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NY Bar Condensed Review > Con Law > Flashcards

Con Law Flashcards

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1
Q

Supreme Court Review: Mandatory Review

A

State v. state; decision of 3 federal judge panel

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2
Q

Permissive Supreme Court Review

A

On vote of 4 justices, review of decisions from highest state court if no AISG; decisions from US CAP

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3
Q

No Federal Court Review

A

Private party v. state (except under § 5)

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4
Q

Inter-Governmental Suits

A

US can sue state but state can’t sue US without permit; states can sue other states with mandatory sup ct review

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5
Q

Federal Police Power

A

“MILD”: Military, Indian (reservations), (federal) Land, District (of Columbia).

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6
Q

Strings Attached to Congressional Spending on States

A

(1) EXPRESSLY STATED
(2) RELATED TO SPENDING PROGRAM’S PURPOSE
(3) NOT UNDULY COERCIVE

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7
Q

Removal: Permissible Congressional Limits on President’s Removal Power

A

(1) Independence from President desirable

(2) Limited to Good Cause Shown

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8
Q

Executive Agreements versus Treaties

A

Later in time treaty > federal law > executive agreement

Treaties require approval by Senate

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9
Q

Pardon Power

A

“CRIMINALS FESTER INSIDE”

(1) Must be for CRIMINAL offense
(2) Charged under FEDERAL law
(3) Congress has not IMPEACHED the person

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10
Q

Fourteenth Amendment P+I Clause

A

RIGHT TO TRAVEL: State can’t discriminate against people who move into the state; right to enter onto federal lands; right to petition congress for redress of grievances, right to vote for federal officers.
Must be NECESSARY to achieve an IMPORTANT government purpose; no LDA. Requires SUBSTANTIAL JUSTIFICATION.

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11
Q

Article IV P+I Clause

A

RIGHT TO EARN A LIVING: State can’t discriminate against NON-RESIDENTS trying to earn a living in that state. Must be NECESSARY to achieve an IMPORTANT government purpose; no LDA. Requires SUBSTANTIAL JUSTIFICATION.

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12
Q

Dormant Commerce Clause

A

(1) If a state law AFFECTS interstate commerce; then (2) BALANCING TEST if no discrimination against out-of-staters; and (3) if there’s discrimination against out-of-staters, gov’t must show that the law is NECESSARY to achieve an IMPORTANT government purpose (NO LDA)

EXCEPTION: GOV’T AS MARKET PARTICIPANT

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13
Q

Dormant Commerce Clause and State Taxes

A

Cannot discriminate against out-of-staters
A non-discriminatory tax is valid if:
STATES NEED FREQUENT ADVICE FROM RABBIS
S ubstantial N exus (between prod/activit taxe and the state)
F airly A pportioned (to avoid double taxation)
F air R elation (to the services provided by state)

NO TAXATION ON COMMODITIES IN COURSE OF INTERSTATE TRAVEL UNTIL GOODS REACH DESTINATION

TAX ON INSTRUMENTALITIES OK IF THERE IS A TAXABLE SITUS AND THE ABOVE TEST IS MET. PROPER APPORTIONMENT = AVG PHYS PRESENCE OF INSTRUMENTALITY IN THE STATE

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14
Q

FULL FAITH AND CREDIT

A

(1) jurisdiction of rendering court (PJ + SMJ)
(2) final judgment
(3) on the merits

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15
Q

Bill of Rights Not Applicable To States

A

8th Am. prohibition of excessive fines; 7th Am. right to jury trial in civil cases; 5th Am. right to grand jury indictment in criminal cases; 3rd Am. right against quartering of soldiers.

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16
Q

§ 5 of the Fourteenth Amendment

A

Congress’s law must be NARROWLY TAILORED, congruent, and proportional, to rectify a history or pattern of EPC violations.

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17
Q

Strict Scrutiny

A

NECESSARY to achieve a COMPELLING gov’t purpose; no LDA. Gov’t burden.

