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CA Bar - Checklists > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

Con Law Issues Checklist

A
  1. Justiciability
  2. State Action
  3. State Power
  4. Federal Powers
  5. Limitations on State Power
  6. Limitations on Federal Power
  7. State and Federal Power Limitations/Individual Rights
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2
Q

Justiciability Checklist

A
  1. Case or Controversy
  2. Standing
  3. Ripe (not too early)
  4. Moot (not too late)
  5. 11th Amendment
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3
Q

Federal Powers Checklist

A
  1. Congress
  2. Judiciary
  3. Executive
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4
Q

Limitations on State Power Checklist

A
  1. Supremacy/Preemption
  2. DCC
  3. Privileges and Immunities Clause
  4. Contracts Clause
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5
Q

Limitations on Federal Power Checklist

A
  1. 10th Amendment

2. Improper delegation of legislative power

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6
Q

State and Federal Power Limitations/Individual Rights Checklist

A
  1. 1st Amendment - freedom of religion
  2. 1st Amendment - freedom of speech
  3. Freedom of Association
  4. Due Process Clause (Substantive and Procedural)
  5. Equal Protection Clause
  6. Takings
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7
Q

Justiciability: Case/Controversy

A
  • Actual Dispute
  • No political questions

Note: declaratory judgments are ok but advisory opinions are not.

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8
Q

Justiciability: Standing

A
  • Individual
    1. injury
    2. causation
    3. rederessabilty
  • 3d party
    1. individual standing
    2. special relationship b/w P and 3d party
    3. difficult for 3d party to assert his own rights
  • Organizational
    1. elements above, and
    2. members standing
    3. related to organizational purpose
    4. parties’ participation not req’d
  • Taxpayer: federal tax or spending program that violates the Establishment Clause
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9
Q

Justiciability: 11th Amendment

A

Immunity to the states:

  • Cannot sue state
  • Bars actions for damages
  • Cities and counties OK
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10
Q

State Action - The action of a private actor can qualify as state action if:

A
  1. Traditional public function (e.g. parks, prisons, elections), or
  2. Government entanglement

*Always put a line or two about there being state action if an essay.

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11
Q

10th Amendment

A

Powers not delegated to federal government saved for states.

Federal govt can’t commandeer states

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12
Q

Federal Powers: Congress

A
  1. Commerce
  2. Tax and spend
  3. War
  4. Naturalization/bankrupt.
  5. Necessary and proper - if rationally related
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13
Q

Federal Powers: Congress can regulate commerce if:

A

A. Interstate
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
3. Persons & things moving in interstate commerce
4. Activities w/substantial effect on interstate commerce
B. Intrastate (purely local)
- Economic
1. Rational belief
2. Substantial economic effect or a substantial cumulative economic effect (ie growing wheat or MJ)
- Noneconomic
1. Direct and substantial effect

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14
Q

Federal Powers: Judiciary

A
  • Cases under the Constitution
  • Admiralty
  • 2 states
  • Citizens of diff. states
  • Foreign country or citizen
  • Not if independent and adequate state grounds
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15
Q

Federal Powers: Executive

A
  1. Carry out laws
  2. Executive order
  3. Treaties
  4. Appointments
  5. Foreign affairs
  6. Pardon federal offenses
  7. Veto bills - but no line item
  8. Executive privilege is qualified: weigh govt. interest
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16
Q

Limitations on State Power: Supremacy Clause

A

The Constitution is the supreme law of the land and if any State law conflicts with or impedes federal law or regulates an area traditionally occupied by congress it will be pre-empted

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17
Q

Limitations on State Power: Dormant Commerce Clause (DCC)

A
  • Discriminatory or undue burden
  • If discriminatory on its face, must be:
    1. Necessary to
    2. Important noneconomic govt. interest
    3. No reasonable alternative
  • Undue burden/if not discriminatory on its face, then:
    1. Rational basis applied
    2. Balance burden v. benefit
  • Exceptions:
    1. Market participant: state not acting as a regulator, but rather owns or operates a business
    2. Congress’s consent
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18
Q

Limitations on State Power: Privileges/Immunities Clause

A
  1. State cannot discriminate against noncitizens
  2. Unless substantially related and no less discriminatory alternatives
  3. Rights fundamental to national unity
  4. Corps/aliens are not citizens
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19
Q

Limitations on State Power: Contracts Clause

A

Prevents state governments from passing laws that retroactively and substantially impair existing contracts.

