Constitutional Law Flashcards
1
Q
What article of the constitution grants judicial power to the Supreme Court and such inferior courts that Congress made establish?
A
Article 3
2
Q
What are the cases and controversies requirements that act as limits on the federal judicial power?
A
No advisory opinions, standing, ripeness, mootness, political question doctrine.
3
Q
Can a federal court issue an opinion on abstract or hypothetical questions?
A
No. There must be a real and immediate present or future danger to the interests of the parties.
4
Q
Can federal courts issue declaratory judgment?
A
Declaratory judgment are permitted. A declaratory judgment is a decision by a court on what the legal effect of a proposed course of conduct by one or both of the parties would be. Even with declaratory judgments, however, a specific, concrete controversy must exist.
5
Q
A plaintiff must have appropriate standing to file a suit in federal court. What does standing generally require?
A
Injury, causation, redressability.
The fundamental question driving standing is whether the plaintiff is the proper party to bring the lawsuit.
Redressability= plaintiff must have a concrete stake in the outcome of the case such that a favorable decision will likely remedy the injury.
6
Q
Third-party standing is not permitted unless the plaintiff independently meets the other standing requirements and
A
- Has a close relationship with the injured third party
- The injured third-party is unlikely to be able to assert her rights or
- An organization may Sue on behalf of its members if individual members have standing to sue, interests are related to the purpose of the organization, and neither claims or relief requires participation of individual members.
7
Q
Is there standing in fed court for general grievances?
A
The Supreme Court has denied standing for general grievances.
8
Q
What is a general grievance?
A
A general grievance is a Plaintiff suing solely as a citizen or taxpayer interested in having the government obey the law.
9
Q
What is the exception to the rule that there is no standing for general grievances
A
A taxpayer may challenge congressional taxes or expenditures pursuant to a federal statute as violating the establishment clause
10
Q
What are the exceptions to the general rule that there must be a live controversy at all stages of review?
A
- Capable of repetition yet evading review
- Voluntary cessation (D free to resume)
- Class action suits (class action will jot be dismissed as long as at leadt one member has ongoing injury)
11
Q
What types of cases will be dismissed as non-justiciable political questions?
A
- Republican form of government clause of article IV
- Challenges to the president’s foreign policy
- Challenges to impeachment and removal process
- Congressional standing qualifications
12
Q
What types of cases are not considered political questions
A
- legislative apportionment
- gerrymandering
- Presidential papers and communications
13
Q
What is abstention
A
Abstention is when a federal court has jurisdiction but the court nevertheless refrains from exercising that jurisdiction.
14
Q
When disposition of a case rests on unsettled questions of state law, wil federal courts resolve constitutional challenges?
A
Federal courts will temporarily abstain from resolving constitutional challenges when disposition of a case rests on unsettled questions of state law.
15
Q
Over what kind of cases does the Supreme Court have original jurisdiction?
A
The supreme court has original jurisdiction over controversies between state governments and actions involving ambassadors. The Supreme Court has only appellate jurisdiction over other kinds of cases.
16
Q
Congress has permitted federal district courts to also exercise original jurisdiction over
A
All actions within the supreme court’s original jurisdiction except for those between states. This means that the lower federal courts can also exercise jurisdiction over actions involving ambassadors.
17
Q
What are the limits on the supreme court’s appellate jurisdiction?
A
- Generally, the Supreme Court may only hear a case after there has been a final judgment.
- Congress has the authority over the appellate jurisdiction of the supreme court and can strip the Supreme Court of its appellate jurisdiction to hear particular types of cases but Congress cannot exercise this power in a manner that interferes with the establishment of a supreme and a uniform body of federal constitutional law.
18
Q
What is the documentation sent to the Supreme Court to request that the Supreme Court review a case
A
Writ of Certiorari
19
Q
Can the Supreme Court deny a writ of Certiorari?
A
The Supreme Court has complete discretion and deciding whether to grant a writ of certiorari and hear a case on its merits.
20
Q
The Supreme Court may only review final judgments and decrees from the highest state courts if
A
The case calls into question the constitutionality of a federal law, federal treaties, or state law, or whether a state law violates a federal law.
21
Q
Does the Supreme Court have appellate jurisdiction over decision by the highest court of a state when that decision is supported by state law grounds that are independent of federal law and adequate to sustain the result in the case?
A
No
22
Q
When does a Supreme Court have mandatory appellate jurisdiction?
A
The Supreme Court must hear all cases that come before the court on direct appeal. However, the only permitted direct appeal to the Supreme Court is a decision by a three-judge federal District Court panel granting or denying injunctive relief.
23
Q
What is the 11th amendment limitation on federal court review?
A
The 11th amendment prohibits a federal court from hearing suits against a state government commenced by a private citizen or foreign government
24
Q
Does the 11th amendment bar actions against state governments for injunctive or declaratory relief where the state is named as a party?
A
Yes
25
Does the 11th amendment bar actions for damages against state governments, including suits by a citizen against her own state?
Yes
26
Does the 11th amendment bar actions against state officials that would result in retroactive damages being paid from the state treasury?
Yes
27
Does the 11th amendment bar action against a state government that would result in the divestment of the state’s ownership of land?
Yes
28
A state government can be named as a defendant in federal court only under the following exceptions:
- The defendant state expressly consents and waives sovereign immunity.
- Actions against state officials for injunction to stop the violation of a federal law.
- Actions for damages against state officer for personal liability if damages will be paid from the officer’s own pocket
- Actions against local governments or municipalities
- Actions by the United States or other state governments against a state
- Actions under section 5 of the 14th amendment, which gives Congress the power to enforce the provisions of the 14th amendment by appropriate legislation.
- Bankruptcy proceedings
29
When is congressional legislation appropriate within the meaning of section 5 of the 14th amendment
Congressional legislation is appropriate within the meaning of section 5 if
- It seeks to prevent or remedy actions by state or local governments that violate provisions of the 14th amendment and
- Its requirements are congruent with and proportional to the 14th amendment violation it addresses
30
States enjoy sovereign immunity from certain lawsuits that is not derived from the 11th amendment but instead is rooted in state sovereignty. What types of suits are barred by the doctrine of sovereign immunity?
