Constitutional Flashcards
1
Q
Do the limitations set forth in a Postal Limitations Act exceed Congressional authority?
A
Congress has the exclusive power “to establish post offices and post roads” under Article I, Section 8, Clause 7. Congress may impose reasonable restrictions on the use of the mail.
2
Q
Do aliens have any rights to enter the US?
A
Congress has plenary power over aliens. Aliens have no right to enter the United States and may be refused entry for reasons such as their political beliefs
3
Q
In addition to the supremacy clause of Article VI, what is the most obvious constitutional basis for the imposition of a stay of in a state court?
A
Congress’s power to provide uniform rules of bankruptcy offers the most obvious constitutional basis for a federal statute requiring a stay.
4
Q
Can a state enact a statute imposing a tax on all negotiable notes issued by a national bank not incorporated in the state?
A
No. Federal government and its instrumentalities are immune from taxation by the states, but states may impose generally applicable INDIRECT taxes as long as not unreasonably burdening the federal government.
5
Q
Can a future injury be justiciable?
A
Yes, if the injury is imminent and the remedy been sought is an injunction.
6
Q
Do the Freedom of Speech First (Federal) and Fourteenth Amendments (State) apply to the actions of privately owned companies?
A
Generally apply only to the actions of governments and government officials, not to the actions of privately owned companies such as the insurance company.
7
Q
What does constitute a taking?
A
(i) When there is an actual appropriation or destruction of property, or the government permanently physically invades the property (except emergencies); and (ii) when there is a permanent, total loss of economic value in the land.
8
Q
What does the Origination Clause say?
A
Sometimes called the Revenue Clause, says that all bills for raising revenue must start in the House of Representatives, but the Senate may propose or concur with amendments as in the case of other bills.
9
Q
What is the name of Article I, Sec. 7, Clause 1, of the Constitution?
A
The Origination Clause, sometimes called the Revenue Clause, is Article I, Section 7, Clause 1 of the United States Constitution.
10
Q
What are the standing requirements for a P to sue in federal court?
A
(i) there is an injury in fact
(ii) the injury must be caused by the defendant’s violation of a constitutional or other federal right, and
(iii) the relief requested must prevent or redress the injury.
11
Q
Is the Commerce Clause limited to the channels or instrumentalities of interstate commerce?
A
No. Although Congress has the power to regulate the channels and instrumentalities of interstate commerce, it also provides the power to regulate any activity that substantially affects interstate commerce.
12
Q
Can congress regulate non-economic activity in an area of traditional state concern through the Commerce Clause.
A
No. First, Commece Clause ideally regulates economic activities. Second, it should not be used by the Federal Government to regulate areas of traditional state concern.
13
Q
Can the Congress condition funding to states to specific requirements?
A
Yes. Congress has the power under the spending power to spend for the general welfare and impose conditions on the receipt as long as such conditions are set out unambiguously to be enforceable.
14
Q
In which part of the Constitution is the Property Clause located?
A
The Property Clause is located in Article IV, Section 3.
15
Q
What does the Property Clause state?
A
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.
16
Q
What is the purpose of the Necessary and Proper Clause of Article I, Sec 8?
A
To permit Congress to fully exercise its authority enumerated elsewhere in the Constitution, this clause does not serve as an independent source of congressional power.
17
Q
What are the only occasions when Congress can take away a person’s citizenship?
A
Only when citizenship was obtained by fraud or in bad faith.
18
Q
What is the Elections Clause?
A
Source of constitutional power to regulate elections for the Congress. It enables states to determine the “Times, Places, and Manner” of congressional elections, subject to Congress’s authority to “make or alter” this.
19
Q
Can the Congress delegate some of its authority to the Executive branch?
A
Delegation of some of Congress’s authority to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate.
20
Q
Who can appoint members of a body with administrative or enforcement powers?
A
Only the President can.
21
Q
Can Congress delegate its appoitnment power of selected officers to the President?
A
Yes to only inferior officials. Congress may delegate the appointment of “inferior” officials to the President. “Inferior” officials are those supervised by Senate-confirmed appointees.
