Dass Bar Review- Con Law

Front 1

Standing

Back 1

1) injury
2) causation and Redressibility
3) ripeness
4) not moot

Front 2

third party standing

Back 2

no tax payer suit, citizen suit. exception for tax payer enforcing establishment clause

Front 3

Mootness exceptions

Back 3

1) capable of repitition evading review
2) voluntary cessation
3) class action suits (as long as one class member still has injury)

Front 4

Political questions

Back 4

Judiciary will not touch
- republican form of gov't clause
- challenges to pres. foreign policy
- impeachment and removal process
- partisan gerry mandering

Front 5

Supreme court gets cases

Back 5

- generally writ of cert.
- appeals only from three judge panel
- exclusive jx of suits between states

Front 6

Supreme Ct- reviewing state court decision

Back 6

must be final decision, and there cannot be a independant state ground for upholding decision

Front 7

Sovereign immunity

Back 7

bars suits against states in state court

Front 8

exceptions to sovereign immunity

Back 8

1. wavier
2. federal laws adopted under sec. 5 of fourteenth amendment (discrimination)
3. fed gov't may sue states
4. bankruptcy
5. suits against officers
- injunctions or $$ must come from pocket of officer

Front 9

Federal Police power

Back 9

Generally no power except for MILD
military
indian reservation
fed land
D.C.

Front 10

necessary and proper

Back 10

Congress can use any means not prohibited to carry out it's power

Front 11

Congress's power to act

Back 11

must be express or implied

Front 12

Congress taxing/spending power must be for:

Back 12

general welfare

Front 13

commerce power

Back 13

Congress can regulate
1) channels (highways)
2) instrumentalities (cars)
3) economic activities that have substantial effect (cannot be used for non-economic activity)

Front 14

10th amendment limit on Congress's power

Back 14

Congress cannot compel state statutory or regulatory actiion but can can try to get them to do it by federal grants
- congress can prohibit harmful state activity (selling dmv info)

Front 15

Congress power under Sec. 5 of 14th amend

Back 15

cannot create new rights or expand
- act only to prevent or remedy violaitons of rights reconized by the courts and such laws must be proportionate and congruent to remedying constitutional violations

Front 16

Deglegation of powers

Back 16

no limit on Congresss delegating power but it cannot delegate executive power to itself or officers

Front 17

leg. veto and line item veto

Back 17

unconstitutional

Front 18

Executive Foreign policy power

Back 18

1. Treaties (ratified by Senate)
2. Executive agreement

Front 19

Executive Treaty power

Back 19

ratified by Senate
- prevail over other conflicting state law
- fed law v. treaty= most recent in time wins
- treaty v. fed. const.= treaty invalid

Front 20

Executive Agreements

Back 20

- no senate approval required
- can be used for any purpose
- prevail over conflicting state laws but never over conflicting federal laws or constitution

Front 21

appointment power

Back 21

- president appoints ambassadors, federal judges and officers of united states (senate comfirms)
- Congress may vest teh appointment of inferior officers w/ pres
- Congress may not give itself or its officers the appointment power

Front 22

President's Removal power

Back 22

pres. may fire any executive employee unless:
- independence from pres. is desirable
note: congress cannot eliminate Pres removal power, just limit it

Front 23

impeachment and removal of pres. cp, fed judges and officers of US

Back 23

treason, bribery, or for high crimes and misdemeanors

Front 24

impeachment=

Back 24

indictment by house which requires a 2/3 vote
- followed by trail by senate

Front 25

President's immunity

Back 25

- absolute immunity for money damages while in office
- no immunity for aks that took place before talking office

Front 26

executive privilege

Back 26

covers presidenial papers and conversations but must yield to other important gov't interests

Front 27

President's pardon power

Back 27

those accused and convicted of federal crimes except a person impeached cannot be pardoned for actions that led to impeachment
- no civil pardon power

Front 28

preemption

Back 28

express or
implied

Front 29

dormant commer clause

Back 29

- does not require discrimination against out of staters in order to apply
- requires a burden on interstate commerce
- corporations and aliens can sue under it
- exceptions: Congressional approval and the market participant exception

Front 30

privileges and immunites clause

Back 30

- requires discrimination against out of staters in order to apply
- requires discrimination with regard to civil liberties or important economic activities
- corporations and aliens cannot sue under it
- no exceptions

Front 31

state taxaction of interstate commerce

Back 31

1. may not use tax system to help in state business
2. must have substantial nexus to state
3. must be fairly apportioned

Front 32

full faith and credit

Back 32

court in one state must give full faith and credit to judgment from another state if:
1) jx over parties and subject matter
2) judgment was on merits
3) judgment was final

