Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Exam > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

11th Amendment Limit on Justiciability

A

Citizens can’t sue a state in Fed Ct

Abrogation: Congress may expressly repeal state immunity if acting to enforce rights under 13th, 14th, 15th Amendments

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

A final state-court resting upon _ _ and _ _ state grounds is not reviewable by SCOTUS

A

adequate and independent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Elements of Individual Standing

A
  1. Injury in Fact
  2. Causation
  3. Redressability
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Elements of Organizational Standing

A
  1. Individual members have standing
  2. Claim related to purpose of organization
  3. Individual members NOT necessary to adjudicate claim
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Mootness

A

There must be a live controversy

Exception: Controversy capable of repetition but is evading review

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Ripeness

A

real injury or immediate threat thereof; not speculative

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Under the full faith and credit clause, when must a state court recognize and enforce a judicial decision by a court in another state?

A

(1) that court had personal and subject-matter jurisdiction,
(2) the case was decided on its merits, AND
(3) a final judgment was entered.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Types of interstate commerce Congress can regulate under the Commerce clause (Art. 1, Sec. 8)

A
  1. Channels (highways, waterways)
  2. Instrumentalities (planes, trains, automobiles)
  3. Activities w/ substantial effect on interstate commerce
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What do courts consider in determining whether Congress can regulate an activity under the Commerce Clause?

A

(1) the activity is economic in nature,
(2) the regulation contains a jurisdictional element,
(3) Congress made express findings on the activity’s effect on interstate commerce, AND
(4) there is a strong link between the activity and that effect.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is “substantial effect” as it pertains to the Commerce Clause?

A

Economic activity presumptively has substantial effect

Aggregation applies to intrastate economic activity; Congress can regulate if, in the aggregate, the activity has effect on interstate commerce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Congress’s Spending Power applied to states

A

Federal funds can be conditioned on states implementing certain regulations as long as the condition is related to the purpose of the funds and the condition is not coercive

“Commandeering” violates 10th Amendment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Executive Powers – Domestic Affairs

A
  1. Appointment and removal powers
  2. Pardon power
  3. Commander in chief power
  4. Duty to execute laws
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Executive Powers – Foreign Affairs

A
  1. Conduct foreign negotiations
  2. Deploy troops overseas
  3. Make executive agreements
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Supremacy Clause

A

Federal law governs when there is a conflict with state law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is express preemption?

A

Federal law explicitly states it is only law allowed in that area

  • State laws addressing issue are invalid
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is implied preemption?

A

Congress passes law intending to “occupy field” and state law directly or indirectly conflicts with Fed law

NOTE: State can pass stricter laws, so long as they don’t conflict

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What are the four clauses in Art. IV?

A

Full faith & credit: States must recognize public acts, records & judicial proceedings of other states

Privileges & immunities: States cannot deny rights of state citizenship to citizens of other states

Property: Congress can dispose of & regulate federal land/territories

Guarantee: Federal government must guarantee states republican form of government & protect states from invasion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What does the Comity Clause (Privileges and Immunities of State Citizenship) of Article IV do?

A

Prohibits states from discriminating against nonresidents, unless necessary to achieve important government interest

NOTE: Protection applies only to individual citizens and states CAN discriminate with regards to recreational opportunities (ex. hunting license)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

10th Amendment and Comandeering

A

All powers not expressly given to federal government are reserved to the states.

Fed gov cannot force state legislatures to pass legislation (“comandeering”)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is the Dormant Commerce Clause?

A

Applies in the absence of federal legislation to prevent a state from discriminating against out-of-state commerce or unduly burdensome interstate commerce. It also prevents a state from regulating wholly extraterritorial activity.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is “discrimination” under the Dormant Commerce Clause?

A

Statute that is discriminatory on its face or by its impact.

To avoid violating, state must show
1. important state interest; AND
2. no other non-discriminatory way to achieve interest

Market participant exception: state acting as buyer or seller can favor local business

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Besides the market participant exception to the dormant commerce clause, what are the three other exceptions?

