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Constitutional Law Flashcards

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1
Q

What article of the Constitution covers federal courts?

A

Article 3

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2
Q

What types of cases are federal courts limited to taking?

A

actual cases and controversies that are justiciable

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3
Q

What is justiciability?

A

Wether the case/controversy is capable of judicial resolution, requiring no advisory opinions, ripe and not moot, and standing

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4
Q

What is an advisory opinion?

A

Federal courts can’t give advisory opinions, ones that lack an actual dispute between parties or lack a legally binding effect on the parties.

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5
Q

What are ripeness and mootness?

A

Ripe is too early and moot is too late. Ripeness requires a substantial hardship in absens of the review and the issues on record are fit for review. Mootness requies live controversies–ongoing injury.

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6
Q

What are exceptions to mootness?

A

If injury is capable of repetition yet evades review, the defendant voluntarily stopes but can restart at will, or in class actions, one plaintiff’s injuries continue.

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7
Q

What is standing?

A

1) . injury
2) . Causation in fact
3) . redressability

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8
Q

What types of injuries are justiciable?

A

Not ideological or generalized objections, not executive spending, but a taxpayer can challeng his own tax liability
You can also challenge congressional spending violative of the Establishment clause , but not executive spending or tax credits for contributions for private tuition.
For injunctive or declaratory relief, you must show a likelihood of harm, and the injury must be suffered personally by the plaintiff.

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9
Q

What exceptions are there to 3rd party standing bar?

A

Close relationship when the plaintiff is injured, the 3rd party is unable or unlikely to sue, and the plaintiff can adequately represent the third party

2) . organizations when the members have standing, the members’ injury is related to the prupose of the organization, and member’s participation is not required, like for individualized damages
3) . Free speech over breadth when it is not commercial speech and there is overbreadth

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10
Q

When do legislators have standing?

A

when the injury is to them or their votes personally and not an injury to an enacted bill as a whole.

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11
Q

What is causation under justiciability?

A

the plaintiff must show that hte injury is fairly traceable to the defendant

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12
Q

What is redressability?

A

the plaintiff must show that a favorable court decision can remedy the harm. Ex: not when mother sues to make state prosecute non-payment of child support

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13
Q

What is a political question?

A

Federal courts can’t do political questions, questions committed by the Constitution to other political branches or incapable or inappropriate for judicial resolution.

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14
Q

What is sovereign immunity?

A

Eleventh Amendment bar of suits OF STATE GOVERNMENTS in state or federal courts unless

1) . the state waives it,
2) . another state or federal government is suing
3) . it is bankruptcy
4) . Congress has clearly abrogated sovereign immunity under 14th Amendment powers to preserve discrimination

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15
Q

When can courts decline a federal constitutional claim?

A

When it turns on an unsettled question of state law. They generally can’t enjoin pending state proceedings

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16
Q

When can SCOTUS hear a case?

A

When there has been a final judgment by the highest state court available and not when there is an adequate and independent state grounds: i.e. the outcome would be the same regardless of the federal question’s outcome.

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17
Q

What article concerns Congress?

A

Article 1

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18
Q

What is the necessary and proper clause?

A

NOT a basis of legislative power, but a basis for Congress to use any means to achieve an enumerated power.

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19
Q

When can Congress tax and spend?

A

anytime, even to promote the general welfare. It can entice state only if the enticement is not so coercive that the state has no real choice and the strings attached are related to the spending

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20
Q

What does the commerce clause cover?

A

commerce between foreign nations, indian tribes and the states.

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21
Q

What does the interstate commerce clause cover?

A

1). instrumentalities
2). channels
3).economic activities with a substantial effect on commerce
NOT non-economic activities traditionally regulated by states.

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22
Q

When can Congress delegate powers?

A

It can delegate to agencies as long as there is some intelligble principle to guide the exercise of power
No line item veto-allowing the prsident to pick parts of the law to enact
No legislative veto–enacting a lw with the power to change/modify it later

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23
Q

When are Congress members immune?

A

Immune from criminal and civil liability for legislative acts, not speeches and publications outside of Congress.

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24
Q

What article governs the president?

A

ARt. 2

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25
Q

How does appointments work?

A

The President appoints ambassadors, federal judges, and officers of the US with majority approval by the Senate
For inferior officers (not executive branch officials), Congress appoints them, but can vest this in the PResident, department heads, or the judiciary

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26
Q

How does removal work?

A

The prsendent can remove high level executive officers at will
Congress can limit other officials’ removal to good cause.
Congress can remove executive officials through impeachment process

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27
Q

Who can the president pardon?

A

Anyone convicted of federal crime other than impeachment, and not civil liability

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28
Q

War powers?

