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156 Cards in this Set

  • Front
  • Back
How should you start the CA Con Law exam?
The California State and Federal Constitutions govern.
What is justiciability?
To successfully bring a Federal action, a claimant has to have standing, ripeness, and mootness, and it cannot be a political question.
What is standing?
Plaintiff has to prove that he has or will have injury, D caused injury, and that favorable court decision is likely to redress injury.
What is ripeness?
A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.
When should you consider ripeness?
If P requests declaratory or injunctive relief (maybe others also).
What are the criteria for ripeness?
Must show: (1) Hardship that will be suffered without pre-enforcement review; and (2) Fitness of issues and completeness of record for judicial review.
What is the test for mootness?
Generally, if events after filing of lawsuit end P's injury, case must be dismissed as moot. (Case must have live controversy and ongoing injury during all stages of suit)
What are the exceptions for mootness?
(1) Voluntary cessation: injury is of short duration but capable of repetition.
(2) Capable of repetition: if D voluntary halts offending practice but is free to resume it at any time.
(3) Class Action: Can continue as long as one member of the class has an ongoing injury.
What is the rule for a political question?
Fed Court can decline to rule in a case b/c Constitution has committed decision-making on the subject to another branch of the federal gov't. There are inadequate standards for Ct to apply, or Ct feels it is prudent not to interfere.
What are examples of political questions?
(1) Republican form of gov't: The U.S. must guarantee to each state a republican form of gov't, so challenges regarding legally elected reps are a political question that can't be ruled by the Ct.
(2) Challenges to President's conduct of foreign policy.
(3) Challenges to impeachment and removal process.
(4) Challenges to partisan gerrymandering: when dominating political party draws seats for its members to maximize votes.
How do cases go to SCOTUS?
Almost all cases go to SCOTUS by writ of certiorari & SCOTUS has complete discretion, but case will be heard if only 4 justices vote for it.
What limitations are placed on SCOTUS review?
(1) SCOTUS can only hear cases after a final judgment of the highest state ct, of US ct of appeals, or of a 3-judge federal district ct.
(2) For SCOTUS review of state ct decision, there must not be independent and adequate state law ground of decision.
What is the principle of sovereign immunity?
Eleventh Amendment bars suits against states in Fed Ct; Sovereign immunity bars suits against states in state cts or fed agencies.
When may states be sued?
(1) Waiver is permitted, but must be explicit.
(2) State may be sued pursuant to fed laws adopted under 14th amendment -- due process, citizenship, equal protection. Congress can't authorize suits against state under other constitutional provisions.
(3) Fed gov't may sue state gov't.
When are suits against state officers allowed?
(1) State officers may be sued for injunctive relief IF CA adopted a law and you want to stop its enforcement (can't sue state for injunction, but can sue officer).
(2) State officers may be sued for money damages to be paid out of their own pockets, BUT can't be sued if state treasury will pay retroactive damages.
What authority does Congress have to act?
(1) No police power except for express or implied congressional power, which includes legislating for military; for Indian reservations, federal lands and territories; and for DC.
(2) Necessary & Proper Clause: Congress may adopt all laws necessary to carry out means not prohibited by Constitution.
(3) Taxing and spending power: Congress may tax and spend for general welfare.
(4) Commerce power: Congress can regulate channels, instrumentalities, and activities that have effect on interstate commerce.
What limitations are placed on Congressional power?
(1) The 10th Amendment: All powers not granted to fed goes to states.
(2) The 14th Amendment: Cannot create new rights and can only provide remedies for existing rights.
Can Congress delegate its power?
Yes, it can delegate power to the executive and judiciary branch; BUT it can't delegate executive power to itself or its officers.
When can Congress act?
Congress can only act if there is bicameralism, which means passage by both House and Senate, and presentment, which means the bill must be given to the President to sign or veto (Pres must sign or veto the bill in its entirety).

Legislative vetos and line-item vetos are unconstitutional.
What general rules govern treaties?
(1) Need 2/3 Senate approval.
(2) Prevail over state law.
(3) Last in time prevails regarding Fed statute.
(4) Lose to US constitution.
What general rules govern executive agreements?
(1) No senate approval needed.
(2) Prevail over state law.
(3) Lose to Fed statute.
(4) Lose to US constitution.
What is executive branch appointment power?
Pres can appoint ambassadors, fed judges, and officers of US with Senate approval.

Congress can also give Pres the power to appoint inferior officers, department heads, and Fed Cts BUT CANNOT give the power to Congress itself.
What is the executive removal power?
Unless removal is limited by statute, Pres may fire any executive branch office.

