Constitutional Flashcards
What are the federal judiciability requirements?
- standing
- ripeness
- mootness
- political question
what are the requirements for standing?
- injury
- cause and redressability
- no generalized grievances
what are the requirements for injury?
P has to have been injured or imminently will be injured.
what are the requirements for causation and redressability?
that D caused P’s injury and that a favorable verdict for P will remedy his situation
when can a plaintiff assert a claim for a third party?
- close relationship between P and injured party
- Injured party unlikely to able to assert his own rights
- organization may sue for its members
when can an organization sue for its own members?
- injured party would have standing to sue
- germane interest
- claim doesnt require participation of individual members
what is ripeness?
whether federal court may grant pre-enforcement review of a statute or regulation.
if there is hardship that will be suffered without preenforcement review
what is mootness?
Is P still injured? if not have to dismiss for mootness.
what is the political question doctrine?
refers to constitutional violations that the federal courts will not adjudicate.
what areas are covered in political question doctrine?
- republican form of government clause
- challenge to the President’s conduct of foreign policy
- Impeachment and removal process
- gerrymandering districts
when does a supreme court hear a case?
final judgment
- highest state court
- US court of appeals
- three-judge federal district court
what area does supreme court have original and exclusive jurisdiction?
suits between states
when will the Supreme Court not a case?
If the state has a independent and adequate state law ground of decision.
may the federal court hear suits against state governments?
no.
11th amendment bars suits against states in federal court
sovereign immunity bars suits against states in state courts.
when can a federal court hear a case against a state?
- waiver
- bankruptcy
- fed government may sue state governments
- sec 5 of the 14th amendment
can a state officer be sued in federal court?
yes but he has to be personally liable.
what are Congress’s main powers?
- implied powers include - MILD
- necessary and proper clause
- taxing/spending power and the commerce clause
what does MILD stand for?
military
indian reservations
federal land
dc
what is congress’ taxing power?
may tax and spend for the general welfare
what is congress’s commerce power?
may regulate activities that have a substantial effect on interstate commerce
what is the 10th amendment?
all powers not granted to the United States, are preserved to the states
can congress induce state action?
yea conditions cannot be coercive and must relate to purpose of the spending program.
for congress to act, there must be what?
bicameralism, passage of both the house and senate and presentment to president.
during presentment, can the president sign just a portion of a bill?
no must sign or veto the bill in its entirety.
what is the legislative’s commerce power?
- congress may regulate channels of interstate commerce
- instrumentalities of interstate commerce
- economic activities that have a substantial effect on interstate commerce.
what the federal executive powers?
- treaties
- executive agreements
- commander in chief
- appointment and removal power
what is a treaty?
negotiated by president, ratified by senate
does a treaty prevail over state law, federal statute, constitution?
- yes
- yes if adopted last in time
- no
what is an executive agreement?
agreement that doesnt need to be ratified by senate
prevails over state law but not federal law or constitution
what is the presidents power as commander in chief?
broad power to use american troops in foreign countries
what is the presidents appointment power?
he appoints ambassadors, federal judges and officers of the united states
does congress have the appointment power?
no
what is the removal power?
unless limited by statute, the president can fire any executive branch.
can congress prohibit the presidents removal power?
no, they may limit where independence is desirable
what does impeachment require?
- majority by house
2. 2/3 by senate
what does the president have immunity for?
civil damages during his presidency, not before.
what crimes can the president pardon?
federal criminal charges
what is the big point of federalism?
limits on the state local governments
what is preemption?
that the constitution, laws and treaties are the supreme law of the land
when does federal law preempt state law?
- express preemption
- implied
- states may not tax or regulate federal government activity
what is implied preemption?
- conflicting
- state law impedes the achievement
- clear intent to preempt state law
what is the dormant commerce clause?
state law is invalid if it places burden on interstate commerce
what is the privileges and immunities clause?
no state may deny citizens of other states privileges and immunities
what is the first question to a dormant commerce clause question?
does the state law discriminate against out-of-staters?
if it doesnt discriminate what happen?
dormant commerce clause applies if the state law’s burden exceeds its benefit
if it discriminates then what?
if it discriminates and burdens interstate commerce, the dormant commerce clause unless it is necessary to achieve an important government purpose.
what are the two exceptions to the dormant commerce clause?
