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Bar Prep - MEE - DM > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

What is required to have constitutional standing?

A

Personal and Direct injury, Causation, Redressibility.

(Pickled Doughnuts Case Reflux)

No Third Party standing EXCEPT: close relationship, injured 3rd party unlikely to assert his own rights.

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2
Q

What is the political question doctrine?

A

Supreme Court will not adjudicate challenges to Amendments, or foreign policy. Impeachment and partisan gerrymandering.

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3
Q

What is Abestention?

A

The Federal Government cannot enjoin a pending Supreme Court Proceeding.

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4
Q

What does the 11th amendment/ Sovereign Immunity mean?

A

States can’t be sued in federal court unless it’s the federal government suing.

They can be sued if Congress gives an express waiver or Congress clearly removes immunity.

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5
Q

What is Ripeness?

A

Some violation of law or when nothing to be gained with actual violation.

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6
Q

What is Mootness?

A

It must be a live controversy EXCEPT: wrongs capable of repetition but evading review; voluntary cessation, class actions.

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7
Q

Does the Federal Legislature have police power?

A

No.

Some control of military, Indian reservations, and the land of DC.

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8
Q

Does the Federal legislature have power for the general welfare?

A

The legislature may only tax and spend for the general welfare.

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9
Q

What are the 3 Commerce Powers?

A
  1. ) Congress may regulate the channels of interstate commerce.
  2. ) …May regulate the instrumentalities of Interstate Commerce.
  3. ) …May regulate activities that have a substantial effect on interstate commerce. (Cumulative impact for economic activity only).
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10
Q

What is the 10th amendment limitation on Federal Legislative Power?

A

Fed cannot compel state to regulate or act, but may induce with strings attached on grants if expressly stated & related to purpose.

14th amendment: congress cannot create new or expand existing rights. Only prevent or remedy violations of existing rights of proportional and congruent to violation.

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11
Q

Does the Federal executive power allow executive to make treaties?

A

Yes - but must be ratified by senate to enact, but no senate approval is required to void.

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12
Q

What is there is a conflict with a treaty? What law prevails?

A

State law is invalid.

Federal law last adopted controls.

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13
Q

Who does the president have the power to appoint?

A

Ambassadors, Federal Judges, Officers with Senate Confirmation.

Congress May vest appointment authority but may not give itself appointment power.

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14
Q

Who can the President pardon?

A

Only for Federal crimes, not state.

Only criminal liability, not civil.

Not for impeachment.

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15
Q

What are the rules concerning Executive power of removal of appointees?

A

Unless limited by statute, the President can fire exective officers. Federal judges can only be removed if impeached.

Congress may limit if independence from President desirable AND may only limit removal with good cause.

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16
Q

What are the rules for Executive Veto?

A

President may veto within 10 days or pocket veto (President does nothing and the bill dies).

NO line items veto, 2/3 vote by house and senate to override veto.

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17
Q

What are the rules for Impeachment?

A

President can be removed for treason, bribery, and high crimes & misdemeanors.

Requires majority house vote and conviction in Senate by 2/3.

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18
Q

What does Preemption mean regarding the Supremacy Clause?

A

Laws and treaties made pursuant to it are supreme.

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19
Q

What is the Dormant Commerce Clause?

A

State or local law is unconstitutional if it places excessive burden on interstate commerce.

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20
Q

What is the Privileges and Immunities Clause of Article IV?

A

State may not deny citizens of other states of the privileges and immunities it accords its own citizens.

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21
Q

Under the Privileges and Immunities clause, when does Discrimination occur?

A

It is a violation unless its necessary to achieve SUBSTANTIAL GOVERNMENT INTEREST and NO LESS RESTRICTIVE MEANS AVAILABLE.

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22
Q

When does a violation of the Interstate Commerce Clause occur?

A

It is a violation unless it’s necessary to achieve an IMPORTANT GOVERNMENT INTEREST and no less discriminatory than necessary to achieve the objective.

Expception: Congressional approval or Market Participant (by gov’t).

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23
Q

What are the 3 types of judicial Scrutiny?