The doctrine of sovereign immunity bars private suits against state governments in state court even when the suit is based on federal law.
The doctrine of sovereign immunity bars private complaints against a state before a federal administrative agency.
31
When a court reviews the constitutionality of a state action, it will likely apply one of three key standards of review. What are the standards?
Rational basis, intermediate scrutiny, strict scrutiny
32
To survive rational basis review, the challenged action must be found to be
Rationally related to a legitimate government interest
33
To survive intermediate scrutiny, the challenged action must be found to be
Substantially related to an important government purpose
34
To survive strict scrutiny, be challenged action must be found to be
Necessary to achieve a compelling government purpose. There are no reasonable non-discriminatory means that would achieve the same objective.
35
What article of the constitution sets forth the legislative power
Article I
36
States and local governments have general police power, but there is no general federal police power except for
The military, federal lands and territories, Native American reservations, and the District of Columbia.
37
What is the necessary and proper clause
Under the necessary and proper clause, Congress may use any means not prohibited by the constitution to carry out its authority.
38
Taxing and spending power?
Congress has the power to tax and spend for the common defense and general welfare
39
Absent a specific restriction, taxes will be upheld if
The taxes bear some reasonable relationship to revenue production, or if Congress has independent authority to regulate the activity being taxed. Taxes are generally upheld.
40
What are some limits on the taxing power
- Indirect taxes must be uniform
- Direct taxes must be in proportion to national census.
- No power to tax exports
41
Indirect taxes?
Taxes on an activity
42
Direct taxes?
Taxes imposed directly on property or a person
43
What if Congress expressly labels a tax measure as a penalty
The fact that Congress expressly labels a measure as a penalty does not prevent the measure from being upheld as a valid tax if the measure actually functions in a manner that resembles a tax
44
The commerce clause?
Article 1, section 8 states that Congress has the power to regulate commerce with foreign nations, among the states, and with Native American tribes. The commerce clause grants Congress the exclusive power to regulate the channels and instrumentalities of commerce and other activities that have a substantial effect on interstate commerce.
45
Channels of interstate commerce?
The places were commerce occurs, e.g. highways, waterways, Internet
46
Instrumentalities of commerce?
Anything that facilitates commerce, e.g. trucks, planes, Internet
47
Congress is permitted to regulate intrastate activity only if
Such activity is economic or commercial and there is a rational basis for concluding that, in the aggregate, the activity substantially affects interstate commerce. The Supreme Court has held that even ostensibly personal intrastate economic activities can this be regulated under the commerce clause.
48
May Congress use its power under the commerce clause to compel someone who is not already active in a commercial market to enter that market by requiring that person to purchase a product?
No
49
Congress is prohibited from regulating non-commercial or noneconomic activity unless
Congress can factually demonstrate that the activity has a substantial economic affect on interstate commerce. Substantial economic effect, however, cannot be based on cumulative impact.
50
Impeachment and removal power?
Congress has the power to impeach and remove the president, vice president, federal judges, and other officers of the United States for treason, bribery, or high crimes and misdemeanors.
51
What does impeachment require?
Impeachment by the house requires a majority vote. But impeachment does not remove the president, vice president, federal judge, or other officer of United States from office.
52
What does removal from office of an impeached official require?
Conviction in the Senate requires 2/3 vote. Only then will an impeached official be removed from office.
53
War powers?
Congress has the power to declare war, tax and spend for the national defense, institute economic or social control during wartime, and establish military courts and tribunals.
54
Property power?
Congress has the power to dispose of and make rules for territories and other properties of the United States, e.g. prohibiting hunting on federal land.
55
Power over citizenship?
Congress has the power to establish a uniform rule of naturalization. Congress also has exclusive control over naturalization and denaturalization, which the Supreme Court has determined gives Congress plenary power over aliens. Although the constitution gives Congress plenary power to control immigration, states may exercise their police powers to regulate the conduct of aliens within their borders, unless the regulation is preempted by federal law or otherwise violates the Constitution.
56
Congress is prohibited from taking away the citizenship of any citizen without her consent. As such a loss of citizenship may only occur if:
- Fraud in naturalization process (though technically not loss)
- Voluntary relinquishment of citizenship
57
Can aliens be denied entry for any reason
Yes. Aliens have no rights to enter the United States so they can be denied entry for any reason.
58
Must aliens be provided with notice and hearing prior to deportation?
Resident aliens must be provided with notice and hearing prior to deportation.
59
Power to regulate elections?
Congress has the power to protect eligible voters from discrimination in any state or federal election.
60
The 15th amendment prohibits discrimination against a voter based on
Race, color, or previous condition of servitude.
61
The 19th amendment prohibits discrimination against a voter based on
Gender.
62
The 24th amendment prohibits discrimination against a voter
Based on payment of a poll tax.
63
The 26th amendment prohibits discrimination against a voter
Based on age.
64
Voters rights act
Provides for sanctions for voter discrimination
65
Speech or debate clause?
Members of both houses of Congress shall be privilege from any liability for any speech or debate that takes place in either house.
Exceptions: Treason, felony, breach of the peace. Bribes. Speech is made outside of Congress. Republication of defamatory statements originally made in Congress.
66
Power to borrow money?
Congress has the power to borrow money on the credit of the United States
67
Postal power?
Congress has the power to establish post offices and post roads. This power has been interpreted as giving Congress monopoly power. Congress make validly classify and place reasonable restrictions on the use of mail but may not deprive any citizen or group of citizens of the general privilege to use the mail or regulate the mail in a manner that violates the first or fourth amendments.
68
Power to coin money and fix weights/measures
Congress has the power to coin money and regulate the value thereof. Congress also has the power to fix the standard for weights and measures.
69
Bankruptcy power?
