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Constitutional Law Tricky > Con Law Tricky > Flashcards

Con Law Tricky Flashcards

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1
Q

What are the elements of standing?

A
  1. Injury 2. Ripeness 3. Mootness 4. The issue cannot be a political question
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2
Q

What kind of injury is necessary for standing?

A
  1. The plaintiff must allege that he has been or imminently will be personally injured. 2. The plaintiff must show causation and redressibility. This means that the plaintiff must show that (a) the defendant caused the harm and (b) a favorable court decision is likely to remedy the injury. 3. A plaintiff cannot assert claims for third parties not before the court unless (a) there is a close relationship between the plaintiff and the injured party, (b) third party standing is allowed if the injured third party is unlikely to be able to assert his rights, and (c) organizations may sue on behalf of their members if (i) the members would have standing to sue, (ii) the interests are germane to the organizations purpose, and (iii) neither the claim nor relief requires participation of individual members. 4. The plaintiff is not suing on the basis of citizenship or as a taxpayer unless plaintiff is a taxpayer suing to challenge a government expenditure pursuant to federal or state or local laws violating the establishment clause.
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3
Q

What do plaintiffs filing for injunctive or declaratory relief have to show?

A

A likelihood of of future personal harm.

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4
Q

What is mootness?

A

The plaintiff must allege a live controversy unless (a) the wrong is capable of repetition but is evading review; (b) the defendant voluntarily halted the offending conduct but could take it up again at any time; (c) or it is a class action lawsuit and someone in the class can still sue.

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5
Q

What questions are barred by the political question doctrine?

A
  1. The republican form of government clause 2. Challenges to the president’s conduct of foreign policy 3. challenges to the impeachment and removal process 4. challenges to partisan gerrymandering
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6
Q

Over what cases does the Supreme Court sit in appellate jurisdiction?

A

Over cases decided by three-judge federal district courts.

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7
Q

When does the Supreme Court have original and exclusive jurisdiction?

A

For suits between states.

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8
Q

Will SCOtUS hear cases when a decision rests on state and federal law and reversing the federal law will not change the cases outcome?

A

No.

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9
Q

What are the only circumstances under which states can be sued?

A
  1. They waive sovereign immunity 2. The suit is brought under Section 5 of the 14th Amendment 3. The plaintiff is the Federal Government 4. The proceedings are bankruptcy proceedings
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10
Q

When can state officials be sued?

A

As long as it is not the state treasury that will be paying for the damages.

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11
Q

When does the federal Congress have police power?

A
  1. Military 2. Indians 3. Territories 4. D.C.
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12
Q

What is the necessary and proper clause?

A

Art. I Sec. 8: Congress can enact all laws necessary and proper for it to carry out its authority.

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13
Q

When can Congress levy taxes?

A

Congress can tax and spend on the general welfare.

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14
Q

What can Congress do under its Commerce Power?

A
  1. Regulate channels of interstate commerce
  2. Regulate instrumentalities and persons and things in interstate commerce
  3. Regulate economic activities that have a substantial effect on interstate commerce. BUT, Congress cannot regulate inactivity.
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15
Q

What is a legislative veto?

A

Passing a law without going through bicameralism and presentment. This is unconstitutional.

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16
Q

What is a line-item veto?

A

The president vetoes part of a bill but not the whole thing. This is unconstitutional.

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17
Q

Treaties require _____ in order to be effective.

A

Senate approval.

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18
Q

Treaties > ____

A

Conflicting State laws.

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19
Q

If a treaty conflicts with a federal law ______.

A

The instrument enacted last in time controls.

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20
Q

Does an executive agreement need Senate approval?

A

No.

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21
Q

What is an executive agreement?

A

An agreement between the President and the head of another nation.

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22
Q

_____ > Executive Agreement > _____

A

Federal laws and the constitution > Executive Agreements > State laws

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23
Q

The President’s power to use military abroad is ____.

A

Broad.

