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Constitutional Law Flashcards

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1
Q

Ripeness

A

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

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2
Q

Mootness

A

Issue has already been resolved before or during pendency of the case

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3
Q

Individual Standing

A

1) Concrete & particularized injury; 2) causal connection; & 3) favorable ruling will eliminate the harm

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4
Q

Third-Party Standing

A

1) P has individual standing; & either
2) 3rd parties find it difficult to assert their own rights, or
3) P’s injury adversely affects P’s relationship with the 3rd party

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5
Q

Organizational Standing

A

1) Individual members have standing;
2) Injury is related to the organization’s purpose; &
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 suits against states in federal court

A

1) Action against state gov’t for damages;
2) Action against state gov’t for injunctive or declarative relief where the state is a named 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 state land would be taken away; &
4) Action against state gov’t officers for violating state law

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7
Q

Sec. 5 of the 14th Amendment

A

Congress can enact remedial legislation in connection with EPC/DPC violations

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8
Q

In regard to interstate commerce, Congress may regulate

A

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

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9
Q

10th Amendment - Coercion

A

Can’t require state to act in a certain way or substantially penalize it for failing to act

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10
Q

10th Amendment - Commandeering

A

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

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11
Q

Dormant Commerce Clause

A

State or local law is invalid if it 1) discriminates against out of state competition to benefit local economic interests; or 2) is unduly burdensome

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12
Q

Dormant Commerce Clause Exceptions

A

1) It furthers an important non-economic state interest (health & safety) & 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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13
Q

Article IV Privileges & Immunities Clause

A

Prohibits discrimination by a state against out of state citizens as to fundamental rights (1, 2, 4-6 As, right to earn a living)

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14
Q

Privileges & Immunities Clause Exception

A

1) Nonresidents are part of the problem to be solved; & 2) There are no less restrictive means to solve the problem

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15
Q

Taxing Power

A

Congress can tax any activity it can otherwise regulate, or where there is a revenue-raising purpose

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16
Q

13th Amendment - Involuntary Servitude

A

Congress can enact laws preventing racial discrimination in private & public transactions

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17
Q

Contracts Clause

A

State/local law may not substantially impair an obligation under private K, unless it 1) serves a legitimate & important state interest, & 2) is reasonable and narrowly tailored to promote that interest

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18
Q

Legislative Veto

A

Unconstitutional for Congress to veto an Executive action without bicameralism & presentment

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19
Q

Preemption

A

Federal laws/Executive Orders supersede all conflicting state/local regulations

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20
Q

Express Preemption

A

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

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21
Q

Implied Preemption

A

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

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22
Q

Presidential Authority - Domestic Affairs

A

President acts with express/implied authority of Congress - act valid

Congress is silent - act valid if it doesn’t aggrandize or encroach another branch

Congress expressly declines to authorize - act invalid

23
Q

Total Taking

A

All of owner’s property is appropriated

24
Q

Partial Taking

A

Less than all of owner’s property is appropriated

25
Q

Taking Denies Landowner of All Economic Use

A

Total taking

26
Q

Taking Denies Most Beneficial Use but Leaves Viable Alternatives

A

Not a partial taking unless (balance Penn Central factors):

Social goals sought to be promoted, diminution in value to the owner, & owner’s reasonable expectations

27
Q

Temporary Moratorium on All Economic Use

A

Penn Central factors plus length of delay

28
Q

Exactions as a Condition to Permit Approval

A

Partial taking unless there is a legitimate gov’t interest & the adverse impact is roughly proportional to owner’s loss

29
Q

Zoning as a Taking

A

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

30
Q

14th Amendment Procedural Due Process - General

A

1) Notice & opportunity to be heard before a neutral party; &
2) Punishment isn’t excessively disproportionate to the crime

31
Q

14th Amendment Procedural Due Process - Applies When

A

Gov’t intentionally acts to deprive an individual of life, liberty, or property

32
Q

14th Amendment Procedural Due Process - If there’s a deprivation, balance

A

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

33
Q

14th Amendment Procedural Due Process - Continued Right to Public Employment Rule

