Constitutional--other Flashcards

Question

when may a federal court decline to hear a dispute? (abstention doctrine)

Answer 1

* unsettled issue of state law in the case that may make fed issue moot * avoid complex state reg scheme or important state matter * to keep away from enjoying sate action on: (1) individual punishment for criminal activity or contempt of court or (2) imposition of civil fine * To make sure that substantially similar state and fed proceedings are uniform and don't needlessly duplicate.

Answer 2

**The Free Exercise Clause protects religious organizations** from **civil liability** for **employment discrimination** when they hire or fire employees who serve in ministerial roles. This exception applies to *any* employee whose primary function is to advance the organization's religious mission (e.g., pastor, parochial school teacher).

Answer 3

11A: private parties and foreign governments from suing a state gov in fed court without state's consent, even for a federal law violation. • Includes immunity for state officials who violate state law EXCEPTIONS: - state's consent to suit - 13,14,15A waived immunity (=P, voting violations) - state official sued for injunctive or declaratory relief - if damages to be paid personally by state officer - state official to be sued for prospective (not retroactive) damages that state treas. will pay NOT IMMUNE: US. state or other state can sue state, can sue local gov, bankruptcy

Answer 4

The *Younger* abstention doctrine: if doing so would interfere with a pending state criminal, or **particular** civil, proceeding that (1) involves an important state interest (including prosecution of criminals) and (2) provides an adequate opportunity to litigate federal issues. “particular” civil" akin to a prosecution (e.g., termination of parental rights) AND help state court judicial functions (e.g., contempt)

Answer 5

The commerce clause gives Congress plenary (i.e., exclusive) authority to regulate foreign commerce

Answer 6

Not likely. A right to appeal is a fundamental right, and taking that away based on ability to pay is a wealth-based restriction to access that right. It is therefore subject to strict scrutiny. (doesn't pay for atty though) “State laws that discriminate against individuals based on wealth are generally subject to rational basis scrutiny. But strict scrutiny will be used when a state law prohibits the exercise of a fundamental right based on an individual's wealth.”

Answer 7

**14A due process (on states) -procedural due process** requires that the government provide a meaningful opportunity to be heard before a **neutral decision-maker** when depriving persons of [life, liberty, or property](https://www.themisbar.com/learners/22890). A **judge must recuse** when (1) the judge has a **direct, personal, substantial, pecuniary interest** in it or (2) a **serious, objective risk of actual bias** exists. A failure to recuse under these circumstances violates due process. The USCT can review this action from a state court judge

Answer 8

Abstention doctrines are when a federal court will abstain from hearing a state claim Pullman: Resolution of unsettled state law in state court would moot federal constitutional issue Burford: Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy & provides timely & adequate judicial review Colorado River: Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources Younger: Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims Examples: P*ullman* abstention does not apply here since the state law is settled. *Burford* abstention does not apply because there is no indication that the state's health insurance scheme is complex. And *Colorado River* and *Younger* abstention do not apply since there is no pending state proceeding.

Answer 9

A plaintiff-taxpayer has standing to challenge government taxing and spending only under the First Amendment [establishment clause](https://www.themisbar.com/learners/22398)

Answer 10

The **enclave clause** gives Congress **plenary (i.e., exclusive) legislative power** over the **District of Columbia**. As a result, a federal statute that prohibits the District of Columbia from imposing an income tax on persons who work there but reside elsewhere is likely to be found constitutional.

Answer 11

* the C forbids Congress from taxing exports: * **exported goods**, which are goods leaving the U.S. and shipped to foreign countries *and* * **services and activities closely related** to the export process.

Answer 12

No, Congress must apportion or apply its tax and spend power mostly equally between states. It must also show that the tax/tariff etc. is reasonably related to raising revenue

Answer 13

Affirmative action is always subject to strict scrutiny. It may pass when: 1. minority set-asides for gov Ks TO remedy that specific gov's history of discrimination 2. race-based school bussing TO remedy past intentional segregation in pub schools 3. policies that consider race among several factors for college admissions TO promote diversity in student body for benefit of all

Answer 14

gov seizes property allegedly used in political activity PDP usually requires that gov provide: reas notice of seizure and meaningful opportunity to be heard in front of neutral decisionmaker EXCPETION: personal property may be seized w/o notice and hearing when: * serves a **significant government interest** * which would be **frustrated by** advance **notice of seizure** *and* * t **performed by** the **government**.

