CONSTITUTIONAL Flashcards
What is the power of federal courts?
Federal courts have the power to hear cases and controversies that are based on a federal question, diversity cases, and admiralty and maritime cases.
What are the requirements for standing in a lawsuit?
An individual needs an injury in fact, causation, and redressability in order to file a lawsuit.
What must a case be for a court to hear it?
The case must be ripe and cannot be moot.
Can a court render advisory opinions?
No, a court will not render advisory opinions.
What must an organization show to have standing?
For an organization to have standing,
it must show: a member has standing, the member’s injury is related to the purpose of the organization, and individual members are not required to participate in the lawsuit.
What are adequate and independent state grounds?
The Supreme Court can review decisions of the federal courts of appeals and federal decisions made by state courts. The Supreme Court can hear the latter type of case if the case involves a matter of federal law, it is a final judgment from the highest state court authorized to hear the case, and there are no adequate and independent nonfederal (state) grounds on which the state court decision is based.
Tip: if a state court decision rests on two grounds (a state ground and a federal ground) and the Supreme Court’s reversal of the federal decision would not change the outcome, the Supreme Court cannot hear the case.
What is a political question in the context of federal courts?
Federal courts will not hear political questions (those given to another branch of
government by the Constitution).
Tip: Examples include: “republican form of government” clause challenges, military or foreign affairs decisions, or impeachment.
When should federal courts not enjoin pending state court proceedings?
Federal courts should not enjoin pending state court proceedings unless the case is brought in bad faith or for harassment purposes.
What does the Eleventh Amendment state?
A private individual cannot sue a state for money damages in federal court.
Tip: this is usually the wrong answer on the MBE.
What can and cannot do the Congress to the Courts?
Congress cannot eliminate the Supreme Court or divide it. However, Congress may establish lower federal courts and give those courts jurisdiction to hear the same types of cases that go to the Supreme Court (and it has done so for all cases besides cases between states).
What is the original and exclusive jurisdiction of the Supreme Court?
Original and exclusive jurisdiction for cases between states.
Tip: remember that only the Supreme Court can hear
cases between states.
When does the supreme court has original jurisdiction?
It has original jurisdiction over any case that involves (APS) ambassadors, public ministers and consuls, or where the state is a party.
When does the supreme court has apellate jurisdiction?
It has appellate jurisdiction over a final judgment from the highest state court if the case has a federal issue and there are no adequate and independent state grounds. (There is also rare mandatory appellate jurisdiction.)
What is the Supremacy Clause?
Pursuant to the Supremacy Clause, federal law is supreme and prevails over state law. States may not pass laws (1) that conflict with federal law, (2) that interfere with a federal objective, or (3) in areas where Congress has intended to “occupy the field.”
What does the Federal immunity from state law entail?
A state cannot regulate or tax the federal government. However, a state may tax federal employees the same that they tax everyone else.
Tip: This is a bar exam favorite. E.g., the federal government does not have to abide by state environmental regulation because of federal immunity.
What does the Tenth Amendment state?
Any powers not given to the federal government are given to the states.
Tip: This means the federal government cannot compel states to enforce federal statutes. (However, the federal government is permitted to “incentivize” states to enforce such statutes by offering money to the states.)
What does the Article IV Privileges and Immunities Clause prohibit?
States may not discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means.
Tip: This is usually the issue when a state gives a hiring preference to its own citizens and discriminates against out-of-state citizens. Employment is only a
fundamental right for purposes of Article IV.
What does the Fourteenth Amendment Privileges or Immunities Clause prohibit?
States are not allowed to pass laws that would restrict access to vital governmental services (e.g., welfare benefits) to newcomers because such laws would interfere with a citizen’s fundamental right to travel from state to state.
Tip: this is usually the wrong answer on the MBE.
What are the two kinds of discrimination under the Dormant Commerce Clause?
There are two kinds of discrimination: (1) Laws that expressly discriminate for the purpose of favoring in-state commerce. These are automatically
struck down. (E.g., state law imposes high taxes on out-of-state goods and low taxes on in-state goods.) (2) Laws that discriminate against interstate
commerce but are supposedly passed to promote the health, safety, or welfare of the state’s citizens. These are almost always invalid unless the state
can show the law was necessary to serve a compelling state interest and there is no reasonable non-discriminatory alternative (strict scrutiny).
What happens if a state passes a non-discriminatory on its face law that is a burden on commerce?
If a state passes a non-discriminatory on its face law that is a burden on commerce (in-state and out-of-state parties are treated the same, e.g., “everyone driving through the state must have a certain kind of tire”), a balancing test is used (weigh the effects of the law on interstate commerce against the state’s interest served by the law). The law is more likely to be upheld.
True or false: Congress can pass laws that discrimi- nate against commerce.
True.
