Constitutional Law Flashcards
What is the 11th Amendment limit on judicial power?
You cannot sue a state for MONEY DAMAGES unless:
1) the state CONSENTS or
2) the US Congress EXPRESSLY says so to enforce the FOURTEENTH AMENDMENT
Does the 11th Amendment apply to local governments?
Does in apply in state and federal court?
NO, does not apply to local governments
YES, applies in both state and federal courts
How can Congress override the 11th Amendment?
In order to enforce the 14th Amendment, must EXPRESSLY say so
any lack of clarity will PRECLUDE damages
Can you sue a state officer under the 11A?
YES, for injunctive relief always
for money damages from officer PERSONALLY
Can Congress change the jurisdiction of the Supreme Court?
yes as to appellate jx, no as to original jx
When can the Supreme Court review a state court judgment?
Only if it turned on FEDERAL GROUNDS.
no jx if the judgment below rested on ADEQUATE AND INDEPENDENT STATE GROUNDS (AISG)
What does it mean for a judgment below to rest on AISG?
adequate: federal claimant WINS ANYWAY under state law (e.g., if constitution doesn’t matter because state constitution gives him more rights)
independent: state law does not depend on interpretation of federal law
Can SCOTUS consider an issue if state court was UNCLEAR on basis of decision (i.e., whether it was ruling on state or federal law)?
YES
What happens after SCOTUS rules on a state court’s decision of federal law?
If SCOTUS agrees with state court’s decision of federal law: AFFIRMS
if disagrees: REMANDS to state court so it can reconsider state law
What is constitutionally required in order to have standing?
injury
causation
redressability
What is NOT injury, for standing purposes?
mere ideological objection
everything else is injury, basically
When does an organization have standing?
when its MEMBERS have standing
When is the ONLY time a taxpayer suit is permissible?
an ESTABLISHMENT CLAUSE challenge to SPECIFIC congressional appropriations can be raised by ANY TAXPAYER.
never otherwise
Do legislators have standing to challenge laws they’re against?
NO, but sometimes LEGISLATURES have standing if claim is re: ITS INSTITUTIONAL FUNCTION
When is third-party standing available? e.g.s?
ONLY when parties to an EXCHANGE OR TRANSACTION raise the rights of OTHER PARTIES to that exchange or transaction
e.g., abortion doctors on behalf of women; saloon keepers on behalf of male customers buying beer
When is a case timely?
when it is RIPE and NOT MOOT
what does it mean for a case to be ripe?
you can show ACTUAL HARM or an IMMEDIATE THREAT of harm
What is the exception to the requirement that courts cannot hear moot cases?
controversies CAPABLE OF REPETITION, YET EVADING REVIEW are not moot, despite appearing moot
look for an INTERNAL TIME LIMIT (like pregnancies with abortion cases)
When can federal courts rule on constitutionality of PROPOSED LEGISLATION?
NEVER!!! that would be an advisory opinion
When is something a political question and thus non-justiciable?
when INAPPROPRIATE for judicial resolution, often because:
1) committed to ANOTHER BRANCH of government for decision (IMPEACHMENT); OR
2) NO MANAGEABLE STANDARDS for adjudication (political gerrymandering)
What are the three big WRONG ANSWERS when asked what the strongest argument in favor of a congressional power for passing particular legislation?
NEVER PICK THESE THREE:
1) PROMOTING GENERAL WELFARE: not a power of congress
2) general POLICING POWER: nonexistent for federal government
3) NECESSARY AND PROPER: not ALONE, must be WITH ANOTHER POWER
What are the three main congressional powers? What’s the trick to deciding which is being used?
Taxing, spending, and commerce
1) pick TAXING when law involves a TAX
2) pick SPENDING power whenever federal MONEY IS SPENT OR DISBURSED
3) if no tax and no spending, COMMERCE
When can congress regulate intrastate commerce?
when it has a SUBSTANTIAL EFFECT on INTERSTATE COMMERCE
How should a court determine substantial effect when ruling on a question of regulating interstate commerce?
How will court rule on: growing too much wheat? banning medical weed no guns in schools? VAWA? ACA?
judged in AGGREGATE
for economic or commercial activity, substantial effect is PRESUMED
for non-economic, non-commercial activity, must ACTUALLY DEMONSTRATE substantial effect on interstate commerce
ban on growing too much wheat? CONSTITUTIONAL banning medical weed? CONSTITUTIONAL no guns in schools? UNCONSTITUTIONAL VAWA? UNCONSTITUTIONAL ACA? UNCONSTITUTIONAL
What is the only limit on the congressional taxing power?
tax need only be RATIONALLY RELATED to RAISING REVENUE
What can congress do when it is barred from directly regulating an activity based on the commerce clause?
SPENDING POWER BRIBES
What is the anti-commandeering rule?
