Constitutional Law Flashcards
What part of the Constitution grants judicial power to the courts?
Article III
Article III provides that federal courts shall have judicial power which cases and controversies?
Cases
1. Arising under the Constitution, laws, or treaties of the US
2. Of admiralty and maritime jurisdiction
3. To which US is a party
4. Between 2+ states
5. Between a state and citizens of another state
6. Between citizens of different states
7. Between citizens of the same state claiming land under grants of different states
8. Between a state (or its citizens) and foreign parties
A federal court cannot issue an opinion on ______ or _______ questions.
Abstract
Hypothetical
What is a declaratory judgment?
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, a ___________ and __________ controversy must exist
Specific
Concrete
Standing generally requires:
- An injury
- Causation AND
- Redressability
The fundamental question driving standing is _______________.
Whether P is the proper party to bring the suit
What is the “injury in fact” requirement of standing?
P must allege and prove actual or imminent injury
What is the individualized harm requirement of standing?
P must have personally suffered the harm
What kind of injury is the best injury for standing?
Economic harm
P seeking an injunction or declaratory relief must show ________ will be personally suffered.
Likelihood of future harm
What is the causation requirement of standing?
P must allege and prove that D caused the injury
What is the redressability requirement of standing?
P must have a concrete stake in the outcome of the case such that a favorable decision will likely remedy the injury
Third-party standing is not permitted unless P meets other standing requirements AND:
- Close relationship between P and 3rd party
- 3rd party is unlikely to be able to assert own rights
- Associational standing
What is 3rd party standing?
Presenting the claims of others before a court
When is there associational standing?
- Individual members have standing to sue
- Interests are related to the organization’s purposes AND
- Neither claim nor relief requires participation of individual members
When is a statute or regulation ripe?
Once it has been enforced
When will a suit be dismissed as moot?
If P’s injury ends after the lawsuit is filed
Normally, a suit will be dismissed if the plaintiff’s injury ends after the lawsuit is filed. What are the exceptions to the mootness doctrine?
- Injury has very short duration
- D voluntarily stops action but may resume at any time
- Class action suits
Generically, what is a political question?
Constitutional questions
1. committed to another branch of government OR
2. inherently incapable of judicial resolution
The Supreme Court will not hear questions regarding a ______ form of government.
Republican
The Supreme Court will not hear challenges to a president’s _______ policy choices.
Foreign
The Supreme Court will not hear challenges to the ______________ and ______________ process.
Impeachment
Removal
The Supreme Court will not determine whether an elected person meets the requirements to be elected to _________.
Congress
_________________ is also known as the “one person, one vote” principle
Legislative appoirtionment
___________ apportionment is not a political question and therefore can be heard by SCOTUS
Legislative
What is gerrymandering?
The political party in power redraws election districts for its own political benefit
Are gerrymandering cases political questions?
No, so they can be heard by SCOTUS
The question of production of ___________ in criminal proceedings is not political and thus may be heard by SCOTUS.
presidential papers and communications
What is abstention?
When a federal court has jurisdiction but the court nevertheless refrains from exercising that jurisdiction
Federal courts will temporarily abstain from resolving constitutional challenges when disposition of a case rests on unsettled questions of _________.
State law
State court proceedings are considered pending if they started before ____________.
the federal court has begun proceedings on the merits
Federal courts will not enjoin pending state ___________ proceedings.
Criminal court
Federal courts should abstain from enjoining pending state civil or administrative proceedings when ____________.
An important state interest is involved
SCOTUS has original and exclusive jurisdiction over controversies between ____________ and actions involving __________.
State governments
Ambassadors
In addition to SCOTUS, ________ may exercise jurisdiction over actions involving ambassadors.
Federal district courts
Generally, SCOTUS may only hear an appellate case after there has been ________.
A final judgment
Congress has authority to strip SCOTUS of its appellate jurisdiction unless ________.
Exercise of this power interferes with the establishment of a supreme and uniform body of federal constitutional law
The documentation sent to SCOTUS to request that SCOTUS review a case is called ___________.
A petition for a writ of certiorari
How much discretion does SCOTUS have over whether to grant a writ of certiorari?
Complete discretion
How many SCOTUS justices must vote to grant a writ of certiorari?
4/9
A denial of certiorari is not __________.
A ruling on the merits of the case
In order to fall within the Supreme Court’s appellate jurisdiction, the issue triggering the decision to grant certiorari will be one of ________.
Federal law
The Supreme Court has no original jurisdiction over _____ court judgments
State
SCOTUS does not have appellate jurisdiction over a decision by the highest court of the state when that decision is supported by state laws grounds that are:
- Independent of federal law AND
- Adequate to sustain the result of the case
SCOTUS may review all cases from ______ courts of appeals.
Federal
SCOTUS can review ________ between different federal courts of appeal
Conflicts
SCOTUS must hear all cases that come before the Court on _____ appeal.
Direct
When is direct appeal to SCOTUS permitted?
Only in a decision by a three-judge federal district court pannel granting/denying injunctive relief
The 11th Amendment prohibits a federal court from hearing _________.
Suits against a state government commenced by a private citizen or foreign government
Actions for damages against ___________ are barred by the 11th Amendment.
State governments
Actions against state governments for injunctive or declaratory relief are barred by the 11th Amendment where _________.
The State is named as a party
Actions against state officials are barred by the 11th Amendment when _________.
They would result in retroactive damages being paid from the state treasury
Actions against a state government that would result in the divestment of _________ are barred by the 11th Amendment.
State’s ownership of land
Actions against state officials for violating __________ are barred.
