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Leansheets Bar Prep > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

Federal Judicial Power:
-Justicability (A SPERM)

A

-Abstention
-Standing
-Political Question
-11th Amendment/Sovereign Immunity
-Ripeness
-Mootness

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2
Q

Abstention

A

fed can’t enjoin a pending state court proceeding

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3
Q

Standing

A

requirements: (Pickled Doughnuts Cause Reflux)
-Personal & Direct Inquiry; Causation; Redressibility
-no 3rd party standing EXCEPT close relationship;
-injured 3rd party unlikely to assert his own rights;
-associational standing: individuals have standing; germane to organization’s purpose; neither claim nor relief requires the participation of individuals

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4
Q

Political Question

A

will not adjudicate challenges to Amendments; foreign policy; repub form of government; impeachment; partisan gerrymandering

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5
Q

11th Amendment / Sovereign Immunity

A

states can’t be sued in federal court UNLESS Federal government sues; Express waiver; or Congress clearly removes immunity; suits against state official for enforcing unconstitutional statute; or state v. state

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6
Q

Ripeness

A

some violation of law or when nothing to be gained with actual violation

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7
Q

Mootness

A

live controversy
-EXCEPT: wrongs capable of repetition but evading review; voluntary cessation; or class actions

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8
Q

Federal Legislative Power:
-police power

A

none except MILD: Military; Indian reservations; Land (fed); and DC

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9
Q

general welfare

A

may only tax and spend

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10
Q

commerce power:

A

(1) channels of interstate commerce;
(2) instrumentalities of IC;
(3) substantial effect on IC (cumulative impact for economic activity only)

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11
Q

limitation

A

-10th Amendment: can’t compel a state to regulate or act, but may induce with strings on grants if expressly stated & related to purpose
-14th Amendment: Congress can’t create new or expand existing rights. Only prevent or remedy violations of existing rights if proper/congruent to violation

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12
Q

Federal Executive Power:
-treaties

A

-must be ratified by the Senate but no Senate approval required to void
-Conflicts: State law is invalid
-federal law: last adopted controls
-US Constitution (“Q”): the treaty is invalid

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13
Q

executive agreements

A

-No Senate approval needed
-Conflicts: State law is invalid.
-Ex Agreement never valid over conflicting fed law or Q

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14
Q

Appointments

A

President appoints ambassadors, federal judges, officers w/ Senate confirmation
-Congress may vest appointment authority, but may not give itself appointment power

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15
Q

removal

A

-unless limited by statute, the President can fire executive officers.
-Federal judges removed only if impeached
-Congress may limit if independence from President desirable AND may only limit removal with good cause

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16
Q

pardon

A

-only for federal crimes, not state
-Only criminal liability, not civil and not for impeachment

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17
Q

veto

A

-Within 10 days or pocket veto (if cong term changing during timeframe, President does nothing and bill dies)
-No line item veto
-2/3rds vote by House and Senate to override veto

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18
Q

impeachment

A

-removed for treason, bribery, and high crimes & misdemeanors.
-requires majority House vote and conviction in Senate by 2/3rds

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19
Q

Federalism:
-preemption

A

-Supremacy Clause: Constitution and laws/treaties made pursuant to it are supreme
-Express or Implied (with Federal/State law is mutually exclusive; state law impedes on federal objective; or Congress evidences clear intent to preempt)
*tax: can’t pay state tax out of fed treasury, but can tax private store on federal land.

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20
Q

dormant commerce clause

A

state or local law is unconstitutional if it places excessive burden on interstate commerce.

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21
Q

privileges and immunities clause of Article IV (4)

A

state may not deny citizens of other states of the privileges and immunities it accords its own citizens

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22
Q

Dormant CC & Privileges and Immunities Clause:

A

see the grid

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23
Q

Individual Liberties:
-state action

A

-required before the Constitutional provisions applied to private entities. Occurs if excessive state financial entanglement or where entity performs public function.
-entanglement: the government authorizes, encourages, or facilitates the activity.
*Bill of Rights: Selected incorporation to states under the 14th Amendment

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24
Q

Scrutiny:
-rational basis

A

rationally related to legitimate government interest

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25
Q

Intermediate scrutiny

A

the law must be substantially related to an important governmental interest. Must be narrowly tailored to achieve the objective.

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26
Q

strict scrutiny

A

the law must be necessary to achieve a compelling state interest. Least restrictive means necessary to achieve objective.