EXCEPTIONS: (1) Congress can limit removal to where there is good cause (can't prohibit) if the office is such that independence from the Pres is desirable.
When can someone in the executive branch be impeached?
The Pres, Vice-Pres, federal judges and officers of US can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors.

Impeachment does not remove a person from office.

Need majority House vote to impeach and 2/3 Senate vote to remove.
What privileges and immunities apply to the President?
(1) Immunity to civil suits for actions while in office.
(2) Executive privilege for presidential papers.
(3) Power to pardon for federal crimes, but not for civil or state suits.
What is the Supremacy Clause?
Preemption. The SC of Art. III states that the fed Const. and laws and treaties pursuant to it are supreme law of the land.
What types of federal preemption exist and where do they stem from?
Federal preemption comes from the Supremacy Clause in Art. III. There are two types: implied and express.
What is express federal preemption?
Occurs when a fed statute states that fed law wholly occupies a certain field... then state law is preempted.
What is implied federal preemption?
State law is preempted even when fed law is explicit if:

(1) If a fed law and state law are mutually exclusive then fed law preempts. States can, however, set laws that are more strict than fed laws for private parties (not fed gov) UNLESS fed says states can't.

(2) If state law impedes achievement of federal objective, fed law preempts.

(3) If Congress evidences clear intent to preempt state law, fed law preempts.
What is the Dormant Commerce Clause?
State and local laws are unconstitutional if they put undue burden on interstate commerce. It applies even without discrimination.

When no discrim: Strike down law if burden exceed benefits.

With discrim: Strike down law unless it is necessary to achieve an important gov't purpose.

Exception: Congress approval or market participant exception.
What is the privileges and immunities clause and where is it located?
Art. IV of fed Const -- Applies when a law discriminates against out of state citizens.

States can't deprive citizens of other states the privileges and immunities it gives to its own citizens.

RULE: Strike down a discriminatory law if it affects out state citizens' civil liberties or important economic interests UNLESS it is necessary to achieve an important gov't purpose.
What exceptions apply to the Dormant Commerce Clause?
Congressional approval to discriminate or market participant exception if there is a state owned business.
What exceptions apply to the Art. IV privileges and immunities clause of the fed Const?
Does not apply:

(1) To corps and aliens.
(2) When there is no discrimination.
What limitations are placed on state tax on interstate commerce?
(1) States can't use tax system to help in-state businesses.

(2) State can only tax interstate activities with a substantial nexus to the state.

(3) State tax on interstate commerce must be fairly apportioned.
What is scrutiny?
When gov't laws are challenged, the courts will apply scrutiny. The type of test and level of scrutiny used against the law is based on the right it may infringe.
What is the rational basis test?
The law must be rationally related to a legitimate government purpose.

Government purpose only has to be conceivable, not actual.
Who carries the burden of proof when using the rational basis test?
The plaintiff
What is the undue burden test?
Strike down the law if its burden exceeds its benefit.
What is intermediate scrutiny?
Law must be substantially related to an important (and actual) gov't purpose.
Who carries the burden of proof when applying intermediate scrutiny?
Gov't has burden of proof.
What is strict scrutiny?
Law must be necessary to achieve a compelling and actual government purpose.
Who carries the burden of proof when applying strict scrutiny?
Government has burden to show that no less restrictive alternative is necessary (available???).
What rights trigger strict scrutiny?
Right to marry, procreate, custody of children, keep a family together, control raising children, purchase and use contraceptives, travel (covered under equal protection), vote (covered under equal protection), freedom of speech (equal protection), freedom of association (equal protection), free exercise of religion (if the law is not a neutral law of general applicability).
What rights trigger the undue burden test?
Right to abortion.
What rights trigger rational basis review?
Right to practice a trade or profession, to physician-assisted suicide, to education.
What rights have the courts not assigned a level of scrutiny to?
Right to engage in private consensual homosexual activity & to refuse medical treatment.
When does the federal Constitution apply?
Only applies to gov't actions, not private conduct...

BUT 13th Amend can prohibit conduct: slavery.

AND commerce power can apply constitutional norms to private conduct.
When is a private party performing a public function?
When a private entity is performing a traditional gov't task.

Must comply with constitution.
What is entanglement?
When government authorizes, encourages or helps a private entity perform an unconstitutional activity.

