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Con Law > Flash Cards for Bar Courses - Con Law > Flashcards

Flash Cards for Bar Courses - Con Law

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1
Q

Advisory Opinions

A

Decisions that lack (1) an actual dispute between adverse parties or (2) any legally binding effect on parties.

Fed Cts cannot issue advisory opinions

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2
Q

Ripeness

A

Pre enforcement reviews of law are generally not ripe. P can est ripeness b4 a law is enforced by showing
(1) issue are fit for a judicial decision, and
(2) P would suffer substantial hardship in the absence of review

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3
Q

Mootness

A

The P needds to be suffering from an ongoing injury

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4
Q

Standing

A

3 major components : Injury, Causation, and Redressability

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5
Q

Standing to assert for others

A

If (1) it is difficult for the 3rd party to assert their own rights or (2) a close relationship exsists between the claimant and the 3rd party

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6
Q

Exceptions to Soverign immunity

A

-Express waiver
-implicit consent/structural waiver
-Actions against Local Gov.
- Suits by other states or the fed govt
-Bankruptcy
-Certain Actions agaist state officers
-Congress removes immunity

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7
Q

Necesary and Proper clause

A

Congress can exercise powers enumerated in the constitution plus any powers necessary and proper to carry out the enumerated powers as long as it does not violatre another provision of the constitution

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8
Q

Taxing and Spending Power

A

Congress has the power to tax and spenf to provide for the general welfare. May be for ANY public purpose not prohibited by the constituion. CONGRESS CANNOT DIRECTLY REGULATRE GENERAL WELFARE

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9
Q

Spending Power Conditions

A

Congress can impose conditions on the grant of money to state or local govt. Conditions must be clealy stated, relate to teh purpsoe of the program and not unduely coerciver and do not violate the constitution

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10
Q

Taxing Power

A

fed taxes will be upheld of they ear some reasonable relationship to revenue production or to promoting general welfare

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11
Q

Commerce Power

A

Congress has the power to regulkate all foreign and interstate commerce (also with indian tribes). The regulation must either
-regulate channels (roads, watrerways, telephone lines, internet)
-Regualte instrumentalities (planes, trains, cars)
-Regulate activities that have a substantial effect on interestate commerce

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12
Q

Regulation of “Intrastate” activities under CC

A

Congress can regulate intrasate activities and it will be upheld if the reg can think of a rational baiss on which congress can condlude that the activity in the aggregae substantial;ly affects interstate commerce. (THE ACTIVITY HAS TO BE COMMERICAL) (ACTIVITY MUST BE ECONOMIC AND NOT NONECONOMIC)
-Private discrimination– if it has a substantial affect on interstate commerce; public discrim is reg under the 14th amedment

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13
Q

Congress’ delegation of power

A

Can delegate rulemaking or regulatrory authoirty to the executive or judicvial brankc as long as “intelligible standars” are set and the power isn’t something that is uniquely confined to Congress
-Congress CAN NOT appont members of a body with admin or enforcement power

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14
Q

Presidential Implied Powers

A

-Where Pres. acts with express or implied authority of congress – pres. authotuity is at its MAX and actions are likely valid
-Wherer Pres. acts where Congress is Silent – Ct will conisider the circumstances and any relevant history and the act is UNLIKELY to be upheld if it USURPS the power of anotehr govt branch or prevents anotehr govt bracnh from carrying out its tasks
-If Pres. acts agaist express will of Congress AND congress has authority to act – ACTION IS LIKELY INVALID

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15
Q

Appointment powers

A

Pres. can appoint with approval of congress BUT congress CANNOT appoint by itself

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16
Q

Veto

A

Pres has power to veto and congress can overcome with 2/3 vote of each house. Pres has 10 days to veto, if Congress is NOT in session – auto veto; if COngress is IN session– bill becomes law

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17
Q

PRes. Treaty Power

A

Pres has power to enter into treaties with consent of 2/3 vote of the Senate

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18
Q

Treaties

A

Treaties > State law
Treats v. Fed law – last in time wins
Treaties < constition

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19
Q

Executive Agreements

A

Used for the same purposes as treaties buy DO NOT require the consetn of Senate
Exec agreemetns > statelaw
Exec agreemetn < fed law

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20
Q

Presidential Impeachment

A

Pres can be impeached with a majority vote in the House and REMOVED and CONVICTED with a 2/3 vote in the Senate

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21
Q

State Powers

A

10th Amend gives states all powers not granted to the fed govt to the states or the ppl

-General Police Powers

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22
Q

14th amendment

A

Congress may restrict states from discrimnating in violation of equal protection or depriving rights protected by due process

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23
Q

Supremacy Clause

A

Fed law may supersede or preempot state (or local) laws.

