Quick Con Law Flashcards
What is the Source, Limit, and Doctrine of Judicial power?
Source: Article 3 of Constitution
Limit: Only Actual Cases and Controversies
Doctrine: Judiciability (whether lawsuit is capable of judicial resolution depends on
what: no advisory opinions (actual dispute between adverse parties w/legally binding effect)
when: ripe and not moot
who: someone with standing
Additional doctrines limit fed court review: political question, sovreign immunity, and abstention.
What are the mootness exceptions?
though injury has passed, not moot if:
1) injury is capable of repetiiton (ie pregnant woman challenging abortion restriction delivers)
2) D voluntarily challeneged activity, but may restart at will (ie strip club that city sought to close closes and owner retires)
3) in lawsuit, one plaintiff suffers ongoing injury
Plaintiff must have standing to sue, what does standing consist of?
Injury ( injury must be personally suffered by Plaintiff [unless close relationship or organization] (ALL taxpayers have standing to challenge the way tax dollars are spent) +
causation (P must show that injury is fairyl traceable to D) +
redressability ( P must show that favorable court decision can remedy the harm)
fed courts will ALWAYS decide political questions. What is the rule and what are examples of political questions?
1) committed by the Constitution to the political branches of gov
2) incapable of, or innapropriate for, judicial resolution
Examples:
a) the guarantee clause
b) foreign policy and war challenges to Pres conduct of foreign policy and command
c) Impeachment process
d) Partisan gerrymandering
e) qualifications on members of congress
seating of delegates
f) seating of delegates
What is abstention?
Fed courts generally decline to decide a federal constitutional claim that turns on an unsettled question of State Law
Fed courts generally may not enjoin pending state court proceedings
What is the Source and limit of legislative power?
Source: Art I Section 8 Limit: Enumerated Powers -citizenship -bankruptcy -fed property -patents and copyrights -post offices -coining money -territories and DC -declaring war -raising and supporting armies -providing and maintaining navy
(no general police powers except with federal land, indian reservations and DC)
What is the Neccesary and Proper Clause
Allows Congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by constitution
What are Congress’ taxing and spending powers?
Congress may tax and spend to provide for the GENERAL WELFARE - includes ANY public purpose even if not within an enumerated power (tax on failure to purchase health insurance OK)
Spending Conditions: (congress may require that entities who accept gov money act in a certain manner)
- “Strings” must relate to purpose of spending and not violate Constitution.
(a) examples - cannot condition school spending on highway speed limits; highway spending on educational standards; or any spending on suppression of government criticism. - Strings CANNOT be unduly coercive.
(a) example - withholding current Medicaid funding (10% of state budgets) if state refuses to participate in new Medicaid expansion under health care law.
What is the rule, basis for regulation and limitations for Commerce Power
Rule - Congress may regulate commerce with:
- foreign nations
- indian tribes; AND
- among the states.
Basis for Regulation:
- Channels of interstate commerce - highways, waterways, telephone lines, Internet
- Intrumentalities of interstate commerce - planes, trains, automobiles, persons in interstate commerce
- Substantial Effect on interstate commerce (even purely local activities) - growing wheat in backyard for home consumption.
Limitations:
- Non-economic activity in area traditionally regulated by states
- CANNOT compel participation in commerce (even if lack of participation substantially affects interstate commerce)
What are Congress delegation of powers?
Delegation of Power To Agencies - may broadly delegate legislative power as long as some “intelligible principle” guides exercise of delegated power.
- Ex.: delegation of authority to EP to regulate air pollutants that “endanger public health or welfare.”
To President - CANNOT delegate legislative power
To Congress - CANNOT delegate legislative veto to void duly enacted laws without bicameralism and presentment.
- Ex.: law providing one chamber of Congress may overturn agency regulations.
What is the speech and debate clause say?
Speech or Debate Clause Rule - members of Congress enjoy immunity from civil and criminal liability for “legislative acts.”
Examples - speeches on floor, voting, committee reports
NOT - bribes, Tweets, town halls, speeches and publications outside of Congress
What is the source of executive power and president’s enforcement powers?
Source: Article 2`
Enforcement: PResident has power and duty to enforce or faithfully execute laws
What are the presidents Appointment powers?
President has the power to appoint Ambassadors, federal judges, and officers of the United States.
- Senate gives advice and consent by majority vote.
Recess appointments are permissible for vacancies arising before or during Senate recesses of at least 10 days, and valid until end of next Senate session.
