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ConLaw Intro Cards Flashcards

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1
Q

What are the three branches of government?

A

Legislative, Executive, and Judicial.

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2
Q

Which branch of government has the final authority to interpret the Constitution and declare acts of Congress Unconstitutional?

A

The Judicial Branch.

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3
Q

Federal Courts must have jurisdiction over a ________ claim to conduct judicial review.

A

justicable

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4
Q

For what types of claims do federal courts have judicial review?

A

Claims arises (in law and equity) to the Constitution, treaties and laws of the US.

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5
Q

What is the role of the trial body in judicial review?

A

To render a decision.

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6
Q

What is the role of an appellate body in judicial review?

A

To review and overturn, modify, or affirm a decision made by a lower court or a tribunal.

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7
Q

How does the 11th Amendment affect state sovereignty?

A

Generally, states cannot be sued (are immune) by private parties unless they have given consent.

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8
Q

Can a plaintiff bring a claim against a state in federal courts?

A

No. The eleventh amendment prohibits jurisdiction over any set for damages against a state by a private plaintiff without the state’s consent.

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9
Q

Can a plaintiff bring a claim against the federal government in state court?

A

No. The eleventh amendment bars private-plaintiff suits against a state in a state’s own courts for violation fo federal law.

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10
Q

What does it mean for a case to be “justiciable”?

A

It means appropriate for resolution.

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11
Q

What are the three requirements of the Case-or-Controversy Clause of Article III of the Constitution?

A

(i) a Plaintiff must have standing; (ii) the claim must be ripe; (iii) and it cannot be moot.

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12
Q

What is the ostensible purpose of standing doctrine?

A

To ensure the plaintiff has a personal stake in the outcome of a case or controversy (and will litigate arduously) and the that court is in a position to provide relief.

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13
Q

Wha are the basic requirements for constitutional standing?

A

The plaintiff must prove (i) an injury-in-fact; (ii) that was caused by the defendant, and (iii) the injury is redressable by the courts.

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14
Q

In general, can a plaintiff asset standing rights on behalf of a third party?

A

No. In general, a party cannot claim standing on behalf of representing a third party.

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15
Q

What is the exception to prudential standing (representing a third party)?

A

A plaintiff may assert standing if (i) there is such a close relationship between the plaintiff and the third party that the third-party’s rights are inextricably bound with the plaintiff’s activity; and (ii) there are genuine obstacles to the third party asserting his own rights.

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16
Q

What are the limitations of ripeness on a case?

A

A case or controversy may only be ripe for adjuration if it presents an actual controversy or past injury or threat of a real and immediate injury.

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17
Q

What is the limitation of mootness on a case?

A

Mootness will bar any claim where a favorable decision will no longer provide any relief to the Plaintiff.

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18
Q

Can a Federal Court issue an advisory opinion – an abstract opinion on the validity of a law in a hypothetical circumstance, absent a concrete dispute?

A

NO!

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19
Q

When can the Supreme Court not (because it lacks jurisdiction* review a state court decision?

A

When the state-court decision is adequately supported by state-law ground that is independent of federal law.

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20
Q

What is the political questions doctrine?

A

Federal Courts will not decide any matter that the Constitution has committed to the executive or legislative branches that lacks judicially manageable standards for decision.

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21
Q

What is the difference between express and implied powers of the Constitution?

A

Express powers are clearly written in the constitution, enumerated. Implied powers, by contrast, are inferred from the text and structure of the Constitution.

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22
Q

What are the most common enumerated powers of Congress?

A

(i) commerce; (ii) taxing; (iii) spending; (iv) war; (v) defense; and (vi) foreign affairs

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23
Q

What’s the relationship between the taxing and spending clause in Article I?

A

Taxing is an expressly stated power, and it implies spending power. Spending power is limited to spending that promotes the nation’s general welfare.

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24
Q

What commerce powers does Congress have in Article I?

A

(i) the power to control the uses of channels of interstate commerce; (ii) the power to regulate the instrumentalities of interstate commerce (persons or things); (iiI) the power to regulate economic activity that substantially affects interstate commerce.

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25
Q

In what Section is the Necessary and Proper Clause (in the Constitution)?

A

Article I

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26
Q

What is the Necessary and Proper Clause?

A

Congress has the power to exercise any power that is useful or essential to promoting its enumerated powers, so long as the ends and means do not violate the Constitution.

