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CON LAW > CON LAW > Flashcards

CON LAW Flashcards

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1
Q

4 Cases & Controversies Requirements

A
  1. Standing - injury | causation | redressability
  2. Ripeness - “case in controversy” requirement
  3. Mootness - case must be “live” at all stages of review
  4. Political Question Doctrine - courts will NOT decide political questions
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2
Q

SC’s Appellate J

A
  1. Original & Exclusive - controversies between state governments
  2. Writ of Certiorari - petition to the SC for review (4 Justices must vote to hear)
  3. Mandatory J - SC MUST hear all cases on appeal
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3
Q

11th Amendment Limitations on Federal Court Review

A
  1. Doctrine of Sovereign Immunity - bars suits against state governments
    • Exception: Actions under §5 of the 14th A (Equal Protection)
  2. Most actions against state officers
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4
Q

12 Enumerated & Implied Powers of the Legislature

A

NICEST COW SIP

  1. Necessary & Proper
  2. Impeachment & Removal
  3. Commerce Clause
  4. Elections
  5. Spending
  6. Tax
  7. Citizenship
  8. Other
  9. War
  10. Speech or Debate Clause
  11. Investigatory
  12. Property
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5
Q

2 Limitations on Congressional Power

A
  1. 10th A - All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
  2. §5 of the 14th A - Gives Congress the power to enforce the 14th A by appropriate legislation
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6
Q

3 Foreign Powers of the Executive Branch

A
  1. Treaties - ratified by 2/3 of the Senate
  2. Executive Agreement - no Senate approval required
  3. Deployment of troops overseas
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7
Q

7 Domestic Powers of the Executive Branch

A

PA VIPER

  1. Pardon
  2. Appointment
  3. Veto
  4. Immunity
  5. Privilege, Executive
  6. Execution of law
  7. Removal

See outline for Chief Executive Powers

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8
Q

Rational Basis Test

A
  1. RATIONALLY related to a LEGIT govt interest
  2. Ends - conceivable govt purpose
  3. BOP: on challenger
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9
Q

Intermediate Scrutiny

A
  1. SUBSTANTIALLY related to IMPORTANT govt interest
  2. Ends - Actual & important
  3. BOP: on govt
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10
Q

Strict Scrutiny

A
  1. NECESSARY to ACHIEVE COMPELLING govt purpose
  2. Means - must be narrowly tailored & least restrictive alternative (≠ from intermediate)
  3. Ends - Actual & compelling
  4. BOP: on govt
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11
Q

Procedural Due Process

A
  1. Govt must provide a fair process (notice & hearing) before depriving a person of life, liberty or property.
    • No duty to protect from private harm
    • Intentional or reckless act by govt
    • Balancing test applied (see outline for ex)
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12
Q

Substantive Due Process

A

Substantive Due Process protects economic liberties and fundamental rights
• Deprivation of economic liberties = Rational basis test
• Private Ks impaired by govt action = Intermediate scrutiny
• Govt Ks = Strict scrutiny
• Retroactive civil liability = Rational basis

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13
Q

Substantive Due Process - Takings

A
  • Possessory Taking - always a taking
  • Regulatory Taking - when govt action leaves property uneconomically viable = justified by a benefit roughly proportionate to the burden or will be ruled a taking
  • Public Use - govt has a reasonable belief that taking benefits public
  • Just Compensation = Loss to owner
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14
Q

What is Express Preemption?

A

Fed law states that it is the only reg allowed & that state reg is prohibited
• Narrowly construed by courts
• State environmental standards may be stricter than fed law unless prohibited by Congress

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15
Q

3 Possible Circumstances of Implied Preemption

A
  1. Direct conflict - state law invalidated
  2. State law impedes Fed objective - state law invalid
  3. Field preemption - Congress conveys (by legislative history) that it intends fed law to be only reg in field
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16
Q

Dormant Commerce Clause - State Law Discriminates

A
  1. State laws that discriminate against out-or staters is UnC unless it is NECESSARY to achieve an IMPORTANT govt purpose, approved by Congress or the state/local govt is a Market Participant
  2. Non-discriminatory state laws will be struck if they place an UNDUE BURDEN on ISC
    • Balancing test: Undue Burden v Benefits
17
Q

Article IV - Privileges & Immunities

A

“The citizens of each State shall be entitled to the privileges & immunities of citizens in the several states.”