Tip: Remember that the aforementioned rules apply to the states.
A commonly tested exception is where the state acts as a market participant—that is, where a state acts as a business rather than a regulator.
What is the Full Faith and Credit Clause?
States must enforce judgments of other states if the court that rendered the judgment had jurisdiction and the judgment was a final judgment on the merits.
What does the Congress need to pass a law?
Congress makes the laws but needs bicameralism (approval by both houses) and presentment (approval by the president) in order to pass a law.
Where the Congress gets its power from?
Congress gets its power from the Constitution.
What powers does Congress have?
Congress has the power to tax, spend, regulate commerce, declare war, and enforce amendments among others.
What is the Necessary and Proper power?
This power must be combined with another power to be valid.
What does entail the taxing and spending power of the Congress?
Congress may tax and
spend for the general welfare.
Tip: it cannot “act” for the general welfare.
What does entail the commerce power of the Congress?
This is very broad. Congress can
regulate anything economic and anything noneconomic that substantially affects interstate commerce.
What does entail the enforcement power of the Congress?
Congress may enact legislation that is “congruent and proportional” to the Thirteenth Amendment (which outlaws slavery and badges of slavery), the Fourteenth Amendment (which contains the Equal Protection and Due Process Clause) and Fifteenth Amendment (which prohibits states from enacting racially discriminatory voting laws).
What other powers the Congress has?
Admiral and maritime power, property
power, investigatory power, postal power, copyright and patent power, power to coin money, power to impeach, and the power to delegate powers.
True of false: A legislative veto is constitutional.
False.
This occurs when Congress tries to overturn action by the executive branch without bicameralism and presentment.
What is the principal power of the President?
The President executes the laws and must enforce laws that are passed even if the President disagrees with them.
Which are the powers of the President?
Veto power, appoitment and removal power, pardons, war power, foreign affairs, treaties and executive agreements and immunity.
What does the President’s veto power entail?
The President can veto a law (but this can be overridden by a 2/3 majority vote by Congress).
What is a line item veto?
A line item veto (crossing out certain portions of the bill that the President does not approve of) is not permitted.
What powers does the President have regarding appointments?
The President has the power to appoint federal judges, ambassadors, and other principal officers of the United States, with the advice and consent of the Senate. The President may also remove executive officials without cause, at will unless Congress limits removal for “good cause.”
Which crimes can the President grant pardons to?
The President may grant pardons for federal crimes.
What does the war power of the President entails?
The President can respond to attacks or emergency situations. The President cannot declare war.
What does the power of Treaties of the President entails?
The President may enter into treaties with 2/3 Senate approval.
How does work the immunity of the President?
The President is absolutely immune from civil suits for damages for any official acts as President (but not purely personal or pre-presidential acts).
What is the President’s power in foreign affairs?
The President has broad foreign affairs powers.
True or False: Congress can delegate legislative power to the executive branch.
False.
What is an executive agreement?
The President may enter into executive agreements with the heads of foreign countries.
Where is the focus in the Equal Protection Clause?
The focus is on the class that is being discriminated against.
The Equal Protection Clause applies to which levels of government?
The Equal Protection Clause applies to the states through the Fourteenth Amendment and the federal government through the Due Process Clause of the Fifth Amendment.
What is strict scrutiny?
The burden is on the government
to show the law is necessary for a compelling government interest.
What classifications are subject to strict scrutiny?
(FAR) Fundamental rights when a class is involved, Alienage if a state is discriminating (unless the public function doctrine applies, in which case the standard is rational basis), and Race.
Tip: the public function doctrine allows states to exclude noncitizens from certain government jobs (e.g., public school teachers and police officers).
What is intermediate scrutiny?
The burden is on the government to show the regulation is substantially related to an important government interest.
What classifications are typically subject to intermediate scrutiny?
(GI) Gender and Illegitimacy.
What is the rational basis test?
The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.
Tip: the plaintiff usually loses!
What classifications are usually examined under the rational basis test?
Classifications based on age, education, and wealth.
Where is the focus in the due process?
The focus is on the right that is being burdened.
Where is the Due Process Clause found and where is its application to the states found?
The Due Process Clause is found in the Fifth
Amendment and applies to the states through the Fourteenth Amendment.
What is procedural due process?
The government may not intentionally deprive someone of life, liberty, or property without notice and an opportunity to be heard.
Tip: property includes public education and public employment that is not at-will employment.
What is substantive due process?
Strict scrutiny for fundamental rights: burden is on the government to show the law is necessary for a compelling interest.
Which are the fundamental rights subject to strict scrutiny?
Privacy rights (MOPPS = Marriage, Obscenity in the home, Parental and family rights, Procreation and contraception, and Sexual relations), right to vote, right to interstate travel, and right to refuse medical treatment.
