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NY Bar 2014 > Constitutional > Flashcards

Constitutional Flashcards

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1
Q

Original jurisdiction of SC?

A

Cases between states

and others which have concurrent jurisdiction

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2
Q

SC as appellate level?

A

3-judge Federal District Court panels

granting/denying injunctive relief

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3
Q

Standard for “justiciability”?

A

“case and controversy”

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4
Q

Mootness (claim resolved)

2 exceptions?

A

(1) Controversies capable of repetition but evading review (pregnancy)
(2) Class action (if claims of other class members still viable)

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5
Q

Standing -

3 components?

A

(1) Injury - direct or personal (not only economic)
(2) Causation between injury and conduct
(3) Redressability - decision capable of eliminating grievance

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6
Q

Standing to enforce government statute?

A

If P is within “zone of interests” Congress intended to protect

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7
Q

Standing of organization - 3 conditions

A

(1) Injury to member (i.e. who can sue independently) (not mere ideological objection)
(2) Injury related to org’s purpose
(3) Individual member participation not required

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8
Q

No “citizenship” standing - exception?

A

10th amendment violation - interference with power reserved for states

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9
Q

No “taxpayer” standing - exception?

A

Establishment clause (when spending power is involved)

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10
Q

When disposition rests on unsettled question of state law?

A

SC abstains

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11
Q

Pending state proceedings?

A

SC abstains.

EXC: proven harassment or bad faith prosecution

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12
Q

11th amendment restriction on claims against state government - what is not barred

A
  • State waives
  • Claims against local government
  • Federal bankruptcy court
  • Against state officers
  • 14th amendment - if Congress intended to remove state immunity
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13
Q

No 3rd party standing - 2 exceptions?

A

(1) Close relationship: doctor-patient (OK)
(2) Injured party unlikely to assert own rights
(3) Organization (see 3 conditions)

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14
Q

Ripeness - considerations for exception?

A

(1) Hardship suffered w/o pre-enforcement review

2) Fitness of issues and records (enough for review even though no enforcement yet?

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15
Q

Examples of non-justiciable political Qs

A

“Guarantee clause” - republican form of government guaranteed

Foreign policy

Impeachment/removal processes

Gerrymandering

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16
Q

Conditions for review of state law decision

A

No “independent and adequate state law ground”.
(resolving federal matter won’t help outcome)
AND
Final judgment rule.

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17
Q

LEGISLATION

Congress’s “necessary and proper” power?

A

Cannot support federal law alone. Only with another federal question

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18
Q

Standard to uphold taxation

A

Reasonable relationship to revenue production OR Congress has power to regulate taxed activity

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19
Q

Spending power

A

Any public purpose

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20
Q

Commerce power - law must:

A 
Regulate channels
OR
instrumentalities of
OR
activities that have substantial effect on
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21
Q

No Federal Police Power - exceptions?

A

Military bases
Indian reservations
Federal Lands
DC

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22
Q

Cong can regulate existing commercial activity, cannot:

A

Compel it! (Obamacare)

But can “induce” by putting strings on grants - if expressly stated

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23
Q

Delegation of legislative powers standard?

A

“Intelligible standards” set for delegate to follow (almost anything passes!)

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24
Q

Can Cong prohibit “harmful commercial activity”?

A

Yes.

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25
Q

Legislative veto of executive action?

A

No, without:

Bicameralism OR presentment to Pres

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26
Q

Appointment of inferior officers - to whom?

A

Anyone, but not Cong.

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27
Q

Removal of officers - by whom and how?

A

High level - by President at will
By Congress through impeachment
Lower level - by President subject to Congressional limitations

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28
Q

Treaty / Executive Agreement - Senate approval?

A

Only for treaty

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29
Q

Treaty / Executive Agreement - conflict with state law

A

Both supersede state law

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30
Q

Treaty / Executive Agreement - conflict with fed law

A

Treaty - whichever was adopted last (is same as Fed Law)

Exec Agreement - loses to fed law

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31
Q

Impeachment of officer

A

Majority of House to invoke charges, 2/3 of Senate to convict and remove

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32
Q

Suit by state against US?

A

Only with US approval (including suit against officer for payout from public treasury).

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33
Q

Taxation or regulation of state activity?

A

May be limited by 10th (except civil rights and econ. inducements)
MBE: Never stricken by 10th!!

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34
Q

Interstate Privileges and Immunities clause

A

Prevents discrimination by state against non-resident

EXC: non-fundamental rights, substantial justification (if no less restrictive means

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35
Q

Dormant commerce clause - prohibits:

A

Discrimination against interstate commerce

Unduly burden interstate commerce

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36
Q

Dormant commerce clause - 2 exceptions

A

(1) Important state interest – noneconomic! No alternatives!
(2) State is “market participant” - hiring, subsidizing?.
Court more liberal with traditional government function.

