Con Law ❤️ Flashcards
1
Q
Can a Congress member challenge law giving President power to exercise line item veto?
A
NO! Supreme Court has held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto, reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress.
2
Q
If question says “best argument” and standing can be a possible issue
A
If question says “best argument,” choose standing first, then Congress’s power etc.
3
Q
When can a taxpayer have standing to challenge taxing and spending power of Congress?
A
when
> spending is under Congress’s taxing and spending power, AND
> exceeds some specific limitation on that power, in particular the Establishment Clause (Congress cannot establish religion). Ex: providing food to religious school can cause entanglement issues with religious institutions and be un-C under Establishment clause.
4
Q
To have federal court standing, person must show
A
- clear, specific stake in the outcome of litigation
> injury (economic better) - cannot be theoretical - Causation
- Redressability
- no third party usually
- no generalized grievances
5
Q
protecting local businesses v. legitimate state purpose that may look like protecting local business
A
careful: protecting local businesses v. legitimate state purpose (like protecting lobster population)
6
Q
Does having a bias judge violate due process?
A
YES, Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge). If a judge has an interest in a case that causes a severe risk of bias, or actual bias, the procedure is not fair and the Due Process Clause is violated.
7
Q
Can a law affecting general population violate procedural due process?
A
NO, It is only a particular deprivation of an individual’s life, liberty, or property that triggers procedural due process concerns. An action that affects the population in a general manner does not trigger such a concern, even if an individual happens to be burdened as a result of the action.
8
Q
Does an at will employee have a right to procedural due process?
A
No, no entitlement - expectaction to receive benefit.
9
Q
Is defamation deprivation of liberty for Due Process Clause? 😒
A
NO, unless there is severe tangible loss
Damage to one’s reputation generally does not involve a loss of significant freedom of action or of a freedom provided by law. Therefore, it generally does not constitute a deprivation of liberty.
(However, it can, if the damage is so severe that employment or associational opportunities are lost.)
10
Q
What do the courts consider to determine what kind of procedural due process to apply?
A
Discuss multiple factors:
- Importance of the individual interest in question
- how helpful would more process be in fact-finding to achieve a fair solution.
- state interest
11
Q
Does due process require a notice/hearing to revoke a business license?
A
Yes! A business license is a valid property right, and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property.
12
Q
what due process is a “for cause employee entitled to?
A
Generally must be given
> notice of the charges and a
> pretermination opportunity to respond to those charges
Gov. can fire first if has a substantial reason, and hold a hearing later.
13
Q
Can a property interest in a public job be created without express “must fire for cause” provisions?
A
Yes if:
> there is a clear practice or
> mutual understanding that an employee can be terminated only for “cause.”
14
Q
What is enough to create suspect class? ( that would qualify for intermediate/strict scrutiny?)
A
- Discriminatory intent
- Discriminatory application (law to not have laundry in wooden building without permission, and only grant permissions to white people)
- Facial discrimination.
Note: discriminatory effect is not enough.
15
Q
State v. Federal laws discriminating against alienage
A
State law => Strict Scrutiny because alienage is a suspect class
Federal => Rational Basis Review because Congress is given special right to deal with immigration stuff
Note: also RBR if relates to stuff that directly affect the self-governing process (vote, teacher, probation officer,) 👮♀️
16
Q
Is discrimination against undocumented alien subject to SS?
A
No, SC has not said so => RBR?
Note: undocumented student INTERMEDIATE SCRUTINY if challenges student loan eligibility.
17
Q
Commercial Speech Regulation test
A
- Does the speech concern lawful activity?
- Substantial gov. interest
- Means chosen directly advance that interest
- Narrowly tailored (DOES NOT have to be the least restrictive means)
18
Q
Can Congress appoint executive commission members?
A
No, Congress cannot appoint its members/agent to carry administrative/enforcement duties. Such enforcement commission MUST BE APPOINTED BY THE PRESIDENT, because enforcement is executive power only - Congress cannot interfere or give itself such powers. 👍🏼
19
Q
Can Congress impose taxes on people who have no relation to the purpose of taxation?