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27
Q

Which amendment prohibits slavery?

A

The Thirteenth Amendment.

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28
Q

Which amendment includes the right of equal protection?

A

The Fourteenth Amendment

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29
Q

Which Amendment prohibits race-based voting discrimination in the US?

A

The Fifteenth Amenmdent

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30
Q

In what Section of the Constitution is the Take Care Clause?

A

Article II

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31
Q

Which Section of the Constitution relates to the Congress?

A

Article I

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32
Q

Which Section of the Constitution relates to the Executive?

A

Article II

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33
Q

Which Section of the Constitution relates to the Judiciary?

A

Article III

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34
Q

Does a Executive Order have the full force of law?

A

Yes.

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35
Q

Does the executive have the right not-to-prosecute?

A

Yes, it is a discretionary right of the President.

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36
Q

Who approves the President’s appointment of Principal Officers?

A

A majority of the Senate (in the Constitution)

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37
Q

Who determines whether inferior officers must be confirmed by the US Senate?

A

U.S. Congress

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38
Q

Can the President always remove a federal officer?

A

No. Sometimes he must show good cause.

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39
Q

Can Congress remove a federal official?

A

No, except via impeachment.

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40
Q

Can a President fill a position without the advice and consent of the Senate?

A

Yes, but only when the Senate is not in session (in recess).

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41
Q

Who has the primary authority over foreign affairs?

A

The President.

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42
Q

Who has the power to appoint and receive ambassadors?

A

The President.

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43
Q

Who ratifies treaties that the President negotiates?

A

2/3 of the U.S. Senate.

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44
Q

Can a President rescind a US Treaty without Congressional approval?

A

Likely ???

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45
Q

Who has the Power to Declare War?

A

The Congress.

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46
Q

What defensive measures can the President take without a declaration of War?

A

Command the Armed Forces to defend the US; deploy the armed forces on a tactical basis to meet military, national-security, and foreign affairs emergencies.

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47
Q

On what grounds can the Congress impeach the President?

A

treason, bribery, or other high crimes and misdemeanors

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48
Q

How does Congress override a Presidential veto?

A

A 2/3 vote of each house.

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49
Q

What happens if the President fails to sign and return a bill within ten days of presentment from Congress?

A

It becomes law.

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50
Q

What is the exception to the President allowing a law to go into effect without his signature?

A

If Congress Presents a bill to the President and then adjourns fewer than ten days after Presentment, the bill will not become law without the President’s signature.

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51
Q

What party in the Constitution is primarily protected by the non-delegation doctrine?

A

The Congress

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52
Q

What is the Non-Delegation Doctrine?

A

Congress may only authorize the Executive or Judiciary to act if it articulate an intelligible principle to guide decision making.

53
Q

Who has the institutional power to control Congress’s membership?

A

Congress

54
Q

Who has the institutional power to investigate and conduct oversight of the Executive?

A

Congress.

55
Q

What is the Tenth Amendment?

A

The principle that states have the power under their own constitutions to make all necessary laws to protect the general health, safety, and welfare of the persona and properties within their jurisdiction.

56
Q

Which Amendment relates to state Police Powers?

A

The Tenth Amendment

57
Q

What is the Supremacy Clause?

A

The Supremacy Clause establishes the relationship between federal law and conflicting state law. Valid federal law will usually supersede or displace state law.

58
Q

What are the requirements for federal supremacy?

A

(i) The federal law says it has preemptive effect (express preemption); or the federal law and the state law conflict (conflict preemption); (iii) or the federal law has occupied the entire field of regulation, leaving no room for the state (field preemption)

59
Q

What is the Dormant Commerce Clause?

A

It prevents states from passing laws that discriminate against or unjustifiably burden interstate commerce.

60
Q

What standard of review is applied to a state law that discriminates against interstate commerce?

A

Strict Scrutiny. The law will be struck down unless the state can prove that it serves a legitimate state purpose that cannot be served by any nondiscriminatory alternative.

61
Q

Pike Balancing is a test that relates to what Constitutional Principle?

A

Interstate Commerce

62
Q

What is the Pike Balancing test?

A

It applies to state laws that burden (but do not prohibit) interstate commerce. An intermediate-scrutiny standard applies. The Pike Balancing test evaluates; (i) if the state law has a legitimate objective; (ii) if the law is rationally related to the objective, and (iii) and affirms that the burdens on interstate commerce are not clearly excessive as compared to the local benefits.

