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Florida Bar by LL > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

What kinds of cases do the federal judicial powers extend to?

A
  1. Interpretation of federal law, constitution, treaties, admiralty and maritime law
  2. Disputes between states, states and foreign citizens, and citizens of diverse citizenship
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2
Q

What does the 11th Amendment cover?

A

State sovereign immunity

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3
Q

What does the 11th Amendment prohibit?

A
  1. citizens of one state or foreign country suing another state in federal court for money damages or equitable relief.
  2. Suits in federal courts against state officials for violating federal law.
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4
Q

Exceptions to the 11th Amendment prohibition - CiCi

A

!. Consent

  1. Injunctive relief against a state official
  2. Congressional authorization to enforce 14th amendment rights (slavery, equal protection or due process)
  3. Individual Damages - where state official has to pay
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5
Q

When does a party have standing in federal court?

A

P bears burden of establishing:

  1. Injury in fact (or threat of actual/imminent injury)
  2. Causation (D’s conduct caused injury)
  3. Redressability - court can redress injury suffered.
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6
Q

When does a taxpayer have standing?

A

Taxpayer can challenge his own tax bill, or claim that gov’t expenditures violate establishment clause

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7
Q

When DOESN’T a taxpayer have standing?

A

Cannot sue federal gov’t simply because you believe the gov’t allocated funds in an improper way.

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8
Q

When does an organization has standing?

A

When it has suffered an injury. Can also sue on behalf of its members if

  1. members could sue in their own right and
  2. the interests at stake are germane to the organization’s purpose
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9
Q

When is a case moot?

A

When further legal proceedings would have no effect. A live controversy must exist

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10
Q

Exceptions to mottoness

A
  1. Capable of repetition yet evading review (e.g. abortion challenges)
  2. Voluntary cessation of wrongful act by D
  3. Class actions
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11
Q

Advisory Opinions - are they allowed?

A

No! An actual case or controversy must exist. Although they can hear declaratory judgment actions s/l/a their is a real and imminent danger to a party’s interest

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12
Q

Can federal courts rule on a political question?

A

No.

A political question not subject to judicial review arises when

  1. constitution has assigned decision making to a different branch of gov’t OR
  2. The matter is inherently not one the judiciary can decide.
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13
Q

What is Congress’ necessary and proper power

A

Congress can exercise those powers enumerated in the constitution plus all powers necessary and proper to carry out the enumerated powers.

Note: cannot stand alone - it must work in conjunction with another power.

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14
Q

What to do if a fact pattern has Congress passing a new law?

A

You MUST discuss which of the enumerated powers gives them the ability to make that law.

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15
Q

Describe congress taxing power

A

Congress has power to tax, and most taxes will be upheld if:

  1. they bear some Reasonable Relationship to the revenue production OR
  2. Congress has power to regulate the activity taxed
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16
Q

Describe congress spending power

A

Congress may spend to provide for the common defense and general welfare. Spending m,ay be for any public purpose.

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17
Q

Describe Congress Commerce Power

A

Congress has the power to regulate all foreign and interstate commerce

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18
Q

What exactly can congress regulate using its commerce power?

A
  1. channels of interstate commerce
  2. instrumentalities of interstate commerce OR
  3. Activities that have a substantial effect on interstate commerce
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19
Q

When will Congress be permitted to regulate INTRASTATE commerce?

A
  1. the regulation is of economic or commercial activity AND
  2. the court can conceive a rational basis on which Congress could conclude that the activity in aggregate substantially affects INTERSTATE commerce

N/a to noneconomic or noncommercial activity (e.g. possessing gun in school). For that, Congress needs to show direct and substantial effect on interstate commerce

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20
Q

When can legislative power be delegated to executive or judicial branch?

A
  1. Intelligible standards are set to guide delegation AND

2. power is not uniquely confined to congress (e.g. to declare war)

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21
Q

Domestic powers of the president

A
  1. Reprieve or pardon federal offenses except impeachment
  2. Appoint all officers of the US w/advice and consent of senate (e.g. Sup. Ct. justices, ambassadors)
  3. Remove any executive appointee without cause and without approval except federal judges
  4. Veto any bill presented by congress (but cannot line item veto)
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22
Q

How do you determine whether the President’s actions are within the scope of his power?