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37
Q

Exception to burdening interstate commerce:

A

State’s interest in regulation outweighs burden.

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38
Q

DISTINGUISH:
Commerce clause (wider but weaker)
Interstate Privs and Immunities clause (narrow but stronger)

A

Different exceptions:
Commerce: important non-economic state interest / market participant / traditional
Privs: Substantial justification
Commerce always applies, Privs only applies for discrimination against outastater
Alien/corporation cannot be plaintiff in Privs (yes in Commerce)
Market participation exception only in Commerce

39
Q

Nondiscriminatory taxes affecting state commerce OK if:

A

(1) Substantial nexus to state
(2) Fair apportionment
(3) Fair relationship to services/benefits given by state

40
Q

MBE question on commerce or taxation, ask:

A

(1) Federal statute supersedes/preempts/authorizes?

(2) If not, look at “undue burden” or “discrimination”

41
Q

Ad valorem taxation of commerce instrumentalities?

A

OK if it has a “taxable situs” in state

42
Q

Constitution applies only to state action.

EXC - when does it apply to private action?

A

(1) Private entity performing task traditionally done exclusively by government;
(2) Entanglement: When gov affirmatively authorized, encourages or facilitates

43
Q

Examples of private action subject to Const (13th, commerce):

A

** State must be significantly involved **
Court won’t enforce racist covenant
Gov lease to racist restaurant
Free books to racist private school
Private entity regulates interscholastic activity in state

44
Q

Examples of private action NOT subject to Const:

A

Private school w gov funding fires teacher because of speech
NCAA suspends coach as state uni
Private club with liquor license discriminates
Granting utility monopoly
Granting name ot corporation

45
Q

How does Bill of Rights apply to state and local gov?

A

Incorporation in due process clause of XIV

46
Q

Bill of Rights - provisions not applying to states:

A

Quarter soldiers
5th Am right to grand jury indictment in crim court
7th Am right to jury trial in civil cases
8th Am right against excessive fines

47
Q

Contract clause - how applies?

A

To states.

Fed gov - through Due Process clause

48
Q

Ex post facto clause (criminal only!!)

A

(1) Makes an act criminal when “innocent when done”
(2) greater punushment
(3) reduces evidence needed

49
Q

Due process - when is life, liberty, property deprived?

A

(1) Loss of significant freedom provided by Const or statute

(2) Person has “entitlement” (reasonable expectation of continued receipt of benefit) and it is not fulfilled

50
Q

Due process liability in emergency?

A

Only if conduct “shocks the conscience”

51
Q

3-part balancing test for due process procedure:

A

(1) Importance of interest to individual
(2) Ability of additional procedures to safeguard interest
(3) Gov interest in fiscal/admin efficiency
[Eg. Hearing+notice / post hearing / jury instructions / ability to challenge detention / habeas corpus]

52
Q

Takings clause (gov may take private property for public use if it pays just compensation) - test used instead of scrutiny level:

A

(1) Taking? (even gov regulation qualifies, if it leaves no reasonable economically viable use)
(2) Public use? (gov acts out of reasonable belief that taking will benefit public)
(3) Just compensation paid? (loss to owner in reasonable market terms)

53
Q

SCRUTINY LEVEL: Rational basis

A

Rationally related to legit government purpose.
Challenger has burden of proof.
[Laws not affecting fundamental rights or quasi-suspect classifications]
[Laws affecting non-suspect classifications - age, disability, poverty]

54
Q

SCRUTINY LEVEL: Intermediate

A

Substantially related to important government purpose.
Gov usually has burden of proof
[Quasi-suspect classifications - gender and legitimacy]

55
Q

SCRUTINY LEVEL: Strict

A

Necessary to achieve compelling gov purpose.
Lease restrictive alternative analysis.
Gov has burden of proof
[Fundamental rights, suspect classifications - race, origin, alienage]

56
Q

Contract clause - scrutiny levels?

A

Private contract: INTERMEDIARY

Public contract: “stricter”

57
Q

Privacy - level?

A

Strict

58
Q

Durational residency (before getting benefit) - level?

A

Strict
For voting - max 50d.
For welfare payments - no limits!
Divorce - 1y OK

59
Q

Due process - constitutional source

A

5th - Fed.

14th - State and local

60
Q

Irrebutable presumption - person cannot demonstrate qualification for a right - ?

A

Not invariably invalid.

Consider whether affects fundamental right or suspect / quasi-suspect, then apply correct level.

