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Constitutional law Flashcards

1
Q

Fed Courts limited juris will not hear cases involving

A
  1. no advisory opinions
  2. Abstention
  3. political question
  4. 11th amendment and sovereign immunity
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2
Q

What is needed for there to be a case or controversy

A
  1. ripeness = harm actually threatened
  2. mootness = must be real,live controversy at all stages, if issue has been resolved court will not hear it (unless capable of repetition)
  3. standing = plaintiff must have a concrete stake in the outcome at all stages of the litigation
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3
Q

Abstention

A

if action already going on in state court on unsettled question of state law, federal court will abstain so state can settle issue

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4
Q

11th amendment and sovereign immunity

A

generally cannot sue state in federal court for damages - without state’s permission
exception: actions against state officers and removal of immunity under 14th amendment

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5
Q

Congress’s Power

A
  1. necessary and proper clause
  2. taxing power
  3. spending power
  4. commerce power
  5. property power
  6. miscellaneous other powers
  7. delegation
  8. speech or debate clause
  9. legislative veto
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6
Q

Congress necessary and proper clause

A

congress has power to make laws necessary and proper for executing any power granted to any branch of federal government

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7
Q

Congress taxing power

A

if revenue raising, generally valid

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8
Q

Congress spending power

A

spending may be for any public purpose; congress may regulate beyond enumerated powers by attaching strings to a grant as long as the strings are:

  1. clearly stated
  2. related to the purpose of the grant
  3. no unduly coercive
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9
Q

Congress commerce power

A

congress may regulate:

  1. channels of interstate commerce = roads, railways, waterways, phone
  2. instruments o interstate commerce = trucks, trains, planes
  3. activities having a substantial economic effect on interstate commerce
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10
Q

Congress property power

A

includes power of eminent domain, to dispose of federal property, and to make rules/laws regulating federal lands and indian reservations

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11
Q

Congress misc other powers

A

war, investigatory, bankruptcy, postal citizenship, admiralty, coin money, fix weights and measures, and grant patent and copyrights

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12
Q

Congress delegation

A

congress may delegate its power to other branches

-intelligible standard requirement for delegation (almost anything suffices)

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13
Q

Congress speech of debate clause

A

immunity for speech made within congress

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14
Q

Congress legislative veto

A

congress cannot make a law reserving to congress the right to overturn discretionary executive action without passing a new law and presenting it to the president for approval

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15
Q

Executive Power

A
  1. domestic powers of the president
  2. power over external affairs
  3. executive privilege/ immunity
  4. impeachment
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16
Q

domestic powers of president

A
  1. appointment and removal of officers and supreme justices with advice and consent of senate
  2. pardon federal crimes only
  3. veto power = 10 days to veto - if fails to act in 10 days and:
    -congress in session = approval
    -congress out = pocket veto
    -no line item veto
  4. power as chief executive/executive orders
    -if express or implied auth from congress = likely valid
    -if congress silent = action valid if it does not impinge
    on powers of another branch
    -if against congress’s will = action likely invalid
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17
Q

Executive power over external affairs

A
  1. president may commit troops but power to “declare war” belongs to congress
  2. treaty power = sign treaties with approval of 2/3 senate
  3. executive agreements = enforceable if not in conflict with federal law, treaties, or constitution
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18
Q

executive privilege/immunity

A
  1. privilege extends to documents and conversations but must yield if court decides information needed in criminal case
  2. immunity:
    • president immune from suits for civil damages for actions taken as president
    • immunity extends to aides exercising discretionary auth of President
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19
Q

Impeachment

A

president, vice president, and all US civil officers may be impeached for treason, brivery, high crimes, and misdemeanors by majority vote of the house, are tried by senate, and conviction requires 2/3 senate vote

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20
Q

Federal v. State Power

A
  1. supremacy clause
  2. suits
  3. federal taxation/ regulation of states -10th amend concerns
  4. state taxation/ regulation of federal gov
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21
Q

supremacy clause

A
  1. most governmental power shared between state and fed gov
  2. federal la supreme and conflicting state law is invalid
  3. dormant commerce clause
  4. 21st amendment - liquor regulation - states can regulate sale of liquor, but cannot favor local businesses
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22
Q

