Constitutional Law 2 Flashcards
1
Q
What are the judicability doctrines? Do all have to be met for a Federal court to hear a case?
A
- Standing
- Ripeness
- Mootness
- Political Question Doctrine
Yes, all must be met for any federal court to hear a case.
2
Q
What is standing?
A
The issue of whether the P is the proper party to bring a mater to the court for adjudication.
3
Q
What are the standing rules/ what is required for a person to have standing?
A
- Injury:
2. Causation and Redressability
4
Q
What is injury?
A
The P must allege and prove that he or she has been injured or imminently will be injured.
• P’s may only assert injuries that they personally have suffered
• P’s seeking injunctive or declaratory relief must show a likelihood of future harm.
5
Q
What is Causation and Redresability?
A
The Plaintiff must allege and prove that the D caused the injury so that a favorable Court decision is likely to remedy the injury.
6
Q
Can a P assert the claims of others and/ or of third parties who are not before the court?
A
No, a P cannot assert the claims of others who are not before the court. However, there are exceptions.
7
Q
What are the exceptions to the GR of no third party standing?
A
- • Close Relationship: Third party standing is allowed if there is a close relationship between the P and the injured third party.
• Impairment or inability: Third party standing is allowed if the injured party is unlikely to be able to assert his or her own rights.
• Organizations: (not frequently tested) An organization may sue for its members, if:
o The members would have standing to sue
o The interests are germane to the organization’s purpose
o Neither the claim nor relief requires participation of individual members.
8
Q
Are generalized grievances allowed?
A
No their is a GR that states the P must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.
9
Q
What is the exception to the GR of generalized grievances?
A
• Flast Exception: expenditures pursuant to federal or state or local statutes as violating the Establishment Clause.
o Cause of action arises from a direct expenditure (money) from Congress and
o It is in violation of the establishment clause. (Congress spending money n religion)
10
Q
What is ripeness?
A
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
11
Q
What is the test for ripeness?
A
• 2 Part Test (Look at):
The hardship that will be suffered without preenforcement review AND
The fitness of the issues and the record for judicial review
12
Q
What is mootness?
A
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.
13
Q
What are the exceptions to mootness?
A
Wrongs capable of repetition yet evading review:
• Injury must be the type likely to reoccur to the P again
• Must be of such duration that it will likely always evade review.
Voluntary Cessation:
• If the D voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot.
Class action suits:
• Named litigants no longer parties to the case do not render the case moot so long as the claims of others in the class are still viable.
14
Q
What is the political question doctrine?
A
refers to constitutional violations that the federal courts will NOT adjudicate:
15
Q
What are some of the common political questions?
A
- Challenges to the impeachment and removal process
- Challenges to partisan gerrymandering
- Challenges to the President’s conduct of foreign policy
- The “republican form of Government clause”
16
Q
In order for a Supreme Court to hear a case, what doctrines must be met?
A
• All cases from state court come to the SC by writ of Certiorari
The constitutionality of a federal statute, federal treaty, or state statute is in issue or a state statute allegedly violates federal law.
• All cases from US Courts of appeal come to the Supreme Court by writ of Certiorari
• Appeals exist for decisions of three-judge federal district courts that grant or deny injunctive relief.
Skips COA and goes straight to the SC (MUST HEAR)
• The Supreme Court has original and exclusive jurisdiction for suits between state governments
17
Q
What is the final judgment rule?
A
Generally, the SC may hear cases only after there has been a final judgment of the highest state court, of a US Court of Appeals, or of a three-judge federal district court.
18
Q
For a Supreme Court to review a state court decision there must not be an ______ and _____
A
independent and adequate state law ground of decision.
(If a state court decision rests on two grounds, one state law and one federal law, if the SC reversal of the federal law ground will NOT change the result in the case, the SC cannot hear it. )
19
Q
May Federal Courts and state courts hear suits against state governments?
A
No, Federal courts (and state courts) may not hear suits against state governments.
20
Q
11th amendment bars suits against ____
A
state governments in federal court.
21
Q
What is sovereign immunity?
A
bars suits against states in state courts or federal agencies
22
Q
When may states be sued?
A
Waiver: by the state of it’s immunity
• Must be explicit
o Must expressly consent to be sued
Federal laws adopted under section 5 of the 14th amendment: states may be sued pursuant to this. Congress cannot authorize suits against states under other constitutional provisions.
