Constitutional Law Flashcards

Question

Neutral Speech: Traditional Public and designated forum | Freedom of speech explain

Answer 1

Regulations are valid if (i) content neutral and (ii) reasonably related to IMPORTANT/SUBSTANTIAL government purpose and (iii) cannot be accomplished by less restrictive means and allow for adequate alternative channels. ## Footnote Designated- not historically been open to speech-related activities, but which gov has thrown open for public for such activities on a permanent or limited basis

Answer 2

Regulations are valid if (i) viewpoint neutral and (ii) reasonably related to the purpose of the forum. Rationale – here, the plaintiff must show. ## Footnote Limited public forums are government forums not historically open generally for speech and assembly but limited range and opened for specific speech activity only.

Answer 3

Commercial – intermediate scrutiny but they use substantial/instead of important. not protected if it is (1) false, (2) misleading, or (3) about illegal products or services.

Answer 4

False: it has SPENDING power for the welfare!!!

Answer 5

Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (**based on its power over the capital and its property power**).

Answer 6

A case is not ripe if there is not a law or policy in place, just a notice that will be published it is not formalized and enforceable. The court can hear a case that is not ripe if: 1. The issues are fit for decision, it involves more legal issues than factual, and 2. The plaintiff will suffer substantial hardship if the court does not hear the case.

Answer 7

Plaintiff needs to be suffering from an ongoing injury. Exceptions: class actions where at least one class member claim is still viable, cases where the defendant stops the offending practice but can return any time, controversies capable of repetition.

Answer 8

Political questions will not be decided. These are issues (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution.

Answer 9

Eleventh Amendment bars a private party’s suit against a state in federal and state courts. Similarly, sovereign immunity bars claim against a state in federal and state agencies.

Answer 10

sue a state official (1) for damages personally or (2) to enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state. NO RETROACTIVE

Answer 11

Congress has the power to regulate all foreign and interstate commerce, and Indian tribes. It can regulate the channels, instrumentalities and activities that have substantial effect on interstate commerce. – it’s the basis for civil rights laws. eg discrimination

Answer 12

Congress has the power to tax and spend to provide for the general welfare (not general welfare power). Can impose conditions on the grant of money to state or local governments (so-called “strings”). **Conditions**: clearly stated, relate to the purpose, not coercive, do not violate constitution.

Answer 13

The Constitution gives Congress power to declare war, raise and support armies and provide for and maintain a navy.

Answer 14

create law to carry out any of the legislative powers enumerated in art. I. this clause must be used in conjunction w/ another power.

Answer 15

Under Article IV, Section 3, Congress has the power "to make all needful rules and regulations respecting the territory or other property belonging to the United States." This power would encompass a regulation such as the air bag statute.

Answer 16

Tenth Amendment – all powers not delegated to Congress are reserved to the states and to the people.

Answer 17

Suits between two or more states Suits between a state and a foreign government State against citizens of another state or against aliens Cases affecting ambassadors, other public ministers, and consuls

Answer 18

**a. Appeals from a state highest court** (cases where a state’s highest court has held a federal/treaty invalid or held a state statute valid in the face of a claim of invalidity under the constitution or federal law. **b. Appeals from a lower federal court. ** Exception from the above: The Supreme Court cannot hear a case if there was an “independent and adequate” state-law ground for the decision.

Answer 19

1. Did Congress expressly authorize or prohibit state regulation? If so, that controls. If not… 2. determine if the state law contradicts the federal law. It will be preempted. 3. If there is no direct conflict, you have to determine if congress intended the federal law to occupy the entire field. Four factors to determine: PUSH a. Whether the SM is traditionally federal or local (history) b. How pervasive the federal question is c. How similar the state and federal laws are, and d. Whether there is a need for uniform regulation

Answer 20

if no federal law, states may regulate. It is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce. *No discrimination: *State law treating local and out-of-state interests the same that (i) burdens interstate commerce is valid unless the burden outweighs the promotion **of a (ii) legitimate local interest.**

Answer 21

a state is not subject to the Dormant Commerce Clause if the state is acting as a buyer or seller and not as a regulator making rules for the market as a whole.