A

Look at degree of congressional authorization:

  1. If Pres acting with express or implied authority of congress, authority is at its highest; strong presumption of validity
  2. When Congress has not spoken, authority is diminished, and action is invalid if it interferes with power of another branch
  3. When Congress has spoken to the contrary, authority at its lowest, and action is likely invalid.
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23
Q

Foreign powers of the president

A
  1. Commander in chief of military (although only congress can declare war)
  2. Negotiate treaties - needs to be ratified by 2/3 of Senate
  3. Executive agreements with foreign nations w/o approval of senate.
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24
Q

What is the executive privilege

A

He has the privilege to keep certain communications secret

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25
Q

What is executive immunity

A

He has absolute immunity from civil damages on any action he took within his official responsibilities while in office.

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26
Q

Grounds and procedure for impeachment

A
  • For treason, bribery, high crimes and misdemeanors

- Majority vote in house to invoke charges, then 2/3 vote of Senate necessary to convict and remove from office.

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27
Q

State vs. Federal - when in doubt, who wins?

A

Federal

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28
Q

Exclusive state powers

A

10th Amendment

  • all powers not assigned to the federal government are reserved to the states
  • Congress can regulate states s/l/a it is exercising an enumerated power.
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29
Q

What is the dormant commerce clause

A

A constitutional principle that is inferred from commerce clause: IF congress has not enacted legislation in a particular area of interstate commerce, then states are free to regulate, s/l/a the state action DOES NOT

  1. discriminate against out-of-state commerce OR
  2. Unduly burden interstate commerce OR
    a. a state law that discriminates against interstate commerce in a way that it acts as a barrier against out of state interests is per se unconstitutional
    b. A nondiscriminatory state law (i.e. applied equally on its face) will be constitutional if it imposes a clearly excessive burden on interstate commerce in relation to local benefits ORR
  3. regulate WHOLLY out-of-state activity
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30
Q

Exceptions to Dormant Commerce Clause

A
  1. When state is acting as a market participant
  2. Legislation favors state or local gov’t entities that are performing a traditional gov’t function OR
  3. Congress expressly permits the legislation
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31
Q

What is the Supremacy Clause

A

Provides that federal law is the supreme law of the land.

Any law that directly or indirectly conflicts with federal law is void under the supremacy clause

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32
Q

When does federal law expressly preempt state law?

A
  1. Constitution makes federal power exclusive OR

2. Congress has enacted legislation that explicitly prohibits state regulation

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33
Q

When does federal law IMPLIEDLY preempt state law?

A
  1. Congress intended for federal law to occupy the entire field
  2. State law directly conflicts with federal law
  3. State law indirectly conflicts with federal law by creating an obstacle to federal law’s purpose
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34
Q

When can state action exist in cases dealing with private parties?

A
  1. A private person carries on activities traditionally performed exclusively by the state OR
  2. Sufficient mutual contacts between the conduct of the private party and the government (look at degree of state involvement)
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35
Q

Where can you find the due process clauses?

A

5th amendment - federal

14th amendment - states

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36
Q

What does due process clause guarantee?

A

No person shall be denied life, liberty or property without due process of law.

-only intentional deprivation of these rights violates the due process clause.

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37
Q

What is liberty for purposes of due process clause

A
  • freedom from bodily restraints

- right to contract and engage in gainful employment

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38
Q

What is property for due process clause

A

-legitimate claim or entitlement that is not fulfilled (e.g. continued attendance in public schools, welfare benefits)

39
Q

How do you determine the type and extent of procedural due process needed.

A

The part balancing test that weighs:

  1. Importance of the individual’s interest being affected AND
  2. Value of specific procedural safeguards AGAINST
  3. The government interest in fiscal and administrative efficiency
40
Q

What is the substantive due process analysis

A

A gov’t regulation that infringes on a fundamental right is subject to strict scrutiny standard and a gov’t regulation that does not infringe on fundamental right is subject to rational basis test

41
Q

Fundamental rights for purposes of Substantive due process analysis
VIP

A

Right to:

  1. interstate travel
  2. vote
  3. privacy, including right to marry, use birth control, engage in noncommercial consensual sex, make decisions regarding kids and for related persons to live together.
42
Q

Abortion - pre viability rule

A

-regulation cannot impose an undue burden on woman’s right to obtain an abortion

43
Q

Abortion - post viability rule

A

-state’s interest in the fetus’s life can override woman’s right to choose but state cannot prohibit the woman from obtaining an abortion if necessary for her health.

