Con Law Flashcards
1
Q
Con Valid Case/Contr
A
Standing
Timing
11th Amend
2
Q
Con Standing
A
Individual
3rd Party
Taxpayer
Organizational
3
Q
Individual Standing
A
Injury Actual or imminent Traceability Redressability Outcome must be possible
4
Q
Con 3rd Party Standing
A
Individual standing
Special relationship between the two
Difficult for 3rd party
5
Q
Taxpayer Standing
A
Only for violation of Establishment
6
Q
Org Standing
A
Members have standing
Interests related to org’s purpose
Does not require participation by org’s members
7
Q
Con Timing to File
A
Ripeness
Mootness
8
Q
Ripeness
A
Cannot be too speculative
9
Q
Mootness
A
Must still be in controversy
10
Q
Exceptions of Mootness
A
Collateral Consequence
Voluntary Cessation
Class action
11
Q
11th Amend
A
Provides immunity to states from federal suit
12
Q
Individual 11th Amend
A
Precludes citizens from
Suing their own state in Fed court
13
Q
Gov’t 11th Amend
A
Precludes citizens of one state from
Suing another state in Fed court
14
Q
Not Barred by 11th Amend
A
Actions against local gov’t
Actions by US gov’t
Bankruptcy
15
Q
Exceptions to 11th Amend
A
Injunctive Relief When state official Enjoined from enforcing state law Damages Only if officer pays b/c outside law
16
Q
Con State Action
A
Must be gov’t involvement for violation of constitution
Two types: Traditional or Entanglement
17
Q
Trad State Action
A
Elections OR private property used for public services
18
Q
Entanglement State Action
A
Significant State Involvement:
When gov’t acts affirmatively to
Facilitate, encourage, or authorize activity
Judicial and law enforcement
Government licensing and regulation
Government subsidies
Voter initiatives permitting discrimination
19
Q
10th Amend state powers
A
All powers not assigned to Fed go to state cannot compel states to pass laws
20
Q
Fed Legislative Powers
A
Commerce Clause Taxing/Spending War Alienage Enabling Delegation DC
21
Q
Commerce Clause
A
Channels: Highways, waterways
Instrumentalities: Cars, trucks
Activity that substantially affects
Intrastate:
Commercial or economic:
Rational basis
Substantial economic effect on interstate
Noncommercial or noneconomic:
Direct and substantial effect on interstate
22
Q
Legis Taxing Power
A
Reasonable relation to revenue production
Goods exported to foreign cannot be
Taxed by Congress
23
Q
Legis Spending Power
A
Broad power for general welfare
24
Q
Legis War Power
A
Power to declare war and raise armed forces
25
Legis Alienage Power
Plenary
26
Legis Enabling Power
Broad authority to enact laws necessary and proper
| Rationally related to enumerated power
27
Legis DC Power
Congress supreme authority
28
Legis Delegation Power
Generally no
| Sometimes if intelligible principle
29
Explicit Exec Power
Appointment
Veto
Pardon
Military
30
Exec Appt Power
Officers subject to senate approval
31
Exec Veto Power
In its entirety
If no action by pres &
Congress in sess, law passes
32
Exec Pardon Power
Federal offenses
| Except impeachment
33
Exec Military Power
Action w/out declaration of war
| Can be limited by Congress
34
Inherent Exec Powers
Max Auth
Zone of Twilight
Lowest Ebb
35
Inherent Max Auth
Express or implied auth by Congress
| Difficult to challenge
36
Inherent Zone of Twilight
No act by Congress either way
| Constitutional unless usurp powers given to Congress
37
Inherent Lowest Ebb
Express denial from Congress
Constitutional ONLY if Congress
Act was unconstitutional
38
Judiciary Power for Fed to Review Cases
```
Arising under the Constitution
Admiralty
Between two or more states
Between citizens of different states
Between state or its citizens and a foreign country
```
39
Exception to Fed Power to review Cases
Independent and adequate state law
| Will not be heard even a Fed question
40
Express Preemption
Language shows intent
| “Supersedes any and all state laws”
41
Preemption
State limitations for legislation based on Fed laws
42