A
Yes, Congress has a huge discretion to choose subjects to its taxation.
20
Q
Can disproportionally high taxation be considered taking?
A
No taxes almost never amount to taking.
Note: taking because of restrictive regulation happens only is when P is basically deprived of all economic benefit of his property
21
Q
Dormant CC elements
A
If state law affects interstate commerce, must balance (think RBR)
1) legitimate state interest
2) rationally related to state interest
3) state interest outweighs the burden
if discriminates against out of state: must show (think intermediate)
1) Necessary to achieve
2) important, non-economic interest (cannot support its own businesses)
3) no reasonable alternatives are available
exceptions: 1) Congress approved it, 2) state market participant exception
22
Q
What does 14th Am. Immunities and Privileges Clause protect?
A
ONLY rights that come from national citizenship
> think right to travel
23
Q
Can a state tax non-residents differently?
A
No, The negative implications of the Commerce Clause (or “the Dormant Commerce Clause”) prohibit taxes that discriminate against nonresidents.
24
Q
Does a regulation have to be the least restrictive means to pass Fourth Am. P&I clause?
A
Yes, gov. must show that less restrictive means are not available.
25
What does the right to travel include? (14th Amendment)
----> the right to travel includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.
A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest.
Note if question says someone "moved to the state" => he is a resident (4th A. P&I will not apply to him, so check 14th Am.) 😉
26
Fourth Am. P&I Clause elements
State law violates 4th Am. P&I Clause if:
- discrimination against non-residents
- affects fundamental right (livelihood)
- not substantially related to important gov. interest
- there are no less restrictive alternatives
27
Is requiring 1 year residency to qualify for state healthcare constitutional?
No, this is restricting right to travel under P&I of 14th Am. ==> discriminating b/w state resident based on how long they lived there is restricting fundamental right to travel under 14th Am.
Careful: if move to state, is a resident from day 1 - do not confuse with discriminating again non-residents (protected under 4th Am.). Residency requirement is discriminating b/w. state residents. 😝
28
what speech in not protected under First Am.?
- Fighting words
> inherently likely to incite immediate retaliation
> usually struck for overbroad
> true threat to put a group in fear of bodily harm
- Obscenity
> Cannot just be offensive
> Ok to zone to specific area if
= substantial government interest and
= do not entirely prohibit the activity
- Speech creating a clear and present danger of imminent lawless action
> must be directed to produce or incite such action
> is likely to produce such action
- True Threat - speech meant to communicate an intent to place a person in fear of bodily harm.
29
When can gov. limit right to speech in public forum because of unruly audience?
(i.e. police making protestors stop speech)
ONLY when there is a serious and imminent threat to the public order.
Gov. can restrict the speech of a speaker because of an unruly audience only in the rare case when the police are absolutely unable to control the crowd.
30
Is the building of court public forum?
NO, at most can be a limited public forum.
Note gov. buildings usually not public forum
31
Are high school class related journals public forum?
Supreme Court has held that curriculum-based public high school activities are not public forums.
32
Can a court assess sincerity of a person's religious beliefs?
A court MAY assess the sincerity of a person's religious beliefs when relevant to a particular case.
Although the Free Exercise Clause protects the freedom of belief, perhaps absolutely, a court may assess whether a person who says he acted based upon religious beliefs actually held the beliefs claimed.
For example, if a person says that he performed an act because "God told him to," a court may assess whether the person really believes that "God told him to" so act.
NOTE: under Free Exercise Clause, court cannot determine whether religious views are true, only check in sincere.
33
Can swearing on a Bible be a prerequisite for public office?
Particular religious beliefs cannot be made prerequisites to testifying in court or holding public office.
34
do general applicability laws have to have exception for religion?
NO, except for 2 cases:
=> the Amish must be exempted from mandatory schooling beyond eighth grade, and
=> workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.
35
Test for gov. action challenged under Establishment Clause when no religion is preferred.
Lemon Test:
1. The action has a secular purpose,
2. The action has a primary effect that neither advances nor inhibits religion, and
3. The action does not produce excessive government entanglement with religion.
36
Free Exercise Clause
Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, prohibits punishing people for their religious beliefs.