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27
Q

Due Process:
-procedural due process

A

Deprivation of life, liberty, or property (only if entitlement).
-if yes, balance: (1) the importance of the interest to the individual; (2) the ability of additional procedures to increase the accuracy of fact finding; (3) the government interest in fiscal and administrative efficiency

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28
Q

substantive due process:
-economic libterties

A

rational basis, limited protection

29
Q

contract clause

A

-state/local law effecting already existing contracts: intermediate scrutiny
(1) substantial impairment of contract relationship;
(2) whether the law is designed to promote a significant and legitimate public purpose and narrowly tailored to that purpose.

30
Q

takings: Amendment wording

A

5th Amendment provides that private property may not be taken for public use without just compensation

31
Q

takings: definition of a taking

A

(1) denial of all economic value or
(2) decrease of economic value that leaves no economically viable use for the property
-the Court considers: the social goals; diminnuation in value to the owner; and the owner’s reasonable expectations
*if the reduction in value is > than promotion of the public welfare = then there was a taking

32
Q

takings: what is a public use

A

-rationally related to a legitimate public purpose .
-does not need to actually be used by the public. Purpose is key

33
Q

takings: remedy

A

if not, government must pay for land or give land back + damages

34
Q

Fundamental Rights: Strict Scrutiny (CARP SPERM)

A

Contraception; Abortion; Right to privacy; Procreation; Speech
-parenting/custody; extended family together; Right under 1st Amendment; Marriage

35
Q

Abortion (undue burden)

A

-before viability: no prohibition, but regulation is ok so long as not an undue burden
-after viability: states may prohibit unless neccessary to protect teh life of the mother
-no partial birth abortion
-spousal notice/consent: unconstitutional
-parental notice/consent for minors is ok, but only if alt judicial approval process

36
Q

unknown scrutiny

A

refuce medical treatment adn homosexual activity

37
Q

no right

A

physician assisted suicide; practice trade; education

38
Q

Equal Protection:
-Constitutional Provisions

A

-State/Local: 14th Amendment
-Federal: 5th Amendment DP Clause

39
Q

Race/National Origin

A

-exists if: discriminatory on its face or discriminatory impact + intent
-scrutiny: strict scrutiny
-set asides/quotas: requires clear proof of past discrimination and congruent remedy
-college admissions: race can be a factor bc of compelling interest of diversity, but may not simply add pts or have a set aside. *not ok in public secondary schools
-apportionment: consideration ok but can’t be predominant

40
Q

gender discrimination

A

-exists if: discriminatory on its face or discriminatory impact + intent
-scrutiny: Intermediate
-Role Stereotypes: not ok
-remedial measures: ok if designed to address past discrimination and different opportunity

41
Q

alienage

A

-general: strict scrutiny. *but re: self government/demo process: rational basis (eg. voting, jury service, being police or elemen/sec teacher)
-Undoc Alien Children: Intermediate scrutiny (right to education)

42
Q

Non-marital children

A

-scrutiny: Intermediate

43
Q

Right to travel

A

-scrutiny: strict scrutiny; eg. preventing people from moving or residency requirements

44
Q

Right to Vote

A

scrutiny: strict scrutiny; at large election ok unless proof of discriminatory purpose

45
Q

political candidacy

A

fee can’t preclude indigent. Ballot access regulations must be reasonable and non discriminatory means of promoting important state interest

46
Q

all else

A

-rational basis (eg. age, disability, wealth/economics, sex orientation, education)

47
Q

First Amendment:
-restriction on speech: content based and content neutral

A

-content based: Strict Scrutiny. 2 types:
—subject matter: the law restricts the topic of speech;
—viewpoint: the law restricts specific ideologies
-content neutral: generally intermediate scrutiny

48
Q

First Amendment: prior restraints
-definition; preliminary injunction; licenses/permits

A

-prior restraint: a judicial order or admin system stopping speech before it occurs

49
Q

First Amendment: prior restraints:
preliminary injunction; (1), (2), (3)

A

-strict scrutiny; requirements:
(1) standard is narrowly drawn;
(2) the injunction promptly sought;
(3) prompt and final determination
-Person must act according to injunction until overturned.
-if in violation, no challenge

50
Q

First Amendment: prior restraints:
Licenses/Permits

A

-no discretion in licensing authority
-must contain procedural safeguards like prompt determination of requests for licenses and judicial review.

