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2 - Constitutional Law > Full Set > Flashcards

Full Set Flashcards

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1
Q

Judicial Power originates from

A

Article III of the constitution (diversity jurisdiction & federal question)

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2
Q

exception to article III judicial power

A

created by 11th amendment - state sovereign immunity (can’t sue a state for $ damages in state or fed court unless the state consents or unless to enforce 14th Am. individual rights)

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3
Q

scope of 11 a

A

only protects states and state agencies NOT local gov’ts

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4
Q

whom can you sue for 11a?

A

state officer, but only for injunction. $ must sue personally

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5
Q

original jurisdiction of SCOTUS

A

controversies between states

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6
Q

establishing SCOTUS appellate jurisdiction

A
  1. certiori (discretionary, only fed court that has appellate discretion)
  2. direct appeal
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7
Q

limitations on SCOTUS appellate jurisdiction

A

Congress can make exceptions

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8
Q

adequate and independent state grounds (AISG) rules for appellate jurisdiction

A

SCOTUS can review state court only if turns on federal grounds (adequate - when party claiming fed right wins anyway can’t appeal)

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9
Q

standing elements

A
  1. injury
  2. causation
  3. redressability
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10
Q

injury standing requirement

A

concrete & orgs can have standing if members have standing

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11
Q

timeliness requirement

A

meaning the claim must be ripe and not moot, but controversies capable of repetition, yet evading review, are not moot, even though they look like it, e.g., abortions

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12
Q

advisory opinions

A

fed courts can’t issue them

can’t rule on constitutionality of proposed leg

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13
Q

3 wrong answers for congress having the power to pass leg

A
  1. promoting general welfare is not a power
  2. no general police power
  3. necessary & power no a free-standing power, only works in conjunction with another power
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14
Q

3 biggest Congressional powers for MBE

A
  1. taxing
  2. spending
  3. commerce

when in doubt match the action to the congressional right

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15
Q

Commerce Power

A
  1. interstate commerce (highways, etc)
  2. instrumentalities (cars, etc.)
  3. having substantial effect on interstate commerce in aggregate
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16
Q

Taxing Power & Spending Power

A

are different powers

taxing cl is the right answer whenever Congress imposes a tax even when the tax is actually used to prohibit the good or activity in question & MUST be rationally related to raising revenue

spending power includes spending for general welfare to accomplish things it couldn’t do by direct regulation

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17
Q

Anti-commandeering limitations on taxing power & spending power

A

can’t force state to adopt/enforce fed reg, but CAN bribe states through spending & can enforce with fed officers

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18
Q

Congress & the military

A

only Congress can declare ware

maintains army & navy

provides for discipline within the military & btw military & enemy, but cannot provide for civilian trials in military

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19
Q

when is executive’s power the greatest

A

when in statute, which they generally are

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20
Q

exec powers not subject to statutory control

A

pardon power

veto power

appointment & removal of exec officers

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21
Q

Congress exec

A

impeachment

impoundment (prez has no power to impound funds when statute unambiguously requires that funds be spent)

legislative veto is unconstitutional (needs to write whole new law)

exec absolute immunity for official acts & doesn’t have to reveal confidential communications w/ advisers unless specifically demonstrated need

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22
Q

Immunity for judges

A

all judicial acts

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23
Q

legislator protections

A

Speech or Debate clause - senators, congressmen and aids can’t be prosecuted for official actions

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24
Q

Art IV Comity Clause

A

forbids discrimination against out-of-state individuals, but not corporations

usually involves employment

no legal requirement of residency for private employment, but can for public

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25
Q

Dormant Commerce Clause

A

ONLY APPLIES ABSENT FED REG & if Congress consents, no problem

protects out of state corporations

in absence of federal regulation, state regulation of commerce is valid so long as: (balancing)

  1. no discrim against out of state interests
  2. reg does not unduly burden interstate commerce
  3. reg does not apply to wholly extraterritorial activity
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26
Q

