Constitutional Law MBE Flashcards
FILL IN THE BLANKS. In order for a case to be ripe, the controversy must involve BLANK ________ ________. Mootness generally results in the dismissal of a case unless the controversy is _BLANK _______ ________.
actual harm or the threat of immediate harm; capable of repetition yet evading review
UNDER AISG limitation on the Supreme Court from reviewing a state court, will the Supreme Court review a state court decision when the party claiming a federal right is successful under state law?
No
Does the Comity Clause of Article IV, which deals with privileges and immunities of state citizenship prevent a state from imposing a residency requirement on private employment?
YES
The Fourteenth Amendment protects ________________ from infringement by the states upon the privileges or immunities of —— citizenship.
Citizens; national
Which claims are barred by the 11th amendment?
(i) Citizens of one state suing another state in federal court;
(ii) Suits in federal court against state officials for violating state law; and
(iii) Citizens suing their own state in federal court.
Note: These are subject to exceptions.
What does it mean for a judgment to rest on “adequate and independent state grounds”?
The state law grounds fully resolve the matter (i.e., be adequate) and do not incorporate a federal standard by reference (i.e., be independent). The U.S. Supreme Court may not review a final state-court judgment that rests on adequate and independent state grounds.
What standard is used to determine whether a tax by Congress should be upheld?
The tax only need be rationally related (or have a reasonable relationship) to revenue production
A political question not subject to judicial review arises when: [Name the two possibilities.]
(i) The Constitution has assigned decision making on this subject to a different branch of the government; or
(ii) The matter is inherently not one that the judiciary can decide.
When does a taxpayer have standing to file a federal lawsuit?
- when the taxpayer challenges governmental expenditures as violating the Establishment Clause
- to litigate whether and how much they owe on their own tax bill
Who impeaches and who tries the president?
IMPEACH
* The House of Representatives determines what constitutes “high crimes and misdemeanors” and may impeach by a majority vote.
TRIAL
* The Senate tries the impeached official, and a 2/3 vote is necessary for conviction
How does injunctive relief operate as an exception to the application of the Eleventh Amendment?
When a state official is named as the defendant –> may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary.
* However, federal courts generally may not issue injunctions against state court judges or clerks because they generally do not enforce state laws but resolve disputes between parties.
Over what types of cases does the Supreme Court have original jurisdiction?
The Supreme Court has original jurisdiction over:
(i) All cases affecting ambassadors
(ii) Other public ministers and consuls
(iii) Those in which a state is a party
When is Congress able to regulate purely private conduct?
When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.
What four requirements must be met in order for government regulation of expressive conduct to be upheld?
(i) The regulation is within the government’s power to enact;
(ii) The regulation furthers an important governmental interest;
(iii) The governmental interest is unrelated to the suppression of ideas; and
(iv) The burden on speech is no greater than necessary
There is a general rule that states cannot enact legislation that discriminates against out-of-state commerce. What are the five exceptions to this rule?
(i) Necessary to important state interest and no other nondiscriminatory means are available
(ii) State as a Market Participant
(iii) Traditional government function exception
(iv) Subsidies
(v) Federal/Congressional Approval
How does consent come into play as an exception to the application of the Eleventh Amendment?
A state may consent to suit by waiving its Eleventh Amendment protection.
For what types of offenses can the President exercise the Pardon Power?
federal cases
In what three circumstances is federal preemption implied?
(i) Congress intended for federal law to occupy the field;
(ii) The state law directly conflicts with federal law; or
(iii) The state law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law’s purpose.
What is a pocket veto?
If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden.
Name three actions not barred by the Eleventh Amendment.
The Eleventh Amendment does not bar:
(i) Actions against local governments
(ii) Actions by the United States government or other state governments
(iii) Bankruptcy proceedings that impact state finances
What is a line item veto?
A line item veto is where the President refuses only part of a bill and approves the rest. They are UNCONSTITUTIONAL
What is a legislative veto, and is it constitutional?
Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. UNCONSTITUTIONAL
What type of immunity does a judge have for judicial acts resulting in civil liability?
ABSOLUTE
Name the five categories where the government is permitted to restrict speech on the basis of content.