When conflict between federal and state law

A

federal law supreme

  1. actual conflict = state law invalid
  2. interference with federal objective = state law invalid
  3. preemption - no room for state legislation - congress controls entire field
    • express preemption = narrowly construed
    • field (implied) preemption = if federal law comprehensive or a federal agency oversees area, preemption may be found
    • presumption that historic state police powers not intended to be preempted unless that is clear and manifest purpose congress
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23
Q

Dormant commerce clause (negative implications of commerce clause)

A
  1. Congress may delegate commerce power to states
  2. absent delegation, states may not intentionally discriminate against interstate commerce
  3. nondiscriminatory state law - may not be unduly burdensome
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24
Q

exceptions to requirement that states may not intentionally discriminate against interstate commerce under dormant commerce clause

A
  1. necessary to achieve an important state interest that is no reasonable alternatives available
  2. state acting as a market participant
    • might still violate the privileges and immunities clause
    • no downstream restrictions - state cannot control what happens to goods after state sells them
  3. traditional government function
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25
Q

nondiscriminatory state tax affecting interstate commerce requires

A
  1. substantial nexus between object of tax and taxing state
  2. fair apportionment according to rational formula
  3. fair relationship to services or benefits provided by state
26
Q

federal v. state power suits

A
  1. the US may sue states without their consent
  2. states cannot sue the US without its consent
  3. state can sue state in federal court; supreme court has exclusive jurisdiction
27
Q

federal taxation/ regulation of states - 10th amendment concerns

A
  1. tax/ regulation applying to both private and state entities = valid
  2. tax/regulation of states as states = generally invalid
28
Q

state tax regulation/ regulation of federal government

A
  1. state cannot directly tax federal government
  2. state cannot directly regulate federal government
  3. state may tax federal employee and contractor salaries (indirect tax)
29
Q

Individual Rights

A
  1. state action limitation
  2. article IV privileges and immunities
  3. 14th amendment privileges or immunities clause
  4. prohibitions against retroactive legislation
  5. procedural due process
  6. takings
  7. substantive due process
  8. equal protection
  9. abortion
  10. other privacy rights
  11. voting
  12. right to travel interstate
  13. freedom of speech
  14. freedom of association and belief
  15. freedom of religion
30
Q

individual rights - state action limitation

A
  1. the constitution limits actions of government, so there must be state action in order to find action unconstitutional
  2. private action can sometimes be attributed to government:
    • traditional and exclusive gov. function ex: town election
    • significant state involvement:
      a. official encouragement or use of judiciary machinery
      b. entwinement of state and private actors
      c. but mere regulation, provision of public services, or licensing not enough
31
Q

individual rights - Article IV Privileges and Immunities

A
  1. prohibits states from discriminating against citizens of other states with respect to fundamental rights (does not include corporations or aliens)
  2. mainly used to prevent substantially unequal treatment regarding commercial activities
  3. substantial justification exception if nonresidents are part of problem and there are no less restrictive means to solve problem
32
Q

individual rights - 14th amendment privileges or immunities clause

A
  1. prohibits states from denying their own citizens rights of national citizenships (does not include corporations)
33
Q

individual rights - prohibitions against retroactive legislation

A
  1. contracts clause - applies only to states
  2. ex post facto laws - prohibited
  3. bills of attainder - prohibits laws inflicting punishment without a trial on people by name or past conduct
34
Q

prohibition against retroactive legislation - contract clause

A

APPLIES ONLY TO STATES

  1. prevents only substantial impairment of a party’s rights under an existing contract
  2. exception - law valid if:
    • serves an important interest and
    • narrowly tailored to promote that interest
  3. public contracts subject to stricter scrutiny
    • state cannot be obligated to refrain from exercising its police power
    • law should not broadly repudiate governmental contractual obligations
35
Q

prohibition against retroactive legislation - ex post facto laws

A

PROHIBITED

  1. makes criminal an act that was innocent when done
  2. prescribes greater punishment than what was prescribed when act was committed
  3. reduces evidence require to convict
  4. specifically applies only to legislation but due process prohibits similar changes by the courts
36
Q

individual rights - Procedural due process

A
  1. 5th amendment fed gov and 14th amendment states
  2. requires fair process/procedure when gov acts intentionally to deprive a person individually of life, liberty or property
    • both actual bias and serious risk of actual bias unconst
    • liberty includes losses of significant freedom of action
    • property includes legitimate claims/entitlements to gov benefits
  3. balancing test for determining fair process in terms of timing court weighs:
    • importance of individual right
    • value of specific procedural safeguard involved
    • governmental interest in fiscal and administrative efficiency
37
Q