44
Q

What does the Equal Protection Clause of the 14th Amendment

A

prevents government from denying citizens equal protection of the laws. Look for when the government is classifying people into groups and treating them differently.

45
Q

What standard applies to Suspect Classification sin the EP analysis?

A

Strict scrutiny

46
Q

What is a suspect classification?

RENA

A

Race
Ethnicity
National origin
Alienage - if made by state law

47
Q

What is a Quasi Suspect Classification

A

Gender

Legitimacy (non-martial children)

48
Q

What standard applies to a Quasi Suspect Classification

A

Intermediate scrutiny

49
Q

What standard applies to all other classifications

A

Rational basis

50
Q

When do you need to show government intent in an Equal Protection analysis

A

For strict or intermediate scrutiny to be applied, you need to show intent

51
Q

How can you shown government intent

A
  1. Law that is discriminatory on its face
  2. A discriminatory application of a facially neutral law or
  3. A discriminatory motive behind a facially neutral law
52
Q

How do you know if it is a due process issue or an equal protection issue

A

If law limits liberty of ALL persons to engage in some activity it is a due process issue. If law treats class of persons different, it is an equal protection issue.

53
Q

What is affirmative action?

A

State may implement regulations to remedy past discrimination if the class has suffered persistent and readily identifiable past discrimination. Cannot use a race-based plan

54
Q

Takings Clause - eminent domain - what is it?

A

Power of the government to take private property for a public purpose with just compensation
5th amendment

55
Q

Just compensation

A

FMV measured in terms of loss to the owner, not benefit to gov’t

56
Q

How can you challenge that a taking was not made for public use?

A

Prove that transfer of property was not rationally related to any conceivable public purpose

57
Q

How do you test whether a regulation rises to the level of a taking?

A

Consider the Penn Central factors

  1. Economic impact of regulation on property owner
  2. Extent to which regulation interferes with owner’s reasonable expectations regarding use of property and
  3. The degree to which it will benefit society and how it distributes burdens and benefits among property owners
58
Q

How do you know if it is a per se taking?

A

Regulation is a taking when it results in a

  1. permanent physical occupation of the property OR
  2. Permanent TOTAL loss of the property’s economic value (decline isn’t enough)
59
Q

Exaction as a taking

A

A local gov’t may exact a promise from developer to set aside land for public use in exchange for construction permits, without violating takings clause if:

  1. there is an essential nexus between legitimate state interests and conditions imposed on property owner AND
  2. a Rough proportionality between the burden imposed on the property owner and the impact of the proposed development
60
Q

What is the privileges and immunities clause?

A

It prohibits one state from discriminating against the citizens of another state. Out of state citizens are protected against discrimination with respect to any fundamental rights or essential activities (pursuit of employment; transfer of property)

61
Q

When may discrimination against out of state citizens be VALID

A

If state can show a substantial reason for difference in treatment.
Substantial reason = out of state citizens are part of the problem AND there is no less restrictive means to solve the problem

62
Q

What is the contracts clause?

A

Limits ability of STATES to retroactively impair contract rights. N/a to federal gov’t

63
Q

What standard is applied to determine if state legislation that substantially impairs a private contract is valid?

A

Intermediate scrutiny

64
Q

What standard is applied to determine if state legislation that substantially impairs a public contract is valid?

A

Public contract = state is a party

stricter scrutiny

65
Q

What is an ex post facto law?

A

Law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing someone for some past activity

66
Q

How do know if law is being altered in a substantially prejudicial manner?

A

If it

  • makes criminal an act that was innocent when done
  • imposes greater punishment OR
  • reduces the evidence required to convict a person
67
Q

What is a bill of attainder?

A

Legislative acts that inflict punishment on individuals without a judicial trial. Both state and fed’l gov’t prohibited from doing this,

68
Q

When can the government regulate a symbolic act?

A
  1. The government has an important interest independent of the suppression of speech; AND
  2. The incidental burden on speech is no greater than necessary to further that interest
69
Q

What are the first two things to look at in a 1st Amendment Free Speech Analysis

A
  1. Overbreadth - statute punishes ALL activity
  2. Vagueness - it needs to put the public on reasonable notice of what is prohibited.

