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Bar Prep > Con Law Rule Statements > Flashcards

Con Law Rule Statements Flashcards

1
Q

11th Amendment Sovereign Immunity

A

You cannot sue a state for money damages, absent a specific exception.

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2
Q

Exceptions to 11th A Sovereign Immunity

A

Consent
Injunctive relief
Damages to be paid by an individual
Prospective Damages

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3
Q

Ripeness

A

Plaintiff must have experienced a real injury (or be imminently facing one)

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4
Q

Mootness

A

Cases will not be heard if further legal proceedings would have no effect.

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5
Q

Individual Standing Requirements

A

Injury
Causation
Redressability

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6
Q

Organizational Standing

A

Member suffers an injury
Members would have had standing on their own.
Interests at stake are germane to the organizations purpose

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7
Q

Taxpayer Standing

A

Typically none, unless they are litigating their tax bill

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8
Q

3rd Party Standing

A

3rd party unable to assert their own rights
Special relationship
injury adversely affects plaintiffs relationship with third party.

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9
Q

Primary Congressional Powers

A

Commerce, Taxing Power, Spending Power, War & Defense, Aliens & Naturalization, Necessary & Proper, 13th amendment, 14th amendment, and 15th amendment

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10
Q

Congressional Commerce Power

A

Can create laws that regulate interstate commerce (channels and instrumentalities), that have a substantial economic effect on interstate commerce, or non-economic activities that have a substantial effect on econ activities.

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11
Q

Congressional Taxing Power

A

Congress has the power to pass and utilize taxes if they have a reasonable relationship to revenue production

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12
Q

Spending Power

A

Congress has the power to spend for the general welfare

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13
Q

Congressional Power: War & Defense

A

COngress has power to declare war, raise and support armies

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14
Q

Aliens and Naturalizaton

A

Congress has plenary power over non-citizens and naturalization.

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15
Q

Necessary and Proper Clause

A

Congress has the power to enact legislation that is necessary and proper to further their authority.

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16
Q

13th Amendment

A

Congressional power to adopt legislation rationally related to the elimination of racial discrimination

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17
Q

14th amendment

A

Permits congress power to pass legislation to enforce equal protections and due process rights under the 14th.

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18
Q

15th Amendment

A

Congress cannot treat states differently or impinge on state sovereignty.

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19
Q

Executive Appointment Power

A

Only the president (or his appointees) have the power to hire exec branch employees

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20
Q

Removal power Exec branch

A

only the president has the power to hire

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21
Q

Veto Power

A

Article I section 7 gives president the power to veto legislation presented before him.

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22
Q

Chief Executive - Maximum Power

A

Express or implied authorization of congress to act.

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23
Q

Chief Executive - Mid Power

A

Where congress has not yet spoken on an issue

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24
Q

Chief Executive Power - Lowest

A

when congress has spoke to the contrary on an issue.

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25
Q

Executive Branch - War and Foreign Relations

A

Commander-in-chief cannot declare war.

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26
Q

Exec Branch - Treaty Power

A

Exclusive power to negotiate treaties

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27
Q

Exec Power - Executive Agreements W/Foreign Nations

A

President may enter executive agreements with foreign nations without senate approval

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28
Q

Executive Privilege

A

Privilege to not reveal confidential communications with advisers

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29
Q

Executive Immunity

A

absolute immunity from liability for official acts

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30
Q

Types of Preemption

A

Express, Implied, Field

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31
Q

10th Amendment Limits on Fed Tax/Regulation of States

A

Partial immunity from federal taxation that unduly interferes with states “sovereign functions”

32
Q

Full Faith And Credit

A

Requires that out-of-state judgments be given in-state effect.

33
Q

Dormant Commerce Clause

A

States have the power to regulate areas of inter-state commerce so long as it does not: (1) Discriminate against OOS commerce;
(2) Unduly Burden inter-state commerce; or
(3) Regulate extraterritorial activity.

34
Q

Dormant Commerce Clause - Exceptions to Discrimination

A

(1) Necessary to an important state interest
(2) Market Participant
(3) traditional government function

35
Q

State Taxation on inter-state Commerce

A

State may pass taxes so long as congress has not already done so, and it does not discriminate against/unduly burden OOS interests.

36
Q

Exception to State Taxation on OOS Commerce

A

(1) Substantial Nexus b/w state and taxed activity;
(2) Fair apportionment
(3) non-discriminatory; and
(4) Fair relationship to services provided.

37
Q

Individual rights - State action Req.

A

Must be either a traditional goverment function or significant state involvement

38
Q

Procedural Due Process

A

Requirement for fair proceedings before depriving a persons life, liberty, or property.

39
Q

Privileges and Immunities clause

A

Citizens of each state shall be entitled to the privileges and immunities of citizens in the several states.