Federal Government may sue state government
Bankruptcy Proceedings
23
Q
Are suits against state officers allowed?
A
Yes but only may be sued for the following:
Injuctive relief against state officer
Only for prospective payments (to be paid out of their own pockets) not retroactive
24
Q
What is the GR of Abstention?
A
Federal Courts may not enjoin pending state court proceedings
• When a federal constitutional claim is premised on an unsettled question of state law→ federal court should abstain temporarily as to give state courts a chance to settle the underlying state law question.
• Pending State Proceedings:
Generally, federal courts will not enjoin pending state criminal proceedings
25
In order for Congress to act, what must be?
There must be express or implied authority/congressional power
26
What is the necessary and proper clause?
• Gives Congress the power to pass laws that are necessary and proper to enforce its enumerated powers in Article 1 Section 8
27
What is the test for for the necessary and proper clause?
If Congress is implementing a law o execute/enforce an enumerated power of Article I section 8, then Congress may use any means, so long as the law is:
Rationally related to the objective Congress is trying to achieve
Does not offend or violate other provisions of the Constitution
28
What is the test for the taxing and spending power of Congress?
Must be used for the General Welfare
| Must not violate any other constitutional provisions
29
What does the Commerce Clause state?
The Congress shall have the power to regulate Commerce with the foreign nations, with Indian Tribes, and among several states.
30
• In order for Congress to act constitutionally under the Commerce Power, it must fit under these prongs. Congress may regulate:
Channels of Interstate Commerce
Instrumentalities of interstate commerce and persons or things in interstate commerce.
Congress may regulate economic activities that have a substantial effect on interstate commerce.
• If economic you may aggregate
• If non-economic:
o A substantial effect cannot be based on cumulative impact.
CONGRESS may not regulate inactivity:
31
What is the 10th amendment?
Places a limit on Congressional powers. The 10th amendment states that all powers not granted to the US nor prohibited to the states, are reserved to the states or the people.
32
o Congress cannot compel states to enact or enforce federal laws or federal regulatory programs by:
* Commandeering the state legislative process
| * Commandeering state officials to enforce regulatory programs
33
Can Congress tie strings to the issuance of grants to induce a state to comply?
Yes, so long as it is:
1. related to the purpose
2. Not coercive AND
3. Conditions are clearly stated
34
May Congress prohibit harmful commercial activity by state governments?
Yes, example DMV giving out personal information- selling it. Congress prohibited the harmful commercial activity.
35
What does Section 5 of the 14th amendment state?
Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be:
1. proportionate and
2. congruent to remedying constitutional violations.
o Congress may not create new rights or expand the scope of rights
36
Is there a limit to Congress' ability to delegate legislative power?
No, no limit exists on Congress’ ability to delegate legislative power
37
What is a legislative veto? Is it unconstitutional?
Congress acts to overturn an executive action without bicameralism and/or presentment. Always UNCONSTITUTIONAL!
38
What is a line item veto, is it unconstitutional?
President acts to cancel part of a bill and write the other into law. President must either sign off on entire bill or veto entire bill.
Always UNCONSTITUTIONAL!
39
For Congress to act there ALWAYS must be ____ and _______.
bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto)
40
May Congress delegate executive power to itself or it's officers?
o Congress MAY NOT delegate executive power to itself or its officers
41
Treaty conflicts with state law- who prevails?
Treaty prevails
42
Treaty conflicts with federal law- who prevails?
The one adopted last in time controls
43
Treaty conflicts with US Constitution- which prevails?
Constitution prevails and treaty is invalid. Constitution is the Supreme law of the land.
44
What is an executive agreement?
An agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation.
45
What are the rules regarding executive agreements?
Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.
46
What is the rule regarding presidential powers?
The President has broad powers as Commander-in-Chief to use American troops in foreign countries.
47
What are the appointment powers of the President?
The President appoints officers (ambassadors, federal judges, and officers of the US)
• Senate must approve for the person to take office
48
Congress has discretion with regard to the appointment of which officers?
Inferior officers
Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts.
49
May Congress give itself or it's officers the appointment power?
No
50
What is the rule regarding the President and recess appointments for intersession recesses?
The President may not make recess appointments for intrasession recesses that are less than 10 days.
51
What is the rule regarding the President and recess appointments for intersession recesses?
The President may not make recess appointments for intrasession recesses that are less than 10 days.
52
What is the removal power of the President?
Unless removal is limited by statute, the President may fire any executive branch office.
