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Rules for CA Bar Exam (Attack Sheet) > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

Must there be a case or controversy in dispute for courts to have jurisdiction?

A

Yes

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2
Q

Are declaratory judgments permitted in federal courts?

A

Yes

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3
Q

Are advisory opinion permitted in federal courts

A

No

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4
Q

Can political questions be heard in federal courts?

A

No

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5
Q

How does an individual plaintiff establish standing?

A

Actual injury caused by conduct complained of, and redressability. (Injury, causation, redressability)

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6
Q

How does a third party plaintiff establish standing?

A

Individual standing, special relationship between plaintiff and third party, and difficult for 3rd party to assert his own rights.

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7
Q

How does an organization establish organizational standing?

A

Members have standing in their own right, interests related to organization’s purpose, case does not require participation of individual members.

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8
Q

Who has standing to sue of federal tax or spending program that violates Establishment clause?

A

Federal taxpayers.

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9
Q

Ripeness

A

Case won’t be heard yet if there isn’t yet a live controversy or immediate threat of harm.

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10
Q

Mootness

A

Case won’t be heard if live controversy existed at the time complaint was filed, but has since been eliminated. Exceptions: Capable of repetition yet evading review, voluntary cessation.

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11
Q

What are two exceptions to the mootness requirement?

A

Capable of repetition yet evading review; voluntary cessation of action by defendant.

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12
Q

Eleventh amendment

A

Provides immunity to states from federal suits by citizens of another state, or citizens of a foreign state.

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13
Q

Does 11th amendment prohibit suits by states or federal government?

A

No

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14
Q

Does 11th amendment prevent suits against subdivisions of state and suits seeking injunction against state official?

A

No.

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15
Q

What is the state action requirement?

A

For action to violate constitution there must be GOVERNMENT INVOLVEMENT with the state action.

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16
Q

Under what circumstances can actions by a private actor qualify as state action?

A

private actor performs functions that are traditionally and exclusively public functions (parks, prisons); or state heavily involved in activity (commanding, encouraging, entangled).

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17
Q

Tenth Amendment

A

Powers not delegated to federal government or prohibited by Constitution are reserved to the states.

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18
Q

Can Congress compel state or city to pass a law?

A

No, 10th Amendment.

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19
Q

What are the powers of congress?

A

Regulate Commerce, Taxing and Spending Clause, War Powers, Naturalization and bankruptcy; post-civil war amendments necessary and Proper Clause - anything necessary and propert execute any enumerated powers.

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20
Q

Thirteenth Amendment

A

abolition of slavery

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21
Q

Fourteenth Amendment

A

establishment of equal rights

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22
Q

Fifteenth Amendment

A

right to vote - irrespective of race

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23
Q

Can Congress regulate activities between states under its power to regulate commerce?

A

Yes - channels and instrumentalities of interstate commerce, persons and things moving in interstate commerce, activities that affect interstate commerce. (Broad!)

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24
Q

Can Congress regulate intrastate activities under its power to regulate commerce?

A

Yes - but different standards for commercial v. non-commercial activity. commercial/economic activity can be regulated if rational basis to believe activity will cause substantial economic effect on interstate commerce, or substantial cumulate economic effect; non-commercial activity: direct and substantial effect on interstate commerce.

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25
Q

What kinds of cases may be heard under the federal judicial powers?

A

Cases arising under laws of US, admiralty, between 2+ states, citizens of different states, state (or citizens) v. foreign country or citizen.

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26
Q

Independent and Adequate State Grounds

A

When there are independent and adequate state grounds for a state court’s decision, SCOTUS will not review - even if federal Q involved.

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27
Q

Which branch may make treaties with foreign nations?

A

Executive branch, subject to 2/3 Senate approval

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28
Q

Executive privilege

A

President’s qualified right to refuse to disclose confidential information relating to performance of his duties.

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29
Q

Supremacy Clause

A

Constitution is the supreme law of the land; any state law that directly conflicts with federal law, impedes the objectives of federal law, or regulates area traditionally occupied by Congress will be preempted by federal law.

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30
Q

Under what circumstances is state law preempted by federal law?

A

Conflict, impede objections, regulates area traditionally occupied by Congress

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31
Q

What is conflict preemption?

A

State law invalid when state law inconsistent with valid federal law covering same subject matter.

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32
Q

What is field preemption?

A

States cannot regulate in a field if federal government intends to “occupy the entire field”

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33
Q

What is the Dormant Commerce Clause

A

Restricts state and local governments from regulating activity that affects interstate commerce if regulation is discriminatory or unduly burdensome.

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34
Q

DCC: Under what circumstances is facially discriminatory regulation against out of towners permitted?

A

Necessary to achieve important noneconomic governmental interest; no reasonable alternatives.

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35
Q

Under what circumstances is a regulation that unduly burdens interstate commerce permitted?

