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Purple Flashcards

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1
Q

Two jurisdictions in which a case can go to the Supreme Court:

A
  1. Original: can go directly and Congress cannot effect.

2. Appellate: may be effected by congress

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2
Q

Federal courts can only hear a matter if:

A

There is case and controversy

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3
Q

When must a case be brought?

A

Must be when it is ripe but before it’s moot

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4
Q

What is ripeness?

A

The issues are fit for judicial decision and P would suffer substantial hardship in the absence of review.

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5
Q

What is mootness?

A

A live controversy exists and there is ongoing injury.

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6
Q

3 requirements for P to bring a case:

A
  1. Good standing/concrete direct personal stake
  2. Causation
  3. Redressability
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7
Q

What is sovereign immunity?

A

You cannot sue your own or another state.

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8
Q

What are the exceptions to sovereign immunity?

A
  1. State consents to be sued
  2. You can sue local governments
  3. States can sue other states
  4. You can sue state officials
  5. Congress abrogates
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9
Q

When will the SC not exercise discretion over a state court judgment?

A

If it is based on adequate (fully dispositive) and independent grounds (not federal)

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10
Q

Does Congress have general police powers?

A

No; only over DC, federal lands, based, and Indian reservations.

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11
Q

What is the necessary and proper clause?

A

Congress can use any rational constitutional means to exercise enumerated power.

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12
Q

What is the taxing and spending power?

A

Congress can tax and spend to promote general welfare.

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13
Q

4 requirements for Congress to use spending power to impose conditions on state/local government:

A
  1. Clearly stated
  2. Relate to the purpose of the program
  3. Are not unduly coercive.
  4. Does not violate the constitution
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14
Q

What is commerce power?

A

Congress can regulate commerce with foreign nations, tribes, and interstate commerce.

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15
Q

3 forms of commerce affected by federal law regulating intrastate commerce:

A
  1. Channels
  2. Instrumentalities
  3. Activities that have a substantial effect on interstate commerce
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16
Q

Can congress compel states to enact law?

A

No

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17
Q

Can congress delegate powers?

A

Yes but must include intelligible standards and the power is not unduly defined in congress

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18
Q

3 executive domestic powers:

A
  1. Appoint high level officers
  2. Pardon federal offenses (anything)
  3. Veto bills
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19
Q

3 executive powers over external affairs:

A
  1. Not declare war but as commander in chief act militarily
  2. Represent the US in foreign relations
  3. Make treaties
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20
Q

What is the effect of the supremacy clause?

A

Federal law preempts state law

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21
Q

What’s the purpose of the privileges and immunities act Art IV?

A

Prohibits states from discriminating against out of state citizens. Must protect a compelling government interest.

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22
Q

What is the effect of the dormant commerce clause?

A

State law can’t unduly burden or discriminate against interstate commerce.

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23
Q

3 requirements of a valid dormant commerce clause:

A
  1. The law is necessary to achieve a purpose unrelated to protectionism.
  2. There are no non discriminatory alternatives.
  3. The state acts as a market participant.
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24
Q

What does procedural due process protect?

A

Property rights including governmental jobs, licenses, and public benefits.

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25
Q

3 requirements of required due process:

A
  1. Notice must be reasonably calculated
  2. An opportunity to be heard
  3. A neutral decision maker
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26
Q

3 fundamental rights under substantive due process:

A
  1. Freedom of speech
  2. Right to interstate travel
  3. Right to vote
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27
Q

6 fundamental privacy rights under substantive due process

A

CAMPER

  1. Contraception
  2. Abortion (undue burden test)
  3. Marriage
  4. Procreation
  5. Education
  6. Right to raise family
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28
Q

What is the rational relationship test?

A

A law will be upheld if it is rationally related to a legitimate government interest.

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29
Q

3 scrutinies under equal protection:

A
  1. Strict scrutiny for fundamental rights/suspect classification (compelling government interest)
  2. Intermediate scrutiny for a quasi-suspect classification (important government interest)
  3. Rational basis
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30
Q

3 things that show intent for strict scrutiny to apply:

A
  1. A law is discriminatory on its face
  2. A discriminatory application of neutral law
  3. Facially neutral law with a disparate impact on a protected class.
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31
Q

3 suspect classifications (compelling interest)

A
  1. Race
  2. Alienage
  3. National origin
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32
Q

2 quasi suspect classifications (important interest)

A
  1. Gender; must be exceedingly persuasive

2. Non-marital children

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33
Q

What is the takings clause?

A

The government may take property for public use but must pay just compensation

34
Q

2 times a taking is allowed:

A
  1. For public use rationally related to a legitimate promotion of public health, safety, or welfare.
  2. Inverse condemnation; taking that denies economic benefit of the land.
35
Q

Legislation that impairs an existing private contract is invalid unless:

A
  1. It serves a legitimate public interest

2. Is reasonable and narrowly tailored

36
Q

What are ex post facto laws?

A

States/federal government cannot retroactively alter criminal liability after the crime was committed

37
Q

What is speech?

A

Conduct that is inherently expressive or intended to convey and is reasonably likely to be seen as conveying a message.

38
Q

What are fighting words?