22
Q
Who can recognize a foreign government?
A
In addition to appointing and receiving ambassadors, the President has the exclusive power to recognize a foreign government.
23
Q
Can Congress legislatively veto an executive action?
A
No. It is unconstitutional for Congress to legislatively veto an executive action—that is, to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill.
24
Q
How is law enforcement handled by the federal powers?
A
Law enforcement is an executive function, but the executive branch needs congressional authorization as provided by law to exercise that function.
25
Can the federal government become liable for state taxes for contracting with a state government or private entity?
No. The federal government is immune from state taxation regardless of whether the other party to the contract was the state or a private entity.
26
Can Congress allow states to enact discriminatory tax policies?
Yes. Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause.
27
Do the Privileges and Immunities Clause of Article IV or the Comity Clause protect corporations?
No. They protect only citizens from other states.
28
How can states legislate interstate commerce?
States are free to regulate as long as they do not (i) discriminate against out-of-state commerce, (ii) unduly burden interstate commerce, or (iii) regulate extraterritorial (wholly out-of-state) activity.
29
What is the 21st Amendment?
In addition to repealing prohibition, gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state.
30
Can a person's procedural due process rights be violated as a result of an action of a private person?
No. In order for a person’s procedural due process rights to be violated, the violation must be the result of an action undertaken by the government, not a private person.
31
Does the govern need to provide notice before seizing private property?
Only when seizing real property government must provide notice and hearing.
32
What is the standard usually applicable to zoning?
Most legislation related to zoning is reviewed under the rational basis standard, and a law meets that standard if it is rationally related to a legitimate state interest.
33
When can a state legislate with regard to alienage?
Only when Congress authorizes.
34
When can the media use information obtained illegally without liability?
The First Amendment shields the media for publishing information obtained illegally as long as it involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did.
35
Would a 90% funding of a private university result in state action if a first amendment claim is asserted by a university employee?
No. Funding alone, even if extreme, does not decharacterize the private nature of the university.
36
What is the substance of the Appointments Clause of Article 2?
Empowers the POTUS to nominate and, with the advice and consent of the US Senate, appoint public officials. Congress may by law delegate the Senate's advice and consent role when it comes to "inferior" officers.
37
Does a grant to a religious university necessarily means entanglement of the government and religion?
As long as the schools involved were not "permeated with religion", the grant do not involve excessive entanglement.
38
Under the dormant clause, what type of test does a state regulation affecting interstate commerce need to pass?
1) Regulation pursuing a legitimate end;
2) Regulation rationally related to that legitimate end; and
3) Regulatory burden imposed on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state's interest in enforcing the regulation.
39
Can the President create a temporary agency?
Yes, if the agency is temporary for a specific purpose and there is funds from the Congress earmarked for the president to spend as he wishes.
Under the tripartite formula of the steel seizure case, the President's power is at its apex when he acts pursuant to power given to him by Congress; they are lessened if there is no Congressional legislation on the matter; and they are at their lowest when he is acting in the face of Congressional legislation. The Supreme Court has said that when the President acts in the face of Congressional disapproval, he may only do so if the power he exercises is vested in him alone by the Constitution and denied to Congress. Where he acts in the face of Congressional silence on a matter, the action will be approved if the act is within the President's power.
This would be a "Zone of Twilight" situation because the act is within the President's powers and Congress has been silent on the issue (i.e. neither authorized nor forbidden). As such, the President may constitutionally create such a commission for the purpose of conducting a national publicity campaign to encourage vaccination as a public health measure.
40
Whe does the SCt allow states to prohibit women to abort?
Once the fetus has become viable. Typically, viability occurs late in the second or third trimester.
41
What is the test to know if a question is political?
1) A "textually demonstrable" constitutional commitment of the issue to the political branches;
2) Lack of manageable standards for judicial resolution;
3) A need for finality in the action of the political branches; and
3) Difficulty or impossibility of devising effective judicial remedies.
42
Are comments made by a state legislator outside of legislative activity, but repeating exactly what he said in session, considered immune to a defamation claim?