A
  1. ) Rational basis - rationally related to legit gov’t interest.
  2. ) Intermediate Scrutiny - law must be substantially related to important gov’t interest. Narrowly tailored to achieve objective.
  3. ) Strict Scrutiny - Law must be necessary to achieve a compelling state interest. Least restive means necessary to achieve objective.
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24
Q

What is Procedural Due Process?

A

Deprivation of life, liberty, or property (only if entitlement). If yes, balance (1) importance of interest to individual, (2) ability of add’l procedures to increase accuracy of fact finding; (3) gov’t interest in fiscal and administrative efficiency,

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25
Q

What is Substantive Due Process?

A

A principal that allows the courts to protect certain fundamental rights.

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26
Q

To what does Substantive Due Process apply?

A
  1. ) Economic Liberties - rational basis, limited protection
  2. ) K Clause - state and local law effecting already existing contracts = INTERMEDIATE SCRUTINY

Whether state law is designed to promote a significant and legitimate public purpose and narrowly tailored.

  1. ) Takings
  2. ) Fundamental Rights - contraception, abortion, right to privacy, procreation, speech, parenting/Custody
  3. ) Refusal of medical treatment and homosexual activity - UNKNOWN scrutiny.
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27
Q

What Equal Protection clause applies to state and local municipalities?

A

The 14th Amendment.

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28
Q

What Equal Protection Clause applies to the Federal Government?

A

The 5th Amendment due process.

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29
Q

When does discrimination based on Race/National Origin exist?

A

If the law is discriminatory on its face, or has a discriminatory impact + discriminatory intent.

STRICT SCRUTINY

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30
Q

Are quotas/set asides based on Race/National Origin allowed?

A

Yes, but it requires clear proof of past discrimination and that the new law is a congruent remedy.

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31
Q

Can race be a factor in college admissions?

A

It can be a factor because of compelling interest of diversity, but may not simply add points or have a set aside based on race/national origin.

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32
Q

Can legislatures use race/national origin when making laws on apportionment?

A

Yes, a consideration of race and national origin is ok, but can’t be the predominant reason.

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33
Q

When does gender discrimination exist and what is the test?

A

Exists if there is discrimination on the face, or a discriminatory impact + intent.

INTERMEDIATE SCRUTINY - SUBSTANTIALL related to an IMPORTANT gov’t interest. Narrowly tailored to achieve purpose.

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34
Q

Under the commerce clause, Congress has the power to regulate interstate commerce when? (3 powers)

A
  1. ) Channels of interstate commerce
  2. ) Instrumentalities of interstate commerce
  3. ) Activites that have a SUBSTANTIAL EFFECT on interstate commerce
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35
Q

How is “substantial effect” regarding interstate commerce analyzed by courts?

A

Ecomonic activity is presumed to have a substantial effect

Aggregation - can regulate economic activity that is intrastate if the activity as a whole has an effect on interstate commerce.

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36
Q

Can congress condition federal funds to states and require states to implement certain regulations?

A

Yes, as long as the condition is related to the purpose of the funds.

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37
Q

If a state law conflicts a federal law, which governs?

A

Federal law.

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38
Q

What is express preemption?

A

The federal law explicitly states that it is only allowed in that area.

Any state law addressing that issue is invalid.

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39
Q

What is Implied Preemption

A
  1. ) Congress passes a federal law intending to “occupy the field”
  2. ) The State law conflicts directly with federal law
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40
Q

Can a state pass MORE stringent laws than the federal law, so long as they do not conflict?

A

YES.

41
Q

What does the 10th Amendment & Comendeering give the states?

A

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

Federal government cannot “commandeer” state legislatures and force them to pass legislation.

42
Q

What must a state show if it passes a statute that discriminates against out-of-state commerce?

A

a. Important state interest

b. No other non-discriminatory means available to achieve that interest.

43
Q

The Constitution protects citizens against wrongful conduct by whom?

A

The government, not private parties.

44
Q

May a private entity be subject to the constitution if it is acting as if its a state?

A

Yes, like a private entity that is running a company town or significantly involved in a joint venture with the state.

45
Q

What does the 5th amendment Takings Clause say?

A

The government may not take private property for public use without just compensation.

Includes taking land and also regulatory takings by rezoning, prohibiting development, etc..