53
What must be present for Congress to limit removal power of President?
* It must be an office where independence from the President is desirable and
* Congress cannot prohibit removal, it can limit removal to where there is good cause shown.
54
The president, the Vice President, federal judges and officers of the US can be impeached and removed from the office for:
treason, bribery, or for high crimes and misdemeanors.
55
What is the impeachment process?
House impeaches and Senate conducts trial
| • Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires 2/3 vote
56
What is the immunity power of the President?
o The President has absolute immunity to civil suits for money damages for any actions while in office. However, the President does not have immunity for actions that occurred before or prior to taking office.
57
What is the rule regarding executive privilege for Presidential papers and conversations?
o The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests
• Executive privilege must yield if there is an overriding need.
58
What is the rule regarding the President's pardon powers?
o The President has the power to pardon those accused or convicted of federal crimes. → No state crimes
• Except in impeachment circumstances
59
What happens when a state and Federal law conflict?
Federal law trumps
60
What does the Supremacy Clause of Article VI of the Constitution state?
provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
61
What is express preemption?
• Look to see if:
The language is clear as to preempting any state law within a particular area
The state law is one in which the federal law intended to preempt.
62
What is implied preemption?
• If a federal and state law are mutually exclusive (not possible to comply simultaneously), federal law preempts state.
If compliance with both federal and state law is physically impossible
• If state law impedes the achievement of a federal objective, federal law preempts state law.
63
What is field preemption?
* Congress expressed a clear intent that federal law will be exclusive in an area or
* If comprehensive federal regulation evidences a congressional desire that federal law should completely occupy the field.
64
What is the rule regarding inter-governmental immunity?
o State may not tax or regulate federal government activity
65
What is the Dormant Commerce Clause/ Negative Implications of the Commerce Clause?
States that state or local law is unconstitutional if it places an undue burden on interstate commerce. (inferred law)
66
What is the Privileges and Immunities Clause of Article IV?
No state may deprive a citizen of another state of the privileges and immunities it accords its own citizens.
**Only applies to discrimination against non-residents
1. Law must discriminate against out-of-staters
2. The discrimination must be with regard to fundamental rights or important economic activities.
3. Corporations and aliens cannot use the PI clause
4. The discrimination must be necessary to achieve an important government purpose.
67
What is the Privileges and Immunities Clause of the 14th Amendment?
Deals with the right to travel- law protects the right to travel as a fundamental right and any law that discourages people from traveling violated law.
Ex: California stated that anyone who moves into the state, welfare benefits will be kept at the same rate as the moving state for first year of residency.
68
What is the analysis if the law does not discriminate?
1. The PI clause of Article IV does not apply
| 2. If the law burdens interstate commerce, it violates the DCC clause if its burdens exceed its benefits.
69
What is the analysis of the law discriminates against out-of-staters?
1. If the law burdens interstate commerce, it violates the DCC UNLESS it is necessary to achieve an important government purpose.
2. If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the privileges and immunities clause of Article IV UNLESS it is necessary to achieve an important government purpose.
70
What are the exceptions if the law does not discriminate but places a burden on interstate commerce?
1. Congressional Approval
| 2. Market Participation exception
71
What are the rules regarding state taxation?
o States may not use their tax systems to help in-state businesses
o A state may only tax activities if there is a substantial nexus to the state
o State taxation of interstate businesses must be fairly apportioned.
72
What is the rule regarding Full Faith and Credit?
Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
o The court that rendered the judgment had jurisdiction over the parties and the subject matter
o The judgment was on the merits
o The judgment is final
73
What is the basic rule of the Constitution as it relates to government action and private conduct?
The Constitution applies only to government action. Private conduct need not comply with the Constitution.
*However, Congress by statute, may apply constitutional norms to private conduct.
74
What are the rules regarding Congress regulating Private behavior?
• 13th Amendment: can be used to prohibit private race discrimination
prohibits slavery and involuntary servitude
**discrimination does not directly violate the 13th amendment but it may violate a statute made under the 13th amendment.
• The Commerce Power can only be used to apply constitutional norms to private conduct.
• Congress CANNOT USE section 5 of the 14th amendment to regulate private behavior.
75
What are the exceptions or situations where private conduct must comply with the Constitution?
1. Public Function Exception: The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government.
2. Entanglement exception: The Constitution applies if the Government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
76
The Bill of Rights applies directly to:
the Federal Government
77
The Bill of Rights is applied to state and local governments through:
its incorporation into the due process clause of the 14th amendment.
