Constitutional Law Flashcards
What does Art. I of the Constitution establish?
The United States Congress
What does Art. II of the Constitution establish?
The Executive Branch; i.e. the Presidency
What does Art. III of the Constitution establish?
The Judiciary
Under what circumstances will the SCOTUS refuse to hear a case appealed to it from a state’s highest court?
When adequate and independent state grounds support the state court’s decision.
Do taxpayers have standing to challenge the constitutionality of government spending?
No. Generally, taxpayers do not establish standing to challenge a tax expenditure purely by their being taxpayers.
What is necessary for an organization to have standing to sue on behalf of its members?
To have standing to sue on behalf of its members, an organization must show that the members’ injuries are related to the organization’s purpose.
Does standing require economic harm?
No.
To establish standing, a plaintiff’s injury must be _______________ and _____________. It cannot be _______________.
concrete; real; theoretical.
What does the Eleventh Amendment do?
It prohibits the bringing of suits by private parties against a state for damages or equitable relief without the state’s consenting to such suits.
May a private citizen bring a suit against a state which would divest the state of land if the court ruled for the plaintiff?
No. The Eleventh Amendment prohibits the bringing of suits by private parties against a state without that state’s consent. The divesting of a state of land is the same as damages, and therefore is prohibited by the Eleventh Amendment.
A state court defers judgment in a case involving federal law and refers it to a federal court, asking for clarification of the federal law. May the federal court clarify the law?
No. Art. III courts can only hear cases and controversies arising under federal law. A clarification of the law is a form of advisory opinion, which is prohibited under Art. III of the Constitution.
What courts, if any, can issue advisory opinions?
Art. I courts (Tax Court; Bankruptcy Court; etc.)
What kinds of courts are there under the Constitution?
The Constitution expressly establishes only one court: the United States Supreme Court. However, it also allows for the establishment of additional courts: Article III courts, i.e. federal district courts and federal appellate courts, all of which are established by Congress; Article I courts, which are also established by Congress and given limited jurisdiction (tax, bankruptcy, etc.); and Article IV courts, which includes only American territorial tribunals.
How can Congress limit the avenues by which someone can make a constitutional claim before the SCOTUS?
Under Art. III, sect. 2, Congress can eliminate specific avenues of achieving SCOTUS review, but not all avenues of review of an alleged violation of a specific constitutional right.
Is legislative procedure an issue which can be reviewed by a federal court?
No. Legislative procedure is solely under the jurisdiction of the relevant legislative authority, and therefore is a political question, which cannot be reviewed by courts.
Is whether a candidate for political office of the proper age and residency an issue which can be reviewed by a court?
No, it is a political question. The Constitution grants the Congress the power to determine the qualifications for membership, making it a political question and incapable of being reviewed by the courts.
What are the two methods by which a case can make it to the SCOTUS?
1) the SCOTUS, in its discretion, grants a writ of certiorari to the case; or 2) the case is appealed to the SCOTUS from a three-judge appellate panel.
When must the SCOTUS hear a case; i.e. what is the mandatory jurisdiction of the SCOTUS?
The Supreme Court must hear a case which is appealed to it from a three-judge panel.
The United States sues Texas to claiming that land held by Texas is rightfully the land of the United States. What court has original jurisdiction to hear the case?
The Supreme Court of the United States
Kansas sues Missouri. What court has original jurisdiction to hear the case?
The Supreme Court of the United States.
How many justices of the SCOTUS must agree to hear a case in order for the Court to grant a writ of certiorari?
Four
When does a plaintiff have standing to sue on behalf of a 3rd party?
A plaintiff has standing to sue on behalf of a third party if 1) the plaintiff was injured and the plaintiff’s injury adversely affected her relationship with the 3rd party; and 2) the third party has difficulty asserting its rights, but only if the plaintiff is also injured.
Congress passes a bill which transfers the power to hear a criminal case to the U.S. Tax Court. Is this constitutional?
No. Congress cannot transfer the powers of Art. III courts to an Art. I court. However, appeals from Art. I courts often go to a U.S. Court of Appeals, but this is not the same as a transfer of power.
Rob sues Eric Greitens in the U.S. District Court for the Eastern District of Missouri for prospective injunctive relief. Is this constitutional?
Yes. The Eleventh Amendment does not prohibit suing a state official for injunctive relief in federal court.