46
Q

Can the takings clause apply to contract or patent rights? Even Trade Secrets?

A

YES.

47
Q

When does a regulatory taking occur?

A

When a law has the effect of decreasing the value of the property.

48
Q

What constitutes a “Total Taking?”

A

The regulation leaves no economically viable use of the property.

49
Q

What constitutes a “Partial Taking?”

A

The regulation affects some economic use of the land, but there is still some economic use available.

50
Q

During a “taking,” the property owner is entitled to the fair market value of the property…at what time?

A

At the time of the taking.

(Recovery is not based on the value of the land after it has been developed).

51
Q

Local governments have the power to pass zoning ordinances so long as they, what?

A

Are reasonably related to a legitimate government purpose (health, safety, morals, general welfare).

Example: he plaintiff owns a restaurant in a commercial area. The city zones that area as residential and the restaurant must be converted to
residential use. The plaintiff can seek a variance or bring a Takings Clause
claim.

52
Q

What is a “Variance” concerning takings?

A

A variance may be granted to allow the landowner to continue the non-conforming use of the land.

The owner must show an undue burden if the variance is not granted.

53
Q

What is procedural due process?

A

The government shall not deprive a person of life, liberty, or property without due process of law.

Process includes notice, a hearing, and a neutral decision maker

54
Q

What test to fundamental rights (life, liberty, property, voting, travel, privacy) receive?

A

Strict Scrutiny - only valid if necessary to achieve a compelling government purpose.

55
Q

To what test are non-fundamental rights subject to?

A

Rational Basis - valid if rationally related to a legitimate government interest.

56
Q

What are the Discrimination Requirements under the Equal Protection Clause?

A
  1. Discriminatory Intent - strict or intermediate scrutiny (depending on classification).
  2. Disparate Impact - Rational Basis Review.
57
Q

On the exam, what do you do first to determine intent or impact?

A

Determine whether the statute is facially discriminatory or
impliedly discriminatory and whether there is a discriminatory intent.
If the statute merely has a disparate impact, it is limited to rational
basis review.

58
Q

What if there are more than one category of peoples claiming discrimination?

A

Example: A statute requires male students between the ages of 15–18 who are absent from school to attend a work camp in the wilderness. Forced
work affects an individual’s fundamental right of liberty and falls under
strict scrutiny. Treating genders differently falls under intermediate
scrutiny. Treating ages differently falls under rational basis review.

59
Q

To what does strict scrutiny apply?

A

Applies to any law involving fundamental rights and classifications based on RACE, ETHNICITY, AND NATIONAL ORIGIN.

60
Q

What must the government prove to pass strict scrutiny?

A

a. The least restrictive means

b. To achieve a compelling government interest.

61
Q

To what does Intermediate Scrutiny apply?

A

Applies to laws involving gender and non-marital children born outside of marriage.

62
Q

What must the government show to pass Intermediate Scrutiny?

A

a. Substantially related

b. To an IMPORTANT government interest.

63
Q

What must ALSO be shown regarding intermediate scrutiny and Gender Discrimination?

A

Government must also show an “exceedingly persuasive justification”

Must also show that facitiles are substantially equivalent.

64
Q

To what does rational basis apply?

A

Applies to all other rights and classifications.

65
Q

What does the government need to pass Rational Basis?

A

RATIONALLY RELATED

LEGITIMATE GOVERNMENT INTEREST.

66
Q

What exactly is Equal Protection violation?

A

The statute treats people differently as to a fundamental right (liberty), as to gender, and as to age.

67
Q

What is the enabling clause of the 14th amendment?

A

Congress may pass legislation to enforce equal protection and due process rights (overriding state statutes).

68
Q

What is an example of Symbolic Speech - Expressive Conduct?

A

Someone burning a copy of the Constitution to show anger at the government

69
Q

When is a regulation limiting symboled speech - expressive conduct valid?

A
  1. If it furthers an important government interest
  2. The interest is unrelated to the suppression of ideas; AND
  3. The burden on speech is no greater than necessary
70
Q

When is a statute impermissibly over broad?

A

If it regulates more speech than necessary to protect a compelling government interest.

71
Q

When is a state Vague?

A

A statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

72
Q

What are “Prior Restraints” on speech?