If either of these exist, regulation is invalid

70
Q

Censorship - prior restraint of speech before it occurs

A

Generally, not allowed except:

  1. There is a particular harm to be avoided (e.g. restraining newspaper from publishing movement of troops)
  2. Procedural safeguards are provided to the speaker.
71
Q

What are the two types of speech regulations

A
  1. content based

2. Conduct based (time, place, manner)

72
Q

How do you analyze a contest based restriction

A

Presumptively unconstitutional except for certain categories of unprotected speech

73
Q

What about content neutral restrictions - how are they analyzed?

Eg. restricts speech regardless of the content

A

Intermediate scrutiny test.

  1. Advance important interests unrelated to the suppression of speech and
  2. Not burden substantially more speech than necessary
74
Q

What are the types of unprotected speech?

A
  1. Inciting imminent lawless action
  2. Fighting words
  3. Obscenity
  4. Defamatory speech and
  5. Some commercial speech

ALL of these can be restricted - not constitutionally protected

75
Q

Inciting imminent lawless action

A

Speech can be restricted if it creates a clear and present danger of imminent lawless action
Need INTENT to cause it and imminent illegal conduct is likely

76
Q

Fighting words

A
  • True threats are not protected by 1st amendment (e.g. cross-burning)
  • fighting words are personally abusive words that are likely to cause immediate physical retaliation

Fighting words statute not valid if it is designed to punish only certain viewpoints.

77
Q

Obscenity

A

Speech is obscene if it describes or depicts sexual conduct that, taken as a whole by the average person
1. appeals to the prurient interest in sex, using a community standard
2. is patently offfensive AND
lacks serious literary or artistic value, using a national reasonable person standard

78
Q

Commercial Speech - not protected

A

Protected if TRUTHFUL.

Commercial speech that is FALSE, misleading or fraudulent may be restricted.

79
Q

Test for regulation of protected commercial speech

A
  1. Serves a substantial government interest
  2. Directly advances that interest
  3. Is narrowly tailored to serve that interest.

So, complete bans are unlikely to be upheld because they are not narrowly tailored

80
Q

Power of congress to limit time place and manner of speech depends on which one of these types of forums are involved

A
  1. Public forum
  2. Limited public forum
  3. Non-public forum
81
Q

What is a public forum?

A

Public property that has been histrically open to speech related activity

Streets, sidewalk, parks
Designated public forum - schoolrooms open for after school use by public, civic associations use on a permanent or limited basis

*Most restricted

82
Q

When can the Gov’t regulate speech in a public forum with reasonable time, place and manner restrictions?

A

When regulations are:

  1. content neutral;
  2. narrowly tailored to serve an important gov’t interest and
  3. leave open alternative channels of communication.

STATE HAS BOP

83
Q

What is a Limited Public Forum

A
  • not historically linked with speech but opened for specific speech activity
    eg. school gym opened to host debate on a community issue
84
Q

What is a non public forum?

A
  • not historically used for speech, and NOT opened for specific speech activity.
    e. g. military base, school while it is in session
85
Q

When may a gov’t regulate speech in limited public and non public forums?

A

Where regulations are:

  1. Viewpoint neutral and
  2. Reasonably related to a legitimate government purpose.
86
Q

What is the freedom of association

A

The right to participate in any group, gathering, club or organization without government interference

87
Q

When can government infringe on freedom of association?

A

If they satisfy strict scrutiny test

** Includes regulations on access to ballot

88
Q

When can a person be deprived of public employment?based on association?

A
  1. HE is an active member of a subversive organization;
  2. He has knowledge of organizations illegal activity and
  3. He has SPECIFIC INTENT to further those illegal objectives
89
Q

What is the free exercise clause?

A

Prohibits the gov’t from punishing someone on the basis of her beliefs, or interfering with her right to exercise her religion

90
Q

What does the free exercise clause forbid?

A
  1. State gov’ts from requiring office holders to take a religious oath
  2. States from excluding clerics from holding public office and
  3. Courts declaring a religious belief to be false.
91
Q

What test is applied to a regulation that infringes on the free exercise clause?

A

Strict scrutiny.

Supreme Court has never found an interest so compelling that it justifies regulation

92
Q

What is the establishment clause?

A

Compels a government to pursue a course of neutrality towards religion.

93
Q

Test for violation of establishment clause?

A

Gov’t action challenged under establishment clause will be found INVALID unless the action:

  1. Has a secular purpose
  2. Has a primary effect that neither advances nor inhibits religion
  3. Does not produce excessive government entanglement

Known as the Lemon test

Florida Bar by LL (16 decks)

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