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BAR EXAM > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

Under Article III, Section 2, federal courts have the jurisdiction to hear which types of cases and controversies?

A
  1. Arising under the Constitution, laws, and treaties of the United States;
  2. Affecting foreign countries’ ambassadors, public ministers, and consuls;
  3. Involving admiralty and maritime jurisdiction;
  4. When the U.S. is a party;
  5. Between two or more states, or between a state and citizens of another state;
  6. Between citizens of different states or between citizens of the same state claiming lands under grants of different states; or
  7. Between a state, or its citizens, and foreign states, citizens, or subjects
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2
Q

adequate and independent state grounds rule

A

Supreme Court will not hear an appeal from a state court decision that is supported by adequate and independent state grounds - that is, if the judgment is based on adequate and independent state law grounds that are fully dispositive of the case.

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3
Q

What are the exceptions to the 11th Amendment?

A

Lawsuits against states are allowed if:

  1. State has consented (such as in tort claims acts);
  2. Suit is for prospective relief (injunctive) or personal damages against a state officer;
  3. United States or another State is the plaintiff;
  4. Suit involves enforcement of laws under ​the violations of 13th, 14th, and 15th Amendments and Congress has expressly removed immunity
  5. Action is against local governments and entities
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4
Q

Requirements for a case to be justiciable (i.e. can be heard by the federal courts)

A
  1. Standing (injury, causation, redressability)
  2. Ripeness (no advisory opinions, laws and policies must be formalized and felt in concrete ways)
  3. Mootness (live controversy exists at all stages of review)
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5
Q

Elements required for standing

A
  1. Injury-in-fact: P must show a particularized and concrete injury;
  2. Causation: D’s conduct must have caused the claimant’s injury;
  3. Redressibility: Harm must be one the Court can remedy through their resolution of the case
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6
Q

People have no standing merely as “citizens” or “taxpayers” to claim that government action violates federal law. What are the exceptions to this?

A
  1. Challenging tax liability (their own tax liability);
  2. Alleging that federal action violates the Tenth Amendment by interfering with powers reserved to the states (so long as the person has a redressable injury in fact)
  3. Congressional spending measures on Establishment Clause grounds (the spending power must be involved)
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7
Q

When may a litigant have standing to assert the rights of a third party?

A
  1. There is a special relationship between P and the injured party (e.g. doctor-patient, lawyer-client, parent-child);
  2. The injured party finds it difficult to bring suit themselves; or
  3. There is standing via association
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8
Q

Do organizations have standing to sue?

A

Only if:

  1. At least one member of the organization would have standing to sue;
  2. Interest asserted is germane to purpose of the organization; and
  3. Individual member participation in the lawsuit is not required.
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9
Q

What are the exceptions to the mootness requirement?

A
  1. Capable of repetition yet evading review because of inherently short duration: although P’s particular injury will likely become moot before litigation is complete, it is highly likely injury will be repeated in the future;
  2. Voluntary cessation: D voluntarily ceases behavior once litigation starts, but could resume at any time; or
  3. Class action: As long as one member of class has a ripe claim, resolution of one P’s injury will not defeat mootness
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10
Q

Is standing defeated simply because the plaintiff wanted to bring a case to test the constitutionality of a particular rule?

A

NO

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11
Q

What are political questions?

A

Courts will not decide political questions, which are issues…
1. Constitutionally committed to another branch of government; OR
2. Inherently incapable of judicial resolution.

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12
Q

What are the sources of Congressional power in the Constitution?

A

The enumerated powers in Art. I Section 8, plus any powers necessary and proper to carry out the enumerated powers.

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13
Q

Does Congress have federal police power to promote the general welfare?

A

No, it does not have this power.

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14
Q

Necessary and Proper Clause

A

Allows Congress to enact any legislation necessary to carry out its enumerated powers

**Not an independent source of power. Must only be used in conjunction with an express federal power.

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15
Q

What is the taxing and spending power?