Ex: Cts can't enforce racially restrictive covenants; only applies when there is a state action.
What are some examples of entanglement?
(1) State action when Gov't leases premises to restaurant that racially discriminates.
(2) State action when Gov't gives free books to prvt schools that racially discrim.
(3) State action when a prvt entity regulates interscholastic sports w/in a state.
(4) No state action when a gov't subsidized prvt school fires teacher for speech.
(5) No state action when NCAA orders suspension of coach at state university.
(6) No state action when a prvt club w/ state liquor license racially discriminates.
To whom does the Bill of Rights apply?
Applies directly to federal gov't.

Applies to state and local governments via the 14th Amend.
What rights are not incorporated into the Bill of Rights?
(1) Second Amend: Right to bear arms
(2) Third Amend: Right to not have soldiers quartered in person's home.
(3) Fifth Amend: Right to grand jury indictment in criminal cases.
(4) Seventh Amend: Right to jury trial in civil cases.
(5) Eighth Amend: Right against excessive fines.
When does procedural due process apply?
When an intentional gov't action (negligence is not enough) that results in a deprivation of life, liberty or property.

Gov't does not have a duty to protect ppl from prvt harm.
What is a deprivation of liberty?
Loss of freedom
What is a deprivation of property?
Entitlement isn't fulfilled
When does procedural due process apply?
When there is a deprivation of life, liberty or property.
What is a deprivation of liberty?
Loss of freedom
What is a deprivation of property?
Entitlement isn't fulfilled
What is the procedural due process balance test?
Balance: (1) Importance of interest to individual (2) Ability of additional procedures to increase accuracy of fact-finding (3) Gov't interest in administration efficiency and gov't cost.
Does PDP require notice and hearing before termination of welfare benefits?
Yes
What does PDP demand when taking away social security benefits?
Only need post termination hearing.
What does PDP demand when disciplining a student in a public school?
Need notice of charges and opportunity to explain.
What does PDP demand before a parent's custody is permanently terminated?
Need notice and hearing.
What does PDP demand when awarding punitive damages?
Need jury instructions and judicial review.
What does PDP demand before prejudgment attachment and government seizure of assets?
Need notice and hearing EXCEPT in exigent circumstances.
What is the test for Substantive Due Process?
Adequate Reason: The gov't has to have an adequate reason to take life, liberty or property.
What test will courts use to determine if a taking under Substantive Due Process was adequate?
Rational Basis Test
What does the Fifth Amend takings clause say?
The gov't can take prop for public use, but must pay just compensation.
What are the two types of takings?
(1) Possessory taking: Govt's confiscation or physical occupation of prop.

(2) Regulatory taking: Govt's regulation leaves prop economically unviable.
How will courts determine if property was taken for "public use" pursuant to the Fifth Amendment's takings clause?
Must have a reasonable belief that the action will benefit the public.

If NOT met, gov't must return prop.

If met, gov't must pay just compensation.
What is the contracts clause rule?
States can't impair the obligations of existing contracts.
Does the contracts clause apply to the federal government or future contracts?
No
What test applies if a state interferes with a private contract?
Intermediate scrutiny: Law must be reasonably and narrowly tailored to an important and legitimate public interest.
What test applies if a state interferes with a gov't contract?
Strict scrutiny: Law must be necessary to achieve a compelling gov't purpose.
Is privacy a fundamental right protected under Substantive Due Process?
Yes
Give examples of when strict scrutiny applies to privacy rights.
Right to: marry, procreate, custody of children (state can create irrebuttable presumption that married woman's husband is the father), keep family together, control upbringing of kids (no visitation for grandparents with parent's objection), and refuse contraceptives.
What test applies to the right to abortion?
Undue Burden Test
What is the rule for gov't regulation of abortions before viability?
States can't prohibit abortion before the embryo is viable but can regulate if it does not create an undue burden -- can't prohibit partial birth abortions altogether.

Valid examples: 24 hour waiting period before abortion, must be performed by a licensed doctor.
What is the rule for state regulation of abortions after viability?
States can prohibit UNELSS abortion is needed to protect woman's life or health BUT there is no gov't duty to subsidize the abortion.
Can states require spousal consent for a woman to get an abortion?
No -- unconstitutional
Can states require minors to get parental notice or consent before an abortion?
Yes as long as there is an alternate judge procedure.
What is the rule when dealing with the right to refuse medical treatment?
Rational basis applies.