Laws that discriminate against out-of-staters violate Art IV unless the state/local govt has a SUBSTANTIAL JUSTIFICATION for the discrimination and there are NO LESS RESTRICTIVE MEANS to achieve the same objective

18
Q

Article IV - Full Faith & Credit

A

States must give full faith & credit to judgements of courts in other states, provided that the judgement is:
• Vaild
• On the Merits
• Final

19
Q

4 Situations Where the Fed May Regulate Private Action

A
  1. §2 of the 13th A - Congress may prohibit private race discrimination
  2. Commerce Clause - Congress may apply equality to private conduct under the CC
  3. Public Function Exception - When a private entity performs govt funtions
  4. Entanglement Exception - When the govt has authorized, encouraged or facilitated UnC conduct, the private entity must cease the conduct.
    • See outline for details
20
Q

The Bill of Rights Applies Only to the Federal Government EXCEPT:

A

When it is applicable to state/local govts via the Due Process clause of the 14th A
• See outline for details

21
Q

1st A - Defamation & Libel

A
  1. Public Officials & Figures - may only recover if stmt was FALSE & made with ACTUAL MALICE
    • BOP: P must show falsity & malice by Clear & Convincing Evidence
  2. Private persons - may recover if statement was FALSE & made NEGLIGENTLY | BOP = Clear & Convincing Evidence
    •Matters of Public Concern : Punitive & presumed damages require ACTUAL MALICE
    • NOT Matters of Public Concern: may recover if statement was FALSE & made NEGLIGENTLY | BOP = D must prove TRUTH of statement | Malice NOT required
22
Q

1st A - Obscenity: Miller Test

A

Speech is OBSCENE & therefore unprotected by the 1st A if:

  1. Appeals to the Prurient Interest (Community Std)
  2. Patently Offensive AND
  3. Lacks serious Literary, Artistic, Political or Scientific Value (National Std)

Speech NOT considered obscene is generally protected by 1st A

23
Q

What Level of Scrutiny is Applied to Content Based Restrictions on Speech?

A

Strict Scrutiny - Necessary to achieve a compelling govt interest

24
Q

Content Neutral Restrictions on Speech / Public Non-Public / Private

A

Content Neutral = Restrictions on time, place & manner of speech and are analyzed under INTERMEDIATE SCRUTINY (SUBSTANTIALLY related to IMPORTANT govt interest)

Public Forums & Limited Public Forums:
• Subject matter neutral
•Viewpoint neutral
• Time, place manner restriction
• Serve important govt interest
•Narrowly tailored to that interest AND
• Leave open alternative channels of communication

Non-Public Forums
• Rational Basis Test (RATIONALLY related to a LEGIT govt interest) AND
• Viewpoint neutral

Private Property - No 1st A right to access private property for speech purposes

25
Q

Regulation of Commercial Speech

A 
1. Unregulated Commercial Speech
• False or deceptive
• Proposes unlawful activity
• Truth speech inherently capable of deception
2. Truthful Commercial Speech
• Intermediate scrutiny (SUBSTANTIALLY related to IMPORTANT govt interest)
• Directly advances that purpose AND
• Narrowly tailored
26
Q

Govt Regulation of Symbolic Speech

A

Govt may regulate symbolic speech if
• Ii has an important interest unrelated to the suppression of the message AND
• Impact on communication no greater than necessary

27
Q

1st A - Free Exercise Clause

A
  1. Intentional Laws = Strict Scrutiny (necessary to achieve a compelling govt interest)
  2. Unintentional laws = neutral laws that interfere w/ the practice of religion cannot be challenged under the FEC
28
Q

1st A- Establishment Clause / 3 Part Test

A
  1. Govt Reg must have a Secular Purpose
  2. Effect cannot advance or inhibit religion AND
  3. Must not foster excessive govt entanglement w/ religion
    • See outline for examples

CON LAW (1 decks)

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