A
  1. Traditional government function
  2. Subsidy exception
  3. Congressionally permitted discrimination
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is “unduly burdensome” under the Dorman Commerce Clause?

A

Nondiscriminatory law may still be invalid if it causes “undue burden” on interstate commerce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What three factors does a Court consider when determining if a statute is unduly burdensome re: Dormant Commerce Clause?

A
  1. Purpose of statute
  2. Burden on interstate commerce
  3. Less restrictive alternatives
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the requisite event to assert violation of individual rights?

A

State Action: wrongful conduct by government

NOTE: Private entity can engage in state action if
1. Act traditionally performed by government; OR
2. Intwined with state actor (ex. joint venture w/ gov)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What is guaranteed by the 5th Amendment’s Takings Clause?

A

Government may not take private property for public use without “just compensation” (based on fair market value at time of taking)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What are the two types of government takings?

A
  1. Physical
  2. Regulatory
28
Q

What is a physical taking under the Takings Clause?

A

Government physically takes/occupies land

29
Q

What is a regulatory taking under the Takings Clause?

A

Effect of law is decreased property value

Total Taking: zero viable economic use of property
Partial Taking: affects some but not all economic use of property

For partial taking, courts look at
1. Economic impact: how must value lost?
2. Reasonable expectations: owner’s reasonable expectation of return on investment
3. Character of regulation: does regulation affect few owners or entire population?

30
Q

What is exaction re: Takings Clause?

A

Local gov may compel promises from developer in exchange for construction permits

NOT taking if
1. Essential nexus between legit state interests and conditions imposed; AND
2. Rough proportionality between burden on owner and impact on community

31
Q

Procedural Due Process

A

Government shall not deprive person of life, liberty, property without due process

Process includes
1. Notice
2. Hearing
3. Neutral decisionmaker
4. Right to appeal

32
Q

Factors in determining amount of process due

A
  1. Interest affected: life, liberty (including fundamental rights), property
  2. Value of additional safeguards
  3. Burden or cost of additional process
33
Q

Substantive Due Process

A

Asks whether government action impermissibly infringes on individual’s rights

Based upon the idea that laws should be reasonable and not arbitrary

34
Q

Standards of review for due process violations

A
  • Fundamental Rights (life, liberty, property, voting, travel, privacy) = strict scrutiny (necessary to achieve compelling governmental interest)
  • Non-funamental rights = rational basis (rationally related to legit gov interest)
35
Q

When can Congress revoke citizenship status without the citizen’s consent and not be in violation of the Fourteenth Amendment?

A

Citizenship obtained in bad faith or fraud

36
Q

When does the Equal Protection Clause apply?

A

When the Government treats different classes of people differently

If the law has a discriminatory intent, apply strict or intermediate scrutiny (based on classification)

If the law has a disparate impact (not discriminatory intent), apply rational basis

37
Q

What is strict scrutiny?

A

Government must show
1. Least restrictive means
2. To achieve compelling government interest

Applies to law involving classifications based on
1. Race
2. Ethnicity
3. National origin
4. Law implicating fundamental rights

38
Q

What is intermediate scrutiny?

A

Government must show
1. Substantial relation
2. Important gov interest

Applies to laws involving gender and non-marital children

NOTE: If gender, must show “exceedingly persuasive justification”; facilities must be substantially equivalent

39
Q

What is rational basis?

A

Plaintiff must show law is NOT rationally related to legit gov interest

40
Q

What is the Enabling Clause?

A

14A, Sec. 5: Congress may pass legislation enforcing equal protection and due process rights (overriding state statutes)

41
Q

When is a regulation of symbolic speech valid?

A
  1. Furthers important gov interest
  2. Unrelated to suppression of ideas
  3. Burden on speech no greater than necessary
42
Q

When is a statute overbroad?