A

Congress declares war and the president is commander in chief. When they crossover, it’s often not resolveable as a political question. They have to negotiate

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29
Q

What is a treaty?

A

An agreement the president negotiates with other countries. They require 2/3 senate approval. It trumps all state law and existing federal law.

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30
Q

What is an executive agreement?

A

An action by the president that requires no Senate approval, trumps all state law, but no federal law.

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31
Q

What are grounds for impeachment?

A

treason, high crimes and misdemeanors, and bribery.

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32
Q

What is the process for impeachment?

A

A majority of the house passes articles of impeachment and the senate convicts with 2/3.

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33
Q

Presidential Immunity?

A

The president has absolute immunity from civil damages for any actions arguably within his official responsibility, but no private immunity for conduct prior to taking office.

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34
Q

Executive privilege?

A

protects all communications related to presidential duties unless outweighed by other IGO’s, like evidence in a criminal trial.

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35
Q

What is the 10th Amendment?

A

Powers not granted to the federal government is reserved by the states. And the federal government can’t compel state to enact or administer federal programs.

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36
Q

What is preemption?

A

Express preemption when Congress says
Implied conflict when it is impossible to follow state and federal law
Implied field when extensive federal regulation indicates a Congressional intent to occupy the field.

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37
Q

What is the dormant commerce clause?

A

It prohibits state laws that discriminate against or unduly burden ISC.
Discrinatory laws are invalid unless necessary to achieve an IGO unrelated to economic protectionism and there is no less discriminatory means.
Exception if the state is acting as a market participant or there is Congressional approval

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38
Q

What is P & I of ARt. IV?

A

It prohibits state law that discriminate against OUT OF STATE US CITIZENS only for an important commercial act (basically livelihood) or for a fundamental right.
Discriminatory laws are invalid unless necessary to achive an IGO and there are no less discriminatory means. It has no exceptions.

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39
Q

What is P & I of 14th?

A

It prohibits state laws that interfere with interstate travel and the right to petition the federal government. NOT BOR rights.
People have the right to enter and leave the state and all state citizens are treated the same. No right to leave the country though.

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40
Q

STate taxation of ISC?

A

discriminatory taxes are generally invalid. non-discriminatory taxes are valid if there is a substantial nexus between the taxpayer and the state and the tax is fairly apportions to the business done or benefits received in the state.

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41
Q

What does the 13th Amendment do?

A

Ban slavery by everyone, not just state actors, as all other Constitution does

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42
Q

What rights have not been incorporated by hte 14th?

A

right to not have soldiers quarted in home, right to grand jury, right to jury in civil cases, right agaisnt excessive fines

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43
Q

When is the state acting?

A

1) . state law
2) . state officials acting officially, even if unlawfully
3) . Public function, when a private party performs a function tradionally, exclusively done by the government
4) . state involvement, when it is entertwined or a supervisor in private conduct.

44
Q

Where in the Constitution is DP?

A

5th Amendment for Feds, 14th for states and localities

45
Q

What type of action triggers Procedural DP?

A

an intentional deprivation of life, liberty, or property

46
Q

What is a deprivation of liberty?

A

a deprivation of physical freedom or constitutional and statutory rights, not a mere harm to rep.

47
Q

What is a depreivation of property?

A

a reasonable expectation of a continued receipt of property or real and personal property. Not at will employment.

48
Q

What is required for procedural due process?

A

1) . Notice reasonably calculated to inform the person
2) . Opportunity to be heard before the deprivation unless it’s impracticable (balance of the nature and extent of the procedures vs. the burden of hte government)
3) . a neutral decision maker with no actual or possibility of bias

49
Q

Where is EP in the Constitution?

A

the 14th to states and the 5th’s DP clause has an EP component interpreted into it.

50
Q

What issues trigger levels of scrutiny?

A

IP, Substantive DP, and Free speech

51
Q

What are suspect classes?

A

race, national origin, alienage classifications by the state generally, denial of fundamental rights to some people

52
Q

What gets IS?

A

gender, legitimacy, undocumented alien children

53
Q

What gets RB?

A

age, diability, wealth, alienage classifications by Congress, alienage classifications by states for democratic governance

54
Q

What is the test for determining whether a state is classifying?

A

Whether it is facially classifying or has a disparate impact and a discriminatory intent.

55
Q

How is affirmative action viewed in EP?

A

It gets SS.
In lower schools, busing pupils to remedy past segretation IN THAT AREA passes SS.
In higher education, race can be a factor, not a set number of points, in admission to achieve a diverse student body.
In government hiring, the government can use affirmative action to remedy its own past discrimination, not general social discrimination.

56
Q

How is alienage treated in EP?

A

Congress’s classifications get RB. State classifications get SS unless its for activities and positions integral to democratic self-governance (like voting, holding elective office, teachers, cops, not lawyers or notaries)

57
Q

How is gender treated in EP?