A

Congress has the power to tax and spend to provide for the general welfare – any public purpose not prohibited by the Constitution.

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16
Q

Can Congress impose conditions via its spending power (i.e. “strings”)?

A

Yes, conditions are valid if they
1. Are clearly stated
2. Relate to the purpose of the program
3. Are not unduly coercive
4. Do not otherwise violate the Constitution

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17
Q

When will federal taxes be upheld?

A

If they bear some reasonable relationship to revenue production or to promoting the general welfare. Taxes may be regarded as impermissible penalties if they compel rather than influence behavior.

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18
Q

What interstate commerce may Congress regulate under the Commerce Clause?

A

-Channels of interstate commerce
-Instrumentalities of interstate commerce
-Persons and things moving in interstate commerce
-Activities that have a substantial effect on interstate commerce

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19
Q

When may Congress regulate intrastate commerce under the Commerce Clause?

A

-Economic/Commercial: local, instrastate activities that in the aggregate substantially affect interstate commerce
-Non-economic: no aggregation, but must still have a direct substantial economic effect on interstate commerce (higher burden)

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20
Q

What are Congress’s war and defense powers?

A

-Declare war
-Raise and support armies/navy
-Establish military courts and tribunals

*Economic regulation during war and postwar period to remedy wartime disruptions has been upheld

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21
Q

What is Congress’s plenary power over aliens, and what is the impact of this power on federal classifications of aliens?

A

Power to admit or exclude aliens for any reason from entering the country

*Federal alienage classifications will be evaluated under rational basis.

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22
Q

What is the anti-commandeering doctrine?

A

Prohibits the federal government from “commandeering” state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns)

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23
Q

Can Congress delegate its powers to other branches?

A

Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress sets intelligible standards on which to base regulations. Very low bar, almost always upheld.

*Cannot delegate powers like war or impeachment

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24
Q

What are the main powers of the president?

A
  1. Enforcement of laws;
  2. Commander in chief;
  3. Appointment powers;
  4. Removal powers;
  5. Pardons; and
  6. Veto
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25
Q

How are presidential claims of power evaluated?

A
  • Acting with express or implied authority of Congress: presidential authority at maximum, actions likely valid
  • Acting where Congress is silent: constitutionality is uncertain
  • Acting against the express will of Congress where Congress had authority to act: action likely invalid
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26
Q

What are the president’s appointment powers?

A

Can appoint high-level officers with advice and consent of Senate

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27
Q

What is the President’s authority as Commander in Chief?

A
  • Cannot declare war
  • Can act militarily in actual hostilities against the US to protect American lives and property
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28
Q

The president has power to enter into treaties with consent of 2/3 of the Senate. What is the effect of a treaty?

A
  • Supreme Law of the Land if self-executing
  • If conflicting with federal law, last in time prevails
  • If conflicting with Constitution, Constitution prevails
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29
Q

How are Executive Agreements treated?

A

They do not require the approval of the Senate, so they prevail over state law, but federal law will prevail over the executive agreement.

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30
Q

What is the impeachment process?

A
  1. Majority vote in House to bring impeachment charges and
  2. 2/3 vote in Senate to convict and remove
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31
Q

Police powers are reserved to the _________ under the ______________

A

States; Tenth Amendment

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32
Q

What is the Supremacy Clause?

A

If a federal law directly or indirectly conflicts with a state law, federal law will prevail.

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33
Q

What are the methods of preemption?

A
  1. Express - federal law expressly says that states may not adopt laws on the subject matter
  2. Implied
    - Conflict between state and federal where it would be impossible to follow both laws
    - State or local law prevents achievement of federal objective
    - Valid federal law “occupies” the field, barring even nonconflicting state or local laws
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34
Q

What is the Privileges and Immunities Clause under Art. IV?

A

Prohibits discrimination by a state against nonresidents when the discrimination concerns important commercial activities or fundamental rights (but does not protect corporations and aliens)

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35
Q

What is the Privileges or Immunities Clause of the 14th Amendment?