A governmental organization discriminates against certain people based on their age. What standard of review is used by the reviewing court to assess the constitutionality of the discrimination?
Rational basis review is used in assessing the constitutionality of discrimination based on age.
The one person, one vote rule requires almost exact mathematical equality between ________________ districts within a state.
congressional
Under current SCOTUS jurisprudence, when may the government impose an undue burden on a woman’s ability to obtain an abortion?
After viability of the fetus.
What standard is used in determining whether a state government district’s variance in population is too large?
The variance in population between two state government districts cannot be unjustifiably large.
What standard of review is used in assessing the constitutionality of a state denying aliens governmental benefits?
Strict scrutiny.
What standard of review is used in assessing the constitutionality of the federal government denying aliens governmental benefits?
Rational basis review, because the Constitution gives Congress plenary power over immigrants.
What standard of review is used in assessing the constitutionality of a discriminatory action based on gender?
Intermediate scrutiny.
For a law discriminating according to gender to pass the test for constitutionality, the government must show:
an exceedingly persuasive justification for the law.
What is meant by the term “heightened scrutiny?”
Either intermediate or strict scrutiny. Anything higher than rational basis.
If it is alleged that the government has discriminated on the basis of a suspect or quasi-suspect classification, proof of what will be sufficient to trigger heightened scrutiny?
To trigger heightened scrutiny in regards to a law which discriminates against a suspect or quasi-suspect class, it is sufficient to show 1) facial discrimination; 2) discriminatory motive; or 3) discriminatory application.
Must a law analyzed under rational basis review be the least burdensome means of achieving a legislative goal?
No.
A state government agency is hiring. They prefer to hire black and latino employees, despite having a history of discrimination against those groups. The purpose of the preference is to remedy the past governmental discrimination. Is this constitutional?
Yes. Remedying past governmental discrimination at a government agency is sufficient justification for a state government hiring program to favor one race over another.
What is not sufficient, in itself, to trigger heightened scrutiny when a law discriminates against a suspect or quasi-suspect class?
Discriminatory effect
Rational Basis Review —
laws will be upheld unless they are arbitrary; i.e. they must be rationally related to a legitimate government interest.
Does the press/media enjoy broader or narrower First Amendment freedoms than the general public?
Neither. The press enjoys the same freedom as the general public under the First Amendment.
Under the free speech clause of the First Amendment, a regulation of speech on a particular topic in a nonpublic forum must be . . .
viewpoint neutral.
What standard is used to analyze the constitutionality of a government regulation which burdens speech based on its content?
Strict scrutiny
What is the minimum level of fault a private citizen must show when suing for defamation arising from a statement of public concern?
Negligence
What are the requirements for government regulations of speech in public forums and designated public forums?
Government regulations of speech in public and designated public forums must be 1) content neutral; 2) narrowly tailored to serve an important interest; and 3) leave open alternative channels of communication.
What is the measure of an overly broad government regulation of speech?
An overly broad government regulation of speech is a regulation which “prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest.”
When can a pretrial criminal proceeding be closed to the press?
If it is essential to preserve a higher value and the order is narrowly drawn.
What standard is used to analyze the constitutionality of symbolic conduct?
Intermediate scrutiny.
What are the requirements for a time, place and manner restriction on speech in a limited public forum?
The regulation must be 1) viewpoint neutral; and 2) rationally related to a legitimate government interest.
If a regulation of speech is overly broad, but when judged in relation to its plainly legitimate sweep is found to not prohibit a substantial amount of protected speech, may it nonetheless be enforced?
Yes, but only against persons who engage in activities which are not constitutionally protected.
Obscenity —
1) appeals to the prurient interest in sex; 2) portrays sex in a patently offensive way; and 3) does not have serious literary, artistic, political or scientific value.
What standard is used in determining whether material appeals to a prurient interest in sex?
A community standard.
May a regulation of speech target truthful advertisements concerning lawful activities?
Yes, but only if it 1) serves a substantial government interest; 2) is narrowly tailored to serve that interest; and 3) directly advances that interest.
Intermediate Scrutiny —
a regulation is substantially related to achieving an important government interest (check this).
Strict Scrutiny —
a government regulation must be narrowly tailored to accomplish a compelling government interest and be the least restrictive means of achieving such end.
What are the known suspect classes?
Race, national origin, alienage (for state regulations) and religion.