State law
The 11th Amendment covers cases in federal court under both ________ and ________ jurisdiction
Federal question
Diversity
A state government can be named as D in federal court if D expressly __________.
Consents and waives sovereign immunity
11th Amendment does not prohbit suits against state officials when the relief sought is _________.
An injunction to stop the violation of a FEDERAL law. Does not apply to state laws.
Actions for damages against a state officer for personal liability are permitted only if ________.
The damages will be paid from the state officer’s own pocket
The 11th Amendment does not prohibit actions against _______ governments or municipalities.
Local
Who can initiate an action against state governments without violating the 11th Amendment?
- The US
- Other state governments
What does Sec. 5 of the 14th Amendment do?
Gives Congress the power to enforce the provisions of the 14th Amendment by appropriate legislation
Congressional legislation is appropriate within the meaning of Sec. 5 of the 14th Amendment if:
- It seeks to prevent/remedy actions by state/local governments that violate provisions of the 14th Amendment AND
- Its requirements are congruent with/proportional to the 14th Amendment violations it addresses
Sovereign immunity does not apply to ______ proceedings.
Bankruptcy
Sovereign immunity bars private suits against state governments in state court even when the suit is ___________.
Based on federal law
Sovereign immunity bars private complaints against a state before ___________.
A federal administrative agency
When a court reviews the constitutionality of state action, it will likely apply one of these standards of review:
- Rational basis
- Intermediate scrutiny
- Strict scrutiny
How can an action survive rational basis review?
Challenged action must be found to be rationally related to a legitimate government interest
Very broad
How can an action survive intermediate scrutiny?
Challenged action must be found to substantially related to an important government purpose
How can an action survive strict scrutiny?
- The challenged action must be found to be necessary to achieve a compelling government purpose AND
- There are no reasonable non-discriminatory means to achieve the same objective
What general federal police powers do exist?
- The military
- Federal lands and territories
- Native American reservations
- District of Columbia
What is the effect of the Necessary and Proper clause?
Congress may use any means (necessary) not prohibited by the Constitution to carry out its authority (proper)
The Necessary and Proper Clause is not an independent source of power, but rather ________.
Provides Congress the authority to exercise the powers expressly granted to it
What is the investigatory power of Congress?
The power to investigate in order to secure information as a basis for potential legislation or official action
Who appoints members of Congressional investigative committees?
Congress themselves
Congress has the power to tax and spend for _______ and _______.
Common defense
General welfare
Courts will defer to _______ congressional taxing measures.
Reasonable
Courts will defer to congressional expenditures that reasonably _______.
Further the general welfare
Congressional taxes will be upheld if:
- Taxes bear some reasonable relationship to revenue production
- Congress has independent authority to regulate the activity being taxed
When exercising the taxing power, Congress cannot discriminate among ______.
The states
What are indirect taxes?
Taxes place on an activity rather than directly upon a property/person
Only taxes on __________ are likely to be considered “direct.”
Real property
Direct taxes must be in proportion to __________.
National census
Neither Congress nor state can tax _________.
Exports to foreign countries
Even if Congress expressly labels something as a _____, it will be upheld as a tax if it functions as a tax.
Penalty
The power to ______ is linked to the power to tax.
Spend
Congress may tax or spend for the general welfare even if no other _____ power is being furthered.
Enumerated
There is no independent congressional power to pursue the general ________.
Welfare
What is the Commerce Clause?
Article 1, Section 8
What power does the Commerce Clause grant?
Congress may regulate channels and instrumentalities of commerce when that commerce is between states, foreign nations, or Native American tribes
What are the two functions of the Commerce Clause?
- Source of congressional authority
- Limit on states’ power
To fall within Congress’s power under the Commerce Clause, the federal law must either:
- Regulate the channels of interstate commerce
- Regulate the instrumentalities of (or persons and things in) interstate commerce
What are the channels of interstate commerce?
Place where commerce occurs - highways, waterways, internet
What is an instrumentality of commerce?
Anything that facilitates commerce - trucks, planes, internet, etc.
Congress can regulate economic and commercial activity is there is a rational basis for concluding that ___________.
In the aggregate, the activity substantially affects interstate commerce
This can apply to ostensibly personal economic activity, such as growing personal wheat.
Congress may not use its Commerce Clause to compel someone who isn’t already active in a commercial market to enter that market by requiring _________.
That person to purchase a product
SCOTUS held that payments required of those who fail to purchase __________ are not a penalty, but rather a permissible tax.
Health insurance
Congress is prohibited from regulating noncommercial or noneconomic activity unless Congress can factually demonstrate that ______________.
The activity has a substantial economic effect on interstate commerce.
Substantial economic effect cannot be based on ________ impact
Cumulative (e.g. victims of gender-motivated violent crimes)
Who does Congress have the power to impeach and remove?
- President
- Vice President
- Federal judges
- Other officers of the US
Congress has the power to impeach and remove officers of the US on the grounds of:
- Treason
- Bribery
- High crimes
- Misdemeanors
Impeachment by the House requires __________.
A majority vote
Impeachment does not _________.
Remove anyone from office
Conviction by Senate requires _________.
2/3 vote
Only after -_________ will an impeached official be removed from office.
Conviction by Senate
What are Congress’s war powers?
- Declaring war
- Tax/spend for national defense
- Institute economic/social controls during wartime
- Establish military courts/tribunals
Who has the power to dispose of/make rules for territories and other properties of the United States?
Congress
Congress has the power to establish a uniform rules of:
- Naturalization
- Bankruptcy
When may states take over immigration powers from Congress?