When a person claims that she is being punished for her religious beliefs, the court may consider whether the person challenging the law sincerely holds those beliefs
Not: First Amendment forbids a court from determining whether a person's religious beliefs are true.
37
Partial (Decreasing Economic Value) Taking Test
Balancing test
- public interest involved
- extent of the diminution of value
- owner's reasonable expectation of economic use (must be very specific and investment-backed)
38
Organizational standing elements
- injury in fact to members that given them right to sue on their own behalf
- injury related to organization's purpose
- individual member participation not required
39
One person one vote principle
Regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required. (double digit not ok)
Regarding state government districts, almost exact mathematical equality between districts is NOT required under the one person, one vote principle. (double digit ok, but not unreasonable)
In state government districts, the variance from district to district may not be unjustifiably large. But this is a much more lenient standard than the almost exact mathematical equality standard.
40
When is a state residency requirement ok?
=> not based on a suspect classification and
=> does not limit the exercise of a fundamental right,
- Do the rational basis test
ex: ok to require bona fide state residency for public education.
41
Can gov. chose not to pay/subsidize abortion pills, etc??
Sure, privacy right to abortion does not include the right to have the state pay for our pills/abortion etc.
Neither federal nor state government is required to grant medical benefit payments for abortions, even if it grants benefits for childbirth services. The Court has held that a state's failure to provide funding for a woman's abortion decision does not constitute interference with her constitutional right to make that decision.
42
Is a law limiting voting rights to residents constitutional?
Yes!
=> even though voting is a fundamental tight and is reviewed under SS,
=> exception re residency.
43
Contracts Clause
BETWEEN PRIVATE PARTIES
States cannot pass law imparting obligation of Ks.
applies ONLY to substantial interference. 3 part test:
1) does the law substantially impair a party's rights under existing K?
2) served important and legitimate public interest
3) reasonable and narrowly tailored way of protecting that interest.
BETWEEN PRIVATE AND GOVERNMENT K
- higher burden - not clear intermediate or strict. Cuz do not want to let gov. legislate and create better conditions for state.
- detrimental reliance is not required
44
What scrutiny is applied to restrictions to get your name/law on the ballot?
SS
but note: limiting the ballot to candidates that have a strong public support is a compelling gov. interest. (can pass SS if narrowly tailored too).
45
Can state enact policies encouraging women to chose childbirth over abortion?
YES, as long statute is reasonably related to purpose.
States can refuse to pay for abortion, refuse to allow abortion in state facilities, refuse to allow state employees to perform abortion, or otherwise restrict stuff
AS LONG AS not undue burden, which means the law has the PURPOSE or EFFECT of placing substantial obstacle on the path of women seeking pre-viability abortion.
Roe v. Wade => constitutional right to pre-viability abortion
Casey => state right to protect the baby - gives states wide power to regulate abortion if reasonably related to the purpose of encouraging childbirth or protecting potential life of baby UNLESS undue burden.
46
Is a State Supreme Court decision based on state Constitution reviewable by the US Supreme Court?
No, SC can't review is there is independent state law bases.
47
Can the president freely act (create commission, etc.) in area where Congress is silent?
Yes, as long as the acts do not take over the powers of another branch or prevent it from carrying its tasks
Note: president's internal power is unclear, but ok to act unless congress already acted or uses moneys that congress gave him for other reasons.
Basically can do anything if not prohibited and used the right money) 💰
48
What is Plenary Power v. Inherent State Power?
Inherent state powers
> US Constitution gives states the policing power re health, safety, general welfare etc.
> states can act unless there is a specific US Constitution limitation.
Congress Plenary power
> Congress shares this policing power through Taxing and Spending Powers that promotes general welfare of citizens.
- Note: Congress can share/delegate this power with president cuz it is supposed to execute Congress's regulations.
49
Can feds give money to teachers as long as they teach non-religious classes.
No, violates the Establishment Clause cuz excessive entanglement - gov would have to constantly go monitor who is teaching what in the religious school.
