Constitutional Law Flashcards
What are the three requirements for standing?
Personal & Direct Injury; Causation; Redressibility
Under what conditions is third-party standing allowed?
i) close relationship between P and injured 3rd party; ii) 3rd party meets all other standing requirements; iii) 3rd party unlikely able to assert rights on their own
What are the requirements for associational standing?
i) individual members have standing; ii) interests germane to organization’s purpose; iii) neither claim nor relief requires participation of individuals
What are the two requirements for ripeness?
i) actual injury or immediate threat of injury to P; ii) action is not premature
What is a pre-enforcement challenge?
Credible threat of enforcement; and anticipated harm warrants immediate judicial review
What analysis is used to determine ripeness?
1) Are the issues purely legal and can they be decided without further factual development? 2) Would parties suffer substantial hardship without judicial review?
What does mootness refer to?
Live controversy
What are exceptions to the mootness doctrine?
- Wrongs capable of repetition but evading review
- Voluntary cessation
- Class actions
What types of challenges will not be adjudicated due to political question doctrine?
- Challenges to Amendments
- Foreign policy
- Republican form of government
- Partisan gerrymandering
- Impeachment
Under what conditions can states be sued in federal court?
i) Federal government sues; ii) express waiver; iii) Congress clearly removes immunity; iv) suits against state official for enforcing unconstitutional statute; v) state v. state
What is the principle of abstention in federal judicial power?
Federal courts cannot enjoin a pending state court proceeding
What limitations exist on federal legislative power regarding police power?
None except MILD – Military; Indian reservations; Land (Federal); District of Columbia
What is the scope of the general welfare power of Congress?
May only tax and spend
What areas can Congress regulate under commerce power?
- Channels of interstate commerce
- Instrumentalities of interstate commerce
- Activities with substantial effect on interstate commerce
What does the 10th Amendment limit regarding federal power?
Can’t compel states to regulate or act, but may induce with strings on grants if expressly stated & related to purpose
What does the 14th Amendment state about congressional powers?
Congress can’t create new or expand existing rights; can only prevent or remedy violations of existing rights if proportional/congruent to violation
What is required for treaties to be valid?
Must be ratified by Senate but no Senate approval required to void
What is the conflict hierarchy between state law, federal law, and treaties?
State law → state law invalid; Federal law → last adopted controls; US Constitution → treaty invalid
What are executive agreements and their requirements?
No Senate approval needed; conflicts follow the same hierarchy as treaties
Who has the authority to appoint ambassadors, federal judges, and other officers?
The President appoints with Senate confirmation; Congress may vest appointment authority but cannot give itself appointment power
What is the removal power of the President?
Unless limited by statute, the President can fire any executive officer; federal judges removed only if impeached
What is the impeachment process?
President, VP, federal judges, and US officers can be impeached for treason, bribery, and high crimes & misdemeanors; requires majority House vote and 2/3 conviction in Senate
What can a presidential pardon do?
Only for federal crimes, not state; only criminal liability, not civil; not for impeachment
What is the veto process?
Within 10 days or pocket veto; no line item veto; 2/3 vote by House and Senate to override veto
What does preemption refer to in federalism?
Supremacy Clause – US Constitution and laws/treaties made pursuant to it are supreme
What does the Dormant Commerce Clause state?
State or local law is unconstitutional if it places excessive burden on interstate commerce
What does the Privileges and Immunities Clause of Article IV state?
State may not deny citizens of other states the privileges and immunities it accords its own citizens
What are the limitations of the Privileges and Immunities Clause?
Corporations and aliens can’t sue under P&I
What is the standard for discrimination under the Dormant Commerce Clause?
Violation unless necessary to achieve substantial government interest and no less restrictive means to achieve objective
What is the standard for discrimination under the Privileges and Immunities Clause?
Violation unless necessary to achieve important government interest and no less discriminatory than necessary to achieve objective
What are the tax requirements under the Dormant Commerce Clause?
- Substantial nexus to state
- Fairly apportioned
- Fair relationship to services or benefit provided
What is required for Qal provisions to apply to private entities?
Gov’t action is required before Qal provisions are applied to private entities
This occurs if there is excessive state financial entanglement or if the entity performs a public function.
What is entanglement in the context of government action?
Entanglement occurs when the gov’t authorizes, encourages, or facilitates activity.
To whom does the Bill of Rights apply directly?
The Bill of Rights applies directly to the Federal Government only.
How does the Bill of Rights apply to the states?
It applies to states through incorporation under the 14th Amendment.
What is Rational Basis scrutiny?
Law must be rationally related to a legitimate gov’t interest.
What is Intermediate Scrutiny?
Law must be substantially related to an important gov’t interest and narrowly tailored to achieve that objective.
What is Strict Scrutiny?
Law must be necessary to achieve a compelling state interest and use the least restrictive means necessary.
What constitutes Procedural Due Process?
Deprivation of life, liberty, or property if there is an entitlement.
What factors are balanced in Procedural Due Process?
- Importance of interest to individual
- Ability of additional procedures to increase accuracy of fact finding
- Gov’t interest in fiscal & administrative efficiency.
What level of scrutiny applies to Economic Liberties?
Rational basis. Limited protection.
What scrutiny is applied to state/local law impacting existing contracts?
Intermediate scrutiny.
What does the 5th Amendment state regarding Takings?
Private property may not be taken for public use without just compensation.
What is a Possessory Taking?
Gov’t confiscation or physical occupation of property is always a taking.
What defines a Regulatory Taking?
Decrease in property value because government regulation leaves no economically viable use for the property.
What must a taking be related to?
It must be rationally related to a legitimate public purpose.
What rights are considered Fundamental Rights?
- Contraception
- Procreation
- Right to Privacy
- Speech
- Parenting/Custody
- Extended family together
- Marriage
- First Amendment Rights
- Religion.