DCC’s requirement that there by no discrimination against out of state interests

A

e.g., taxing out-of-state @ higher rate, requiring manufacture instate

exception - can discriminate with state is buying or selling goods or services, e.g., sale of cement produced by state-owned plant only to instate purchasers

can always subsidize only its own citizens

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27
Q

DCC’s nondiscriminatory taxation requirement (elements for validity)

A
  1. substantial nexus btw taxing state & property/activity taxed
  2. fair apportionment of tax liability among states
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28
Q

Ad Valorem Property Taxes (value-based personal property taxes)

A

on commodities if they are in the state for a business purpose on tax day

on instrumentalities if they are used within that state as an instrumentality

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29
Q

Preempting the Field

A

Congress determines there shouldn’t be state law of any sort in particular field - RARE

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30
Q

Full Faith & Credit

A

states have to give ff&c to judgements rendered by other states’ courts, so long as the rendering court had jurisdiction to rend a final judgement on the merits

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31
Q

Due Process Test

A
  1. nature of liberty at stake
  2. value of protecting that interest
  3. gov’t’s interest in efficiency and cost
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32
Q

Due Process Hearing Timing

A

before deprivation - terminating welfare benefits & non-emergency revocations of drivers’ licenses; public employees unless significant reason not to keep employee on job

after if prompt & fair - terminating disability benefits & dismissing students for academic reasons

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33
Q

Due Process & Equal Protection SoR

A
  1. strict scrutiny
  2. intermediate scrutiny
  3. rational basis
34
Q

Strict Scrutiny test

A

necessary for a compelling interest, least restrictive means

burden on gov’t

applies with suspect classification

applies with fundamental rights

35
Q

Intermediate Scrutiny test

A

substantially related to important gov’t interest

applies to classifications based on legitimacy & gender

36
Q

Rational Basis test

A

rationally related to legitimate state interest

burden on challenger

37
Q

Substative Due Process vs. Equal Protection

A

fundamental right to everyone - DP

violates fundamental right to only some - EPC

38
Q

Fundament Rights (lists)

A

travel
voting & ballot access
privacy (marriage, contraception, sexual intimacy, abortion, parental rights, family restrictions, obscene material, refusal of medical treatment)

39
Q

Interstate Travel fundamental right

A

can have reasonable residency for voting & welfare benefits

30-90 days
1yr too long for everything except instate tuition & divorce

40
Q

Voting fundamental right

A

18+
poll taxes
short-term res are permitted
Congress controls residency requirements for prez elections (states get the rest)

41
Q

Abortion fundamental privacy right

A

states can regulate, but can’t place undo burden

allowed: informed consent requirements, 24hr waiting periods, parental notifications

not allowed: parental consent, spousal consent

not required: gov’t financing abortion

42
Q

Privileges & Immunities clause of 14a

A

really no wind in those sales, but

P&I Cl of Art IV (comity clause) has a narrow but important meaning. it prohibits serious discrimination against out-of-state individuals, especially in the context of access to the private job market

43
Q

5th Am

A

Let’s us apply EPC concepts to fed gov’t, just read right into the Due Process Clause of 5a (they’re both enumerated in 14)

44
Q

Race as a suspect class test

A

Discriminatory purpose required (disparate impact is insufficient

45
Q

When is affirmative action valid?

A

When it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action.

In preferential admissions to colleges and universities, IF necessary to achieve a diverse student body & diversity MUST be essential to education & must be holistic.

Quotas are not allowed.

Separate tracks aren’t allowed.

Not allowed for secondary education.

