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Constitutional Law Flashcards

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1
Q

The 11th Amendment prohibits a party from suing a state or state agency in federal court.

What are the exceptions to this?

A
  • The state explicitly consents to waive its 11th Amendment protections;
  • The suit pertains to federal laws adopted under Section 5 of the 14th Amendment;
  • The suit seeks only injunctive relief against a state official for conduct in violation of the constitution or federal law; OR
  • The suit seeks money damages from a state official.

Priority: HIGH

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2
Q

When does a party have Standing to sue?

A

It exists when the plaintiff:

  1. Personally suffered an injury in fact;
  2. The injury was caused by the defendant; AND
  3. The injury is redressable by a court order.

Priority: Medium

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3
Q

Third-Party Standing

vs.

Organizational Standing

A

Third-party: NOT permitted, but exceptions are made when there is a close relationship between the plaintiff and 3rd party – if it would be difficult for the 3rd party to assert their rights or if the 3rd party is an organization.

Organizational: An organization has standing to sue on behalf of their members if (1) the suit is related to an issue that is germane to the organization’s purpose, (2) the members would have standing to sue, and (3) the member’s participation is not necessary.

Priority: Medium

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4
Q

What does Ripeness refer to?

A

Whether a case is ready to be litigated.

A case is ripe for review when there is actual harm or an immediate threat of harm to the plaintiff.

Priority: Medium

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5
Q

What does Mootness refer to?

A

To instances when the dispute has ended or was resolved before review.

A court may hear a case that has ended/resolved when:

  • The wrong alleged is capable of being repeated and escaping review;
  • The defendant voluntarily stops an offending practice but can resume it any time; OR
  • In a class action.

Priority: Medium

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6
Q

Under the Commerce Clause, what may Congress regulate?

A
  1. The channels of interstate commerce;
  2. The people and instrumentalities that work and travel in interstate commerce; AND
  3. Economic or commercial activities that have a substantial effect on interstate commerce.

Priority: Medium

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7
Q

When will federal regulations regarding intrastate activities be upheld?

A

If:

  1. If there is a rational basis,
  2. To conclude that the cumulative national impact of the activities;
  3. Have a substantial effect ON interstate commerce.

Priority: Medium

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8
Q

What Amendments does Congress have the power to enforce?

A
  1. 13th Amendment (abolition of slavery).
  2. 14th Amendment (privileges, immunities, due process, equal protection, apportionment of representatives).
  3. 15th Amendment (right to vote can’t be denied on race)

*Congress CAN only prohibit behavior, Congress CANNOT define constitutional rights or change substantive law.

Priority: Medium

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9
Q

What Taxing and Spending Powers does Congress have?

A

They have the power to tax and spend for the general welfare. These powers are interpreted BROADLY, and allows Congress to attach restrictions or conditions on federal funding in order to regulate areas they would otherwise not have the power to do so.

Priority: Medium

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10
Q

Spending Power

What must be satisfied when Congress places conditions on States receiving federal funds?

A

The:

  1. Spending must be for the general welfare;
  2. Condition must be imposed unambiguously;
  3. Condition must be related to federal interests in national projects or programs;
  4. Condition cannot induce unconstitutional activities; AND
  5. Condition cannot be so coercive to turn pressure into compulsion.

Priority: Medium

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11
Q

What powers does the President have?

A
  1. Faithfully execute the law;
  2. Appoint ambassadors, public ministers, consuls, supreme/federal court judges, and other officers;
  3. Appoint inferior officers (when the power is given to him by Congress);
  4. Remove cabinet level appointees;
  5. Enter into executive agreements w/o senate approval;
  6. Pardon federal crimes; AND
  7. Control troops as Commander in Chief.

Priority: Medium

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12
Q

When does Congress have the power to delegate Legislative Powers?

A

They can so long as:

  1. The powers are delegable under the Constitution; AND
  2. Congress provides reasonably intelligible standards to guide the delegation.

*Congress CANNOT delegate powers it does not have.

Priority: Medium

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13
Q

What is the Negative Commerce Clause?

A

State and local governments CANNOT pass laws that:

  • Discriminate against out-of-state commerce; OR
  • Place an undue burden on interstate commerce.

Priority: HIGH

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14
Q

Negative Commerce Clause

When is a law deemed discriminatory?

A

When it is either:

  • Facially discriminatory; OR
  • The law has a discriminatory impact because it favors in-state commerce over out-of-state commerce. These laws are typically unconstitutional, unless:
    • The burden on Interstate commerce is narrowly tailored to achieve a legitimate, non-protectionist state objective; OR
    • The state/local gov’t is a “market participant.”

Priority: HIGH

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15
Q

Negative Commerce Clause

When is a law deemed unduly burdensome?

A

State and local laws that place an undue burden on interstate commerce are unconstitutional when:

  1. The burden on interstate commerce,
  2. Is clearly excessive to the putative benefits to the state and local government.

*Courts apply this balancing test on a case-by-case basis.

