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Missouri Bar > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

Article III Courts have power to hear

A

(1) Interpret constiutiton
(2) Fed laws
(3) Treaties
(4) Admirality
(5) Maritime
(6) Disputes between states/diverse citizens/foreign citizens

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2
Q

Judicial Review

A

Review constiutionality of acts of other branches of government

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3
Q

Article I courts have power to hear

A

Tax courts

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4
Q

Original jurisdiction of supreme court

A

(1) Ambassadors
(2) Public ministers
(3) consuls
(4) suites against states

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5
Q

Cases come to Supreme court by

A

(1) Writ of Certioari - DISCRETION

(2) Appeal - must hear it

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6
Q

Requirements for a fed court to hear a case

A

(1) must be a “case or controversy”
(2) No advisory opinions
(3) Ripeness (bars claim BEFORE developed)
(4) Mootness (bars claim AFTER resolved)
(5) Standing

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7
Q

Components for Standing

A

(1) Injury
(2) Causation
(3) Redressability

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8
Q

Common Standing Issues

A

(1) Congress cannot confer standing w/o injury
(2) P has standing to enforce statute if within “zone of interest” of statute
(3) Assert rights of others
(4) Standing of organizations
(5) No citizenship standing
(6) No tax standing

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9
Q

Standing of organizations elemetns

A

(1) injury to members that would give right to sue on own behalf
(2) injury related to org’s purpose
(3) individual member participation not required

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10
Q

Will Supreme court exercise jurisidction if state court judgment based on adequate and independent state law grounds - even if fed issues involved?

A

NO - unless it is unclear that the decision was based only on state law grounds.

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11
Q

What’s a political question

A

matter that is not capable of judicial decision. Some PQ include:

(1) gerrymandering
(2) partisan leg appointment
(3) procedures for ratifying constitutional amendments
(4) President’s foreign policy

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12
Q

11th Amendment Bars

A

Fed Coruts from hearing private or foreign party’s claims against a state government.

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13
Q

Doctrine of sovereign immunity

A

bars suits against a state government in state court, even on fed claims, unless the state consents

Doesn’t bar suit against an officer whose act violates constitution or fed law, even if state has to pay, and actions against the officer personally

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14
Q

Congress’s Powers

A

(1) Necessary and Proper power (attached to another fed power)
(2) Tax Power
(3) Spending power
(4) Commerce
(5) War
(6) Investigation
(7) Property
(8) Bankruptcy
(9) Postal
(10) Citizenship
(11) Admiraility
(12) Coin money
(13) Patent/Copyright

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15
Q

Necessary and Proper Power

A

Power to make all laws necessary and proper for executing any power granted to any branch of the federal government

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16
Q

Tax Power

A

Only needs to be reasonable related to revenue production

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17
Q

Spending Power

A

Any public purpose

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18
Q

Commerce Power

A

(1) Regulate CHANNELS of interstate comerce
(2) Regulate the INSTRUMENTALITIES, or
(3) Regulate activities that have a SUBSTANTIAL EFFECT

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19
Q

If congress relies on commerce power to regulate interstate activities that have a substantial effect, then a court will uphold it if…

A

(1) Economic: rational basis that it effects interstate commerce
(2) Noneconomic: congress must show a direct substantial economic effect on interestate commerce

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20
Q

Property power

A

No limits to dispose property

Takings must be for purpose of an enumerated constitutional power

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21
Q

is there police power by congress?

A

NO - unless you’re in the terrible place known as DC

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22
Q

Alien rights

A

Alien: no rights

Resident alien: notice and hearing before deportation

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23
Q

Speech and Debate clause

A

Can say anything and not be prosecuted

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24
Q

Can delegate legislative power when…

A

Congress provides intelligible standards

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25
Q

Can congress veto an executive action?

A

NO

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26
Q

Appointment powers

A

Congress cannot appoint

Requires advice of senate unless it’s an inferior officer

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27
Q

Removal of appointees

A

President: can remove exec high level without intereference from Congress. Congress can put limits on President’s power to remove all other executives (ex. good cause only).

Congress: Can remove exec officers through impeachment only.

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28
Q

Pocket veto

A

President has 10 days to veto - if congress is not in session the bill is automatically vetoed. If congress is in session it becomes law.

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29
Q

Line item veto

A

unconstitutional - all or nothing

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30
Q

President’s power as chief

A

(1) President acts with express or implied authority of congress - likely valid
(2) President acts where congress silent - likely uheld unless it usurps the power of another branch
(3) President acts against congress - he has little authority

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31
Q

Treaty power

A

President can enter into treaties with 2/3 vote of senate

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32
Q

Veto requires what in congress

A

2/3 in each house

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33
Q

Executive Agreement vs. Treaty

A

Exec agreement do not require consent of congress - treaties do

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34
Q

Executive Agreement priority of authority

A

(1) Exec agreement trumps state law

(2) Exec agreement does not trump federal law

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35
Q

Impeachment requirements

A

Majority vote in house to invoke charges

2/3 in senate to convict and remove

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36
Q

Preemption

A

Fed law supersedes state law either expressly or implicitly

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37
Q

Preemption by Operation of the entire field

A

State law can be preempted even if there isn’t a conflict in the laws if congress intended to operate the entire field

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38
Q

Can US sue States?

