ConLaw Flashcards
What is the 13th Amendment and what does it do?
Pursuant to the Thirteenth Amendment, Congress has the power to adopt legislation rationally related to eliminating the “badges or incidents” of slavery.
This allows Congress to regulate private and government action, including racial discrimination!
What’s the difference between the EPC and 13th Amendment for the purposes of racial discrimination?
EPC: Private discrimination is allowed, and can only sue under EPC if there is state action.
13th: Private discrimination is not allowed, with Congress specifically controlling private conduct.
What is the Takings Clause and how is it incorporated to the states?
A taking without just compensation violates the Takings Clause.
The Due Process Clause of the Fourteenth Amendment has incorporated the Takings Clause of the Fifth Amendment, thereby making it applicable to the states and their subdivisions.
For the purposes of a physical taking, does granting the public a permanent easement count?
Yes!
When do state an municipal zoning laws survive challenges under the Takings Clause?
EX: Having certain requirements to permits?
1) Legitimate Government Interest
2) Does not deny owner the economically viable use of the land
These are regulatory takings!
What is the ripeness doctrine?
A federal court will not consider a claim before it has fully developed.
I.E. If a party has failed to actually be harmed, or has failed to take reasonable and available steps to avoid harm, the claim is premature.
Is seeking a declaratory judgment as a form of relief violate the case or controversy requirement?
No
What procedural due process procedures are required for a public employee who is discharged only for cause?
All that is required is a prompt post-termination hearing.
Pre-termination hearing is NOT required, especially in light of the justification for immediate discharge.
What is “commandeering” and is it allowed?
Under the 10th Amendment, Congress or the federal government CANNOT force states to enact laws against their will. (AKA Commandeering!)
However, through the Spending Power the federal government and “encourage” by promising or withholding federal funds.
For the purposes of the 1st Amendment, is the opening of private property to the public convert it into a public or limited public forum?
No!
I.E. A mall is not a public forum!
May a state constitution expand individuals rights granted by the US Constitution?
Yes! Although they cannot contract/limit them.
Does Congress have a federal police power?
No! This is reserved only for the states.
TIP: In what instances may an answer that includes the Necessary and Proper Clause be correct?
Look for when it is being used in conjunction with another enumerated power!
For example, look to see whether legislation could be necessary and proper to execute Congress’s spending power!
When may residency restrictions infringe on the fundamental right to interstate trave?
Although reasonable residency restrictions may be imposed to obtain governmental benefits, durational requirements that deny basic necessities of life to newcomers of the state violate the fundamental right to travel.
May Congress abrogate (cut short) a state’s immunity, and therefore allow private actions for damages against a state?
If so, when?
Generally, no!
EXECPTIONS
1) Legislation regarding civil rights re: 13th, 14th, and 15th Amendment
2) Acting pursuant to Bankruptcy Clause
3) State consents
This is when abrogating is allowed.
What does the Dormant Commerce do?
It limits states from impacting interstate commerce. Only commercial activities. Includes:
1) Discriminates against out of state commerce
2) Unduly burden instate commerce
3) Purposefully regulates extraterritorial activity.
What are the exceptions to laws that could violate the Dormant Commerce Clause?
1) Legitimate state/local interest, where no reasonable alternatives are available
2) State themselves are participating in the market the law affects
What is the Contracts Clause?
Prevents state legislative actions from enacting laws that RETROACTIVELY impair contractual rights.
In contrast, there is no Contracts Clause violation by limiting or impairing people or corporations from entering into new contracts.
Does the Contracts Clause apply to the federal government?
No!
Do the Privileges and Immunities Clause (either Article IV or the 14th Amendment) apply to corporations?
No!
What does the Privileges and Immunities Clause of Article VI prevent?
Prevents states from performing economic discrimination from out-of-staters. This includes:
1) Infringing on exercise of fundamental right
2) Engagement in essential activity (earning a living), absent substantial justification.
Is it regulating someone’s business and ability to make money? Or something recreational?
What may a prior restraint on speech be upheld?
1) Speech that represents clear and present danger of imminent lawless action (incitement of violence)
2) During wartime and national security crisis to protect imminent and irreparable harm
After Congress properly delegates it’s authority to an agency, what is required for it to make decisions affecting or relating to the agency’s authority?
Legislative power must be backed with:
1) Bicameralism (Both houses of Congress agree)
2) Presentment (given to President)
Otherwise, it is a legislative veto, which is impermissible.
May Congress allow Congress to override state laws concerning federal elections?
Yes, under Article I Section 4! This does not count as commandeering.
What are the fundamental rights?
1) Right to Travel
2) Right to Vote
3) Right to Privacy, which includes:
- Marriage
- Sexual Relations
- Controlling Child Upbringing
- Families living Together
- Contraception (maybe not anymore…)
All subject to strict scrutiny!
Under the 1st Amendment, may a city ban all adult entertainment, without limitations?
No! Even if it has legitimate reasons for the ban, or even if other neighbor cities allow such establishes.
City can still reasonably regulate. But stay away from blanket bans!
