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MEE > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

JUSTICIABLE CASE OR CONTROVERSY

A

Federal courts may hear based on law-based federal jurisdiction from Constitution, federal laws and treaties, admiralty and maritime law

Example sentence: Federal courts can hear cases involving disputes related to federal laws or treaties.

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2
Q

Standing

A

I must show ‘personal stake.’ 1) [l’s actual or imminent injury, 2) causation, 3) redressability

No ‘injury’ to taxpayers (unless litigating tax bill or fed taxpayer challenging spending 1A religious grounds), legislators, Constitution lovers.

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3
Q

Ripeness

A

Il must show harm or imminent threat of harm. Proposed law or action not yet taken are not real cases or controversies

Example: A lawsuit challenging a law that has not been implemented yet would be considered premature.

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4
Q

Mootness

A

A case is moot if the dispute has been resolved (i.e., there is no redressability), unless ‘capable of repetition, yet evading review’

Example: A case about a temporary issue that may reoccur in the future can still be considered moot.

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5
Q

Political Q

A

Fed court will not take issues involving a matter for another branch of gov’t that the judicial process is inherently incapable of resolving and enforcing

Example: Federal courts will not get involved in disputes that are better suited for the legislative or executive branches.

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6
Q

Abstention

A

Fed court will abstain (defer to state courts) if claim is based on an undecided issue of state law

Example: Federal courts may choose to let state courts handle cases that involve unresolved state law issues.

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7
Q

Delegation power

A

Congress can delegate powers it possesses and create an agency with legislative power to make rules. Intelligible guidelines for carrying out concrete objectives are required

Example: Congress can assign certain powers to agencies to regulate specific industries.

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8
Q

Property power

A

Regulate and dispose of federal property, including Indian property and wild animals.

Example sentence: Congress has the power to regulate the use of federal lands.

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9
Q

Speech and debate clause

A

A member of Congress (+ aides) cannot be punished for anything said on legislative floor.

Additional information: This clause is designed to protect free speech within the legislative branch.

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10
Q

Impeachment power

A

Congress can remove the president, federal judges, and federal officials through impeachment.

Example sentence: Impeachment is a constitutional process to hold government officials accountable for their actions.

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11
Q

Appropriations power

A

Congress can pass a bill to direct how the president must spend money.

Additional information: This power allows Congress to control the federal budget.

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12
Q

Earmarking funds

A

Executive branch must spend the funds, or obtain Congress approval to refuse spending.

Example sentence: Earmarking funds ensures that specific projects receive funding as intended by Congress.

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13
Q

Congressional authorization 3-prong test

A

Where the president acts with Congress’s express/implied authority, his power is at its apex, and his action is likely valid. Where Congress is silent, the president’s action is upheld as long as the act does not take over another branch’s powers or prevent another branch from performing its tasks. Where the president acts against Congress’s express will, he has little authority, and his action is likely invalid.

Additional information: This test helps determine the extent of the president’s power when acting in conjunction with Congress.

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14
Q

Chief executive domestic powers (EAR PVPs)

A

Continuing public office & sign. Discretion to minister/enforce laws. Enforcement of laws, not making them. May delegate to other executive officers. Attorney general is chief law-enforcement official. May direct federal executive agencies (executive orders) but not private parties outside the executive branch unless authorized by Congress. May set up presidential advisory commissions.

Additional information: These powers are related to the president’s role in enforcing domestic laws and overseeing executive functions.

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15
Q

Appointment power

A

President can appoint officers and high-level officials with consent of Senate.

Example sentence: The president nominates individuals for key government positions subject to Senate confirmation.

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16
Q

Removal power

A

President can remove high-level, purely executive officials without cause. President may be able to remove other executive officials for good cause based on statute (e.g., corruption, incompetence).

Additional information: The president’s removal power allows for the dismissal of certain executive branch officials.

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17
Q

Pardon power (plenary)

A

President may grant pardons before charge or after conviction to federal criminals.

Additional information: The pardon power is a unique authority of the president to grant clemency in criminal cases.

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18
Q

What is the veto power in relation to proposed legislation?

A

Proposed legislation becomes law unless wholly vetoed within 10 days of passing legislation.

Example sentence: The President vetoed the proposed legislation, preventing it from becoming law.

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19
Q

What is the line-item veto?

A

The line-item veto is unconstitutional. The President may only approve or reject a bill in its entirety.

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20
Q

What is the absolute privilege regarding national security secrets?

A

There is an absolute privilege to refuse to disclose national security secrets.

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21
Q

What is the hierarchy of laws in the United States?

A

U.S. Constitution > treaty / federal statute (last in time prevails) > executive agreement (foreign) / executive order > state constitution > state law

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22
Q

What is the Supremacy Clause?

