con law Flashcards
con law
con law MBE tips
- think in black and white 2. focus on individual rights 3. test covers US constitution, not state statutes 4. know hierarchy of laws (constitution, treaty/fed statute, executive order, state statute) 5. always ask- where am I?
con law
denial of public employment based on political org membership
A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization’s illegal activities, and (iii) has a specific intent to further those illegal objectives
con law
delegation of powers
because congress is vested by article 1 with “all legislative powers,” it may not delegate that power to any other branch of government. This principle is known as the “non-delegatoin doctrine.” However, delegation of some of Congress’s authority to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate. Almost any legislative delegation passes the “intelligible standards” requirement, so event broadly phrased standards have been upheld.
con law
commandeering
congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or administer a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly. However, through the use of the taxing and spending powers, Congress may encourage state action that it cannot directly compel.
con law
Takings clause
- known as “eminent domain” 2. takings clause (5AM) is a check on this power 3. private property may not be taken for public use, without just compensation. 4. 14Am applies it to states 5. regulation generally not a taking. 6. regulation taking? factors: i) economic impact on property owner, ii) extent to which regulation interferes with owner’s reasonable, investment-backed expectations regarding use of the property, iii) character of the regulation, including degree to which it benefits society, how it distributes the burdens and benefits among property owners, and whether it violates any of the owner’s essential attributes of property ownership.
con law
public forum
A public forum is a place that has been devoted to public discourse either traditionally or by governmental designation.
con law
primaries
A state cannot require a local party to participate in an open primary (i.e., a primary in which any voter in the state may vote in a political party’s primary) to choose presidential electors where the national party has required that electors must be chosen only by party members. In addition, a state may not prohibit a political party from allowing independents to vote in its primary.
con law
self-executing treaty
Under the Supremacy Clause, a state is required to follow federal law when it conflicts with state law. A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation. The President, acting on his own, cannot implement such a treaty.
con law
desegregation
Because discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause. A court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. If there is no such evidence, a federal district court can only remedy constitutional violations (i.e., race discrimination) that occurred within a particular school district.
con law
abortions
Although a woman has a constitutional right to have an abortion, the state is not constitutionally required to permit abortions at a state owned or operated facility.
con law
lemon test
Under the Lemon test, a governmental action that benefits religion is valid if (i) it has a secular purpose, (ii) its principal or primary effect neither advances nor inhibits religion, and (iii) it does not result in excessive government entanglement with religion.
con law
comity clause
the Comity Clause of Article IV, Section 2 only protects U.S. citizens against discrimination by a state other than the state of which they are a citizen. It does not apply to resident aliens.v
con law
Property clause
The Property Clause of Article IV, Section 3 states, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This power includes not only the power to dispose of property owned by the United States and to make incidental rules regarding its use, but also the power to protect the property.
con law
Time, manner, place restrictions for public forum
- must be content-neutral, 2. narrowly tailored to serve a significant governmental interest, and 3. leave open ample alternative channels for communication of the information.
con law
citizenship
The protection of national citizenship in Clause I of the Fourteenth Amendment prevents Congress from taking away a person’s citizenship without her consent, unless that citizenship was obtained by fraud or in bad faith.
con law
PDP: seizure of home and car
Generally, the government is required to provide the owner of real property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute. However, the government does not need to provide notice prior to the seizure of personal property.
con law
prior restraint
A prior restraint is a regulation of speech that occurs in advance of its expression (e.g., publication or utterance). Prior restraints are generally presumed to be unconstitutional, with limited exceptions. These rare exceptions require at a minimum that: (i) there is a particular harm to be avoided (like publication of troop movements); and (ii) Certain procedural safeguards are provided to the speaker. Examples of such safeguards include: (a) The standards must be narrowly drawn, reasonable, and definite; (b) The censoring body must promptly seek an injunction; and (c) There must be a prompt and final judicial determination of the validity of the restraint. The burden is on the government to prove that the material to be censored is not protected speech.
con law
regulation of content
In general, the government may regulate the content of speech only if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., the strict scrutiny test). The government must identify an actual problem, and the regulation of speech must be necessary to solve that problem. This standard is incredibly stringent and is not often met. However, the government may restrict speech on the basis of content if the speech falls into one of the following historic and traditional categories, such as obscenity. if content=>> follow w/ strict scrutiny analysis
con law
obscenity
Obscene speech is not protected by the First Amendment Free Speech Clause. To be considered obscene, the average person, applying contemporary community standards, must find that the material, taken as a whole: (i) appeals to the “prurient interest”; (ii) depicts sexual conduct in a patently offensive way; and (iii) lacks serious literary, artistic, political, or scientific value.
con law
vagueness
A statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited. As with overbreadth, vagueness is impermissible for fear that constitutionally protected speech will be chilled. In addition, the “void for vagueness” doctrine is grounded in the due process requirement of notice. Under due process principles, laws that regulate persons or entities must give fair notice of conduct that is forbidden or required. Statutes that tie criminal culpability to conduct that involves subjective judgments without providing statutory definitions, narrow context, or settled legal meanings have been struck down for vagueness.
con law
overbreadth
A law that burdens substantially more speech than is necessary to protect a compelling governmental interest is overbroad and therefore void. A statute’s overbreadth must be substantial both in an absolute sense and relative to the statute’s plainly legitimate reach. The mere fact that some impermissible applications of a statute can be conceived of is not sufficient to render a statute overbroad. In order to prevent a chilling effect on protected speech (i.e., frightening people into not speaking for fear of prosecution), overbroad statutes may be challenged as facially invalid even by those who are validly regulated on behalf of those who are not.
con law
standing
Standing relates to the power of the federal judiciary under Article III to hear a case. The case itself may involve rights arising from a federal statute as well from the Constitution.