What is the test for determining whether the constitutionality for **commercial speech regulations?
1) Commercial speech must be lawful, not false or misleading
2) Asserted government interest must be **substantial
3) Regulation must directly advance interest
4) Regulation must be narrowly tailored
When may the state regulate content-based regulation?
Strict scrutiny!
1) Compelling Interest
2) Necessary to achieve interest
3) Narrowly tailored
Includes messages on a billboard!
When are the few times content based regulations are constitutional?
1) Obscenity
2) Subversive Speech
3) Fighting Words imminent breach of peace)
4) Defamation
5) Commercial Speech
What is the state action doctrine?
Occurs when a private actor is considered a government actor, and therefore bound by the constitution.
1) Private actor performs a traditional and exclusive government function
OR
2) Government is significantly involved in private actor’s activities.
Is a one-time grant by the government enough to convert private action to state action?
No! No matter how substantial.
When may the government limit the time, place and manner of speech in a public forum?
If it passes intermediate scrutiny!
1) Limitation is narrowly tailored
2) To achieve a substantial government interest
3) With ample and alternative avenues of communication
What is a direct tax and what is required for it to be constitutional?
A direct tax is a tax on a person or property.
Requirements:
1) Apportioned evenly among states where the tax is enforced
2) Reasonably related to raising revenue
What is an indirect tax and what is required for it to be constitutional?
An indirect tax is a tax on sales, excise, and income.
Requirements:
1) Uniformly applied in every single state
2) Reasonably related to raising revenue
Can Congress place a tax of exports?
No!
What is the 1st Amendment freedom of association?
Allows persons to form groups to express certain viewpoints and be with people of similar viewpoints.
When is interference with the freedom of association constitutional?
Strict Scrutiny!
1) Necessary
2) To achieve compelling gov interest
3) Unrelated to suppression of ideas.
Can occur when the government forces a group to accept someone who would significant burden the groups views or mission.
What is the 5th Amendment’s Double Jeopardy Clause?
Protects criminal defendants by prohibiting:
1) Multiple punishments for same offense
AND
2) Second prosecution for the same offense after conviction or acquittal.
When do two crimes constitute the same offense for purposes of Double Jeopardy?
Both elements have identical elements
OR
Every element of one crime is also an element of the other crime
When is there a legitimate property interest in continued public employment?
1) Employment contract
2) Clear understanding that employee can be fired only for cause.
At will employees have no right to continued employment.
Do non-citizens have a right to enter the United States?
No; Congress has broad plenary power over non-citizens, and can prohibit them from entering the country.
This includes reasons such as political beliefs.
What are a non-citizens rights if they are being deported?
Procedural due process!
1) Notice
2) Hearing
What does it mean when a treaty is self-executing?
If a treaty is not self-executing, then it is not treated as a federal law for purposes of Supremacy Clause.
Only Congress can implement it through legislation. The President on his own cannot.
What is a bill of attainder?
A legislative act that declares a person or group of people guilty of a crime and punishes them without a trial.
When is a rare instance when a taxpayer has standing to sue against the government’s allocation of funds?
When the taxpayer challenges government expenditures as violating the Establishment Clause.
Under the Establishment Clause, when is government financial assistance to religious institutions permitted?
1) Aid is secular in nature
2) Used only for secular purposes
3) When distributed to secular and religious institutions, criteria is religiously neutral.
Can an exception to certain forms of speech be considered a content-based regulation?
Yes; this would subject the law to strict scrutiny.
If something is selectively applied, as if its content based!
Does Congress have the ability to modify SCOTUS’s jurisdiction?
Original Jurisdiction: Congress cannot expand or limit original jurisdiction.
Appellate Jurisdiction: Congress may modify by statute.
What is the difference between SCOTUS’s original vs appellate jurisdiction?
Original: All cases affecting “ambassadors, public ministers, and those where state is party”. Means the case can be filed first in SCOTUS.
Appellate: May hear through grant of Certiorari or direct appeal.
What is a question you should ask in determining whether the Establishment Clause’s “history and traditions” test is violated?
If, even with the historical context or learning use, the regulation or decision is for a predominantly religious purpose.
Under the 1st Amendment, can the government tell people what to say?
NO!
This includes placing requirements on funding that the party would have otherwise been entitled to receive!
What is required to satisfy a content-neutral speech prohibition?
1) Narrowly tailored
2) Important government interest
3) Leaves open alternative channels of communication
Intermediate scrutiny!
When may states tax foreign persons and entities?
If it completes the Complete Auto requirements:
1) Substantial nexus between state and taxed person/activity
2) Fairly apportioned to rational formula
3) Not discriminatory against foreign commerce
4) Fairly related to state services or benefits
AND must complete the Federal Uniformity Requirements:
1) No inevitable risk of international multiple taxation
2) Federal government able to “speak with one voice** in international trade of foreign affairs
When may the President act when it shares authority with Congress?
EX: Controlling executive agencies?