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24
Q

With Senate approval, the President appoints:

A
  1. Ambassadors 2. Federal judges 3. Officers of the United States
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25
Q

Who else can make appointments?

A

Anyone Congress vests with this power BUT Congress may not give this power to itself.

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26
Q

When can the president not make appointments?

A

During intercession recesses that are less than 10 days.

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27
Q

When can Congress limit the President’s ability to remove appointees?

A

Where the office is one where independence from the President is desirable.

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28
Q

Can Congress prohibit removal by the President?

A

No. It can only limit his ability to remove. For instance, to situations where he has good cause to remove.

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29
Q

When is impeachment appropriate?

A

When a federal officer or the executive has committed “treason, bribery, or high crimes and misdemeanors.”

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30
Q

When are state laws implicitly preempted?

A
  1. The laws are mutually exclusive 2. The state law impedes the achievement of a federal objective 3. Congress evidences a clear intent to preempt state law
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31
Q

Can states tax and regulate federal activity?

A

No. Never.

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32
Q

What is the dormant commerce clause of Art. IV?

A

It is a prohibition on state activity that “places an undue burden on interstate commerce.”

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33
Q

What is the privileges and immunities clause of Art. IV?

A

It prevents states from depriving citizens of other states from having the privileges and immunities they accord their citizens. It prevents discrimination.

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34
Q

When does the privileges and immunities clause of the 14th Amendment apply?

A

Only when the right to interstate travel is implicated.

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35
Q

When is a state’s discriminatory burden on interstate commerce acceptable?

A
  1. When it is necessary to achieve an important government purpose
  2. Congress approves
  3. The state is acting as a market participant
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36
Q

If a state law discriminates against out-of-staters with regards to their ability to earn a livelihood, it ________.

A

Violates the privileges and immunities clause of Art. IV, unless it is necessary to achieve an important government purpose.

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37
Q

When can a state tax interstate commerce?

A

When:

  1. It is not done to help in state businesses
  2. There is a substantial nexus between the interstate activity and the state
  3. The tax is fairly apportioned (for example, only 10% of the market share is in the state, the tax can’t exceed 10%).
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38
Q

When must private conduct comply with constitutional prohibitions on government activity re individual liberties?

A
  1. When the private entity is performing a task traditionally exclusively done by the government
  2. The government has entangled itself with the private activity by affirmatively authorizing, encouraging, or facilitating the unconstitutional activity
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39
Q

When can a numerical set-aside survive strict scrutiny?

A

Only when there is clear proof of past discrimination.

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40
Q

When can gender classifications be used?

A

Only when they (i) survive intermediate scrutiny and (ii) there is an exceedingly persuasive justification for the gender classification.

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41
Q

What kinds of classification get strict scrutiny?

A
  1. Race 2. National origin 3. Alienage - generally
42
Q

What kinds of classifications get intermediate scrutiny?

A
  1. Gender classifications 2. Non-marital children 3. Alienage involving self-governance or the democratic process 4. Undocumented children
43
Q

What kinds of discrimination only warrant rational basis review?

A
  1. Age discrimination 2. Disability discrimination 3. Wealth discrimination 4. Economic regulations 5. Sexual orientation discrimination
44
Q

Can the government seize the assets of businesses convicted of violating obscenity laws?

A

Yes. They can destroy them.

45
Q

In what contexts can profane speech be limited?

A
  1. Broadcast media 2. In schools
46
Q

What speech can and cannot be restricted in airports?

A
  1. Solicitation of money can be restricted 2. Handing out literature cannot be restricted.
47
Q

What is procedural due process?

A

Procedures that the government must follow when it takes life, liberty, or property.

48
Q

What is substantive due process?

A

Adequate justification for the government’s taking away life, liberty, or property.

49
Q

What is equal protection?

A

Protects against the gov’s differences in the treatment of similarly situated people.

50
Q

When is a person entitled to procedural due process?

A

When there is intentional or reckless government action that targets an individual.