Congress cannot FORCE states to adopt/enforce FEDERAL REGULATORY programs
What does the Thirteenth Amendment do generally?
What does it do in regard to discrimation?
Gives Congress broad power to legislate against RACIAL DISCRIMINATION, whether PUBLIC OR PRIVATE
What does the 14th Amendment do?
what doesn’t it do?
Gives Congress power to REMEDY violations of INDIVIDUAL RIGHTS by the government, but only as those rights HAVE BEEN DEFINED BY COURTS.
does NOT give congress ability to REDEFINE CONSTITUTIONAL RIGHTS
What does it mean for a law to be remedial under the 14th amendment?
must have CONGRUENCE and PROPORTIONALITY, i.e., must be a REASONABLE FIT between remedial law enacted by Congress and Constitutional right as defined by SCOTUS
Was RFRA a reasonable fit and constitutional under the 14A?
NO, as applied to states, because it REDEFINED 1A, so NOT REMEDIAL
but constitutional as applied to federal government
Which executive powers are exclusively executive and thus are not subject to statutory control?
Pardon power
veto power
appointment and removal of executive officers
When can Congress give executive power to an officer it can hire/fire?
NEVER!!!
What is required to ratify a treaty?
2/3rds vote of the senate
Do non-treaty executive agreements (e.g., Iran Deal) take precedence over conflicting state laws?
YES
Can a president refuse to spend money allocated by congress?
NO, if statute UNAMBIGUOUSLY REQUIRES certain funds to be spent on certain purposes
What is a legislative veto, and when is it allowed?
When Congress passes a law reserving to itself the right to disapprove future executive actions
UNCONSTITUTIONAL ALWAYS!
What is the speech or debate clause?
senators/congressmen/their aides cannot be PROSECUTED or PUNISHED in relation to OFFICIAL ACTS
official acts (votes, statements in hearings, etc) of federal legislator CANNOT BE INTRODUCED INTO EVIDENCE
When can and can’t the states tax the federal government?
CANNOT DIRECTLY TAX, but can indirectly tax
What does the comity clause (privileges and immunities of state citizenship clause) require?
state can not impose LEGAL REQUIREMENT of RESIDENCY for PRIVATE EMPLOYMENT
okay for public employment; okay for non-serious things like hunting licenses
What is the dormant commerce clause?
in the absence of federal regulation, state regulation of commerce is valid, as long as:
1) no DISCRIMINATION against OUT-OF-STATE INTERESTS; unless
- -state is acting as market participant;
- -subsidies
- -congress authorizes/consents to state regulation
2) regulation does not UNDULY BURDEN interstate commerce; and
3) regulation does not apply to WHOLLY EXTRATERRITORIAL ACTIVITY
When is non-discriminatory taxation valid?
valid if:
1) SUBSTANTIAL NEXUS between taxing state and property/activity to be taxed (physical presence not required); AND
2) FAIR APPORTIONMENT of tax liability among states
What are commodities? How are states required to tax commodities?
goods
biz must pay full tax to EVERY STATE where goods are STOPPED FOR BIZ PURPOSES, not just passing through
What are instrumentalities? How are states required to tax instrumentalities?
things that carry the goods
fair apportionment
What is federal preemption?
federal law overrides (preempts) INCONSISTENT state law.
must be conflict, not just same subject matter
if Congress preempted the field, no state law can be made
What does the full faith and credit clause require?
states must give full faith and credit to JUDGMENTS rendered by OTHER STATES’ COURTS, as long as that court had JURISDICTION.
Through what do all individual rights (except prohibition on slavery) operate, and what is required to sue for the right?
FOURTEENTH AMENDMENT
STATE ACTION NECESSARY
What can’t government do regarding PRIVATE discrimination?
Must government prevent private discrimination?
When is state action irrelevant?
government cannot be SIGNIFICANTLY INVOLVED in private discrimination. Cannot:
- facilitate it
- profit from it
- enforce a private agreement to discriminate
NOT required to prevent private discrimination
(NB: state action is irrelevant in the presence of anti-discrimination legislation)
Is it a violation of the 14th for a state to give a liquor license to a private club that discriminates? Why or why not?
NO, because government acts constitutionally as long as its OWN CONDUCT is NEUTRAL and EVEN-HANDED (they’d give the license if it were a black club or a white club)
What are the two questions in a procedural due process analysis?
1) is LIFE, LIBERTY, OR PROPERTY being taken?
2) if so, what process is due?
What is considered a taking of liberty?
e.g.,
confinement
probation/parole
physical injury
restriction on any legal right
Is reputational harm a form of taking of liberty?
