racially discriminates.3. There IS state action where state provides free books to private schools that racially discriminate.4. NO state action when a private school over 99% funded by the government fires a teacher b/c of her speech.5. NO state action where NCAA orders the suspension of a coach at state university.6. IS state action when private entity regulates interscholastic high school sports w/i a state.7. NO state action where private club with liquor license racially discriminates.
45
Q

Parts of the Bill of Rights that have NOT been incorporated to the States

A
  1. 3rd Amendment right not to quarter.2. 5th Amd right to grand jury indictment in criminal cases.3. 7th Amd right to jury trial in civil cases.4. 8th Amd right against excessive fines.
46
Q

Rational Basis Test - Know exact wording.

A

Rationally related to a LEGITIMATE government purpose.

47
Q

Who has burden in rational basis?

A

Challenger. Must show there is no conceivable legitimate purpose or that the law is not rationally related to it.

48
Q

Intermediate Scrutiny - Know exact wording.

A

SUBSTANTIALLY related to IMPORTANT government purpose.(Government has the burden of proof)

49
Q

Strict scrutiny - know exact wording

A

NECESSARY to achieve a COMPELLING government purpose.(Gov’t has burden of proof)

50
Q

Procedural Due Process

A

Procedures a gov’t must follow to take away someone’s life, liberty, or property.

51
Q

Deprivation of liberty

A

If there is a loss of a significant freedom provided by the Constitution.

52
Q

Deprivation of property

A

If a person has an entitlement (a REASONABLE EXPECTATION to the continued receipt of a benefit) and that entitlement is not fulfilled.

53
Q

If there has been a deprivation - what procedures are required? (3 part balancing test)

A
  1. Importance of interest to individual.2. Ability of additional procedures to increase the accuracy of the fact-finding, and3. The government’s interests. (Usually efficiency and saving money)
54
Q

Deprivation of welfare benefits require:

A

both notice and a hearing.

55
Q

Permanent termination of parental rights require:

A

both notice and a hearing.

56
Q

Except in an emergency, before an adult can be institutionalized there must be:

A

both notice and a hearing.

57
Q

Social security disability benefits termination:

A

Only post-termination hearing.

58
Q

Punitive damage awards require:

A

jury instructions to guide the jury’s discretion and judicial review to ensure reasonable reward.

59
Q

Substantive due process

A
  1. Protects economic liberty; and2. Safeguards property.
60
Q

5th Amd Takings Clause

A

Gov’t may take private property for public use but only if it provides:1. Just compensation; or2. Terminates the regulation and pays the owner for damages that incurred while the regulation was in effect.

61
Q

How to find a taking.

A
  1. Possessory taking. Gov’t confiscation or physical occupation of property - always a taking.2. Regulatory taking
62
Q

Regulatory taking

A

Gov’t regulation is taking if it leaves no reasonably economically viable use of the property.

63
Q

Is a taking for public use?

A

Yes, so long as the gov’t acts out of a reasonable belief that the taking will benefit the public.

64
Q

Is just compensation paid?

A

Just compensation is measured in terms of:1. Loss to the OWNER2. in REASONABLE MARKET VALUE terms.Gov’ts gain is irrelevant.

65
Q

Contracts clause.Art. I, Sec 10

A

No state shall impair the obligations of contracts. 1. Only applies to existing contracts.

66
Q

Ex post facto laws

A

Law that criminally punishes conduct that was lawful when it was done or that increases the punishment for a crime after it was committed.

67
Q

Under the Constitution ex post facto laws are:

A

Prohibited. But the clause does not apply in civil cases, only in criminal cases.

68
Q

Privileges and Immunities Clause of Article IV

A

This Clause places limitations on state discrimination against nonresidents regarding commercial activities.

69
Q

Privileges or Immunities Clause of the Fourteenth Amendment

A

it prohibits states from denying their own citizens rights of national citizenship.

70
Q

“doing business” taxes:

A
  1. Must have a substantial nexus to the taxing state; 2. the tax must be fairly apportioned, 3. must not discriminate against interstate commerce, and 4. must fairly relate to services provided by the state.
71
Q

4 The Eleventh Amendment jurisdictional bars:

A
  1. Actions against state governments for damages; 2. Actions against state governments for injunctive or declaratory relief where the state is named as a party; 3. Actions against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership of land; and 4. Actions against state government officers for violating state law.
72
Q

An organization has standing to challenge government actions that cause an injury in fact to its members if the organization can demonstrate 3 facts:

A

(i) An injury in fact to the members of the organization that would give individual members a right to sue on their own behalf; (ii) The injury to the members must be related to the organization’s purpose; and (iii) Neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.

73
Q

Procedural Due Process

A

There is a right to procedural due process only when the government acts to deprive an individual of life, liberty, or property.

74
Q

3 considerations in determining the procedures required under the Due Process Clause:

A

(i) The importance of the individual’s interest that is involved,(ii) The value of specific procedural safeguards of the individual’s interest, and(iii) The government’s interest in fiscal and administrative efficiency.

75
Q

Legislation is valid under the Contract Clause when the legislation (3 factors):

A

(i) substantially impairs a party’s rights under an existing contract, (ii) serves an important and legitimate public interest, and (iii) is a reasonable and narrowly tailored means of promoting the public interest

76
Q

Congress’ Taxing Power

A

Congress has the power to lay and collect taxes, imposts, and excises, but they must be uniform throughout the United States.

77
Q

When can Congress use the Commerce Clause?

A

The Supreme Court has sustained congressional power to regulate any activity, local or interstate, that either in itself or in combination with other activities has a “substantial economic effect upon,” or “effect on movement in,” interstate commerce.

78
Q

Commerce Clause: If the activity to be regulated is economic or commercial, legislation will be upheld if:

A

the Supreme Court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.

79
Q

If the President does not sign a bill within 10 days:

A

it is vetoed IF Congress is not in session. “pocket veto.”

80
Q

A tax WILL impose an unfair burden unless what three factors are met?

A

i. Activity taxed has a substantial nexus to the taxing stateii. Tax is fairly apportionediii. Tax fairly relates to services provided by the state.

81
Q

Durational residency requirements for state benefits:

A

Strict scrutiny - violation of Privileges and Immunities clause of Art IV.

82
Q

Privileges and Immunities in Article IV

A

protects against discrimination by a state in favor of its own citizens when it affects a fundamental right

83
Q

Over breadth

A

If a regulation of speech punishes a substantial amount of protected speech then the statute is facially invalid and cannot be enforced against anyone.

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