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Select Topics II > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

Ripeness

A

Ct won’t hear a case unless P’s been harmed or there’s an imminent threat of harm

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2
Q

Mootness

A

Issue has already been resolved

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3
Q

Individual Standing

A

1) Concrete and particularized injury;
2) Causality; and
3) Redressable

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4
Q

Third-Party Standing

A

1) P has individual standing; and either
2) 3rd party has difficulty asserting own rights; or
3) P’s injury adversely affects P’s relationship with 3rd party

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5
Q

Organizational Standing

A

1) Individual member has standing;
2) Injury is related to the organization’s purpose; and
3) Neither the nature of the claim nor the relief requires participation of the members

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6
Q

11th Amendment bars the following cases:

A

(1) Action against state gov’t for damages;
(2) Action against state gov’t for injunctive or declarative relief where the state is named as a party;
(3) Action against state gov’t officers where the effect of the suit is that retroactive damages will be paid from the state treasury or where state land would be taken away; and
(4) Action against state gov’t officers for violating state laws

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7
Q

For interstate commerce, Congress may regulate:

A

1) Use of channels of interstate commerce;
2) Instrumentalities of interstate commerce; and
3) Activities having a substantial effect on interstate commerce, even if purely intrastate

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8
Q

10th Amendment & Commerce Clause -

Coercion

A

Can’t require states to act in a certain way or impose a substantial penalty for failing to act

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9
Q

10th Amendment & Commerce Clause -

Commandeering

A

Can’t require state officials to act in aid of federal law without providing federal funding

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10
Q

Dormant Commerce Clause - State or local commerce law is invalid if it:

A

1) Discriminates against out of state competition to benefit local economic interests; or
2) Is unduly burdensome (the legitimate local benefits don’t outweigh the incidental burden on interstate commerce)

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11
Q

Dormant Commerce Clause Exceptions - A discriminatory state or local law may be upheld if:

A

1) It furthers an important non-economic interest and there aren’t reasonable nondiscriminatory alternatives;
2) Gov’t agency is a market participant;
3) Congress exempts state/local gov’t from DCC; or
4) Traditional public function

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12
Q

Article IV Privileges & Immunities Clause

A

Prohibits discrimination by a state against citizens (people) of other states as to fundamental rights

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13
Q

Article IV Privileges & Immunities Clause Exception

A

Discrimination against nonresidents requires that 1) nonresidents are part of the problem to be solved; and 2) there are no less restrictive means to solve the problem

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14
Q

Taxing Power

A

A tax is valid if it is reasonably related to revenue raising or is an activity Congress can regulate

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15
Q

13th Amendment - Involuntary Servitude

A

Congress can enact laws banning racial discrimination in private and public transactions

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16
Q

Contracts Clause

A

Applies against state/local law

Law may not substantially impair an obligation under private Ks unless it is 1) reasonably and narrowly tailored to promote 2) a legitimate and important state interest

Public Ks - if gov’t is a K party, look for K clause or provision of law authorizing the K and reserving the right to amend or revoke the K

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17
Q

Legislative Veto

A

Congress can’t attempt to overturn an executive agency action without bicameralism and presentment

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18
Q

Preemption

A

Federal law supersedes all conflicting state/local regulations

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19
Q

Express Preemption

A

Congress explicitly states that the law preempts all state/local regulations

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20
Q

Implied Preemption

A

1) Actual conflict between the laws
2) State law interferes with a valid federal objective
3) It appears Congress intended to occupy the entire field such that the federal law is comprehensive in scope and the federal gov’t creates an administering agency

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21
Q

Presidential Authority - Domestic Affairs

A

1) President acts with express/implied authority of Congress - act valid
2) Congress is silent - act valid if it doesn’t aggrandize or encroach another branch
3) Congress expressly declines to authorize - act invalid

22
Q

Regulatory taking denies a landowner of all economic use

A

Total taking

23
Q

Regulation that decreases the value of property by denying its most beneficial use but leaves an economically viable use

A

Not a partial taking unless Penn Central factors:
Social goals sought to be promoted, diminution in value to the owner, and owner’s reasonable expectations regarding use of the property

24
Q

Temporary Moratorium on All Economic Use

A

Length of delay, planner’s good faith, economic effect of delay, and owner’s reasonable investment-backed expectations

25
Q

Exactions as a Condition to Permit Approval

A

Partial taking unless legitimate gov’t interest and adverse impact is roughly proportional to loss caused to property owner

26
Q

Zoning Ordinance Taking

A

May be a taking if ordinance physically appropriates property, denies all economic use, or unreasonably interferes with distinct, investment-backed expectations

Can’t eliminate existing non-conforming uses

27
Q

14th Amendment Procedural Due Process

A

Notice and opportunity to be heard before a neutral party; and punishment isn’t excessively disproportionate to the crime

