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Constitutional law Flashcards

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1
Q

Presidential pardons

A

Can only grant reprieves or pardons for offenses against the U.S. So, federal offenses.

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2
Q

Abstention

A

Fed ct will refuse to review a case based on an unsettled issue of state law
Fed review prohibited where there are pending state criminal proceedings

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3
Q

Presidential powers

A
  • issuance of executive orders which have the binding force of law upon federal agencies
  • commander in chief
  • appointment powers
  • emergency powers
  • clemency powers
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4
Q

Hierarchy of laws

A
  1. Constitution
  2. Acts of congress, treaty
  3. Executive agreement (foreign policy/affairs), executive order (domestic policy)
  4. State law
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5
Q

Conflict between laws on equal footing (like act of congress AND a treaty)

A

Last in time will prevail. Most recent.

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6
Q

Executive agreements subject to judicial review?

A

YES.

Foreign policy/affairs

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7
Q

Generally wrong answers

A

General welfare clause
Necessary and proper clause
–these two NOT an independent source of power, just vehicles that carry into effect some other law, but don’t provide power in and of themselves

14th A privileges and immunities clause
–not always wrong tho. P&I of Art 4 probably more likely right.

Contracts clause
–only applies to the states, so not correct if the fed gov is acting

Distinction between Rights and Privileges

10th A - caveat NY v US
–usually a weak limitation on federal action.

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8
Q

Congress delegation of power

A
  • may delegate the task of implementing its laws to gov agencies
  • allows Cong to indirectly monitor an area in which it has passed laws without becoming bogged down in enforcement details
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9
Q

When Congressional delegation of power is valid

A
  1. Cong passes enabling legislation
  2. specified the purpose, functions, and powers
  3. describes the procedures of the agency
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10
Q

Supremacy clause

A

Superseding doctrine
And
Preemption doctrine

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11
Q

Superseding doctrine

A

A fed law will supersede any state law in direct conflict

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12
Q

Preemption doctrine

A

Any state law in an area where congress intends to occupy the field is unconstitutional

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13
Q

State law vs. administrative order of a federal agency

A

Administrative order of federal agency wins.

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14
Q

Can states set more stringent standards that the federal law?

A

YES, if it falls within the Police Power or another exception.

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15
Q

To uphold a state statute

A
  1. Dormant commerce clause
    - non discriminatory
    - no undue burden on interstate commerce (use balancing test)
  2. Police power
    - health, safety, welfare, morals, aesthetics
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16
Q

When can a state tax federal property?

A

When its used for proprietary purposes (so long as it’s not discriminatory)

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17
Q

State taxation of federal things

A

States can’t tax the fed gov

Fed employees and contractors can be taxed as long as the incidence of the tax does not fall on the fed gov itself

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18
Q

To uphold federal statute:

A
  1. Supremacy clause
  2. Any enumerated power of congress (Art 1, section 8)
  3. Federal property power
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19
Q

Property power

A

Congress has the power to dispose of the territory or other property belonging to the US

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20
Q

Affectation doctrine

A

Congress may regulate any activity which had a substantial economic effect on interstate commerce

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21
Q

Regulation of interstate commerce constitutional so long as:

A
  1. Non discriminatory
    AND
  2. Does not place an undue burden on interstate commerce
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22
Q

Can congress appropriate funds for the general welfare even though disparate treatment is given to different groups?

A

YEP

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23
Q

Can Congress commandeer the states to enact and enforce legislation?

A

NOPE

24
Q

Commandeering

A

Cong can’t do anything that forces the states to enact and enforce legislation.

Unconstitutional

25
Q

State action

A

Threshold requirement of conduct by the gov which MUST be satisfied before private discrimination can be restricted

26
Q

STRICT SCRUTINY

A

Burden on - GOV

Standard - necessary for a compelling gov interest

Race, alienage, national origin, fundamental rights

27
Q

INTERMEDIATE SCRUTINY

A

Burden on - GOV

Standard - substantially related to an important gov interest

Gender, illegitimacy

28
Q

RATIONAL BASIS

A

Burden on - PLAINTIFF

Standard - rationally related to a legitimate gov interest

Age, mental retardation, poverty, necessities, social and economic welfare measures

29
Q

When a statute is neutral on its face, P must show:

A
  1. Discriminatory effect, AND
  2. Discriminatory purpose.