NO!!! no dp rights implicated
when does one have a property interest in a government job or benefit?
whenever you have a LEGITIMATE ENTITLEMENT to continued enjoyment of the job or benefit
“FOR CAUSE”/tenure, etc
EXPECTATION NOT ENOUGH
How do you determine what process is due (step 2)?
balance:
1) individual interest at stake (life, liberty, property)
2) the value of the additional procedure in protecting that interest; and
3) the government’s interest in efficiency and cost
When must a hearing occur BEFORE the deprivation?
e.g.,
terminating welfare benefits
non-emergency revocations of driver’s license
If a hearing can occur after deprivation, what is required of it?
to be FAIR and PROMPT
What is required when a public employee who can be fired only for cause is being discharged?
must give employee opportunity to be heard PRIOR to discharge, unless there’s a SIGNIFICANT REASON not to keep employee on job (i.e., cop charged with crime)
what are the three standards of review?
briefly, what is each standard?
who bears the BOP for each?
when does each apply?
1) STRICT SCRUTINY: is the law NECESSARY for a COMPELLING government interest?
- -i.e., is the law the LEAST RESTRICTIVE MEANS?
- -GOVT bears BOP
- -applies when there is a SUSPECT CLASSIFICATION or a FUNDAMENTAL RIGHT
2) INTERMEDIATE SCRUTINY: is the law SUBSTANTIALLY RELATED to an IMPORTANT government interest?
- -applies to classifications based on LEGITIMACY and GENDER
3) RATIONAL BASIS: is the law RATIONALLY RELATED to a LEGITIMATE interest?
- -CHALLENGER bears BOP
- -applies to all other cases (RESIDUAL TEST)
When there is a fundamental right implicated by a law, how do you tell if it violates the EP clause or the DP clause?
if denies fundamental right to EVERYONE: due process violation
if denies fundamental right to ONLY SOME: equal protection violation
Is there a DP right to travel?
What limits are acceptable?
Yes, interstate travel and settlement
REASONABLY residency requirements are okay for:
1) political participation
2) government benefits
How long can most residency requirements be under the DP clause?
30 to 90 days
one year is TOO LONG except for:
1) in state tuition
2) jx to file a divorce
states can’t otherwise treat citizens differently based on how long they’ve lived there
What is the DP standard for ballot access laws?
it’s okay if they’re harder than voting laws, as long as SERIOUS CANDIDATES CAN REASONABLY COMPLY
what is the law for abortion rights?
are these constitutional or unconstitutional:
1) informed-consent requirements
2) 24 hour waiting periods
3) parental notification requirements for minors
4) parental consent requirements
5) spousal consent requirements
6) no government financing of abortion
Roe: right to terminate until viability. after that, can be banned if there are exceptions to preserve life and health of mother
standard: cannot impose an undue burden on right to terminate
1) informed-consent requirements: ALLOWED
2) 24 hour waiting periods: ALLOWED
3) parental notification requirements for minors: ALLOWED
4) parental consent requirements: NOT ALLOWED
5) spousal consent requirements: NOT ALLOWED
6) no government financing of abortion: THAT’S FINE
What rights do parents have under the DP clause?
can they lose them?
raise children as they see fit, including choice of religious or private schools
can lose their rights through abandonment, abuse, or neglect
what DP rights do you have regarding family relations?
you have right to live together with close relatives
do you have a right to obscene material?
yes you have a right to read obscene material in the privacy of your own home, but no right to buy, sell, or distribute it
(NO RIGHT TO CHILD PORN)
does your right to refusal of medical treatment include a right to commit suicide?
NOPE
What is the effect of the privileges or immunities of NATIONAL citizenship clause of the 14th amendment?
NOTHING! IT’S NEVER THE RIGHT ANSWER NEVER SELECT IT!!
different from P&I of STATE citizenship clause in Article IV, which guarantees you aren’t discriminated against for your state in the private job market
What is the difference between the two DP clauses?
5A applies to federal government
14A applies to localities and states
What is the rare case in which a law may not pass rational basis scrutiny?
sexual orientation: animus/prejudice is not a rational basis
what triggers strict scrutiny under the EP clause?
suspect classifications: race, ethnicity, or national origin
what is the EP analysis for a law that disadvantages minorities?
must have DISCRIMINATORY PURPOSE: disproportionate impact is NOT ENOUGH
can be demonstrated lots of ways:
- face of statute;
- history of discriminatory application; or
- extrinsic evidence about purposes of those who passed it
When is there a compelling interest for affirmative action policies?
to remedy SPECIFIC PAST DISCRIMINATION
for school: when it’s ESSENTIAL to achieve a diverse class
- must be holistic, not quotas
- can’t have separate admission tracks
What is the law surrounding classifications that may be made regarding alienage (not being a US citizen)?
generally suspect and require a compelling interest, but TWO BIG EXCEPTIONS:
1) federal government classifications based on citizenship DON’T trigger strict scrutiny. they are valid UNLESS ARBITRARY AND UNREASONABLE
2) States/localities CANNOT require citizenship for access to PRIVATE EMPLOYMENT or for GOVT BENEFIT, but otherwise fine
Are undocumented aliens a suspect class?