What are the known quasi-suspect classes?
Gender and legitimacy of birth.
What are the two main requirements for a court to hear a case or controversy?
Standing and Ripeness
Standing —
determining whether the plaintiff is the proper party to bring a matter to the court for adjudication.
For the purposes of standing, what must a plaintiff show in order to prove they have suffered an injury?
The plaintiff must show 1) that he has been injured; or 2) imminently will be injured.
Plaintiffs may only assert injuries which they have _____________ suffered.
personally
What must plaintiffs show if they are requesting a injunction or declaratory relief from the Supreme Court in regards to injury?
That there is a likelihood of future harm that they will suffer.
What are the three requirements for establishing standing?
Injury, causation and redressability.
Third parties do not have standing to sue on behalf of a third party, with several exceptions:
1) when there is a close relationship between the party and the third party; 2) if the injured party is unlikely to be able to assert their rights; and 3) an organization may sue for its members if a) the members would have individual standing to sue; b) the interests are germane to the org’s purpose; and c) neither the claim nor the relief requires participation by all the members.
Generally, taxpayers and citizens do not have standing to sue the government solely to ensure the government is following the law. However, taxpayers may have standing to challenge government expenditures . . .
pursuant to federal or state statutes which violate the establishment clause of the Constitution.
The government gives money to a parochial school. Does the plaintiff have standing?
Yes.
The government grants property to a religious organization. Does the plaintiff have standing?
No.
The taxpayer does not like the way the government is spending his money. Does he have standing?
No.
Missouri gives St. Francis Xavier Parish a tax credit because it does considerable charitable work. Does the taxpayer have standing to challenge the tax credit?
No.
Ripeness —
whether a federal court may grant a pre-enforcement review of a statute or regulation.
A ripeness question is suggested by a question which requests . . .
a declaratory judgment; e.g. the court declares the law unconstitutional.
Need a law be violated before it can be challenged for ripeness?
No, if the elements are met for challenging ripeness.
What will the court consider in determining whether a law is ripe and therefore can be subject to a pre-enforcement review?
1) the harm which will be suffered without a pre-enforcement review; and 2) the fitness of the issues and the record for judicial review.
Explain the prohibition on generalized grievances.
The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.
Mootness —
if events after the filing of the suit end the plaintiff’s injury, the case will be dismissed as moot.
What are the exception to the mootness doctrine?
1) where the wrong is capable of repetition in the future; 2) where the defendant voluntarily quits the harm, but is free to resume it at any time; and 3) class actions, which cannot be dismissed despite the named plaintiff’s claim becoming moot IF* there is at least one member of the class with an ongoing injury.
What are the four known types of political questions the courts will not hear?
Challenges to 1) the guarantee of a republican form of government; 2) the president’s conduct of foreign policy; 3) the impeachment and removal process; and 4) to partisan gerrymandering.
How do virtually all cases come before the SCOTUS?
By writ of certiorari.
How do state court cases come to the SCOTUS?
By writ of certiorari.
How do cases from the U.S. Courts of Appeals come to the SCOTUS?
By writ of certiorari.
From what can a case be appealed to the SCOTUS?
A three-judge federal district court.
Over what kinds of cases does the SCOTUS have original jurisdiction?
suits between states.
How can Congress change the original jurisdiction of the SCOTUS?
Congress cannot change the original jurisdiction of the SCOTUS.
What must a state case do before it can appeal for a writ of certiorari?
It must exhaust all state remedies; i.e. it must have already been heard and decided by a state’s highest court.
When is the Supreme Court barred from hearing a state case?
Where there is an independent and adequate state law ground of decision.
A case is heard by the state’s highest court. It’s decision rests on two grounds: one state law, and one federal la.w When in this case can the SCOTUS be barred from hearing this case?
If the overturning of the federal ground for the holding is overturned, yet has no effect on the holding.
Against what can a federal or state court never hear a case against?
A state government.
What source of law prohibits suits against state governments in federal court?
The Eleventh Amendment.
What source of law prohibits suits against states in state courts or federal agencies?
The doctrine of sovereign immunity.
States may be sued in the what circumstances?
1) the state waives their privilege; 2) where a federal law allows it in pursuance of sect. 5 of the 14th Amend.; 3) the federal government itself sues the state; and 4) the state is in a bankruptcy proceeding.