40
Q

PDP Protected Interest - Liberty

A

significant govermental restraint on one’s physical freedom, exercise of fundamental rights, or freedom of choice/action

41
Q

PDP Protected Interest - Property

A

There must be a “legitimate claim of entitlement”: (1) Public employment only for cause; (2) Public Education.

42
Q

P&I - Comity

A

Prohibits one state from discriminating against the citizens of another state.

43
Q

P&I Rights protected

A

Protects from discriminaton with respect to fundamental rights and essential activities

44
Q

P&I - Exceptions

A

Substantial Justification, IE: the law bears a substantial relationship to a states legitimate objective.

45
Q

Substantive Due Process

A

Guarantees protections of fundamental rights

46
Q

SDP - Standard of Review

A

Fundamental Rights = Strict Scutiny
Non-Fundamental= Rational Basis

47
Q

Strict Scrutiny

A

The law must be the least restrictive means to achieve a compelling governmental interest.

48
Q

Rational Basis Review

A

Law must be rationally related to a legitimate state interest.

49
Q

SDP - Fundamental Rights

A

Right to travel, Right to Vote, and Right to Privacy.

50
Q

SDP - Non-fundamental Rights

A

those related to social or economic interests (IE: business, taxation, lifestyle, zoning, etc.)

51
Q

Equal Protection

A

No state shall deny to any person the equal protection of the laws. IE: prevents discrimination against persons of a particular class

52
Q

EP - Standards of Scrutiny

A

Suspect Classification - Strict Scrutiny
Gender/Legitimacy - Intermediate Scrutiny
other non-listed/disparate impact - Rational basis Review

53
Q

intermediate Scrutiny

A

the law must be substantially related to an important government interest

54
Q

Proving Discrimination under EP

A

Facial discrimination, or disparate impact

55
Q

1st Amendment - Freedom of Religion

A

Protects the rights of individuals to religious beliefs and conduct

56
Q

Establishment Clause

A

Prohibits Government Endorsement of religion in a context that may prove coercive to an individuals conscience.

57
Q

Establishment Clause - Sect Preference

A

Government may not show preference to one sect or religion over another.

58
Q

Conduct Excepted to sect preference

A

(1) Reading religious text in public schools for literary purposes
(2) Display of religious iconography for secular reasons
(3) Voluntary School Prayer

59
Q

Free Press

A

The media receives the same freedoms regarding speech as individuals

60
Q

Freedom of Association

A

People cannot be punished or disadvantaged because of political associations.

61
Q

Freedom of Association - Public Employment

A

Public employees can be required to take loyalty oaths, but are often overbroad.

62
Q

Facial Challenges to Free Speech violations

A

Overbroad
Vagueness
Unfettered Discretion
Prior Restraint

63
Q

Free Speech - Unfettered Discretion

A

laws permitting a gov official to restrict free speech must provide definite standards to avoid unfettered discretion.

64
Q

Free Speech - Prior Restraint

A

regulation of speech that occurs in advance of expression must identify: 1) particular harm to be avoided; and 2) certain procedural safeguards.

65
Q

Content-Based Speech Regulations

A

Receive Strict Scrutiny unless they include:
(1) FIghting words
(2) Incitement to violence
(3) Obscenity
(4) Defamatory speech
(5) Commercial speech
(6) Child Porn

66
Q

Fighting Words

A

Words that by their very nature is likely to incite an immediate breach of peace.

67
Q

Incitement to violence

A

SPeech that is (1) directed to incite imminent lawless action; or (2) likely to incite or produce such an action.

68
Q

Obscenity

A

Speech that (1) Appeals to the “prurient interests”; (2) Depects sexual conduct in a patently offensive way; and (3) lacks serious literary, artistic, political, or scientific value.

69
Q

Commercial Speech

A

Usually struck down unless it is misleading or untruthful.

70
Q

Commercial Speech Test

A

Regulation must directly advance a substantial government interest and be narrowly tailored to that interest.

71
Q

Content Neutral Speech Regulations

A

1) Public Forums
2) Designated public forum
3) Limited Public Forum
4) non-public forum

72
Q

Content Neutral Regulations - Scrutiny

A

Speech regulations in traditional public forums, and designated public forums are subject to a strict scrutiny analysis. non-public forums have a lower standard.

73
Q

Conduct restrictions on symbolic speech

A

Upheld if the law: (1) furthers an important interest; (2) interest is unrelated to the suppression of expression, and (3) is no greater than needed.

74
Q

Takings Clause

A

Private property may not be taken for public use without just compensation.

75
Q

When has a “taking” occured?

A

A taking has occurred when a government’s action results in a permanent physical occupation of private property by the government or a third party.

76
Q

Bill of Attainder

A

A legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial.

77
Q

Contracts Clause

A

Prohibts state legislation from retroactively impairing the obligation of contracts.

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