  • Private Ks: substantial impairment; reasonable appropriate to significant/legitimate public interest
  • Public Ks: necessary to important public purpose (stricter application)
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20
Q

Declaratory Judgment

A

judgments that state the legal effect of a regulation or the conduct of parties in regard to a controversy.

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21
Q

Taxing and Spending Clause

A

The Taxing and Spending Clause gives Congress the right to tax and spend for the general welfare of the US.

22
Q

War Powers

A

The war powers grant Congress the power to declare war and to raise and support the armed forces.

23
Q

Rational Basis Test

A

regulation is rationally related to a legitimate govt interest

24
Q

DCC Fact Triggers

A
  • State legislation requiring all individuals/companies to do something
  • State legislation requirements for some companies and not others
  • State legislation giving discounts to some companies and not others
  • City banning or limiting out-of-towner use/access to state facilities
25
Q

Rights fundamental to national unity

A

focus on commercial activities, such as one’s right to support oneself, the right to be employed, engage in business, practice one’s profession, or civil liberties.

*Corps and entities are not citizens.

26
Q

Privileges and Immunities Clause - Rigorous Scrutiny Test

A

Discrimination against noncitizens will only be allowed if the noncitizens are a peculiar source of evil and the discrimination is substantially related to this evil and there are no less discriminatory alternative means available.

27
Q

1st Amendment: Religion

A

Limits Congress’s action and is also applicable to the states through the 14th Am.

  • Free Exercise Clause
    1. Can’t burden religion
    2. Unless compelling govt interest
    3. Generally applicable laws are OK
      • Except: Rel. Freedom Restoration Act - fed law of gen applicability can be challenged if a substantial burden of religious free exercise - use strict scrutiny
  • Establishment Clause
    1. Can’t endorse/favor religion
    2. Incidental effect ok if benefits wide variety
    3. Sect preference: strict scrutiny
    4. No sect preference, then Lemon test - need:
      a. Secular purpose
      b. Primary effect is not to advance/inhibit religion
      c. Doesn’t foster excessive govt entanglement
28
Q

1st Amendment: Free Speech - Content-based

A

Apply strict scrutiny

29
Q

1st Amendment: Free Speech - Less protected speech

A
  • Obsenity
  • Misrepresentation/defamation
  • Speech advocating imminent lawless action (intended to incite and likely to produce)
  • Fighting words
30
Q

1st Amendment: Free Speech - Obscenity

A

Speech is considered obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:

  1. appeals to prurient interest in sex (under a community standard)
  2. is patently offensive (under a community standard)
  3. Lacks LAPS (literary, artistic, policial, or scientific value) (under a national reasonable person standard)
31
Q

1st Amendment: Free Speech - Content-neutral

A

Content-neutral regs are allowed if they:

  1. Significant govt interest
  2. Narrowly tailored
  3. Leave open alt channels
32
Q

1st Amendment: Free Speech - Time, place, manner

A
  • Public/designated public:
    1. Content-neutral and viewpoint-neutral
    2. Significant govt interest
    3. Narrowly tailored
    4. Open alt channels
  • Limited public/nonpublic:
    1. Viewpoint-neutral
    2. Legitimate govt interest
    3. Reasonably related
33
Q

1st Amendment: Free Speech - Commercial Speech

A
  1. Substantial govt interest
  2. Directly advances it
  3. Narrowly tailored (reasonable fit)
34
Q

