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CA Bar: Elements > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

Justiciable Case or Controversy

A

“RAMPSE” - (1) Ripeness; (2) Abstention; (3) Mootness; (4) Political Question; (5) Standing; and (6) Eleventh Amendment

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2
Q

Ripeness

A

1) π suffers (threat of) harm, 2) fit for review, 3) sufficient facts & record for review

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3
Q

Abstention

A

Fed. Ct will abstain from hearing con. law claim on unsettled question of STATE law

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4
Q

Mootness

A

must have a controversy at all stages of proceeding or the case will be dismissed unless: 1) issue capable of repetition but evading review OR 2) voluntary cessation - rep’s claim in class action moot, other claims still viable

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5
Q

Political Question

A

issue for other branch or inherently incapable of judicial resolution

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6
Q

Standing

A

1) injury in fact, 2) causation between conduct and injury, 3) redressability

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7
Q

Standing (associational standing)

A

1) members would have standing on own, 2) interests germane to org’s purpose, 3) individual members participation not required

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8
Q

Standing (taxpayer)

A

Usually Establishment Clause. 1) enacted under Congress’s taxing and spending power, 2) exceeds some specific limitation on power

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9
Q

Eleventh Amendment

A

Can’t sue state in fed. ct unless sues state officer, ST consents, Congress removes immunity (EXCEPTION: actions against local governments or state officers for injunctive relief are NOT barred)

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10
Q

Government Power

A

Separation of Powers; Fed Legislative Powers; Fed Executive Powers; Federalism;

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11
Q

Separation of Powers (judicial)

A

justiciability, supreme court review - writ of certiorari

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12
Q

Separation of Powers (legislative)

A

sources of power (express/implied, necessary & proper) and limitation

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13
Q

Separation of Powers (executive)

A

foreign/domestic powers/limitations, exec. privilege/immunity, impeach

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14
Q

Federal Legislative Powers

A

“CON T3” - (1) Commerce Clause; (2) Others (citizenship, civil Rights, foreign affairs, war, elections, property); (3) Necessary & Proper; (4) Tax/Spending; (5) Taking Property; (6) Tenth Amendment

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15
Q

Commerce Clause

A

Congress may regulate: (1) channels of ICC, and (2) instrumentalities of ICC (persons and things in ICC); and (3) may regulate economic activity that has a substantial effect of ICC (in the area of noneconomic activity, a substantial effect cannot be based on cumulative impact)

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16
Q

Tax/Spending Clause

A

Congress may tax and spend for the general welfare (and may enact any tax to raise revenue for the general welfare)

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17
Q

Other Legislative Powers

A

Citizenship (power is plenary), Civil Rights, Foreign Affairs, War, Elections, Property (can dispose of and make all needful rules regarding territories and property of the US)

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18
Q

Necessary and Proper Clause

A

May use any means not prohibited by Constitution to execute any branch’s authority

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19
Q

Tenth Amendment

A

powers not granted to U.S., or prohibited to states, reserved to states/people (Congress cannot commandeer state action BUT can put strings on grants unless unduly coercive; AND may prohibit harmful commercial activity by state governments)

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20
Q

Federal Executive Powers (foreign affairs)

A

President represents U.S. to foreign nations (treaties and exec agreements)

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21
Q

Treaties

A

Power to enter into treaties (2/3 Senate approval needed for ratification)

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22
Q

Executive Agreements

A

Power to sign w/ head of foreign country. No senate consent.