Implied Preemption
Conflict: mutually exclusive
Impedes Fed legislative goal
Field: Congress occupy particular area of law
43
DCC
Commerce clause reserves to congress
Power to regulation commerce
If congress has not acted then state can regulate so long as does not discriminate or unduly burden interstate commerce
44
Req of DCC Discriminate
Necessary to achieve important
Non-economic gov’t interest
With no reasonable alternative
45
Req of DCC Unduly burden interstate commerce
Rationally related to a legitimate gov’t interest
| Outweighed by benefits to state
46
Exceptions to DCC
Congressional Approval
| Market Participation
47
P & I
Prevents discrimination against non-citizens regarding fundamental right to national unity UNLESS substantial reason
Corporations and aliens not considered citizens for this
48
Substantial Reason P&I
Peculiar source of evil
Substantially related to this evil
With no less restrictive means to solve the problem
49
K Clause
Prevents state gov’t from passing laws retroactively AND substantially impair existing contracts
50
Private K Clause
Reasonable and appropriate to serve significant and legitimate public purpose
If social and economic:
Must be necessary
51
Public K Clause
Necessary to serve important public purpose
52
10th Amend Commandeering
The Fed government cannot force the states to create laws or force states to enforce Fed laws
53
First Amendment
Protects individual rights to free speech and is applicable to the states through the 14th amendment
54
Content Based Speech
Regulated based on content
| Requires strict scrutiny
55
Strict Scrutiny
Narrowly tailored
| Compelling gov’t interest
56
Less Protected Speech
```
Obscenity
Incitement
Fighting Words
Defamation
Commercial
```
57
Obscenity Speech
Appeal to prurient interest
Patently offensive to average person
Lacks value: artistic, scientific, etc
58
Incitement Speech
Intended to incite
Imminent lawless action
Likely to do so
59
Fighting Words Speech
Likely to immediate breach of peace
60
Commercial Speech
Non-deceptive/non-illegal speech
Substantial gov’t interest
Directly advances that interest
Least-restrictive method to achieve
61
Content Neutral Speech
Aimed at something other than content
Serve significant/important gov’t interest
Narrowly tailored to that interest
Leave alternative channels of communication
62
Time Place Manner Forums
Public
Designated
Limited
Non Public
63
Public Forum
Generally open to public
64
Designated Forum
Not general public but opened up for specific purpose
65
Public/Designated Req
Subject matter and viewpoint neutral
Serve significant/important gov’ interest
Narrowly tailored
Leave open alternative channels
66
Limited Forum
Opened for limited use by certain group
67
Non Public Forum
Closed to public
68
Non-Public/Limited Req
Viewpoint neutral
Serve legitimate gov’t interest
Reasonably related to interest
69
Symbolic Speech
Within Constitutional power
Important gov’t interest
Unrelated to suppression of speech
Prohibits no more speech than necessary
70
Vagueness
Sufficient definiteness that people understand
Does not encourage
Arbitrary or discriminatory enforcement
71
Overbreadth
```
Burdens more speech than
Necessary to protect gov’t interest
If properly regulated
Strike whole statute
If not properly regulated
Removes only category being challenged
```
72
Prior Restraint
Preventing speech before it occurs only allowed if irreparable or serious harm to public
Narrowly drawn standards
Final determination on validity
73
Collateral Bar Rule
Must comply in order to challenge
74
Unfettered Discretion
Leaves discretion to decision maker
Not unfettered it
Narrow and specific grounds for denying
Closely tailored to regulation’s objective
Reasonable means of maintaining public order
75
Types of Religious Viol
Free Exercise
| Establishment
76
Free Exercise
Cannot intentionally interfere with a party's ability to exercise free religion