A

True threats statements meant to communicate an intent to place an individual or group in fear of bodily harm.

39
Q

When is speech obscene?

A

It appeals to the prurient interest using an objective local community standard, is patently offensive, and lacks serious value.

40
Q

What is the clear and present danger test?

A

Speech may be punished or banned when it produces or incites imminent lawless action and is likely to produce such action.

41
Q

3 times commercial speech is not protected:

A
  1. It’s false
  2. It’s misleading
  3. It’s about illegal products or services
42
Q

Any regulation of commercial speech will be upheld if it:

A

Serves a substantial government interest and is narrowly tailored

43
Q

What is a content based restriction?

A

Limits speech based on the subject or viewpoint

44
Q

What is content neutral restriction?

A

Limits speech on some other basis such as time, place, or manner

45
Q

When is a content-neutral restriction constitutional?

A

If it furthers a significant government interest and leaves open alternative means of communication.

46
Q

What is the speech/debate clause?

A

Any speech or debate in either house of congress shall not be questioned in any other place.

47
Q

What is a public forum?

A

A place historically open to the public for speech related activities

48
Q

What is a non public forum?

A

Government properties that host activities and services not open for speech related activities

49
Q

When can student speech be censored?

A

If there is a substantial disruption or the speech is promoting drugs.

50
Q

What is the vagueness doctrine?

A

The due process clause invalidates laws that don’t give reasonable notice of what is prohibited.

51
Q

What is over-breadth?

A

A regulation is invalid if it bans substantially more speech than necessary

52
Q

What are prior restraints?

A

An injunction that prohibits speech from being published or broadcast; will be upheld if it is the only way to preserve a fair trial

53
Q

What is the free exercise clause?

A

Government must remain neutral on the practice of religion

54
Q

What laws are not subject to the free exercise clause?

A

Neutral laws of general applicability

55
Q

What is the lemon test?

A

Government action will be upheld if:

  1. The primary purpose is secular
  2. The assistance must neither promote nor inhibit religion, and
  3. There is no excessive entanglement
56
Q

What is the take care clause?

A

Requires the president to take care that the laws be faithfully executed.

57
Q

What is the appropriations clause?

A

Federal spending must be approved by congress.

58
Q

Does the first amendment shield reported from state law claims?

A

No

59
Q

What is a bill of attainder?

A

Legislation that punishes named individuals.

60
Q

What is the purpose of the 13th amendment?

A

It allows private individuals to be prosecuted for racial discrimination (does not include mere threats) and congress may adopt legislation regulating private parties.

61
Q

Requirement of state police powers:

A

Must be on a rational basis and for a legitimate purpose.

62
Q

2 elements of discriminatory motive:

A
  1. A statute has a disproportionate impact on a protected class
  2. The statute is a product of a discriminatory purpose
63
Q

Intermediate scrutiny =

A

Substantially related to the important government interest.

64
Q

Strict scrutiny =

A

Necessary to achieve a compelling government interest.

65
Q

What is the contracts clause?

A

State/local laws cannot retroactively impair contract rights that already exist.

66
Q

Ageism is subject to:

A

A rational basis of review where P has the burden to show the law is not substantially related to a legitimate government interest.

67
Q

Why is a stricter state law immune from preemption of a broader federal law?

A

A state may provide greater protection to its citizens unless congress intends otherwise.

68
Q

3 things congress can regulate through the commerce clause:

A
  1. Channels
  2. Instrumentalities
  3. Activities
69
Q

2 tests the Supreme Court uses to determine whether a state/local law violates the commerce clause:

A
  1. Does the state regulation directly discriminate against out of staters?
  2. If it does not discriminate, use a balancing test.
70
Q

When does a vendor have third party standing?

A

As long as there is a nexus between P and the third party

71
Q

May congress discriminate based on citizenship?

A

Yes as long as it’s not unduly coercive

72
Q

Does the equal protection clause apply to federal law?

A

No; only state law

73
Q

Content neutral speech in a public forum must be:

A

Narrowly tailored to serve a substantial government interest and allow for alternative channels of communication.

74
Q

When will a taxpayer have standing in challenging a federal spending statute?

A

If it is alleged to have violated the establishment clause.

75
Q

What is the purpose of the privileges and immunities clause of the 14th amendment?

A

Prohibits a state from denying privileges or immunities of national citizenship, including the right to interstate travel.

76
Q

Does every public employee who is terminated have the right to be heard?

A

No; only those who are employed and can only be fired “for cause”

77
Q

What is the function of Article III?

A

Congress has full power to regulate and limit the SC’s appellate jurisdiction.

78
Q

Who holds the decision to prosecute?

A

The executive branch under Article II Section 3

79
Q

What is the speech and debate clause?

A

Congress is shielded from civil/criminal suits relating to their legislative actions and grand jury investigations relating to those actions (extend to aids).

80
Q

What is not subject to the political question doctrine?

A

Interbranch disputes involving foreign affairs when they concern the validity of a federal statute

81
Q

May public employees make comments about issues of public concern?

A

Yes and they may not be fired for expressing their views

82
Q

2 times private action will constitute state action;

A
  1. The private actor is performing a traditional exclusive state function
  2. The state is significantly involved

Con Law (1 decks)

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