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23
Q

Federal Executive Powers (domestic affairs)

A

appointment of officers, removal power, veto power, pardons

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24
Q

Federal Executive Powers (Commander-in-Chief)

A

cannot declare war but can deploy troops

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25
Q

Federal Executive Power (scope of power)

A

Youngstown Sheet:

i. Acts with express or implied Congressional authority, powers at highest (“maximum power”)
ii. Acts where Congress is silent, action upheld unless usurps power of another branch (“zone of twilight”)
iii. Acts against express Congressional will, has little authority (“lowest ebb”)

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26
Q

Executive Privilege and Immunity

A

i. Privilege applies to communications unless required for criminal proceeding
ii. Absolute immunity from civil suits for official actions while in office only

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27
Q

Impeachment

A

majority in the House needed to charge impeachment and a 2/3 Senate vote to convict and remove from office

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28
Q

Federalism

A

Preemption, Dormant CC, Privilege and Immunities, Art. IV (P&I); 14th Amend (P&I)

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29
Q

Preemption

A

Supremacy Clause (Art. IV) fed laws supreme law of land (express or implied)

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30
Q

Dormant Commerce Clause

A

state law that places “undue burden on ICC” unconstitutional:
i. Discrimination against out of staters presumed to be undue burden on ISC unless . . .
EEXCEPTIONS - [“MINE DAT”] - 1) state is Market participant, 2) law furthers Important, Non-Economic state interest, and there are non-Discriminatory Alternatives; or 3) law favors government performing Traditional government functions

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31
Q

Privileges and Immunities Clause (Art. IV)

A

No state may deny citizens of other states privileges & immunities it accords own citizens (anti-discrimination) unless necessary for important govt interest; No less restrictive alt; Apply when local laws discriminate against citizens of other states (if it does not discriminate, do not apply)

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32
Q

Privileges and Immunities Clause (14th Amendment)

A

Prohibits states from denying their own citizens right of national citizenship–used only for right to travel (discrimination against new residents’ right to travel)

33
Q

Individual Rights

A

(1) State Action; (2) First Amendment - Speech; (3) Freedom of Association; (4) First Amendment - Religion; (5) Equal Protection; (6) Substantive DP; (7) Procedural DP; (8) Economic Liberties

34
Q

State Action

A

must have government action, public function, or entanglement

35
Q

First Amendment - Speech (issues)

A

Prior Restraint; Vagueness; Overbreadth; Content Regulation; and Content Neutral Regulation

36
Q

Prior Restraint (definition)

A

restricts speech before it occurs, gov’t must show special societal harm

37
Q

Prior Restraint (requirements)

A

i. Standards must be narrowly drawn, reasonable, definite
ii. Injunction must promptly be sought; and
iii. Must be prompt and final determination of validity of restraint

38
Q

Vagueness

A

reasonable person not given reasonable notice of what is prohibited

39
Q

Overbreadth

A

regulates both protected and unprotected speech

40
Q

Content Regulation (types)

A

subject matter OR viewpoint

41
Q

Content Regulation (subject matter)

A

application depends on msg topic (e.g. only labor protests on sidewalk)
“CO IF SD” - (1) Commercial speech; (2) Obscenity; (3) Incitement of illegal activity; (4) Fighting words; (5) Symbolic speech; (6) Defamation

42
Q

Commercial speech

A

Illegal, false, and deceptive ads not protected. Apply IS - narrowly tailored but does not need to least restrictive means

43
Q

Obscenity

A

1) appeals to prurient interest, 2) patently offensive, 3) lacks literary, artistic, political, or scientific value

44
Q

Incitement of Illegal Activity

A

1) imminent illegal activity; and 2) speech directed to cause activity

45
Q

Fighting Words

A

1) true threats, 2) inciting physical response, 3) annoying not enough

46
Q

Symbolic Speech

A

Government can regulate if important interest unrelated to suppressing msg and if impact on communication is no greater than necessary to achieve govt purpose

i. Flag burning/burning cross (ok if doesn’t physically hurt)
ii. Draft card burning / nude dancing (can regulate or ban)

47
Q

Defamation

A

Same elements as torts PLUS falsity and fault

48
Q

Content Neutral Speech (places)

A

(1) public forums; (2) designated public forums; (3) limited and non-public forums

49
Q

Public Forums

A

govt required to make available for speech (ex. Sidewalk)

  1. Regs must be subject matter & viewpoint neutral of SS must be met
  2. TPM regs must serve imp. govt purpose, leave adequate alts. places for comm.
50
Q

