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July 2017 BAR > Constitutional > Flashcards

Constitutional Flashcards

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1
Q

What are the federal judiciability requirements?

A
  1. standing
  2. ripeness
  3. mootness
  4. political question
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2
Q

what are the requirements for standing?

A
  1. injury
  2. cause and redressability
  3. no generalized grievances
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3
Q

what are the requirements for injury?

A

P has to have been injured or imminently will be injured.

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4
Q

what are the requirements for causation and redressability?

A

that D caused P’s injury and that a favorable verdict for P will remedy his situation

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5
Q

when can a plaintiff assert a claim for a third party?

A
  1. close relationship between P and injured party
  2. Injured party unlikely to able to assert his own rights
  3. organization may sue for its members
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6
Q

when can an organization sue for its own members?

A
  1. injured party would have standing to sue
  2. germane interest
  3. claim doesnt require participation of individual members
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7
Q

what is ripeness?

A

whether federal court may grant pre-enforcement review of a statute or regulation.

if there is hardship that will be suffered without preenforcement review

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8
Q

what is mootness?

A

Is P still injured? if not have to dismiss for mootness.

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9
Q

what is the political question doctrine?

A

refers to constitutional violations that the federal courts will not adjudicate.

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10
Q

what areas are covered in political question doctrine?

A
  1. republican form of government clause
  2. challenge to the President’s conduct of foreign policy
  3. Impeachment and removal process
  4. gerrymandering districts
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11
Q

when does a supreme court hear a case?

A

final judgment

  1. highest state court
  2. US court of appeals
  3. three-judge federal district court
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12
Q

what area does supreme court have original and exclusive jurisdiction?

A

suits between states

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13
Q

when will the Supreme Court not a case?

A

If the state has a independent and adequate state law ground of decision.

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14
Q

may the federal court hear suits against state governments?

A

no.

11th amendment bars suits against states in federal court
sovereign immunity bars suits against states in state courts.

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15
Q

when can a federal court hear a case against a state?

A
  1. waiver
  2. bankruptcy
  3. fed government may sue state governments
  4. sec 5 of the 14th amendment
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16
Q

can a state officer be sued in federal court?

A

yes but he has to be personally liable.

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17
Q

what are Congress’s main powers?

A
  1. implied powers include - MILD
  2. necessary and proper clause
  3. taxing/spending power and the commerce clause
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18
Q

what does MILD stand for?

A

military
indian reservations
federal land
dc

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19
Q

what is congress’ taxing power?

A

may tax and spend for the general welfare

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20
Q

what is congress’s commerce power?

A

may regulate activities that have a substantial effect on interstate commerce

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21
Q

what is the 10th amendment?

A

all powers not granted to the United States, are preserved to the states

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22
Q

can congress induce state action?

A

yea conditions cannot be coercive and must relate to purpose of the spending program.

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23
Q

for congress to act, there must be what?

A

bicameralism, passage of both the house and senate and presentment to president.

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24
Q

during presentment, can the president sign just a portion of a bill?

A

no must sign or veto the bill in its entirety.

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25
Q

what is the legislative’s commerce power?

A
  1. congress may regulate channels of interstate commerce
  2. instrumentalities of interstate commerce
  3. economic activities that have a substantial effect on interstate commerce.
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26
Q

what the federal executive powers?

A
  1. treaties
  2. executive agreements
  3. commander in chief
  4. appointment and removal power
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27
Q

what is a treaty?

A

negotiated by president, ratified by senate

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28
Q

does a treaty prevail over state law, federal statute, constitution?

A
  1. yes
  2. yes if adopted last in time
  3. no
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29
Q

what is an executive agreement?

A

agreement that doesnt need to be ratified by senate

prevails over state law but not federal law or constitution

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30
Q

what is the presidents power as commander in chief?

A

broad power to use american troops in foreign countries

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31
Q

what is the presidents appointment power?

A

he appoints ambassadors, federal judges and officers of the united states

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32
Q

does congress have the appointment power?

A

no

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33
Q

what is the removal power?

A

unless limited by statute, the president can fire any executive branch.

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34
Q

can congress prohibit the presidents removal power?

A

no, they may limit where independence is desirable

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35
Q

what does impeachment require?

A
  1. majority by house

2. 2/3 by senate

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36
Q

what does the president have immunity for?

A

civil damages during his presidency, not before.

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37
Q

what crimes can the president pardon?

A

federal criminal charges

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38
Q

what is the big point of federalism?

A

limits on the state local governments

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39
Q

what is preemption?

A

that the constitution, laws and treaties are the supreme law of the land

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40
Q

when does federal law preempt state law?

A
  1. express preemption
  2. implied
  3. states may not tax or regulate federal government activity
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41
Q

what is implied preemption?

A
  1. conflicting
  2. state law impedes the achievement
  3. clear intent to preempt state law
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42
Q

what is the dormant commerce clause?

A

state law is invalid if it places burden on interstate commerce

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43
Q

what is the privileges and immunities clause?