A

Regulates more speech than necessary to protect compelling government interest

43
Q

When is a statute vague?

A

Fails to provide person of ordinary intelligence with fair notice of what is prohibited

44
Q

What is a prior restraint?

A

Prohibits speech before it occurs.

Requirements:
- Must seek to avoid particular harm
- Must have procedural safeguards in place (narrowly drawn, reasonable, definite)

45
Q

Does the First Amendment right to free speech extend to silence?

A

Yes, silence is protected under 1A. For example, a student cannot be compelled to recite the pledge of allegience.

46
Q

What level of scrutiny applies to content-based regulations?

A

Strict scrutiny

Government must show regulation is necessary to achieve a compelling gov interest and the regulation is narrowly tailored to meet that interest

47
Q

What level of scrutiny applies to content-neutral regulation?

A

Intermediate scrutiny

48
Q

What level of scrutiny applies to content-neutral time, place, and manner restrictions?

A

Validity depends on the type of forum:
- public
- designated public
- non-public

49
Q

When may commercial speech be prohibited?

A

If it is false, misleading, or unlawful

50
Q

When can protected commercial speech regulated?

A
  1. The gov interest is substantial
  2. Reg directly advances interest; AND
  3. Reg is narrowly tailored
51
Q

What is obscenity?

A

Average person applying contemporary community standards finds the speech:

  1. Appeals to prurient interest (community standard)
  2. Depicts sexual conduct in patently offensive way (community standard)
  3. Lacks serious literary, artistic, political, or scientific value (national standard)
52
Q

What is incitement to violence?

A

Speech that advocates for use of force or unlawful action AND

  1. It is directed to inciting or producing lawless action; AND
  2. Is likely to incite or produce such action (ie. creates clear and present danger)
53
Q

What are fighting words?

A

Words that are likely to incite immediate breach of peace by their very nature

Must be genuine likelihood of imminent violence

54
Q

What types of speech are unprotected?

A
  1. Obscenity
  2. Incitement to violence
  3. Fighting words
55
Q

Two considerations re: Defamation

A
  1. Plaintiff is public official or figure
  2. Speech involves matter of public concern
56
Q

Regulating Speech in Traditional Public Forum

A

If content-based, then strict scrutiny
If content-neutral subject to time, place, and manner, then the reg must be
1. Narrowly tailored
2. Serves significant gov interest
3. Leave open ample alternative channels for communication

57
Q

Regulating speech in a Designated Public Forum

A

If content-based, then strict scrutiny
If content neutral subject to time, place, and manner, then reg must be
1. Narrowly tailored
2. Serves significant gov interest
3. Leave open ample alternative channels for communication

58
Q

Regulating speech in Non-Public Forum

A
  1. Regulation is viewpoint neutral
  2. Reasonably related to legit gov interest

Examples: Gov offices, schools, jails, military bases, airport terminals, privately-owned areas held open to public)

59
Q

What does the Establishment Clause prohibit the government from doing?

A
  1. Establishing a religion
  2. Preferring a particular religion over another
  3. Preferring religion over non-religion
60
Q

If statute shows preference for one religion over another, or to religion over non-religion, what level of scrutiny applies?

A

Strict scrutiny

60
Q
A
61
Q

If a facially neutral statute might have the effect of favoring religion, what test applies?

A

“Historical practices and understandings” of environment in which preference is occurring.

Ask: Does it appear gov is establishing religion, favoring one religion over another, or preferring religion over non-religion?

61
Q
A
62
Q

What does the Free Exercise Clause do?

A

Protects freedom to believe and freedom to act

NOTE: Philosophies and political beliefs not protected like religion

63
Q

How is “belief” treated under the Free Exercise Clause?

A

A genuine belief is absolutely protected

64
Q

What test applies to laws regulating conduct as it applies to religion?

A

Strict scrutiny if the law intentionally targets religious conduct

Rational basis applies for laws that are generally applicable, even if they happen to impact religion

Bar Exam (16 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions