Constitutional Law Flashcards
What is the exception to no standing just as a taxpayer
When the first amendment religion establishment clause has been violated, but this is a VERY narrow exception
Does commerce clause power extend to environmental laws?
Yes
Is the necessary and proper clause an independent source of power?
No
What is required for the license exception to out of state discrimination to apply?
The license must be recreational
It cannot be commercial
What is the main thing that a taking must be?
It must be a physical occupation
So requiring a building to place equipment in their basement would be a taking
Can a state regulation that does not discriminate still be struck down as unconstitutional under the dormant commerce clause?
Yes, if it imposes an undue burden on interstate commerce
Does a president’s pardon power extend to impeachment?
No
When can a president pardon?
Anytime after the offense has been committed
The privileges and immunities clause of Article IV vs the privileges and immunities clause of the fourteenth amendment
The Privileges and Immunities Clause of Article IV: How state treats out of state citizens
–prevents a state from treating citizens of another state in a discriminatory manner; it does not prevent a state from discriminating against its own citizens
Privileges or Immunities Clause of the Fourteenth Amendment: how state treats its own citizens
- -has very limited application.
- -This provision prevents states from infringing on the rights of national citizenship, and is usually only successfully invoked in cases involving the right to travel between the states.
What do the commercial speech rules apply to?
When speech being regulated is only commercial speech, not regulations that may have an effect on commercial speech among other things (like billboards)
What type of speech restrict is prohibition of signs for upcoming events?
Content-based. Since other signs are allowed, the content prohibited is upcoming events.
What scrutiny applies to content-based regulations
Strict scrutiny
Who does the contracts clause apply to?
States
Can congress make laws about aliens?
Yes, they have plenary power to do so under Article 1
What type of hearing is required for a public employee who may be discharged only for cause
An informal pre-termination opportunity to respond
A formal hearing is not required
When can the President call National Guard units?
To execute federal laws, suppress insurrections, and repel invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is not subject the approval or veto of the governor of a state.
When can the government punish or deprive a person public employment based on their political affiliation?
When the individual:
o is an active member of a subversive organization
o has knowledge of the organization’s illegal activities
o has a specific intent to further those illegal objectives.
Can a plaintiff have standing when the injury is that suffered by the general population?
No, the plaintiff must have a particularized injury in fact that is different from citizens in general
Can the gov require a church to retain an unwanted minister?
No, that violates the Free Exercise and Establishment Clauses of the First Amendment
Are content-based restrictions in public forums allowed?
No, they are always unconstitutional
What scrutiny do fundamental rights get?
Strict scrutiny
Doe extended family members have a right to live together in a single household?
Yes, it is a fundamental right
When can a citizen of one state not sue another state in federal court?
When the basis of the action is the violation of state law (11th amendment)
Younger doctrine
a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute.
Can a defendant in a criminal trial challenge the constitutionality of the law?
Yes, they have standing to do so
an imminent threat of prosecution under an unconstitutional statute is sufficient for standing
Can congress regulate international commerce?
Yes
What type of decision maker is a person entitled to under due process?
A fair and neutral one
If a decision is based solely on state law, when can SCOTUS hear the case?
when it possibly violates the constitution
If race is a primary factor in redistricting what scrutiny applies?
Strict, but the federal voting rights act might save it
What is Article I, Section 8, Clause 17 of the U.S. Constitution, also known as the Enclave Clause?
It gives Congress the general police and regulatory powers over the District of Columbia that a state enjoys over persons and things within its boundaries.
What is the sixteenth amendment?
It gave Congress the power to impose an income tax without apportioning the tax among the states based on population
May congress tax goods exported to foreign countries
No, under the export taxation clause of Article 1, Section 9
When will an absolute prohibition on a particular type of expression be upheld?
Only if it is narrowly drawn to accomplish a compelling governmental interest.
Is preventing littering a sufficient governmental interest to justify banning all leafleting?
No
If a government employee contends that her rights under the Free Speech Clause of the First Amendment have been violated by her employer what must the employee show?
the employee must show that she was speaking as a citizen on a matter of public concern.
The critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties
The Federal Property Clause of Article IV, Section 3
gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
This applies even if the government is not putting the land to public use
How do district courts get cases involving states as a party
Constitution gives SCOTUS original jurisdiction over any controversy involving a state as a party, but congress may and has granted concurrent jurisdiction to lower federal courts
Can a state restrict the right to participate in the political process of a governmental unit to those who reside within its borders?
Yes, this is typically upheld as justified on a rational basis
So even though voting is a fundamental right, it is not subject to strict scrutiny all of the time
Is voting in a local election a fundamental right?
Yes
What is congress’s war power under Art 1 sec 8
Congress may take any action it deems necessary to provide for the national defense in both wartime and peacetime
Can a statute punish speech that expresses certain viewpoints when it come to fighting words?
No, it is unconstitutional
For example can’t prohibit fighting words that provoked on basis of gender
The Fourteenth Amendment, Section 5 Enabling Clause
permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the 14th Amendment, but not to expand those rights or create new ones.
When do exactions not violate the takings clause?
Proportionality and essential nexus
When there is an essential nexus between legitimate state interests and the conditions imposed on the property owner, and a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.