Congress has the power to establish uniform laws on the subject of bankruptcies throughout the United States. Note, however, that this power is non-exclusive and states may reg in bankruptcy so long as the state bankruptcy laws do not conflict with the federal rules.
70
Patent and copyright?
Congress has the power to regulate and control patents and copyrights
71
Admiralty?
Congress has the power to regulate all navigable waterways
72
Can congress requires states to enact laws or to administer federal law? Why?
The Supreme Court has held that the concept of federalism embedded in the 10th amendment disables Congress from requiring states to enact laws or to administer federal law.
73
10th amendment?
All powers not granted the United States, nor prohibited to the states, are reserved to the states or the people.
74
Congress cannot compel state legislative or regulatory activity, but may induce state action via strings on grants when
- Conditions must be expressly stated
- Conditions must relate to the purpose of the program AND
- Pressure must not turn into compulsion
75
May Congress prohibit harmful commercial activity by state governments
Yes
76
Congress may delegate legislative powers to the executive or judicial branch as long as
Intelligible standards are set and the power is not uniquely confined, e.g. the power to declare war or impeach
77
Can congress delegate the power to enforce the laws to itself or its officers
Congress is prohibited from delegating the Power to enforce the laws to itself or its officers. As such, Congress may not appoint members of a body with enforcement powers.
78
What is bicameralism
Passage by both the House and the Senate
79
What is presentment
Presenting a bill to the president to sign or veto in its entirety
80
What is a legislative veto
The legislative veto is an attempt by Congress to overturn an executive action without bicameralism or presentment. Legislative vetoes of executive action are unconstitutional. Congress may overturn the action of the executive branch only by enacting a statue.
81
What article sets forth the executive power
Article II
82
What is a treaty
A treaty is an agreement between the United States and a foreign government
83
Requirements for a treaty
Treaties must be negotiated by the president and ratified by 2/3 of the Senate
84
If a treaty conflicts with state law what law prevails
Treaties are federal law and therefore preempt conflicting state law under the doctrine of federal preemption
85
If a treaty conflicts with federal law which prevails?
The one adopted most recently prevails
86
If a treaty conflicts with the US constitution what prevails
A treaty that conflicts with the US Constitution will be declared invalid under the supremacy clause
87
What is an executive agreement?
An executive agreement is an agreement between the United States and a foreign country that may be used for any purpose
88
What are the requirements for an executive agreement
Executive agreements become effective when signed by the president and head of the foreign nation. Unlike a treaty, no Senate ratification is required for an executive agreement.
89
If an executive agreement conflicts with state law what law prevails
The executive agreement prevails over conflicting state laws
90
President’s foreign affairs powers
Treaties, executive agreements, deployment of troops overseas
91
President’s domestic powers
- Take care clause
- Appointment power
- Removal power
- Presidential immunity
- Executive privilege
- Presidential pardon
- Veto power
92
Take care clause
While the president does not have the power to make the laws, the president has a duty to take care that the laws be faithfully executed, i.e., the president has no inherent constitutional authority to suspend the enforcement of the laws.
93
President’s appointment power?
The president appoints all ambassadors, other public ministers, and consuls, judges of the Supreme court, and all other officers of United States, whose appointments are not otherwise provided for with the advice and consent of the Senate. Any effort by the legislative branch to limit the president to a list of nominees violates the president’s power to nominate principal officers.
94
Does the president appoint inferior officers?
Congress may vest the appointment of inferior officers in the president alone, in the lower federal courts, or in the heads of executive departments.
95
What are inferior officers?
Inferior officers are those who may be fired
96
Can congress delegate appointment powers to itself or its officers?
No
97
President’s removal power?
Unless the removal power is limited by congressional statute, the president has the power to remove any officer of the executive branch.
98
Congress may limit the president’s removal power if
- The office is one in which independence from the president is desirable AND
- Removal is not entirely prohibited
99
Presidential immunity?
The president has absolute immunity from civil suits for monetary damages for actions taken while in office. There is no such presidential immunity for actions taken prior to taking office, however.
100
Executive privilege?
There is an executive privilege for presidential memos and conversations, but this privilege must yield to other important government interests.
101
Presidential pardon?
The president has the power to pardon any person accused or convicted of federal crimes. This applies only to criminal liability and applies before, during, and after trial. The president may not pardon a person for offenses that resulted in impeachment.
102
Veto power?
Every act of Congress must be approved by the president before taking effect unless the veto is overridden by 2/3 vote of both the House and the Senate.
103
Can a president veto part of a bill and sign the rest into law?
No. Line item vetos are unconstitutional.
104
Pocket veto?
If the president fails to exercise her veto power within 10 days, the bill becomes a law if Congress is in session or it is automatically vetoed if Congress is not in session.
105
Tripartite formula of the steel seizure case
Under the tripartite formula, the president‘s power is at its Apex when he acts pursuant to power given him by Congress. It is lessened if there is no congressional legislation on the matter. And it is at its lowest when he is acting in the face of congressional legislation affirmatively prohibiting the president from acting. The US Supreme Court has said that when the president acts in the face of congressional disapproval, he may do so only 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 likely be approved the act is within the president’s power.
106
What article provides that the constitution and law made pursuant to it are the supreme law of the land?
Article VI
107
A state may regulate more extensively than a federal statute so long as
This does not frustrate the objective of the federal statute.
108
Express preemption?
Express preemption occurs when the federal law expressly states that it is the only regulation allowed and state regulation is prohibited. The federal statute will expressly state that federal law is exclusive in the area. Note, in the environmental law context, it is acceptable for states to establish standards that are stricter than federal law, unless clearly prohibited by Congress.
109
Implied preemption Can occur In one of three ways. What are they?
- If the federal law is in direct conflict with state law, the state law will be invalidated.
- A state law will be invalidated if it substantially interferes with a federal objective. For example, federal employees are immune from state laws that interfere with their obligation to carry out an authorized function.
- If Congress clearly conveys an intent that federal law be the only source of regulation in a given issue area than any state law in that area is preempted
110
May states tax federal government activity?