States may exercise their police powers to regulate the conduct of aliens within their borders
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
Congress is prohibited from taking away the ________ of any citizen without her consent.
Citizenship
A loss of citizenship can only occur if:
- Fraud in naturalization process
- Voluntary relinquishment of citizsnship
Aliens have no right to _________.
Enter the United States
Aliens can be denied entry because of ________.
Any reason
What’s the difference between the deportation of resident and nonresident aliens?
Resident aliens must be provided with notice and hearing prior to deportation
Congress has the power to protect eligible voters from discrimination in _________
Any state or federal election
The 15th Amendment prohibits discrimination based on:
- Race
- Color
- Any previous condition of servitude
The 19th Amendment prohibits discrimination based on __________.
Gender
The 24th Amendment prohibits discrimination based on ___________.
Payment of a poll tax
The 26th Amendment prohibits discrimination based on ______.
Age
The Voter’s Right Act provides for ____________.
Sanctions for voter discrimination
What is the Speech or Debate Clause?
Members of Congress shall be privileged from any liability for any speech/debate that takes place in Congress
Congress members will not be protected in their Congressional speeches in cases of:
- Treason
- Felony
- Breach of the peace
- Bribes
- Speeches made outside of Congress
- Republication of defamatory statements originally made in Congress
The constitutional provisions that give Congress the power to regulate the jurisdiction and procedures of federal courts do not authorize Congress to ______________.
Regulate state courts
Congress has the power to borrow money ________.
On the credit of the United States
Congress has monopoly power over __________.
Post offices and post roads
With its postal powers, what may Congress do?
Validly classify and place reasonable restrictions on the use of mail
With its postal powers, what may Congress NOT do?
Deprive any citizen/group of citizens of the general privilege to use/regulate the mail in a way that violates the 1st or 4th Amendments
What powers does Congress have over currency?
Power to coin money and regulate the value thereof
What powers does Congress have that would be most likely to affect your high school science class?
Fixing the standards for weights and measures
Congress’s power over bankruptcy is nonexclusive; states may legislate in bankruptcy so long as ________.
State bankruptcy laws do not conflict with the federal rules
Who has the power to control patents and copyrights?
Congress
What is the power of admiralty, and who has it?
Congress has the power to regulate all navigable waterways
What powers does the 10th Amendment grant the states?
All powers
1. Not granted to the US
2. Not prohibited to the states
SCOTUS has held that the concept of federalism embedded in the 10th Amendment disables Congress from ________.
Requiring states to enact laws or administer federal law
Congress cannot compel state legislative or regulatory activity, but may induce state action via _________.
Strings on grants
Strings imposed by Congress on financial grants have certain requirements:
- Conditions must be expressly stated
- Conditions must relate to the purpose of the program AND
- Pressure must not turn into compulsion
Congress may prohibit harmful _____ activity by state governments
Commercial
Congress may not determine what constitutes a ______ violation
Constitutional
Congress may not expand the scope of existing ____________.
Constitutional rights
Any Congress-made laws designed to prevent or remedy violations of rights already recognized bt the courts must be _________.
Proportionate and congruent to remedying constitutional violations
No limit exists on Congress’s ability to _______ legislative powers to ________.
Delegate
Executive or judicial branches
Congress may delegate rule-making authority to federal agencies through statutes that provide _______________.
Intelligible standards governing the exercise of that authority
Congress can delegate legislative powers that are not __________.
Uniquely confined to Congress
Both ______ and _______ are required for Congress to act.
Bicameralism
Presentment
What is bicameralism?
Passage by both the House and the Senate
What is presentment?
Presenting a bill to the President to sign or veto in its entirety
A ________ veto is unconstitutional
Legislative
What is a legislative veto?
An attempt by Congress to overturn an executive action without bicameralism or presentment
What foreign powers does the President have?
- Conduct foreign negotiations
- Deploy troops overseas
- Make executive agreements
SCOTUS has ruled that _______ alone has the authority to represent the US in foreign affairs.
The President
What is a treaty?
An agreement between the US and a foreign government
What are the requirements for US ratification of treaties?
- Negotiated by the President
- Ratified by 2/3 of the Senate
If a treaty conflicts with state law, which prevails?
The treaty
If a treaty conflicts with federal laws, which prevails?
Last in time
If a treaty conflicts with the US Constitution, which prevails?
The US Constitution
What is an executive agreement?
An agreement between the US and a foreign country that may be used for any purpose
Executive agreements become effective when ___________.
Signed by the President and the head of the foreign nation
Unlike a treaty, no ___________ is required for an executive agreement.
Senate ratification
If an executive agreement conflicts with state law, which prevails?
Executive agreement
If an executive agreement conflicts with federal law, which prevails?
Federal law
If an executive agreement conflicts with the US Constitution, which prevails?
The US Constitution
The President’s powers as________ allow him to deploy troops overseas
Commander-in-Chief
What is the “Take Care Clause”?
While the President doesn’t have the power to make laws, he has a duty to “take care” that the laws be faithfully executed.
What is the President’s appointment power?
President appoints all:
1. Ambassadors
2. Public ministers and consuls
3. SCOTUS judges
4. Officers of the US whose appointments are not provided
Limiting the President to ____________ violates the President’s power to nominate principal officers.
A list of nominees
Congress may vest the appointment of inferior officers in:
- The President alone
- Lower federal courts
- Heads of executive departments
Who are inferior officers?
Those who may be fired
THe President may remove any officer of the executive branch unless __________.