50
can a district court issue advisory operations?
NO,
- need 2 parties with real stake in controversy
- suffered injury, causation, and
- redressibility
tip: look for stuff where agency is free to not follow court opinion.
51
Burden on Foreign Commerce
treat the same as interstate commerce
> Congress has the exclusive power to pass statutes re foreign commerce.
> Dormant CC- states cannot burden Congress's commerce powers.
52
What's Supreme Court's original jurisdiction?
re ambassadors, ministers, counsels, and cases where a state is a party.
note: Congress can regulate/limit Supreme Court's appellate jurisdiction, BUT cannot regulate/extend original jurisdiction
53
Can a state/local gov. pass a law restricting interstate commerce that is authorized by a federal law?
Yes, if Congress has passed a law allowing certain burdens, states can pass stuff within it. => ok under the Dormant Commerce Clause
54
Intelligible principle of Congressional delegation of power to executive branch.
Congress can delegate authority to any agency/authority in executive branch, but must give SPECIFIC enough instructions.
55
Voting rights!
15th Amendment - prohibits the state and federal gov. to prohibit access to voting on the bases of race.
Enabling Clause allows Congress to pass laws to protect voting from discrimination.
56
Injury for standing purposes means
- particular/personal to P
- in fact - actually occurred.
cannot say that it hurt everyone in general because unconstitutional laws are bad.
57
Can Congress regulate for general welfare?
NO,
Congress can tax and spend for general welfare, but cannot directly regulate it.
Congress's regulation for the general welfare must be justified as a means of carrying other power given to Congress - commerce power, taxation, etc.
58
The Property Clause | IV Amendment, Section 3, Clause 2
Gives Congress power to regulate deferral territory and property.
59
Out-of state discriminatory statute burdening interstate commerce ok if ...
Necessary to meet a legitimate state goal.
60
Wen does a protestor violate a statute banning public threats of harm.
Note: gov. can ban public threats of harm, cuz inciting violence is not protected speech.
Not to violate the statute: D must
- advocate must make public threat of imminent lawless action.
- likely to actually produce such action. (laughing, joking is not enough, look at the context)
61
When can Congress regulate intrastate sales?
when the aggregate would affect interstate commerce.
62
Is Congress's taxing and spending power unlimited?
No, limited by individual rights.
63
Does Congress have police powers?
Not generally.
this answer choice that police acted within its police powers to pass a law is always wring, unless refers to
- DC
- US Territory
- military
64
Is operating under a state license or resigning some state grants state action?
NO, it does not rise to state action
- must be more intermingling, such as running a whole town.
65
When apply strict scrutiny for Equal Protection?
- Race
- National origin
- Alienage
- Religion
66
Can a person challenge a proposed law?
NO, be careful - if says proposed a law and want to restrain enactment => no controversy, so standing.
67
What is abstention?
State law is not clear, federal court will obtain from deciding a challenge until state courts have interpreted it.
68
Must P have an individual standing to bring a claim on behalf of third parties?
YES!
69
What are presented's inherent powers as the Commander in Chief?
he can move military for humanitarian as well as warlike purposes => pretty broad power, which get cut at one point by the requirement of Congress to declare war.
President can move troops unilaterally.
70
what type of review do we apply to Congress's choice to spend money
spending power is very broad - only has to pass RBR
low bar - just need to connect to promoting general welfare
Note: Spending power is different bases for legislating than commerce power (do not have to have both)
also note: congress can use spending power to impact foreign policy (like holding money from states it does not like)
71
state power over federal government
State police power cannot impose any burden on federal government.
+ cannot tax/take money from federal treasury
+ cannot use federal property without permission, etc.
72
Does the Contracts Clause apply to federal laws?
NO, only to state and local laws.
73
Is President's constitutional power to conduct foreign affairs plenary?
No it is limited by Congress's power to regulate interstate commerce.
Congress can ban the trade to other countries, President cannot get around it.
But Congress can authorize/delegate power to do foreign trade to President.