To raise burden above rational basis

30
Q

Fundamental right of privacy

A 
Contraception
Abortion
Marriage
Procreation
Private education
Family relations

CAMPER

31
Q

Fundamental rights

A

Right to vote
Right to travel
Right to privacy

Substantive due process - the source from which these rights derive

32
Q

Article IV Privileges and Immunities

A

Prevents economic discrimination by one state against citizens or residents of another state UNLESS a substantial gov interest exists

Right to access courts, medical care, earn a living, pursue a livelihood - can’t discriminate. For recreational things, CAN charge more for out of state people.

33
Q

Non Fundamental Voting rights

A

Apply RB:

- the right to be a candidate (payment of a filing fee, minimum and maximum age restrictions)

34
Q

Fundamental voting rights

A

Apply strict scrutiny:

Discrimination in voting
Reapportionment
Switching party affiliation
Ballot restrictions based on “special interests” (land ownership)

35
Q

Taking

A

Regulation that denies the owner all reasonable economically viable use of his land

36
Q

Bill of attainder

A

Legislative punishment of a named group or individual without judicial trial

37
Q

“Public Use” requirement (for taking)

A
  1. Burden on gov to show measure is rationally related to any conceivable purpose
  2. To qualify as public purpose, property does not have to be held out for use by the general public

Want to show that it benefits the public generally, but doesn’t have to be open to the public.

38
Q

Procedural Due Process

A

The procedural safeguards if notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest

39
Q

Ex post facto laws

A

UNCONSTITUTIONAL criminal laws that:
1. Make criminal conduct that was not a crime when committed
OR
2. Decrease the amount of evidence needed to convict/change the procedure(s) for conviction

40
Q

Content Specific Regulation - protected speech

A

Apply strict scrutiny

41
Q

Content Specific Regulation - unprotected speech (types)

A 
Clear and Present Danger
Defamation
Obscenity
Child Pornography
"Fighting words"
Fraudulent commercial speech
42
Q

Test for “Content Neutral” regulation (Time, place and manner)

A

3 part test:
1. Further a significant government interest
2. Be narrowly tailored (least restrictive means possible)
AND
3. Leave open alternative channels of communication

43
Q

4 Facial Attacks to a statute (first amendment)

A
  1. Overbreadth
  2. Vagueness
  3. Prior restraints
  4. Unfettered discretion (where one person has too much power to do something, no balance of power)
44
Q

Types of Public Speaking Forums

A
  1. Public Forum
  2. Limited Public Forum
  3. Non-public Forum
45
Q

When a gov provides open advertising on city buses, can it engage in viewpoint-based distinctions?

A

NOPE. Cannot make content-based discrimination

46
Q

Public Forum

A

Areas generally open to the public.

Examples: streets, sidewalks, public parks

47
Q

Limited Public Forum

A

Opened by state on permanent/limited basis

Examples: school rooms, public-owned theaters

48
Q

Non-public Forum

A

Most other public places

Examples: military bases, city bus, government workplaces, airport terminals

49
Q

Vice Advertising (test)

A

Gov regulation must:

  1. Directly advance
  2. a substantial gov interest,
  3. AND be “narrowly tailored”
50
Q

Establishment Clause test (Lemon v. Kurtzman)

A

In order NOT to violate the Lemon test:

  1. The primary purpose must be secular
  2. Primary effect must neither inhibit nor advance religion
  3. No excessive government entanglement with religion
51
Q

Standard of review for Free Exercise of Religion infringements

A

Purposeful interference -> Strict scrutiny

Incidental burden -> Rational basis

52
Q

When a state court decision is based on federal interpretation of a similar federal law, adequate and independent state grounds will not apply. True or false?

A

TRUE.

SCOTUS may review in this situation.

53
Q

May Congress expand SCOTUS’s appellate jdx to include direct review of the decisions of lower state courts? (not state supreme courts)

A

YES. Cong may expand or restrict the number and types of lower court decisions which SCOTUS may hear. Cong has power over SCOTUS’s appellate jdx, can alter it.

54
Q

When may a jdx restrict the right to vote?

A

So long as the restriction is necessary to advance a compelling gov interest and the jdx has chosen the least restrictive means of achieving that interest.

Residency, age, and citizenship have been allowed - least restrictive means of achieving this interest.

55
Q

Residency requirement for right to vote that has been upheld by SCOTUS? (is less burdensome on right to vote)

A

50 day residency requirement

56
Q

May Congress set aside, or override, an administrative order of a cabinet member?

A

NO. If Cong wants to enact new laws, it has to legislate a new bill though its express or implied powers, and then have the President sign it into law. Cong may NOT abrogate an authorization prescribed by federal law without new legislation permitting such action.

Legislative vetoes are unconstitutional.

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