What level of scrutiny is applied to abortion rights?
Rational basis review.
What was the significance of Dobbs v. Jackson?
It overturned Roe v. Wade and determined abortion is not a fundamental right.
Is there a constitutional right to refuse medical treatment?
Yes, but the level of scrutiny is uncertain.
What must be balanced in the refusal of medical treatment?
State interests such as public health, safety, and human life.
Which rights are stated as having no constitutional protection?
- Abortion
- Physician Assisted Suicide
- Practice of Trade
- Education.
What is the evaluation criteria for a law denying rights based on classification?
Evaluated according to the type of classification.
What are the constitutional sources for Equal Protection?
- State/Local → 14th Amendment
- Federal → 5th Amendment Due Process Clause.
How can classifications be proven?
- Law is discriminatory on its face
- Demonstrate discriminatory impact + discriminatory intent.
What level of scrutiny applies to RACE/NATIONAL ORIGIN classifications?
Strict Scrutiny.
What are the requirements for set asides/quotas?
Requires clear proof of past discrimination and a congruent remedy.
In college admissions, how can race be considered?
As a factor due to the compelling interest of diversity, but not through set asides.
What level of scrutiny applies to Alienage?
Generally Strict Scrutiny, but Rational Basis if related to self-gov’t/democratic process.
What level of scrutiny applies to Gender classifications?
Intermediate Scrutiny.
What is the scrutiny level for Non-Marital Children?
Intermediate Scrutiny.
What level of scrutiny is applied to the Right to Travel?
Strict Scrutiny.
What level of scrutiny is applied to the Right to Vote?
Strict Scrutiny.
What must ballot access regulations be?
Reasonable and non-discriminatory means of promoting an important state interest.
What level of scrutiny applies to all other classifications?
Rational Basis (e.g., age, disability, wealth/econ, sexual orientation, education).
What are the types of restrictions on speech?
- Content based → Strict Scrutiny
- Content Neutral → generally Intermediate Scrutiny.
What are prior restraints?
Judicial order or administrative system stopping speech before it occurs.
What is required for a Preliminary Injunction?
- Standard narrowly drawn, reasonable & definite
- Injunction promptly sought
- Prompt and final determination.
What is required for licenses/permits?
Clear criteria and procedural safeguards like prompt determination of requests for licenses and judicial review.
What makes regulations facially invalid?
Vagueness, overbreadth, and unfettered discretion.
True or False: ‘Fighting words’ bans are considered valid.
False.
What is symbolic speech?
Conduct that communicates.
What are the two tests for regulation of symbolic speech?
- Important state interest independent of suppression of message.
- Impact on communication no greater than necessary.
Which types of symbolic speech are protected?
Flag burning.
Which types of symbolic speech are not protected?
Draft card and nude dancing.
What are the conditions for incitement of illegal activity to be punishable?
- Substantial likelihood of imminent illegal activity.
- Speech directed to causing imminent illegality.
What is the test for obscenity?
PIPS: Prurient Interest, Patently Offensive, Serious Value.
Fill in the blank: Child porn may be completely banned, even if not _______.
obscene.
When is profane and indecent language generally protected?
Except in broadcast media and criminal trials.
What are public forums?
Parks, sidewalks, etc. where regulations must be subject matter and viewpoint neutral.
What are designated public forums?
Government properties that are allowed open for speech.
What are limited public forums?
Government properties limited to certain groups or topics.
What defines non-public forums?
Military bases, outside prisons, and specific government properties.
What is the standard for prohibiting or punishing group membership?
Strict scrutiny.
What must be proven to punish group membership?
- Active affiliation with the group.
- Knowledge of illegal activities.
- Specific intent of furthering illegal activities.
What does the Free Exercise Clause prohibit?
Punishment based on religious beliefs.
What is the Lemon test associated with?
Establishment Clause.
What is the standard for commercial speech?
Intermediate scrutiny.
What is required for defamation cases involving public officials?
Must show falsity and actual malice.
What is the requirement for defamation cases involving private figures?
If of public concern, must show falsity and negligence; if not of public concern, no malice necessary.
What is the standard for access to government information?
Truthful public information has no restrictions if lawfully obtained.
What is the government’s position on participation in religious activities?
Government can’t coerce individuals to participate.
What is the consideration for public employment regarding employee speech?
Whether the matter is of public concern.
True or False: Employees can be fired for party affiliation in any position.
False.
What is the highest level of scrutiny in equal protection cases?
Strict Scrutiny
Applied when a law discriminates based on race, national origin, or alienage.
What must a law achieve to pass Strict Scrutiny?
Necessary to achieve compelling state interest
This applies to classifications like race, alienage, and voting.
What are the classifications that fall under Intermediate Scrutiny?
- Gender
- Illegitimacy
- Undocumented alien children
These classifications must be substantially related to an important government interest.
What is the standard for Rational Basis scrutiny?
Rationally related to a legitimate government interest
This applies to classifications like age, disability, and wealth.
What type of government property is a Public Forum?
Gov’t property that is historically open for speech
Examples include streets, sidewalks, and public parks.
What test must laws meet in a Public Forum?
Subject and Viewpoint neutral
Must be narrowly tailored to serve important government interest.
What distinguishes a Designated Public Forum from a Public Forum?
Gov’t property that could be closed to speech, but which government has chosen to open
Must also be subject and viewpoint neutral.
What is a Limited Public Forum?
Gov’t property limited to certain groups or dedicated to discussion of limited topics
Must be viewpoint neutral and reasonably related to a legitimate government purpose.
What is a Non-Public Forum?
Gov’t property that gov’t can and does close to speech
Must be viewpoint neutral and reasonably related to a legitimate government purpose.