No, state legislators are immune from liability for actions within the sphere of legitimate legislative activity. However, comments made to reporters, despite verbatim of what was said in a committee meeting, are not.
43
Are videogames assessed as commercial or regular speech?
Regular speech.
44
Can Congress investigate and impeach Federal judges?
Yes, Congress can investigate administrative processes and impeach Federal judges for good cause. Federal judges may "hold their offices during good behavior" and may be removed only by impeachment.
45
Who is the only one who enjoys absolute immunity to civil lawsuits for money damages for actions while he is in the office?
Only the president.
Although members of Congress enjoy immunity for statements made in the regular course of the legislative process (i.e., during legislative hearings on a bill), the immunity will not protect statements made outside of Congress.
46
Will tenure protect a professor from the legislative shutdown of an entire university?
No, procedural due process only applies in quasi-judicial or adjudicatory settings, and not with respect to the adoption of general legislation. Here, the professor was not terminated as an individual, but instead as a consequence of the abolition by the legislature of the specific university at which he was granted tenure.
47
Will reduced tax to publications by religious, professional and trade magazines be upheld?
No, due to the exemption granted to religious, professional, and trade magazines, the selective application of the tax constitutes a content-based restriction on the plaintiff’s speech. As such, it is subject to strict scrutiny. Consequently, the state is unlikely to be able to establish that it has a compelling governmental interest that the selective tax system is necessary to achieve, and that this system is narrowly tailored to meet that interest.
Probably upheld if extended to all non-profit organizations?
48
Can a D appeal a state conviction related to the constitution directly with the S.Ct.?
No, congress has restricted the U.S. Supreme Court’s appellate review of state cases to final judgments rendered by the highest court of a state in which a decision could be had.
49
If the state affords more rights to a certain constitutional issue, should the S.Ct. hear a case to upheld it?
No, in this case the state court judgment would already rest "on adequate and independent state grounds", and thus not reviewable by the S.Ct.
50
Who must prove standing when bringing a claim to a federal court?
The plaintiff must prove.
51
Can a tax be justified for "furthering a compelling governmental interest"?
There is no need for this degree of interest to justify a tax.
Congress can exercise its power to tax for ANY public purpose.
52
How can the federal government enact direct taxes applicable in the states?
To satisfy the apportionment rule, a state with twice the population of another state would have to pay twice the tax, even if the more populous state's share of the national tax base were smaller.
As per Article I, Section 9, which provides that “no . . . direct tax shall be laid, unless in proportion to the Census[.]”
Although there is dispute as to the types of taxes that are encompassed within the definition of a direct tax, a tax on real property interests is undisputedly a direct tax.
53
Can Congress eliminate the right of alien enemy combatants of petitioning habeas corpus?
No, under the Suspension Clause of Article I, Section 9, Clause 2, a detainee retains the privilege to file a habeas corpus petition unless this privilege is suspended. This clause applies to individuals detained in a territory over which the United States has sovereign control, even though such territory is outside the United States
54
What power does the Thirteenth amendment extends to the Congress?
Power to adopt legislation rationally related to eliminating involuntary servitude.
This power has been broadly interpreted to allow Congress to regulate both private and government action and is the only Amendment that authorizes Congress to regulate purely private conduct.
55
Can the congress "refuse" to allow the President to rescind an appropriation of funds by not acting?
Yes, when Congress explicitly mandates an expenditure of funds, the President has no constitutional power to impound those funds (i.e., refuse to spend them or delay the spending). Consequently, although Congress has provided a statutory means by which the President can request that Congress rescind an appropriation of funds, because Congress did not act on that request, the President is constitutionally required to expend the congressionally mandated funds.
56
Can a state impose tax on purchases and expenses from a private contractor operating on behalf of the federal government?
Yes, although a state may not tax the federal government or its instrumentalities, there is no similar restriction on the taxation of property owned by a private individual. In this case, the sales taxes have only an indirect economic effect on the federal government.
57
Can the fed gov impose taxes on moneys paid by the states to its citizens?