Appointment of inferior officers - Congress may vest appointment power in President, department heads, or judiciary, but NOT Congress.
What are the presidents Removal powers?
President may remove high-level executive officers (e.g., cabinet secretaries) at will.
Congress may limit president removal of other executive officials to good cause.
Congress may NOT remove executive officials EXCEPT through the impeachment process.
What are pres’ pardon powers?
Pardon Rule - President may pardon anyone accused or convicted of a federal crime.
Exception - no power to pardon crimes underlying impeachment by House of Representatives.
Note - pardon does NOT cover civil liability.
What are Pres’ war powers?
Foreign Powers - War Congress alone has power to declare war
President as Commander-In-Chief has broad discretion to deploy troops internationally to protect American lives and property.
Notes:
- Challenges may be non-justiciable as a political question
- Congress checks through power of the purse
What are pres treaty powers?
President negotiates
Need approval by 2/3 of Senate
Treaties trump existing and future state law
Treaties trump existing, but NOT future, federal law
What are Pres Executive Agreement powers?
Executive Agreements President negotiates
Do NOT need approval from Senate
Executive Agreements trump existing and future state law
Federal law ALWAYS trumps Executive Agreements
What is the rule and process for impeachment?
Rule - Congress may impeach the President, Vice President, federal judges, and all officers of the United States for treason, bribery, or other high crimes and misdemeanors.
Process:
- House passes articles of impeachment by majority vote.
- Senate convicts by 2/3 vote.
- Removal requires BOTH.
What is presidential immunity and executive privilege?
President has absolute immunity from civil damages for any actions arguably within official responsibilities
President does NOT have immunity from private suites for conduct prior to taking office.
Executive privilege protects confidentiality of presidential communications.
- Privilege may yield if outweighed by other important government interests, e.g., need for evidence in a criminal trial.
Federalism: What does the 10th amendment say?
10th Amendment - powers not granted to United States, or prohibited to the states, are reserved to the states or the people.
Note - general police powers are reserved to the states.
Anti-Commandeering Principle - Congress cannot compel states to enact or administer federal programs.
Federalism: What does the supremacy clause of Article 6 do?
The Supremacy Clause of Article VI makes federal law “preempt” inconsistent state and local laws.
Preemption:
- Express preemption occurs if Congress expressly says so.
- Two types of implied preemption:
(a) Conflict - occurs when it is either impossible to follow both federal and state law or when state law impedes federal law.
(b) Field - occurs where extensive federal regulation indicates congressional intent to “occupy the field.”
What is the dormant commerce clause?
What are it’s tests, exceptions and who is the proper plaintiff?
Dormant Commerce Clause Prohibits state laws that discriminate against OR unduly burden interstate commerce
Test for Discriminatory Laws - Discriminatory laws (favoring in-state over out-of-state commerce) are “presumptively invalid” UNLESS
- necessary to achieve important government purpose (unrelated to economic protectionism), AND
- no less discriminatory alternatives.
Test for Non-Discriminatory Laws - Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are “usually ok” UNLESS the burden on interstate commerce “clearly” outweighs non-protectionist benefits.
Exceptions:
- Congressional approval
- Market participant
Proper Plaintiff - All out-of-staters.
What is the privileges or immunities of the 14th amendment?
Prohibits state laws that interfere with:
- interstate travel
- right to enter/leave a state
- equal treatment once you become a permanent resident of the state
- NO fundamental right to international travel - petitioning the government
- NOT the Bill of Rights
What is the Federal Immunity Rule
Federal Immunity Rule - states may not tax or regulate the federal government (including agents and activities, military bases) without its consent.
Example - state may not require contractor to obtain state license to build facilities on federal air force base, nor assess property tax for the base.
What is state action?
Four Types:
- State law
- State officials acting officially (even if unlawfully)
- Public Function: Rule - state action exists when private party performs function done by government “traditionally” and “exclusively.”
- Ex.: Company runs “company town.” - State involvement: - Rule - “significant” state involvement in challenged private conduct.
What are the Procedural Due Process requirements?
Provisions:
- 5th Amendment Due Process Clause applies to federal government.
- 14th Amendment Due Process Clause applies to states (and localities).
General Rule - individual has a right to a “fair process” when government acts deprive of life, liberty, or property.
What are the meanings of “deprive” “liberty” and “property” for purposes of procedural due process?
Deprivation - intentional (or perhaps reckless) rather than negligent.
Liberty:
- Physical freedom
- Constitutional and statutory rights
Property:
- Real and personal, tangible and intangible.