Answer 22

The Article IV Interstate Privileges and Immunities Clause prohibits discrimination **by a state against nonresidents,** concerning “essential activities” and basic rights.

Answer 23

the Equal Protection, Due Process Clauses, and they can also claim a law violates the Dormant Commerce Clause

Answer 24

Privileges or Immunities of the 14th amendment violation. Ex. Minimum years living in the state to get benefits.

Answer 25

The Contracts Clause provides that no state may pass a law that impairs existing contracts. States can regulate contract formation prospectively. May be permissible if: : 1. serve an **important** and legitimate public interest, 2. It’s n**ecessary to achieve** it and 3. The contract impairment is **reasonable **under the circumstances. (intermediate) if public contracts: strict scrutiny.

Answer 26

The due process clause, if does not violate a fundamental right, then rational basis analysis.

Answer 27

it must be found discriminatory in one of the following ways: DUI 1. **Discriminatory **in its face, or 2. Facially neutral but **unequally** administered, or 3. Have an **impermissible motive** – the intent to discriminate. (the statute will not be invalid just because of its impact).

Answer 28

A private entity generally does not owe a duty to abide by the constitution, but a private entity that undertakes a (i) **traditional and exclusive public function** and (ii) the **state is significantly involved is limited** by the constitution or owes individual constitutional rights. | e.g. whether the gov. encourages or benefits from the private conduct

Answer 29

The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.

Answer 30

provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property. There generally must be an intentional or reckless government action (not negligence).

Answer 31

The Fifth Amendment (fed) and 14amd. (states) provides that private property may only be taken (1) for public use and (2) the government must pay just compensation. the Taking Clause is not a source of power for taking, but rather is a limitation. Analysis: the government’s action is rationally related to a legitimate public purpose. | Physical or Regulatory

Answer 32

If a government regulation denies a landowner of ALL economically viable use of their land (for example, a regulation prohibiting any building on the land), the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.

Answer 33

balancing test: The Court will consider (1) the government **interests** sought to be promoted; (2) the **diminution** in value to the owner; and (3) whether the regulation **substantially**** interferes** with distinct, investment-backed **expectations** of the owner. | Diminution, expectation,interests, gov.substantially interferes

Answer 34

The First Amendment prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion. The First Amendment is applicable to the states through the due process clause of the 14th Amendment.

Answer 35

First: Analyze facial attacks—prior restraint, overbreadth, vagueness, unfettered discretion - POVU Second: Content regulation: Strict scrutiny. Exceptions: unprotected speech. Obscenity, defamation, unlawful advocacy, hostile audience, fighting words- that will result in danger, true threats. DHUFUS speech Third: Neutral? May be a valid time, place, manner (TPM) regulation.

Answer 36

Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny.

Answer 37

State and local elections; substantially equal, deviation is reasonable and tailored to promote a legitimate state interest. 10% variance is presumed valid. Congressional elections - exact mathematical, 0.7% invalid Districts: can be measured using total population. "one person one vote

Answer 38

The Free Exercise Clause prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct. Is it genuine belief? When deciding whether a person holds a religious belief or even just whether the belief qualifies as religious, courts can* question the sincerity of a person’s belief*, but not the truthfulness of the belief. Neutral: Rational basis Made to Interfere: Strict scrutiny.

Answer 39

Strict Scrutiny - To punish membership gov. must prove (i) Actively affiliated with the group (ii) Knowing of its illegal activities (iii) With the specific intent to further those illegal activities. A statute limiting election campaign contributions to a candidate is subject to intermediate scrutiny.

Answer 40

If the result of the federal court would no legal effect on the parties then it is an advisory opinion. State courts are allowed to, not federal courts.

Answer 41

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Answer 42

The United States Supreme Court ultimately held that the Line Item Veto Act was unconstitutional because it gave the President the power to rescind a portion of a bill as opposed to an entire bill, as he is authorized to do by article I, section 7

Answer 43

Intermediate scrutiny: the government must demonstrate a substantial government interest that is unrelated to suppressing expression and it is no greater than necessary to achieve that interest; Texas v. Johnson.