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July 2013 NC Bar > CONSTITUTIONAL LAW RULES! > Flashcards

CONSTITUTIONAL LAW RULES! Flashcards

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1
Q

STANDING BY ORGANIZATION

A

An organization has standing if (1) there is a member whose injury is related to the organization’s purpose, and (2) there is no reason that would require the individual members to participate in the suit.

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2
Q

STANDING BY THIRD-PARTY

A

One has standing to raise rights of another if (1) party has actual injury, (2) special relationship between party and 3rd person, and (3) some hindrance to the 3rd party raising his own rights.

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3
Q

SUPREME COURT REVIEW OF STATE COURT JUDGMENTS

A

Court can review if (1) highest court issued final judgment, (2) which turned on federal grounds, (3) case or controversy, and (4) no independent and adequate state ground upon which decision was based.

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4
Q

DOCTRINE OF ABSTENTION

A

Federal court will decline to hear case that involves unsettled constitutional challenge to state law, or if pending.

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5
Q

ELEVENTH AMENDMENT

A

Prohibits private party from suing State in federal court without consent unless Congress expressly allows it.

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6
Q

COMMERCE CLAUSE

A

Congress may regulate (1) channels of interstate commerce, (2) instrumentalities/persons/things in interstate commerce, (3) commercial interstate activity, and (4) intrastate activity substantially affects interstate commerce.

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7
Q

TAXING POWER

A

Congress may use tax power to regulate so long as it bears some reasonable relationship to revenue production.

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8
Q

SPENDING POWER

A

Conditional grants will be enforced if condition (1) serves a public purpose, (2) is unambiguous, (3) is related to the federal interest, and (4) does not violate independent bar of Congress.

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9
Q

DELEGATION OF CONGRESSIONAL POWER

A

Congress may broadly delegate legislative powers to administrative agencies so long as Congress sets forth some intelligible principle, or some standards, to guide the exercise of the delegated power.

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10
Q

LEGISLATIVE VETO

A

Upon a delegation to the executive, Congress can revoke only with bicameralism and presentment.

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11
Q

SPEECH AND DEBATE CLAUSE (CONGRESSIONAL IMMUNITY)

A

Congress member may not be criminally/civilly punished for official or legislative acts. This does not include constituent communications, redistribution of materials prepared in legislative process or bribery.

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12
Q

Executive Power, Article II - TREATY POWER

A

The President may enter into a treaty by and with the advice and 2/3rd’s consent of the Senate. Treaty powers are the supreme law of the land, and prevail over state law. (Missouri v. Holland, Justice Holmes).

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13
Q

Executive Power, Article II - EXECUTIVE AGREEMENTS

A

Executive Agreements are similar to treaties, but don’t require senate consent; but treaty and federal law prevail over executive agreements.

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14
Q

Executive Power, Article II - PRESIDENTIAL IMMUNITY

A

President enjoys a qualified privilege not to disclose presidential communications. However, if the specific need for evidence in criminal trial outweighs President’s general claim of confidentiality, this immunity will yield. President is absolutely immune from civil suits for damages for any presidential act.

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15
Q

Executive Power, Article II - IMPEACHMENT

A

House impeach by majority; Senate remove by a 2/3rd’s majority. President (1) Senator on oath, and (2) chief Justice presides.

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16
Q

Federal Government and the States - FULL FAITH AND CREDIT CLAUSE

A

Required if (1) court had personal and subject matter jurisdiction, and (2) issued a final judgment on the merits.

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17
Q

Federal Government and the States - PREEMPTION (CONGRESS’S INTENTION TO OCCUPY FIELD

A

If it appears that Congress intended to occupy the entire field, any state or local regulation is preempted.

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18
Q

Federal Government and the States - PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV

A

States may not discriminate against out-of-state citizens with respect to commercial activities or civil liberties. OK: residency for state employee, charge > for hunting licenses/tuition, and prefer citizens for state benefits.

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19
Q

Federal Government and the States - DORMANT COMMERCE CLAUSE

A

If Congress has not acted, and its power lies dormant, state may regulate local aspects of interstate commerce if (1) it does not discriminate against out of state competition in favor of in-state, and (2) it is not unreasonably burdensome on interstate commerce (actual effects of law on commerce v. state’s interests served by the law).