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24
Q

Express Preemption

A

Fed law expressly say that the statees may not adopt laws concerning the subject matter of teh federal legislation

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25
Q

Implied Preemption

A

Conflict between state and fed law req – if state law conflicts with fed law that it would be impossible to comply with both, the state law will be preempted

State prevents achieveement of fed objective – if state or local law prevents achievement of fed objective, it will be preempted

Field preemption – fed law may impliedly occupoy the entire fireld thus barring any state or laocal law even if the state or local law is nonconflicting

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26
Q

Privledges and Immunities clause IV Amendment

A

Art. IV prohibits discrimination by a state agaisnt nonresidents

-Corp and aliens are not protected
-Only important commercial activities and fundamental rights protected
-importatn state interest req. – will be INVALID unless the law is necessary to achide an important govt. pupose and there are NO LESS restrictve means available

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27
Q

Privledges of National Citizenship (14th amend.)

A

States may not deny their citizens the privledges or immunites of national citizenship. (Corps not protected)
-right to vote
-right to interstaet travel

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28
Q

Dormant CC

A

even where congress has not acted, the CC restricts state reg. of interstaet commerce; states may not favor local econ interest or unduly burden interstae commerce

  • where not discriminatory; state regulation is valid if legitimate state interest is greater than the burden on interstate commerce.
    -discrim may be valid if it is NECESSARY to achieve an imporatnat noneconomic state interest and tehre are no reasonable nondiscriminator alternatives available (Burden must NOT otweigh the legitmate local interest)
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29
Q

Exceptions to DCC

A
  • Where congress permits state regulations
    -State is a “market participant”
    -favoring govt. performing traditional govt. functions
30
Q

State action req

A

B/c constitution appies only to govtt action, state action must be inlvoded in actions of seemingly private individuals
-perform exclusive public functions - activities that are so traditionally the exclusive prerogative of teh stae are state action no matter who performs the.
or
-Have significant state involvement - where a state affirmative facilitates, encourages, or authorizes acts of discrimination by its citixens or wherre there is sufficient entwinement between the state and the private party

31
Q

Levels of Scrutiny

A

Rational Basis - reg. does not affect fundamental rights or involve suspect or quasi suspect classifications (most laws)
-law is upheld if it is rationally related to a legitimate govt pupose
-Buden of proof - person challenging law has the burden

intermediate Scrutiny - regulations involvingt quasi sustpect classifications (gender and legitrimacy)
-law is upheld if it is substantially realted to an important govt. purpose
Burden of proof- usually on the govt

Strict Scrutiny (Max Scrutiny) - reg. affect fundatmental rights (voting, interstae travel) or involbing sustpect classifications (race, national orgin, and alienage)
-law is upheld if it is necessary to achieve a compelling governmenal purpose
-Burden of proof - on the govt.

32
Q

Due Process

A

Fed - 5th amendment
State - 14th amendment

provides that a person has a right to a fair process when the govt. deprives the person of life, libery, or property

Are subject to waiver

33
Q

Liberty

A

Deprivation of libery incvludes:
-loss of significant freedom of action
-denial of a freedom provided by the consitution or a statute

34
Q

Property

A

Includes personal and real property and also govt. benefits which is an entitlement under state or fed law

35
Q

Type of Due process req

A

-Notice (typically a pre-deprivation hearing, unless it would be impractivable)
-opportuniuty to be heard,, AND
-neutral decision maker (no bias)

36
Q

Substantive Due Process

A

Guarantees that laws will be reasonable and not arbitrary

Applicable Standards:
-When a fundamental right is limited, the law is evaluated under strict scrutiny and all others are rational basis standard

Fundamental Rights
-All 1st amend rights
-right to interstate travel
-right to equal treatment in a new stae
-privacy realted rights
-voting
-Privacy related rights - (marriage, procreation, contraception, and childrearing)

37
Q

Rigfht of privacy

A

Includes:
-marriage
-procrateion
-use of contraceptives
-Rights of parents
-keeping extended family together (related)
-obscene reading material

38
Q

Equal Protection

A

Arises when the govt treats people differently. Is limited to state action. Not federal (the due process clause covers fed)

39
Q

Equal Protection Standards

A
  • Fundamental Right or suspect classification - strict scrutiny
    -Quasi-suspect classifcation (gender) - intermediate scrutiny
  • No fundamental right or suspect or quasi classification - rational basis

For strict or intermediate there must be intent on part of govt to discrimnate. Intent shown by:
-law that is discriminatory on its face
-Discriminatory applcation of a facially neutral law, or
-facidally neutral law with disparate impace on a protected class of people (such as minorities)

40
Q

Suspect Classifications

A

-Race and national origin
-alienage classifications (state only not fed) - except for participation in state government (then use rational basis)
——Does not cover undocumented aliens (use rational basis); undocument kids - cts use rational and intermediate scrutiny.

41
Q

Quasi-Suspect Classifications

A

-Gender classificiations
-Marital v. Nonmarital Classifications of Children

42
Q

Examples of all other classifications (that use rational basis)

A
  • ages
    -disability
    -wealth classifications

-Govt’s interest cannot be only b/c they dislike the group

43
Q

Taking Clause

A

5th amend provides that private property can only be taken for public use and the govt must pay just compensation. (applies to the states via the 14th amend).

Covered Property: includes personal property, real property, certain intangigles (interest on attny accounts and trade secrets, but not welfare)

44
Q

Takings

A

A taking of a person’s property of
(1) permenant or regular physical occupation of a person’s property by the government

or (2) totally depriving the land of economic value.