A

Rationally related to legitimate government interest; burden imposed on interstate commerce must be outweighed by benefits to the state. (rational + balancing)

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36
Q

When a state is acting as a business owner or operator, can it favor local interests over nonlocal interests?

A

Yes

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37
Q

Commerce clause: state or federal action?

A

federal action

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38
Q

Dormant commerce clause: state or federal?

A

state action

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39
Q

Privileges & Immunities Clause

A

Prevents a state or city from discriminating against noncitizens regarding rights fundamental to national unity.

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40
Q

What activities fall under “rights fundamental to national unit” under the privileges & immunities clause?

A

commercial activities, like the right to support oneself, be employed, civil liberties, etc.

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41
Q

Are corporations and aliens considered citizen for purposes of the Privileges & Immunities Clause?

A

No.

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42
Q

What is the standard for discrimination against noncitizens under the Priviliges & Immunities Clause?

A

Rigorous scrutiny - only if noncitizens are a “peculiar source of evil” and discrimination is “substantially related” to this evil; no less discriminatory alternative means available.

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43
Q

The Contracts Clause

A

Prevents state governments from passing laws that retroactively and substantilaly impair existing contracts.

44
Q

Standard for substantial impairment of private contracts (Contracts Clause)

A

Law must be reasonably appropriate to serve significant and legitimate public purpose (social and economic regulations - must be necessary)

45
Q

Standard for substantial impairment of public contracts (Contracts Clause)

A

Law must be necessary to serve important public purpose.

46
Q

Does 10th Amendment allow federal government to mpose regulatory statutes of generally applicable laws that apply to both private and state actors?

A

Yes

47
Q

Can Congress delegate its legislative authority?

A

No

48
Q

Can Congress delegate regulatory authority to other branches of government?

A

Yes, if there are intelligible principles that govern exercise of the delegated authority.

49
Q

What are the two clauses of the Freedom of Religion?

A

Free Exercise Clause and the Establishment Clause

50
Q

Free Exercise Clause

A

Bars any law that prohibits or seriously burdens free exercise of religion unless there is a compelling state interest.

51
Q

Establishment Clause

A

Prohibits laws respecting establishment of religion - Government can’t endorse or favor specific religious groups.

52
Q

Level of review for sect preference:

A

Strict scrutiny, compelling government interest.

53
Q

What is the test for assisting religion?

A

Primary purpose of assistance is secular, assistance doesn’t promote/inhibit religion, no excessive enganglement between church and state.

54
Q

Freedom of Speech

A

First Amendment protects individual right to free speech.

55
Q

How is freedom of speech applicable to the states?

A

Through the Fourteenth Amendment

56
Q

What are the two classes of speech prohibitions?

A

Content-based and content-neutral

57
Q

Standard for restriction of content-based speech restrictions

A

strict scrutiny. Necessary to achieve compelling governmental interest.

58
Q

What are the unprotected categories of speech for purposes of content-based speech restrictions?

A

Obscenity, fraudulent misrepresentation, fighting words, advocacy of imminent lawlessness, defamation.

59
Q

What constitutes obscenity?

A

Describes sexual conduct that appeals to prurient interest and is patently offensive; lacks literary/artistic/political/scientic value.

60
Q

What are content-neutral speech regulations?

A

Regulation is aimed at other than communicative impact of expression.

61
Q

When are content-neutral regulations allowed?

A

serve significant/important government interest, narrowly tailored to serve interest, leave open alternative channels of communication.

62
Q

What are time, place & manner restrictions to regulate speech?

A

Seek to regulate speech based on external factors. Rules differ based on type of forum, must be viewpoint neutral.

63
Q

Time/place/manner restrictions - public forum - requirements

A

Content neutral, significant gov interest, narrowly tailoed, leave open alternative channels of communication

64
Q

time/place/manner restrictions - limited and nonpublic forum - requirements

A

viewpoint neutral, legitimate government interest, reasonably related to serve interest (limited/nonpublic - can be opened up for discussion of specific topic)

65
Q

What is a designated public forum?

A

Forums not traditionally open to the public, but opened up to the public at large for a specific purpose.

66
Q

What is a limited public forum?

A

Forum opened for limited use by certain groups

67
Q

What is a nonpublic forum?

A

Forum that is closed to the public.

68
Q

Rules regarding government restriction of commercial speech (advertising)

A

Serves substantial government interest, directly advances that interest, narrowly tailored ffthat there is a reasonable fit to serve the interest.

69
Q

Rules regarding symbolic speech

A

freedom not to speak or freedom to communicate idea by use of symbol or communicative conduct. (important governmental interest, prohibits no more speech than necessary, within constitutional power)

70
Q

What are the limitations on free speech regulations?

A

Vagueness, overbreadth, unfettered discretion.

