Constitutional Law Flashcards
What is a limit on Congress’s power to regulate and limit SCOTUS’s appellate jurisdiction?
Congress may not exercise its authority over the appellate jx of the Supreme Court in a way that seriously interferes with the establishment of a supreme and uniform body of federal constitutional law– Congress cannot violate the separation of powers doctrine or other constitutional provisions.
How does consent come into play as an exception to the application of the Eleventh Amendment?
A state may consent to suit by waiving its Eleventh Amendment protection.
What does the Federal Property Clause give Congress the power to do?
The Federal Property Clause gives Congress the power to dispose of and make all necessary rules and regulations respecting the territory or other property of the United States.
There is no express limit on Congress’s power to dispose of property owned by the US, but Congress may only take property for public use with just compensation.
What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?
(i) Race
(ii) Ethnicity
(iii) National origin
(iv) If the classification is by state law, citizenship status
When may a state impose an ad valorem tax on personal property?
Once the goods are stopped for a business purpose (i.e., obtain a “taxable situs”)
Note: A state may not levy ad valorem taxes on goods in the course of transit.
How does aggregation come into play when considering the “substantial economic effect” of an activity for purposes of the Commerce Clause?
Congress has the power to regulate any activity that in and of itself, or in combination with other activities, has a substantial economic effect upon interstate commerce. Aggregation deals with the “in combination with other activities” part of the rule. While one farmer growing wheat on his farm with no intent to sell to anyone seems to be an isolated event, that can change when combined with other farmers who share that same intent. These isolated events can “in the aggregate” have a substantial effect on interstate commerce (or lack thereof) and be regulated by Congress.
What suits are barred by the 11th Amendment?
(i) Citizens of one state suing another state in federal court;
(ii) Suits in federal court against state officials for violating state law; and
(iii) Citizens suing their own state in federal court.
Note: These are subject to exceptions.
List three fundamental rights.
(i) The right to travel;
(ii) The right to vote; and
(iii) The right to privacy (including marriage, sexual relations, child rearing, and the right of related persons to live together).
Who may impeach the president and who may convict the president?
The House of Representatives determines what constitutes “high crimes and misdemeanors” and may impeach by a majority vote. The Senate tries the impeached official, and a 2/3 vote is necessary for conviction.
Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.
The restriction must:
(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.
What level of scrutiny applies to laws interfering with fundamental rights?
Strict scrutiny
There is a general rule that states cannot enact legislation that discriminates against out-of-state commerce. What are the five exceptions to this rule?
(i) Necessary to important state interest and no other nondiscriminatory means are available
(ii) State as a Market Participant
(iii) Traditional government function exception
(iv) Subsidies
(v) Federal/Congressional Approval
To have standing, a plaintiff bears the burden of establishing three elements. Name the elements.
(i) Injury in fact;
(ii) Causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right); and
(iii) Redressability (the relief requested must prevent or redress the injury).
Note: The federal judiciary has also established a “prudential standing” requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute.
What is the difference between the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment?
Article IV applies to state citizenship and the Fourteenth Amendment applies to national citizenship.
Note: The Fourteenth Amendment’s Privileges or Immunities Clause applies, in practice, only to the right to travel.
In the absence of federal regulation, state regulation of commerce is valid so long as: (Name the three rules)
(i) There is no discrimination against out-of-state interests;
(ii) The regulation does not unduly burden interstate commerce; and
(iii) The regulation does not purposefully and deliberately apply to wholly extraterritorial activity.
Define the Takings Clause of the Fifth Amendment.
Private property may not “be taken for public use, without just compensation.”
This includes interests in real property and personal property, and both possessory and nonpossesory interests in land (e.g., easements, liens).
What is required for a governmental affirmative action program based on race to be constitutional?
To pass strict scrutiny:
(i) The government must itself be guilty of specific past discrimination against the group it is seeking to favor; and
(ii) The remedy must be narrowly tailored to end that discrimination and eliminate its effects.
Name three actions not barred by the Eleventh Amendment.
The Eleventh Amendment does not bar:
(i) Actions against local governments
(ii) Actions by the United States government or other state governments
(iii) Bankruptcy proceedings that impact state finances
Name the five categories where the government is permitted to restrict speech on the basis of content.