Yes, a federal tax that is not directly imposed on a state, but instead on payments made by the state to a private person, is constitutional.
58
Can Congress impose, in theory, crazy regulations upon states and counties?
Yes, as long as it doesn't commandeer state and county officials to regulate the conduct of others.
59
What test allows for states or counties to discriminate against others in terms of commerce?
Regulation that, on its face or in practice:
a) discriminates against out-of-state commerce;
b) is unconstitutional unless
c) it serves an important local interest, and
d) no other non-discriminatory means are available to achieve that purpose.
60
Can a state prohibit all use of public facilities and public employees in performing abortion?
Yes, a state may prohibit all use of public facilities and public employees in performing abortions.
61
How is the variation in number of district voters evaluated when it comes to states and federal government?
1) Fed: near-mathematical precision is required between United States congressional districts
2) States: when variation between state legislative districts is less than ten percent, it is presumed to be a minor variation that does not constitute a prima facie case for discrimination.
62
Can a state draw its legislative districts based on population instead of number of voters?
Yes.
63
Does the Elections Clause of Art. I, Sec 4, control application of the principle "one person, one vote" in the states?
No, while the Elections Clause gives Congress the power to override state requirements regarding the time, place, and manner of the election of United States congresspersons, this Clause does not govern state requirements for the election of members to local government entities.
64
How does the Equal Protection Clause of the 14th A. applies to elections in the states?
The Equal Protection Clause/ Principle of "one person, one vote" requires that one person's vote must be essentially equal to any other person's vote.
The "one person, one vote" principle applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature, such as a local school board.
The restriction of voting to a class of persons (e.g., landowners) has generally been found to violate the "one person, one vote" principle, except in the case of water-district elections.
65
How government employees' 1st A. rights apply in regarding to their work/employers?
The employee must show that he was speaking as a citizen on a matter of public concern.
Even when an employee is speaking as a citizen on a matter of public concern, the First Amendment interest of the employee must be BALANCED against the interest of the state, as an employer, in effective and efficient management of its internal affairs.
66
How can someone validly regulated by speech repressive laws challenge such laws?
In order to prevent a “chilling effect” on protected speech, an overbroad governmental law or policy may be challenged as facially invalid even by those who are validly regulated on behalf of those who are not.
67
How does the 1st A. protect the midia from liability for publishing private facts?
The First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern.
68
How can Congress affect S.Ct.'s original jurisdiction?
Section 2 of Article III of the U.S. Constitution provides that the Supreme Court has original jurisdiction over all cases between two or more states. Note that Congress cannot expand or limit this jurisdiction, but it can grant concurrent original jurisdiction to lower federal courts.
69
Can Congress mandate states on how to keep instrumentalities such as cars, trucks, ships, airplanes, etc.?
Yes, as long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states. Congress has the power to regulate the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce pursuant to the Commerce Clause. The right of Congress to enact legislation in furtherance of the Commerce Clause is broadly construed by the Supreme Court.
70
What power does the 15th A. have?
The Fifteenth Amendment prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted.
71
Where a federal statute and a federal treay conflicts, which one will prevail?
The most recent one.
72
Can ex post facto laws be triggered by civil legislation?
Probably not. Ex post facto laws constitute a retroactive change in a criminal or penal law (or a civil law with an overriding punitive effect)
73
Can a congress member be sued during the course of her mandate for taking bribes related to her legislative activities?
Yes, the Speech or Debate Clause of Article I, Section 6 protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports. However, this protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts.
74
What test state taxes on interstate commerce must satisfy?
Complete Auto Test
(i) the activity taxed must have a substantial nexus to the taxing state,
(ii) the tax must be fairly apportioned,
(iii) the tax may not discriminate against interstate commerce, and
(iv) the tax must be fairly related to the services provided by the state.
In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce must not
(i) create a substantial risk of international multiple taxation or
(ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues.
75
What test does a tax imposed on foreign commerce must satisfy?
Must not:
(i) create a substantial risk of international multiple taxation or
(ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues.