1st Amendment: Free Speech - Symbolic Speech

A
  1. Within constitutional power
  2. Important govt interest
  3. Unrelated to speech
  4. Prohibits no more speech than necessary
35
Q

1st Amendment: Free Speech - Limitations on free speech regulations

A
  • Vague: not clearly defined
  • Overbroad: punishes both protected and unprotected speech
  • Unfettered discretion: no defined standards
36
Q

1st Amendment: Free Speech - Prior Restraints

A
  • Stop speech before it occurs; unconstitutional unless:
    1. Irreparable or serious public harm
    2. Narrowly drawn standards
    3. Final determination of the validity of the restraint
37
Q

Freedom of Association

A
  • Freedoms protected by 1st Am. and not social
  • Compelling govt interest
  • Least restrictive means
38
Q

Substantive Due Process

A
  • Deprive life, liberty, property interest (personal autonomy and privacy)
  • Fundamental right = strict scrutiny
  • No fundamental right = rational basis
39
Q

Procedural Due Process

A
  • Fair process prior to deprivation of life, liberty, or property
  • Judicial: hearing, counsel, call witnesses, trial, appeal
  • Nonjudicial: balance private int, procedural safeguards, and govt interest
40
Q

Equal Protection Clause - Classifications & Requisite Level of Review

A
  1. Suspect: race, national origin, state alienage = Strict Scrutiny
  2. Quasi-suspect: gender and illegitimacy = Intermediate Scrutiny
  3. Nonsuspect: social, economic, other = Rational Basis
  4. EPC - fundamental rights = Strict Scrutiny
41
Q

Equal Protection Clause - Levels of review

A
  • Levels of review
    1. Strict scrutiny
      a. necessary (narrowly tailored) to achieve a
      b. compelling government interest
    2. Intermediate scrutiny
      a. substantially related
      b. important govt interest
    3. Rational basis
      a. rationally related
      b. legitimate govt interest
42
Q

Takings Clause

A

The govt cannot take private property for public use (rationally related to conceivable public purpose) without just compensation (mkt value)

43
Q

Takings Clause - Total taking if:

A
  • Permanent physical invasion (per se taking)

- Use restriction that denies all economic value

44
Q

Takings Clause - Temporary Taking - court considers:

A
  • Economic impact
  • Reasonable expectation of owner
  • Length of delay
  • Good faith
45
Q

Takings Clause - Regulatory Taking - court balances:

A
  • Character of invasion
  • Economic impact
  • Interference with investment backed expectation
46
Q

Freedom of Speech - Content-based Fact Triggers

A
  • Banning events promoting particular views
  • Banning specific content or types of content
  • Banning a specific action or conduct
  • Banning the sale of specific items
47
Q

Freedom of Speech - Content-neutral Fact Triggers

A
  • Denying activities at certain times or days
  • Limiting activities in certain places
  • Limiting activities to use certain methods (eg, sound equipment)
  • Excluding people from visiting or attending events
  • Requiring activities to take place in designated areas
  • Banning activities or conduct in specific locations
48
Q

Collateral Bar Rule

A

Under the collateral bar rule, if a prior restraint is issued, one cannot violate it first and then defend oneself by asserting that the action is unconstitutional, even if this is correct

49
Q

Prior Restraint Fact Triggers

A
  • Discretion to allow or deny the use of facilities
  • Banning the release, display or sale of things before review
  • Denying permits for various activities
  • Preventing the publication or disclosure of information
50
Q

Equal Protection Clause

A

Prohibits the government from treating similarly situated person differently.

51
Q

EPC Fundamental Rights

A
  1. Voting
  2. Being a political candidate
  3. Access to the courts
  4. Migrating from state to state (travel)
  5. 1st Am. rights
52
Q

SDP Fundamental Rights

A
  1. Marriage
  2. Living with one’s family
  3. Child bearing
  4. Child rearing
  5. Domestic Travel
  6. Voting
  7. Other 1st Am rights

CA Bar - Checklists (13 decks)

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