51
Q

What is the test to determine if due process has been violated?

A

Balance 1. The importance of the interest to the individual 2. The ability of the additional procedures to increase the accuracy of the fact-finding 3. The government’s interest

52
Q

If the government performs a taking, it owes the land owner ________.

A

Just compensation.

53
Q

What are the steps to a tacking analysis?

A

a. Is there a taking? b. Is it for public use? c. Is just compensation paid?

54
Q

The government can regulate abortions as long as _______.

A

It doesn’t place an undue burden on women’s ability to obtain abortions.

55
Q

Rights to travel and scrutiny:

A
  1. Law preventing people from moving into a state – Strict scrutiny 2. Durational residency requirements – Strict scrutiny 3. Restrictions on foreign travel – Rational basis
56
Q

How is the existence of a racial or gender classification proven?

A
  1. The classification exists on the face of the law 2. If not on the face of the law, then discriminatory impact and intent.
57
Q

How are gender classifications that benefit women treated?

A
  1. If based on stereotypes, never allowed 2. Classifications that are designed to remedy past discrimination and differences in opportunity will be allowed
58
Q

Lemon test:

A
  1. There must be a secular purpose for the law 2. The effect must be neither to advance nor inhibit religion 3. There must not be excessive entanglement with religion
59
Q

To be valid, a time, place, and manner regulation of a limited public forum must be __________.

A

Viewpoint neutral and rationally related to a legitimate government purpose. “

60
Q

Youngstown framework:

A

(i) Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid; (ii) Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and (iii) Where the President acts against the express will of Congress, he has little authority and his action likely is invalid, at least if Congress has acted constitutionally.

61
Q

What is the measure of just compensation?

A

The loss the owner incurs, rather than the gain the taker receives.

62
Q

What factors does the court examine when there has been a partial taking?

A

The court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives.

63
Q

Does the Thirteenth Amendment extend beyond state action to private action?

A

Yes.

64
Q

What surprising results flow from the Thirteenth Amendment’s prohibition on slavery and involuntary servitude?

A

Regulation effecting contracts formed between private persons will be upheld.

65
Q

When can a court issue an injunction that functions as prior restraint?

A

(i) Standards must be narrowly drawn and definite; (ii) the restraining body must promptly seek an injunction; and (iii) there must be a prompt and final judicial determination of the validity of the restraint.

66
Q

When is third party standing appropriate?

A

When 1. The plaintiff has standing 2. The third-party has standing, and 3. The plaintiff can adequately represent the interests of the third party.

67
Q

When is Congressional delegation constitutional?

A

When the delegation is guided by an intelligible principal. It must clearly limit the president’s powers.

68
Q

As Commander and Chief, the President can __________.

A

Unilaterally deploy troops for a broad range of purposes, as long as the deployment does not result in warfare which needs to be approved by Congress.

69
Q

Spending conditions must _______ AND ______.

A
  1. Reasonably relate to the general welfare 2. Is not unduly coercive, i.e. the state has no real choice whether to take or refuse the funds.
70
Q

An entitlement is something the person has _________.

A

A reasonable expectation of receiving in the future.

71
Q

The contract clause ________.

A

Prevents state and local governments from substantially impairing existing contract rights.

72
Q

What laws cannot be challenged under the Free Exercise Clause?

A

Neutral laws of general applicability. UNLESS, the law has the effect of preventing a religious group from discriminating in employment.

73
Q

What are the tests that apply to the establishment clause?

A
  1. Coercion 2. Neutrality 3. Lemon test
74
Q

Does the privileges and immunities clause of Article IV apply to discrimination between in-state residents?

A

No. It only applies to discrimination between residents and non-residents.

75
Q

Can a government employee be required to respect the flag?

A

No. Unconstitutional.

76
Q

Can a government employee be required to oppose the overthrow of the government?

A

Yes. Constitutional.

77
Q

What is the one situation in which federal courts will enjoin state court criminal prosecutions?