A 
It gets IS.  Things that have passed:
   male selective service
   greater social security benfits for women because of long history of pay discrimination
   statutory rape punishes men but not women
NOT
   male military school
   female nursing school
   only women get alimony
58
Q

How is legitimacy treated in EP?

A

IT gets IS. Laws based on predjudice are generally invalid, but laws that distinguish only between some but not all non-marital children are generally valid

59
Q

Where is Substantive DP in the Constitution?

A

5th for federal, 14th for state and local.

60
Q

What does Substantive DP protect?

A

fundamental rights, those deeply rooted in this nation’s traditions and implicit in the concept of ordered liberty.

61
Q

When it DP vs. EP triggered?

A

If everyone is denied a fundamental right, it’s only DP. If some people are denied a fundamental right, it’s DP and EP. If it doesn’t concern a fundamental right, it’s not DP.

62
Q

What are some fundamental rights under DP?

A

marriage, procreation, contraception, family raising decisions and living arrangements, interstate travel, vote

63
Q

How is abortion treated under DP?

A

Undue burden test: PRe-viability, the state cannot put on any substantial obstacle to abortion unless to protect the mother’s or fetus’s health. Post-viability, a state can prohibit abortion unless it is necessary to protect the mother’s life.

64
Q

What are some RB non-fundamental rights under DP?

A

economic rights, physician-assisted suicide, education

65
Q

What are some unclear DP rights?

A

adult consensual sex, refusal of medical treatment, bear arms

66
Q

How is marriage treated under DP?

A

You can only impose reasonable requirements to protect, rather than hinder, the right to marry: age, ID

67
Q

How is voting treated under DP?

A

You can impose restrictions to protect, not hinder, the right: age, citizenship, residency (as long as you don’t go over about 60 days and start triggering 2nd class citizenship). Poll taxes and literacy tests are not ok.

68
Q

How is voting treated under EP?

A

For state and local representatives, EP requires voting districts substantially equal (16% ok). For federal representatives, district populations must be almost exactly equal (.7% invalid). Racial gerrymandering gets SS if race is the predominant factor. Political gerymandering is a political questions.

69
Q

What are and re not some abortion undue burdens?

A 
Undue:
   spousal notification/consent
   extensive recordkeeping not directed at health or not protective of privacy
Not undue:
   licensing physicians
   informed consent requirements
   24-hour waiting period after consent
   parental consent for minor with judicial bypass
   partial-birth bans
   not funding abortions
70
Q

How is adult consensual sex treated under DP?

A

it gets RB, but has failed.

71
Q

How is right to refuse medical treatedment treated under DP?

A

Unclear, but a competent adult can refuse life-saving treatment. But the state can compel treatment for a contageous disease.

72
Q

When can the government do a takings?

A

When it is for public use and with just compensation (fair market at time of the takings).

73
Q

What is a physical taking?

A

Physical occupation or confiscation. traditional conditions on property aren’t takings if benefits and burdens are proportionate. Emergencies give greater weight to government.
The taking has to be permanent, and “public use” means public necessity/ legitimate public purpose, not cable.

74
Q

What is a regulatory takings?

A

government regulations that leaves no economically viable use, not merely diminishes the land. Also must be permanent.

75
Q

What is the contract clause?

A

State and Local government ban on substantially impairing existing private contracts unless it is for an important government purpose with a reasonably related means. Public conttracts (government contractors) get IS or SS, it’s just stricter. The government has no IGO in preserving its own money, for example.

76
Q

What is an ex post facto law?

A

Neither the state or federal government can pass legislation that retroactively alters criminal activity, including criminalizing something that was innocent when done, making a crime worse, setting greater punishment, or reducing the evidence required to convict.

77
Q

What is a bill of attainder?

A

State and Federal governments can’t pass legislation that designates particular individuals by name or classification for punishment without judicial trial.

78
Q

What is expressive conduct?

A

conduct that is inherently expressive or intended to convey a message and reasonably likely to perceived as conveying a message: flag burning, ballet, nude dancing, specialized clothing.

79
Q

What types of speech is unprotected?

A

incitement, fighting words, threats, obscenity, child porn, defamation with malice, false/misleading/illegal commercial speech.

80
Q

What types of speech are partially protected?

A

defamation about public officials without malice, true commercial speech

81
Q

What is incitement speech?

A

speech that is intended and likely to produce imminent lawless action. Mere advocacy of lawlessness isn’t enough.

82
Q

What are fighting words?

A

Words likely to provoke an immediate violent response (in a reasonable person?)

83
Q

What is a threat?

A

words intended to convey a serious threat of bodily harm to someone in particular.

84
Q

What is obscenity?