63
Q

What are the two major exceptions to the Dormant Commerce Clause?

A

(1) A state my regulate interstate commerce in any manner with Congressional Approval; (2) a state is not subject to the Dormant Commerce Clause if it is acting as a market participant (rather than as a regulatory)

64
Q

When can state governments apply taxes on interstate commerce?

A

When: (i) the tax is applied to a person or activity that has a substantial nexus with the state; (ii) it’s fairly apportioned; (iii) it does not discriminate against interstate commerce; and (iv) it is fairly related to a service provided by the state.

65
Q

Is the Federal Government subject to state law?

A

In general, no.

66
Q

Can the Federal Government commandeer a state government and force it to pass certain legislation?

A

No. That’s a violation of the Tenth Amendment.

67
Q

Can the Federal Government compel a state to perform a federal executive duty?

A

No. That’s a violation of the Tenth Amendment.

68
Q

What is the State Action Doctrine?

A

Generally, the Constitution only protects individual rights from infringement by the government. But if a private individual is acting with the force of the government, an individual may seek relief under the state action doctrine.

69
Q

What is the idea of Constitutional Incorporation?

A

The first amendments to the federal government deal with personal liberty. The Supreme Court has “incorporated” several of these rights to apply to state conduct as well.

70
Q

Which of the first eight amendments are fully incorporated?

A

The First, Second, and Fourth Amendments.

71
Q

Which of the first eight amendments are partially incorporated?

A

The Fifth, Sixth, and Eight Amendments.

72
Q

Which of the first eight amendments are not incorporated?

A

The Third and Seventh Amendments.

73
Q

Where does the Due Process Clause appear in the Amendments?

A

The Fourth and Fifth Amendments.

74
Q

What is protected by the Fourth and Fifth’s Amendments Due Process Clauses?

A

No person shall be deprived of life, liberty, or property without the due process of law.

75
Q

What is substantive due process?

A

A requirement that the federal government offer sufficient justification to deprive an individual of certain rights.

76
Q

What are the Constitutions Express and Implied Fundamental Rights?

A

The enumerates rights in the Bill of Rights and some implied rights (privacy and personal autonomy).

77
Q

What Standard of Review is applied to deprivation of fundamental rights (alleged due process violations?)

A

Strict Scrutiny. The law is presumed invalid, and the government has the burden of proving that the law is necessary and narrowly tailored (using the least-restrictive means) to serve a compelling government interest.

78
Q

What Standard of Review is applied to deprivation of Liberty Interests (lower than Fundamental Rights)?

A

Rational-Basis Review. The law is presumed valid, and the Plaintiff must show that the law has not rational relationship to any legitimate government interest. Very high standard of review.

79
Q

What is the difference between Substantive Due Process and Procedural Due Process?

A

Substantive Due Process is about fundamental rights and liberty interests – the rights we enjoy as Americans. Procedure Due Process is about the process the government uses in taking action against a Citizen.

80
Q

What process must the government follow before depriving an individual of life, liberty, or property?

A

The Government must create procedures that depend on the private interest affected by the official action; the risk of erroneous deprivation and the value of additional safeguards; (iii) the government’s interest

81
Q

Under what circumstances can the government take one’s life, liberty, or property without prior due process?

A

(i) if the government interest is so high as to justify deprivation before a hearing; or (ii) if a government official deprives someone of life, liberty, or property in an unauthorized or unforeseeable way

82
Q

What are the five fundamental rights protected by the Fourteenth Amendment’s Equal Protection Clause?

A

(i) The right to vote; (ii) the right to access the ballot as a political candidate; (iii) the right to travel to another state; (iv) the right to marry, procreate, and live as a family unit; and (v) the right access the courts to obtain justice.

83
Q

What Standard of Review will courts apply to alleged violations of rights under equal protection?

A

Strict Scrutiny. The law is presumed invalid, and the government has the burden of proving that the law is necessary and narrowly tailored (using the least-restrictive means) to serve a compelling government interest.

84
Q

What Standard of Review ill courts apply to government actions that classify groups of individuals based one race, religion, national origin, or lawful alienage (Fourteenth Amendment)?

A

Strict Scrutiny. The law is presumed invalid, and the government has the burden of proving that the law is necessary and narrowly tailored (using the least-restrictive means) to serve a compelling government interest.