A

When the defendants allege that the prosecutions are conducted in bad faith.

78
Q

When discriminating between religions, the government must have _______.

A

A compelling interest.

79
Q

What is the imports exports clause?

A

Article I, § 10, clause 2 of the United States Constitution, known as the Import-Export Clause, prevents the states, without the consent of Congress, from imposing tariffs on imports and exports above what is necessary for their inspection laws and secures for the federal government the revenues from all tariffs on imports and exports

80
Q

What is the Pardon Power?

A

An express grant to the president in the constitution that cannot be abridged.

81
Q

Under the Contracts Clause, what level of scrutiny is applied to government impairment of existing contracts?

A

Intermediate scrutiny: The law that impairs the contract must (i) serve an important and legitimate public interest; and (ii) be a reasonably and narrowly tailored means of promoting that interest.

82
Q

What is the property clause?

A

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

83
Q

When does a plaintiff have standing solely on the basis of being a taxpayer?

A

When the government has used its taxing or spending power in violation of the establishment clause.

84
Q

When can the Federal Government place conditions on States’ reception of federal funds?

A

When the conditions (i) are clearly stated, (ii) relate to the purpose of the program, and (iii) are not unduly coercive.

85
Q

When is strict scrutiny not applied to classifications based on alienage?

A

When the classification pertains to jobs relating to self-governance.

86
Q

Can states burden foreign commerce?

A

No. Only Congress can burden foreign commerce.

87
Q

When is a public employee’s employment property analyzed under the due process clause?

A

When the employee cannot be fired without cause.

88
Q

What is required in order to terminate a public employee who cannot be fired without cause?

A
  1. Notice
  2. A pretermination opportunity, and
  3. A subsequent evidentiary hearing regarding the termination with the possibility of reinstatement if the employee prevails.
89
Q

What can Congress investigate?

A

Anything within the scope of proposed legislation.

90
Q

What is required in order to close a court proceeding to the public?

A

There must be an overriding interest for which closrue is necessary.

It is unclear if this applies to civil cases.

91
Q

What test is applied to test restrictions on content-neutral speech in public forums?

A

Three part test: (i) subject matter and viewpoint neutral, (ii) narrowly tailored to further a significant/important government interest, and (iii) it must leave open alternative channels of communication.

92
Q

What test is applied to speech restrictions in public forums?

A

Three part test: (i) subject matter and viewpoint neutral, (ii) narrowly tailored to further a significant/important government interest, and (iii) it must leave open alternative channels of communication.

93
Q

When is a law that is discriminatory under the privileges and immunities clause of Article IV enforceable?

A

When it has a substantial justification.

This means (i) non-residents are part of the problem and (ii) there are no less restrictive means of solving the problem.

94
Q

Can military courts try civilians?

A

Only when warfare has shut down the civilian courts.

95
Q

Are curriculum-based public highschool activities (school jounral) public forums?

A

No. They can be regulated as non-public forums.

96
Q

What is a per se taking?

A

The physical invasion of property, no matter how small.

97
Q

When does the regulation of land amount to a taking?

A

When the regulation denies the owner all economically viable use of the land.

OR

When the regulation decreases the value of the land and substantially interferes with distinct investment-backed expectations of the claimant.

98
Q

When is no compensation due even though there has been a taking?

A

When the taking occurs in response to an emergency situation.

99
Q

What is required under the Due Process Clause of the 14th and 5th Amendments.

A

The government cannot not deprive a person of life, liberty, or proeprty without Due Process of law and a sufficient prupose.

100
Q

What is procedural Due Process?

A

The government cannot deprive a person of life, liberty, or property without sufficient procedure.

101
Q

What is substantive due process?

A

The government cannot deprive a person of life, liberty, or property without a sufficient justification.

102
Q

What does the court look at in detemrining if a state law places an undue burden on interstate commerce?

A

Whether the benefits from the law outweigh the burden placed on interstate commerce.

Constitutional Law Tricky (5 decks)

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