74
10th Amendment
federal gov. cannot make state officials to work for them.
under supremacy cause - federal regulations preempt state stuff, but cannot go too far, like tell the state of pass law or their officials to do something because that would violate the 10th Am.
75
What is the market participant exception to Dormant Commerce Clause?
state can discriminate against other states if is acting like a market participant -when state is itself buyer or seller in of a certain applicable thing.
76
Dormant Commerce Clause exceptions
if:
- Congress has approved discrimination
- or market participant is met,
pick this answer first and DO NOT CHECK for the test:
=> necessary to meet important gov. interest.
77
narrowly tailored
= least restrictive means necessary
78
Is there a limit to what kind of questions Congress can ask at hearing?
Yes, it must be stuff related to what congress has authority to legislate.
- note: Congress can question and even impeach executive branch people.
- also, there is no difference in what Senate or House can ask
79
Can a citizen sue President re his foreign policy decision if she has standing?
NO, barred by political question doctrine.
Constitution vests exclusive powers in Congress to deal with foreign policy.
80
What factors court considers for ripeness?
- fitness of the issues for judicial decision
| - hardship to parties of we wait until there is a violation
81
Can a state limit contribution limits to support ballot initiatives?
No, CANNOT limit the contributions to a political committee that supports or opposes a ballot referendum, because such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association.
vs.
can put limits on individual campaign candidates because compelling interest to prevent corruption, etc.
82
What does due process clause require?
Laws involving the deprivation of life, liberty, or property of an individual MUST provide for a process/hearing.
must be a case where life, liberty, or property is denied to an individual on judicial bases (based on each case).
If there is a legislative action to take away right from everyone without case-by-case bases, DP is ok as long as the law was lawfully adopted.
83
What is the test for campaign contribution restrictions, etc. ?
Intermediate scrutiny => narrowly tailored to important interest
- referendum/ballot measure support restrictions are not enough to pass the test.
84
First amendment Lemon Test v. discriminating among religions.
Lemon test - no establishment Clause problem.
Discrimination => need compelling government purpose.
85
Discriminating among religions, what does it violate?
First Amendment, Equal Protection?
86
what kind of residency requirements for voting are constitutional/un-c?
=> Relatively short residency requirements (e.g., 30 days) ok
=> longer (1-year) unconstitutional.
Violation of right to vote and 14th amenndment right to travel.
The residency requirement also impinges on the fundamental right to travel in the same manner (i.e., it discourages people from migrating by denying them the right to vote without a compelling reason).
87
What can you make employees to take an oath for?
- upheld oaths requiring government employees to oppose the violent overthrow of the government and
- to support the Constitution
CANNOT make them take oath re
- repenting flag (may be against religion)
88
when does SC have a jurisdiction over a case where state is a party?
YES => if state is acting to represent its interest as a state, (protect its economic interest), not when state is representing its citizens.
> state is attempting to defend its asserted right to render decisions affecting admissions policies relative to its own state universities.
> describes an attempt by the federal government to prevent state construction of a bridge (presumably pursuant to the admiralty power). Clearly, this case involves an alleged grievance that will be directly committed by a state. Therefore, the state is an actual party.
NO J => the state is attempting to act in parens patriae (i.e., to act as a representative of its citizens, thereby asserting their interests).
89
when is "one person, one vote" not applicable?
The principle of one person, one vote generally is inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes).
*everyone elects everyone, rather than every district sending one person.
90
when/how can overcome prior restraint?
the prior restraint would be justified if the government proves that it was narrowly tailored to achieve a compelling interest.
basically - show an overriding interest,
NOTE: pick the overriding interest answer when it is na option answer with prior restraint, because prior restraint can be overcome with it.
91
prohibiting clergy from serving in politics
Violates establishment clause - would not pass Lemon test because it inhibits religion.
92
what's the standard of review for Spending Taxing power
> RBR
93
Congress is spending for general welfare.
right answer if coupled with taxing and spending power
94
Exception to the rule that state can discriminate against out-of-states if it is a market participant
when Congress has said cannot do that.
95
if there is a state law that prihibites importation of out of state dolls, and Z is owns a store selling out of state dolls, does he have standing to challenge?