- congressional approval
2. market participant exception
what is the market participant exception?
a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses
when does the privileges and immunites clause of the 4th amendment apply?
when the state discriminates with regard to the ability to earn a livelihood.
can coporations and aliens use the privileges and immunities clause?
no.
must a state give full faith and credit to judgments of courts in another state?
yes if proper jurisdiction, final judgment on merits
does the constitution apply to private conduct?
No only government action
how can congress apply constitutional norms to private conduct?
by statute
13th amendment
commerce power
14th amdnement
when must private conduct comply with the Constitution?
- private entity is performing a task traditionally, exclusively done by the government
- if the government authorizes, encourages, or facilitates unconstitutional activity
the bill of rights applies how to the federal government and states ?
directly, through the 14th amendment due process clause for states
what are the 3 levels of scrutiny?
- rational basis
- intermediate scrutiny
- strict scrutiny
what is the definition for rational basis?
state law upheld if it is rationally related a to legitimate government interest.
what is the definition for intermediate scrutiny?
upheld if it is substantially related to an important government purpose.
what is the definition for strict scrutiny?
upheld if it is necessary to achieve a compelling government purpose.
what is procedural due process?
whether the government has provided sufficient procedures when it takes away person’s life, liberty, or property.
did they get hearing, notice
what is substantive due process?
whether the government had an adequate reason for taking away life, liberty, or property.
violated right, what level of scrutiny
what is equal protection?
different treatment of people justified?
what is the test for due process?
balancing test
- plaintiffs interest
- defendants interest
- the ability of additional procedures to increase the accuracy of fact finding.
what is liberty and property?
liberty is a freedom guaranteed by the g.
property is reasonable expectation that you will continue to receive.
what test is use d for laws affecting economic rights?
rational basis test
what is the takings clause (5th amendment)
g can take private property for public benefit if there is just compensation
what are the two types of takings?
possessory and regulatory
regulatory taking leaves the property with no economic use.
must a taking be permanent ?
yes it has to be permanent, cant be temporary
what is the test for the takings clause?
- government confiscation of property?
- reasonable belief that it will benefit public
- compensation in terms of owner’s loss
what is the contracts clause?
article 1 sec 10
state shall not impair the obligations of contracts.
what level of scrutiny must be passed before interrupting private contracts?
intermediate scrutiny; does the law reasonably and narrowly impair a party’s rights under an existing contract.
what level of scrutiny must be passed before interrupting government contracts
strict scrutiny
significance of ex post?
usually wrong answer on test
privacy is protected under what process?
substantive due process
level of scrutiny - right to marry
strict scrutiny
level of scrutiny - right to procreate
strict scrutiny
level of scrutiny - custody of one’s children
strict scrutiny
level of scrutiny - the right to keep the family together
strict scrutiny
level of scrutiny - right to control the upbringing of one’s children?
strict scrutiny
level of scrutiny - right to purchase and use contraceptives?
strict scrutiny
level of scrutiny - right to abortion
government cannot prohibit previability aboritions. they may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions.
level of scrutiny - after viability abortions
g may prohibit unless necessary to protect the woman’s life or health
are spousal consent and notification laws for abortion constitutional?
no they are not
are parental notice and consent laws for unmarried minors constitutional?
yes as long as there is an alternative where they can see a judge and the judge will approve if in best interest and mature enough to decide for herlsef
do adults have the right to refuse medical treatment?
yes
is there a constitutional right to physician assisted death?
no there is not.
what level of scrutiny for the right to travel?
strict scrutiny
level of scrutiny - residency requirements?
strict scrutiny
level of scrutiny - foreign travel
rational basis test
level of scrutiny - right to vote
strict scrutiny
level of scrutiny - procedures to limit voting fraud
balance
is there a fundamental right to education?
nope
what is the approach for equal protections question?
- what is the classification?
- what level of scrutiny?
- does this law meet the level of scrutiny
equal protection applies how?
equal protection applies to the states under the 14th amendment
equal protection applies to the federal government through the due process clause of the 5 amendment
what level of scrutiny is used for race and nationalism classifications?
strict scrutiny
how do we prove there is a classification?