Front 33

13th amendment

Back 33

only slavery violates, not discrimination itself

Front 34

entanglement exception to gov't action requirement for private rights

Back 34

const. applies if gov't affirmatively authorizes, encourages, or facilitates unconst. activity.
ex. courts enforcing racially restrictive covenants, gov't leases space to racially restrictive restaurant etc

Front 35

amendments that do not apply to the states

Back 35

- 2nd amend rt to bear arms
- 3rd amend rt not to have soldiers quartered
- 5th amend right to grand jury
- 7th amend- right to jury trial in civil cases
- eight amend- right against excessive fines

Front 36

rational basis test

Back 36

rationally related to a legitimate gov't purpose
- challenger has the burden

Front 37

intermediate scrutiny

Back 37

substantially related to an important government purpose
- gov't has the burden

Front 38

strict scrutiny

Back 38

necessary to achieve a compelling gov't purpose

Front 39

standard for due process violations

Back 39

gov't negligence is not enough
- must show intentional gov't action or at least reckless action
- under emergency situations, gov't only liable if its conduct "shocks the conscience"

Front 40

Due Process test

Back 40

balance
- the importance of the interest to the individual
- the ability of additional procedures to increase the accuracy of the fact finding
- the gov't interests

Front 41

economic liberties

Back 41

only rational basis test is used

Front 42

takings clause

Back 42

the gov't may take private property for public use
possessory taking- gov't physical occupation of proerty
regulatory taking- leaves no reasonable economically viable use of property

Front 43

conditions on development

Back 43

must be justfied by a benefit that is roughly proportionate to the burden imposed

Front 44

public use for takings clause

Back 44

so long as gov't acts on reasonable belief that taking will benefit the public

Front 45

just compensation- takings clause

Back 45

measure in terms of loss to the owner in reasonable market value terms

Front 46

contracts clause

Back 46

only aaplies to state or local interference with existing contracts

Front 47

state and local gov't interference with contract

Back 47

must be intermediate scrutiny.
- substantially impair party's rights under an existing contract?
- if so, is it reasonably and noarrolwy tailored means of promoting an important gov't interest?

Front 48

state or local gov't interference with gov't contract

Back 48

must meet strict scrutiny

Front 49

ex post facto law

Back 49

law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed
- only in criminal cases
- does not apply in civil cases-

Front 50

privacy rights

Back 50

marry, procreate, custody of children, keep family together, contraceptives, abortion prior to viability, homosexual activity, refuse medical treatment

Front 51

2nd amendment right to bear arms

Back 51

it is a private right but can regualte where they are and keeping them from dangerous people

Front 52

right to travel

Back 52

either privileges and immunites clause or equal protection
- restrict travel must meet strict scrutiny

Front 53

durational residency requirements

Back 53

must meet strict scrutiny
- max for voting is 50 days

Front 54

restriction on foreign travel

Back 54

rational basis test

Front 55

right to vote

Back 55

- laws denying some people right to vote must meet strict scrutiny
- regulations of the electoral process to prevent fraud only need be on balance desireable
- at large elections ok unless proof of discriminatory intent
- use of race drawing election lines to bene minorities must meet strict scrutiny
- counting uncouted votes w/o standards in pres. election violates strict scrutiny

Front 56

No fundamental right for

Back 56

- right to practice trade of profession
- right to physican assisted suicide
- right to education

Front 57

14th amendment

Back 57

applies equal portection to state and local gov't

Front 58

5th amendment equal protection

Back 58

applies e.p. to the federal gov't

Front 59

race classifications benefiting minorities

Back 59

- strict scrutiny is applies
- numerical set-askides require clear proof of past discrimination
- educ. may use race as one factor
- public schools cannot use race to assign kids to schools unless strict scrutiny is met

Front 60

gender classifications benefitting women

Back 60

- will not be allowed if based on role stereotypes
- allowed if designed to remedy past discrimination and differences in opportunity

Front 61

Strict Scrunity in Equal protection used for:

Back 61

race, national origin, alienage (generally), travel (not foreign), voting

Front 62

intermediate scrutiny in equal protection used for:

Back 62

gender, illegitimacy, undocumented alien children

Front 63

alienage classifications where only rational basis used

Back 63

if they concern self gov't: voting, jury, polic officer, teacher, probation officer
- congress discrimination against aliens
- intediate scrutiny used for discrimination against undocumented alien children

Front 64

content based restriction on speech

Back 64

must meet strict strutiny
two types-
1. content based
2. viewpoint restrictions

Front 65

content-neutral restrictions

Back 65

must meet intermediate scrutiny

Front 66

Prior restraints

Back 66

court order prohibiting speech must meet strict scrutiny
note: in order to contest a speech provision must comply with order until it is overturned