What is the general requirement to trigger strict or intermediate scrutiny no matter the discrimination?
there must be discriminatory intent on the part of the government
What is the standard for strict scrutiny?
the statute be necessary to achieve a legitimate state interest
For the scrutinies, who is the burden on?
The burden is on the plaintiff for rational basis
The burden is on the state for for intermediate and strict
When can congress enact statutes under the enabling clause?
when equal protection has been violated or could be violated
If there is a violation, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end
Are liens and easements covered by the takings clause?
Yes, so if a taking by the government destroys a lien that is unconstitutional
What branch has the exclusive power over the recognition of foreign countries?
The president
Can a state legislate with regard to alienage?
Yes, if congress has authorized it
Otherwise the statute is subject to strict scrutiny and struck down
Can states tax the federal government?
Only indirectly
What does the 21st amendment do?
It gives states the authority to ban or restrict alcohol
What standard applies to zoning ordinances?
rational basis
Rational basis standard
rational connection to a legitimate state interst
Can congress legislate on federal elections?
Yes and they can override state laws on federal elections
Can Congress delegate to the president the power to appoint members of committees without senate approval?
Yes, but the committee must be supervised by a senate appointee
Can a private person violate procedural due process?
No, the violation must be the result of an action undertaken by the government
Can a legislative veto apply to executive agencies?
No
Can a discriminatory tax on out of state business authorized by congress violate the equal protection clause?
Yes, if it does not satisfy rational basis. Promotion of domestic business against other businesses is not a legitimate state purpose
Does the privileges and immunity clause include corporations?
no
The protection of national citizenship in Clause I of the Fourteenth Amendment (citizenship clause)
prevents Congress from taking away a person’s citizenship, unless that citizenship was obtained by fraud or in bad faith
If an agency member has enforcement powers who must appoint them?
The president
Thirteenth amendment
congress can pass laws to eliminate involuntary servitude and the badges that come with it
What is the only amendment that lets congress regulate purely private conduct
13th amednment
Twelfth amendment
how prez and vp are elected
Fifteenth amendment
can’t deny citizens right to vote based on race, color, or previous condition of servitude
Is the right to make decisions regarding the care, custody, and control of one’s children a fundamental right?
Yes
What happens if a state law is consistent with federal statute but the federal law says it supersedes relevant state laws
then the federal law prempts the similar state statute
Can the government may destroy property in response to a public peril without compensation?
Yes, under the takings clause
What standard applies when gov shows preference to one religion over another, or to religion over nonreligion
Strict scrutiny
Can a state draw legislative districts on the basis of population rather than eligible or registered voters?
Yes and a variation of less than ten percent in the size of a state legislative district is rebuttably presumed to be a minor deviation that does not constitute a prima facie case for discrimination.
What standard is applied to uphold a tax by congress?
EITHER a reasonable relationship to revenue production OR if Congress has the power to regulate the activity being taxed. Very low standard.
General rule = congress can tax for any public purpose
Just can’t apply a tax to only some states
Is a student entitled to a hearing with regard to dismissal for academic reasons from a public institution of higher learning
No
Can those who are validly regulated challenge a speech law as facially invalid on behalf of those who are invalidly regulated
Yes, in order to prevent a “chilling effect” on protected speech
Can the president impound fund that congress has explicitly mandated an expenditure of?
No
What type of uniformity does the constitution require of taxes?
The requirement that indirect federal taxes (i.e., duties, import and excise taxes) must be uniform throughout the United States has been interpreted to mean geographical uniformity only; the product or activity at issue must be identically taxed in every state in which it is found.
When can a state discriminate against out of state commerce
the statute must serve an important local interest and no other non-discriminatory means are available to achieve that purpose
Court will look for whether the least restrictive means has been used
Does the equal protection clause apply to the federal gov
Yes, through the due process clause
Intermediate scrutiny standard
a law must be substantially related to an important government interest in order to be valid
What will a court consider to determine whether a regulation constitutes a taking?
1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding his use of the property; and (3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property
What is the article 1, section 9 limitation on federal taxes?
the federal government cannot charge direct taxes unless they are in apportionment to the census
Prop taxes do not fall under this
the 16th amendment allows taxation of income without apportionment
Does the Supremacy Clause provide for implied preemption of a state law by a federal law when the two directly conflict?
Yes
What does it mean that federal courts require an actual controversy?
Although an action that seeks a declaratory judgment may be constitutionally permissible, the challenged action must pose a real and immediate danger to a party’s interests for there to be an actual dispute.
Eleventh amendment
protects the states from certain lawsuits brought against the state by out-of-state citizens in federal court.
Can the media be sued for the publication of a lawfully obtained private fact?
No, the first amendment shields them so long as the news story involves a matter of public concern.
Ex: the publication of the identity of a rape victim would be ok
Can a state prohibit all use of public facilities and public employees in performing abortions?
Yes
Although a woman has a constitutional right to have an abortion, the state is not constitutionally required to permit abortions at a state owned or operated facility.
Who has jurisdiction over cases arising under treaties?
Federal courts
Does the supremacy clause provide federal employees immunity from state action against them?
Yes
if an ambiguous law has a long history of non-enforcement, would a case challenging that law lack ripeness?
Maybe
Does a person does not need to wait until an action has been taken against them under a statute to file for injunctive relief
No