individual rights - takings

A
  1. if gov takes land for public purpose it must provide just compensation
  2. public purpose liberally construed
  3. actual physical appropriation almost always a taking, even if property taken is small. exception: emergencies
  4. use restrictions
    • denial of all economic value = taking
    • decrease in economic value = generally not a taking if economically viable use remains
    • dedications - cannot condition building permits on forced dedication unless:
      1. gov can show legitimate interest and
      2. adverse impact of development roughly proportional to owners loss
  5. Just compensation = fair market value of property taken at time of taking
38
Q

individual rights - substantive due process

A
  1. prohibition against unreasonable laws
  2. reasonableness test depends on interest involved
    • fundamental right = strict scrutiny = compelling gov interest
    • all other interest = rational basis = legitimate government interest
  3. requires laws to give fair notice of conduct that is forbidden or required
39
Q

individual rights - equal protection

A
  1. 14th amendment prohibition against unreasonable discrimination by states
  2. test for reasonableness depends on criteria used to classify (suspect or quasi suspect class) and nature of right (fundamental right)
40
Q

equal protection - discriminatory intent by government

A
  1. law discriminatory on its face
  2. discriminatory in application
  3. discriminatory motive
  4. if facially neutral, no discriminatory application, and no discriminatory motive, then rational basis test applies
41
Q

equal protection - suspect classification or fundamental right = strict scrutiny

A
  1. government must prove action is necessary to achieve a compelling government interest
  2. affirmative action (favoring minorities) invalid unless: seeking to remedy past discrimination within juris
  3. race can be a factor considered in admission of students in institutions of higher education to achieve a diverse student body: cannot be a special/weighty factor
  4. alienage = state/local laws on alienage are suspect, except alienage can be considered for state employment positions involving the self-government process (including police officers and primary and secondary school teachers)
42
Q

equal protection - quasi suspect classification = intermediate scrutiny

A

(sex and legitimacy)

  1. government must show discrimination is substantially related to an import government interest
  2. sex discrimination - exceedingly persuasive justification required- interest must be genuine and not hypothesized
43
Q

individual rights - abortion

A
  1. compelling interest = mother’s right to privacy vs. fetus’s interest in becoming a child
  2. pre viability = no undue burdens on right to obtain an abortion
  3. post viability = may prohibit abortion except when woman’s health threatened
  4. no right to government funding of abortion services
44
Q

individual rights - other privacy rights

A

include marriage, use of contraceptives, possession of obscene reading material in the home, right to live with extended family, right to educate and raise children

  1. limitation generally subject to strict scrutiny or at least intermediate scrutiny but language in cases not consistent
  2. intimate private, non commercial sexual contact between fully consenting adults - no legitimate interest in regulation
45
Q

individual rights - voting rights

A
  1. short residency requirement - valid ex: 30 days
  2. one person, one vote
    • congressional elections = almost exact mathematical equality required (a few percentage points may be fatal)
    • state and local elections = variance not unjustifiably large (16% variance upheld)
  3. fees = cannot preclude indigent candidates
46
Q

individual rights - right to travel interstate

A
  1. duration residency requirements for dispensing benefits ordinarily subject to strict scrutiny (30 day probably ok, 1 year not)
  2. distinctions between old and new residents = invalid
47
Q

individual rights - freedom of speech

A
  1. first amendment limits government regulation of private speech
  2. first amendment inapplicable to government speech
  3. regulation of speech based on content - generally prohibited
  4. overbreadth and vagueness
  5. scope of speech
  6. time, place, and manner regulation
  7. unprotected speech
  8. commercial speech
  9. prior restraints
48
Q

freedom of speech -first amendment inapplicable to government speech

A
  1. permanent monuments on government property a form of government speech
  2. government funding of private speech - generally must be viewpoint neutral
    • exception: government funding of the arts
49
Q

freedom of speech - regulation content based

A

GENERALLY PROHIBITED

  1. exceptions: unprotected categories
  2. speech of government employees
    • official duties = government may punish public employee for unwanted speech made as part of employee’s official duties
    • private speech of government employee
      a. matter of public concern = balance employees right as citizen to comment against gov’s interest as employer in efficient performance of public service
      b. not a matter of public concern = employer has broad discretion to punish employee’s disruptive speech
50
Q