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18
Q

Intermediate Scrutiny

A

SUBSTANTIALLY RELATED to an IMPORTANT gov’t purpose, narrowly tailored. Gov’t has burden of showing exceedingly persuasive justification for the discrimination.

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19
Q

Rational Basis

A

Reasonable/rationally related to a conceivable gov’t purpose. Petitioner’s burden.

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20
Q

Contracts Clause

A

Private –> substantial impairment triggers intermediate scrutiny
Public –> substantial impairment triggers higher scrutiny, maybe strict scrutiny

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21
Q

Due Process Balancing test

A

(1) IMPORTANCE of interest to individual;
(2) AVAILABILITY of add’l procedures to increase accuracy;
(3) Government interest in EFFICIENCY

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22
Q

DP: Termination of welfare benefits

A

Notice and a hearing

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23
Q

DP: Right to custody of one’s children

A

Notice and a hearing

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24
Q

DP: Termination of social security DISABILITY benefits

A

POST-TERMINATION hearing

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25
Q

DP: Punitive Damage awards

A

jury instructions to guide discretion + judicial review to ensure reasonableness of award

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26
Q

DP: non-citizen held as enemy combatant

A

ability to challenge continued detention through some legitimate procedure

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27
Q

DP: public employment, if tenured or termination only allowed for cause

A

Prior notice, opportunity to respond, and post-deprivation hearing

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28
Q

DP: Public education – suspension or academic dismissal

A

Prior notice, opportunity to respond (no hearing required)

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29
Q

DP: U.S. citizen facing crim charges in foreign country, held by Us military

A

Habeas corpus petition and review in federal court

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30
Q

DP: Recusal of judge

A

Required if` substantial risk of actual bias

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31
Q

DP: Fees denying access of indigents to courts

A

Must be waived if imposition denies fundamental right: marriage license, divorce, candidate for electoral office, but not when non-fundamental rights are involved such as bankruptcy discharge or review of welfare determination.

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32
Q

DP: emergency action by government

A

STD = shocks the conscience

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33
Q

Regulatory Taking

A

No reasonable, economically viable use of land remains.

Conditions on development = taking unless justified by a benefit roughly proportional to the burden of the regulation.

Temporary denial of use of land is okay if REASONABLE (e.g., environmental standard)

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34
Q

Taking: Public Use Standard

A

Reasonable belief of benefit to the public

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35
Q

Right to marry

A

Fundamental privacy right triggering strict scrutiny

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36
Q

Right to procreate

A

Fundamental privacy right triggering strict scrutiny

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37
Q

Right to custody of children

A

Fundamental privacy right triggering strict scrutiny (state must show compelling interest)

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38
Q

Right to keep family together

A

Fundamental privacy right triggering strict scrutiny

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39
Q

Right to purchase and use contraceptives

A

Fundamental privacy right triggering strict scrutiny

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40
Q

Right to possess obscene material

A

Fundamental privacy right triggering strict scrutiny

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41
Q

Right to engage in private consensual sexual activity, same-sex or otherwise

A

Fundamental privacy right triggering unknown level of scrutiny

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42
Q

Right to refuse medical teatment

A

Fundamental privacy right triggering unknown level of scrutiny

(Note: this is an individual right, states can place burdens on allowing others to decide)

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43
Q

Right to physician-assisted suicide

A

No right

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44
Q

Right to education

A

No right

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45
Q

Right to practice trade or profession

A

No right

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46
Q

Right to vote

A

Fundamental constitutional right triggering strict scrutiny

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47
Q

Poll Taxes

A

Unconstitutional

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48
Q

Property Requirement to Vote

A

Unconstitutional

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49
Q

Prohibition on Parties Opening Primary Elections to Anyone

A

Unconstitutional

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50
Q

Durational residency requirements to vote

A

> 50 days unconstitutional

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51
Q

Dilution of right to vote

A

Congressional: requires almost exact mathematical equality when creating congressional districts

State: no variances of more than a few percentage points for number of persons within districts, but maintaining integrity of local political subdivisions is a legitimate state interest as long as final apportionment is substantially based on population (upheld 16% variance for this reason).