A

YES

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39
Q

Can States sue US?

A

NO - unless US consents

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40
Q

Can State sue a state?

A

Yep - even without other’s consent - SC has exclusive jurisdiction.

41
Q

Is a tax applying to both state and private actors valid?

A

YES,

Flip side: it is not valid if it only applies to the state or local government activity based on tenth amendment - BUT COURTS HARDLY DO IT SO DON’T CHOSE THIS ANSWER

42
Q

Can congress indirectly control a state through its spending power

A

YES - congress can add conditions on the grant of money, if conditions

(1) clearly stated
(2) relate to the purpose of the program
(3) not unduly coercive

43
Q

Fourteenth Amendment - National citizenship privilege

A

State cannot deny citizen privilege and immunities to national citizenship

44
Q

Can a state regulate/tax commerce in absence of congressional action?

A

Yes, as long as it doesn’t discriminate or unduly burden interstate commerce

45
Q

State action DISCRIMINATES against nonresident - Privileges and immunities clause

A

invalid UNLESS state has a substantial justification and there are no other less restrictive means

This only protects fundamental rights

Alein or corporation CANNOT be Plaintiff
NO MARKET PARTIPCIATION EXEMPTION

46
Q

State action DISCRIMINATES against nonresident - Commerce Clause

A

If there is no applicable fed legislation and it burdens interstate commerce, then invalid, UNLESS

(1) important noneconomic state interest
(2) state is a market particpant
(3) usual government function

Alien or corporation MAY be Plaintiff

47
Q

State action does NOT discriminate against nonresident - both privilege and immunities and commerce clause

A

PI does not apply because you need discrimination.

Under commerce clause, if the law burdens interstate commerce and it outweighs the state interest then it is invalid

48
Q

Does the state need to be involved to show a constitutional violation?

A

YES - must be a public function or a significant state involvement.

49
Q

The Contract Clause

A

Limits states ability to enact laws that retroactively impair contract rights. Private contract given intermediate scrutniy and public contracts given strict scrutiny

DOESN’T APPLY TO FEDS

50
Q

Ex Post Facto Laws

A

No alteration of criminal offenses or punishments retroactively - only applies to criminal world not civil

51
Q

Procedural due process definition

A

Fair process required for government to take a persons life, liberty or property

Property includes more than just personal belongings or relaty - also includes legitimate claims or entitlements to the benefit under state/fed law

52
Q

What constitutes fair process

A

Weighing

(1) importance of the interest
(2) procedural safeguards
(3) government interest

53
Q

Can you waive due process?

A

YES - must be “voluntary and made knowingly”

54
Q

Fifth amendment taking clause (applicable to states via 14th amendment)

A

private property cannot be taken for PUBLIC USE without just compensation.

It doesn’t matter how small the taking is - must be given compensation

55
Q

What burden of proof for fifth amendment taking?

A

rationally related to a legitimate public purpose

56
Q

Is it a taking if no physical invasion but impacts economic use?

A

Depends

Denies all economic value - taking
Temporary denied - no taking
lowers economic value but still economically viable - no taking

57
Q

What is just compensation

A

fair market value at the time of the taking

58
Q

Substantive due process vs equal protection on MBE

A

If limits liberty of ALL - due process question

If limits a class/race - equal protection question

59
Q

Strict Scruitny

A

Affects fundamental rights or suspect classifications

Law upheld if it is necessary to achieve a compelling interest. Government has burden

60
Q

What are the classifications subject to strict scrutiny

A 
Race
National origin
Alienage (state only) 
Interstate travel
Privacy
Voting
First Amendment
61
Q

Intermediate Scrutiny

A

Quasi-suspect classifications

Law upheld if it is substantially related to an important interest. Unclear who has the burden but likely government

62
Q

What are the classifications subject to intermediate scrutiny

A

Gender

Legitimacy of children

63
Q

Rational Basis

A

All other classifications and laws

Law upheld if it is rationally related to a legitimate interest. Plaintiff has burden of proof

64
Q

Substantive due process 5th vs. 14th amendment

A

5th amendment - federal government

14th amendment - state government

65
Q

Substantive due process analysis

A

Fundamental right - strict scrutiny

All others - rational basis

66
Q

For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Ways you can show intent:

A

(1) law discriminatory on its face
(2) discriminatory application
(3) discriminatory motive

67
Q

Race and nationa origin - school integration

A

only intentional segregation violates constitution.

68
Q

Remedying past discrimination ok?

A

YES - but general past societal discrimination is not

69
Q

Race OK to be considered in drawing up districts?

A

YES - but it cannot be the predominant factor

70
Q

Is diversity of a student body in primary/second school a compelling interest under strict scruitny?

A

NO - but court has deferred to higher education, except the court has not endorsed higher ed schemes for assuring diversity - the school must show that no workable race-neutral alternative would assure diversity sought

71
Q

Alienage rules between fed and state

A

If fed action - its’ valid if it isn’t unreasonable
If state action - strict scrutiny applies. UNLESS it’s participation in self-government or non-elective offices servicing the people (police, teachers), then rational basis applied

72
Q

Fundamental right - right to privacy - abortion rules

A

Strict scruitny but slightly modified to include a (1) pre-viability and (2) post viability analysis.