- on the statutes face
2. discriminatory intent and impact
what level of scrutiny is for classifications benefitting minorities?
strict scrutiny
what does numerical set asides for race classifications require?
prior history of discrimination
can education institutions use race as one of the factors to help decide admissions?
yes but they cannot add points because of race.
what level of scrutiny is used for gender classifications?
intermediate scrutiny
what happens if gender classification only has a discriminatory impact ?
use rational basis
gender classifications benefitting women that are based on role stereotypes be allowed?
no.
gender classifications benefitting women that are based on past discrimination be allowed?
yes
what level of scrutiny is used for alienage classifications?
strict scrutiny
what are the exceptions to alienage classification?
alienage classifications that concern
self government and the democratic process (police, voting, jury, teacher, probation) (rational basis)
congressional discrimination (rational basis)
undocumented alien children (intermediate)
what level of scrutiny for non-marital children?
intermediate scrutiny
what level of scrutiny for age discrimination?
rational basis
what level of scrutiny for disability discrimination?
rational basis
what level of scrutiny for wealth discrimination?
rational basis
what level of scrutiny for economic discrimination?
rational basis
what level of scrutiny for sexual orientation discrimination?
rational basis
whats the difference between content based and content-neutral restrictions?
content based must meet strict scrutiny
content-neutral must meet intermediate scrutiny
what are the two types of content based restrictions?
subject matter (topic)
viewpoint (ideology)
what level of scrutiny applies to prior restraints?
strict scrutiny
what is a vagueness challenge in regards to first amendment?
its hard to tell what type of speech is being prohibited and what is allowed
what is a overbroad challenge in regards to first amendment?
regulates more speech than the constitution allows.
is flag burning protected speech?
yes
is draft card burning protected speech?
no
can local governments prohibit nude dancing?
yes
is burning a cross protected speech?
yes unless done with intent to threaten
is contribution limits to a campaign legal?
yes but there can be no limit to expenditures
is anonymous speech protected?
yes
may the government punish speech of incitement?
yes if there is a substantial likelihood of imminent illegal activity and if the speech is directed to inciting imminent illegal activity.
may the government punish obscenity?
yes
what is the test for obscenity?
- does it appeal to a prurient interest (local standard)
- is it patently offensive under the law prohibiting obscenity
- taken as a whole does it lack serious Literary Artistic
Political and Scientific value. (national standard)
may the government punish a private collection of obscene materials?
no but they can punish a private collection of children porn (has to be children used in production)
may the government confiscate the assets of businesses convicted of violating obscenity laws?
yea
when is profane speech not protected by the 1st amendment?
- schools
2. broadcast
truthful commercial speech is what level of scrutiny?
intermediate
is advertising for illegal activity, and false and deceptive ads are not protected by the first amendment?
No
what is a public forum?
place where government has to open to speech
what are the requirements for regulations of a public forum?
it must be subject and viewpoint neutral, if not strict scrutiny must be met
regulations must be time, place, or manner regulation that serves an important purpose and leaves open adequate alternative places for communication
what is a designated public forum?
government property that the government could close to speech, but chooses to open to speech.
what is the regulations for a designated public forum?
it must be subject matter neutral and viewpoint neutral or strict scrutiny applies.
it must be a time, place, or manner restriction that serves an important purpose.
what is a limited public forum?
government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
government can regulate if it is reasonable and viewpoint neutral.
what is a non public forum?
government properties that are closes to speech. reasonable and viewpoint neutra.l
is there a first amendment right of access to private property for speech purposes?
NO.
What is the freedom of association?
laws that prohibit or punish membership must meet strict scrutiny
when can the government punish membership in a group?
- actively affiliated with group
- know of its illegal activity
- intent to further illegal activities.
can the g prevent groups from discriminating?
yes if they interfere with intimate association or expressive activity
can the free exercise clause be used to challenge a neutral law?
no, has to target religion.
can the government deny benefits to individuals who quit their jobs for religious reason?
no
can the g hold a church liable for hiring ministers?
no.
what is the establishment clause?
the government can make no law that respects the establishment of religion?
what is the test for the establishment clause?
- secular purpose
- neither advance nor inhibit religion
- must not be excessive entangled with religion
when can the government give assistance to parochial schools?
so long as it is not used for religious instruction.