States may not tax federal government activity. It is unconstitutional to pay state tax out of the federal treasury.
111
May states regulate federal activities?
States may not regulate federal activities. This immunity applies to the United States government and federal employees acting in the course of their federal duties.
112
Dormant commerce clause
If Congress has not acted, a state or local government may regulate local aspects of interstate commerce, unless the state or local laws discriminate against out-of-staters or place an undue burden on interstate commerce.
This rule is inferred from the grant of power to Congress in the commerce clause to regulate interstate commerce.
113
A state or local law that discriminates against out-of-staters is protectionist and unconstitutional unless
- It is necessary to achieve an important, non-economic state interest. Necessary means there are no reasonable non-discriminatory means that would achieve the same objective.
- Congress may exercise its authority under the commerce clause to permit a state regulation that would otherwise violate the dormant commerce clause as long as the congressional legislation unmistakably grants such permission.
- A state or local government may prefer its own citizens when acting as a market participant
114
What is the test for whether a law places an undue burden on interstate commerce
It is a balancing test in which the undue burden on interstate commerce will be weighed against the benefits of the law to the state. If the burdens outweigh the benefits, the law will be struck down as unconstitutional.
115
What is the privileges and immunities clause of article IV
No state may discriminate against non-residents with respect to privileges and immunities.
116
The privileges and immunities clause only protects which rights
Civil liberties or fundamental economic activities that affect one’s ability to earn a livelihood.
117
Does the privileges and immunities clause protect corporations and aliens?
The privileges and immunities clause does not protect corporations and aliens.
118
Exceptions to the privileges and immunities clause general rule that no state may discriminate against non-residents
A state or local law may discriminate against non-residents if the state has a substantial justification for the discrimination, the non-residents are a peculiar source of the evil the law was enacted to remedy, and the state law bears a substantial relationship to the problem the law was an acted to remedy and there are no reasonable non-discriminatory means that would achieve the same objective.
119
Privileges or immunities clause of the 14th amendment
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. This clause has been construed to only relate to freedom to travel.
120
What is the four part test the Supreme Court has set out for state or local taxes on interstate commerce to be valid under the commerce clause
A state or local government is prohibited from using its tax system to discriminate against out of state competition in an effort to benefit local businesses.
To be valid, the state or local tax must be applied to an activity that has a substantial Nexus with the taxing state. This requires significant or substantial activity within the tax in the state.
To be valid, the state or local tax must be fairly abortion to activities actually taking place in the taxing state. AND
To be valid, the state or local tax must be fairly related to services provided by the taxing state.
121
The constitution generally only applies to government action. Congress, however, may apply the constitution to private action via statute in certain situations:
- Congress may prohibit private race discrimination under section 2 of the 13th amendment.
- Congress may also apply the constitutional norm of equality to private conduct under the commerce clause, i.e., to prohibit private racial discrimination that has a substantial effect on interstate commerce.
- Congress may not regulate private conduct under section 5 of the 14th amendment. This section only applies to state action.
122
What is the public function exception to the state action requirement?
The constitution applies to private entities when they act in a way that you would expect a government to do, i.e., the private entity is performing a task that has been traditionally and exclusively performed by the government, e.g., administering elections, managing public parks, company towns, etc.
123
What is the entanglement exception to the state action requirement
The entanglement exception says that an entity must comply with the constitution if the government has commanded, authorize, encourage, or facilitated the unconstitutional conduct. Either the government must stop commanding, authorizing, encouraging, or facilitating the unconstitutional contact, or the private entity must cease the unconstitutional conduct.
124
Where has the supreme court found that the government has commanded, authorize, encourage, or facilitated the unconstitutional conduct?
Courts enforcing racially restrictive covenants, government leasing space to a private entity that racially discriminates, government providing free textbooks to schools that racially discriminate, private entity regulating interscholastic sports within a state.
125
Where has the Supreme Court found that the government has not commanded, authorize, encourage, or facilitated the unconstitutional conduct?
Government subsidy, NCAA order suspension of basketball coach at State University, private club with state liquor license racially discriminates, accreditation, regulation and partial funding of university.
126
Does the bill of rights apply to the states?
The Bill of Rights only applies directly to the federal government. The Bill of Rights is, however, applicable to state and local governments through incorporation of the due process clause of the 14th amendment.
127
Which of the following rights in the Bill of Rights has not been incorporated against the states?
The right to not have a soldier quartered in your house. The right to grand jury indictment in criminal cases. The right to a jury trial and civil cases.
128
Due process and equal protection levels of scrutiny
Rational basis test, intermediate scrutiny, strict scrutiny
129
Burden of proof with rational basis test
Burden of proof is on the challenger. The Challenger must either show that there is no conceivable legitimate purpose or that the law is not rationally related to that purpose.
130
Burden of proof with intermediate scrutiny
The burden of proof is on the government. The government must show that the law is substantially related to an important government interest.
131
Burden of proof with strict scrutiny
The burden of proof is on the government. The government must show that the law is narrowly tailored to serve a compelling government interest.
132
Under the due process clause, the government cannot
Deprive a person of life, liberty, or property without due process
133
What two functions does the due process clause serve
It imposes certain procedural requirements on the government before it may deprive a person of life, liberty, or property.
It limits the substantive power of the government to regulate certain areas of life.
134
The government must provide what kind of process before it may deprive a person of life, liberty, or property.
Fair
135
Can there be a due process violation if the injury was caused by the government’s negligence?
There is no procedural due process violation if the injury was caused by the governments negligence. The action by the government must be intentional or at the very least reckless.
136
For there to be a procedural due process violation in an emergency situation, the government’s conduct must
Shock the conscience. Basically, there will not be liability in emergency situations unless the government acted with the intent of causing the harm to the victim.
137
Procedural due process and adult institutionalization
Requires notice and hearing before institutionalization, unless it is an emergency.
138
Procedural due process and child institutionalization
Requires a screening by a neutral factfinder
139
Is damage to a person’s reputation by itself a deprivation of liberty
No. Damage to a persons reputation by itself is not a deprivation of liberty.