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52
Q

Right to Abortion

A

Fundamental privacy right triggering undue burden analysis. (Prior to viability, no prohibition but regulation as long as not undue burden; after viability, prohibition unless necessary to protect life/health of mother).

Undue burdens = spousal consent and notification

Not undue burden = parental consent and notification for unmarried minor; 24-hour waiting period; performance by licensed physicians; partial-birth abortion

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53
Q

Laws Preventing People From Moving Into State

A

Protected under 14th Am. P+I clause (strict scrutiny)

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54
Q

ONE YEAR RESIDENCY IN STATE FOR WELFARE BENEFITS

A

INVALID under 14th amendment (EPC/P+I)

55
Q

ONE YEAR RESIDENCY IN STATE TO VOTE

A

INVALID under 14th amendment (EPC/P+I)

56
Q

ONE YEAR RESIDENCY IN STATE TO RECEIVE SUBSIDIZED MEDICAL CARE

A

INVALID under 14th amendment (EPC/P+I)

57
Q

ONE YEAR RESIDENCY IN STATE TO OBTAIN DIVORCE

A

VALID under 14th amendment (EPC/P+I)

58
Q

INCREASED PENALTIES ON FATHER ABANDONING CHILDREN BY LEAVING STATE

A

VALID under 14th amendment (EPC/P+I)

59
Q

RESTRICTIONS ON INTERNATIONAL TRAVEL

A

NO fundamental right to international travel, so rational basis review applies

60
Q

Commercial Speech Restrictions

A

Bans permissible if the speech proposes unlawful activity or is misleading/fraudulent, otherwise upheld only if: SUBSCONSCIOUS DELIVERS ANOTHER NINE TORTILLAS.
The regulation serves a SUBSTANTIAL gov’t interest, directly advances that interest, and is narrowly tailored to serve that interest

61
Q

Prior Restraints

A

Strict Scrutiny eview: (1) Special social harm; (2) Narrowly drawn, reasonable, and definite; (3) Prompt + final determination of validity of restraint.

62
Q

Licensing for Speech

A

Only if: (1) important reason; (2) clear criteria w/ almost no discretion in licensing authority; (3) procedural safeguards

63
Q

Regulation of Symbolic Speech

A

OK if (1) important interest unrelated to suppression of the message; (2) impact on communication is no greater than necessary to achieve that goal

64
Q

Flag Burning

A

Protected speech

65
Q

Draft card burning

A

Not protected speech

66
Q

Nude dancing

A

Not protected speech

67
Q

Burning crosses

A

Protected unless done in a threatening way or to intimidate

68
Q

Contribution limits in election campaigns

A

Not protected speech (limits allowed)

69
Q

Expenditure limits in election campaigns

A

Protected speech (no limits allowed)

70
Q

Anonymous speech

A

Protected speech

71
Q

Equal Protection Clause: Initial Questions

A

(1) Classification? (2) Level of scrutiny? (3) Scrutiny met?

72
Q

Suspect Classes

A

Trigger strict scrutiny: Race, Alienage (with exceptions), Nat’l Origin

73
Q

When Alienage does NOT trigger Strict Scrutiny

A

(1) Federal gov’t purposes
(2) If the law is related to a “self-government” role like police officer, secondary school teacher, elective office, jury service.
(3) UNDOCUMENTED aliens are not a suspect class, except maybe children (can’t deny undocumented alien child a free public education)