A

The Constitution, federal laws, and treaties are the supreme law.

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23
Q

What is the Anti-Commandeering Doctrine?

A

Under case law, Congress (and likely executive orders) cannot make state legislatures pass a law or require state executive officials (e.g., police) to enforce federal law. Mere prohibitions are not commandeering.

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24
Q

What is the Dormant Commerce Clause?

A

States may not regulate interstate commerce in a way that is discriminatory or unduly burdensome. If a state law does discriminate on its face against out-of-state actors, it is invalid unless it serves an important noneconomic state interest with no reasonable nondiscriminatory alternatives.

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25
Q

What is the State Action Requirement?

A

The Constitution generally protects against governmental action at any level (federal, state, local), not actions of private individuals (except 13A), unless there is significant state involvement.

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26
Q

What are the Standards of Scrutiny?

A

Strict Scrutiny (SS) requires the government to prove its classification is necessary to achieve a compelling government interest. Intermediate Scrutiny (IS) requires the government to prove its classification is substantially related to an important government interest. Rational Basis (RB) requires the plaintiff to prove the classification is not

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27
Q

Strict scrutiny

A

Gov’t must prove its classification is necessary if it is the least-restrictive means or is narrowly tailored to serve the compelling gov’t interest

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28
Q

Intermediate scrutiny

A

Gov’t must prove its classification is substantially related to an important gov’t interest

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29
Q

Rational basis

A

Plaintiff must prove classification is not rationally related to any legitimate gov’t interest

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30
Q

Procedural DPC

A

Protects persons against intentional deprivation of life, liberty or property w/o due process of law

All people including aliens and corporations, not just citizens

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31
Q

Matthews balancing factors

A

Factors to determine what adequate process is due when life, liberty, or property entitlement is taken: (1) importance of interest to the person, (2) gov’t interest/burden in efficiency ( more burdensome to get protection > less processed needed) 3. Value of procedural safeguards (more likely that government will make an mistake without procedural protection > more process needed)
Do process rights may be waived if voluntarily and made knowingly

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32
Q

Substantive Due Process Clause (DPC) - Gov’t may not infringe fundamental rights

A

Campared Stove Test (Strict Scrutiny)

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33
Q

Substantive Due Process Clause (DPC) - Contracting (privacy)

A

State cannot prohibit distribution of contraceptives, whether single or married (Strict Scrutiny)

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34
Q

Substantive Due Process Clause (DPC) - Abortion (privacy)

A

No longer fundamental right (Dobbs). Regulation passed onto states. SS not applicable.

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35
Q

Substantive Due Process Clause (DPC) - Parental consent/ judicial bypass

A

24-hour waiting period, ban on unsafe method not undue burden

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36
Q

Substantive Due Process Clause (DPC) - Post-viability

A

Must have exceptions to protect mother’s life or health

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37
Q

Substantive Due Process Clause (DPC) - Marriage (privacy)

A

Right to enter into (and likely to dissolve) marriage is deemed fundamental (Strict Scrutiny)

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38
Q

Substantive Due Process Clause (DPC) - Parental Rights (privacy)

A

Reproductive rights, and child rearing, care, custody, control (Strict Scrutiny)

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39
Q

Substantive Due Process Clause (DPC) - Education (Privacy)

A

Right to a private education, choice of public school system

40
Q

Substantive Due Process Clause (DPC) - Relations (extended family)

A

Gov’t cannot prohibit extended family from living together in a single household (Strict Scrutiny)

41
Q

Substantive Due Process Clause (DPC) - Death

A

Right to refuse medical procedures, even if life-extending

42
Q

Substantive Due Process Clause (DPC) - Sexual orientation (strict RBR)

A

Gov’t cannot criminalize same-sex sexual activity (no legitimate interest) (Rational Basis Review)

43
Q

Substantive Due Process Clause (DPC) - Travel

A

Right to travel interstate and set up residency in a new state, subject to reasonable restrictions

44
Q

Substantive Due Process Clause (DPC) - Obscene material

A

Right to possess in one’s home. No right to buy, sell, transport

45
Q

Substantive Due Process Clause (DPC) - Vote

A

Total ban on picking/voting for a candidate; e.g., redistricting primarily based on race? (Strict Scrutiny)

46
Q

Substantive Due Process Clause (DPC) - Regulation of process

A

Voting districts, such as water storage district where voting limited to landowners (Rational Basis Review)

47
Q

Substantive Due Process Clause (DPC) - Free association

A

First Amendment: Right to belong to political groups (Strict Scrutiny)

48
Q

Takings Clause

A
  • Gov’t may not take property for public use without just compensation Applies to states via 14A
49
Q

Takings Clause - Public use

A

Legitimate purpose (health, welfare, safety, aesthetic reasons)

50
Q

Takings Clause - Just compensation

A

Loss of FMV to owner, not gain to taker (not improved if worthless property)

51
Q

Takings Clause - Regulation vs. taking

A

Regulation does not require compensation

52
Q

Takings Clause - Actual/physical taking

A

If gov’t takes one’s property by actual or physical appropriation, it is a taking

53
Q

Takings Clause - Temporary taking

A

Not a per se taking. Balance the circumstances

54
Q

Takings Clause - Regulatory taking

A

Regulation that decreases value of property.