YES, as long as he will suffer economic harm because o his inability to sell the stuff.
Note, does not always have to be a foreign importer or a producer who cannot get his products into the state.
96
what if there is a preemption issue but no federal law
=> use the Congressional intent test: did Congress instant to occupy the field
presumption is that there is no intent to occupy and Congress has the burden to show that it did (if no clear statue)
97
Can states give their citizens greater protections than federal?
Yes, unless Congress says no.
98
when can a person apply for a cert?
when exhausted all options below
99
3d party standing 😾 Can a seller of goods/vendor have a standing to challenge a law that does not directly tell him what not to do/do on behalf of his clients.
Yes, if the law adversely affects the rights of her customers!
Same as the standing test:
> injury
> causation
> repressibility
> PLUS a CONNECTION/ NEXUS with people harmed
--- can be an economic connection (skates rental vendor suing against law to prohibit skating)
100
when confused in a Standing question
Be mechanical!
Ask 3 questions:
1) injury (mostly economic, environmental, etc.)
2) Causation
3) Redressibility
if no super direct injury, check if 3rd party issue.
> is there a sufficient LINK/NEXUS?
--- ex: vendor on behalf of customer because the ban will kill her business.
101
when may SCOTUS review decision from state court?
1) final judgment from the state court
2) highest state court (CA Supreme Court)
3) substantial federal Q being raised
4) state court decision did not rest on independent state grounds.
> there is independent state ground when STATE COURT RULED THAT THE CHALLENGED STATE LAW VIOLATED STATE CONSTITUTION.
- note: to confuse you, they may add another ground here re the law being preempted by federal statute. The second federal ground does not matter if one of the grounds is a valid state ground.
102
Are courts allowed to issue advisory opinions?
these are opinions that have no binding, legal effect on the case.
> federal courts => NO WAY
> state courts => are allowed
103
When can Congress NOT put condition its funding/grants?
the it is unduly coercive!
like cannot say I will cut all your funding next year if you do not do what I say to a state.
104
what are the limits of President as Commander in Chef
- not very clear
| - Congress pays for it
105
Limitation of President's pardon power?
- if Congress impeaches a person => no presidential pardon.
BUT can pardon a person a federal official indicted by deferral grand jury who left the country.
- CANNOT PARDON STATE OFFENDORS, only federal.
106
discrimination against foreign aliens
- state => SS, unless gov. function or congress allowed
| - federal => RBR
107
are there ANY irrefutable presumptions in con law?
NO!!! always a wrong choice
108
Contracts Clause
ONLY applies to state laws that RETROACTIVELY invalidate already existing ks.
> unless serves important gov interest
> narrowly tailored
does NOT apply to federal laws.
GOOD DEFENSE for a state
- 10th amendment > state is protecting citizens welfare rights
109
Do gov. laws with general applicability that look like taking require a due process.
NO, general applicability laws do not!
110
Is buying a land and giving it to a museum enough to constitute a state action?
NO, has to be substantial involvement.
if one time grant, no other entanglement, or no gov. function (utility), then it is not enough, so the private entity can discriminate as much as it wants, no constitutional issue (note: may violate a statute like the Civil Rights Act), unless it's re slavery (13th Am.) which is a direct fed. violation
111
DO NOT PICK EQUAL PROTECTION IF IT IS A FEDERAL LAW, ONLY PICK FOR STATE
IF FEDERAL LAW IS DISCRIMINATING, PICK FUNDAMENTAL DUE PROCESS UNDER 5TH AM.
112
are religious members allowed to be in politics, boards, etc.
YES, this violated the free exercise clause
113
free speech restrictions tested under intermediate scrutiny
- zoning laws re nude places, etc.
- symbolic speech
- time, place, manner - content neutral
- commercial speech
=> in between SS and Inter., substantial gov. interest. and narrowly tailored.
114
What kind of forum can a library be?
- private forum usually (not a historically public forum) => so RBR
- Limited public forum - if opens rooms to be reserved by public at certain times => viewpoint neutral + substantial interest test
115
what speech can press cover.