EXCEPT:
The 3rd Amendment right to not have a soldier quartered in a person’s home.
The 5th amendment right to a grand jury indictment in criminal cases.
The 7th amendment right to jury trial in civil cases
The 8th amendment right against excessive fines
78
What is the Rational Basis Test?
Law will be upheld if it is rationally related to a legitimate government purpose.
Government usually wins under this. Challenger has BOP
79
What is Intermediate Scrutiny?
Law will be upheld if it is substantially related to an important Government purpose.
• Government has BOP
80
What is strict scrutiny?
* Law will be upheld if it is necessary to achieve a compelling government purpose
* Government has BOP- no less restrictive alternative that can achieve the goal.
81
What is procedural due process?
• Focuses on whether the Government has followed adequate procedures when they take away a person’s life liberty, or property.
82
What is substantive due process?
• Whether the Government has an adequate reason when it takes away a person’s life, liberty, or property.
83
What is equal protection?
• Whether the Government’s differences in the treatment of people are adequately justified.
84
When does a deprivation of liberty occur?
A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
85
When does a deprivation of property occur?
A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.
there is entitlement if there is a reasonable expectation to continue receipt of a benefit.
86
Is Government negligence sufficient for a deprivation of due process?
No, there must be intentional government action or at least reckless action for liability to exist.
In emergency situations, government is liable under due process only if its conduct shocks the conscience.
87
When is the Government's failure to protect people from privately inflicted harms a denial of due process?
Only if the Government literally creates the danger or if the person is in custody does the Government have any duty to provide protection.
88
If there has been a deprivation o life, liberty, or property what is the balancing test that is required?
The importance of the interest to the individual
• The more of the importance of the individual the more in the way of procedural protections that will be required.
ii. The ability of additional procedures to increase the accuracy of the fact finding.
• The more the additional procedures will reduce the risks of erroneous deprivation.
iii. The Government’s interests
• Usually efficiency…saving money
89
For laws affecting economic rights, what test is used? Rational, Intermediate, or strict?
The Constitution provides only minimal protection for economic liberties.
90
What does the takings clause state?
The Government may take private property for public use if it provides just compensation
91
What are the classifications of takings?
Possessory Taking- Government confiscation or physical occupation of property is a taking.
• Does not matter how small the property is
Regulatory Taking: Government regulation is a taking if it leaves no reasonable economically viable use of the property.
92
What is the analysis for a taking?
1. Is there a taking?
2. Is it for public use?
3. Is just compensation paid?
93
When is a taking for public use?
• A taking is for public use so long as the Government acts out of a reasonable belief that the taking will benefit the public.
94
As it pertains to a taking, what is just compensation?
Just compensation is measured in terms of the loss of the owner the gain to taker is irrelevant.
95
What does the Contracts Clause state?
No state shall impair the obligations of contracts.
• a. Applies only to state or local interference with existing contracts.
Never applies to Fed. Government
• b. State or local interference with private contracts must meet intermediate scrutiny
• c. State or local interference with government contracts must meet strict scrutiny.
96
What is the ex-post facto clause?
law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.
97
What cases does the ex post facto clause apply to? What level of scrutiny is required?
Only applies in criminal cases not civil.
Retroactive civil liability only need meet rational basis test.
98
The equal protection clause of the 14th amendment applies to-
state and local governments...never applies to federal government!
99
How is equal protection applied to the Federal Government?
o Equal protection is applied to the Federal government through the due process clause of the 5th amendment.
100
How should classifications based on race and national origin be classified?
1. Strict scrutiny is used
If law is facially neutral, proving a racial classification requires bot discriminatory impact and discriminatory intent.
101
How should classifications benefiting minorities be treated?
1. Strict scrutiny is used
102
How should gender classifications be treated?
1. Intermediate scrutiny
Government may discriminate based on sex only if there is an exceedingly persuasive justification.
103
How is the existence of a gender classification proven?
* a. The classification exists on the face of the law.
* b. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent.
104
How should alienage classifications be treated?
Generally, strict scrutiny is used when gov’t discriminates against non-citizens
105
What are the exceptions to the general rule that strict scrutiny be used when dealing with alienage classifications?
1. Only rational basis test is used for alienage classifications that concern self-government and the democratic process.