A

no state may deny citizens of other states privileges and immunities

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44
Q

what is the first question to a dormant commerce clause question?

A

does the state law discriminate against out-of-staters?

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45
Q

if it doesnt discriminate what happen?

A

dormant commerce clause applies if the state law’s burden exceeds its benefit

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46
Q

if it discriminates then what?

A

if it discriminates and burdens interstate commerce, the dormant commerce clause unless it is necessary to achieve an important government purpose.

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47
Q

what are the two exceptions to the dormant commerce clause?

A
  1. congressional approval

2. market participant exception

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48
Q

what is the market participant exception?

A

a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses

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49
Q

when does the privileges and immunites clause of the 4th amendment apply?

A

when the state discriminates with regard to the ability to earn a livelihood.

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50
Q

can coporations and aliens use the privileges and immunities clause?

A

no.

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51
Q

must a state give full faith and credit to judgments of courts in another state?

A

yes if proper jurisdiction, final judgment on merits

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52
Q

does the constitution apply to private conduct?

A

No only government action

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53
Q

how can congress apply constitutional norms to private conduct?

A

by statute
13th amendment
commerce power
14th amdnement

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54
Q

when must private conduct comply with the Constitution?

A
  1. private entity is performing a task traditionally, exclusively done by the government
  2. if the government authorizes, encourages, or facilitates unconstitutional activity
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55
Q

the bill of rights applies how to the federal government and states ?

A

directly, through the 14th amendment due process clause for states

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56
Q

what are the 3 levels of scrutiny?

A
  1. rational basis
  2. intermediate scrutiny
  3. strict scrutiny
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57
Q

what is the definition for rational basis?

A

state law upheld if it is rationally related a to legitimate government interest.

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58
Q

what is the definition for intermediate scrutiny?

A

upheld if it is substantially related to an important government purpose.

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59
Q

what is the definition for strict scrutiny?

A

upheld if it is necessary to achieve a compelling government purpose.

60
Q

what is procedural due process?

A

whether the government has provided sufficient procedures when it takes away person’s life, liberty, or property.

did they get hearing, notice

61
Q

what is substantive due process?

A

whether the government had an adequate reason for taking away life, liberty, or property.

violated right, what level of scrutiny

62
Q

what is equal protection?

A

different treatment of people justified?

63
Q

what is the test for due process?

A

balancing test

  1. plaintiffs interest
  2. defendants interest
  3. the ability of additional procedures to increase the accuracy of fact finding.
64
Q

what is liberty and property?

A

liberty is a freedom guaranteed by the g.

property is reasonable expectation that you will continue to receive.

65
Q

what test is use d for laws affecting economic rights?

A

rational basis test

66
Q

what is the takings clause (5th amendment)

A

g can take private property for public benefit if there is just compensation

67
Q

what are the two types of takings?

A

possessory and regulatory

regulatory taking leaves the property with no economic use.

68
Q

must a taking be permanent ?

A

yes it has to be permanent, cant be temporary

69
Q

what is the test for the takings clause?

A
  1. government confiscation of property?
  2. reasonable belief that it will benefit public
  3. compensation in terms of owner’s loss
70
Q

what is the contracts clause?

A

article 1 sec 10

state shall not impair the obligations of contracts.

71
Q

what level of scrutiny must be passed before interrupting private contracts?

A

intermediate scrutiny; does the law reasonably and narrowly impair a party’s rights under an existing contract.

72
Q

what level of scrutiny must be passed before interrupting government contracts

A

strict scrutiny

73
Q

significance of ex post?

A

usually wrong answer on test

74
Q

privacy is protected under what process?

A

substantive due process

75
Q

level of scrutiny - right to marry

A

strict scrutiny

76
Q

level of scrutiny - right to procreate

A

strict scrutiny

77
Q

level of scrutiny - custody of one’s children

A

strict scrutiny

78
Q

level of scrutiny - the right to keep the family together

A

strict scrutiny

79
Q

level of scrutiny - right to control the upbringing of one’s children?

A

strict scrutiny

80
Q

level of scrutiny - right to purchase and use contraceptives?

A

strict scrutiny

81
Q

level of scrutiny - right to abortion

A

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.

82
Q

level of scrutiny - after viability abortions

A

g may prohibit unless necessary to protect the woman’s life or health

83
Q

are spousal consent and notification laws for abortion constitutional?

A

no they are not

84
Q

are parental notice and consent laws for unmarried minors constitutional?

A

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

85
Q

do adults have the right to refuse medical treatment?

A

yes

86
Q

is there a constitutional right to physician assisted death?

A

no there is not.

87
Q

what level of scrutiny for the right to travel?

A

strict scrutiny

88
Q

level of scrutiny - residency requirements?

A

strict scrutiny

89
Q

level of scrutiny - foreign travel

A

rational basis test

90
Q

level of scrutiny - right to vote

A

strict scrutiny

91
Q

level of scrutiny - procedures to limit voting fraud

A

balance

92
Q

is there a fundamental right to education?

A

nope

93
Q

what is the approach for equal protections question?