- Obscenity
- Incitement to violence
- Fighting words
- Defamation
- Commercial speech
Compare and contrast ripeness and mootness.
Ripeness and mootness both deal with the timeliness of an action for judicial review purposes. Ripeness is an action that is brought too soon, and mootness is an action that is brought too late, as there is no longer a case or controversy.
Under Equal Protection, when is intermediate scrutiny applied?
When a classification is based on gender or status as a nonmarital child (legitimacy)
Note: In gender cases, there must be an “exceedingly persuasive justification” for the classification.
How is the President’s veto power exercised?
The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated. Once a bill is vetoed, Congress can override the President’s veto with a 2/3rds vote in each house.
Generally, a person who is intentionally being deprived of life, liberty or property, is entitled to what two procedural due process rights?
The rights to notice and a hearing
Over what types of cases does the Supreme Court have original jurisdiction?
The Supreme Court has original jurisdiction over:
(i) All cases affecting ambassadors
(ii) Other public ministers and consuls
(iii) Those in which a state is a party
For what types of offenses can the President exercise the Pardon Power?
The Constitution grants the President the power to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This power only applies to federal cases- the President may not pardon anyone for state offenses.
What is the scope of the President’s power to remove executive officials?
The Constitution says nothing about the President’s power to remove executive officers, but it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval).
Note: federal judges are excepted and hold their offices during good behavior and until impeached.
What are the two means for establishing appellate jurisdiction in the Supreme Court?
- Certiorari (discretionary review)
- Direct appeal (mandatory)
The federal government may not commandeer state legislators. What does this mean?
Congress cannot command state legislature to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly.
Note: While Congress cannot directly command (either by compelling a state to enact legislation or prohibiting a state from enacting new laws), it can use its taxing and spending powers to encourage state action.
Define rational basis.
A law meets the rational basis standard of review if it is rationally related to a legitimate state interest.
Note: This test generally results in the law being upheld.
What is required to trigger constitutional protections (with the exception of the Thirteenth Amendment)?
State action
Define strict scrutiny.
The law must be the least restrictive means to achieve a compelling governmental interest.
What is the difference between the Due Process Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment?
The Due Process Clause of the Fifth Amendment applies against the federal government, and the Due Process Clause of the Fourteenth Amendment applies against the states.
What powers does Congress use to encourage state action that it cannot directly compel?
The Taxing and Spending Power, which gives Congress the broad power to spend for the general welfare
Note: Congressional encouragement may not exceed the point at which pressure turns into compulsion.
Define intermediate scrutiny.
To be constitutional, the law must be substantially related to an important governmental interest.
Under the commerce power, what three areas can Congress regulate as interstate commerce?
(i) The channels of interstate commerce;
(ii) The instrumentalities of interstate commerce; and
(iii) Intrastate and interstate activity (economic or commercial) that has a substantial effect on interstate commerce.
Note: Remember that Congress may regulate intrastate activity that does not have a direct economic impact on interstate commerce as long as there is a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce.
When can the states tax the federal government?
When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)
What is a legislative veto, and is it constitutional?
Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. Such acts are unconstitutional.
In what three circumstances is federal preemption implied?
(i) Congress intended for federal law to occupy the field;
(ii) The state law directly conflicts with federal law; or
(iii) The state law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law’s purpose.
When is Congress able to regulate purely private conduct?
When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.
What does it mean for a claim to be ripe for litigation?
The plaintiff must have experienced a real injury (or imminent threat thereof). A federal court will not consider a claim before it has fully developed.
When does federal law expressly preempt state law?
When (i) the Constitution makes federal power exclusive (such as the powers to coin money or declare war), or (ii) when Congress has enacted legislation that explicitly prohibits state regulation in the same area
What standard is used to determine whether a tax by Congress should be upheld?
The tax only need be rationally related (or have a reasonable relationship) to revenue production.
(A) If the Constitution and a treaty conflict, which controls?
(B) If a treaty and an act of Congress conflict, which controls?
(A) The Constitution is superior to a treaty.
(B) The most recently adopted will control.