Requires strict scrutiny:
Narrowly tailored to achieve compelling gov't interest
77
Exception to Free Exercise
Does not intentionally burden religious beliefs
| Advances important public interest
78
RFRA Free Exercise
Allows challenge if substantially burden
Strict Scrutiny
Narrowly tailored to achieve
Compelling gov’t interest
79
Establishment
Prevents endorsing or
| Supporting religion
80
Sect Preference Establishment
Strict scrutiny
81
No Sect Preference
Lemon Test:
Secular purpose
Primary secular effect
No excessive gov’t entanglement
82
Freedom of Ass'n
Right to freely associate
| W/ individuals or groups
83
Ass'n Public Job
Active member of group
Knows group’s illegal aims
Specific intent to further group’s illegal aims
84
Compelled Ass'n
Compelling gov’t interest
Unrelated to suppression of free expression
Cannot be achieved by less restrictive
85
Press 1st Amend
```
No greater than public
Gag Order:
Prohibits publication about court proceedings
Subject to prior restraint
No constitutional privilege to protect sources
Broadcaster:
May be sanctioned for
Patently offensive
Sexual and excretory speech
```
86
Due Process Method
Applicable to states through 14th and Fed through 5th
87
Substantive DP
Gov’t action that infringes upon fundamental right and generally subject to strict scrutiny
Necessary to achieving
Compelling gov’t interest
88
Substantive DP Fundamental
```
Marriage
Living with family
Child bearing
Child rearing
Domestic travel
Voting
Free Speech
```
89
Substantive DP Non-Fundamental
Everything else
Rational Basis
Rationally related to
Legitimate gov’t interest
90
Procedural Due Process
Requires the gov’t to use
Fair process before
Intentionally depriving
Life, liberty, or property
91
Liberty Proc DP
Drive or raise a family
92
Property Proc DP
```
Real property
Personal property
Public education
Gov’t education
Gov’t licenses
Gov’t benefits already receiving
```
93
Judicial Process Due for PDP
Right to hearing
Call Witnesses
Fair Trial
Appeal
94
Non-Judicial Process Due for PDP
Individual’s interest in right affected
Added value of procedural safeguards used (Make up what they could have done)
Gov’t interest in fiscal and admin efficiency
95
Equal Protection
Of 14th Amend and app to Fed through 5th
| Treating similarly situated persons differently
96
Suspect Classification EP
Based on race, national origin, alienage OR fundamental
Strict Scrutiny:
Necessary to achieve
Compelling gov’t interest
97
Quasi-Suspect Classification EP
Based on gender or Illegitimacy
Intermediate:
Substantially related to achieve important gov’t interest
98
Non-Suspect Classification EP
Everything else
Rational Basis:
Rationally related to legitimate gov’t interest
99
Involuntary Servitude
Applicable to state and private
| Forcing someone to perform by threat, restraint, or legal sanction
100
Takings Clause
```
5th Amend
Private property not taken without
Public use and just compensation
This can be real property, tangible property
Or intangible property
```
101
Public Use Takings Clause
Rationally related to
| Conceivable public purpose
102
Just Compensation Takings Clause
Fair Market Value at time of taking
103
Types of Taking
Total Taking
Temporary Taking
Regulatory
104
Total Taking
Permanent physical invasion
| Denies all economically beneficial use
105
Temporary Taking
Economic Impact
Length of delay
Reasonable expectation of owners
Good faith on gov’t planners
106
Regulatory Zoning
Character of the invasion
Economic impact on claimant
Interference w/ investment backed expectation
107
Ex Post Facto
```
Retroactive change to crim or penal law that
Criminalizes act not
Crim when originally committed
Authorizes imposition of more severe penalty
Deprives defendant of defense
Available at time committed OR
Decreases pros burden of proof
Required for conviction
```
108
Bills of Attainder
Declared guilty w/ out trial
| Applies only to crim or penal