Who has the burden to show if the law is related to a government interest and under what basis?
Rational basis for everything else: burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.
E.g., Right to education, welfare benefits, and all economic regulations.
Tip: remember the right to education is not a fundamental right and undergoes rational basis scrutiny.
What does the Contracts Clause prohibit?
A state may not pass legislation that substantially impairs preexisting contracts unless the law serves an important
and legitimate public interest and it is reasonable and narrowly tailored to promoting that interest.
Tip: this is usually the wrong answer on the MBE.
What are ex post facto laws?
Neither states nor the federal government may pass legislation that retroactively alters a criminal law in a substantially prejudicial manner for the purpose of punishing a person for some past activity.
What is a bill of attainder?
Neither the state nor the federal government may pass legislation that specifically identifies people to be punished
(civilly or criminally) and imposes punishment without a judicial trial.
What are unconstitutional conditions?
The government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutionally protected right.
What is the focus of the First Amendment regarding speech restrictions?
The kind of speech restriction at issue.
Which are the restrictions on free speech?
Content-based restriction.
Viewpoint-based restriction.
Time, place, manner (content-neutral or -based)
What is needed to regulate symbolic speech?
Symbolic speech (regulating conduct; e.g. nudity): a law that regulates conduct and places an incidental burden on speech is allowable if the regulation is narrowly tailored to an important governmental interest and it is unrelated to the suppression of the speech.
Mention the 2 kinds of public forums.
Designated or limited public forum (e.g.,
schools with after-school clubs)
Traditional public forum (e.g., streets, sidewalks, and parks)
How is the regulation on public forums tested?
Test: the regulation must (1) be content neutral, (2) be narrowly tailored, and (3) leave open alternative channels of communication.
Which are the private forums?
Military bases, airports, and prisons
How is the regulation on private forums tested?
Test: the regulation must (1) be viewpoint neutral, and (2) have a reasonable relation to a legitimate government interest.
What is unprotected speech?
Clear and present danger, fighting words, true threats, obscenity.
Which are the less-protected speechs?
Commercial speech, school speech and sexual or indecent speech.
What is required for commercial speech to be protected?
(1) the speech must be lawful and not
misleading, (2) the statute must serve a substantial governmental interest, (3) the statute must directly advance that interest, and (4) the statute must be narrowly tailored (not more excessive than it needs to be).
What rights do public school students have regarding speech?
Public school students have free speech rights but speech may be regulated if the regulations are reasonably related to legitimate pedagogical (educational) concerns.
How is sexual or indecent
speech regulated?
The regulation must: (1) serve a substantial
governmental interest, and (2) leave open reasonable alternative channels of communication.
What is the Establishment Clause?
The laws must be neutral. Laws that favor one religion over another = strict scrutiny. Where the government legislation or program is neutral on its face, the Establishment Clause must be interpreted by “reference to historical practices and understandings.”
What protections does the Free Exercise Clause provide?
Beliefs are absolutely protected. However, conduct is not. The government may pass neutral laws of general applicability so long as its goal isn’t to burden or interfere with religion.
How does freedom of the press works?
The press has a right to publish information that is true and a matter of public concern. It has no greater freedom to speak than anyone else.
What other freedoms are implied in the First Amendment?
The freedom of association, the freedom of assembly, and the right to petition the government for redress of grievances.
What is prior restraint?
When the government prevents speech before it is communicated. Strict scrutiny
applies.
Tip: the law is usually struck down.
What does overbreadth means in the context of the First Amendment?
A law is unconstitutional on its face if it prohibits substantially more expression than is necessary.
What is vagueness as a principle of the First Amendment?
A statute is vague and unconstitutional on its face if a reasonable person could not tell what speech is prohibited and what speech is allowed (e.g., a statute that prohibits words that “tend to breach the peace” is vague and unconstitutional).
How taking works in the context of property rights?
The government may not take private property for public use without just compensation. A taking can be physical or regulatory. A taking is regulatory if a regulation deprives one of all economic value. An unconstitutional exaction is also a regulatory taking.
What must a plaintiff show to establish state action?
State action requirement: If a plaintiff sues under the First, Fourteenth, or Fifteenth Amendments (e.g., for free speech, due process, equal protection issues, or voting rights), the plaintiff must show state action. State action is present if the state passes a law, if a private actor performs a “traditional and exclusive” government function (e.g., a company town), or if private action is closely controlled by the state.
What are the powers of the three branches?
- Power of the judiciary.
- Powers of the congress.
- Powers of the president.
Where does the Congress have police powers?
Congress have police powers over (MILD) military bases, Indian territories, federal lands, and D.C.
How can the Congress delegate legislative powers?
Congress can delegate legislative power to executive agencies or the judiciary. However, the power cannot be uniquely delegated to Congress by the Constitution (e.g., the power to declare war).
