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Constitutional Law Flashcards

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1
Q

The Federal Judicial Power extends to cases involving: (two things)

A

(1) interpretation of the Constitution, federal law, and treaties
(2) disputes between states, states and foreign citizens, and citizens of diverse citizenship

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2
Q

What are the three considerations of justiciability?

A

(1) is it an advisory opinion
(2) when is the case brought
(3) who is bringing it

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3
Q

What is an advisory opinion?

A

Decisions that lack
(1) an actual dispute between adverse parties; or
(2) any legally binding effect on the parties

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4
Q

How can a plaintiff establish ripeness when requesting pre-enforcement review of a law or policy?

A

(1) the issues are fit for a judicial decision; and
(2) the plaintiff would suffer substantial hardship in the absence of review

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5
Q

What is the mootness requirement?

A

The requirement that there be a live controversy at all stages of review.

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6
Q

What are three exceptions to mootness?

A

(1) capable of repetition but evading review
(2) defendant voluntarily stops offending behavior
(3) class actions in which the class representative’s controversy has become moot

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7
Q

What are the three requirements for standing?

A

(1) injury in fact
(2) causation
(3) redressability

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8
Q

What are the two requirements for establishing an injury in fact?

A

(1) particularized and (2) concrete injury

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9
Q

“Citizenship” does not establish standing except in what three situations?

A

(1) challenging own tax liability
(2) violation of the Tenth Amendment
(3) challenging congressional spending measures on Establishment Clause grounds

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10
Q

When does a person have standing to assert the rights of a third party?

A

A claimant with his own standing may assert the rights of a third party if (a) it is difficult for the third party to assert their own rights or (b) a close relationship exists between the claimant and the third party.

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11
Q

What are the requirements for organizational standing?

A

An organization has standing to sue on behalf of its members of (1) there is an injury in fact to the members, (2) the members’ injury is related to the purpose of the organization, and (3) individual member participation in the lawsuit is not required

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12
Q

Explain standing for “free speech overbreadth” claims.

A

A person has standing to bring a free speech claim alleging that the restriction was overbroad even if that person’s own speech would not be protected under 1A. This DOES NOT APPLY to commercial free speech claims.

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13
Q

What is the causation requirement for Article III standing?

A

There must be a causal connection between the injury and the challenged conduct. This connection cannot be too attenuated.

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14
Q

What is the redressability requirement for Article III standing?

A

A decision in the litigant’s favor must be capable of eliminating the harm.

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15
Q

When does a person have standing to enforce federal statutes?

A

When the person is within the “zone of interests” Congress meant to protect with the statute and Congress intended to allow private persons to bring federal court actions to enforce the statute.

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16
Q

What is sovereign immunity?

A

11A bars a private party’s suit against a state unless the state consents to the suit or waives immunity.

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17
Q

When does “structural waiver” apply to allow a party to sue a state?

A

When the issue involves a federal power and the states implicitly consented to the federal government exercising that power as part of the plan of the Constitution.

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18
Q

When can a person sue a state official (without violating 11A)?

A

When the person seeks damages personally or to enjoin the official from future conduct that violates the constitution or federal law. Claims seeking retroactive damages are barred by sovereign immunity.

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19
Q

Can Congress remove a state’s immunity under 14A?

A

Yes, but it must be unmistakably clear that Congress intended to do so.

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20
Q

What is a political question?

A

(1) issues constitutionally committed to another branch of government or
(2) issues that are inherently incapable of judicial resolution

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21
Q

What is the Supreme Court’s original jurisdiction?

A

All cases affecting ambassadors, public ministers, consuls, and those in which a state is a party.

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22
Q

What is the Supreme Court’s appellate jurisdiction?

A

All cases to which federal judicial power extends under Article III

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23
Q

What cases come to the Supreme Court by writ of certiorari?

A

(1) Cases from the highest court in a state involving the constitutionality of a federal or state law or where a state law violates federal law
(2) all cases from federal courts of appeals

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24
Q

What cases come to the Supreme Court by appeal?

A

Decisions by three-judge federal district court panels that grant or deny injunctions.

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25
Q

What is the adequate and independent state grounds doctrine?

A

A state court judgment is based on independent state law grounds, such that if the Supreme Court reversed the decision on federal law ground, it would not change the ultimate result in the case.

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26
Q

True/False: The Privileges and Immunities Clause of Article IV protects corporations as well as natural persons.

A

False

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27
Q

True/False: The Privileges and Immunities Clause of Article IV does not protect aliens.

A

True

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28
Q

The Privileges (and/or) Immunities Clause prohibits states from denying their own citizens the rights of national citizenship.