A

States may not deny their citizens the privileges or immunities of national citizenship

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36
Q

When does a state regulation violate the Dormant Commerce Clause?

A

If the state or local government discriminates against or unduly burdens interstate commerce.

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37
Q

Under the Dormant Commerce Clause, when are regulations that discriminate against out-of-state actors valid?

A
  1. Regulation is necessary to achieve important government interest are no reasonable nondiscriminatory alternative is available;
  2. State is a market participant
  3. Regulation involves traditional government functions
  4. Congress has expressly permitted state regulation
38
Q

When is a state tax on interstate commerce valid?

A
  1. Activity has substantial nexus to taxing state
  2. Tax is fairly apportioned
  3. Tax is fairly related to services or benefits provided by the state
  4. Tax does not discriminate against interstate commerce
39
Q

Does the Constitution protect against wrongful conduct by the government or private citizens?

A

The government, not private citizens

40
Q

When is there state action (i.e. where the Constitution applies)?

A
  • Activities being performed are traditionally the exclusive prerogative of the state (i.e. company town, prisons)
  • State affirmatively facilitates, encourages, or authorizes acts of discrimination by citizens and there is sufficient entwinement between state and public party
41
Q

Rational Basis (standard, burden, applicability)

A

Standard: Law upheld if rationally related to a legitimate government purpose (can’t be arbitrary or irrational)
Burden: Person challenging the law
Applicability: Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications

42
Q

Intermediate Scrutiny (standard, burden, applicability)

A

Standard: Law upheld if substantially related to an important government purpose
Burden: Generally on the government
Applicability: Regulations involving quasi-suspect classifications (gender and legitimacy)

43
Q

Strict Scrutiny (standard, burden, applicability)

A

Standard: Law upheld if it is necessary to achieve a compelling government purpose. Must be least restrictive means.
Burden: Government
Applicability: Fundamental rights and suspect classifications

44
Q

What is procedural due process?

A

5th/14th Amendment provides that a person has a right to fair process when the government deprives them of life, liberty, or property through an intentional or reckless action (not negligent).

Requires notice, an opportunity to be heard, and a neutral decisionmaker.

45
Q

How is the type and extent of hearing in procedural due process determined?

A

Via balancing test:
-Importance of interest to individuals and value of specific procedural safeguards to that interest
AGAINST
-government interest in fiscal and administrative efficiency

Typically, a pre-deprivation hearing is appropriate unless impracticable.

46
Q

What are the fundamental rights that trigger strict scrutiny for a substantive due process analysis?

A

-All First Amendment rights
-the right to interstate travel
-privacy-related rights
-voting

47
Q

When is an unenumerated right fundamental?

A

When it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.

48
Q

What is the difference between substantive due process and equal protection analysis?

A

If a law limits the rights of ALL persons to engage in an activity, it calls for a substantive due process analysis. If a law treats a person or class of persons differently from others, then it calls for an equal protection analysis.

49
Q

What are the privacy rights considered fundamental and subject to strict scrutiny?

A

-Marriage (interracial, same-sex)
-Procreation
-Contraceptives (but not abortion)
-Parents (companionship, care, custody, and upbringing of children)
-Family members living together
-Obscene reading material in one’s home

50
Q

What is the scope of the right to travel?

A

There is a fundamental right to (1) travel from state to state and (2) be treated equally after moving into a new state. International travel, however, is not a fundamental right.

51
Q

When may restrictions on the right to vote be valid?

A

Restrictions on the basis of residence, age, and citizenship are typically permitted so long as they are reasonable burdens that serve to protect the right to vote.

52
Q

Do the populations of voting districts need to be equal?

A

State and local - must be substantially equal, but a 10% variance is presumptively valid and a 16% variance has been upheld as reasonable.

Federal - requires exact mathematical equality for congressional districts.

*One person, one vote is inapplicable to officials who are appointed or elected at large.

53
Q

What is the standard of review for a regulation that burdens an individual’s right to keep and bear arms?