140
Writ of habeas corpus
A habeas corpus petition is a civil suit for the release of a prisoner who has been unlawfully imprisoned. A writ of habeas corpus brings the prisoner before the court and requires that the custodian present proof of authority so the court can determine whether or not the custodian has lawful authority to detain the prisoner.
141
For an individual to succeed in an action for the loss of property, what is required
Loss of an entitlement.
142
Entitlement?
A reasonable expectation of continued receipt of a benefit, e.g., a public employee has a property interest in her employment if the employee can be fired only for cause.
143
How do courts determine if a prior evidentiary hearing is required and if it is, the extent of the procedural requirements of such a hearing to comply with procedural due process?
The court will apply a balancing test and consider the private interest of the individual affected by official action, risk of erroneous deprivation, the probable value of additional or substitute procedural safeguards, and the government’s interests.
144
What is required for termination of welfare benefits to comply with procedural due process
Pre-termination notice and hearing
145
What is required for termination of Social Security or disability benefits to comply with procedural due process
Post termination notice and hearing
146
What is required for pre-judgment attachment for government seizure of assets to comply with procedural due process
Seizure must be preceded by notice and hearing except an exigent circumstances. The government mat seize property used in illegal activity even if the actual owner of the property is innocent.
147
What is required under the due process clause when an American citizen is detained as a terrorist or enemy combatant?
Due process
148
What is required for permanent termination of parental custody to comply with procedural due process?
Notice and hearing
149
What is required for punitive damages to comply with procedural due process
Instructions to jury and judicial review. Grossly excessive punitive damages are unconstitutional.
150
What is required for discipline by public school to comply with procedural due process
Notice of charge and opportunity to explain. Corporal punishment does not require due process.
151
What is a bill of attainder
A bill of attainder is a legislative act that inflict punishment unnamed individuals or on easily identifiable members of a group.
152
Our bills of attainder constitutional
No. The United States Constitution forbid both the federal and state governments from enacting bills of attainder. Punishment here is not limited to criminal penalties.
153
Substantive due process protects
Economic liberties and fundamental rights
154
Substantive due process is violated if the government contact is not pass what test
Rational basis test
155
What is the contracts clause
State or local governments may not impair existing contracts.
156
State or local legislation that substantially impairs an existing private contract is invalid unless it
- Serves an important and legitimate public interest and
| - Is a reasonably and narrowly tailored means of promoting that interest
157
State or local government interference with Government contracts must meet what standard
A strict scrutiny standard
158
The ex-post Facto clause applies to what type of case
Criminal
159
May a law retroactively punish actions that were lawful when committed or retroactively increase the punishment for crime?
No. Retroactive criminal liability is unconstitutional.
160
When is Retroactive civil liability, i.e., action already committed but final judgment not rendered, permitted
Retroactive civil liability is permitted if the rational basis standard is satisfied. Congress may change federal civil statutes and may direct federal courts to apply those changes in all actions in which a final judgment has not been rendered.
161
The takings clause of 5th and 14th amendments?
The government may take private property for public use if it provides just compensation. A taking may be either possessory or regulatory.
162
What is a possessory taking?
A possessory taking occurs when the government confiscates or physically occupies a person’s property. Such processory action is always considered a taking.
163
What is a regulatory taking?
The government regulation that eliminates the investment-backed expectation and economic value of an individual’s property is a taking within the meaning of the fifth/14th amendment for which the government must pay just compensation, regardless of the reason for the regulation. A court must balance the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment backed expectations, and the character of the governmental action.
164
Is a decrease in value sufficient to find a regulatory taking?
A mere decrease in value is not sufficient to find a regulatory taking.
165
Government restrictions on development must be justified by what or there will be a taking
Government restrictions on development must be justified by a benefit that is roughly proportional to the burden imposed or there will be a taking. If the benefit is proportional to the burden, then there is no regulatory taking. If the burden is excessive in relation to the benefit, then there is a regulatory taking.
166
May a property owner bring a takings challenge to regulations even if those regulations existed when the property was acquired?
Yes. There is no requirement that the regulation be enacted subsequent to acquisition.
167
Is temporary denial of use of property a taking?
It is not a taking if the government’s action is reasonable.
168
For either a possessory or regulatory taking to be held constitutional it must be for what kind of use
Public. The public use requirement is satisfied if the government acts under a reasonable belief that the taking will benefit the public. Very broad definition of public use.
169
How is just compensation measured under the takings clause
Just compensation is the fair market value measured in terms of loss to owner.
170
What happens if there was an invalid taking?
Terminate the government regulation and pay the owner for damages that accrued while the invalid regulation was in affect.
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When is equal protection invoked
Equal protection is invoked when a law treats one person or class of persons differently from others
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What are the constitutional provisions of equal protection?
The due process clause of the fifth amendment applies equal protection to the federal government, and the equal protection clause of the 14th amendment applies equal protection to the states.
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For race and national origin classifications what level of scrutiny
Strict scrutiny
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What must facially neutral laws have for an equal protection claim based on race and national origin classification?
Facially neutral laws must have both discriminatory impact and discriminatory intent.
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Are racial classifications that benefit minorities permitted to remedy past discrimination?
The government must prove the means chosen are necessary to achieve a compelling government interest. The compelling government interest can be to remedy clearly proven past discrimination, diversified student body, etc.
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What do you numerical set-asides for minorities require
Numerical set-asides require clear proof of past discrimination
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Is unintentional segregation in public school systems constitutional?
Only intentional segregation is unconstitutional.
| If established in a racially neutral manner, racial imbalance in public schools is not unconstitutional.
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The colleges and universities use race as one factor among many to enhance diversity?
Colleges and universities may use race as one factor among many to enhance diversity because they have a compelling interest in having a diverse student body. Quotas or set-asides or points awarded to applicants solely on the basis of race are unconstitutional. Note, in 2014, the Supreme Court held that as states voters are free to outlaw the use of race as a factor in college admissions.