Additionally, if such tax is being created by a state instead of the federal government:
(i) the activity taxed must have a substantial nexus to the taxing state,
(ii) the tax must be fairly apportioned,
(iii) the tax may not discriminate against interstate commerce, and
(iv) the tax must be fairly related to the services provided by the state.
76
Which clause from the constitution prohibits states from adopting different currencies?
The Supremacy Clause makes the U.S. Constitution, as well as federal laws and treaties, the “supreme law of the land.” Under Article I, Section 10 of the U.S. Constitution, a state is prohibited from coining money or making anything but gold and silver coin a tender in payment of debts.
77
What is a bill of attainder?
A bill of attainder is an unconstitutional legislative act that inflicts punishment on named individuals or on easily identifiable members of groups.
78
What are the limitations on States when it comes to primary elections?
1) A state cannot require a local party to participate in an open primary (i.e., a primary in which any voter in the state may vote in a political party's primary) to choose presidential electors where the national party has required that electors must be chosen only by party members.
2) A state may not prohibit a political party from allowing independents to vote in its primary.
79
To which controversies has Congress granted Federal Courts with concurrent jurisdiction with the S.Ct.?
all controversies over which the Constitution granted the U.S.
Supreme Court original jurisdiction, except for a controversy between two states.
By statute, Congress has granted federal district courts concurrent original jurisdiction over all controversies over which the Constitution granted the U.S.
Supreme Court original jurisdiction, except for a controversy between two states.
While the U.S. Constitution gives the U.S. Supreme Court original jurisdiction over, among other matters, a controversy involving a state as a party, Congress may grant concurrent original jurisdiction to lower federal courts.
80
Does Congress need to meet a rationally related to a legitimate governmental test when changing the rules related to housing during war time?
No.
The authority granted to Congress under the war power of Article I, Section 8, is very broad.
Congress may take whatever action it deems necessary to provide for the national defense in both wartime and peacetime, including rent control of the civilian economy during wartime, and even during the post-war period.
81
Can a prosecutor be sued for damages for presenting false evidence against a criminal defendant on purpose?
No. A prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction.
82
How can a judgment indirectly conflicting with federal law may be considered as creating state common law contrary to the goals of the federal law?
A state law may indirectly conflict with federal law by creating an obstacle to or frustrating the accomplishment of that law’s purpose. By allowing a state common law action against the defendant software company, the purpose of the federal regulation to encourage further development of crash-prevention subprograms would be thwarted.
83
Will the fact that a corporation created by the Congress is for profit matter to a claim under Free Speech?
No.
Although the corporation is a for-profit entity, the creation and control of the corporation by the federal government is determinative of whether its conduct constitutes governmental action for the purposes of this constitutional challenge to its action.
84
If maintaining an employee at her current position may be undesirably given legitimate circumstances, can the Gov terminate the employee first and only them provide her with a hearing?
Yes, fenerally, a public employee who may be discharged only for cause has a property interest in her job, and therefore is entitled to notice of termination and a pre-termination opportunity to respond.
A formal pre-termination hearing, however, is not required if there is a significant reason for immediately removing a “for-cause” employee from the job, a prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process.
85
Which types of alterated images will still be considered child pornography for the purposes of First Amendment?
Simulated displays may not be banned.
But, amalgamated displays may be banned.
86
What is the test applicable to local governments when discriminating aliens for applications to government functions?
Rational basis.
A growing exception exists, however, for state laws that restrict or prohibit an alien’s participation in government functions. Such laws need only have a rational relationship to a legitimate state interest, and are generally upheld as preventing aliens from having a direct effect on the functioning of the government. Because working as a law enforcement officer is a position involving participation in the governmental function of enforcing law, rational basis is likely the proper standard to apply.w
87
When is a fetus considered viable for constitutional analysis?
Late in second semester.
88
Would a mandatory autopsy law be considered constitutional? Would it run afoul of the Free Exercise clause?
It would be considered as a neutral law of general applicability that unitentionally interferes with the free exercise of religion and, as such, does not run afoul of the Free Exercise clause.