28
Q

Procedural Due Process Factors

A

1) Importance of individual interest deprived;
2) Value of procedural safeguard to protecting that interest; and
3) Importance of gov’t interest in fiscal and administrative efficiency

29
Q

14th Amendment only applies to state/local gov’t actions that involve deprivations of 14th A:

A

1) A law, ordinance, or regulation
2) A gov’t actor
3) A private actor engaged in traditionally exclusive public function
4) A private action with significant and ongoing state involvement, encouraging or facilitating the private action

30
Q

Equal Protection Clause - Race/National Origin/Alienage/ Fundamental Liberty

A

Strict Scrutiny

Classification is necessary to achieve a compelling gov’t interest

31
Q

Equal Protection Clause - Gender/Illegitimacy

A

Intermediate Scrutiny

Classification is substantially related to achieve an important gov’t interest (close fit between means and ends)

32
Q

Equal Protection Clause - All other classifications

A

Rational Basis

Law is rationally related to a legitimate gov’t interest

33
Q

Substantive Due Process

A

If it’s a fundamental right, use strict scrutiny

(Travel, privacy, voting, family rights of association, 1st Amendment, abortion)

If it’s a non-fundamental right, use rational basis

34
Q

Free Speech - Content-Based Restrictions

A

Ban or regulation based on content of speech is subject to strict scrutiny

Discuss vagueness and overbreadth

35
Q

Free Speech - Content-Neutral Restrictions

A

Regulation upheld if gov’t shows that 1) it advances important issues unrelated to speech, and 2) doesn’t burden substantially more speech than is necessary to further those interests

36
Q

Free Speech - Symbolic Speech Restrictions

A

Regulation upheld if:

1) It is within the constitutional power (health and safety) of the gov’t;
2) It furthers an important gov’t interest;
3) The gov’t interest is unrelated to the suppression of speech; and
4) The incidental burden on speech is no greater than necessary

37
Q

Public Forum

A

Historically open to speech-related activities

38
Q

Designated Public Forum

A

Not historically open to speech-related activities but gov’t has opened to such activities on a permanent or limited basis

39
Q

Limited Public Forum

A

All other public property other than a non-public forum

40
Q

Nonpublic Forum

A

Jails and gov’t buildings

41
Q

Free Speech - Public Forum and Designated Public Forum Test

A

Gov’t may regulate speech in these forums if the regulation 1) is content-neutral, 2) is narrowly tailored to serve a significant interest, and 3) leaves open alternative channels of communication

42
Q

Free Speech - Limited and Nonpublic Forum Test

A

Gov’t may regulate speech in these forums if the regulation is 1) viewpoint neutral, and 2) reasonably related to a legitimate purpose

43
Q

Free Speech - Speech in Prisons

A

Restrictions upheld if reasonably related to a legitimate penological interest

44
Q

Free Speech - Funding

A

When gov’t funds speech to promote its own policy goals, it may be content-based. If it funds private speech, it must be viewpoint neutral

45
Q

Free Speech - Commercial Speech

A

Regulations of commercial speech involving lawful activity that isn’t misleading or fraudulent is valid if it 1) serves a substantial gov’t interest, 2) directly advances that interest, and 3) is narrowly tailored to serve the substantial interest (reasonable fit)

46
Q

Free Speech - Unprotected Speech

A

1) Clear and present danger
2) Fighting words
3) Defamation of private persons
4) Obscenity - appeals to prurient interest in sex, portrays sex in a patently offensive way, and lacks serious literary, artistic, political, or scientific value (using national standard)

47
Q

Free Speech - Prior Restraint

A

Allowed if 1) the standards are narrowly drawn, reasonable, and definite; 2) gov’t promptly seeks an injunction if required; and 3) must be a prompt right of appeal

48
Q

Freedom of Religion - Free Exercise Clause

A

Prohibits gov’t from punishing someone, either by imposing burdens or denying benefits, because of their religious beliefs, absent it being necessary to achieving a compelling interest

BUT a GAL that incidentally burdens free exercise is upheld if reasonably related to achieving the secular purpose

49
Q

Freedom of Religion - Establishment Clause with sect preference

A

Strict scrutiny

50
Q

Freedom of Religion - Establishment Clause without sect preference

A

Law is valid if it 1) has a secular purpose, 2) has a primary effect that neither advances nor inhibits religion, and 3) doesn’t produce excessive gov’t entanglement with religion

51
Q

Freedom of Press

A

Right to publish lawfully obtained truthful info absent strict scrutiny compliance

Right to have access to trial

52
Q

Freedom of Association

A

Right to join together for political or expressive activity

May be infringed only if necessary to achieve a compelling gov’t interest

Select Topics II (6 decks)

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