2. Only a rational basis test is used for Congressional discrimination against aliens.
3. It appears that intermediate scrutiny is used for discrimination against undocumented alien children.
106
How should discrimination against non-marital children be treated?
o 1. Intermediate scrutiny
| o 2. Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional.
107
What level of scrutiny is used for age discrimination, disability, wealth, economic regulations, and sexual orientation discrimination?
Rational Basis review
108
Content based v. content neutral restrictions- what level of scrutiny is used for both?
Content based speech restrictions= generally must meet strict scrutiny
Content neutral speech restrictions= generally need only meet intermediate scrutiny
109
What are the two types of content based laws?
i. subject matter restrictions (application of the law depends on the topic of the message)
ii. Viewpoint restrictions (application of the law depends on the ideology of the message)
110
Court orders suppressing speech must meet what level of scrutiny?
strict scrutiny.
111
The government can require a license for speech only if there is an...
important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
112
What is vagueness?
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
113
What is Overbreadth?
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
114
What are fighting words classified as?
A law prohibiting fighting words is unconstitutionally vague and overbroad.
115
The Government may regulate symbolic speech if it has:
an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
116
What speech is unprotected or less protected by the First Amendment?
1. Incitement of illegal activity
2. Obscenity and sexually-oriented speech
3. Advertising for illegal activity, and false and deceptive ads are not protected by the 1st Amendment.
4. Defamation
117
What requirements must be met to be viewed as obscene?
i. The material must appeal to the prurient interest
• community/local standard
ii. The material must be patently offensive under the law prohibiting obscenity
iii. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value.
• Determined by a national standard NOT local
118
If the Plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving:
falsity of the statement and actual malice.
119
If the Plaintiff is a public figure the plaintiff can recover for defamation by proving:
falsity of the statement and actual malice.
120
If the Plaintiff is a private figure, the matter is of public concern, that state may allow the plaintiff to recover for defamation by proving:
with clear and convincing evidence falsity and negligence by the defendant. However, the plaintiff may recover presumed or punitive damages only by showing actual malice.
121
If the plaintiff is a private figure, and the matter is not of public concern (public has legitimate interest), the plaintiff can recover presumed or punitive damages
without showing actual malice
122
What is a public forum?
Government properties that the government is constitutionally required to make available for speech.
123
What is a Designated public forum?
government properties that the government could close to speech, but chooses to open to speech. The same rules apply as for pubic forums.
124
What is a Limited Public Forum?
government properties that are limited to certain groups or dedicated to the discussion of only some subjects. The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.
125
What is a Non-public forum?
government properties that the government can and does close to speech
126
What are the rules regarding public forums and speech regulation?
* a. Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.
* b. Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication.
* c. Government regulation of public forums need not use the least restrictive alternative, but must be narrowly tailored.
* d. City officials cannot have discretion to set permit fees for public demonstrations.
127
What are the rules regarding Designated public forums and speech regulation?
The same rules apply as for pubic forums.
| Public school facilities on weekends and nights.
128
What are the rules regarding Limited public forums and speech regulation?
The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.
129
What are the rules regarding Non- public forums and speech regulation?
The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral.
130
Laws that prohibit or punish members of a group must meet:
Strict Scrutiny
131
To punish a member of a group, it must be proven that the person:
* a. actively participated with the group
* b. Knowing of its illegal activities
* c. With the specific intent of furthering those illegal activities
132
Laws that require disclosure of group membership, where such disclosure would chill association must meet:
Strict Scrutiny
133
Laws that prohibit a group from discriminating are constitutional unless:
they interfere with intimate association or expressive activity
Ex:
• KKK may discriminate against blacks
• Nazis may discriminate against Jews
• Boy scouts may discriminate against gays
134
What are the rules pertaining to the free exercise clause?
* a. The free exercise clause cannot be used to challenge a neutral law of general applicability. (important!)
* b. The government may not deny benefits to individuals who quit their jobs for religious reasons. (less frequently tested)
* c. The government may not hold a religious institution liable for the choices it makes as to who will be its ministers.
135
What is the test for the establishment clause?
1. Must be a secular purpose for the law
2. effect must be neither to advance nor inhibit religion
3. There must not be excessive entanglement with religion.
Nemonic: SEX
136
The government cannot discriminate against religious speech or among religions unless
strict scrutiny is met
137
Government sponsored religious activity in public schools is
Unconstitutional
*But, religious student and community groups must have the same access to school facilities as non-religious groups.
138
The government may give assistance to parochial schools, so long as it
is not used for religious instruction.