The removal power is limited by congressional statute
Congress may limit the President’s removal power if:
- It’s an office where independence from the president is desirable AND
- Statute limits, but does not prohibit, removal
Congress may not remove any _______ officer except by impeachment.
executive
What is Presidential immunity?
The President has absolute immunity from civil suits for damages for actions taken while in office
There is no Presidential immunity for actions taken __________.
Prior to taking office
There is executive privilege from presidential __________, but this privilege must yield to __________.
Memos and conversations
Other important government interests
The President has the power to pardon __________.
Any person accused of/convicted of federal crimes
Presidential pardons are only available for ________ liability.
Criminal
The President may not pardon a person for offenses that resulted in ________.
Impeachment
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
It is unconstitutional for the President to veto ________ and sign _______.
Part of a bill
The rest into law
How long does the President have to exercise his veto power?
10 days
If the President fails to exercise his veto power within 10 days, ________.
The bill becomes law if Congress is in session
The bill is automatically vetoed if Congress is not in session
What is the tripartite forumla?
The President’s power is at its apex when he acts pursuant to Congress-given power
It is lessened if there is no congressional legislation on the matter
It is at its lowest when acting in the face of congressional legislation
The President may only act in the face of congressional disapproval if ______________.
The power he exercises is vested in him alone by the Constitution and denied to Congress
When the President acts in the face of Congressional silence on a matter, the action will be approved if ____________.
The act is within the President’s power
The Supremacy Clause invalidates any state action that is ________.
Contrary to federal law
A state may regulate more extensively than federal statute so long as _____________
This does not frustrate the objective of the federal statute.
A state may not pass a law that _________ conduct that is included in a federal law.
Excludes
Express preemption occurs when _____________.
The federal law expressly states that it is the only regulation allowed and state regulation is prohibited
In the environmental law context, it. is acceptable for states to establish standards that are stricter than federal law, unless __________.
Clearly prohibited by Congress
In what three ways can implied preemption occur?
- Direct conflict
- Substantial interference
- Field preemption
When will direct conflict result in implied preemption?
If the federal law is in direct conflict with state law, the state law will be invalidated
When will substantial interference result in implied preemption?
A state law will be invalidated if it substantially interferes with a federal objective
When will field preemption result in implied preemption?
If Congress clearly conveys intent that federal law be the only source of regulation on a given issue, then any state law in that issue area is preempted
Federal government is immune from state ______ interference
Regulatory
States may not tax _________ government activity.
Federal
It is unconstitutional to pay ______ tax out of the federal treasury.
State tax
States may not regulate federal employees acting _______.
In the course of their federal duties
Any state law that has a substantial effect on interstate commerce must not:
- Be protectionist
- Otherwise impose an undue burden on interstate commerce
What is the dormant commerce clause?
If Congress has not acted, a state or local government may regulate local aspects of interstate commerce UNLESS state/local laws:
1. Discriminate against out-of-staters
2. Place an undue burden on interstate commerce
What does a protectionist law do?
Benefits in-state interests at the expense of out-of-state interests
A discriminatory state law is protectionist unless _________.
It serves a legitimate local interest that cannot be served by nondiscriminatory legislation
A discriminatory state/local statute will be upheld if it is necessary to achieve an ______, ________ state interest.
Important
Non-economic
When is a discriminatory statute necessary?
There are no reasonable nondiscriminatory means that would achieve the same objectives
How can Congress let a state regulation violate the Dormant Commerce Clause?
By unmistakably granting permission
A state or local government may violate the Dormant Commerce Clause by preferring its own citizens when acting as a ______________ participant.
Market
Even if a state/local law is not discriminatory, the law will nevertheless violate the Dormant Commerce Clause if __________.
The state/local law places an undue burden on interstate commerce
What is the balancing test for whether a law places an undue burden on interstate commerce?
If the burden outweigh the benefits the law will be struck down as unconstitutional
What is the privileges & immunities clause of Article IV?
No state may discriminate against nonresidents with respect to privileges and immunities.
The privileges and immunities clause only applies to actions by a state that discriminate against _________.
Citizens of other states
The Privileges and Immunities Clause only protects rights that are ______.
Fundamental to national unity
What rights are fundamental to national unity?
- Civil liberties OR
- Commercial activities
The Privileges & Immunities Clause does not protect ______ and _______.
Corporations
Aliens
A state/local law may discriminate against nonresidents if it has a substantial justification for the discrimination. There is substantial justification if:
- Nonresidents are a peculiar source of evil AND
- Law bears a substantial relationship to the problem being remedied (and there are no less restrictive means)
The Privileges or Immunities Clause of the 14th Amendment has been construed to only relate to the freedom to ______.
Travel
The following four-part test for state or local taxes on interstate commerce to be valid under the Commerce Clause:
- Tax system does not discriminate against out-of-state competition in an effort to benefit local business
- Tax must be applied to an activity that has a substantial nexus with taxing state
- Tax must be fairly apportioned to activities actually taking place in the taxing state
- To be valid, the tax must be fairly related to services provided by the taxing state
Congress may apply the Constitution to private action via statute in what circumstances?
- 13th Amendment (race discrimination)
- Applying the constitutional norm of equality to private conduct under the Commerce Clause
- Sec. 5 of the 14th Amend.
What is the state action requirement?
The Constitution only applies to government action, not private action
What are the two main exceptions to the state action requirement?
- Public function exception
- Entanglement exception
What is the public function exception to the state action requirement?
The Constitution applies to private entities when they perform a task traditionally and exclusively performed by the government
What is the entanglement exception to the state action requirement?