A
  1. what is the classification?
  2. what level of scrutiny?
  3. does this law meet the level of scrutiny
94
Q

equal protection applies how?

A

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

95
Q

what level of scrutiny is used for race and nationalism classifications?

A

strict scrutiny

96
Q

how do we prove there is a classification?

A
  1. on the statutes face

2. discriminatory intent and impact

97
Q

what level of scrutiny is for classifications benefitting minorities?

A

strict scrutiny

98
Q

what does numerical set asides for race classifications require?

A

prior history of discrimination

99
Q

can education institutions use race as one of the factors to help decide admissions?

A

yes but they cannot add points because of race.

100
Q

what level of scrutiny is used for gender classifications?

A

intermediate scrutiny

101
Q

what happens if gender classification only has a discriminatory impact ?

A

use rational basis

102
Q

gender classifications benefitting women that are based on role stereotypes be allowed?

A

no.

103
Q

gender classifications benefitting women that are based on past discrimination be allowed?

A

yes

104
Q

what level of scrutiny is used for alienage classifications?

A

strict scrutiny

105
Q

what are the exceptions to alienage classification?

A

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)

106
Q

what level of scrutiny for non-marital children?

A

intermediate scrutiny

107
Q

what level of scrutiny for age discrimination?

A

rational basis

108
Q

what level of scrutiny for disability discrimination?

A

rational basis

109
Q

what level of scrutiny for wealth discrimination?

A

rational basis

110
Q

what level of scrutiny for economic discrimination?

A

rational basis

111
Q

what level of scrutiny for sexual orientation discrimination?

A

rational basis

112
Q

whats the difference between content based and content-neutral restrictions?

A

content based must meet strict scrutiny

content-neutral must meet intermediate scrutiny

113
Q

what are the two types of content based restrictions?

A

subject matter (topic)

viewpoint (ideology)

114
Q

what level of scrutiny applies to prior restraints?

A

strict scrutiny

115
Q

what is a vagueness challenge in regards to first amendment?

A

its hard to tell what type of speech is being prohibited and what is allowed

116
Q

what is a overbroad challenge in regards to first amendment?

A

regulates more speech than the constitution allows.

117
Q

is flag burning protected speech?

A

yes

118
Q

is draft card burning protected speech?

A

no

119
Q

can local governments prohibit nude dancing?

A

yes

120
Q

is burning a cross protected speech?

A

yes unless done with intent to threaten

121
Q

is contribution limits to a campaign legal?

A

yes but there can be no limit to expenditures

122
Q

is anonymous speech protected?

A

yes

123
Q

may the government punish speech of incitement?

A

yes if there is a substantial likelihood of imminent illegal activity and if the speech is directed to inciting imminent illegal activity.

124
Q

may the government punish obscenity?

A

yes

125
Q

what is the test for obscenity?

A
  1. does it appeal to a prurient interest (local standard)
  2. is it patently offensive under the law prohibiting obscenity
  3. taken as a whole does it lack serious Literary Artistic
    Political and Scientific value. (national standard)
126
Q

may the government punish a private collection of obscene materials?

A

no but they can punish a private collection of children porn (has to be children used in production)

127
Q

may the government confiscate the assets of businesses convicted of violating obscenity laws?

A

yea

128
Q

when is profane speech not protected by the 1st amendment?

A
  1. schools

2. broadcast

129
Q

truthful commercial speech is what level of scrutiny?

A

intermediate

130
Q

is advertising for illegal activity, and false and deceptive ads are not protected by the first amendment?

A

No

131
Q

what is a public forum?

A

place where government has to open to speech

132
Q

what are the requirements for regulations of a public forum?

A

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

133
Q

what is a designated public forum?

A

government property that the government could close to speech, but chooses to open to speech.

134
Q

what is the regulations for a designated public forum?

A

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.

135
Q

what is a limited public forum?

A

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.

136
Q

what is a non public forum?

A

government properties that are closes to speech. reasonable and viewpoint neutra.l

137
Q

is there a first amendment right of access to private property for speech purposes?

A

NO.

138
Q

What is the freedom of association?

A

laws that prohibit or punish membership must meet strict scrutiny

139
Q

when can the government punish membership in a group?

A
  1. actively affiliated with group
  2. know of its illegal activity
  3. intent to further illegal activities.
140
Q

can the g prevent groups from discriminating?

A

yes if they interfere with intimate association or expressive activity

141
Q

can the free exercise clause be used to challenge a neutral law?

A

no, has to target religion.

142
Q

can the government deny benefits to individuals who quit their jobs for religious reason?

A

no

143
Q

can the g hold a church liable for hiring ministers?

A

no.

144
Q

what is the establishment clause?

A

the government can make no law that respects the establishment of religion?

145
Q

what is the test for the establishment clause?

A
  1. secular purpose
  2. neither advance nor inhibit religion
  3. must not be excessive entangled with religion
146
Q

when can the government give assistance to parochial schools?

A

so long as it is not used for religious instruction.

July 2017 BAR (13 decks)

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