Answer 15

1. **private interest** affected by deprivation (homeowner no place to stay) 2. the **risk of erroneous deprivation** of that interest through current procedures and the probable **value of additional** or **substitute procedural safeguards** *and* 3. the **government's interest**, including the fiscal and administrative burdens that other safeguards would entail

Answer 16

A **taking** occurs when the government **destroys private property or property rights**—including possessory and nonpossessory interests in land and stuff (e.g., easements, liens).

Answer 17

Under the Fifth Amendment, a taking must be for a public use (e.g., fighting forest fires), and the government must justly compensate the owner for the property's fair market value.

Answer 18

- nominate principal officers - veto bills - prosecute/pardon federal offenses - communicate/negotiation with foreign governments - recognize foreign governments (congress cannot override) - enter executive agreements

Answer 19

no. It just reserves powers to the states that are not given to the federal government in the Constitution. “plenary” means “absolute,” and states don't have plenary power over there tax systems because they still must comply with the Consistution

Answer 20

**1A shields the media from liability** for **publishing information** that was ***unlawfully*** **obtained by a third party** if: * truthful * the information involves a **matter of public concern** *and* * the **publisher neither obtained it unlawfully** nor **knows who did**.

Answer 21

Conditions must meet all the following criteria: * clearly stated & unambiguous * reasonably related to federal interest in funded program * do not require states to engage in unconstitutional activity * do not unduly coerce states into accepting

Answer 22

Under the **supremacy clause**, the **federal government** is **immune** (i.e., exempt) from any **direct taxation** by the **states**—including taxes on its commercial activities. As a result, states may not impose taxes on the federal government, or any of its agencies or instrumentalities, without the express consent of Congress.

Answer 23

The **Twenty-first Amendment** grants **states broad authority to regulate** the use of **alcohol within their borders**. This authority permits a state to **prohibit** the **importation, transportation, or sale** of alcohol within the state and to delegate such authority to local governments (e.g., municipalities). HOWEVER, these must still comply with DCC, no law saying only in-state bowery can ship in state Establishemnt, no allowing church to veto bar within radius =P, no allowing lower drinking age for women free speech, no banning prices in alcohol ads

Answer 24

YES The Article I, section 4 **elections clause** grants **state legislatures** the power to enact laws that **regulate** the **time, place, and manner** of **congressional elections** (e.g., by establishing voting sites). But the clause also grants **Congress** the power to **override** those **state laws**by supplanting them **with federal law**. because… states are conducting federal elections

Answer 25

States have power to set electoral regulations. But must abide by 1A, 14A, etc: right to access the ballot. Level of scrutiny if that right burdened depends on severity and discrimination of burden on that. So: **rational basis review** – applies to **reasonable, nondiscriminatory burdens** and requires the **challenger** to prove that the regulation is **not rationally related** to a **legitimate state interest** *or* **strict scrutiny** – applies to **severe or discriminatory burdens** and requires the **state** to prove that its regulation is the **least restrictive means** of achieving a **compelling state interest**.

Answer 26

Yes. Right to vote does not mean to vote for literally anyone.

Answer 27

The Article II **appointments clause** grants the President the power to appoint principal federal officers with the Senate's advice and consent (i.e., approval). Senate approval not required for the President's appointment of inferior federal officers—i.e., federal officers who are supervised by principal federal officers. **Congress may delegate** the **appointment of inferior federal officers** to the **President alone (i.e., without Senate approval)**, the heads of executive-branch agencies, or the federal courts.

Answer 28

**states may impose reasonable educational standards** on public and private schools—including homeschooling—that: 1. require children to “attend school”—# of hours/year of instruction 2. minimum competency requirements for instructors—e.g., by requiring them to possess at least a high school diploma AND 3. define academic curriculum and content—e.g., by specifying the academic subjects that must be taught.

Answer 29

* Voter registration * Photo-ID requirement * Disallowing write-in voting

Answer 30

* Poll tax * Disallowing third-party candidacies * Property-ownership requirement

Answer 31

State electoral regulations must comply with the First Amendment freedom of association (applicable through the Fourteenth Amendment). The standard for reviewing such regulations depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny).

Answer 32

- channels - instrumentalities - anything that has an aggregate substantial effect

Answer 33

When determining if activities have a substantial effect on interstate commerce that warrants regulation by Congress, courts consider whether: - the activities are **economic in nature** (if so, a substantial effect is presumed) - the regulation has a **jurisdictional element** that limits its reach to activities with a direct connection to or effect on interstate commerce. (like saying “this affects nail polish that has been transported across state lines” - there are **express congressional findings** concerning the activities' effect on interstate commerce AND - there is a **strong link** between the regulated activities and that effect.