Priority: HIGH

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16
Q

Express Preemption vs. Implied Preemption

A

Express: When federal legislation specifically states that the federal law is exclusive.

Implied: Occurs either through:

  • Direct conflict with the state law;
  • Through field preemption; OR
  • When the state law substantially interferes with the objective of the federal law.

*Validly enacted federal laws will always preempt conflicting state laws.

Priority: Medium

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17
Q

When will a court find “state action” for private conduct?

A

When the conduct involves either:

  • A traditional public function – powers traditionally and exclusively reserved to the government; OR
  • When significant government involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional.

Priority: HIGH

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18
Q

Substantive Due Process

Fundamental Rights Test

vs.

Non-Fundamental Rights Test

A

Fundamental: To regulate rights, government must satisfy strict scrutiny (law is necessary to serve a compelling government interest). Rights include: right to vote, right to interstate travel, and right to privacy.

Non-Fundamental: The government may regulate activities not deemed fundamental rights so long as it meets the rational basis test (law is not rationally related to a legitimate government interest).

Priority: Medium

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19
Q

Procedural Due Process

Deprivation of Liberty vs. Deprivation of Property

A

Liberty: When the government deprives an individual of a freedom provided by the Constitution or statute.

Property: When an individual has an entitlement that is not fulfilled (i.e. welfare or security benefits).

*The Due Process Clause guarantees that no person shall be denied life, liberty, or property without due process of the law.

Priority: Medium

20
Q

Procedural Due Process

What are the three Matthew v. Eldridge factors?

A

The court balances:

  1. The importance of the private interests being affected;
  2. The risk of error under current procedures and the value of additional procedures; AND
  3. The importance of state interests and the burdens on the government that would arise from additional safeguards.

Priority: Medium

21
Q

Equal Protection Clause

What must the government show under Strict Scrutiny, and when will courts apply it?

A

The government must show that a classification is necessary to serve a compelling government interest.

Courts will apply strict scrutiny when:

  • A classification is based on a suspect class (race, origin); OR
  • When the law infringes on a fundamental right for a class of people.

Priority: HIGH

22
Q

Equal Protection Clause

What must the government show under Intermediate Scrutiny, and when will courts apply it?

A

The government must show that a classification is substantially related to an important government interest.

Courts will apply it when:

A classification is based on a quasi-suspect class (gender/sex, non-marital children, & most likely sexual orientation/gender identity)

Priority: HIGH

23
Q

Equal Protection Clause

What classes does the Rational Basis test apply to, and what must a plaintiff show regarding the classification?

A

This test applies to ALL other classes not covered under strict or immediate scrutiny (age, disability, undocumented aliens, etc.).

Under this test the plaintiff must show that the classification is not rationally related to any legitimate government interest.

Priority: HIGH

24
Q

Takings (5th Amendment)

Possessory (per se) takings vs. Regulatory takings

A

Possessory – When the government physically takes or occupies the property (even just a small portion).

Regulatory – Three Categories:

  • Depriving Owner of All Economically Viable Use – is a per se taking
  • Penn Central Taking
  • Conditions on Approval of a Permit (a.k.a. a Land-Use Exaction)

Priority: HIGH

25
Q

Takings (5th Amendment)

What are the factors for a Penn Central Taking?

A

To determine whether a taking occurred, courts balance the Penn Central Factors:

  1. The economic interest of the regulation on the claimant;
  2. The extent of the interference; AND
  3. The character of the governmental action.

Priority: HIGH

26
Q

Takings (5th Amendment)

When do conditions placed on the approval of permits NOT constitute an uncompensated taking under the 5th Amendment?

A

If:

  1. There is an essential nexus between the state interest and permit condition; AND
  2. The government makes an individualized determination that the condition is roughly proportional to advancing the state interest.

Priority: HIGH

27
Q

Under the Privileges and Immunities clause of Article IV of the Constitution, states CANNOT intentionally discriminate against non-residents concerning what?

A
  • Civil liberties (right to vote, travel); OR
  • Important economic activities (ability to earn a livelihood).

*Laws will be upheld if the state is justified for the discrimination.

Priority: Medium

28
Q

What does the Establishment Clause prohibit?

A

The government from establishing a religion or endorsing/supporting religion.

Laws that discriminate MUST satisfy strict scrutiny.

Laws that do not discriminate will be upheld if:

  1. It has a secular purpose;
  2. Its primary effect does not advance/prohibit religion; AND
  3. It does not excessively entangle the gov’t with religion.

Priority: Medium

29
Q

What does the Free Exercise Clause prohibit?

A

The government from interfering with the exercise of religion.

Laws that interfere MUST satisfy strict scrutiny.

*Laws of general applicability that cause unintentional burdens on religion ARE constitutional, and do not offend the Free Exercise Clause.

Priority: Medium

30
Q

Free Speech:

Content-Based Restrictions

vs.

Content-Neutral Restrictions

A

Content-Based: Regulations regarding the content of protected speech (subject matter, viewpoint). Gov’t MUST satisfy strict scrutiny (narrowly tailored to achieve a compelling government interest AND it used the least restrictive means).

