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Constitutional Law (2) Flashcards

1
Q

Preemption

A

Article VI Supremacy clause states that

All laws and treaties made pursuant to the constitution = supreme law of the land

therefore fed laws > conflicting state laws

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2
Q

Express preemption

A

Clearly contradicts
Wholly occupies

St. Law = preempted

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3
Q

Implied preemption

A

Cant comply with both
Impedes a federal objective
Clear intent to preempt

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4
Q

State taxing government

A

Can’t directly tax

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5
Q

Private actors must comply w constitution when

A

Excessive entanglement
Performing a task traditionally and exclusively done by the govt.

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6
Q

Dormant commerce clause

A

State laws are unconstitutional
If they place an undue burden on interstate commerce

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7
Q

Dormant CC exceptions

A

State is acting as a market participant
Congress authorizes

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8
Q

How to see if a state law places an undue burden on interstate commerce

A

Facially discriminatory
Facially neutral

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9
Q

Facially discriminatory

A

Narrowly tailored
to a achieve a non-economic state goal

(No other means are less discriminatory)

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10
Q

Facially neutral laws

A

Law isn’t discriminatory on its face, but it incidentally burdens IC

If burdens outweigh legitimate state interests

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11
Q

Privileges & Immunities Clause of Art IV

A

Can’t facially discriminate against out of state citizen

unless
Substantial interest
Least restrictive means

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12
Q

Protected privileges & immunities

A

Fundamental right to earn a living

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13
Q

Privileges or immunities clause of the 14th amendment

A

No state can restrict a citizen from traveling interstate

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14
Q

States taxing interstate business

A

Must have a substantial nexus & fairly apportioned

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15
Q

Full faith & credit

A

Courts must give FFAC if another courts decision

1) Final
2) Merits
3) SMJ + PJ

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16
Q

A person may only allege a violation of their constitutional rights against

A

Government actor, not individuals

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17
Q

Congress CAN prohibit private conduct

A

1) Commerce clause
2) 13th amendment

Not by way of the 5th or 14th

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18
Q

Strict scrutiny

A

Necessary
Compelling

NT + Least restrictive means

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19
Q

Intermediate scrutiny

A

Gov must prove

Substantially related
Important government purpose

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20
Q

RR

A

Rationally related
to a legitimate government interest

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21
Q

Equal protection

A

Gov is treating people differently

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22
Q

Equal protection analysis Step 1

A

What class?

Suspect
Quasi-Suspect
Non-suspect

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23
Q

Suspect class

A

Race
Alieanage
National Origin

SS

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24
Q

Numerical set-asides to benefit minorities

A

Must prove past discrimination in
1) Specific place
2) Specific field

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25
Facially neutral laws impacting suspect class
Must prove 1) Intent 2) Discrim. impact
26
Quasi-Suspect
Gender Undocumented immigrant children non-marital children *IS*
27
Facially neutral laws for Quasi-Suspect
Must prove: 1) Intent 2) Discrim. Impact
28
Numerical set asides for women
Must prove discrimination in: 1) Specific place 2) Specific field
29
Non-suspect classes
Everyone else *RR*
30
Due process
Substantive Procedural
31
Substantive
Gov is taking away/regulating a right from all people
32
Fundamental rights
1) Free speech 2) Right to travel interstate 3) Right to vote 4) Privacy rights (Marriage, Contraception, Procreation, Raise child, Private education) *SS*
33
Non-fundamental right
RB
34
Procedural due process
Can't deprive LLP w/o adequate procedures put in place (Notice + Hearing)
35
Procedural due process consists of
Opportunity to be heard Opportunity to present evidence Notice
36
How much process is due (adequate procedures)
1) Gov interest affected 2) Risk of erroneous deprivation 2) Private interest affected
37
Deprivation of property
Public benefits Licenses Gov Jobs All require notice + hearing
38
14th Amendment
The state passed the law interfering w/ EQP or due process
39
5th Amendment
Congress passed the law interfering w/ EQP or due process
40
Takings Clause
Gov can take private property for a public purpose as long as they provide just compensation
41
Just compensation
Reasonable value at the time of taking
42
Physical v. Regulatory taking
Physical - Just have to show SOME physical invasion Regulatory - No economically viable use
43
Contracts clause
State can't interfere w/ a contract Private - IS Public - SS
44
Establishment Clause
Can't endorse or favor a particular religion Must be neutral (Can't demonstrate a preference for certain religious practices over another)
45
Lemon Test (old)
1) Secular purpose 2) Effect isn't to advance/inhibit religion 3) Doesn't create EE w/ religion
46
Free exercise clause
Law must be of neutral & general applicability If it's intentional to stop you from practicing your religion its NOT OK. There must be a good faith belief
47
Direct burden
SS
48
Incidental Burden
RR
49
Speech
Is it content based/ content neutral?
50
Content based
You're trying to stop the message in its entirety *SS*
51
Content neutral
Just regulating time, place, manner
52
Content-neutral form of IS
Furthers a Significant Government Interest Leaves open Alternate Methods of Communication
53
Public forum
Content-Neutral
54
Non-Public Forum (Billboards, signs)
RR
55
Unprotected speech
No 1st amendment protection Fighting words Inciting crime Defamation Obscenity
56
A person can be convicted for threatening language if
They did it Purposefully Knowingly Recklessly
57
Laws prohibiting sexually oriented speech
Reasonable person (local comm. std) Pattently offensive Lacking any redeeming artistic, lit, political, scientific value
58
Laws prohibiting incitement of illegal activity
Clear & Present danger Fighting words
59
Clear & present danger
Imminent violent action likely to produce violence (group standard)
60
Fighting words
Harsh words likely to incite the average person to commit violence (individual std)
61
Commercial speech
Reasonable, substantial interest Narrowly tailored
62
False/misleading message
Not protected
63
Prior restraint
Stopping speech before it's out
64
Laws that are vague/overbroad
"any/all" *SS* Not sure what speech is being protected
65

MBE (8 decks)

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