55
Q

Takings Clause - Penn Central balancing test

A

Economic impact, extent to which regulation interferes with distinct investment-backed expectations, character of the government action

56
Q

Equal Protection Clause (EPC) - Applies to states via 14A and to fed via 5A

A

Gov’t cannot treat similarly situated people in a dissimilar manner

57
Q

Equal Protection Clause (EPC) - Race discrimination

A

De jure (by law) gov’t segregation almost always unconstitutional (Strict Scrutiny)

58
Q

Equal Protection Clause (EPC) - Affirmative action

A

Overt classifications may pass SS (Strict Scrutiny)

59
Q

Equal Protection Clause (EPC) - Alienage discrimination

A

State may require citizenship for jobs that directly affect policies

60
Q

Equal Protection Clause (EPC) - Gender discrimination -

A

IS (gov’t must show “exceedingly persuasive justification”)

61
Q

Affirmative action:

A

remedy past discrimination (Intermediate Scrutiny)

62
Q

Privileges & Immunities Clauses

A
  • Applies to out-of-state discrimination against citizens only
63
Q

Privileges & Immunities Clauses - Article IV comity clause (basic rights)

A

State gov’t cannot discriminate against non-residents of the state if economic discrimination affects “fundamental rights” or “important economic activities,” unless the discrimination is closely related to a substantial gov’t interest (Intermediate Scrutiny)

64
Q

Privileges & Immunities Clauses - Non-resident discrimination

A

Cannot affect rights including civil liberties and right to work and pursue livelihood, e.g., higher license fees or taxes for out-of-staters, abortions or employment for locals only

65
Q

Privileges & Immunities Clauses - 14th Amendment

A

State cannot deny citizen rights of national citizenship, e.g., to travel state lines and establish residency in a new state

66
Q

Privileges & Immunities Clauses - N/A to aliens and corporations

A

N/A to aliens and corporations (“persons”). But can protect from discrimination via DCC, 14A DPC, or 14A EPC

67
Q

Scrutiny Levels - Strict Scrutiny (SS)

A

Race, alienage (state), national origin, voting, domestic travel, most SDPC rights, DCC (discriminate on face)

68
Q

Scrutiny Levels - Intermediate Scrutiny (IS)

A

Gender, illegitimacy, undocumented alien children, P&I under Article IV

69
Q

Scrutiny Levels - Rational Basis Review (RB/RBR)

A

Age, alienage (fed), disability, sexual orientation, social, economic, all else (non-suspect classifications (EPC) or non-fundamental rights (DPC))

70
Q

Retroactive Legislation - Contracts clause

A

Prohibits state legislation from substantially impairing the obligation of existing public/private K

71
Q

Retroactive Legislation - Contracts clause EXCEPTION

A

Regulation of private K is reasonably and narrowly tailored to promote important and legitimate public interest. Regulation of public K receives stricter scrutiny.

72
Q

Retroactive Legislation - Ex post facto law

A

State/fed may not retroactively alter criminal offense or punishment that puts Δ in worse position

73
Q

Retroactive Legislation - Bill of attainder

A

State/fed may not pass a legislative act that inflicts punitive punishment without a trial on named individuals or an easily ascertainable group for past conduct

74
Q

First Amendment (IA) - Free speech clause

A

(speech includes words, symbols, expressive conduct intended and received)

75
Q

First Amendment (IA) - Restricts gov’t regulation of private speech

A

Does not constrain gov’t from voicing its opinions or funding its own private speech, subject to other Constitutional limitations

76
Q

First Amendment (IA) - Facial attacks on speech regulation

A

Analyze these first when expression is being regulated

77
Q

Facial attacks on speech regulation - Prior restraint

A

Gov’t action restricting speech before it occurs (rather than punishing after) is disfavored. Such restriction must be narrowly drawn and show special societal harm will result.