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20
Q

Federal Government and the States - DORMANT COMMERCE CLAUSE (MARKET PARTICIPANT DOCTRINE)

A

State acting as market participant, the dormant commerce clause does not apply to its actions and may discriminate/burden it.

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21
Q

Federal Government and the States - DORMANT COMMERCE CLAUSE (GOVERNMENT SUBSIDIES)

A

No violation if state prefers its own citizens or companies with subsidies (pay money/tax break to come here).

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22
Q

Federal Government and the States - DORMANT COMMERCE CLAUSE WITH CONGRESSIONAL APPROVAL

A

Congress may speak to permit state actions, but broad approval may still violate the Equal Protection Clause.

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23
Q

Federal Government and the States - DORMANT COMMERCE CLAUSE (TWENTY FIRST AMENDMENT)

A

The 21st Amendment gives the states the power to regulate the possession, sale, and transportation of liquor within its borders. However, this does not give the states authority to discriminate against out of state liquor.

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24
Q

STATE TAXATION OF INTERSTATE COMMERCE

A

To tax interstate commerce, tax must have (1) fair relationship to the services or benefits provided by the state, (2) the thing has substantial nexus to state (actual presence, and (3) tax must not be unfairly apportioned. State tax is regulation; thus, it can’t be (1) discriminatory, (2) or unduly burdensome. Congress can preempt or authorize it.

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25
Q

Individual Rights - OBVIOUS STATE ACTION

A

State passes law or permits its officials to take action, state action is present, even if the official violates law.

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26
Q

Individual Rights - STATE ACTION (PUBLIC FUNCTION DOCTRINE)

A

Entity performs a government function traditionally and exclusively performed by government will be state action.

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27
Q

Retroactive Legislation - CONTRACT CLAUSE

A

State may not pass law that substantially impair pre-existing contracts unless the law (1) serves an overriding public need, AND (2) is a reasonably and narrowly tailored means of meeting that need.

28
Q

Retroactive Legislation - EX POST FACTO LAWS

A

An ex post facto law is one that, when already done, (1) makes an innocent act criminal, OR (2) increases greater punishment for a criminal act, OR (3) reduced the evidence required to convict a person.

29
Q

Retroactive Legislation - BILLS OF ATTAINDER

A

Bills of Attainder are not permitted; thus, federal or state legislation that specifically targets or inflicts civil or criminal punishment on a particular named individual or ascertainable group member with trial are prohibited.

30
Q

Retroactive Legislation - PROCEDURAL DUE PROCESS

A

Requires notice and hearing before deprived of life, liberty, or property. Did government deprive him of a life, liberty, or property interest? Deprivation must be intent. Reasonable expectation of entitlement is a property right. Next, determine process due. To determine if procedure valid, balance (1) private interest of individual, (2) value of specific safe-guards to that interest, and (3) government’s interest in fiscal and administrative efficiency.

31
Q

Retroactive Legislation - TAKINGS CLAUSE

A

Physical invasion no matter how small or temporary. But, temporarily denying owner of property is not a taking if action rationally related to a legitimate public purpose. Also, for benefit of private development if taking will rebound to the public advantage. Just comp: reasonable value at time. Taking occurs if government action damages or impairs use of property; however, no taking occurs from land-use regulations that merely decreases its economic value.

32
Q

Fourteenth Amendment - PRIVILEGES [OR] IMMUNITIES CLAUSE OF THE 14TH AMENDMENT

A

Right of a citizen to become a citizen of any state and once a resident to enjoy the same rights as other residents.

33
Q

Fourteenth Amendment - EQUAL PROTECTION AND DUE PROCESS

A

Substantial due process: limits liberty of all persons. Equal Protection: guarantees similarly situated persons will be treated alike.

34
Q

Fourteenth Amendment - STRICT SCRUTINY

A

The government must prove that the action or law is necessary to achieve a compelling governmental interest.

35
Q

Fourteenth Amendment - INTERMEDIATE SCRUTINY

A

Government must prove that the action or law is substantially related to an important governmental interest.

36
Q

Fourteenth Amendment - RATIONAL BASIS

A

Challenger proves law not rationally related to a legitimate government interest (arbitrary).

37
Q

Fourteenth Amendment - EQUAL PROTECTION

A

Fourteenth Amendment which provides that no State shall “deny to any persons within its jurisdiction the Equal Protection of the Laws.” Applies to federal through the Due Process Clause of the 5th Amendment.

