Con Law Flashcards
Congress does / does not have the power to promote the general welfare
does not. But CAN spend for the general welfare
The federal government does / does not have a general police power
does not; states do
Necessary and Proper is / is not a free-standing power of Congress
is not. It works only as an add-on to some other legislative power (e.g., “necessary and proper to coin money”)
What are Congress Big 3 powers?
tax, spend, commerce
Privileges or Immunities under the 14th Amendment
means nothing today (so it is never the correct answer on the MBE)
which special privileges does media have re: speech?
None. When asked about a law on the media, ask whether that law could be applied to you.
Privileges and Immunities Clause of Article IV
IV -> little outsider (I) bullied by big insider (V)
prevents a state from treating citizens of another state in a negative discriminatory manner (prevents state from saying that those outside its borders can be slaves when they enter) (MUST PASS STRICT SCRUTINY TO DO SO)
it does not prevent a state from discriminating against its own citizens
state interests for strict, intermediate, and rational basis
STRICT - law must be least restrictive means to achieve a compelling govt interest
(target a suspect class or involve a fundamental right [fam living together, travel, voting, life, liberty, property], and has discriminatory *intent*)
- To trigger strict or intermediate scrutiny under EQP,
there must be discriminatory INTENT by government
intermediate - substantially related to advancing/protecting an important govt interest
rational basis - rationally related to a legitimate govt interest
CIL [kill]
intermediate scrutiny applies to which classes?
gender and nonmarital child status (quasi-suspect)
does residency requirement trigger national origin discrimination/strict scrutiny?
no; alienage
Supreme Court has frequently stated that there is a presumption [in favor of / against] preemption
against
so: typically, federal law does not preempt state law, so a state is free to enact legislation regarding the same issue
A public employee who may be discharged only for cause has a property interest in her job and therefore is entitled to what via due process?
pre-termination notice, pre-termination opportunity to respond, post-termination evidentiary hearing
the prohibition on an ex post facto law applies only to retroactive changes that affect ___ or __ liability
cannot affect criminal or penal liability
civil is okay
when procuring a federal job, what’s necessary to punish someone based upon her association with a bad group?
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
do employment laws, including ADA, apply to churches?
no! :O
11th Amendment
state cannot be sued in fed court by individual/foreign govt (unless consents) (u can sue a LOCAL gov though)
[11] -> Twin Towers -> NY State -> supreme
As an exception to the Eleventh Amendment, when a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary. In this case, P and B will be allowed to sue the Attorney General for injunctive relief because they are alleging that State X’s law is in violation of rights afforded to them in the U.S. Constitution.
When will a court enjoin a pending state criminal trial?
bad faith, harassment, patently invalid statute
Congress [can/can’t] tax goods exported to foreign countries
cannot
Does 13th or 14th Amendment give Congress power to legislate against private as well as public racial discrimination?
13th (Netflix)
Which Amendment gives Congress the power to eliminate racial discrimination in voting?
15th (almost voting age of 18)
what govt notice is needed for seizure of real property?And of personal property?
real property: notice and a hearing before seizing
personal property: nothing :O
Takings Clause [is / is not] limited to property, and [does / does not] extend to personal property and property rights, such as an easement or a lien.
is not limited to property; extends to personal property and property rights, like easements
Generally, a STATE law that discriminates against non-citizens is subject to ___ review under the Equal Protection Clause and will be ___
strict scrutiny; invalid (states can’t just be screwing over LPRs)
However, a state may legislate with regard to alienage if Congress has explicitly authorized it.
A STATE law that restricts or prohibits a non-citizen’s participation in government functions is subject to a ___ review
rational basis (eh it’s fine if state limits their govt involvement – they’re foreigners)
Tenth (10th) Amendment
reserves to the states powers not delegated to the federal government nor prohibited by the constitution (dont have plenary tax power though)
What’s the only situation where the First Amendment shields the media from liability for publishing information that was obtained illegally?
if it was obtained by a third party, involves a matter of public concern, and the publisher neither obtained it unlawfully nor knows who did.
Although Congress may spend for the general welfare and impose conditions on the receipt of an appropriation by a state, these conditions must be set out ___ to be enforceable
unambiguously
Since expert fees were not unambiguously included in the amounts that may be recovered by the parents of a child with special needs under this statutory cause of action, these fees cannot be recovered.