Sovereign immunity does not extend to whom?
State officers.
State officers may not be sued if what?
If the damages are paid out of the state treasury.
Under what powers may Congress derive its power to make laws.
1) an implied or express power of Congress; or 2) the necessary and proper clause.
There is no general federal _______________.
police power.
Under the necessary and proper clause, Congress can . . .
use any means not prohibited by the Constitution to carry out its authority.
Congress may tax and spend for the ___________________.
General welfare.
Congress can regulate what under the commerce clause?
1) channels of interstate commerce; 2) the instrumentalities of interstate commerce; 3) persons or things in interstate commerce; and 4) economic activities which have a substantial impact on interstate commerce when considered in the aggregate.
In the area of non-economic activity, a substantial impact on interstate commerce cannot be based on _________________
cumulative impact.
Congress cannot regulate ______________ under the commerce clause.
inactivity.
What does the Tenth Amendment say?
All powers not granted to the United States nor prohibited to the states, are reserved to the states or the people.
Under the Tenth Amendment, Congress cannot compel states to do what?
To write regulations or statutes.
Congress can induce state governments to take particular actions by putting strings on grants, so long as the conditions are . . .
1) expressly stated; 2) relate to the purpose of the spending program; and 3) are not unduly coercive.
In regard to state economic activity, Congress can prohibit what kind of activity?
Harmful economic activity by state governments.
Regarding Congress’s powers under sect. 5 of the 14th Amendment, what can Congress not do?
Create new rights or expand the scope of rights.
Pursuant to sect. 5 of the 14th Amendment, what can Congress do in regards to rights under the Constitution?
The Congress may act only to prevent or remedy violations of rights recognized by the courts. Such laws must be proportionate and congruent to remedying the constitutional violations.
Is there a limit to Congress’ ability to delegate its legislative authority?
Technically yes, but in reality no. No congressional act has been struck down as a violation of the non-delegation doctrine since 1937.
Legislative Veto —
where the Congress nullifies an agency act by a joint resolution. THESE ARE UNCONSTITUTIONAL.
Line-Item Veto —
where the president vetoes particular parts of a law without vetoing the whole thing. THESE ARE UNCONSTITUTIONAL.
For Congress to act properly in passing a law, there must always be:
1) bicameralism (bill passes both houses of Congress); and 2) presentment (the president signing it into law).
May Congress enforce the laws it passes?
No. It cannot delegate enforcement power (an executive power) to itself.
May Congress implement the laws it passes?
No. It cannot delegate implementation power (an executive/administrative power) to itself.
What happens if a treaty conflicts with a state law?
The treaty prevails.
What happens when a treaty conflicts with a federal law?
Whichever one was adopted most recently controls.
What happens if a treaty conflicts with the United States Constitution?
It is invalid.
What is the difference between an executive agreement and a treaty?
Treaties require ratification by the Senate, whereas executive agreements do not.
For what purposes can executive agreements be made?
Literally any reason.
What happens when an executive agreement conflicts with a state law?
The executive agreement prevails.
What happens when an executive agreement conflicts with a federal law or the Constitution?
The executive agreement is invalid.
Under the president’s recognition power, the president can effectively recognize new nations. However, it is unconstitutional for the president to . . .
designate, by statute, the capitol of a foreign country.
Who appoints ambassadors, federal judges and officers of the United States?
The president.
In regards to officers of the United States, what powers does Congress have?
Congress may vest the appointment of inferior officers in the president, the heads of departments, or the lower federal courts. Neither Congress nor its officers may appoint anyone.
What is the limit to the president’s recess appointment power?
The president cannot make recess appointments during intrasession recesses that are less than 10 days.
What is the removal power?
Unless limited by statute, the president can fire an executive official for any reason or no reason.
Can Congress prohibit the removal of someone?
No. Congress cannot prohibit the removal of an officer. Rather, it can only limit it.
For Congress to be able to limit the removal of an officer, what must be present?
The office must be one in which independence from the president is desirable. Ex: a special prosecutor investigating the president.
For what offenses can the president, VP, federal judges and officers of the United States be impeached and removed from office?
Treason, bribery, or high crimes and misdemeanors.
What does it take to impeach someone?
Impeachment must receive a majority vote in the House of Representatives.
What does it take to convict someone of an impeachable offense?
The Senate must vote 2/3 to convict.