Content-Neutral: Gov’t may regulate the time, place, and matter of content-neutral speech if the regulation satisfies intermediate scrutiny (narrowly tailored to achieve a significant government interest AND leave open alternate channels of communication.

Priority: Medium

31
Q

Free Speech

Public Forum

vs.

Designated Public Forum

vs.

Non-Public Forum

A

Public Forum: Traditionally available to the public for free speech.

Designated Public Forum: Not traditionally available for free speech, BUT the government chooses to make it available. Treated the same as a Public Forum.

Non-Public Forum: Public spaces that have traditionally been limited for free speech. The government may regulate speech here if the regulation is reasonable AND viewpoint neutral.

Priority: HIGH

32
Q

Free Speech:

When are licensing requirements permitted?

A

If:

  1. The government has an important reason for licensing;
  2. Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND
  3. Procedural safeguards are in place.

Priority: HIGH

33
Q

Unprotected Speech:

What are fighting words?

A

Words, which by their very utterance:

  • Inflict injury; OR
  • Tend to incite an immediate breach of the peace.

*The 1st Amendment DOES NOT protect fighting words or true threats.

Priority: Medium

34
Q

Unprotected Speech:

When does speech Incite Imminent Lawless Action?

A

When it:

  1. Advocates the use of force or illegality;
  2. It is directed to inciting or producing imminent lawless action; AND
  3. It’s likely to incite or produce such an action.

*Speech that Incites Imminent Lawless Action is NOT protected by the 1st Amendment and may be outlawed.

Priority: Medium

35
Q

Unprotected Speech:

Obscenity is NOT protected under the 1st Amendment.

What speech/material is characterized as obscene?

A

When:

  1. It appeals to the prurient interest of an average person applying today’s community standards;
  2. It is patently offensive under the laws prohibiting obscenity; AND
  3. It lacks any serious, artistic, literary, or scientific value based on a national standard.

Priority: Medium

36
Q

Commercial Speech:

When may the government regulate truthful, non-misleading commercial speech?

A

If the regulation:

  1. Directly advances;
  2. A substantial government interest; AND
  3. Is no more restrictive than necessary.

*False or misleading speech is NOT protected under the 1st Amendment.

Priority: Medium

37
Q

Free Speech – Public Schools

Schools are given a greater latitude to regulate speech. When are school officials justified in the suppression of speech?

A

They must prove that the conduct would materially and substantially interfere with the operation of the school.

Priority: Medium

38
Q

Free Speech – Gov’t Employees

For a government employee’s speech to be Constitutionally protected, what is required?

A

The employee must speak:

  1. As a citizen; AND
  2. On a matter of public concern.

*An employee’s statements made pursuant to their official duties are NOT protected.

Priority: Medium

39
Q

Free Speech – Expressive Conduct

When may expressive conduct or symbolic speech be regulated?

A

If:

  1. The government has an important purpose;
  2. The purpose is independent of the suppression of speech; AND
  3. The restriction is no greater than necessary to achieve that purpose.

Priority: Medium

40
Q

Free Speech – Prior Restraints

What is a prior restraint on speech?

A

When the government attempts to prohibit speech before it happens through a court order or licensing requirement.

*Prior restraints are generally disfavored and unconstitutional, and court orders preventing speech MUST satisfy Strict Scrutiny.

Priority: Medium

41
Q

When is a statute unduly vague or overbroad?

A

A statute is unduly vague of it does not put the public on reasonable notice as to what is prohibited.

A statute is overbroad if it regulates more speech than is Constitutionally permitted.

*A defendant CANNOT be convicted under a law that is deemed overboard or vague.

Priority: Medium

42
Q

Freedom of the Press & Defamation:

What additional element is needed to prove a Defamation claim against a public figure or public official?

A

For a Public Figure, the plaintiff needs to prove that the defendant spoke with either:

  • Recklessness as to the truth of the statement; OR
  • Knowledge of its falsity.

Priority: Medium

43
Q

Freedom of the Press & Defamation:

What additional element is needed to prove a Defamation claim against a private figure speaking about a matter of public concern?

A

For a Private Figure speaking about a matter of public concern, the plaintiff needs to prove that:

The speaker was negligent.

Priority: Medium

44
Q

Freedom of the Press:

The 1st Amendment protects the press from liability when publishing what?

A
  1. Truthful private facts;
  2. On a matter of public concern;
  3. Where such information is legally obtained; AND
  4. There is no knowledge that any information was obtained illegally.

*The 1st Amend. doesn’t protect the press from liability for violating generally applicable laws.

Priority: Medium

45
Q

Freedom of Association:

When may the Government punish a person’s membership in a group?

A

If it proves that:

  1. The group is actively engaged in illegal activity or incites imminent lawless action;
  2. The person has knowledge of the group’s illegal activities; AND
  3. The person has specific intent of furthering those illegal activities.

Priority: Medium

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