61
Q

Gender classification

A

Intermediate.
Allowed with exceedingly pervasive justification.
No role stereotypes (can’t limit alimony to women)
Remedy past discrimination - allowed

62
Q

Facially neutral - how to prove discrimination?

A

Discriminatory intent (motive) and impact (application).

63
Q

Alienage discrimination - levels?

A

State - strict.
Voting etc - rational
Congress - rational
Undocumented alien children - probably intermediate

64
Q

Non-marital children discrimination - level?

A

Intermdiate.

65
Q

Default level for other types of discrimination

A

rational.

66
Q

What clause does intermediate apply to?

A

Only equal protection for quasi-suspect class. Due process is either rational or strict.

67
Q

Affirmative action in public education

A

OK as one factor. Each applicant must be considered as an individual.

68
Q

Valid gender discrimination examples

A

Statutory rape
All-male draft
Requiring fathers to prove parentage of non-marital children abroad..
[substantially related to important government interest under intermediate scrutiny]

69
Q

Suspect classifications:

A

Race, national origin, alienage (Strict)

70
Q

Quasi-suspect classifications:

A

gender and legitimacy (Intermediate)

everything else - rational

71
Q

Fundamental rights:

A

Interstate travel, privacy, voting, 1st amendment

everything else - rational

72
Q

Privacy - requirement to notify spouse about abortion?

A

Undue burden. Prohibited.

73
Q

1st Am. Scrutiny?

A 
Content based (subject mater / viewpoint): Strict scrutiny
Content-neutral: Intermediate
Prior restraint - Strict. No gag orders. Violator of court order cannot challenge it.
74
Q

Symbolic speech - when may gov regulate?

A

Important interest unrelated to suppression of message AND
impact on communication no greater than necessary to achieve goal.
(Eg. flag burning, cross burning, campaign contribution limits OK,
draft card burning, nude dancing, campaign expenditure limits NOT OK)

75
Q

Anonymous speech?

A

Protected.

But state may dislose ballot petition signatories to promote transparency.

76
Q

Gov speech challenged as violating?

A

Upheld under rational test

77
Q

Unprotected / less protected speech?

A 
Incitement of illegal activity
Obscenity, sexually oriented
[appeals to prurient interest in sex AND patently offensive AND lacks literary, artistic, scientific meaning]
Commercial speech (deceptive ads)
Defamation
78
Q

Falsity makes speech unprotected?

A

No.

79
Q

Restriction on content of speech - standard?

A

Necessary to achieve compelling gov purpose. (Strict)

80
Q

Regulation of commercial speech?

A

Must be narrowly tailored.

Does not need to be least restrictive alternative.

81
Q

Regulation of speech in public

A

Content-neutral
Narrowly tailored to serve important gov interest.
Leaves open alternative channels

82
Q

Reasonableness of free-speech regulation

A

Overbroad - invalid.
Vagueness - void.
No unfettered discretion for officials.
EXAM: Q if law is constitutional - examine these.

83
Q

Cannot compel funding of speech. Exception?

A

University activity fees paid by students.

84
Q

Defamation - public official / candidate

A

Prove falsity with clear and convincing evidence
Actual malice
(knew false, or acted with reckless disregard for the truth)

85
Q

Defamation - public figure

A

Prove falsity + malice

86
Q

Defamation - private figure + public concern

A

Prove falsity + negligence

For punitive damages - malice.

87
Q

Defamation - private figure

A

Punitive damages without proving malice.

88
Q

Sidewalk outside post office

A

Non-public! (Restriction must be viewpoint-neutral)

89
Q

Restriction on freedom of association. Requirement to punish for membership:

A

Actively affiliated.
Knowledge of group’s illegal activities.
* Specific intent of furthering illegal activities/objectives.

90
Q

When does freedom of association protect discriminatiom?

A

Intimate association

Discrimination integral to expressive activities of group

91
Q

School sponsorship of extracurricular clubs (right of association) - standard?

A

Not “compelling interest” (strict)!
Instead - limited public forum speech –> OK if viewpoint neitral and reasonably related to legit gov interest (rational)

92
Q

Freedom of religion - compelling interest - ever used by SC?

A

No.

93
Q

Freedom of religion - challenge neutral law of general applicability?

A

No. (Peyote)

Unconstitutional only if specifically designed to prohibit religious practice.

94
Q

Establishment clause - 3-part test:

A

(1) Secular purpose for law
(2) Primary effect neither advances nor inhibits religion
(3) No excessive gov entanglement with religion
[Eg. funding of parochial school activities for non-religious purposes]

NY Bar 2014 (18 decks)

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