71
Q

Free speech limitations: Vagueness

A

reasonable person would have to guess at its meaning

72
Q

Free speech limitations: overbreadth

A

bans both protected speech and unprotected speech

73
Q

Free speech limitations: Unfettered discretion

A

regulation/licensing scheme/ permit regulation if it leaves unfettered discretion by not setting forth narrow and specific grounds for denying permit, or where permit mechanism not closely tailored to regulation’s objective. Regulation must be reasonable mean of maintaining public order.

74
Q

What are prior restraints on speech?

A

Prevent speech from being heard even before it ocurs. Rarely allowed.

75
Q

Freedom of Association

A

individuals have the right to freely associate with other individuals in groups.

76
Q

Can a public job or benefit be denied based on person’s association in a protected group?

A

No.

77
Q

What is the standard for preventing freedom of association or requiring individuals to associate?

A

compelling governmental interest; narrowly tailored.

78
Q

Due Process operates through which amendments to the constitution?

A

14th Amendment binds the states; Fifth Amendment binds the federal government.

79
Q

What are the two types of Due Process?

A

Substantive Due Process, Procedural Due Process

80
Q

Substantive Due Process

A

Regulates the government’s ability to regulate certain areas of human life such as substantive interests in life, liberty, property (Personal autonomy/privacy)

81
Q

Two types of rights subject to substantive due process

A

Fundamental and Nonfundamental

82
Q

What are fundamental rights under substantive due process, and what is the standard of review for restriction?

A

marriage, living with one’s family, child bearing, child rearing, domestic travel, voting, other 1st Amendment rights. Strict scrutiny - necessary to achieve compelling government objective

83
Q

What are nonfundamental rights under substantive due process, and what is the standard of review for restriction?

A

Everything except fundamental rights, mostly social/economic regulations (education, employment) Rational basis review.

84
Q

What is Procedural Due Process?

A

Requires government to use fair process before intentionally depriving a person of life, liberty of property.

85
Q

What is included within liberty interest for procedural due process purposes?

A

physical liberty as well as intangible liberties - right to drive, raise a family, etc.

86
Q

What is included within property interest for procedural due process purposes?

A

Real property, personal property, public educaiton, government employment, gov licenses, gov benefits one is already receiving.

87
Q

What is the process due for judicial proceedings (procedural due process)?

A

Right to hearing, counsel, call witnesses, fair trial, appeal.

88
Q

What is the process due for nonjudicial proceedings?

A

balancing test - individual’s interest in right that will be affected, added value of procedural safeguards, possibility of substitute procedural safeguards, government interest in efficiency.

89
Q

What amendment prohibits slavery? Who does it apply to?

A

Thirteenth Amendment - state and federal governments.

90
Q

What does the Equal Protection Clause prohibit the government from doing?

A

Treating similarly situated persons differently.

91
Q

What are the 3 levels of review that can apply to Equal Protection Clause?

A

Strict scrutiny - necessary to achieve compelling state interest; burden on gov.

Intermediate scrutiny - classification substantially related to achieve important gov interest. Burden on gov.

Rational basis (low-level) scrutiny - classification needs to be rationally related to legitimate government interest. Burden on challenger.

92
Q

EPC is applicable when people are treated differently based on ________.

A

Classifications

93
Q

What are the suspect classifications, and what level of scrutiny applies?

A

Race, national origin, state alienage (not U.S. citizen); subject to strict scrutiny.

94
Q

What are the quasi-suspect classifications, and what level of scrutiny applies?

A

Gender, illegitimacy; intermediate scrutiny

95
Q

what are the nonsuspect classifications and what level of scrutiny applies

A

everything except for what’s in suspect and quasi-suspect; rational basis.

96
Q

What are the fundamental rights under EPC?

A

include voting, being political candidate, access to courts, migrating from state to state, first amendment rights.

97
Q

For suspect and quasi-suspect classifications - intent to treat differently required?

A

Yes

98
Q

Takings Clause - which Amendment?

A

Fifth Amendment

99
Q

Takings Clause: Rule

A

Private property may not be taken for public use without just compensation.

100
Q

What constitutes public use for Takings Clause purposes?

A

liberally constructed - rationally related to convceivable public purpose

101
Q

What constitutes just compensation for takings clause purposes?

A

Market value of property

102
Q

When is a regulatory action a total taking?

A

Permanent physical invasion or confiscation of property, or use restriction that denies all economically beneficial use of property.

103
Q

What do courts consider when determining whether a regulation is a temporary taking?

A

length of delay, economic impact on owner, reasonable expecation of owners, good faith of government planners.

104
Q

IS a regulation that decreases economic value of the property by prohibiting most beneficial use considered a taking?

A

No, as long as there is still an economically viable use for the property.

105
Q

What are the factors in determining whether a regulation is a taking?

A

Character of invasion, economic impact on claimant, extent of interference with investment backed expectation of owner.

Rules for CA Bar Exam (Attack Sheet) (15 decks)

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