74
Q

Quasi-Suspect Classes

A

Gender (benefitting OK but not to perpetuate stereotypes); Legitimacy

75
Q

Gender-based death benefits

A

Invalid under intermediate scrutiny

76
Q

Gender-based peremptory strikes

A

Invalid under intermediate scrutiny

77
Q

Alimony only for women

A

Invalid under intermediate scrutiny

78
Q

State-supported all-male, all-female schools

A

Invalid under intermediate scrutiny

79
Q

Discriminatory minimum drinking age

A

Invalid under intermediate scrutiny

80
Q

discriminatory statutory rape laws

A

VALID under intermediate scrutiny

81
Q

All-male draft

A

VALID under intermediate scrutiny

82
Q

Requiring American fathers, not mothers, to prove parentage of non-marital children born abroad to obtain US citizneship

A

VALID under intermediate scrutiny

83
Q

Law requiring establishment of paternity to receive certain benefits

A

VALID under intermediate scrutiny

84
Q

Classifications based on wealth

A

RATIONAL BASIS

85
Q

Classifications based on age

A

RATIONAL BASIS

86
Q

Classifications based on disability

A

RATIONAL BASIS

87
Q

Gov’t Speech

A

Rational basis (w/ religious messages, must have diversity of message)

88
Q

Gov’t funding of private messages (e.g., funding campus newsletter)

A

Must be viewpoint neutral

89
Q

Content-based restrictions of speech

A

View-point or subject matter: strict scrutiny

90
Q

Content-neutral restrictions of speech

A

Intermediate: must advance important interests unrelated to the suppression of speech and be narrowly tailored, not burden substantially more speech than necessary

91
Q

Time/place/manner restrictions in public forums or designated public forums

A

(1) Content neutral; (2) narrowly tailored for important government purpose; (3) leave alternative channels of comm’n open

92
Q

Limited Public Forum Restrictions

A

(1) viewpoint neutral; (2) reasonably related to legitimate gov’t purpose

93
Q

Public forums

A

Sidewalks (except outside of Post Office; parks) NOT e.g. the steps of a courthouse while in session.

94
Q

Limited Public Forums

A

Classrooms in public schools when out of session, any public forum opened by government for some speech

95
Q

Non-public forum

A

Military bases, airports (but can’t ban ALL speech; may prohibit solicitation of money, but can’t prohibit distribution of literature ); schools while in session; government workplaces.

96
Q

Obscenity Restrictions

A

Not protected speech if:
Prudish Individuals Preach Opposition (to) Nudes, Anarchists, and Vandals.
(1) appeals to PRURIENT INTEREST in sex (measured by community standard);
(2) is PATENTLY OFFENSIVE (by community standards); and
(3) NO serious ARTISTIC, literary, scientific, political, or social VALUE (measured by national standard).

97
Q

Oaths requirements

A

OK if not over broad, vague (can’t require to swear to flag or have/not have membership in parties) but can require oath to uphold constitution.

NOTE: REQUIREMENT NOT TO BE A MEMBER OF AN ORGANIZATION THAT PROMOTES ILLEGAL ACTIVITIES IS NOT CONSTITUTIONAL. Overbroad –> state has compelling interest in preventing KNOWING membership with specific intent to FURTHER UNLAWFUL AIMS but cannot deny license b/c of mere membership in particular group.

98
Q

Association: Punishment of group members

A

OK if: (1) Actively affiliated; (2) knows of illegal activity; (3) specific intent to further illegality

99
Q

Association: Protection of right to discriminate

A

None, unless it’s a very intimate association whose purpose is to discriminate as expressive activity (e.g., KKK dinner party).

100
Q

Association: laws requiring disclosure of group membership

A

NOT OK if disclosure would chill membership (e.g., NAACP in the 60s in the South)

101
Q

Establishment Clause Test for Government Activity

A

Government must prove SEX:

(1) Secular purpose
(2) primary Effect is not to advance religion;
(3) no eXcessive gov’t entanglement with religion

102
Q

Payment of teacher’s salaries in parochial schools

A

Violates Establishment Clause

103
Q

Discrimination against religious speech or among religions

A

Must meet strict scrutiny or else violates Establishment Clause

104
Q

Laws aimed at religious PRACTICES generally

A

Must meet strict scrutiny or else violates Establishment Clause

105
Q

Neutral laws of general applicability that tangentially affect a certain religious practice

A

Does not violate establishment clause unless org can show the legislation was MOTIVATED BY DESIRE TO INHIBIT the religious organization’s objections.