85
Q

What Standard of Review is applied to semi-suspect classes, which are laws or government actions that treat individuals differently based on gender or illegitimate birth?

A

Intermediate Scrutiny. The law is presumed to be invalid and the government must prove that it is substantially related to an important government interest.

86
Q

What Standard of Review will be applied to classifications of individuals for government action (other than classifications based on race, religion, national origin, lawful alienage, gender, or birth legitimacy)?

A

Minimal-Scrutiny, which is a rational-basis standard. The law is presumed valid and the challenger must prove the law is not rationally related to any legitimate government interest.

87
Q

What are the Fourteenth Amendment’s “suspect” classifications?

A

Race, Religion, National Origin, and Lawful Alienage.

88
Q

What are the Fourteenth Amendment’s “semi-suspect/quasi-suspect” classifications?

A

Gender and illegitimate birth.

89
Q

What is the other name for the Article IV Privileges and Immunities Clause?

A

The Comity Clause

90
Q

What is the Article IV Privileges and Immunities Clause / the Comity Clause?

A

A prohibition on state governments from discriminating against out-of-state residents without a substantial reason when denying certain rights to individuals.

91
Q

What is the Privileges and Immunities Clause of the Fourteenth Amendment?

A

A prohibition against states unreasonably interfering with the rights of national citizenship.

92
Q

What is the Takings Clause?

A

A prohibition against government taking of private property unless there is fair market value at the time of the taking and the use of eminent domain satisfies a public use.

93
Q

What is the Article I contracts clause?

A

If a state law substantially impairs a private contractual relationship, then the state must show (1) that the law serves a significant and legitimate public purpose and (2) the impairment is reasonable and appropriately tailored to fit that purpose.

94
Q

How does the Article I contracts clause for public contracts differ from the Article I contracts clause for private contracts?

A

Laws that impair contracts to which the government is a party are subject to heightened scrutiny. Courts will give less deference to the state (than it does to the state when changing private contract terms).

95
Q

What is a Bill of Attainder?

A

The Bill of Attainder prohibits the state and federal government from enacting laws that impose punishment on named individuals (or groups) without a trial. They are always unconstitutional.

96
Q

What is the Right against Ex Post Facto Laws?

A

Under the Ex Post Facto Clause, states and the federal government are prohibited from enacting criminal laws with retroactive punitive effect.

97
Q

What is the Unconstitutional-Conditions Doctrine?

A

A state may not condition the recipe of a discretionary benefit on the waiver of a constitutional right.

98
Q

What rights are secured by the First Amendment?

A

(i) the freedom of speech; (ii) freedom of the press; (ii) the right to assemble; (iv) the right to petition the government. Also included are the free exercise of religion and a prohibition against the establishment of an official religion.

99
Q

How is religion protected by the First Amendment?

A

The Free Exercise Clause protects ones right to exercise one’s religion; the Establishment Clause ensures the separation of church and state.

100
Q

What rights are protected by the First Amendment’s Free Exercise Clause?

A

The government cannot enact laws that discriminate against or excessively interference with a person’s exercise of sincerely held religious beliefs.

101
Q

What Standard of Review is applied to laws that intentionally discriminate against (or penalize or interfere with) religious beliefs?

A

Strict Scrutiny. The law is presumed invalid, and the government has the burden of proving that the law is necessary and narrowly tailored (using the least-restrictive means) to serve a compelling government interest.

102
Q

What Standard of Review is applied to a state law that incidentally burden’s one practice of religion?

A

Minimal-Scrutiny, which is a rational-basis standard. The law is presumed valid and the challenger must prove the law is not rationally related to any legitimate government interest.

103
Q

What Standard of Review is applied to a federal law that incidentally burden’s one’s practice of religion?

A

Strict Scrutiny. The law is presumed invalid, and the government has the burden of proving that the law is necessary and narrowly tailored (using the least-restrictive means) to serve a compelling government interest.

104
Q

What are the two major distinctions in how the law reviews questions of free speech?

A

(i) Content-based regulations; and (ii) content-neutral regulations.

105
Q

What is a content-based regulation of speech?

A

A law that restricts speech based on content.

106
Q

What standard of review is content limitations on free speech?

A

Strict Scrutiny. The law is presumed invalid, and the government has the burden of proving that the law is necessary and narrowly tailored (using the least-restrictive means) to serve a compelling government interest.