A

If a public employee is beyond the probationary period, there must be a pre-termination evidentiary hearing prior to firing them

34
Q

14th Amendment Procedural Due Process - Must be a state/local action

A

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

35
Q

14th Amendment Procedural Due Process - Equal Protection - Race/National Origin/Alienage (state laws only)/Fundamental Liberty

A

Strict scrutiny

Gov’t must prove the law is necessary to achieve a compelling gov’t interest (national security)

36
Q

14th Amendment Procedural Due Process - Equal Protection - Gender/Illegitimacy

A

Intermediate scrutiny

Gov’t must prove the law is substantially related to achieve an important gov’t interest (traffic, public safety, parenthood)

37
Q

14th Amendment Procedural Due Process - Equal Protection - All Other Classifications

A

Rational basis

Challenger must prove the law isn’t rationally related to a legitimate gov’t interest

38
Q

14th Amendment Substantive Due Process

A

If a fundamental interest, use strict scrutiny. If not a fundamental interest, use rational basis

Fundamental interests - travel, privacy, voting, family rights of association, 1st A, abortion

39
Q

Freedom of Speech - Content-Based Restriction

A

Gov’t must show the regulation is necessary to achieve a compelling state interest

Discuss vagueness and overbreadth

40
Q

Freedom of Speech - Symbolic Speech Restriction

A

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

41
Q

Freedom of Speech - Types of Forums

A

Public Forum - historically open to speech-related activities

Designated Public Forum - not historically open to speech-related activities, but gov’t has opened to such activities

Limited Public Forum - all other public property other than nonpublic forum

Nonpublic Forum - jails & gov’t buildings

42
Q

Freedom of Speech - Public Forum & Designated Public Forum Test

A

1) Content-neutral; 2) narrowly tailored to serve a significant interest; & 3) leaves open alternative communication channels

43
Q

Freedom of Speech - Limited Public Forum & Nonpublic Forum Test

A

1) Viewpoint-neutral; & 2) reasonably related to a legitimate purpose

44
Q

Freedom of Speech - Speech in Prisons

A

Restrictions upheld if reasonably related to a legitimate penological interest

45
Q

Freedom of Speech - Funding & Speech

A

When gov’t funds speech to promote its own policy goals, it may be content-based

If gov’t funds private speech, it must be viewpoint-neutral

46
Q

Freedom of Speech - Commercial Speech

A

Regulation 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; & 3) is narrowly tailored to serve that interest (reasonable fit)

47
Q

Freedom of Speech - Campaign Contributions

A

Limits on contributions to candidates are valid

Limiting aggregate spending of one person is unconstitutional

48
Q

Freedom of Speech - Unprotected Speech

A

Clear & present danger
Fighting words
Defamation of a private person
Obscenity - Description or depiction of sexual conduct that, taken as a whole, appeals to a prurient interest in sex, portrays sex in a patently offensive way, & lacks serious social value (national standard)

49
Q

Freedom of Speech - Prior Restraint

A

1) The standards must be narrowly drawn, reasonable, & definite;
2) Gov’t must promptly seek an injunction if required; &
3) Must be a prompt right of appeal

50
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 achieve a compelling interest

51
Q

Freedom of Religion - Free Exercise Clause GAL

A

A generally applicable law that incidentally burdens free exercise is upheld if it’s reasonably related to achieving a secular purpose

52
Q

Freedom of Religion - Establishment Clause

A

If there’s sect preference - strict scrutiny

If there’s not sect preference - Lemon test:

1) Secular purpose, 2) has a primary effect that neither advances nor inhibits religion, & 3) doesn’t produce excessive gov’t entanglement with religion

53
Q

Freedom of Press

A

1) Right to publish lawfully obtained truthful information absent strict scrutiny
2) Right to have access to trials

54
Q

Freedom of Association

A

Right to join together for political or expressive activity

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

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