Because the federal government has very broad authority to spend for the general welfare (i.e., any public purpose), STATE power is [often / rarely] exclusive
rarely (eg states don’t have exclusive power over education)
States [can / cannot] tax the federal government and its instrumentalities (eg Defense Dept contract w/ state)
cannot :O fuk u states
Most legislation related to zoning is reviewed under ___ review
rational basis (so law’s presumed valid, just need a legit govt interest)
Congress [can / cannot] override STATE laws concerning FEDERAL elections
can override
Congress [can / cannot] delegate the appointment of inferior officials to the President, courts, and cabinet members
can. no senate approval needed for inferior if Congress delegated it
Although parents [do / do not] enjoy a fundamental right to make decisions regarding the care, custody, and control of one’s children, including the right to privately educate one’s child outside public school, that right is subject to ___ state educational standards
do enjoy; reasonable standards
a state may generally exercise its police power in any way that is not __ nor __
arbitrary or irrational
The Dormant Commerce Clause limits the extent to which __ can exercise power over interstate commerce
states
The Origination Clause requires that bills that ___ originate in the House
raise revenue
In order for a person’s procedural due process rights to be violated, the violation must be the result of an action undertaken by the __, not a __
government, not by a private person (eg got-licensed PRIVATE nursing home)
the mere licensing, regulation, or substantial funds received by a private person does not transform an action undertaken by that person into government action
Congress [can / cannot] explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause
Can, because Congress has exclusive authority over interstate commerce
Can Congress take away someone’s citizenship? If so, when?
yes, with consent or if P got citizenship via bad faith/fraud
Can Congress appoint members of a body with administrative or enforcement powers?
No. These members are “officers of the United States” and must be appointed by the President.
Here, because the fishery committee has enforcement powers, the members must be appointed by the President, not by Congress nor by Congress’ delegation of appoint to an executive department.
a detainee retains the privilege to file a habeas corpus petition, unless this privilege is suspended. This clause [does / does not] apply to individuals detained in a territory over which the US has sovereign control, including territory outside the US
does apply
Congress [can / cannot] limit the jurisdiction of the federal judiciary
can, though Congress may not exercise this power in a manner that violates the Constitution (eg by limiting the constitutional right to habeas corpus by removing jurisdiction from federal courts
what’s required for standing?
(i) injury in fact, (ii) causation, and (iii) redressability
a government [may / may not] destroy property in response to a public peril without the payment of compensation
may
A federal tax [can / cannot] be imposed directly on a state
cannot
A federal tax [may / may not] be imposed on payments made by the state to a private person
may
Religious magazines only are exempt from a sales tax. Problem?
apply strict scrutiny (least restrictive means to achieve compelling govt interest) because government is favoring religion over non religion (same if one religion were preferred over another)
Under ___, the principle of “one person, one vote” requires that one person’s vote must be essentially equal to any other person’s vote.
Equal Protection Clause
The restriction of voting to a class of persons (e.g., landowners, for local school board elections) has generally been found to violate the “one person, one vote” principle (EQP), EXCEPT in the case of ___ elections
water-district
a state may draw its legislative districts on the basis of ___, rather than ___ or ___ ___.
total population, rather than eligible or registered voters
A variation of less than __% in the size of a STATE legislative district is OKAY (Congressional districts require nearly exactly the same)
10%
Uniformity Requirement
the requirement that taxes be uniform throughout the US means only that the product must be identically taxed in every state in which it is found
A student [is / is not] entitled to a hearing with regard to dismissal for academic reasons from a public institution of higher learning.
is not
Since the architecture student was provided with notice of her academic shortcomings and an opportunity to correct those shortcomings, she was provided with adequate procedural due process.
an overbroad governmental law or policy [can or cannot] be challenged as facially invalid even by those who are validly regulated, on behalf of those who are not.
can, to prevent a “chilling effect” on protected speech
An assignee didn’t suffer an injury, but the assignor did. The assignee [does / does not] have standing under Article III to bring the assigned claim.
does, even if the claim is mature at the time of assignment and the assignment is made for collection only
the General Welfare Clause has been interpreted as permitting Congress to exercise its power to tax for ___
any public purpose
so you do NOT need a compelling govt interest
a state or local regulation that, on its face or in practice, discriminates against out-of-state commerce is unconstitutional unless …
unless it serves an important local interest and no other non-discriminatory means are available to achieve that purpose.
Comity Clause (also known as the Privileges and Immunities Clause) of Article IV prohibits
prohibit a state from discriminating against the citizens of another state – does NOT apply to FEDs
Naturalization Clause
a source of Congressional power over immigration and aliens
Privileges or Immunities Cause of the Fourteenth Amendment prohibits
prohibits STATE action that denies natural persons of the privileges or immunities of national citizenship. It has NOT been applied to actions taken by the FEDs
privilege and immunities clauses apply to feds or states?
states
Congress [can / cannot] directly tax real property
cannot
Despite no present injury, an action that seeks a declaratory judgment might be allowed, but the challenged action must pose a __ and __ danger to a party’s interests for there to be an actual dispute
real and immediate
In general, the federal government has [limited, or almost unlimited] power to regulate the states
almost unlimited power, as long as Congress is exercising one of its enumerated powers, such as the power to regulate commerce
The primary limitation on Congressional action with regard to the states is that Congress may not commandeer state legislatures to enforce a federal regulatory program, either directly or by conscripting a state official. This does not mean that a county government cannot be subject to the federal statute, only that Congress cannot force the county government to use its power and resources to enforce the federal program in the county.