Apply the Youngstown framework! Consider whether there was congressional:
1) Authorization: President has max authoirty and act is valid
2) Silence: Act is valid if (i) in Presidents Article II powers; (ii) does not interfere with other branches powers
3) Opposition: President has minimal authority
Does Congress have the authority to make rules to regulate territory and property belonging to US?
Yes!
Often is allowed under the necessary and proper clause.
Does the President have the power to impound funds that are explicitly mandated by Congress to be allocated, distributed, or expended?
No! President cannot unilaterally do so.
Includes refusing to spend or delaying in spending.
Are religious activities in public schools a violation of the Establishment Clause?
Yes!
Generally, mediation or voluntary prayers lacking secular purposes have been held as unconstitutional.
When is a prior state court judgment based on adequate and independent state grounds?
Adequate: State grounds fully resolve the matter, federal law not necessary
Independent: State court opinion did not rely on federal law
SCOTUS cannot hear such cases when there are adequate and independent state grounds.
What is a political question?
Suit cannot be heard if it presents a political question, which would require courts to decide a matter that:
1) The Constitution has reserved for legislative or executive branch
2) Lacks judicially manageable standards for resolution
May the federal government interfere with essential state functions?
Yes!
This includes the state’s use of it’s own police powers.
When are regulations regarding expressive conduct permissible under the 1st Amendment?
Intermediate Scrutiny!
1) Narrowly tailored
2) Substantial government interest
3) Regulation is not meant to solely regulate the message
What is the political-function exception regarding EPC claims?
A state law is permitted to restrict a non-citizen’s participation in government functions that allow:
1) Direct formulation, execution, or review of public policy
2) Exercise of broad discretion (police, jury, voting, etc)
Is a case ripe when injury is based on an ambiguous law with a long history of non-enforcement?
Likely not ripe!
How are legislators immune from liability?
Federally: Through the Speech or Debate Clause
State: If actions are within legitimate legislative activity.
Could a zoning regulation that imposes special disabilities onto convicted felons violate the 8th Amendment?
Generally no, especially when doing so is reasonably relate to public safety.
Does the Contracts Clause prohibit the state from impairing a contract between a private party AND the state?
Yes! This means you cannot attempt to breach or repudiate.
Again, only applies to states!
Are U.S. citizens in foreign military courts that are established by Congress entitled to procedural due process?
Yes!
What procedural due process is required for a public employee can only be fired for cause?
Generally requires:
1) Notice of alleged misconduct
2) Pre-termination hearing
3) Post termination hearing
How can Article III (federal judges) be removed?
Only through impeachment. This is because a federal judge as life tenure.
When may a state avoid a contracts clause violation?
1) Is reasonable and narrowly tailored
2) Achieves an important state interest
Does Congress violate the 1st Amendment via restricting mail?
No!
Congress has broad power to establish post offices and post roads.
Congress does not violate the 1st Amendment free speech clause by restricting unprotected or false/misleading commercial speech.
Does the President have authority to remove federal executive officers?
Generally yes, President has absolute authority. Meaning a President does not need to show good cause.
UNLESS it is officer who:
1) Belong to a multimember body that has no executive power
- i.e. committees that conduct investigations for Congress
2) Lack policy making or administrative authority ‘
Does Congress have the sole authority regarding interantional import taxes?
Yes, pursuant to the Import-Export Clause of Article I.
States cannot tax commerce from other countries.
If it is unclear if a state’s court decision rests of state or federal law, may SCOTUS hear the case?
Yes! They are allowed to hear the case and decide the federal issue.
The case is remanded to state court so the state figures out the state issue.
When does the Younger doctrine apply re: Abstention?
A court will not enjoin a pending state criminal case, unless there has been bad faith, harassment, or a patently invalid state statute.
When does the Pullman doctrine apply re: Abstention?
A court may refrain from ruling on a federal constitutional claim that depends on an unsettled issue of state law.
When does the Burford doctrine apply re: Abstention?
Court may refrain from hearing a case seeking declaratory or injunctive relief when such relief would interfere with complex state regulatory scheme that:
1) Serves important state policy
2) Provides for timely and adequate review by state courts
When does the Colorado River doctrine apply re: Abstention?
Courts may refrain from hearing a case that is substantially similar to concurrent state court litigation.
Only used for exceptional circumstances.
May state statutes limit campaign contributions?
What about to ballot measures?
Yes, so long as the law satisfies intermediate scrutiny.
However, while the law may limit contributions to individual candidates, it cannot limit ballot measures.
Does the right to an impartial jury apply to both criminal and civil cases?
Yes!
Generally, is the federal government immune from all state regulation?
Yes, unless Congress consents!
What is an exaction re: 5th Amendment Takings?
When local government conditions issuance of building permit based on landowner’s promise to use property for public use.
This is a taking, unless government demonstrates:
1) Essential Nexus where condition furthers a legitimate government interest
2) Rough Proportionality where there are findings that the impact on the community is proportional to the landowner
Outside of congressional apporval, may the President direct actions of people outside the executive branch?
No, unless there is an exception (i.e. attack on US)
Includes prohibiting regulation over federally licensed, but private individuals!