Answer 34

generally bars states (not the federal government) from discriminating against or otherwise unduly burdening interstate commerce.

Answer 35

**Legislative action**, absent narrow [exceptions](https://www.themisbar.com/learners/27891), must be: * approved by both houses of Congress (i.e., **bicameralism**) *and* * presented to the President for approval or disapproval (i.e., **presentment**).

Answer 36

Nope. That's a legislative veto and it's unC.

Answer 37

NO, because 1. this is discriminatory against non-CA businesses and those who want to buy etc so it invokes the =P clause. Rational basis bc no fundamental right or protected class HOWEVER: promoting in-state business by discroimating against other sates is not a legitimate state interest, so it will not even pass RBR Encouraging the growth of an industry within the state is a legitimate government interest. However, **promoting domestic business** (i.e., in-state business) by **discriminating against nonresident competitors** is ***not*** a **legitimate government interest**. Therefore, the statute is unconstitutional because it violates the equal protection clause.

Answer 38

A discriminatory state law—i.e., one that favors in-state over out-of-state interests—will be deemed **unconstitutional unless** the state proves that: * the law furthers an important or **legitimate noneconomic state interest** (e.g., health, safety) *and* * there is **no reasonable, nondiscriminatory alternative** to achieve that interest.

Answer 39

Article IV privileges and immunities clause prohibits states from discriminating against *citizens* of other states by denying them a [right of state citizenship](https://www.themisbar.com/learners/23839). Prohibits states from discriminating against citizens of other states [does not apply to corporations]

Answer 40

Congress **plenary (i.e., exclusive) authority** to enact laws that regulate **naturalization**—i.e., the process through which any noncitizen may obtain U.S. citizenship **(Choice C)**. But Congress must comply with other constitutional provisions when exercising this authority. This includes the [Fourteenth Amendment](https://www.themisbar.com/learners/21648), which **prohibits Congress** from **revoking** the **U.S. citizenship**of any U.S. citizen **without** his/her **consent unless** that citizenship was **obtained by fraud or in bad faith**.

Answer 41

14A **prohibits Congress** from **revoking** the **U.S. citizenship** of any U.S. citizen **without** his/her **consent unless** that citizenship was **obtained by fraud or in bad faith**.

Answer 42

NO All federal officers must be **appointed by the President** or in a manner otherwise consistent with the **Article II appointments clause**. Under this clause, **Congress cannot appoint** federal officers because Congress's participation in this executive function would violate the [separation of powers](https://www.themisbar.com/learners/14795) doctrine.

Answer 43

A **federal officer** is someone who (1) holds a **continuing public office** and (2) has **significant discretionary authority** to **administer or enforce** laws (i.e., executive powers).

Answer 44

The **Second Amendment**—applicable to states and municipalities through the Fourteenth Amendment due process clause

Answer 45

—generally prohibits government interference with an individual's **right to possess and use firearms** for a **traditionally lawful purpose** (e.g., self-defense in one's home). However, this right is not absolute . SCOTUS has stated that **certain government restrictions** on firearms are **permissible**, including: * banning unusually dangerous firearms (e.g., grenades) * **imposing conditions and qualifications** on **commercial sales of firearms** * forbidding the possession of firearms by felons and mentally ill individuals *and* * prohibiting the open carry of firearms in certain areas (e.g., schools) or concealed carry of firearms in public.

Answer 46

Every constitutional right applies to states and municipalities except (1) the Third Amendment ban on quartering soldiers in homes, (2) the Fifth Amendment requirement of a grand jury indictment for capital charges, AND (3) the Seventh Amendment guarantee of a civil jury trial.

Answer 47

The Article IV, section 3 **property clause** gives Congress complete power to dispose of and regulate federally owned land and territories. This clause includes the power to **regulate private property** that **affects federal public lands** when such regulation is **necessary to protect those lands**—e.g., by prohibiting the erection of structures that completely enclose federally owned land.

Answer 48

Yes, the C gives them that power, but with limitations: * the [separation-of-powers doctrine](https://www.themisbar.com/learners/14795) (e.g., usurping judicial power to decide cases) *or* * **other constitutional provisions** (e.g., the Article I suspension clause).