38
Q

Fourteenth Amendment - AFFIRMATIVE ACTION

A

Strict Scrutiny, but government may have compelling interest in specifically correcting prior discrimination, but scope of remedy is limited to the scope of the violation. Cannot be for making up for past societal discrimination. (Not reparations)

39
Q

Fourteenth Amendment - AFFIRMATIVE ACTION (UNIVERSITY ADMISSIONS)

A

The Court has held that racial preferences passes strict scrutiny; achieving diverse student body is compelling.

40
Q

Fourteenth Amendment - ALIEN DISCRIMINATION

A

For state governments, any law or action discriminating on the basis of citizenship is invalid unless it passes strict scrutiny. However, states may require citizenship for some government positions (cops and teachers).

41
Q

Fundamental Rights - MARRIAGE, DIVORCE, AND CONTRACEPTION

A

Under the fundamental right to privacy, there is a fundamental right of marriage, divorce, and use of contraception.

42
Q

Fundamental Rights - ABORTION

A

The right to privacy is considered a fundamental right which includes a right to an abortion. Prior to viability the government may not impose any undue burden (substantial obstacle) on a woman’s choice to terminate a pregnancy. (NOT Burdened if: informed written consent required, OR 24 hour waiting period, OR viability tests, OR parental consent/notification). After viability, the state may prohibit abortions all-together.

43
Q

Fundamental Rights - REFUSE MEDICAL TREATMENT

A

In a balancing test, the state may require a person to be vaccinated against contagious diseases.

44
Q

Fundamental Rights - PRIVATE SEXUAL ACTIVITY

A

Right to engage in private consensual sexual activity between adults; no right to adultery, incest, or prostitution.

45
Q

Fundamental Rights - RIGHT TO VOTE

A

States can restrict voting by age, residence, and citizenship. Examples: 50 day residency requirement = Good; Literacy Test = Good; Prohibiting Felons = Good; Poll Taxes = Bad.

46
Q

Fundamental Rights - ONE PERSON, ONE VOTE

A

In all national and state elections, voting by districts must be apportioned to guarantee one person one vote. In all House elections, one person one vote is required by Article I Section 2. The Court will use strict scrutiny to review the constitutionality of racial gerrymandering, but partisan gerrymandering may be political question.

47
Q

Fundamental Rights - RIGHT TO TRAVEL

A

Individuals have a right to travel from state to state. Laws that force newcomers to wait a period of time (1 year) before receiving certain critical benefits will be struck down (Invalid oil revenues based resident length).

48
Q

First Amendment - VAGUENESS AND OVERBROAD

A

A statute is vague if a person of common intelligence could not know what behavior the statute prohibits. A statute is overbroad, if it prohibits substantially more expression than is necessary (substantially overbroad).

49
Q

First Amendment - PRIOR RESTRAINTS ON SPEECH

A

A prior restraint prohibits speech before it is uttered, and the government bears a heavy burden to show a prior restraint is necessary to prevent direct, immediate, and irreparable harm.

50
Q

First Amendment - CONTENT BASED SPEECH

A

The government may NOT restrict a person’s opinion, message, or idea of an unprotected expression unless it shows a compelling need to do so; this also includes the freedom not to speak and symbolic expression. Thus, content based speech bars others from expressing disagreement (gay parade, license plate, flag burning).

51
Q

First Amendment - CONTENT NEUTRAL (TIME, PLACE, AND MANNER)

A

Indirectly restricts speech, apply time, place, and manner restrictions; (1) content neutral (time, place, manner), (2) provide substantial alternative opportunities for speech, and (3) narrowly serve a significant state interest.

52
Q

First Amendment - CLEAR AND PRESENT DANGER

A

Speech that incites a clear and present danger is not protected by the First Amendment. Thus, to regulate this speech, the speaker must have intended to incite a danger that is, in fact, likely to incite imminent lawlessness. However, a speaker may not be stopped unless the crowds hostility presents an imminent danger of lawlessness.

53
Q

First Amendment - FIGHTING WORDS

A

Fighting words are those in which their very utterance inflict injury or tend to incite an immediate breach of the peace. However, the utterance must be clearly directed towards the person or group that would be injured or incite the immediate breach of the peace. Thus, a statute must specifically protect against a true threat.