Time, Place, and Manner Restrictions

A

(1) Must be content neutral; (2) Must be narrowly tailored; and (3) Must leave open adequate alternative channels for communication

51
Q

Designated Public Forums

A

Same as public forums

52
Q

Limited and Non-Public Forums

A

Government can regulate so long as reasonable/viewpoint neutral

53
Q

Freedom of Association

A

Government may not prohibit/punish group membership unless law meets SS

54
Q

First Amendment - Religion

A

(1) Free Exercise Clause; and (2) Establishment Clause

55
Q

Free Exercise Clause

A

Government cannot punish b/c religion; government need not grant exemptions to generally applicable conduct regulation that incidentally burdens religious practices (“neutral laws of general applicability”–okay)

56
Q

Establishment Clause

A

i. If there is a sect preference on the face of the regulation apply SS;
ii. If there is no preference, apply the Lemon Test [“SEX”]
(1) Secular purpose;
(2) primary Effect is neither to advance nor inhibit religion;
(3) does not produce eXcessive entanglement between government and religion

57
Q

Equal Protection

A

Classification or Fundamental Interest – applies to fed govt thru 5th AM, applies to states & local govt thru 14th AM

58
Q

Levels of Scrutiny

A

(1) Strict scrutiny; (2) Intermediate scrutiny; and (3) Rational basis

59
Q

Strict Scrutiny

A

“NC” - necessary to achieve compelling govt purpose (govt’s burden)

60
Q

Intermediate Scrutiny

A

“SI” - substantially related to important govt purpose (gov’s burden)

61
Q

Rational Basis

A

“RL” - rationally related to a legitimate govt purpose (challenger’s burden)

62
Q

Classifications

A

on its face; or if facially neutral, need discriminatory impact and intent

(1) Suspect; (2) Quasi-Suspect; (3) Other

63
Q

Suspect Classifications

A

“RAN” - race; alienage; or national origin (apply S.S.)

64
Q

Quasi-Suspect Classifications

A

gender and illegitimacy (apply I.S.)

65
Q

Other Classifications

A

wealth, age, disability, sexual orientation, and alienage classifications related to self-government and the democratic process or congressional regulation (apply R.B.)

66
Q

Fundamental Interests

A

First Amendment, travel, voting (apply S.S.)

67
Q

Substantive Due Process

A

Law applies to everyone

68
Q

Substantive DP (strict scrutiny)

A

fundamental rights “VIP” - voting,interstate travel, privacy (contraception, marriage, procreation, choosing child’s education, familial relations)

69
Q

Substantive DP (rational basis)

A

applies to all non-fundamental rights–typically, economic and social regulations

70
Q

Substantive DP (abortion)

A

Pre-viability: state may regulate abortion process pre-viability unless undue burden

Post-viability: can be prohibited unless women’s health is threatened

71
Q

Procedural Due Process

A

Life, Liberty, or Property Interest - by intentional or reckless government action

note: property interest includes entitlement to a continued receipt of a government benefit

72
Q

Procedural DP - Process Due (balance test)

A

[“I Am Good”]

i. Importance of interest to individual;
ii. Ability of additional procedures to increase accuracy of fact-finding; AND
iii. Government’s interest

73
Q

Economic Liberties (5th Amendment Takings)

A

Usually apply R.B.

74
Q

Takings Clause

A

government may take private prop for public use if it pays just compensation

75
Q

Government Taking

A

(1) Possessory taking (per se taking); or (2) Regulatory taking

76
Q

Regulatory Taking

A

(1) Deprivation of all economic value is a taking; (2) Decrease in economic value–balance (a) economic impact against (b) distinct, investor backed expectations (usually not a taking)

77
Q

Taking for Public Use

A

government acts out of reasonable belief its action will benefit the public

78
Q

Just Compensation

A

government must pay fair market value of what was taken, measured by loss to owner

CA Bar: Elements (7 decks)

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