51
Q

First Amendment: Facially invalid regulations:
-vagueness; overbreadth; unfettered discretion

A

-vagueness: reasonable person can’t tell what is prohibited/allowed
-overbreadth: regulates substantially more speech than the Constitution allows
-unfettered discretion: too much power is given to the licensing authority
*Note: fighting words bans are unconstitutional as vague and overbroad

52
Q

First Amendment: Symbolic Speech:
-definition; test (1, 2); types

A

-conduct that communicates
-test: (1) important state interest independent of suppression of message; and (2) impact on community is no greater than necessary (Intermediate scrutiny)
-types: flag burning protected; draft card and nude dancing not protected; burning cross protected unless done with the intent to threaten; contribution limits ok; expenditure limits are unconstitutional

53
Q

First Amendment: Lesser Protected Speech:
-incitement of illegal activity

A

incitement of illegal activity is punishable if (1) substantial likelihood of imminent illegal activity and (2) speech directed to causing imminent illegality.

54
Q

Lesser Protected Speech: Obscenity:
-test

A

-test: PIPS: Prurient Interest; Patently offensive; Serious value (lack of).
-prurient interest: local standard of shameful/morbid interest in sex
-patently offensive: local standard
-serious value: no redeeming artistic, literary, political, or scientific value based on national reasonable person standard
*zoning regulations: ok to regulate the location and size of adult bookstores and movie theaters in order to target secondary effects
*child porn may be completely banned, even if not obscene but actual children must be used in the production

55
Q

profane and indecent language

A

generally protected, EXCEPT
-broadcast media: radio station/free network tv bc of intrusiveness into home and accessibility by kids
-schools: responsibility of teaching civilized discourse

56
Q

commercial speech

A

-truthful commercial speech always protected
-false and deceptive ads NOT protected
-test: Intermediate Scrutiny: (1) serves a substantial governmental interest; (2) directly advances that interest; (3) narrowly tailored to serve that interest (need not be least restrictive means)

57
Q

defamation

A

-libel and slander are not protected
-public official: must show falsity of the statement and actual malice
-public figure: same as public official
-private figure: if the matter is of a public concern, must show falsity and negligence. If the matter is NOT of a public concern, no malice showing is necessary

58
Q

freedom of press / privacy:
-truthful public info
-illegally intercepted calls
-access to government
-government papers
-criminal trials

A

-truthful public info: no restrictions so long as ingo was lawfully obtained by government records
-illegally intercepted calls: media no liability so long as media didn’t participate in illegality and re: matter of public importance
-access to government: government may limit the dissemination of info to protect privacy
-government papers: no requirement for public accessibility
-criminal trials: public and press have the right to attend, but MAY BE LIMITED by an overriding interest determined by the judge based on intermediate scrutiny

59
Q

forums for speech: public forums

A

-public forums: (parks, sidewalks, etc.) regulations must be subject matter and viewpoint neutral. If not: then strict scrutiny
-regulations must serve an important government purpose and leave open adequate alternative places for communication

60
Q

forums for speech: designated public forums

A

government properties which the government allows open for speech. Same as public forums

61
Q

forums for speech: limited public forums

A

-government properties limited to certain groups or dedicated to the discussion of limited topics
-regulation ok if reasonable and viewpoint neutral

62
Q

forums for speech: non-public forums

A

-(military bases, outside of prisons, sidewalks on post office property, ad space on city buses, airports)
-regulations are ok if reasonable and viewpoint neutral

63
Q

freedom of association:
-prohibit / punish group membership

A

-strict scrutiny
-requirements: AAA: (knowing + specific intent) (1) actively affiliated with the group; (2) knowing of illegal activities; (3) specific intent of furthering those illegal activities

64
Q

freedom of association: disclosure of group membership

A

if chilling effect: then strict scrutiny

65
Q

freedom of association: unrelated to suppression of ideas

A

strict scrutiny

66
Q

freedom of association: prohibition of discrimination

A

Constitutional unless interferes with intimate association (small groups) or expressive association (discrimination integral to expressive activity of the group eg. KKK)

67
Q

freedom of religion:
-free exercise clause <-
-Establishment clause

A

-free exercise clause: no punishment on the basis of religious beliefs
—but free exercise can’t be used to challenge neutral laws of general applicability, EXCEPT denial of unemployment benefits if person quit for religious reasons or Amish who have right not to educate children
*if not generally applicable OR enacted to discriminate: then strict scrutiny

68
Q

freedom of religion:
-establishment clause

A

-establishment clause: the Lemon test: SEX:
(1) Secular purpose; (2) Effect neither advances no inhibits religion; (3) No eXcessive entanglement with religion
*no discrimination against religious speech or among religions unless strict scrutiny
*BUT religious groups must be given the same access to school facilities

69
Q

public employment
-public concern
-not public concern

A

-public concern: balance the employee’s rights as a citizen against the governmental interest in efficient performance of the public service
-not a public concern: then wide deference is given to employer’s judgment
-if within employee’s duties: then punishment is ok
*no firing for party affiliation UNLESS in policy making position

Leansheets Bar Prep (15 decks)

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