A

OR (14A)

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29
Q

The rights of national citizenship protected under the Privileges or Immunities Clause of the Fourteenth Amendment include __________.

A

the right to travel, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to enter public lands.

30
Q

What does the Privileges and Immunities Clause prohibit?

A

It prohibits states from discriminating against non-residents regarding fundamental rights.

31
Q

What fundamental rights are protected under the Privileges and Immunities Clause?

A

The pursuit of a livelihood, important commercial activities, and other civil liberties.

32
Q

What test is applied to determine the validity of state action under the Privileges and Immunities Clause

A

Discrimination against nonresidents with respect to essential activities are invalid unless (1) the discrimination is closely related to a substantial state purpose and (2) less restrictive means are not available.

33
Q

What is included in the right to travel?

A

The right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

34
Q

A state law that distinguishes between new residents based on the length of their residency (does/does not) serve a legitimate state interest.

A

does not

35
Q

To be valid under the Privileges and Immunities Clause, a statute must be _______ to achieve an _______ government purpose.

A

necessary, important (this is a restatement of the “substantial justification” test).

36
Q

State statutes enacted under the general police power are valid if they are _______, unless they _________.

A

rational; burden a fundamental right or involve a suspect or quasi-suspect classification.

37
Q

Content-based speech restrictions must be _______ to achieve a _________ government interest.

A

necessary; compelling

38
Q

True/false: A completely integrated agreement can be reformed on the grounds of mutual mistake.

A

true

39
Q

True/false: Congress can remove the states’ Eleventh Amendment immunity from suit when it acts under the Commerce Power.

A

false

40
Q

To what crimes does the presidential pardon power extend?

A

federal crimes

41
Q

What are the requirements for a government regulation of speech in a public or designated public forum?

A

The regulation must be content-neutral, narrowly tailored to serve an important government interest, and it must leave open alternative methods of communication.

42
Q

What are the requirements for a government regulation of speech in a limited public or non-public forum?

A

The regulation must be viewpoint neutral and reasonably (or rationally) related to a legitimate government purpose.

43
Q

What level of scrutiny is applied to a viewpoint based speech regulation in a limited public forum?

A

Strict scrutiny

44
Q

What is the difference between content-neutral and viewpoint-neutral?

A

Content-neutral means the regulation is neutral as to subject matter, viewpoint-neutral means the regulation allows for presentation of both sides of an argument within a permissible subject matter.

45
Q

In a limited public or nonpublic forum, the government can limit the subject matter of speech if __________.

A

it is viewpoint neutral and is reasonably related to the purpose served by the property.

46
Q

Content-neutral restrictions on speech are subject to ______ scrutiny.

A

Intermediate

47
Q

Describe the intermediate scrutiny test applied to content-neutral restrictions on speech.

A

The restriction must further an important government interest that is unrelated to the suppression of speech and must not burden substantially more speech than necessary (i.e. must be narrowly tailored).

48
Q

When can symbolic speech (conduct that conveys a message) be regulated under intermediate scrutiny?

A

When there is an important government interest in regulating the conduct independent of the message the conduct was intended to convey.

49
Q

In public and designated public forums, the government may adopt reasonable __________ restrictions, as long as those restrictions are ________ neutral.

A

time, place, and manner; content

50
Q

Which of the following suits would not fall within the United States Supreme Court’s original jurisdiction under Article III, Section 2 and why?

A) A suit by a state seeking to assert the interest of its citizens in retaining diplomatic relations with a foreign nation.

B) A suit by a state seeking to protect the state’s timber from allegedly illegal cutting by residents of another state.

C) A suit by a state seeking to enjoin enforcement of an allegedly unconstitutional executive order that will greatly limit the state’s authority to make policy decisions regarding admission to state universities.

D) A suit by the United States Government seeking to enjoin state construction of a bridge over a navigable waterway.

A

A, because the state is not an “actual” party. The state is instead seeking to assert the interests of individual citizens. A state must be asserting its own interests or those of its citizens as parens patriae, and A does not satisfy the requirements for a parens claim.

51
Q

What is required for a state to bring a claim as parens patriae?

A

The state must be more than a nominal party without a real interest of its own, merely representing the interests of particular citizens who cannot represent themselves. It must articulate an interest apart from those of private parties, i.e. a “quasi-sovereign interest” in the health and well-being, both physical and economic, of its residents in general.

52
Q

What does it mean that a person must have an injury in fact to have standing?

A

The person must be harmed or there must be an immediate threat of harm.

53
Q

A state law that deters persons from moving into the state violates which constitutional provisions?

A

The equal protection clause and the privileges or immunities clause.

54
Q

What right does the state burden by imposing a residency requirement for public benefits?