- Government entitlement to which an individual has a “reasonable expectation” of continued receipt.
What are procedural due process requirements?
Three Requirements:
- Notice
- reasonably calculated to inform person of deprivation - Hearing
- Neutral Decision Maker
- no actual or serious risk of bias
What are the procedural due process hearing requirements?
Hearing A pre-deprivation hearing is required UNLESS government shows highly impracticable.
Balancing Test - determines the nature and extent of procedures, considering:
- Importance of interest to individual
- Risk of error through procedures used
- Accuracy gain from additional procedures
- Burden on government
What are the supreme courts levels of scrutiny?
Supreme Court often employes levels of scrutiny when laws are challenged as violations of Equal Protection, Substantive Due Process, and Free Speech.
Three Types:
- Rational Basis
- Intermediate Scrutiny
- Strict Scrutiny
What is the SC level of scrutiny for rational basis?
Regulations that do NOT affect fundamental rights or involve suspect or quasi-suspect classifications are reviewed under the rational basis standard.
Rule - the law is upheld if it is “rationally related” to a “legitimate” government purpose.
The person challenging the law has the burden of proof.
Presumption of validity
What is the SC level of scrutiny for intermediate scrutiny?
Regulations involving quasi-suspect classifications (i.e., gender and legitimacy) are reviewed under the intermediate scrutiny standard.
Rule - the law is upheld if it is “substantially related” to an important government purpose.
Burden of proof is on the state
No presumption
What is the SC level of scrutiny for strict scrutiny?
Regulations affecting fundamental rights or involving suspect classifications (i.e., race, national origin and alienage) are reviewed under the strict scrutiny standard.
Rule - The law is upheld if it is “necessary” to achieve a “compelling government purpose.”
Law must be narrowly tailored
Burden of proof is on the state
Presumption of invalidity
What is the Equal Protection Analysis?
5th and 14th Amendments
Steps:
- What is the classification?
- What is the level of review?
Determining Classification:
- Facial
- Disparate impact + discriminatory intent
What is the substantive DP analysis?
Substantive Due Process Analysis *Provisions” - 5th and 14th Amendments
If a fundamental right is at issue, apply strict scrutiny.
If a fundamental right is NOT at issue, apply rational basis.
Due Process and/or Equal Protection:
- Denying everyone a fundamental right is ONLY a due process question.
- Denying some people a fundamental right is BOTH a due process and equal protection question.
What is the Establishment Clause - History and Tradition Test?
Sometimes the Court sets aside the above principles and finds that a state religious display or practice is a “tolerable acknowledgement” of the role religion has played in the “history and tradition” of the nation.
What is the takings clause?
Takings Clause Rule - Federal government (5th Amendment) and states (14th Amendment) may not take private property UNLESS:
- Taking is for a public use AND
- Government pays just compensation
Types of Takings:
- Physical taking
- Regulatory taking - leave “no economically viable” use
What do “public use” and “Just compensation” mean under the takings clause?
Public Use - any “legitimate public purpose,” i.e., any purpose that government reasonably believes will benefit public.
Just compensation - fair market value at time of taking (benefit to government is irrelevant).
Contract Clause
No State shall … pass any … law impairing the Obligation of Contracts.
Test for Private Contracts - substantial impairment of existing rights are invalid unless the legislation:
- serves an important and legitimate public interest AND
- is a reasonable and narrowly tailored means of promoting that interest.
Test for Public Contracts - Heightened scrutiny (intermediate or strict)
What is the Ex Post Facto Laws Rule?
neither state nor federal government may pass legislation that retroactively alters criminal liability.
Notes:
- Cannot criminalize act that was innocent when done.
- Cannot make crime greater than when committed.
- Cannot set punishment greater than when act was done.
- Cannot reduce evidence required to convict from what was required at time of act.
What are Bills of Attainder?
Bills of Attainder Rule - neither state nor federal government may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial.
What is the freedom of speech analysis?
- Is it speech?
- Is the speech protected or unprotected?
- Two Parts:
(a) Content-based or Content-neutral?
(b) General restriction? Public property? Public school? Public Employment? - Is the restriction vague, overbroad, or a prior restraint?
For purposes of freedom of speech, what is speech?
Speech - words, symbols, and expressive conduct.
Expressive Conduct:
- Conduct that is inherently expressive
- Conduct that is:
(a) intended to convey a message, AND
(b) reasonably likely to be perceived as conveying a message.
What is partially protected speech?