107
Q

What are the exceptions to strict scrutiny review for content-based restrictions?

A

Commercial speech and unprotected speech.

108
Q

What are content-neutral regulations on free speech?

A

These are restrictions on speech without reference to the content. Like restrictions on time, place, or manner.

109
Q

What Standard of Review applies to content-neutral regulations of free speech?

A

Intermediate Scrutiny. The law is presumed to be invalid, and the government must prove that (i) the law is narrowly tailored to burden no more speech than necessary; (ii) that the law serves a significant or substantial government interest; and (iii) that the law leaves open ample alternative channels of communication.

110
Q

What is a “total medium ban” on free speech?

A

When the government bans a channel outright (like leaflets). The Supreme Court is skeptical of any medium ban.

111
Q

What standard of review is applied to speech in government owned public fora?

A

The traditional levels. Content-based restrictions are evaluated using Strict Scrutiny, and content-neutral restrictions are evaluated with Intermediate-Scrutiny.

112
Q

What is a government-owned “limited public fora”?

A

A zone designated by the government as a public fora, even if it traditional is not.

113
Q

What is a government owned non-public fora?

A

Government-owned property tat is not traditionally a public fora, and has not been designated by the government as a free speech zone.

114
Q

What standard of review is applied to government owned limited-public fora?

A

The normal rules of free speech analysis. Content-based restrictions are evaluated using Strict Scrutiny, and content-neutral restrictions are evaluated with Intermediate-Scrutiny.

115
Q

What standard of review is applied to government owned nonpublic fora?

A

Regulations limited speech in government owned non-fora need only be reasonably related to a legitimate government interest. The government may completely prohibit access to nonpublic fora, but it must base that restriction on viewpoint-neutral criteria.

116
Q

What is commercial speech?

A

Speech that is meant to further a commercial transaction.

117
Q

How are regulations limiting commercial speech reviewed?

A

The regulation will be upheld if (i) the speech concerns lawful activity and is not misleading; (ii) the regulation directly advances a substantial government interest; and (iii) the regulation is not more extensive than necessary to serve the public interest.

118
Q

What five types of speech receive no government protection under the first amendment?

A

(i) incitements to chimer; (ii) defamation; (iii) fighting words (incitements to violence); (if) true threats; and (v) obscenity.

119
Q

When will speech not be protected because it is an incitement to crime?

A

When (i) the speech is directed at producing imminent lawless action and (ii) it’s likely to produce such action.

120
Q

When is a defamatory statement protected by the first amendment?

A

When it is directed against a public figure. To overcome this right, the defamation plaintiff must prove that the defendant acted with actual malice (with knowledge or reckless disregard for the truth or falsity of the alleged defamatory material).

121
Q

What “fighting words” are unprotected by the first amendment?

A

Speech intended to provoke an ordinary person to immediate violence.

122
Q

What “true threats’ are not protected by the first amendment?

A

Serious threats to commit an unlawful ac or violence against a specific group or individual.

123
Q

When is material obscene and therefore unprotected free speech?

A

When the average person, applying contemporary community standards, would find that the work as a whole appeals to the prurient interests (e.g., an excessive interest in sex or sexuality); when the work, in a patently offensive way, describes sexual conduct; the work as a whole lacks serious literary, artistic, political, or scientific value, based on an objective and nationwide reasonable-person standard.

124
Q

How does the government’s ability to restrict free speech differ when the context is a public school?

A

The government has a greater ability to prohibit speech if it substantially interferes with the educational environment or the rights of other students.

125
Q

Can public schools require students to salute the flag or recite the pledge of allegiance?

A

No.

126
Q

How does the government’s ability to restrict free speech differ int he context of the government as an employer?

A

It may limit the speech of employees, in their work, and terminate or discipline employees who disobey.

127
Q

How does the government’s ability to restrict free speech differ in the context of prison?

A

The government may prohibit speech by prison inmates so long as the restrictions are reasonably related to penological interests.

128
Q

What is a free speech claim based prior restraint, vagueness, and over breadth?

A

A claim that the law, as applied violates the first amendment. A prior restraint prohibits speech before it can occur. Vagueness means that people of common intelligence are required to guess as to its meaning; over breadth means the law will chill or deter constitutionally protected expression. A facially over broad law will be held unconstitutional.

129
Q

How is Freedom of the Press different from individual freedom of speech?

A

Generally, they are the same.

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