Answer 49

A person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court UNLESS Congress has explicitly suspended the writ of habeas corpus. This clause **applies to noncitizens** classified and detained as enemy combatants **in territories** over which the **United States has sovereign control (like Puerto Rico)** Article 1, Section 9 does generally prohibit the suspension of the writ of habeas corpus (presumably with exceptions, cause wtf)

Answer 50

The Article III [**exceptions clause**](https://www.themisbar.com/learners/25616) gives **Congress power** to **expand, regulate, or make exceptions** to USCR's appellate jurisdiction.

Answer 51

The **U.S. Supreme Court** (SCOTUS) has [appellate jurisdiction](https://www.themisbar.com/learners/25237) to review a final judgment of lower federal courts and the highest state courts when the judgment turns on federal law.

Answer 52

The P, regardless of what law she is challenging

Answer 53

YES. can tax fed's affiliates (like ppl employed by or doing business with fed gov) UNLESS - Congress granted the affiliate tax immunity - the tax discriminated against the fed gov or affiliate (no taxing only fed contractors) - tax substantially interferes with the affiliate's federal purpose of duties. When high tax burden make sit impossible to accomplish fed task

Answer 54

uniformity requirement of the taxing and spending clause requires that indirect taxes (e.g., sales taxes) imposed by the *federal* government on goods be uniformly applied in every state where the taxed goods are found. Does not apply to indirect taxes imposed by a *state* government.

Answer 55

just compensation is **not required** when the government destroys private property in response to a **public peril** ## Footnote **Like a crop parasite or making an urban fire break during a fire**

Answer 56

**Tenth Amendment**, the federal government cannot impose federal taxes *directly* on states that unduly interfere with their essential functions. But the Tenth Amendment **does not prohibit** the federal government from imposing **federal taxes on states** ***indirectly*** through their **affiliates**—i.e., persons doing business with state governments—so long as the taxes are **nondiscriminatory**

Answer 57

Lemon test: * the law has a secular purpose * its primary effect does not advance or inhibit religion *and* * there is no excessive government entanglement with religion. BUT strict scrutiny can be used instead when a law expressly impacts a religion (like by exempting churches, not just all nonprofits, from sales tax).

Answer 58

prohibits the government from questioning whether an individual's or organization's religious beliefs are reasonable or true in order to get 1A protection

Answer 59

This allows Congress to impose an indirect tax (e.g., sales tax) so long as the tax is: * **imposed identically** in every state where the taxed goods are found (i.e., geographically uniform) *and* * **reasonably related** to **revenue production** (i.e., no provision extraneous to tax purposes).

Answer 60

NO. Article I, Section 8 **taxing and spending clause** gives Congress plenary (i.e., exclusive) power to raise federal revenue by imposing and collecting taxes.

Answer 61

When it is a direct tax on persons or property (not an indirect tax on sales etc.)

Answer 62

The necessary and proper clause allows Congress to enact legislation reasonably necessary to carry out its [enumerated powers](https://www.themisbar.com/learners/23713)—e.g., the power to regulate and dispose of federally owned lands (i.e., the property power). But this power does not permit Congress to regulate state or personal property. And the taxing and spending clause only allows Congress to tax and spend (not pass other regulations) for the general welfare.

Answer 63

Disciplinary dismissal: notification of reasons, evidence presented and opportunity to be heard before dismissal. HOWEVER if dismissed for **academic reasons**, a public college or university may do so **without** providing him/her a meaningful **opportunity to be heard**. (think of it like disciplinary is a criminal-esque proceeding, so you get more rights) Because decisions based on a student's academic performance are not adversarial in nature and therefore do not require the tools of judicial decision-making (e.g., presentation of evidence)

Answer 64

NO. Congress has exclusive tax and spend power. President cannot refuse to spend funds as directed even when they involve the military and he's trying to invoke his Commander in Chief power. Congress still wins.

Answer 65

Adequate and independent state grounds USCT will not hear an appeal from a state decision if the state decision rested on Adequate and Independent state grounds. adequate: law can be fully decided by state law, federal interp would not change the outcome independent: decision did not depend on an interp of federal law

Answer 66

Business assignee! An assignee can get standing via the assignor--assumes all of their contractual rights. Can sue to enforce assignor's rights SO LONG AS: the assignment was made for **ordinary business purposes** (e.g., debt collection) AND **in good faith**.

