Constitutional Flashcards
Under what clause does the presidents executive agreements prevail over state laws?
The supremacy clause
The federal government and its agencies and instrumentalities are not subject to state or local taxes and regulations in the absence of __________
Congressional consent
When may indirect taxes, not violate the constitution?
When they are applied equally in every state and reasonably related to revenue production
True or false impeachment and removal of federal judges is a power reserved solely to Congress
True
Define bill of attainder
A bill of attainder are constitutionally, prohibited, legislative acts that punish specified persons or an easily identified group of persons without a trial laws that applied to all persons are not bill of attainders
The government may regulate private speech by a public employee if
The governments, legitimate interest in efficient. Government function, outweigh the employees right to freedom of speech.
Generally, the right to attend every stage of a criminal trial including voir dire is protected by the first amendment. However, this court can order the trial proceedings be closed if
the court’s findings on the record demonstrate that the closure satisfies strict scrutiny.
NOTE: this requires the court to show that the closure is the least restrictive means to serve a compelling government interest.
State actions are subject to strict scrutiny if they discriminate against
1) suspect class
or
2) substantially impact a fundamental right
The 11th amendment generally forbids the federal government from hearing private suits for damages against the states. When can these suits be authorized?
Congress can authorize such suits when it is acting to enforce the Civil War Amendments (13, 14, 15)
Define
Police Power
Under the tenth amendment, any power that the constitution does not expressly grant to the federal government is reserved to the states.
This includes the police power which is a broad power to enact and enforce laws that are reasonably related to** protecting public health, safety, and welfare. **
Is school choice a fundamental right?
Yes. Parents’ right to control their children’s upbringing and education is a fundamental right. A challenge to a law that impairs this - is subject to strict scrutiny
For first amendment free exercise of one’s religious beliefs, are direct and incidental burdens constitutional?
Direct Burdens - those that target religion - are almost always** unconsitutional** becuase they trigger strict scrutiny
Incidental burdens - which apply to everyone - are usually constitutional under rational basis scrutiny
Define
an Exaction
occurs when a local government conditions the issuance of a building or development permit on a landowner’s promise to dedicate part of the property to public use
Does an exaction amount to a taking?
YES
Under the fifth amendment an exaction is a taking that requires just compensation unless
The government establishes
1) an essential nexus - the imposed condition substantially advances a legitmate government interest, and
2) rough proportionality - individualized and quantifiable findings show that the proposed development’s impact on the community is roughly proportional to the imposed condition’s impact on the landowner
Can a court review “adequate and independent” state grounds?
Yes.
Explanation:
While a final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the US Supreme Court, the Supreme Court may constitutionally review a state court decision to determine whether such grounds exist.
Governmental financial assistance to religious institutions is permitted if
1) the aid is secular in nature
2) used only for secular purposes, and
3) when the aid is distributed among secular and religious institutions, the distribution** criteria must be religiously neutral**
The sixth amendment confrontation clause guarantees a criminal defendant the right to be present during every critical stage of trial. A defendant can lose this right only if he/she
1) leaves voluntarily or
2) is removed for good cause after receving a warning from the court
Taxing under Art I, Section 8, Clause 1 (taxing and spending clause) will generally be upheld if
if has a reasonable relationship to revenue production
When a federal statute conflicts with an executive agreement which takes priority?
Federal statute
Is a prayer at a graduation ceremonies a violation of an Equal Protection Clause?
No.
Are religious activites conducted in public schools a violation of the Establishment Clause?
Yes, generally.
What level of scrutiny is commerical speech subject too?
Intermediate scruntiny.
What is the four part test for whether commercial speech is constitutional?
1) it must concern lawful activity and be neither false nor misleading
2) the asserted government interest must be substantial
3) the regulation must directly advance the asserted interest, and
4) the regulation must be narrowly tailored to serve that interest
A cognizable property interest involves more than an abostract need or desire. There must be a
legitimate claim of entitlement by virtue or statute, employment contract, or custom
Is subpoenaed by Congress - are you entitled to counsel?
Yes. Failure to allow counsel would violate procedural due process and make it so that the person subpoenaed cannot be held in contempt
When can congress limit the President’s power?
When congress and the executive branches powers share authority
When Congress and the executive branch share authority over an issue - how do you determine the extent of the President’s authority?
Consider whether there was congression:
- authorization: president has maximum authority to act and act is likely valid
- silence: the act is valid so long as it (1) fell within the presidents Art II powers and (2) did not interfere with another branches powers OR
- Opposition: President has minimal authority and act is likely invalid
The 8th amendment ban on excessive fins applies to the states through
fourteenth amendment due process clause
What scrutiny doe snot apply to commercial speech?
Rational basis
Congress cannot restrict or expand the Supreme Court’s original jurisdiction but it can regulate and make exceptions to what part of the SC’s jurisdiction?
appellate jurisdiction
this right of Congress is almost unlimited - Ex part McCardle
Can legislative assistant (or other assistant or aid) assert the same privilege as the person they work for?
Yes, under the speech and debate clause
A federal court typically must dismiss a case when the plaintiff’s claim becomes moot except when
1) a plaintiff whose claim is the named plaintiff in a certified class action, and
2) the claims of the unnamed plaintiffs in that class action are still viable
Necessary and Proper applies to what actions by congress?
taxing and spending - NOT REGULATION
The 21st amendment grants states broad authority to regulate the use of alcohol within its own boards. This authority is restricted by what other constitutional provision?
The dormant commerce clause
Under the supremacy clause, operations of the federal government are
completely immune from state regulation in the absence of congressional consent
What clause prohibits states from discrimintation against out-of-state citizens by denying them a right of a state citizenship?
Article IV privileges and immunities
When can a state, under the privileges and immunities clause, discriminate against out of state citizens by denying them a right to state citizenship?
1) nonresidents cause or contribute to the problem that the state is attempting to solve, and
2) the discrimination bears a sustantial relationship to the state’s objective
