Constitutional Law Flashcards
Can the government inquire into a person’s associations (First Amendment)?
No, the 1st Amendment prohibits the gov’t form inquiring into a person’s associations unless that inquiry is necessary to protect a legitimate state interest.
Regulatory Taking
Gov’t substantially restricts (or destroys all economically beneficial) use of private property — including land and personal property.
NOTE: owner is only entitled to “just compensation” in the amount of the property’s fair market value at the time of the taking — not lost profits.
Ripe (too soon)
Action will not be heard until plaintiff has experienced actual injury or imminent threat thereof
Moot (too late)
Action will be dismissed if further proceedings would have no effect unless:
-Plaintiff’s harm is capable of repetition yet evading review
-Defendant voluntarily stops action but can resume it anytime
-Plaintiff is named plaintiff in class action & claims of unnamed plaintiffs are still viable
Eleventh Amendment prohibits…
Foreign gov’ts and private parties from suing a state in federal court
Does POTUS need the advise and consent of the Senate to enter into an executive agreement?
No, these agreements are less formal than treaties and take effect as soon as the President enters into them
Do executive agreements prevail over state laws?
Yes, under the supremacy clause, executive agreements (which carry the force of federal law) prevail over conflicting state laws
What foreign affairs powers does POTUS have?
Power to negotiate and enter into executive agreements with foreign countries. Under the supremacy clause, executive agreements prevail over conflicting state laws.
When can the gov’t regulate content based speech?
When it can show that the regulation is NECESSARY and NARROWLY TAILORED to achieve a COMPELLING GOVT INTEREST (nearly impossible)
Procedural due process
Requires the government to follow certain procedures when it intentionally deprives a person of life, liberty, or property.
NOTE: Challenger bears the initial burden of showing that he/she has a protected interest at stake
Nondelegation doctrine
Congress may only delegate its legislative authority to others if it provides an intelligible principle to guide them.
Spending clause
Allows Congress to place conditions on the receipt of federal funds if those conditions (1) are clearly stated, (2) are reasonably related to the purpose of the expenditure, (3) do not induce unconstitutional behavior, and (4) are not unduly coercive.
When can the government regulate commercial speech?
Government can only regulate protected commercial speech if the government proves that its regulation directly advances a substantial government interest and is not more extensive than necessary to serve that interest.
Can the government ban commercial speech that is (1) false or misleading, or (2) concerns unlawful activity?
Yes
Do taxpayers have standing to challenge the way the gov’t spend tax dollars?
Generally, no. However, there are two exceptions:
(1) if the taxpayer challenges legislation enacted under Congress’ (or states’) taxing and spending power, and
(2) alleges a violation of a specific constitutional limitation on this power (i.e. establishment clause)
When can the gov’t interfere with the 1st Amendment freedom of association?
When someone is (1) an active member of a subversive organization, (2) knows of the organization’s illegal objectives, and (3) specifically intends to further those objectives.
Who has the power to remove judges?
Congress has the SOLE power to impeach and remove federal judges for treason, bribery, or other high crimes and misdemeanors.
Full Faith and Credit Clause
Requires a state court to recognize and enforce a decision by a court in another state when (1) that court had personal and subject matter JX, (2) the case was decided on its merits, and (3) a final judgment was entered
Can Congress overturn an executive agency’s actions?
Yes, but only by enacting new legislation, which requires: (1) passage by majority vote in the House of Representatives and Senate (i.e. bicameralism) and (2) presentation to POTUS for approval or disapproval (i.e. presentment)
Privileges and Immunities Clause
Generally prohibits states from discriminating against citizens of other states by denying them a right of state citizenship
Bill of Attainder
A legislative act that punishes a specified person or group without a judicial tial
Ex post facto clauses
Bar state and federal governments from enacting criminal statutes that punish actions retroactively
Can Congress establish military courts and tribunals?
Yes, Congress may grant military courts jurisdiction over enemy combatants, enemy civilians, and current members of the US military.
HOWEVER — Congress MUST afford procedural due process to US citizens classified and detained as enemy combatants
Procedural due process requires that US citizens be given:
(1) Notice of the factual basis for the citizen’s classification as an enemy combatant, AND
(2) a fair opportunity to rebut the government’s factual assertions before a neutral decision maker.
What is a writ of habeas corpus?
A court order that a person in custody be brought before the court to determine if his/her detention is legal.
When reviewing an equal protection challenge under the rational basis test, does the court give extreme deference to legislature?
Yes. Court will give extreme deference to a legislature’s right to define a law’s objectives. If those objectives are unclear, the law will be upheld if the court can conceive of any plausible justification for the law.
Rational Basis
Challenger has the burden to prove that the law has no rational relation to a legitimate state interest
Intermediate Scrutiny
Government has the burden of proving that the law has a substantial relation to an important state interest
Strict Scrutiny
Government has the burden of proving that the law is necessary to achieve a compelling state interest (highest burden)
Tenth Amendment
Gives states all powers that are not expressly granted to the federal government by the Constitution – eg, police power to impose taxes on state activities.