An entity must comply with the Constitution if the government has commanded, authorized, encouraged, or facilitated the unconstitutional conduct
There is entanglement if courts enforce _______ restrictive covenants.
Racially
There is entanglement if the government leases space to a private entity that __________.
Racially discriminates
There is entanglement when the government provides ___________ to schools that racially discriminate.
Free text books
There is entanglement when a private entity regulates interscholastic _______ within a state
Sports
There is no entanglement just because a private entity receievs _________.
Government funding
There is no entanglement if the NCAA orders the suspension of a basketball coach at ________.
A state university
There is no entanglement when a private club with a_________ racially discriminates.
State liquor license
There is no entanglement in the _________, _____, and _______ of a university.
Accreditation
Regulation
Partial funding
The Bill of Rights is applicable to state and local governments through _________.
Incorporation of the Due Process Clause. of the 14th Amendment
Which Bill of RIghts have not been incorporated by SCOTUS?
- Right to not have soldier quartered in your house
- Right to grand jury indictment in criminal cases
- Right to jury trial in civil cases
Under the rational basis test, the law will be upheld as constitutional as long as __________.
It is rationally related to a legitimate government interest
Under rational basis review, the means must be ______.
Rationally related to the purpose
Under rational basis review, the ends must. be________.
Any conceivable legitimate purpose
Under rational basis review, the burden of proof is on ______
The challenger
Under the intermediate scrutiny test, the law will be held unconstitutional unless __________.
It is substantially related to an important government interest
Under intermediate scrutiny, the means must be ___________.
Substantially related
Under intermediate scrutiny, the ends must be _______.
An actual and important government interest
Under intermediate scrutiny, the burden of proof is on _________.
The government
Under strict scrutiny, a law is unconstitutional unless _________.
it is narrowly tailored to serve a compelling government interest
What means are required under a strict scrutiny analysis?
Necessary means
Strict scrutiny is also known as the __________ analysis.
Least restrictive alternative analysis
What is the least restrictive alternative analysis?
No less restrictive alternatives could be used to accomplish the government’s purpose
What ends are required under a strict scrutiny analysis?
The government has an actual and compelling interest
In strict scrutiny analysis, the burden of proof rests on _______.
The government
What is the function of the due process clause?
- Impose certain procedural requirements on the government before it may deprive a person of life, liberty, or property
- Limit the substantive power of the government to regulate certain areas of life
The Due Process Clause obligates the government to provide an individual with an opportunity to be heard only when _________.
The government takes an action that deprives the individual of life or a protected property/liberty interest
_____________ inflicted harms do not qualify as due process violations
Privately
There is no due process violation unless the government’s action was____ or at the very least _______.
Intentional
Reckless
There is no procedural due process violation if the injury was caused by the government’s _______.
Negligence
In an emergency situation, due process is only violated by the government according to a _______________ standard.
Shock the conscience standard
What is the shock the conscience standard?
There is no liability in emergency situations unless the government acted with the intent of harming the victim
What is the loss of liberty in terms of due process?
Loss of a significant freedom secured by the Constitution or a statute
Institutionalization of an adult requires:
- Notice
- Hearing
…unless it’s an emergency
Institutionalization of a child requires _______.
Screening by neutral fact finder
Damage to a person’s ________ by itself is not a deprivation of liberty.
Reputation
What is a habeas corpus petition?
A separate civil suit for the release of a prisoner who has been unlawfully imprisoned
What does a writ of habeas corpus do?
- Brings the prisoner before the court AND
- Requires custodian present proof of authority
A habeas corpus hearing requires a court to determine whether or not _________.
Custodian has lawful authority to detain the prisoner
Loss of property is also known as a loss of ________.
Entitlement
What is entitlement?
A reasonable expectation of continued receipt of a benefit
Is a prior evidentiary hearing required? In order to decide, the court will apply a balancing test:
- Individual’s private interest
- Risk of erroneous deprivation
- Value of additional/substitute procedural safeguards
- Government interests
Termination of welfare benefits requires:
- Pre-termination notice
- Hearing
Termination of social security/disability benefits requires:
- Post-termination notice
- Hearing
Prejudgment seizure of assets by the government requires:
- Notice
- Pre-seizure hearing
The government may seize property used in illegal activity even if ________.
The actual property owner is innocent
If an American citizen is detained as _____ or ______, due process is required.
Terrorist
Enemy combatant
Permanent termination of parental custody requires:
- Notice
- Hearing
Punitive damages require:
Jury & judicial review
When are punitive damages unconstitutional because they violate due process?
Grossly excessive punitive damages
Discipline by public school requires:
- Notice of charges
- Opportunity to explain
When it comes to school discipline, _____ does not require due process.
Corporal punishment
What is a bill of attainder?
A legislative act that inflicts punishment on named individuals or on easily identifiable members of groups
Why does a bill of attainder deny individuals proper due process?
By convicting and punishing them without judicial trial
Who can issue bills of attainder?
No one; the US Constitution forbids it
Although due process entitles an individual to notice and hearing before being deprived of an interest in liberty or property, these requirements do not apply to _________ acts.
Legislative
A law is a substantive due process issue if _______.
A law limits the ability of everyone to engage in an activity
The government must have a ______ reason before depriving a person of life, liberty, and property.
Substantive
Substantive due process protects ______ liberties and ______ rights.
Liberties
Fundamental
Deprivation of economic liberties is subject to the _________ test.
Rational basis test
State or local governments may not impair existing ________.
Contracts
What contracts does the Contract clause NOT apply to?
- Federal government contracts
- Future contracts
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
State or local interference with _____ contracts must meet a strict scrutiny standard.