Don’t apply rational basis test to reviewing laws of general applicability under the establishment clause.

106
Q

Government-sponsored religious activity in public schools

A

Violates Establishment Clause

107
Q

Voluntary/mandatory school prayer or voluntary moment of silent prayer

A

Violates Establishment Clause

108
Q

Government assistance to parochial schools not used for religious instruction

A

Does Not Violate Establishment Clause

109
Q

Government providing vouchers to parents which may be used to send children to parochial schools

A

Does Not Violate Establishment Clause

110
Q

Legislature’s employment of chaplain or beginning legislative session with prayer

A

Does Not Violate Establishment Clause

111
Q

Delegation of zoning power to religious organization

A

Violates Establishment Clause

112
Q

Requirement that all employers grant workers their Sabbath day off

A

Violates Establishment Clause

113
Q

Christmastime display of only religious symbols (nativity scene, menorah only)

A

Violates Establishment Clause

114
Q

Displaying Ten Commandments with predominantly non-religious purpose

A

Does Not Violate Establishment Clause

115
Q

Displaying Ten Commandments with predominantly religious purpose

A

Violates Establishment Clause

116
Q

Christmastime display that includes religious and nonreligious symbols

A

Does Not Violate Establishment Clause

117
Q

Granting religious organization an exemption from employment discrimination laws where contrary to org’s beliefs

A

Does Not Violate Establishment Clause

118
Q

Reimbursement for Writing Achievement Tests in ParochialSchools

A

Violates Establishment Clause

119
Q

Providing private schools with teachers or money to pay teachers of secular classes

A

Violates Establishment Clause

120
Q

Tax exemptions for religious ass’ns only

A

Violates Establishment Clause

121
Q

Property tax exemptions for religious, charitable, or educational properties

A

Does Not Violate Establishment Clause

122
Q

Tax credits for parents of all students for educational expenses, including parochial school children

A

Does Not Violate Establishment Clause

123
Q

Tuition vouchers for poor students that can be used to attend both public and private schools

A

Does Not Violate Establishment Clause

124
Q

Providing transportation to and from school for all students, including those at parochial schools

A

Does Not Violate Establishment Clause

125
Q

Providing all students with state-approved textbooks or lending religiously-neutral instructional materials to private and public schools

A

Does Not Violate Establishment Clause

126
Q

Ending classes early to allow students to attend off-school religious classes

A

Does Not Violate Establishment Clause

127
Q

Ending classes early to allow students to attend voluntary in-school religious classes

A

Violates Establishment Clause

128
Q

Prayer, bible reading, or posting ten commandments in school or at football games

A

Violates Establishment Clause

129
Q

Requiring creation science to be taught

A

Violates Establishment Clause

130
Q

Allowing religious student groups to meet in unused classrooms as any other student group

A

Does Not Violate Establishment Clause

131
Q

Speech restrictions on curriculum-based public high school activities

A

Not public forums so restrictions will be upheld as long as viewpoint neutral and reasonably related to legitimate government purpose.

132
Q

Prohibition on publishing articles on drugs in a school newspaper as part of a journalism class

A

Upheld as valid under First Amendment

133
Q

Speech protections in public school

A

Students do have some first amendment protections although they do not enjoy FULL constitutional rights. E.g., students have First Amendment rights to wear black armbands in school to protect Vietnam war. Curriculum-based high school activities are NOT public forums, though, and can be regulated as long as viewpoint neutral and reasonably related to legitimate gov’t purpose

NY Bar Condensed Review (18 decks)

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