78
Q

Facial attacks on speech regulation - Overbreadth

A

Ordinance invalid as overbroad if it prohibits activities that may be constitutionally forbidden and also those that may be protected under IA (allowed under narrower standard)

79
Q

Facial attacks on speech regulation - Vagueness

A

Regulation is void as vague if ordinance is so unclear that reasonable individuals would have to guess at its meaning and would differ as to its application

80
Q

Facial attacks on speech regulation - Unfettered discretion

A

A regulation cannot give officials unfettered discretion over determining speech issues (e.g., gov’t no license permit fee, or require review). There must be defined standards.

81
Q

First Amendment (IA) - Content-based regulations - Strict scrutiny triggered if gov’t regulates content- or viewpoint-based speech

A

Few restrictions on content of speech, but there are unprotected speech EXCEPTIONS: Obscenity, defamation, unlawful advocacy, hostile audience, fighting words, true threats

82
Q

Content-based regulations - Obscenity

A

Regulation valid only if the work 1) appeals to prurient (sexual) interest based on local community standards, 2) depiction or description is patently offensive to local standards, 3) as a whole lacks serious literary, artistic, political, scientific (LAPS) value to a reasonable person

83
Q

Content-based regulations - Defamation

A

See Defamation in Torts. Majestic Acts. Additional constitutional issues apply for public matters: falsity and fault. Public info may be protected if newsworthy and no other protected interests are advanced.

84
Q

Content-based regulations - Unlawful advocacy

A

May prohibit if the speaker (subjectively) intends to produce “imminent, unlawful action” + speech is (objectively) likely in fact to produce “imminent, unlawful action”.

85
Q

Content-based regulations - Hostile audience

A

Speech eliciting imminent, violent reaction from the crowd. But police must make reasonable efforts to protect the speaker.

86
Q

Content-based regulations - Fighting words

A

Likely to incite ordinary citizen to acts of immediate, violent retaliation to speaker

87
Q

Content-based regulations - True threats

A

Intended to convey serious threat of bodily harm (e.g., cross burning to intimidate)

88
Q

First Amendment (IA) - Content-neutral regulation / time, place, manner (TPM) regulation

A

Regulation of public forums (historically open to speech-related activities, e.g., sidewalk, park) and designated public forums (not historically open to speech but designated for it, e.g., classroom for after-school civic activities) must be content- and viewpoint-neutral + narrowly tailored (no total bans) to serve an important interest + leave open alternate channels of communication (most legitimate interest means important standard)

89
Q

Content-neutral regulation - Limited public forums

A

Not historically linked to speech but open for a purpose, e.g., school gym for town debate) and non-public forums (not open to public, e.g., military base, school) is generally not TPM regulated only if viewpoint-neutral + reasonably related to a legitimate interest

90
Q

Content-neutral regulation - Quasi-protected speech

A

Commercial speech is protected if it 1) is not false or deceptive and 2) does not relate to unlawful activity. But gov’t can still regulate it if it 1) serves a substantial gov’t interest + 2) directly advances that interest + 3) narrowly tailored to achieve that interest (reasonable fit b/w goals and means).

91
Q

Freedom of religion - Establishment clause

A

Prohibits gov’t from preferring one religion over another or establishing a religion

92
Q

Establishment clause -

A

If regulation on its face discriminates or prefers a religion, or prefers religion generally over non-religion → SS.
If speech is involved, can also raise viewpoint discrimination

93
Q

Establishment clause - If law or program is facially neutral

A

(no sect preference), the coercion test is a factor (2022 Kennedy decision)
Gov’t cannot coerce support or participation in religion against one’s will (e.g., broadcasting prayer during school graduation or football game, exception to participate). There are three formal criteria. Consider extent of supervision and social pressures (psychological coercion). 1) Previously, valid under Lemon test if it has 1) secular (nonreligious) purpose, 2) primary effect that does not advance or inhibit religion, 3) no excessive gov’t entanglement with religion. Kennedy “abandoned” Lemon but did not formally overrule it. Confident test holds. Gov’t financial assistance to defined class of persons is valid if the class is defined w/o reference to religion or religious criteria (even if recipients use the aid to attend religious school).

94
Q

Freedom of religion - Free exercise clause

A

Gov’t may not prohibit the free exercise of any religion

95
Q

Free exercise clause - Genuine belief (threshold issue)?

A

Sincere religious beliefs are absolutely protected. The belief must parallel orthodox religious beliefs; it cannot be a purely political or philosophical view.

96
Q

Free exercise clause - Generally applicable?

A

Gov’t may regulate (under RB) an activity if the regulation is neutral w/r/t religion and is of general applicability, even if it incidentally burdens religious exercise. EXCEPTION: If person quits job for sincere religious reason, gov’t cannot refuse unemployment benefits.

97
Q

Free exercise clause - If law is not generally applicable and was motivated by intent to interfere with religion → SS

A

EXCEPTIONS: Sabbath observance (unemployment benefits), Amish (no schooling at 16).

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