Government
The Ex Post Facto Clause only applies to _________ cases.
Criminal
Explain the constitutionality of retroactive criminal liability.
A law may not
1. Retroactively punish actions that were lawful when committed OR
2. Retroactively increase the punishment for crimes
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
What is the Takings Clause?
The government may take private property for public use if it provides just compensation
A taking may be either:
- Possessory OR
- Regulatory
What is a possessory taking?
The government confiscates/physically occupies a person’s property
A _______ action is always considered a taking.
Possessory
What is a regulatory taking?
A government regulation that eliminates the investment-backed expectation and economic value of an individual’s property
If there is a regulatory taking, the government must _________.
Pay just compensation, regardless of the reason for regulation
A mere decrease in ________ is not sufficient to find a regulatory taking.
Value
Government restrictions on development must be justified by a benefit that is __________ or there will be a taking.
Roughly proportional to the burden imposed
A property owner may still bring a takings challenge to regulations even if those regulations existed ________.
When the property was acquired
Temporary denial of development of property is not a taking if _________.
The government’s action is reasonable
For either a possessory or a regulatory taking to be constitutional, it must be for ____ use.
Public
The public use requirement is satisfied if the government acts __________.
Under the reasonable belief that the taking will benefit the public.
Just compensation must be paid to the owner of the property at what time?
The time of the taking
How is just compensation calculated?
The fair market value measured in terms of loss to owner
_____ is irrelevant to the calculation of just compensation.
Government gain
What happens if there is an invalid taking?
- Terminate the government regulation AND
- Pay the owner for damages that accrued while the invalid regulation was in effect
When is equal protection invoked?
When a law treats one person or class of persons differently from others
What applies equal protection to the federal government?
Due Process Clause of the 5th Amendment
What applies equal protection to the states?
Equal Protection Clause of the 14th Amendment
Race and national origin classifications are subject to what level of scrutiny?
Strict scrutiny
A law automatically classifies as discriminating on race and national origin if it ______ discriminates.
Facially
A facially neutral law is still unconstitutionally discriminatory when it has:
- Discriminatory impact AND
- Discriminatory intent
Racial classifications that benefit minorities are permitted if ______.
Used to remedy past discrimination
In order to pass a law that benefits racial minorities, the government must prove _____.
The means chosen are necessary to achieve a compelling government interest
Numerical set asides to benefit racial minorities requires _________.
Clear proof of past discrimination
Public school systems may not use race to assign students to a particular school unless ________.
The standards of strict scrutiny are satisfied
In public schools, only ________ segregation is unconstitutional.
Intentional
If established in a racially neutral manner, ___________ in public schools is not unconstitutional.
Racial imbalance
Colleges and universities may use race in determining admissions as long as _____.
It is one factor among many
Colleges and universities may use race to enhance diversity because _______.
They have a compelling interest in having a diverse student body
What kinds of race classifications for college admissions are unconstitutional?
- Quotes
- Set-asides
- Points awarded to applicant solely on the basis of race
Who can outlaw affirmative action?
State voters
Peremptory challenges on the basis of ________ or _______ violate equal protection and are unconstitutional.
Race
Gender
Race cannot be a predominant factor in drawing boundaries of a voting district unless ______________.
The district plan meets strict scrutiny
Alienage means _______.
Not having US citizenship
Generally, what level of scrutiny is applied to alienage cases?
Strict scrutiny
What standard is used for federal statutes that discriminate against aliens?
Rational basis review
Federal discrimination will be upheld. ifnot ______ and ________.
Arbitrary
Unreasonable
Rational basis scrutiny is appropriate when alienage classifications restrict the right to _____________.
Participate in functions that are central to self-government and the democratic process
_________ aliens are not considered a suspect class, so state laws that discriminate against them are reviewed under rational basis.
Undocumented
The only law against undocumented aliens that is subject to intermediate scrutiny is __________.
Denial of free public education to undocumented alien children
What level of scrutiny is required for gender classifications?
- Intermediate scrutiny AND
- Exceedingly persuasive justification
A facially neutral law has discriminatory impact on gender when there is:
- Discriminatory impact
- Discriminatory intent
A gender law is discriminatory if it ________ discriminates.
Facially
Classifications intended to benefit women are reviewed under what standard?
Intermediate scrutiny
Gender classifications that benefit women on the basis of _________ are not allowed.
Role stereotypes
Gender classifications designed to ___________ are generally valid.
Remedy past discrimination
Discrimination against children conceived out-of-wedlock is subject to what level of scrutiny?
Intermediate scrutiny (law must be substantially related to an important government purpose)
What scrutiny would be applied to laws discriminating based on religion?
Strict scrutiny
Age discrimination is subject to what level of scrutiny?
Rational basis review
Disability discrimination is subject to what level of scrutiny?
Rational basis review
Wealth discrimination is subject to what level of scrutiny?
Rational basis review
Economic regulations are subject to what level of scrutiny?
Rational basis review
Sexual orientation discrimination is subject to what level of scrutiny?
Rational basis review
The federal government may not discriminate against same-sex couples who are _________.
Legally married under a state law
Discrimination against convicts is subject to what level of scrutiny?
Rational basis review
The applicable standard of review for most fundamental rights is __________.
Strict scrutiny
If a fundamental right is denied to everyone, it is a ______ problem.
Substantive due process
If a fundamental right is denied to some people but not others, it is a ________ problem.
Equal protection problem
A violation of the right to privacy is subject to what level of scrutiny?
Strict scrutiny
What rights fall under the right to privacy?