Press has a right to publish info about a matter of public concern and this can ONLY be limited if there is a HIGHER interest (right to privacy). check who is the other person - if a public person, low exception of privacy. May be limited if national security (Pentagon paper type thing).
even if info is obtained unlawfully
116
what standard can state use to evaluate obscenity
- prurient interest
- patently offensive => can use state or community standard.
- literary, artistic, political value => MUST BE NATIONAL REASONABLE PERSON STANDARD
117
when does the exception that can discriminate against non citizens in fields involving fundamental democratic processes NOT apply?
applies => to school teachers (fundamental impact on impressionable kids)
DOES NOT apply => to university professors.
118
When is a tax is valid under the Commerce Clause?
A tax is valid under the Commerce Clause if:
(i) the tax does not discriminate against interstate commerce;
(ii) there is a substantial nexus between the activity taxed and the taxing state;
(iii) the tax is fairly apportioned; and
(iv) the tax fairly relates to services or benefits provided by the state.
119
If Congress has delegated a power in certain area, may House pass a resolution to override it?
NO - separation of powers issue!
While Congress has broad power to delegate, the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism (i.e., passage by both houses of Congress).
Ex: By enacting the federal law allowing the administrative law judge to enter a final order with regard to aliens, Congress has given up any control it may have had previously in these situations.
120
Are Congress members' staff protected by the Speech and Debate Clause privilege as well?
Yes, conduct that occurs in course of legislative process (behind the scenes stuff to prep the member) is also protected by the privilege.
121
Pardon power
this is a very broad constitutional power
> can be blanket, not mention the exact crime.
> even if the action of issuing the pardon amounted to the crime of obstruction of justice, the pardon itself would not be invalidated. The power to pardon is a constitutional power, superior to laws found in statutes.
> can pardon crimes that happened before he took office
122
when would a federal court abstain?
when there is an unsettled question of state law below. Do not overuse this.
123
what are the limits of executive privilege? (subpoena high executives)
Executive privilege is an inherent privilege necessary to protect the confidentiality of presidential communications.
Under this privilege, presidential documents and conversations are presumptively privileged, but this privilege must yield to a demonstrated need for such materials as evidence in a criminal case in which they are relevant and otherwise admissible. [United States v. Nixon (1974)]
Although the Supreme Court has not expressly decided that the privilege must also yield to a demonstrated need for evidence in a pending legislative proceeding, such an extension of Nixon is likely,
124
if legislature creates a regulatory board
> cannot make it so a few members are from legislative branch!
This is executive thing! Congress can create the agency, but cannot appoint executive agency members. Article II gives this power to the President with Senate's consent.
125
do state legislators have immunity against federal claims,
Federalism principles => Yes, limited immunity from federal claims arising from the course of their official legislative duties - this is to protect state autonomy as much as possible.
Speech and Debate clause => gives limited immunity to state legislators against federal claims related to their legislative duties.
126
if there is a federal statute, state takes it and plugs it in its constitution. Then, state Supreme Court reviews a case, can SCOTUS review this?
if the State courts base their decision on interpretation of the federal statute, then just state that also violates the state constitution => no independent state ground here, SCOTUS can review.
IF STATE COURT INTERPRETS STATE AND FEDERAL STATUTES CO-EXISTIVELY => SCOTUS CAN REVIEW VALIDITY OF FEDERAL STATUTE
so if see identical provisions and identical interpretation => can review
but careful is the same statute language, but state court says, this is how we have done this in this state, so will interpret this way based on state precedent => this is an independent ground!
127
How can Congress monitor federal administrative agencies?
Congress can delegate some authority to fed, admin agencies to regulate stuff. Then Congress can monitor to make sure the rules are within the authority. Even if within authority, can repeal them with full leg. action.
Congress must pass a legislative action by both houses and send to President for approval to monitor committees.
Note: cannot just have a single Congress committee review an appeal admin rules.
128
Can Congress Limit Supreme Court's jurisdiction?
Article III explicitly allows Congress to make exceptions to the Supreme Court's appellate jurisdiction without qualification.