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In both civil and criminal cases, the discriminatory use of peremptory challenges on the basis of race by either the defense or the prosecution violates what?
Equal protection and is unconstitutional.
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Rule on racial gerrymandering
Race cannot be a predominant factor in drawing boundaries of a voting district unless the district plan meets strict scrutiny.
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What does alienage mean
Not having US citizenship
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Generally strict scrutiny is used for alienage classification. However, in some situations, discrimination against non-citizens is reviewed under rational basis. What are these situations?
- Federal discrimination against aliens.
- Alienage classifications that restrict the right to participate in functions that are central to self government and the democratic process, e.g. voting, running for office, serving on a jury, becoming a police officer, being a teacher.
- Undocumented aliens are not considered a suspect class so state laws that discriminate against this group are reviewed under rational basis. However, the supreme court applied intermediate scrutiny and held that undocumented alien children cannot be denied free public school education.
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Level of scrutiny for gender classifications
Intermediate scrutiny, i.e. the law must be substantially related to an important government purpose. AND
The Supreme Court also requires an exceedingly persuasive justification for any gender base classification that serves important governmental objectives and which does not rely upon outdated or over broad generalizations and stereotypes about differences between men and women.
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In certain cases calmer estate may treatment and women differently consistent with the equal protection guarantee and provide separate facilities for each gender. In such cases, the state must bear the burden of
Demonstrating the exceedingly persuasive justification for the separate treatment and demonstrating that the separate facilities are substantially equivalent.
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Classifications intended to benefit women are viewed under what type of scrutiny
Intermediate scrutiny
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Are gender classifications that benefit women on the basis of role stereotypes constitutional
No. Gender classifications that benefit women on the basis of role stereotypes are unconstitutional.
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Are gender classifications designed to remedy past discrimination constitutional?
Yes. Gender classifications designed to remedy past discrimination are generally valid.
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Standard of review for legitimacy classification
Intermediate scrutiny. A law that discriminates against children conceived out of wedlock must be substantially related to an important government purpose.
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Religion classification Standard of review
No cases, but it is assumed that discrimination based on religion would be reviewed under strict scrutiny.
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Age discrimination Standard of review
Rational basis review
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Disability discrimination Standard of review
Rational basis review
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Wealth discrimination Standard of review
Rational basis review
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Economic regulations Standard of review
Rational basis review
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Sexual orientation discrimination Standard of review
Rational basis review
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Convicts Standard of review
Rational basis review. The Supreme Court has not held that convicts are suspect class.
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Fundamental rights standard of review
Strict scrutiny
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Fundamental right denied. Substantive due process or equal protection violation?
If the fundamental right is denied to everyone, it is a substantive due process problem. If a fundamental right is denied to some people but not others, it is an equal protection problem.
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Right to privacy standard of review
Privacy is a fundamental right. The right to privacy is violated unless the government conduct passes the strict scrutiny standard.
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Obergefell v. Hodges
Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and therefore that, under the due process and equal protection clause of the 14th amendment, states may not deprive same-sex couples of that right and that liberty.
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Privacy fundamental rights
Right to marry, right to procreate, right to purchase and use contraceptives, right to private intimate non-commercial sexual conduct, right to read obscene material in one’s home except for child pornography, right to custody of children (except irrebutable presumption that husband is father), right to control upbringing of one’s children, right to keep family, including extended, together.
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Is there a right to physician assisted suicide?
The right to privacy does not include the right to physician assisted suicide.
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For the following fundamental rights the test to be applied is unknown but the government may not prohibit the activity
- The right to engage in consensual homosexual activity is a fundamental rate. Test unknown but a state may not criminally punish consensual homosexual activity in the privacy of one’s own home.
- As far as the right to refuse medical treatment, the Supreme Court did not set forth a test but held the following: A competent person has a liberty interest under the due process clause to refuse unwanted medical treatment, even life-saving medical care. A state may require that evidence of an incompetent’s wishes as to the withdrawal of life-sustaining treatment be provided by clear and convincing evidence. A state is allowed to prevent family members from making the decision to terminate medical treatment. The right to terminate medical treatment belongs to the individual receiving the medical treatment.
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Test for abortion prior to viability
Prior to viability, states may not prohibit abortions, but can otherwise regulate abortion so long as the regulation does not create an undue burden on one’s ability to get an abortion.
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Is a 24 hour waiting period for an abortion an undue burden
The Supreme Court has held that a short waiting period does not constitute an undue burden on the right to an abortion
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Is it an undue burden to require that abortions be performed only by licensed physician
It is not an undue burden to require that abortions be performed only by license physicians.
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Is a prohibition of partial birth abortion an undue burden?
No
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Is it an undue burden to require the doctor to provide the patient with the relevant information needed for informed consent to the procedure
It is not an undue burden to require the doctor to provide the patient with the relevant information needed for informed consent to the procedure.
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Is requiring spousal consent or notification an undue burden
Yes
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Test for abortion after viability
After viability, states may prohibit abortions unless the procedure is necessary to protect the woman’s health or life.
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Does the government have a duty to subsidize abortions or to provide facilities for abortion?
The government has no duty to subsidize abortions or to provide facilities for abortion.
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Parental notification for abortion?
The Supreme Court has held that parental notification requirements violate a minor’s right to an abortion unless there is a satisfactory judicial bypass procedure for teens who do not wish to consult their parents. Such a procedure must allow a court to approve an abortion for a minor without parental notification if the court finds the minor is sufficiently mature and informed to make an independent decision to obtain an abortion or the abortion would be in the minor’s best interest.
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Right to bear arms?
The Supreme Court has held that the second amendment safeguards the right of individuals to bear arms even apart from militias. The Supreme Court, however, has neither clarified what level of judicial scrutiny applies nor declared this right to be an absolute one subject to no limitations.
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Right to travel
A law that prevents an individual from moving into a state must satisfy strict scrutiny.
A law that establishes durational residency requirements must satisfy strict scrutiny.
The Supreme Court has twice upheld 50 day state residency requirements for voting on the grounds that such a period is needed to allow a state to maintain an accurate voting list.