A

depiction of sexual conduct that as a whole appeals to the prurient interest in and is patently offensive by community standards AND lacks serious social value by national standards.
Not nudity, soft-core porn, or dirty words.
The right to privacy protects mere ownership.
Sexually explicit speech can be zoned as long as there are alternative channels for the speech (to protect children and unwilling adults, or prevent neighborhood crime and decay)

85
Q

What is child pornography?

A

depicting children engaging in sexual conduct, whether or not obscene. It has to be actual children though, not people depicting children. Mere possession is not protected.

86
Q

Defamation and 1st Amendment?

A

If the speech is about a public figure/official/concern, then actual malice must be shown for any recovery.
If the plaintiff is a private figure, but it’s a matter of public concern, then malice is required for any presumed or punitive damages, but no protection for actual damages.
If it is a private figure on a private matter, then no 1st protection.

87
Q

What is malice for 1st Amendment?

A

knowledge of falsehood or reckless disregard of its truth.

88
Q

What is a public official?

A

Anyone holding or running for elected office, or any important public employee, like prosecutors or cops.

89
Q

What is a public figure?

A

Anyone with pervasive fame and notoriety, a role of prominance in society, or thrust themselves into public controversies.

90
Q

How is commercial speech treated under the 1st?

A

It is unprotected if false, misleading, or illegal. Otherwise, it gets basically IS: there must be a substantial government interest that is narrrowly tailored (don’t care about LRM).
Attorneys in-person solicitation ban OK; accountants in-person soliciation ban not OK.

91
Q

If speech doesn’t fall into an unprotected category and not about a particular place, then how is it treated?

A

Content-based restrictions get SS, while content neutral restrictions get IS.

92
Q

How are campaign funds treated?

A

Campaign contribution caps are ok, but caps on campaign expenditures are NOT OK, even from private citizens.

93
Q

How is speech restrictions on certain property treated?

A

turns on whether it is a public forum or not.

94
Q

What is a public forum?

A

government property open to the public for all kinds of expressive activity because it is a traditional free speech zone (parks, street, sidewalks) OR it has been purposefully designated as a public forum by the government. The government can’t un publicfy a traditional public forum, but it can the latter.
Public forum speech restrictions get normal speech rules: SS if content-based, and IS if content-neutral.

95
Q

What is a nonpublic forum?

A

When the property is not generally open for all public speech, but limited to no speech or speech related to the purpose of the property. The restriction must be reasonable in light of the nature of the property, but it gets SS if it is content-based.

96
Q

How is speech treated in public schools?

A 
Speech by the student can be censored only if it is a substantial disruption, like passing notes in class, or it promotes illegal drug use.
   Speech by the school (class function/activity) can be censored if reasonably related to a legitimate pedagocial concern.
97
Q

How are public employees’ speech treated?

A

Matters of private concern at the workplace and matters pursuant to public activities are NOT protected. Matters of public concern not part of the job is protected speech–balance the speech’s value vs. the state’s interest in efficient operation.

98
Q

Public employees hiring/firing and free speech?

A

Generally, public employees can’t be hired or fired based on political affiliation or expression, but high level policy makers and advisors can.

99
Q

What is vagueness?

A

persons of common intelligence cannot tell what speech is prohibited and what is permitted, like “opprobrious and offensive” words. Such laws are invalid

100
Q

What is overbreadth?

A

When the law prohibits a substantial amount of speech that the ogernment may not suppress. Such laws are invalid, and a challenger gets 3rd party standing on behalf of protected speakers.

101
Q

What is prior restraint?

A

licensing schemes or injunctions that prevent speech before it occurs, rather than punishing it afterwards. They are heavily disfavored. Content-based prior restraint is even worse. Licensing must allow everyone in or have definite standards to prevent discretion.

102
Q

How may courts analyze religion under the free exercise clause?

A

They can look at the sincerity of someone’s belief, but not its truth.
laws that discriminate against religion get SS. Laws that apply evenhandedly don’t get free exercise clause protection.

103
Q

How is government restrictions on the establishment clause analyzed?

A

Five tests:

1) . Neutrality: the government must remain neutral without favoring or disfavoring it.
2) . Coercion: can’t directly or indirectly coerce individuals to exercise or not exercise religion
3) . Lemon test: can’t have a primary sectarian purpose or effect or excessive entanglement b/t government and religion.
4) . Endorsement test: can’t appear to endorse or disapprove of religion to a reasonable uninformed observer
5) . History and tradition: can allow a display or practice as acknowledgement of the role religion has played in the nation’s history.

104
Q

What are state employee rights in regards to PDP?

A

If they must be fired for cause, they are entitled to a pre-termination hearing for their an opportunity to respond

105
Q

What is the Property Clause?

A

gives Congress the right to make all rules and regulations for the Property of the US

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