- Obscenity
- Incitement to violence
- Fighting words
- Defamation
- Commercial speech
In the absence of federal regulation, state regulation of commerce is valid so long as: (Name the three rules)
(i) There is no discrimination against out-of-state interests;
(ii) The regulation does not unduly burden interstate commerce; and
(iii) The regulation does not purposefully and deliberately apply to wholly extraterritorial activity.
Only one need to be proven for it to be invalid
In what two scenarios does private conduct amount to state action?
(i) When a private person carries on activities that are traditionally performed exclusively by the state; and
(ii) When the government is significantly involved in private discrimination.
How is the President’s veto power exercised?
The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated. Once a bill is vetoed, Congress can override the President’s veto with a 2/3rds vote in each house.
When may a state tax instrumentalities of commerce?
Only when:
(i) The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and
(ii) The tax is fairly apportioned to the amount of time the instrumentality is in the state
Under Equal Protection, in what two instances does the court apply the strict scrutiny test?
When the state action in question involves a fundamental right or suspect classification
- race, ethnicity, national origin
What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?
The regulation must be:
(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.
A state may impose a nondiscriminatory tax on interstate commerce, as long as the following three requirements are met:
(i) There is a substantial nexus between the taxing state and the property or activity to be taxed;
(ii) There must be fair apportionment of tax liability among states; and
(iii) The tax must be **fairly related **to the services provided by the taxing state.
Strict or intermediate scrutiny is triggered when
Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive
What is a political question that cannot be heard by the supreme court?
issues that (1) the Constitution reserves to the executive or legislative branch or (2) lack judicially discoverable and manageable standards for resolution.
When does a tax payer have standing?
A taxpayer has standing when the taxpayer’s suit (1) challenges legislation enacted under Congress’s taxing and spending power and (2) alleges a violation of a specific constitutional limitation on that power (i.e., the establishment clause).
The taxing and spending clause permits Congress to tax and spend
for the general welfare
Spend NOT legislate for the general welfare
Substantive due process challenges involving the deprivation of ordinary rights (e.g., employment) are subject to which test?
rational basis; under which a law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest
Under the establishment clause, the government may determine whether religous beliefs are ________________ but not __________
Sincere but not reasonable or true
Gov programs that provide financial aid to religious and secular institutions are constitutional if
they comport with the** historic purpose **of the establishment clause—preventing government preference for a particular religion (or for religion over nonreligion).
Regulations based on the content of speech (i.e., its message, subject, or ideas) are presumptively invalid and will be upheld only if they survive
strict scrutiny; if the government proves that the restriction is necessary and narrowly tailored to achieve a compelling government interest.
Can a state state affect contractual relations between private parties?
Yes so long as rationally related to legitimate government purpose
What does the fifth amendment provide?
That the right to vote shall not be abridged on the basis of race or color
applies to state and federal
Under the commerce clause congress can regulate activities that have
a SUBSTANTIAL effect on interstate commerce in the AGGREGATE
Under what amendment are citizens protected from infringement by the states upon the privileges or immunities of national citizenship?
14th amendment
When will a civil law will be deemed to be an ex post facto law?
when its retroactive effect is so** punitive** that it **clearly overrides its nonpunitive purpose **
If rationally related to nonpunitive purpose –> the punitive effect will NOT clearly override –> constitutional
Judges and prosecutors possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—unless
the court clearly lacked subject-matter jurisdiction at the time the action was taken.
Anti-Commandeering
Congress has broad power to regulate interstate commerce. But the Tenth Amendment limits this power by prohibiting Congress from
requiring state or local governments to (1) enforce a federal law or (2) enact a state or local law
A government action that abridges the freedom of the press is presumtively ——– and must survive ——
UNCONSTITUTIONAL; must survive strict scrutiny
First Amendment generally guarantees the press and the public the right to attend every stage of what type of trial? If this is interfered with by the government, what standard must be met?
a criminal trial; strict scrutiny
Laws that retroactively impair an ordinary right—e.g., the right to raise the statute of limitations as a defense—can be challenged on substantive due process grounds. What standard are they reviewed under?
rational basis scrutiny (because right to raise statute of limitations is NOT a fundamental right so no strict scurtiny) and therefore are generally constitutional