- Marry
- Procreate
- Contraceptives
- Private sex
- Porn
- Parental rights
- Keep family together
Why is same-sex marriage a constitutional right?
Because the right to marry is inherent to a person’s liberty
The 14th Amendment requires states to recognize same-sex marriages that are _______.
Validly performed out of state
A state has no legitimate interest in preventing consenting adults from engaging in ______ and ______ sexual conduct.
Private
Non-commercial
The right to read obscene material in one’s home is limited to ________.
Reading materials in one’s home
What are the exceptions to reading obscene material in one’s home?
- Selling porn
- Purchasing porn
- Transporting porn
- Child porn
What are the two subsets of parental rights?
- Right to custody of children
- Right to control upbringing of one’s children
What is the exception to the parental right to custody of children?
A state may create an irrebuttable presumption that a woman’s husband is the father
Requiring children to attend _______ infringes on the right of parents to control the upbringing of their children.
Public schools
Laws refusing school admission to ___________ students are within states’ police power to protect public health.
Unvaccinated students
The right to control the upbringing of one’s children permits parents to forbid visitation with _______.
Grandparents
The right to keep family together includes what family members?
Related extended family
The right to privacy does not include the right to __________ suicide.
Physician-assisted
Certain rights are fundamental, but it’s unclear what level of scrutiny they are protected by. These include:
- Engaging in homosexual activity
- Refsusing medical treatment
A competent person has a right to refused unwanted medical treatment, even _________.
Life-saving medical care
A state may require _________ as to the withdrawal of life-sustaining treatment.
Clear and convincing evidence of the incompetent’s wishes
A state is allowed to prevent _________ from making the decision to terminate medical treatment.
Family members
What is the current state of the right to abortion?
Each state has the power to enact laws permitting , limiting, or banning abortion
A firearm regulation is valid if _______.
The regulation is consistent with historical traditions of firearm regulation
SCOTUS has expanded the 2nd Amendment safeguards to _______.
Right to bear arms for traditional lawful purposes
What is the freedom of movement?
Every citizen is permitted to travel from state to state to change her state of residence or employment
Any law that prevents an individual from moving into a state must satisfy what level of scrutiny?
Strict scrutiny
Any law that establishes ______ residency requirements must satisfy strict scrutiny.
Durational
States may impose voting residency requirements of ______.
50 days
There is no fundamental right to ______ travel.
International.
If the right in question is not fundamental, it is subject to _______ review.
Rational basis
Restrictions on the right to vote are subject to what level of scrutiny?
Strict scrutiny
_______ ownership requirements for the right to vote/hold office are unconstitutional.
Property
Property ownership requirements can be set for voters for ________.
Special purpose government units
Conditioning the right to vote on the payment of _________ is unconstitutional.
A poll tax
What requirements for voters are constitutional?
- Residency
- Age
- Citizenship
- Felon status
Laws enacted to prevent voter fraud only need to be ___________.
On balance desirable
What principle applies any time representatives are elected by popular election from individual districts?
One person, one vote principle
A state must use ______ when apportioning congressional districts within the state.
Almost exact mathematical equality
Exact mathematical equality is not required for _______.
Congress’s method of apportioning representatives among the states
The variance in the number of persons included within districts must be about the same amount for __________.
State or local elections for government bodies
The government may limit the class of persons who are allowed to vote in special-purpose government units if the unit will ________.
Have a special impact on the enfranchised voters
At-large elections are constitutional unless ________.
There is a discriminatory purpose
Is there a fundamental right to education?
No
Is there a fundamental right to medical services?
No
Is there a fundamental right to practice a trade or profession?
No
Is there a fundamental right to housing?
No
If the type of speech you encounter is not protected speech, apply the standard for ________.
That type of speech, not protected speech
If a restriction on protected speech is content-based, what level of scrutiny should be applied?
Strict scrutiny
If a restriction on protected speech is not content-based, then we need to discuss ________ and apply the appropriate legal standards.
Where the speech is taking place
For content-based restrictions to be valid, the restrictions must be __________.
Narrowly tailored to achieve a compelling government interest
What are the two types of content-based restrictions on speech?
- Subject matter restriction
- Viewpoint restriction
For content-neutral restrictions on speech to be valid, the restrictions must be _______.
Substantially related to an important government purpose
What are content-neutral regulations?
Laws that apply to all speech regulating the time, place, or manner of the speech regardless of its content
What are public forums?
Government properties that the government is constitutionally required to make available for speech
What is the test for regulation of speech at a public forum?
- Regulation is content-neutral
- Restriction is a valid time, place, or manner
- Serve an important government interest
- Be narrowly tailored to that government interest
- Leave open alternative channels of communication
It is unconstitutional for a government official to have discretion in ________ for public demonstration permits
Setting the fee
What are designated public forums?
Public properties not historically available for speech that the government has opened up for speech.
What standard applies to limited public forums?
Same standard as public forums
When can the government constitutionally regulate speech on government properties closed to speech?
- Regulation meets rational basis test AND
- Viewpoint is neutral
There is no First Amendment right to access _____ for speech purposes.
Private property
The First Amendment does not protect speech by government officials made:
- On the job AND
- In the scope of their duties
What is a true threat?
Threatening communication that can be prosecuted under the law
A true threat is distinct from a threat made ______.
In jest
Why aren’t true threats protected under the 1st Amendment?
- Preventing fear
- Preventing disruptions that follow from fear
- Diminishing the likelihood that the threatened violence will occur
Are fighting words protected speech?
No, but laws prohibit fighting words are unconstitutionally overbroad
What are fighting words?