A

The right to travel from state to state

55
Q

What is included in the right to travel?

A

The right of newly arrived citizens in a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

56
Q

What is included in the right to travel?

A

The right of newly arrived citizens in a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

57
Q

What is an exception to a federal court’s abstention from enjoining a pending state criminal proceeding?

A

A federal court will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith, such as to harass the defendant.

58
Q

Can press and broadcasting companies be taxed (given freedom of speech concerns)?

A

Yes. Press and broadcasting companies can be subject to general business taxes. However, a tax applicable only to the press or based on the content of a publication is subject to strict scrutiny (invalid absent a compelling justification beyond raising revenue).

59
Q

What is the standard for reviewing the validity of a speech restriction in a limited or nonpublic forum?

A

The government can regulate speech-related activities in this forum as long as the regulation is viewpoint-neutral and reasonably related to a legitimate government purpose (i.e. the purpose served by the property).

60
Q

A courthouse and its grounds are an example of what type of forum?

A

Limited public forum (can be regulated to promote the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place).

61
Q

What is required for a government to forbid advocating the use of force or violation of law?

A

The advocacy must be directed to producing or inciting imminent lawless action and likely to produce such action.

62
Q

Describe the standard for regulations of symbolic speech.

A

The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question.

63
Q

Curriculum-based public high school activities are what kind of forum?

A

Nonpublic forum

64
Q

What is the test for validity of government action under the Establishment Clause?

A

If a regulation is neutral toward religion, there is no violation. If it is not neutral, there is no violation if the regulation is in accord with history and faithfully reflects the understanding of the Founding Fathers.

If the regulation fails these tests (for example, a statute with a sect preference), the regulation is subject to strict scrutiny.

65
Q

A regulation of general conduct will be found to violate the Free Exercise clause if ________.

A

it is shown that the statute is being applied only to interfere with religion.

66
Q

When is deviation in population of state voting districts permissible?

A

When the deviation is reasonable and tailored to promote a legitimate state interest, such as maintaining the integrity of local political subdivision lines.

67
Q

A critically acclaimed movie that had received a number of awards opened in a small town. The film had portrayals of nudity and scenes involving sexuality, but its advertising was very tasteful and concentrated on its critical acclaim and its receipt of seven Academy Award nominations. Nevertheless, when the movie opened in the small town, there was a public outcry against it, including picketing. The town, which had been founded in the late nineteenth century by a fundamentalist religious group, remained very conservative and highly religious, and was the only community in the state where a consensus of the community would find the movie to be obscene. The town prosecutor went to the local court seeking an injunction to halt the showing of the movie. The theater owner refused to voluntarily stop showing the film and appeared in court to defend against the proposed injunction.

What is the owner’s best defense?

A

That the film has proven artistic merit.

The Court has defined obscenity as a depiction of sexual conduct that, taken as a whole, by the average person, using contemporary community standards: (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) using a national, reasonable person standard, does not have serious literary, artistic, political, or scientific value.

The local community standards may be used for the first two factors, but if the film has proven artistic merit, it will fail the third element.

68
Q

It was common practice in a particular state for a security interest in land to be structured as a deed absolute, which gave a lender absolute title to the borrower’s property as security for the loan. The lender would reconvey only on complete payment of the loan by the debtor party, and could dispose of the land immediately without a foreclosure sale on default. A new governor of the state whose campaign platform was built around abolishing the deed absolute mortgage encouraged the legislature to enact a bill that immediately outlawed use of the deed absolute, declaring that all such deeds would be considered mere liens against the secured property. The law applied not only to loans made in the future, but also to the thousands of such loans in existence at the time the legislation was passed. As soon as the governor signed the legislation, lending institutions and individuals who had loaned money secured through deeds absolute challenged the constitutionality of the new law.

Do the lenders have a procedural due process challenge to the new law?

A

No. PDP does not apply to laws of general applicability, even when those laws summarily take property from a class of people.

69
Q

In state court, when is a 6A-compliant jury trial required?

A

For offenses authorizing imprisonment of more than six months.

The jury must have at least 6 jurors and the decision must be unanimous.

70
Q

From which proceedings are a president protected against by executive immunity?

A

civil proceedings

71
Q

In determining whether a federal program impliedly preempts the entire field, courts often consider:

A

(i) Whether preemption was the clear and manifest purpose of Congress; (ii) The comprehensiveness of the federal program or existence of a federal agency; and (iii) Whether the field regulated is traditionally within the power of the states.

72
Q

What are the limits of Congress’s power to investigate?

A

The power to investigate is limited to matters on which it can properly legislate or to official actions (such as impeachment).

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