Two Categories:
- Defamation about public officials, public figures, OR matters of public concern
- Commercial Speech (not false, misleading, or illegal)
Freedom of Speech - Unprotected Speech - Incitement
Test - advocacy of lawless action that is:
1. intended AND likely to produce imminent lawless action AND
Note - mere advocacy of lawlessness is protected speech.
Freedom of Speech - Unprotected Speech - fighting words
Test: words likely to incite an immediate and violent response
Freedom of Speech - Unprotected Speech - true threats
Test: intended to convey a true threat of bodily harm
Freedom of Speech - Unprotected Speech - obscenity
Test - Depiction of sexual conduct that taken as a whole, by contemporary community standards,:
- appeals to the prurient interest in sex,
- is patently offensive, AND
- lacks serious social value by national standards.
Notes:
- Mere nudity, soft-core pornography, and “dirty words” are NOT obscene.
- Right to privacy extends to possession of obscenity in own home, which may NOT be banned.
- Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning, but ample neighborhood alternatives must exist for the speech.
Freedom of Speech - Unprotected Speech - child protection
Test - depiction of children engaging in sexual conduct whether or not obscene.
Must be actual children (not virtual or adult actors).
In-home possession may be banned.
Freedom of Speech Defamation
Rule - to promote robust public debate, the 1st Amendment bars recovery under state defamation law for speech made without “actual malice” about:
- Public Officials
- Public Figures OR
- Matters of Public Concern
Actual Malice:
- Knowledge of falsity, OR
- Reckless disregard of truth.
Rules:
- Public Official/Figure with any matter
- actual malice and any damages - Private Figure with public concern
- actual malice and presumed and punitive damages
- negligence and only actual damages - Private Figure with private concern
- NO actual malice and any damages
Freedom of Speech - Commercial Speech
Includes ads and promotions of products and services, brand marketing.
Unprotected Speech:
- False
- Misleading
- About an illegal product
Test for Protected Speech: (intermediate scrutiny)
- Substantial government interest
- Narrowly tailored (reasonable fit rather than least restrictive)
Freedom of Speech, general speech restrictions
Tests:
- Content-based - Strict scrutiny
- Content-neutral - Intermediate Scrutiny
Content-based restrictions suppress speech because of the message or harm that message may produce.
Content-neutral restrictions suppress speech for reasons unrelated to the message (time place or manner).
What are the freedom of speech levels of scrutiny?
Intermediate Scrutiny:
- Important interest
- Narrowly tailored (no substantial overbreadth)
- Burden on state
- Usually valid
Strict Scrutiny:
- Compelling interest
- Narrowly tailored (least restrictive)
- Burden on state
- Usually invalid
Freedom of Speech: What are the types of government property and what levels of scrutiny apply to each?
Freedom of Speech - Government Property Types of Government Property:
- Traditional - open to public as free speech zone “from time immemorial”
- Ex.: parks, streets, sidewalks
- Cannot be undesignated as public forum - Designated - opened by policy or purposeful practice as free speech zone
- Ex.: college kiosks, college email systems
- Can be undesignated as public forum - Nonpublic - not opened by tradition or designation as free speech zone
- Ex.: classes, post offices, DMVs, airports
Levels of Scrutiny:
- Public Forums:
- Content-based - SS
- Content-neutral - IS - Nonpublic Forums:
- Content-based - SS
- Content-neutral - reasonable given nature of forum
Freedom of speech in public schools?
Test:
- Personal student speech - CANNOT be censored absent evidence of “substantial disruption.”
- Exception: speech promoting illegal drug use - School speech - can be censored if “reasonably related to legitimate teaching concern.
Freedom of Speech in public employment?
Unprotected Speech:
- Private concern (e.g., office gossip) OR
- pursuant to official duties
Protected Speech - matters of public concern (not made pursuant to official duties)
Rule - Balance speech value v. state interest in efficient operation
What is Freedom of Speech - Political Patronage?
Rule - public employees may not be hired or fired based on political affiliation or expression.
Exception - high-level policy-makers and advisors
When is a law void for vagueness?
if “a person of common intelligence” CANNOT tell what speech is prohibited and what is permitted
whan is a law invalid for over breadth?
Rule - law is invalid as overbroad if it prohibits a “substantial” amount of speech that the government may not suppress.
What are freedom of speech prior restraints?
Prior restraints are licensing schemes (e.g., permits) or injunctions that prevents speech before it occurs, rather than punishing speech afterwards.
No special tests, but harder for government to win.