Front 67

gov't requiring license for speech

Back 67

1. important reason for license
2. clear criteria leaving almost no discretion to the licensing authority
3. contain procedural safeguards such as prompt determination of requests for licenses

Front 68

vagueness

Back 68

if a reasonable person cannot tell what speech is prohibited and what is allowed

Front 69

overbreadth

Back 69

law regulates substantially more speech that the constitution allows

Front 70

fighting words

Back 70

these laws are vague and overbroad

Front 71

symbolic speech

Back 71

gov't can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the gov't purpose
- flag burning- protected
- draft card burning- not
- nude dancing- not
- burning cross- as long as not done to intimidate

Front 72

anonymous speech

Back 72

protected

Front 73

contribution limits in election campaign

Back 73

constitutional

Front 74

expediture limits

Back 74

not constitutional

Front 75

Standard for regulating incitement of illegal activity

Back 75

a substantial liklihood of imminent illegal activity and if the speech is derected to cause imminent illgaility

Front 76

Obsenity and sexually-oriented speech test

Back 76

1. material must appeal to the purient interest
2. materail must be patnetly offensive under the law prohibiting obscenity
3. taken as a whole, the material must lack serious redeeming artistic, literary, politcal, or scientific value

Front 77

zoning and adult book stores

Back 77

gov't may use zoning to control location of adult bookstores

Front 78

child pornography

Back 78

can be completely banned but actual children need to be used in making

Front 79

punishing private possession of obscene materials

Back 79

gov't cannot do i

Front 80

punishing private possession of child porn

Back 80

gov't can do

Front 81

exceptions to protection for profane and indecent speech

Back 81

. over the broadcast medai (note difference for cable) and public schools

Front 82

commercial speech

Back 82

- false and deceptive ads not protected
- can prevent professionals from practicing under trade name
- may prohibit attorney, in perosn soliciation of clients for profit
- may not prohibit accountants from in person soliciation of clients for profit
- other commercial speech can be regulated if meets intermediate scruntiny
- it must be narrowly talied but does not need to be the least restrictive alternative

Front 83

Defamation- Public Official/Public figure

Back 83

- actual malice
- compensatory presumed/punitive
- P must prove fasilty

Front 84

Private Matter of Public Concern

Back 84

- Negligence and actual injury
- compensatory for actual injury
- presumed or punitive- actual malice

Front 85

private figure, matter of private concern

Back 85

- negligence
- compensatory for actual injury
- punitive damages do NOT require actual malice
- burden on Defendant to prove truth

Front 86

The government may limit its dissemintaiton of information to protect privacy except:

Back 86

criminal trials

Front 87

Gov't employee's speech on job while in performance of their duties

Back 87

not portected by the first amendment

Front 88

public forum

Back 88

ex. sidewalks, parks
- must be viewpoint neutral or meet strict scrutiny
- if neutral, time, place, manner restrictions that serve important gov't purpose and leaves open alternative places of communication
- does not need to be least restrictive

Front 89

limited public forums

Back 89

forums where gov't could close to speech but chooses not to- same rules apply as public forum

Front 90

Non-public forums

Back 90

- gov't can and does close to speech
- can regulate speech as long as the regulation is reasonable and viewpoint neutral
ex. military bases, areas outside prisons and jails, sidewalks on post office property, advertising space on city buses, airports (but can't prohibit the distribution of literature)

Front 91

Private property- rt to free speech

Back 91

no right

Front 92

Freedom of assocation

Back 92

- laws that punish group membership must meet strict scrutiny
- to punish person must prove:
1. actively affiliated with the group
2. knew of its illegal activities; and
3. had the specific intent of furthering those illegal activites

Front 93

requiring disclosure of group membership where it would chill association

Back 93

must meet strict scrutiny

Front 94

gov't may prohibit discrimination as to group membership unless

Back 94

it interferes with intimate association or expressive activity
ex. Klan excluding blacks, nazis exclusing Jews, Boy scouts excluding gays

Front 95

Free exercise clausee cannot be used

Back 95

to challnege a neutral law of general applicability
ex. peyote case
but the gov't may not deny benes to indiviudals who quit their jobs for religious reasons

Front 96

Establishment Clause Test

Back 96

SEX
1. must be a Secular purpose
2. Effect must be neither to advance nor inhibit religion
3. there must not be eXcessive entanglement w/religion

Front 97

Discrimination between religion or religious groups must meet

Back 97

strict scrutiny

Front 98

School prayer

Back 98

gov't sponsored is not ok but religious and community groups must have same access as other groups to facilities

Front 99

gov't assistances to parochial schools

Back 99

- ok as long as it is not used for religous instruction

Front 100

MT Equal Protection

Back 100

1. Similarly Situation
2. With respect to a legitimate government purpose
3. must receive like treatment