Insults directed to the hearer that are likely to provoke an ordinary person to violence
If speech might cause lawless action, the government can punish speech if:
- Purpose to cause imminent lawless action AND
- Substantial likelihood of imminent lawless action
When can public officials recover for defamation & libel?
- Statement was false AND
- Person who made the statement acted with actual malice
When is there actual malice for defamation and libel?
- Knowledge that the statement is false OR
- Reckless disregard as to whether the statement is true/false
What is the burden of proof for finding defamation & libel against public officials?
P must show these two elements with clear and convincing evidence
Private figures can recover for libel & defamation only if:
- Statement was false AND
- Person who made the statement acted with negligence
If a plaintiff is a private figure, but the matter is of public concern, then the plaintiff must show _________ in order to recover punitive damages.
Actual malice
Speech is considered obscene and unprotected if:
It describes or depicts sexual content that:
1. Appeals to the prurient interest
2. Is patently offensive AND
3. Lacks serious literary, artistic, political, or scientific value
When does speech appeal to the prurient interest?
When the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
What is a prurient interest?
Shameful/morbid interest in sex
What regulations are allowed for adult bookstores & movie theaters?
Zoning ordinances
Why can governments provide zoning ordinances for adult bookstores and movie theaters?
Because the government has an important interest in preserving the character of its neighborhoods
Child pornography must _________ to be prohibited.
Actually use children
Profane and indecent speech is generally protected except in:
- Broadcast media
- Schools
Commercial speech may only be regulated at the standard of _____ scrutiny.
Intermediate
What kind of commercial speech is not protected?
- Unlawful activity
- Misleading/fraudulent
Is anonymous speech protected?
Yes
For campaign contributions, corporations cannot _______.
Be treated differently
What kinds of limits are constitutional for contributions to election campaigns?
Contribution limits
What kinds of limits are unconstitutional for contributions to election campaigns?
Expenditure limits
What kinds of limits are unconstitutional for ballot initiatives?
Both contribution and expenditure limits
What is symbolic speech?
The medium itself is the message (like a flag burning)
Is symbolic speech protected?
Yes
Symbolic speech is also known as ______.
Expressive conduct
Expressive conduct requires:
- The individual intended to communicate a message AND
- The audience was likely to understand the communication
The government may regulate symbolic speech if:
- Important interest unrelated to suppression of message AND
- Narrowly tailored to further a substantial government interest
What types of symbolic speech are outright protected?
- Flag burning
- Cross burning
What types of symbolic speech are not protected by the Constitution?
- Draft card burning
- Nude dancing
What is a prior restraint?
Government action that restricts free speech. in advance of publication
A prior restraint is generally ________.
Invalid
For licensing for a speech to be held constitutional, there must be:
- Important reason for licensing
- Clear criteria leaving no discretion AND
- Procedural safeguards
Court orders suppressing speech before it occurs must satisfy what level of scrutiny?
Strict scrutiny
Procedurally proper court orders must be complied with until _______.
The order is overturned
All gag orders on the press to prevent ________ are unconstitutional.
Pre-trial publicity
When is a statute regulating speech unconstitutionally vague?
If a reasonable person cannot tell what type of speech is prohbited and what type of speech is permitted under the statute
A regulation restricting speech is unconstitutionally overbroad if ________.
It punishes speech that is constitutionally protected.
A state may not impose liability for the accurate publication of information ____________.
In the public record
A publisher who obtains truthful information that is a matter of public concern cannot. be punished even if _______________.
The information was obtained from a source who obtained the information unlawfully
The freedom of association prohibits a state from _________.
Inquiring about an individual’s associations in order to withhold a right/benefit because of the individual’s beliefs
Prohibitions on group membership must satisfy what level of scrutiny?
Strict scrutiny
Membership in an association may not be deemed an endorsement of the illegal activities unless:
- D is actively affiliated with the group
- D has knowledge of the group’s illegal activities AND
- D has specific intent to further those illegal activities
Regulations requiring disclosure of group association are subject to what level of scrutiny?
Strict scrutiny
Laws prohibiting a group from discriminating unless:
- It is an intimate association OR
- Discrimination is integral to the purpose of the group
The government may not fire an employee because of their views/affiliations unless __________.
Certain political views or affiliations are required for the effective performance of the employee’s job
What constitutes a religion under the freedom of religion?
Any religion that the practicing individual has a genuine belief in
When is the Free Exercise Clause implicated?
When there is state action that restricts one’s religious beliefs or practices
What level of scrutiny applies to laws that intentionally interfere with or burden the free exercise of religion?
Strict scrutiny
Restriction on religious practice/freedom does not invoke the Free Exercise Clause unless ________.
The government action specifically targeted the religious practice in question
The overall purpose of the Establishment Clause is to ________.
Maintain a separation between church and state
When the Establishment Clause is invoked, what test applies?
- There is a secular purpose
- The effect does not advance/inhibit religion AND
- Government action doesn’t foster excessive government entanglement with religion
What interaction of religion and public schools is unconstitutional?
When the government introduces religion into public schools
A school may provide access to school facilities for religious groups, so long as _________.
Nonreligious groups have equal access
What kinds of school prayers violate the Establishment Clause?
Officially sponsored ones
Displays of religious themes are permissible so long as _______.
The religious symbols are surrounded by primarily secular symbols
Government assistance to parochial schools is permitted so long as __________.
The assistance is not used for religious instruction
Laws requiring merchants to be closed on Sundays don’t violate the Establishment Clause as long as ________.
Current motive for the law is secular
