Constitutional law Flashcards
Presidential pardons
Can only grant reprieves or pardons for offenses against the U.S. So, federal offenses.
Abstention
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
Presidential powers
- issuance of executive orders which have the binding force of law upon federal agencies
- commander in chief
- appointment powers
- emergency powers
- clemency powers
Hierarchy of laws
- Constitution
- Acts of congress, treaty
- Executive agreement (foreign policy/affairs), executive order (domestic policy)
- State law
Conflict between laws on equal footing (like act of congress AND a treaty)
Last in time will prevail. Most recent.
Executive agreements subject to judicial review?
YES.
Foreign policy/affairs
Generally wrong answers
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.
Congress delegation of power
- 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
When Congressional delegation of power is valid
- Cong passes enabling legislation
- specified the purpose, functions, and powers
- describes the procedures of the agency
Supremacy clause
Superseding doctrine
And
Preemption doctrine
Superseding doctrine
A fed law will supersede any state law in direct conflict
Preemption doctrine
Any state law in an area where congress intends to occupy the field is unconstitutional
State law vs. administrative order of a federal agency
Administrative order of federal agency wins.
Can states set more stringent standards that the federal law?
YES, if it falls within the Police Power or another exception.
To uphold a state statute
- Dormant commerce clause
- non discriminatory
- no undue burden on interstate commerce (use balancing test) - Police power
- health, safety, welfare, morals, aesthetics
When can a state tax federal property?
When its used for proprietary purposes (so long as it’s not discriminatory)
State taxation of federal things
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
To uphold federal statute:
- Supremacy clause
- Any enumerated power of congress (Art 1, section 8)
- Federal property power
Property power
Congress has the power to dispose of the territory or other property belonging to the US
Affectation doctrine
Congress may regulate any activity which had a substantial economic effect on interstate commerce
Regulation of interstate commerce constitutional so long as:
- Non discriminatory
AND - Does not place an undue burden on interstate commerce
Can congress appropriate funds for the general welfare even though disparate treatment is given to different groups?
YEP
Can Congress commandeer the states to enact and enforce legislation?
NOPE
Commandeering
Cong can’t do anything that forces the states to enact and enforce legislation.
Unconstitutional
State action
Threshold requirement of conduct by the gov which MUST be satisfied before private discrimination can be restricted
STRICT SCRUTINY
Burden on - GOV
Standard - necessary for a compelling gov interest
Race, alienage, national origin, fundamental rights
INTERMEDIATE SCRUTINY
Burden on - GOV
Standard - substantially related to an important gov interest
Gender, illegitimacy
RATIONAL BASIS
Burden on - PLAINTIFF
Standard - rationally related to a legitimate gov interest
Age, mental retardation, poverty, necessities, social and economic welfare measures
When a statute is neutral on its face, P must show:
- Discriminatory effect, AND
- Discriminatory purpose.
To raise burden above rational basis
Fundamental right of privacy
Contraception Abortion Marriage Procreation Private education Family relations
CAMPER
Fundamental rights
Right to vote
Right to travel
Right to privacy
Substantive due process - the source from which these rights derive
Article IV Privileges and Immunities
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.
Non Fundamental Voting rights
Apply RB:
- the right to be a candidate (payment of a filing fee, minimum and maximum age restrictions)
Fundamental voting rights
Apply strict scrutiny:
Discrimination in voting
Reapportionment
Switching party affiliation
Ballot restrictions based on “special interests” (land ownership)
Taking
Regulation that denies the owner all reasonable economically viable use of his land
Bill of attainder
Legislative punishment of a named group or individual without judicial trial
“Public Use” requirement (for taking)
- Burden on gov to show measure is rationally related to any conceivable purpose
- 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.
Procedural Due Process
The procedural safeguards if notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest
Ex post facto laws
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
Content Specific Regulation - protected speech
Apply strict scrutiny
Content Specific Regulation - unprotected speech (types)
Clear and Present Danger Defamation Obscenity Child Pornography "Fighting words" Fraudulent commercial speech
Test for “Content Neutral” regulation (Time, place and manner)
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
4 Facial Attacks to a statute (first amendment)
- Overbreadth
- Vagueness
- Prior restraints
- Unfettered discretion (where one person has too much power to do something, no balance of power)
Types of Public Speaking Forums
- Public Forum
- Limited Public Forum
- Non-public Forum
When a gov provides open advertising on city buses, can it engage in viewpoint-based distinctions?
NOPE. Cannot make content-based discrimination
Public Forum
Areas generally open to the public.
Examples: streets, sidewalks, public parks
Limited Public Forum
Opened by state on permanent/limited basis
Examples: school rooms, public-owned theaters
Non-public Forum
Most other public places
Examples: military bases, city bus, government workplaces, airport terminals
Vice Advertising (test)
Gov regulation must:
- Directly advance
- a substantial gov interest,
- AND be “narrowly tailored”
Establishment Clause test (Lemon v. Kurtzman)
In order NOT to violate the Lemon test:
- The primary purpose must be secular
- Primary effect must neither inhibit nor advance religion
- No excessive government entanglement with religion
Standard of review for Free Exercise of Religion infringements
Purposeful interference -> Strict scrutiny
Incidental burden -> Rational basis
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?
TRUE.
SCOTUS may review in this situation.
May Congress expand SCOTUS’s appellate jdx to include direct review of the decisions of lower state courts? (not state supreme courts)
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.
When may a jdx restrict the right to vote?
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.
Residency requirement for right to vote that has been upheld by SCOTUS? (is less burdensome on right to vote)
50 day residency requirement
May Congress set aside, or override, an administrative order of a cabinet member?
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.