Content-based prior restraints are reviewed under very strict scrutiny.
Licensing systems must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials.
What is the Free Exercise Clause, it’s rule and its tests?
Religion is traditional religion as well as belief that play role in life of believer similar to the role that religion plays in life of traditional adherents.
Rule - To decide religious claims, government (including courts) may inquire into the “sincerity” of religious beliefs, but NOT their truth.
Tests:
- Discriminatory laws - strict scrutiny
- Neutral laws of general applicability - NOT subject to Free Exercise Clause.
- Exception: religious organizations are exempt from employment discrimination suits by their ministers.
What is the establishment clause and it’s 5 tests?
The Establishment Clause compels the government to pursue a course of neutrality toward religion
Five Tests:
- Neutrality
- Coercion
- Lemon
- Endorsement
- History and tradition
What is the establishment clause neutrality test?
Rule - government must remain neutral with respect to religion, neither favor nor disfavor it.
What is the establishment clause coerscion test?
Rule - government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) religion.
What is the establishment clause lemon test?
Test:
- Primary purpose is sectarian; OR
- Primary effect is sectarian; OR
- Excessive entanglement between government and religion
What is the establishment clause endorsement test?
Rule - from the standpoint of a “reasonable informed observer,” the government must NOT appear to endorse or disapprove of religion, making it seem relevant to a person’s standing in the political community.
When does congress have broad discretion to delegate its legislative power to executive officers or admin agencies.
Always. Delegation of legislative power to the executive brach of gov are virtually always upheld. SCOTUS says there must be some standards to guide the exercise of discretion, but the requirement is very minimal.
When can Pres, acting under his commander and chief powers mobilize troops in a foreign country for humanitarian purposes?
Always, pres has broad discretion to use American troops in foreign countries.
Do state govs have the authority to impose regulations on federal military bases?
No. Per the supremacy clause, state govs may not regulate fed government activities.
which branch of government has the authority to adjudicate disputes between states?
Only judicial branch
government employees cannot be required to show respect for what?
The Flag. (person may be have religous grounds for not saluting a flag)
The government ____ limit the amount of money someone can contribute to an individuals campaign, the government ____limit the amount of money somebody can contribute to a political committee that supports or opposes a ballot refferendum
MAY; MAY NOT
To have standing to challenge government action on constitutional ground, a person must show that he…
has concrete stake in the outcome. Injury in fact. a person’s injury as a taxpayer is generally held to be insufficient to establish standing
If a state law places any obstacles that impede on a treaty, or make it more difficult for the effects of a treaty to be realized….
That state statute is inconstitutional
state and local governments cannot tax OR _______ the activities of the government.
REGULATE. No laws impeding government functions
SCOTUS held that cities could differntiate from broad categories of speech in accepting advertising on city owned businesses as lon as the restriction was…..
viewpoint neutral and reasonably related to a legitimate government interest
Certain regulations of speech will be upheld only if the regulation: (i) furthers important interests that are not related to the suppression of speech, and (ii) does not burden more speech than is necessary to advance such interests.
Which of the following regulations is judged under this standard?
content-neutral speech regulation
The requirement that, to be valid, government regulation of speech must be content neutral, be narrowly tailored to serve an important interest, and leave open alternative channels of communication applies to speech occurring in __________.
Public forums and designated public forums
The test for the regulation of speech taking place in limited public forums, such as government property that is open for speech or speech-related activity only on a particular topic, is whether the regulation is __________________
viewpoint neutral and reasonably related to a legitimate government purpose.
n regard to what constitutes obscenity for First Amendment purposes, to determine whether material __________, a national standard must be used.
is lacking in serious social value
The First Amendment provides, among other things, that government may make no laws infringing the freedom of speech.
Under the First Amendment, a statute or ordinance that burdens speech based on its content generally must be __________ in order to pass constitutional muster.
necessary to serve a compelling state interest
Although a municipality can place reasonable time, place, and manner restrictions on certain aspects of speech, it may not adopt a regulation that gives officials broad discretion over speech issues. If a statute gives licensing officials unbridled discretion, it is _______, and speakers need not even _________.
void on its face; apply for a permit
“Malice aforethought” can mean that the defendant is acting with ___
reckless indifference to an unjustifiably high risk to human life.
A conspirator can be convicted of a crime committed by another conspirator if:
The crimes were committed in furtherance of the objectives of the conspiracy, and the crimes were foreseeable.
When is abandonment not a defense to attempt?
When D goes beyond mere preparation for the offense.