Restrictions on foreign travel are only required to satisfy rational basis review. The supreme court has held that there is not a fundamental right to international travel.
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Is education a fundamental right?
No
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Is there a fundamental right to medical services?
No
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Is there a fundamental right to practice a trade or profession?
No
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Is there a fundamental right to housing?
No
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Are property ownership requirements for the right to vote or hold office constitutional?
Except for special purpose government units like water storage districts, property ownership requirements for the right to vote or hold office are unconstitutional.
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What are constitutional requirements to vote
Residency, age, citizenship, felon status
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Constitutional requirements for establishing voting districts
A state must use almost exact mathematical equality when apportioning congressional districts within the state.
Congress’s method for apportioning representatives among the states does not have to meet almost exact mathematical equality.
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Are at-large elections constitutional
At large elections are constitutional unless there is a discriminatory purpose.
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What is an at large election?
An at-large election is one in which all of the voters vote for all of the office holders. And such at large elections, there are no electoral districts to violate the one person, one vote principal.
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Does counting uncounted votes without pre-existing standards in a presidential election violate equal protection
Counting uncounted votes without pre-existing standards in a presidential election violates equal protection.
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Freedom of speech checklist
First ask: Is the type of speech protected? If not, then just apply the standard for that type of speech. If yes, then ask: Is the restriction content based? If yes, then apply strict scrutiny. If no, then ask: Where is the speech taking place?
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First amendment
Congress shall make no law… Abridging the freedom of speech.
| Made applicable to states and local governments through the 14th amendment.
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Unprotected speech
- Speech by government officials
- Speech inciting imminent lawless action
- Fighting words
- Defamation or libel
- Obscene speech
- Commercial speech
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The first amendment does not protect speech by government officials…
Made on the job and in the scope of their duties.
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Unprotected true threats?
A true threat is a threatening communication that can be prosecuted under the law. It is distinct from a threat that is made in jest. The Supreme Court has held that true threats are not protected under the first amendment based on three justifications: preventing fear, preventing the disruptions that follow from that fear, and diminishing the likelihood that the threatened violence will occur.
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Are fighting words unprotected speech
While fighting words are considered unprotected speech, all laws prohibiting fighting words are unconstitutionally vague and overbroad.
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Unprotected eminent lawless action speech
The government can punish speech if there is a substantial likelihood of imminent lawless action and that the speaker intended to cause the imminent lawless action. There must be advocacy of illegal conduct and not just an abstract expression out of ideas that advocacy calls for eminent lawbreaking.
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 Defamation and libel of public officials and public figures
Public officials or other public figures can recover only if the statement was false and the person who made the statement acted with actual malice (knowledge or reckless disregard). The plaintiff must show these two elements with clear and convincing evidence.
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Defamation and libel of private figures in matters of public concern
Private figures can recover only if the statement was false and the person who made the statement acted with negligence. If the plaintiff is a private figure but the matter is a public concern, and the plaintiff must show actual malice in order to recover punitive damages. The plaintiff must show these elements with clear and convincing evidence. 
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Defamation and libel of private figures in matters not of public concern
Private figures can recover only if the statement was false and the person who made the statement acted with negligence. If the plaintiff is a private figure and the matter is not a public concern, then malice is not required for punitive damages. The defendant bears the burden to prove the truth of the statement.
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Does the first amendment shield the press from liability arising under generally applicable laws not aimed at suppression of free-speech?
Generally applicable laws do not offend the first amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. Enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.
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Miller test for obscenity
Speech is considered obscene and not protected under the first amendment if it describes or depicts sexual conduct that appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, or scientific value.
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Adult bookstores in movie theaters and zoning ordinance
The government is permitted to use zoning ordinances to regulate the location of adult bookstores and adult movie theaters. The government has an important interest in preserving the character of its neighborhoods.
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Is child pornography unprotected
Yes. Child pornography does not have to be obscene to be prohibited. It must actually use children.
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Can a state regulate the private possession of obscene material?
No
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Is profane and indecent speech protected?
Profane and indecent speech is not considered obscene and is generally protected by the first amendment. Exceptions= Broadcast media and schools.
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Does the first amendment protect commercial speech?
If truthful, yes. Truthful commercial speech may only be regulated if the regulation meets intermediate scrutiny. Supreme court precedent establishes that the first amendment does not protect commercial speech that is false or misleading. As such, commercial speech that is false, deceptive, or proposes illegal activity may be prohibited.
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Standard of review for content-based regulation of protected expression
Strict scrutiny. For content-based restrictions to be valid, the restrictions must be narrowly tailored to achieve a compelling government interest.
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What are the types of content-based restrictions
Subject matter restrictions in which application of the law depends on the subject matter of the speech.
Viewpoint restrictions in which application of the law depends on the ideology of the message.
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What are contact neutral regulations
Contact neutral regulations are laws that apply to all speech regulating the time, place, or manner of the speech regardless of the speech’s content.
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The extent of permissible content neutral regulations depends on
The forum where the speech is taking place.
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What are public forums?
Public forums are government properties that the government is constitutionally required to make available for speech, e.g. sidewalks and parks.
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For content neutral regulations of protected expression in public forums to be held Constitutional, the regulation must:
Involve the shifting of speech from one time and place to another or to another manner.
Serve an important government interest (such as noise or traffic control).
Be narrowly tailored to that government interest.
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Is it constitutional for a government official to have discretion in setting the fee for public demonstration permits?
It is unconstitutional for a government official to have discretion in setting the fee for public demonstration permits.
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What is required for a content neutral regulation of protected expression in a limited public forum to be held constitutional?
The government may enact time, place, and manner restrictions on property that the government can close to speech but chooses to leave open to the public only if it meets the same standard as for public forums: Serve an important government interest, be narrowly tailored to that government interest, and leave open alternative channels of communication.
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What is required for a content neutral regulation of protected expression in a non-public forum to be held constitutional
The government can constitutionally regulate speech on government properties that the government constitutionally can and does close to speech so long as it Is rationally related to a legitimate government interest and is viewpoint neutral.