A

Prohibits speech before it occurs.

Example: A law requiring a license or a permit before engaging in speech of expressive conduct.

73
Q

Are prior restraints generally allowed?

A

No, generally not allowed unless specific procedural safeguards are in place.

Narrowly drawn - Reasonable - Definite

74
Q

Is the right not to speak protected by the 1st Amendment?

A

Yes.

You have the right to not say the pledge of allegiance.

75
Q

What do you start with when analyzing a content restriction?

A

Start with the question: is this a content-based or a content-neutral restriction?

76
Q

What scrutiny does a Content-based regulation receive?

A

Strict Scrutiny

a. Necessary to achieve
b. Compelling gov’t interest; AND
c. Narrowly Tailored to meet that interest.

77
Q

What scrutiny does a Content-Neutral regulation receive?

A

Intermediate Scrutiny

a. Substantially Related to;
b. Important Gov’t interest

78
Q

What do Time, Place, and Manner restrictions depend on?

A

The type of forum

79
Q

What protection does Commercial Speech get?

A

Commercial speech is protected unless it is false, misleading, or unlawful.

80
Q

When can protected commercial speech be regulated?

A

a. The government interest is substantial.
b. The regulation directly advances the interest; AND
c. The regulation is narrowly tailored.

81
Q

What is unprotected speech?

A

Obscenity

Incitment to violence

Fighting words

82
Q

What is Obscenity?

A

The average person, applying contemporary community standards finds the speech:

a. appeals to a prurient interest;
b. depicts sexual conduct in a patently offensive way; AND
c. Lacks serious literary, artistic, political, or scientific value

83
Q

What is Incitement to Violence?

A

a. Directed to inciting or producing imminent lawless action; AND
b. Is likely to incite or produce such action - creates clear and present danger.

84
Q

What are Fighting Words?

A

By their very nature, likely to incite an immediate breach of the peace.

85
Q

When are there Constitutional Limitations on defamation?

A

There are constitutional limitations on defamation actions when the plaintiff is a public official or public figure, or the speech involves matter of public concern.

86
Q

What are the 3 types of forums for speech?

A
  1. ) Traditional Public Forum
  2. ) Designated Public Forums
  3. ) Non-public Forum
87
Q

What are the speech regulations in a Traditional Public Forum?

A

Strict Scrutiny

Content neutral regulations are subject to time, place, manner restrictions AND must be

  1. Narrowly Tailored
  2. TO serve significant government interest, AND
  3. Leave open ample alternative channels for communications
88
Q

What is a designated public forum?

A

a. Not historically used for speech-related activities but has been opened for such use
b. Content-based regulations are subject to strict scrutiny
c. Content-neutral regulations subject to time, place, manner

89
Q

What is a Non-public forum?

A

Government can regulate speech if:

  1. The regulation is viewpoint-neutral; AND
  2. Reasonably related to;
  3. A legitimate Government Interest

Still must be viewpoint neutral.

90
Q

Could a Military Base ban speech about nuclear weapons?

A

Yes, but only if it bans it completely - not one way or another.

91
Q

What does the establishment clause prohibit regarding religion?

A

Prohibits the government from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion.

92
Q

What is a facially Religious Preference?

A

If statute shows a preference to one religion over another (or to religion over non-religion),
strict scrutiny applies

93
Q

What is a facially Neutral Statute?

A

Statute that MIGHT effect the favoring religion.

Apply the Lemon Test.

94
Q

What is the Lemon Test

A
  1. ) Statute must have SECULAR PURPOSE
  2. ) The primary effect neither advances nor prohibits religion; AND
  3. ) The law does not result in excessive gov’t entanglement with religion
95
Q

What is the Free Exercise Clause?

A

Includes the freedom to believe and the freedom to act.

96
Q

Are philosophies and political beliefs protected under the Free Exercise clause?

A

No, religion is protected, but philosophies and political beliefs are not.

97
Q

Laws that intentionally target religious conduct are subject to what standard?

A

Strict Scrutiny

98
Q

Laws that are generally applicable, but happen to impact religion are subject to what standard?

A

Rational Basis Test.

Bar Prep - MEE - DM (12 decks)

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