Can there be an agreement for conspiracy purposes if one of the perpetrators is an undercover cop pretending?
NO. There must be a meeting of at least two “guilty minds”; i.e., between two or more persons who are actually committing themselves to the scheme. If one person in a two-party conspiracy is only feigning agreement, the other person cannot be convicted of conspiracy under the common law bilateral approach.
What does the 13th amendment do?
It provides that slavery shall not exist in the United States.
It forbids private individuals from discriminating on the basis of race.
It empowers Congress to prohibit all acts that are considered “badges of slavery.”
Generally, the Constitution prohibits only government infringement of constitutional rights. However, in certain circumstances, private action will be attributed to the states.
An activity performed by a private individual or entity will not be considered to be state action merely because the __________.
activities are heavily regulated by the state
The Enabling Clause of the Fourteenth Amendment gives Congress the power to adopt legislation to enforce the rights and guarantees provided by the Amendment, but not to expand or create rights.
A law adopted under the Enabling Clause in Section 5 of the Fourteenth Amendment will not be upheld unless Congress can point to a history or pattern of state violation of already recognized rights and the law is at least __________.
congruent and proportional to preventing or remedying the violation
The Fifteenth Amendment prohibits the __________ from denying the right to vote to any citizen on the basis of race.
states and US government
Under the Due Process Clause, on what of is the court most likely to focus on in determining whether a person has a property interest in continuation of a government benefit?
Whether the person has a legitimate claim or entitlement to the benefit
Is a membership privilege authorized by the city charging $100 monthly fees, violation of equal protection for a person who can’t afford the costs?
No, it is not a significant enough deprivation. Would have to be the denial of a particularly important right.
I a state’s subsidization of daycare centers competing against private daycare centers permissible, even if private day care centers lose money?
Yes, this a valid excersise of state’s police power
Congres is explicitly authroized to restrict the _______ __ ___ ________ under article 3.
the jurisdiction of the federal courts
Is it constitutional for congress to adopt legislation prohibiting the federal courts from ordering busing as a remedy for past racial discrimination in a public school district?
probably not, the courts, not congres have the primary responsibility for defining the minimum requirements of the equal protection clause of the 14th amendment
A federal law requiring that all automobiles driven on US military bases be equipped w/ airbags would most probably be justified under what?
The Property Clause of Art 4 Sec 3. - Congress has the power to make all NEEFUL RULES respecting the territory or other property of the US.
True controverseys exist for purposes of standing only when a party____________
CAN NO LONGER BE AFFECTED BY A STATUTE. If person is capable of being affected by the statute later (even if it appears the controversy is gone), she will still have standing
Members of congress lack standing to challenge a law authroizing the president to exercise a line item veto because……
the INJURY is not CONCRETE and personal, but rather institutional in that it is shared by all members of congress.
Congress________appoint members of a commission that exercises enforcement powers. Because enforcement is a______-
CANNOT; EXECUTIVE power
a one-year residency requirement to receive state benefits is likely unconstitutional (under the______and_______) because______
Equal Protection Clause AND privilege & immunities clause of the 14th amendment; BURDENS THE RIGHT TO TRAVEL
What is the Privileges & Immmunities Clasue of Article 4, and what is its standard?
Protects against discrimination by a state in favor of its own citizens when it affects a fundamental right.
Standard: SUBSTANTIAL JUSTIFICATION for the discriminatory treatment
A permanent display on a governmental building constitute _____________, and the government is generally free to choose _______________
government speech; which messages it will and will not convey
If a regulation of speech punishes a substantial amount of speech, the regulation is facially invalid and cannot be enforced against anyone even against a person who is___________
ENGAGING IN ACTIVITY THAT IS NOT CONSTITUTIONALLY PROTECTED. (like fighting words, or inciting violence)
restrictions against someone publishing national secrets, would be considered a ___________and thus will not be tollerated unless________can show that the
PRIOR CONSTRAINT; government; prior restraint is narrowly tailored to achieve a compelling government interest
Allowing nonsectarian prayer at a city counsel meeting does not violate the establishment clause of the 1st amendment because:
because there is a long history in this country of allowing prayers at legislative sessions
Does a court martial have jurisdiction over a civilian?
NO. Unless warfare has shutdown civilian courts
Can the house alone overturn an executive agency act?
NO, require bicameralism, passage in both house and senate.
What is the standard applied to Free Exercise Challenges?
Challenger must show that the legislation was motivated by a desire to interfere with religion. (NOT RATIONAL BASIS)