freedom of speech - overbreadth and vagueness

A
  1. prohibition against substantially more speech than necessary voidable as to affected person for overbreadth
  2. prohibition including a substantial amount of protected speech compared to its legitimate sweep - void as to everyone
  3. regulation failing to give reasonable notice of what is prohibited has chilling effect on speech and violates due process
  4. official cannot have unfettered discretion over speech issues.
51
Q

freedom of speech - scope of speech

A

includes freedom to refrain from speech

  1. mandatory financial support of government speech - no 1st amendment concern
  2. mandatory financial support of private speech - protected
  3. speech includes symbolic conduct
52
Q

freedom of speech - time/place/manner regulation

A
  1. public forum regulation will avoid strict scrutiny and be upheld if: (ex:sidewalk and parks)
    • content neutral
    • narrowly tailored to serve an important gov interest
    • leaves open alternative channels of communication
  2. limited public forum and nonpublic forum regulation valid if:
    • viewpoint neutral
    • reasonably related to legitimate gov purpose
53
Q

freedom of speech - unprotected speech

A

not protected by 1st amendment if:

  1. clear and present danger of imminent lawless action
  2. fighting words (includes true threats)
  3. obscenity.
  4. defamation
54
Q

unprotected speech - obscenity

A
  1. Test:
    -appeals to the prurient interest in sec
    -portrays sec in a patently offensive way
    -does not have serious literary, political, or scientific
    value judges from a national standard
  2. standard for minors may be different
  3. can prohibit pictures of minors engaging in sex that would not be obscene if engaged in by adults
  4. zoning ordinances may limit the location of adult entertainment establishments if designed to reduce the secondary effects of such business (ex: rise in crime or reduction of prop value)
55
Q

unprotected speech - defamation

A
  1. public official or figure = plaintiff must prove actual malice (knowledge of falsity or reckless disregard for the truth)
  2. private individual suing on matter of public concern - ust prove at least negligence
  3. privacy torts = media defendant cannot be sued for publishing a true fact about a public record lawfully obtained
56
Q

freedom of speech - commercial speech

A
  1. if speech about unlawful activity or untrue or misleading speech = unprotected
  2. speech regarding lawful activity and not false or misleading = regulation valid if it:
    • serves substantial gov interest
    • directly advances that interest
    • is narrowly tailored to serve that interest
  3. complete bans usually invalid
57
Q

freedom of speech - prior restraints

A
  1. invalid unless justified by a special societal harm or pursuant to contract
  2. procedural safeguards
    -standards must be narrowly drawn, reasonable, and
    definite
    -injunction must be sought promptly
    -there must be a prompt and final determination of
    validity of restraint
  3. broadcast media may be more closely regulated than press; cable tv between the two, internet regulation subject to strict scrutiny if content-based
58
Q

individual rights - freedom of association and belief

A
  1. electoral process
  2. gov employees may be sanctioned for speech undertaken as part of official duties - right to comment on matter of public concern vs. gov interest in efficient and orderly workplace
  3. loyalty oaths for federal employees and public officials permissible if not overbroad
  4. disclosure of associations for government benefits/employment - permissible if relevant to position
  5. school sponsorship of extracurricular clubs - can be content based if viewpoint neutral and reasonably related to a legitimate gov interest
59
Q

individual rights - freedom of religion

A
  1. free exercise clause

2. establishment clause

60
Q

freedom of religion - free exercise clause

A
  1. no punishment for beliefs - total freedom to believe as desired
  2. conduct cannot be punished solely because of religious reasons
  3. general conduct regulation that incidentally burdens religious practice = generally valid
  4. religious exemptions for religious belief generally not required except:
    • amish exempt from mandatory secondary education
    • conscientious objectors who refuse munitions work from unemployment compensation laws requiring applicants to accept any job
61
Q

freedom of religion - Establishment clause

A

gov action/law respecting the establishment of religion valid if:

  1. has secular purpose
  2. has a primary effect that neither advances nor prohibits religion
  3. does not cause excessive entanglement between gov and religion
    • prayer in public school prohibited
    • invocation prayer at legislative sessions and town hall meetings generally valid
    • religious symbols in christmas displays valid if accompanied by non religious symbols
    • displays of religious symbols on public property invalid if shown to have a predominantly religious purpose
62
Q

standards of review

A
  1. strict scrutiny = compelling state purpose and narrowly tailored
  2. intermediate scrutiny = important gov interest and substantially related
  3. rational basis = rational and legitimate

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