A

Government must justify regulation by demonstrating that it is consistent with the country’s historical tradition of firearm regulation.

54
Q

Where are the two equal protection guarantees in the Constitution?

A

14th amendment applies to state action, while the equal protection component of the 5th amendment due process clause applies to the federal government

55
Q

How do you show intent on the part of the government to discriminate (and thereby qualify for strict or intermediate scrutiny)?

A

-A law is discriminatory on its face
-A discriminatory application of a facially neutral law
-A facially neutral law with a disparate impact on a protected class

Discriminatory application or effect is not enough–intent MUST be shown

56
Q

What are the suspect classifications triggering a strict scrutiny analysis under equal protection?

A

Race, national origin, or alienage (at the state and local levels, but not at the federal level)

57
Q

When are state and local governments permitted to discriminate based on alienage status?

A

Rational basis is applied when a law discriminates against alien participation in state government or for laws limiting non-elective offices involving important public policy.

58
Q

What are the quasi-suspect classifications triggering intermediate scrutiny?

A

Gender (esp. those based on stereotypes of women being economically dependent) and legitimacy

59
Q

When may the government take private property?

A

Fifth Amendment takings clause says private property may be taken only (1) for public use and (2) with just compensation.

Public use requirement satisfied if government action is rationally related to a legitimate public purpose.

Just compensation is fair market value at the time of the taking

60
Q

When will a physical taking be found?

A

If there is a confiscation of property or a permanent or regular physical occupation of a person’s property by the government.

Temporary takings require an analysis of the circumstances.

61
Q

What is a regulatory taking?

A

-Government regulation denies a landowner of all economically viable use = taking
-Regulations decreasing value of property = not a taking if they leave an economically viable use for the property. Consider the government interests sought to be promoted, diminution in value to owner, and whether regulation substantially interferes with distinct, investment-backed expectations of owner.

62
Q

What is the Contract Clause?

A

Limits the ability of STATE AND LOCAL governments to enact laws that retroactively impair contract rights (not applicable to federal government or judicial decisions).

63
Q

What are the standards applied to laws impairing contracts?

A

-Private contracts get intermediate scrutiny: must serve an important & legitimate public interest and be reasonable and narrowly-tailored.
-Public contracts get heightened scrutiny (same test as above, but stricter approach since the state is a party)

64
Q

What is the rule about ex post facto laws?

A

Neither states nor federal government can pass a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity. Applies only to criminal cases.

65
Q

What is a bill of attainder?

A

Legislative act that inflicts punishment on individuals without a judicial trial. Prohibited at both the state and federal levels.

66
Q

What is speech?

A

Words, symbols, and expressive conduct (any kind of conduct that is inherently expressive or intended to convey a message AND reasonably likely to be perceived as conveying a message)

67
Q

What are the categories of unprotected speech?

A

-Incitement
-Fighting Words
-Obscenity
-Defamation
-Commercial speech that is false, misleading, or about illegal products/services

68
Q

When is speech incitement?

A

If it is (1) intended to produce imminent lawless action and (2) likely to produce such action

69
Q

When is speech fighting words?

A

When it is personally abusive words that are likely to incite immediate physical retaliation in an average person.

Statutes that attempt to punish fighting words are usually vague or overbroad, so they are likely invalid.

70
Q

Does the First Amendment protect true threats?

A

No. True threats are words intended to convey to someone a serious threat of bodily harm.

71
Q

When is speech obscene?

A

If it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
1. Appeals to the prurient interest in sex (contemporary community standard);
2. Is patently offensive (contemporary community standard); AND
3. Lacks serious literary, artistic, political, or scientific value (national, reasonable person standard)

72
Q

When a public figure is suing, what is the degree of fault the plaintiff must show in a defamation action?

A

The plaintiff must show actual malice, which is (1) knowledge that the statement was false OR (2) reckless disregard as to its truth or falsity.