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What is a limited a.k.a. designated public forum
Designated public forums or public property is not historically available for speech but the government has opened for speech through practice or policy, e.g. public school facilities, space on city buses used for the posting of placards
251
What are examples of government properties that the government constitutionally can and does close to speech?
Military bases, areas outside of prison, advertising space on public buses, sidewalks on post office property, airports)
252
Is there a first amendment right to access private property for speech purposes?
No
253
Does the first amendment protect anonymous speech?
Yes
254
May Congress prohibit corporations from using their funds to pay for political advertising?
In 2010, the Supreme Court held that corporations may not be treated less favorably than individuals, i.e. as long as corporations act independently of the candidate, Congress may not prohibit corporations from using their funds to pay for political advertising
255
Can contributions to candidates be limited?
Contributions made by individuals or groups to individual candidates, political action committees, or to political parties may be limited in dollar amount. However, such limits cannot substantially interfere with the candidate’s or the political party’s ability to run a competitive campaign.
256
May independent expenditures by individuals, corporations, and candidates be limited
No.
257
Are contribution limits and expenditure limits constitutional for ballot initiatives?
Contribution limits and expenditure limits are unconstitutional for ballot initiatives
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What is expressive conduct?
Expressive conduct requires that the individual intended to communicate a message and that the audience was likely to understand the communication.
259
The government may regulate expressive conduct/symbolic speech yes
There is an important interest unrelated to suppression of the message and the regulation is narrowly tailored to further a substantial government interest.
260
Examples of constitutionally protected symbolic speech
Flagburning
| cross burning, unless there is evidence of an intent to threaten or intimidate
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Examples of constitutionally unprotected symbolic speech
Draft card burning, nude dancing
262
For licensing of speech to be held constitutional, there must be
Important reason for licensing, clear criteria leaving no discretion, and procedural safeguards.
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Court orders suppressing speech before it occurs my satisfy what standard of review
Strict scrutiny
264
Are gag orders on the press to prevent prejudicial pre-trial publicity constitutional?
Yes. All gag orders on the press to prevent prejudicial pre-trial publicity are unconstitutional.
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Standard of review for court orders suppressing speech before it occurs
Strict scrutiny
266
Can a person who violates a procedurally proper court order challenge the constitutionality of the court order later on?
Any person who violates a procedurally proper court order is barred from challenging its constitutionality later on. Procedurally proper court orders must be complied with until the order is overturned.
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When is a law unconstitutionally over broad
A law is unconstitutionally overbroad if it punishes speech that is constitutionally protected
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Vagueness
Due process requires a statute to be clear enough that a person of ordinary intelligence will be able to understand what the statue prohibits
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May the state impose liability for the accurate publication of information in the public record?
The state may not impose liability for the accurate publication of information in the public record. The government may, however, limit its own dissemination of information to the public.
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Can a publisher who obtains truthful information that is a matter of public concerns in a manner lawful in itself be punished if the information was obtained from a source who obtained the information unlawfully?
No. A publisher, e.g. the media, who obtains truthful information that is a matter of public concern in a manner lawful in itself cannot be punished even if the information was obtained from a source who obtained the information unlawfully
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Freedom of association
Freedom of association is protected by the First Amendment. The US Supreme Court has held that the freedom of association protected by the first amendment prohibits a state from inquiring about an individual’s associations in order to withhold a right or benefit because of the individual’s beliefs.
272
Standard of review for prohibition on group membership
Prohibition on group membership must satisfy strict scrutiny
273
What does punishment for group membership require
- Defendant actively affiliated with the group
- With knowledge of the groups illegal activities
- With specific intent to further those illegal activities
274
Standard of review for requiring disclosure of group association
Strict scrutiny is required because if people knew their association might be disclosed, they might not associate expressively in the first place.
275
Laws prohibiting a group from discriminating are valid unless
- The group is an intimate association OR
| - Discrimination is integral to the purpose of the group
276
May the government fire an employee because of the employees political views or affiliation?
The Supreme Court has held that the government may not fire an employee because of the employees political views or affiliations unless certain political views or affiliations are required for the effective performance of the employees job.
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For protection under the first amendment, must the religion be a recognized or generally accepted religion
It is not required that the religion be a recognized or generally excepted religion. The only requirement is that the individual who practices the religion has a genuine believe in that religion.
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When is the free exercise clause implicated
The free exercise clause is implicated when there is state action that restricts one’s religious beliefs or practices of a religion.
279
Laws that intentionally interfere with or burden the free exercise of religion or that are not generally applicable must satisfy what standard of review
Strict scrutiny
280
To establish a free exercise violation, the challenger must show
That the government action targeted the religious practice in question.
Unintentional neutral laws of general applicability cannot be challenged under the free exercise clause.
281
Overall purpose of the establishment clause
The overall purpose of the establishment clause is to maintain a separation between church and state
282
Establishment clause test
Government action must me a three-part test be valid:
1. The government regulation must have some other entirely non-religious purpose
2. The regulations primary effect cannot be too advanced or inhibit religion any government action that prefers one religion over others violates the establishment clause at the first in 14th amendment and, aside, is invalid.
3. The government action must not foster excessive government entanglement with religion.
283
They have school provide access to school facilities to religious groups
A school may provide access to school facilities to religious groups, so long as non-religious groups have equal access
284
Prayer in public schools constitutional?
The Supreme Court has held that officially sponsored prayers in public school violate the establishment clause of the First Amendment
285
Are displays of religious themes permissible
Displays a religious themes are permissible so long as the religious symbols are surrounded by primarily secular symbols
286
Do laws requiring merchants to be closed on Sundays violate the establishment clause
Laws requiring merchants to be closed on Sundays generally do not violate the establishment clause so long as the motive for a law is secular even if the original motive for the law was religious.
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Is government assistance parochial schools permitted?
Government assistance to parochial schools is permitted so long as the assistance is not used for religious instruction.