129
The enabling clause
The enabling clause of the Fifteenth Amendment allows Congress to adopt legislation protecting the right to vote from discrimination.
130
That's the scrutiny for children parent relationships?
SS - Fundamental right of privacy, and the fundamental right of privacy includes the right of parents to the companionship, care, custody, and control of their children. includes what school they should attend.
131
when can feds tell states what to do?
The Supreme Court has held that the 10th amendment generally prohibits the federal government from regulating states alone.
However, states can be regulated through laws that apply generally. For example, under Congress's commerce power, the federal government can require state governments to pay employees the federal minimum wage, like any other employer.
Moreover, it has been held that under Congress's powers under the Fourteenth and Fifteenth Amendments, the federal government may restrict state activities that the federal government determines would violate civil liberties.
132
Independent State Ground does not apply if
The Supreme Court will refuse to hear the case only if the state ground is adequate by itself to support the decision as well as independent, so that the Court's review of the federal ground for the decision would have no effect on the outcome of the case (such as if the state court had found the law invalid under both the state and federal Constitutions).
Here, the Supreme Court's review of the state court opinion on the law's federal constitutional status may have an outcome on the case regardless of the state court's decision on the state constitutional issue; the Court therefore will hear the federal issues involved.
133
ex Post Pacto Clause
Cannot pass a new law that punishes past conduct that happened before the law became effective
134
Bill of attainder
Prohibits passing a law that publishes a person without juridical trial by name or based on past conduct
135
Is there a state action if state funds the school 90% and school wrongly fires a person for protected speech
NO!!even if the state is licensing or giving money, accreditation, permitting the conduct is not enough, there must be an affirmative act by the state approving the conduct.
Note, usually very hard to find a state action here, so private place people usually cannot bring a constitutional right claim against employer, unless can show active and affirmative state approval.
136
can state make a child to attend certain school?
no, privacy fundamental right - would be strict scrutiny, but SCOTUS has explicitly prohibited this.
137
who can sue a state in federal court?
- Another state can
CANNOT
> private party
> foreign government
> Native American tribe is treated as a private party,
138
Can the President refuse to sign the budget bill and spend the money that Congress has designated for a specific purpose?
NO - MUST SIGN
The President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress's reason for making the appropriation.
Hence, the Supreme Court has ruled that there is no constitutional basis for the President to "impound" (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated. [Kendall v. United States (1838)]
139
Can a President unilaterally void a treaty that Senate had confirmed when US entered into it?
YES! Constitution only requires the President to obtain the advice and consent of the Senate to enter into treaties; it does not require him to obtain Senate consent to void a treaty.
140
Intergovernmental immunity
can state gov. go after federal employees within the state?
The states have no power to regulate the activities of the federal government unless Congress consents to the regulation.
Thus, instrumentalities and agents of the federal government are immune from state regulations that interfere with their federal functions
141
Can a public school fire a teacher for exercising his First Amendment rights?
YES! Because public schools generally are not public forums, reasonable restrictions based on legitimate pedagogical concerns rather than the content of the speech are permissible. (like limiting the right to protest)
142
Can a public employee have a liberty right to entitle her to a hearing before being fired even if she's at will?
YES, First Amendment
P has liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal.
A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer's policies or undermines the employer's authority.
143
US Postal Service - US postal monopoly
Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads.
This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail-public or private-can be established absent Congress's consent. Congress has delegated to the Postal Service the power to decide whether others may compete with it, and the Postal Service has carved out an exception to its monopoly for extremely urgent letters.
144
when cam members opt out of the class?
there are only two opt-out periods,
1) with the initial notice and
2) with the settlement agreement, and the latter only applies if the judge requires it.
In a "common question" class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out.
145
when can gov. "make states pass laws" and not violate 10th Am.
Can attach conditions if:
(i) are clearly stated;
(ii) relate to the purpose of the program; and
(iii) are not unduly coercive.
146
Appointment Clause - Article 4
Congress can vest the power to appoint executive people solely in the President, courts, or department heads, BUT CANNOT APPOINT ITSELF
".... but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."