54
Q

First Amendment - OBSCENITY

A

Obscenity is a description or depiction of sexual conduct that appeals to the prurient interest in sex, which portrays sex in a patently offensive way, and does not have serious literary, artistic, political, or scientific value. When taken as a whole, the content must be obscene to the average person applying contemporary community standards. The artistic value prong is judged using a national reasonable person standard, not local community standard.

55
Q

First Amendment - ADULT ENTERTAINMENT BUSINESS

A

The government may use zoning powers to limit adult businesses so long as (1) the government has a substantial interest in regulating, and (2) ample opportunities remain available for the operation of those businesses.

56
Q

First Amendment - SYMBOLIC SPEECH

A

Government regulation of expressive conduct will be upheld if (1) it is within the government’s constitutional power, (2) it furthers an important government interest, (3) which is unrelated to the suppression of free expression, and (4) the incidental restriction on 1st Amendment freedoms is no more than necessary to achieve the government’s purpose.

57
Q

First Amendment - COMMERCIAL SPEECH

A

To regulate commercial speech, the statement must be misleading or related to an unlawful activity, there is a substantial government interest, and it must be narrowly tailored to advance this interest.

58
Q

First Amendment - FREEDOM OF THE PRESS

A

Generally, the press enjoys the same rights as everyone, no more and no less. Press rights are the rights of the owner or publisher, not the readers or persons who are criticized in the press (no right of reply to editorial).

59
Q

First Amendment - EXPRESSION IN [NON-PUBLIC] FORUM

A

Unless the government has specifically dedicated a non-public forum to be fully opened to all First Amendment activities, the government may regulate its access in the following ways: (1) Content: speech may be limited o the subject to which the property is dedicated; (2) Activities can be limited by the government as long as limitation is content neutral; (3) Time-Place-Manner, must be reasonable in terms of how the property is used; Non-public property includes: Military bases and schools, Government work place and Government controlled charity drive, sidewalk outside of Post Office and Mailboxes, PBS congressional debate of major parties, airport terminals and public property such as sidewalks, crosswalks, lamps, poles, hydrants.

60
Q

First Amendment - SPEECH OF PUBLIC EMPLOYEES

A

Employees may be disciplined if their speech disrupts the operation of the office, undermines authority, or destroys close working relationships (circulating an office petition complaining about the office policies).

61
Q

First Amendment - SPEECH OF STUDENT IN SCHOOL

A

A school may limit a student’s speech brought into the school so long as there is a reasonable pedagogical basis for the school’s decision. In non-classroom setting, prohibit speech that materially disrupts school activities.

62
Q

Freedom of Religion - FREEDOM OF RELIGION

A

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

63
Q

Freedom of Religion - FREE EXERCISE CLAUSE

A

Prevents government from punishing or burdening one’s religious beliefs. If government intentionally burdens and coerces a religious belief, strict scrutiny will apply. If unintentionally burdens a religious belief, law is content neutral and generally applicable, then some minimum level of scrutiny will be applied, rational basis. Need not be member of a formal religious organization; all that is required is that one sincerely holds the belief.

64
Q

Freedom of Religion - UNEMPLOYMENT COMPENSATION CASES

A

A state must grant religious exceptions when a person denies work based on their religious beliefs.

65
Q

Freedom of Religion - ESTABLISHMENT CLAUSE

A

Government action that has some relationship to religion will violate the Establishment Clause unless it satisfies all three parts of the Lemon Test; (1) secular purpose, (2) a primary effect that neither advances nor inhibits religion, and (3) must not foster excessive governmental entanglement with religion. It is important to note, that a law favoring or burdening a larger segment of society that happens to include religious groups will be upheld.

66
Q

Freedom of Religion - ESTABLISHMENT CLAUSE (SECT PREFERENCE)

A

If the government provides a preference for some religious sect over another, it is invalid unless the law or program is narrowly tailored to promote a compelling interest.

67
Q

Freedom of Religion - ESTABLISHMENT CLAUSE (NATIVITY-ENDORSEMENT TEST ADDED)

A

Moreover, government action is invalid if it creates a perception in the mind of a reasonable observer, which the government is either endorsing or disapproving of a religion.

July 2013 NC Bar (16 decks)

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