NO, but states still cannot deny undocumented children public education
What level of scrutiny is triggered by gender or legitimacy classifications?
what result?
INTERMEDIATE:
basically never ever okay
What level of scrutiny for age classifications?
RATIONAL BASIS
What level of scrutiny for wealth classifications?
RATIONAL BASIS, but government has to waive filing fees for indigents when charging them would deny a fundamental right:
- divorce
- transcript for appeal of criminal conviction
- transcript for appeal of termination of parental rights
- NOT bankruptcy fees
When is vote dilution of racial minorities unconstitutional?
only if done with a DISCRIMINATORY PURPOSE
Under the VRA, when can you use race in drawing lines?
it may be a factor (to make majority-minority districts), but not the PREDOMINANT or ONLY factor
What does the takings clause say?
Private property shall not be taken for public use without just compensation
w/r/t takings, define public use
define just compensation
public use = basically anything the government wants to do with it. technically has to be RATIONALLY RELATED to a CONCEIVABLE public purpose
just compensation = fair market value at the time of the taking
When has a taking occurred?
only when government PHYSICALLY OCCUPIES a private owner’s property
NOT regulation, NOT adverse economic impact
UNLESS regulatory taking: zoning regulation has left NO ECONOMICALLY VIABLE USE for the property (rare)
Is zoning a taking/is compensation required?
no, as long as the zoning ADVANCES LEGITIMATE INTERESTS and does not extinguish a fundamental attribute of ownership
What is a bill of attainder?
UNCONSTITUTIONAL: legislative punishment (“John Doe is now a felon”)
What is an ex post facto law?
UNCONSTITUTIONAL: expanding criminal liability retroactively either by creating a new crime that applies retroactively or increasing penalty for past conduct
What does the contract clause do?
bars STATES from legislative impairment of EXISTING contracts, unless there is an OVERRIDING need (like the Great Depression)
What constitutes an unconstitutional establishment of religion?
Lemon test: okay if:
1) secular purpose
2) primary effect that neither advances nor inhibits religion
3) avoids excessive government entanglement with religion
but more common: endorsement test
1) violation for government to endorse one over another
2) focus is on coercive endorsement (like school prayer)
what is the test to determine if a law that accidentally impinges on religion violates the free exercise clause?
neutral, generally applicable laws must be obeyed despite religious objections
(RFRA changed that for the federal system)
exception: ministerial exception (non-discrimination employment laws cannot be applied to ministers)
What is the campus access rule?
a state university that allows student groups to meet on campus must allow student religious groups equal access
What happens to a content-based regulation of speech?
triggers strict scrutiny and usually struck down
when are laws regulating expressive conduct (symbolic speech) upheld?
upheld when:
1) they further an IMPORTANT interest;
2) that interest is UNRELATED to the suppression of expression; and
3) burden on expression is no greater than necessary
key = if trying to suppress a PARTICULAR MESSAGE, bad. if unrelated to suppression, fine.
what kinds of regulations are available in public forums?
only time, place and manner that:
1) are content-neutral on its face and as applied
- no executive discretion
2) leave open alternative channels of communication (can’t be a prohibition of speech, i.e.)
3) NARROWLY serve a SIGNIFICANT state interest
What regulations on speech are okay in a nonpublic forum?
any reasonable regulation of speech will be upheld
viewpoint discrimination is invalid though
What are the five types of speech that can be regulated due to content?
1) obscenity: four S’s
2) incitement: to immediate violence
3) fighting words (but rare now)
4) defamation
5) commercial speech
What defines obscenity?
the four S’s
1) sexy: must appeal to prurient interest
2) society sick: patently offensive to average person in the society
3) standards: clearly defined as to what is obscene, not vague
4) serious value lacking: determination made by court using national standard
What is the test for commercial speech regulation?
most regulations on commercial are struck down!!
test: regulation must directly advance a SUBSTANTIAL government interest and be NARROWLY tailored to that interest
misleading speech may be prohibited
What is the 1A rule of campaign direct expenditures v. contributions?
contributions CAN be regulated, provided that the limits are not UNREASONABLY low
direct expenditures in support of a candidate/campaign/issue CANNOT be regulated (less corrupting lol)
What is the 1A rule of campaign independent expenditures v. coordinated expenditures?
independent expenditures CANNOT be regulated
coordinated expenditures are basically just contributions so they CAN be regulated
is equalization of campaign resources a valid rationale for restricting campaign expenditures?
no!!!!!
what limits exist on federal taxing of exports?
CAN’T DO IT! export taxation clause