46
Q

U.S. citizenship as suspect class

A

generally require compelling gov’t interest (SS), except in 2:

  1. Feds - citizenship & naturalization, valid UNLESS arbitrary and unreasonable
  2. state & local participation in gov’t functions - valid
47
Q

Racial Gerrymandering

A

dilution - invalid if done w/ discriminatory purpose

VRA - requires it for majority minority districts

race can’t be predominant reason for drawin

48
Q

political gerrymandering

A

in theory can be struck down, but never is

49
Q

Takings element

A

public use - rationally related to a conceivable public purpsoe

FMV @ time of taking

50
Q

taking vs regulation

A

taking requires compensation

the threshold question is whether there is physical occupation of the land

51
Q

regulatory taking

A

zoning regulation is a taking when no economically valuable use

52
Q

zoning elements

A

advances legitimate interests and does not extinguish a fundamental attribute of ownership

53
Q

Bill of Attainder

A

legislative punishment imposed without judicial trial, unconstitutional

54
Q

Ex Post Facto Laws

A

unconstitutional to expand criminal liability retroactively, either by creating a new crime that applies to past conduct or increasing the penalty for past conduct

55
Q

Contract Clause

A

bars states from legislative impairment of existing contracts unless there is an overriding need (something like an emergency)

56
Q

Establishment - Lemon Test

A
  1. secular purpose?
  2. primary effect not advancing or inhibiting religion
  3. excessive entanglement with religion?
57
Q

Endorsement

A

SCOTUS is worried about coercion

58
Q

Neutral laws & religion

A

neutral, generally applicable laws can be enforced

excepted the Ministerial Exception (broad)

59
Q

Content-based regulations SoR

A

SS, usu. struck down

60
Q

Expressive conduct test

A
  1. further important interest
  2. interest is unrelated to suppression of expression
  3. burden on expression is no greater than necessary

“if gov’t is trying to suppress a message, then the law will be struck down; if the gov’t is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld.”

61
Q

Vagueness standard

A

give no clear notice of what is prohibited & thus violate due process

62
Q

Overbreadth

A

burden substantially more speech than is necessary to protect a compelling interest and thus violate 1st am.

63
Q

Public Forum restriction requirements

A

Time, Place, Manner

  1. content neutral on its face & as applied (no exec discretion allowed)
  2. alternative channels of communication must be left open
  3. narrowly serve a significant state interest

compelling interest not required

64
Q

Nonpublic Forum restriction requirements

A

any reasonable regulation of speech

viewpoint discrimination is invalid
can’t disrupt functions of gov’t

65
Q

Limited Public Forum restriction requirements

A

only time, place, manner

gov’t has chosen to open this place to all comers

66
Q

Obscenity Rule of S

A

content restriction

Sex
Society Sick
Standards
Serious value

minors can get lower standard, child porn, gov’t can regulate zoning for adult things

67
Q

Incitement

A

content restriction - unprotected if to incite immediate violence

68
Q

Fighting Words

A

content restriction - immediate breach of the peace, aimed at one person, all of them are vague or overbroad on MBE

69
Q

Defamation

A

content restriction - see tort

70
Q

Commercial Speech

A

content restriction - struck so long as true & informational

must directly advance a substantial gov’t interest and be narrowly tailored to that interest

misleading may be prohibited

71
Q

regulation of media

A

no special privileges, except broadcasters

72
Q

freedom of association

A

some loyalty oaths will be struck

states cannot require open primaries

73
Q

speech by gov’t employees

A

can’t be hired/fired based on party/philosophy only for cause

74
Q

gov’t speech

A

can have viewpoint

75
Q

contributions - campaign finance

A

can be regulated, if limits are not unreasonably low

76
Q

independent expenditures vs coordinated expenditures - campaign finance

A

independent expenditures - can’t; applies to corps, unions, etc.

coordinated expenditures - can, just a disguised contribution

77
Q

equalization of campaign resources

A

no!

78
Q

obscenity sexy

A

erotic, appeal to purient interest

79
Q

obscenity society sick

A

patently offensive to average person (can self-define community)

80
Q

obscenity standards

A

not vague or overbroad

81
Q

obscenity serious value

A

lack it as determined by the court - NATIONAL STANDARD

82
Q

order of power of checks & balances

A

Constitution > federal statute/treaty > prez power > states

2 - Constitutional Law (2 decks)

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