73
Q

When a private figure is suing, what is the degree of fault the plaintiff must show in a defamation action?

A

-Matter of public concern: actual damages if P shows negligence, but punitive/presumed damages if P shows actual malice.
-Matter of private concern: First Amendment not involved

74
Q

What commercial speech is unprotected under the First Amendment?

A

Commercial speech is not protected if it is false, misleading, or about illegal products or services.

Other regulations on commercial speech must be narrowly tailored to serve a substantial government interest.

75
Q

What is content-based speech regulation?

A

Restricts speech based on the subject matter or viewpoint of the speech. Subject to strict scrutiny and presumptively unconstitutional.

76
Q

What is content-neutral speech regulation?

A

Restrictions on speech that are both subject matter-neutral and viewpoint neutral.

Subject to intermediate scrutiny–must advance important interests unrelated to suppression of speech and must not burden substantially more speech than necessary (often time, place, manner restrictions).

77
Q

What are traditional public and designated public forums, and what standard is applied to speech restrictions there?

A

-Traditional public: public property that has historically been open to speech-related activities (streets, sidewalks, public parks)
-Designated public: public property that has not historically been open to speech-related activities, but government has thrown open for such activities on a permanent or limited basis

If it is content-based, apply strict scrutiny. If it is content-neutral, it must meet intermediate scrutiny (narrowly tailored for important interest AND leave open alternative channels of communication).

78
Q

What are limited public and nonpublic forums, and what standard is applied to speech restrictions there?

A

-Limited public: gov’t forums not historically open for speech and assembly but open for specific speech activity
-Nonpublic forums: government property not historically open generally for speech and assembly and not held open for specific speech activities (military bases, gov’t workplaces)

Government can regulate speech to reserve the forum for its intended use. Regulations will be valid if viewpoint neutral and reasonably related to a legitimate gov’t purpose.

79
Q

How may public schools restrict speech?

A

-Personal speech on campus cannot be censored without evidence of substantial disruption unless it relates to drug use.
-Student speech off campus is harder to censor (school’s interest must outweigh the speech interests of students as private citizens)
-Speech related to teaching must be reasonably related to legitimate pedagogical concerns

80
Q

When can the speech of government employees be regulated?

A

-Speech at work involving a matter of private concern: punishable if disruptive of work environment
-Speech at work pursuant to official duties: may be punished, no First Amendment protection
-Balancing test if speech is on a matter of public concern but not made pursuant to official duties

81
Q

What is the effect of an overbroad speech regulation?

A

An overbroad regulation that punishes substantially more speech than necessary is facially invalid unless a court has limited construction of the regulation to remove the threat to constitutionally protected expression.

82
Q

What is a prior restraint?

A

Court orders or administrative systems that prevent speech before it occurs. Highly disfavored unless there is a special societal harm that justifies the restraint.

83
Q

Can a regulation give an official broad discretion over speech issues?

A

No, there must be defined standards for applying the law. Statutes giving licensing officials broad discretion are void on the face.

84
Q

Does the press have elevated First Amendment freedoms?

A

No, the same as a private citizen.

They have the right to attend trials, but that right may be outweighed by an overriding interest.

85
Q

What is the free exercise clause?

A

Prohibits government from punishing someone on the basis of their religious beliefs or related religious status or conduct.

86
Q

What can courts question about a claimed religious belief?

A

Sincerity, but not truthfulness

87
Q

When is a law not subject to the Free Exercise Clause?

A

If it is facially neutral and generally applicable. Only laws that are specifically designed to interfere with religion can be challenged.

88
Q

Can government officials grant exemptions from laws?

A

They are not required, but they can be granted to accommodate religious exercise.

89
Q

What is the Establishment Clause?

A

Prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion.

90
Q

How must the Establishment Clause be interpreted?

A

If a law is not neutral, it may still be permitted based on historical tradition/practice and understanding of Founding Fathers. Focus on neutrality, coercion, history, and the Founders’ intent.

BAR EXAM (14 decks)

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