Answer 67

a **state or local action** (e.g., county ordinance) that **discriminates against interstate commerce**—i.e., an action that protects in-state over out-of-state economic interests—is **invalid unless**: * it furthers a **legitimate, noneconomic** state or local **interest** (e.g., protecting natural resources) *and* * **no nondiscriminatory alternative** is available to achieve this interest.

Answer 68

The [contracts clause](https://www.themisbar.com/learners/24561) of Article I restricts the ability of *state* legislatures to impair existing contracts. But this clause does not apply to Congress or *federal* statutes that spend federal revenue

Answer 69

The [takings clause](https://www.themisbar.com/learners/23595) of the Fifth Amendment prohibits the government from taking private property for public use without just compensation.

Answer 70

The Article IV P&I clause which prevents states from discriminating against citizens of other states

Answer 71

the government **substantially restricts** the use of private property—e.g., a moratorium on construction on private property. Is a restriction substantial? Totality test: - balsnce of public interest in the reg vs. burden on owner's property rights, like alienation - the **economic impact** on the property—e.g., the change in the property's fair market value caused by the regulation—*and* - the interference with the owner's **reasonable investment-backed expectations** regarding the use of the property

Answer 72

**direct federal tax** (e.g., a tax on real property) only if it is: * **apportioned proportionately** among the states based on each state's population *and* * **reasonably related** to **revenue production** (i.e., no provision extraneous to tax purposes).

Answer 73

only if the **dispute presents** a **real and immediate danger** to a party's interests. Otherwise, a declaratory judgment would amount to an **impermissible advisory opinion**—i.e., a judicial opinion that determines the validity of a law *without* resolving an actual dispute. Ex: P wants DJ that a state law banning signs near polling places is inC. However, statute presents no real and immediate danger to volunteer. So, no interest at state to satisfy A3(III)'s case and controversies requirement.

Answer 74

Prior restraints are laws that forbid certain speech before it occurs. Must pass strict scrutiny (necessary, narrowly tailored to achieve compelling gov interest

Answer 75

declaratory judgment can, among other things, declare a law unC before it is ever enforced. To get one without it being enforced, though, a P must show: the dispute presents a real and immediate danger to a party's interests. Otherwise, a declaratory judgment would amount to an impermissible advisory opinion on a state law. MUST BE A CASE/CONTROVERSY

Answer 76

YES. Article I **necessary and proper clause** gives **Congress** the power to **enact laws** that are reasonably appropriate to **carry out the President's express powers**—e.g., providing funding for conservation activities to carry into effect a treaty.

Answer 77

No. 1A shields the media from liability for publishing lawfully obtained private facts and other truthful information that involves a matter of public concern.

Answer 78

Yes, because FedQ covers questions that “arise under” a US treaty, and since a US treaty is what makes this actionable, it counts.

Answer 79

NO. **sovereign immunity prohibits anyone** from **suing the federal government** in state or federal court **unless Congress consents**—i.e., the suit is authorized by federal statute. This includes criminal charges. This immunity extends to suits against [federal officers](https://www.themisbar.com/learners/26966) (e.g., federal marshals) for actions taken in their official capacities. That is because a suit against a federal officer acting in his/her official capacity is treated as a suit against the federal government itself.

Answer 80

YES Congress has plenary power over non-citizens. Non-citizens have no right to enter the United States and may be refused entry for reasons such as their political beliefs. If the foreigner was a **resident** non-citizen threatened with deportation rather than a non-citizen denied entry into the country at all, he would have been subject to deportation, but only after notice and a hearing.

Answer 81

No. Cannot mandate that people engage in commerce.

Answer 82

No, just the lower federal courts

Answer 83

no, it is for citizens, which does not include corporations as plaintiffs

Answer 84

NO narrowly tailored to serve a substantial governmental interest this does not require the least restrictive means

Answer 85

content-neutral, narrowly tailored to serve a significant governmental interest, and it must leave open ample alternative channels for communication of the information.

Answer 86

Yes. USCT may make the determination if AISD existed

Answer 87

COFID obscenity, incitement to violence fighting words, defamation, or commercial speech.

Answer 88

Speech that is **directed** to incite or produce **imminent** lawless action and that is **likely** to produce such action

Answer 89

The Due Process Clause contains a substantive component that guarantees certain fundamental rights, including the right to travel among the states. This includes the right to enter one state and leave another and to be treated as a welcome visitor. Because this law impinges on a fundamental right, it is subject to strict scrutiny.

Answer 90

Congress cannot expand or limit this jurisdiction, but it can grant concurrent original jurisdiction to lower federal courts.