-temporary occupations can be a taking depending on degree of invasion, duration, govt’s intention, forseeability of results, charccter of prop., and interfereence with use of property

45
Q

Emergency Exception

A

A taking is less likely to be found if it is made pursuance to a public emergency or war/

46
Q

Decreasing Econ value – Balancing Test

A

Regs that merely decrease the value of property are not a taking. Ct will consider (1) govt interest; (2) dimunition of value to owner; and (3) whether the reg substantially interferes with distinct, investment-backed expectatons of the owner.

47
Q

Contract Clause

A

Limits the ability of states and local govts to enact laws that retroactively impair K rights. (Not applicable to Fed govt.)
-Private Ks - intermediate scrutiny
-public Ks - heightened scrutiny

48
Q

Ex Post Facto Laws

A

State or Fed govt cannot pass law that retroactively alters criminal offenses in a substantially prejudical matter for the purpose of punishing a person for some past activity.

49
Q

Bills of attainder

A

Are acts that inlfict punisgment on individuals w/o a judicial trial AND are prohibited by both state and Fed govts

50
Q

First amendment

A

Prohibits congress form abridging the freedoms of speech and press, or interfereing with the right of assembly, or from establishing a religion or interfering with free exercise of religion. Applicable to the states through the 14th amend.

51
Q

Speech

A

Words, symbols, and expressive conduct that conevys a messgae and is reasonably likely to be percieved as conveying a message

52
Q

Incitement

A

(1) intended to produce imminent lawless action and
(2) likely to produce such action

53
Q

Fighting Words

A

Words taht are likely to incite physical retaliation. Words that are merely annoying won’t do.
-True threats - intended to convet serious threat of bodily harm

54
Q

Obscenity

A

Not protected speech
speech is obsecene if it describes or depicts sexual conduct specified by statute that, takedn as a whole by the avg person:
-appeaks to the prudent interest in sec, using a contemporyr community stanard
-is patently offensice under contemporar community standards
-lacks serioius value using national, reasonable person standard

55
Q

Child Pornography

A

Sale or distribution of visual depections of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children

56
Q

Defamaotry Speech

A

Can be subject to tort law
-if the statement is about a public official, public figure, or involves a matter of public concern, the 1st amend requires P to prove elements of defamation plus falsity and some degree of fault (actual malice) to recover
-Actual Malice– can be shown by (1) knowledge that it was false OR (2) reckless disregard as to truth or falsity

57
Q

Public officials

A

ppl (1) holding or running for elective office (at any level), and (2) public employees in positions of public imporatance

58
Q

Public figures

A

ppl who have (1) assumed roles of prominance in society, (2) achieved pervasive fame and novelty, or (3) thrust themselves into partivular public controversies to ibfluence their resolution

59
Q

Matters of public concern

A

Issues important to societ or democracy.

60
Q

Private Figure suing on matter of public concern

A

If P is a private figure and defamatory statemetn involves a matter of public concern, P can only recover actual damages if P shows only negligence and punitive damages if actual malice

61
Q

Commerical speecth

A

Not protected if it is (1) false, (2) misleading, OR (3) about illegal products or serivces

62
Q

Content based regulations

A

subject to strict scrutiny and presumptively unconstitutional. It is content based if it restricts speech based on subject matter or viewpont of speech

63
Q

Content Neutral

A

Restrictions that are both subject matter neutral and viewpoint neutral - intermediate scrutiny

64
Q

Speech Restrictions on Govt. Property

A

Public Forums - (Streets, sidewalks, public parks) - subject to strict scrutiny, but if content neutral then intermediate scrutiny
Limited Public Forums and Nonpublic Forums - (school gym or govt property not historically open for speech and assembly) - regulations are valid if view point neutral and reasonably related to legitimate governemtn purpose; if viewpoint bases, it will be strict scrutiny
-Public Schools - student’s speech cannot be censored on camplus absent evidence of substantial disruption – speech promoting illegal drugs does not require showing of disruption
-Student speech off campus-school limited to restricting speech to prevent cheating, bullying, threats, and other speech where safety interest outweigh interest of student
-Speech in Public Employement - strict scrutiny

65
Q

Overbroad Regulatiojn

A

Regulation or speech related conduct will be invalidated as overbroad if it punishes substantiallu more speech than is necessary

66
Q

Prior Restraints

A

Prior restraints are court orders or administrative systems that prevent speech before it occurs. Ask whether there is some societeal harm that justifies the restraint

67
Q

Religion Laws

A

subject to strict scrutiny

68
Q

Establishment Clause

A

prohibits govt. sponsorship of relgion, meaning the govt cannot aid or formally est. a religion

Govt must remail neutral with respect to religion, neither favoring nor disfavoring it.

69
Q

Emminent Domain

A

Govt. may take private land for any public use, broadly construed, including economic development.

70
Q

11th amendment (suits against state governments0

A

the 11th amend. prohibits fed cts from hearing most private actions against state governments.

However

Private parties may bring actions to enjoin an officer from conduct that violates the consistution or federal law

Con Law (1 decks)

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