Pre viability - state can put a regulation in place if it doesn’t place an “undue burden” on right to get an abortion (only undue burden is notifying spouse).

Post viabilie - state’s interst in fetus overrides woman’s right to abortion, unless her health at risk

73
Q

Fundamental right - right to privacy - extended fmaily together

A

Zoning regs that prevent it are invalid. Does not extend to unrelated people

74
Q

Fundamental right - right to vote - congressional election mapping

A

States must use almost exact mathematical equality in creating congressional district. Congress does not have this high of burden when apportioning representatives

75
Q

Freedom of speech - government speech elements

A

Only restricts government regulation of private speech. Does not prevent government from voicing its views or funding its views (but look for government trying to regulate speech by attaching stipulations to grant receiver).

Government speech need only be rationally related to a legitimate interest

76
Q

Content regualation of speech - restrictions

A

Presumptively unconstitutional - must be necessary to achieve a compelling interest

77
Q

Conduct regulation of speech

A

CAN be regulated by content-netrual time, place and manner

78
Q

Void for Vagueness doctrine

A

law gives no reasonable notice as to what is prohibited (ex. prohibit “lewd” speech).

79
Q

Four types of forums for conduct regulation

A

Public forum
Designated public forum
Limited public forum
Nonpublic forum

80
Q

Public forum

A

Streets/sidewalks/parks - any area that has been historically open to speech. To regulate on time/place manner, it must be

(1) content neutral
(2) narrowly tailored to serve an important interest
(3) Leave open alternative channels

81
Q

Designated public forum

A

Not historically open to speech-related activities but government allows on a limited basis. To regulate on time/place/manner, it must be

(1) content neutral
(2) narrowly tailored to serve an important interest
(3) Leave open alternative channels

82
Q

Limited or nonpublic forums

A

Generally not open to speech-based activities. Regulations for time/place/manner restrictions valid if

(1) viewpoint neutral
(2) reasonably related to a legitimate interest

83
Q

What areas CAN government regulate speech

A

(1) Inciting imminent lawless action (likely that it will happen)
(2) Fighting words (true threats)
(3) Obscenity
(4) Defamatory speech
(5) Some commercial speech

84
Q

Speech is obscene when…

A

(1) Appeals to the prurient interest using a community standard
(2) Patently offensive using a community standard
(3) Lacks serious value using a national standard

85
Q

Obscene business can be regulated, but…

A

Cannot be an all out ban -

86
Q

Regulation of commercial speech upheld when..

A

(1) Serves a substantial government interest
(2) Directly advances that interest
(3) narrowly tailored

87
Q

Prior Restraint is…

A

restricting speech before it happens - hard for government to do unless it shows

(1) narrowly drawn, reasonable and definite
(2) Injunction my promptly be sought
(3) Prompt and final determination on validity of restraint

88
Q

Freedom of Association

A

Government must show a compelling interest unrelated to suppression of ideas, if restrictions are least restrictive means.

89
Q

Limits on contributions

A

Subject to intermediate scrutiny
Can limit amount of money to a political candidate, but may NOT to a ballot referrendum
CANNOT limit the aggregate amount of one person or entity
CANNOT limit amount one person can spend on expenditures not contributed to the candidate

90
Q

Religious regulation

A

Government cannot interefere with BELIEFS (or target religious groups)

but government can interfere with CONDUCT if it is rationally related to a legitimate government interest and netural toward regligion.

If the law is not netural toward religion, then must pass strict scrutiny.

91
Q

Government action toward religion is found invalid, unless

A

Lemon test

(1) it has a secular purpose
(2) primary effect that neither advances or inhibits religion
(3) No excessive entaglement with religion

92
Q

Fighting Words

A

Inciting imminent lawless action is not protected speech

93
Q

Bona Fide State resident protections (ex. colleges)

A

rational basis standard if it (1) applies to all, (2) doesn’t involve a suspect class and (3) doesn’t involve a fundamental right.

94
Q

Trial and pretrial hearings - what standard to close out public?

A

can only be closed if necessary to preserve an overriding interest

95
Q

When is a matter considered moot?

A

must be a real, live controversey AT ALL STAGES OF THE PROCEEDING.

Class action exception: if named member no longer satisifying, class will.

96
Q

Power of state to tax under commerce clause

A

(1) tax does not discriminate against interstate commerce
(2) nexus between activity taxed and taxing state
(3) fairly approprined
(4) relates to services or benefits provided by the state

97
Q

Continued Public Employment - Due Process Requirements

A

Property interest if

(1) statute or ordinace that creates a public employment K, or
(2) clear practice that employee can only be terminated for “cause”

98
Q

What type of process usually required when government depriving life, liberty, property?

A

Generally, notice and a hearing before termination of interest (welfare, suspension from public school

In some cases - notice and a post termination (disability

In some cases - must give all three notice pre and post termination hearing (public employee for cause,

Missouri Bar (15 decks)

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