But, pursuant to the supremacy clause, state police powers do NOT take precedence over other constitutional provisions, including the negative implications of the commerce clause.
Do state taxes that affect interstate commerce violate the dormant commerce clause?
No, if (1) it is applied to a person/activity that has a substantial nexus with the state, (2) it is fairly apportioned, (3) it is nondiscriminatory, and (4) it is fairly related to services or benefits provided by the state.
Can the government compel individuals to endorse/include viewpoints with which the individuals disagree with?
No
Privileges and Immunities Clause
Generally prohibits states from discriminating against citizens of other states. But it does not apply to the federal government
Privileges or Immunities Clause
Applies to states (not the fed government) and bars them from depriving individuals of the very limited rights of national citizenship
How does the EPC apply to the federal government?
Through the 5th Amendment DPC. Under this clause, federal laws that intentionally discriminate against a suspect class (eg, race) are almost always invalidated under SS.
Dormant commerce clause
Prohibits states from enacting regulations that purposefully or deliberately regulate out of state conduct – e.g., by requiring out of state commerce to be conducted in accordance with a state statute
Does the 11th Amendment bar suits against local governments in federal court?
No. The 11th Amendment immunity that bars suits against state governments in federal courts does not apply to local governments (i.e. counties, municipalities).
Article IV privileges and immunities clause
Prohibits states from discriminating against citizens of other states by denying them a right of citizenship
Political function exception
Although state laws that discriminate based on citizenship are generally subject to strict scrutiny, under the political-function exception, rational basis scrutiny applies when such laws restrict a noncitizen’s participation in government functions allowing the (1) direct formulation, execution, or review of public policy or (2) exercise of broad discretion.
Is the federal government immune from state regulation?
Yes. The operations of the federal government, including those of its agencies and instrumentalities, are completely immune from state regulation unless Congress consents.
Can Congress limit POTUS’ powers?
Yes, when they share authority over an area (i.e. use of federal funds).
The Youngstown framework is then used to determine the extent of POTUS’ authority*
Can Congress require states to enact legislation or enforce federal law?
No. Under the 10th Amendment, the federal government cannot require states or their political subdivisions to enact legislation or enforce federal law. However; federal government may incentivize states to act through conditional federal funding
A government restriction on campaign contributions has to satisfy what test?
Intermediate scrutiny — i.e. the government must show that its restriction is closely drawn to serve an important government interest
Government restrictions on campaign expenditures
Unconstitutional unless the government satisfies strict scrutiny by showing that the restriction is the least restrictive means to serve a compelling governemnt interest
Establishment Clause challenges
Reviewed under the historical test, which upholds government actions that have historically been permitted in accordance with with the meaning of the Constitution
Does the president have the authority to direct the actions of federal executive agencies?
Yes. Articles 2 gives POTUS, as the country’s chief executive, the authority to direct the actions of federal executive agencies/
NOTE — Congress also has authority over these agencies under the nondelegation doctrine, so POTUS must act with congressional approval or in a manner consistent with an act of Congress
Enumerated congressional powers (Article 1, Section 8)
Taxing and spending, Commerce, War/Armed Forces/Militia, Coin & borrow money, Immigration and naturalization, mail, Copyright and patent laws, federal courts, District of Columbia, bankruptcy, rules concerning captures
Does Congress’ power to regulate the JX and procedures of federal courts extend to state courts?
No. The power does not allow Congress to regulate state courts.
Is a durational residency requirement constitutional?
No. Laws with this requirement are generally reviewed under the EPC since they treat two classes of persons differently — those who have resided in the state for a designated period and those who have not. Since these laws substantially burden the fundamental right to travel by discouraging persons from moving into the state, they are subject to SS.
Does Congress has the power to tax and spend for the general welfare?
Yes.
Does a state legislator have absolute immunity from federal civil liability for official legislative actions?
Yes; however, this immunity does not extend to federal criminal liability
When does a seizure occur?
When a reasonable person would believe that he is not free to leave. Courts consider the totality of the circumstances in making this determination.
Consent to search (4th Amendment)
Police may conduct a valid warrantless search when they have a voluntary consent to do so. Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a voluntary consent.
Does a search warrant authorize the police to search persons found on the premises who are not named in the warrant?
No. In Ybarra v. Illinois, SCOTUS held that “each patron of the tavern had an individual right to be free of unreasonable searches, and presence at a location subject to search does not negate the requirement of probable cause to search the person present.”
State discrimination against foreign commerce
State laws that discriminate against foreign commerce are reviewed with the utmost scrutiny and are almost always invalid since it is imperative that the country speak with one voice in foreign affairs.
Congress’ power to act to promote the general welfare
Limited to Congress’ taxing and spending power