State may require clear and convincing evidence that person wanted treatment terminated and can CAN prevent family members from terminating treatment on person's behalf.
Is there a constitutional right to physician assisted suicide?
No
What test applies to the right to education?
Rational Basis
What is the strict scrutiny test?
Law must be necessary to achieve a compelling gov't purpose.
Give examples of equal protection classifications that require strict scrutiny.
(1) Race: Quotas require proof of past descrim; schools can use race as one factor only; seniority systems can't be disrupted to accommodate race
(2) National Origin
(3) Alienage
(4) Fundamental Rights: moving across state lines, residency, voting, etc
Are states allowed to implement durational residency requirements before given new residents certain rights?
Generally no UNLESS the duration is for a short period of time.

Example: Five year residency requirement before receiving welfare is unconstitutional BUT can have a max of 50 days before voting rights are granted.
What level of scrutiny applies to restrictions on foreign travel?
Rational Basis Test
What is the intermediate scrutiny test?
Laws must be substantially related to an important gov't purpose.
Give examples of equal protection classifications that require intermediate scrutiny.
(1) Gender: Classifications that benefit women based on stereotypes are unconstitutional BUT laws may be designed to remedy past discrim
(2) Illegitimate children
(3) Undocumented alien children
What is the rational basis test?
Laws must be rationally related to a legitimate government interest.
Give examples of equal protection classifications that must meet the rational basis test.
(1) Alienage related to voting or serving on a jury
(2) Congressional regulation of aliens
(3) Age
(4) Handicap
(5) Wealth / Economic
(6) Sexual Orientation
(7) All other classifications
What is a subject matter first amendment restriction?
Restriction based on the topic of speech.
What is a viewpoint first amendment restriction?
Restriction based on ideology of message.
What level of scrutiny applies to content based restrictions on speech?
Strict Scrutiny
What level of scrutiny applies to content neutral restrictions on speech?
Intermediate Scrutiny
What is a content neutral restriction on speech?
Restriction applies to all speech, no matter the topic. It may restrict the time or place it gives to speech.
What level of scrutiny applies to prior restraint?
Strict Scrutiny
What is prior restraint of speech?
Stops speech before it occurs.
When is prior restraint of speech constitutional?
Gov't can require a license if there is an important reason for licensing and no discretion for licensing authority.

Gov't must have procedural safeguards for prompt review of a denied license AND application process can't be vague or random.
When is a law that applies to speech void for vagueness?
A law is unconstitutional if a reasonable person can't tell what speech is prohibited.
When is a law that regulates speech void due to overbreadth?
Law is unconstitutional if it regulates more speech than allowed.
What is an example of an overbroad (void) law that regulates speech?
Simply banning fighting words.
When can the gov't regulate symbolic speech?
Gov't can regulate if it has an important interest unrelated to suppression of the message AND if the impact on community is no greater than necessary to achieve govt's purpose.
Is it constitutional for the gov't to regulate flag burning, burning a cross, or to give penalty enhancements for hate motivated crimes?
Yes
Is it constitutional for the gov't to regulate draft card burning, nude dancing, or campaign expenditure limits?
No
Is anonymous speech protected by the first amendment?
Yes. The right to speech includes the right not to speak or speak without revealing identity.
When can the gov't regulate speech that is used for incitement?
Gov't can limit speech if it has substantial likelihood of imminent illegality AND speech is directed to causing that imminent illegality.
Can the gov't regulate obscenity?
Yes
What is the test used to determine whether the gov't can regulate speech as obscenity?
(1) Speech must appeal to prurient interest: distinguished from healthy interest in sex
(2) Speech must be patently offensive under law prohibiting obscenity
(3) Taken as a whole, material must lack serious redeeming artistic, literary, political or scientific value: By national, not local standard
Are zoning ordinances constitutional for adult book stores and theaters?
Yes
What is the rule for child pornography?
Child porn is completely banned. It is ruled that the go'vt has a compelling interest in its regulation.
Can the gov't punish private possession of obscene materials?
No BUT gov't can punish for private possession of child porn.
Can the gov't seize the assets of a business convicted of violating obscenity laws?
Yes
Is profane and indecent speech protected?
Generally, yes.
Is it protected to transmit indecent language over the Internet in a way that is accessible to minors?
Yes
Is it constitutional to convict a person wearing a jacket in court that says "f*&$ the draft"?
No b/c censoring words is censoring ideas
Can broadcast media be regulated?
Yes if it is free, over air broadcasting.

Cable can't be regulated because people can choose to bring it into their house or not.
What is the rule for regulating speech in schools?
Schools are a special area where speech can be regulated -- including sexual innuendo.
What is the rule for regulating commercial speech?
Commercial speech can be regulated if the regulation is narrowly tailored to gov't purpose.
Give some examples of when commercial speech can be regulated.
(1) Gov't can prohibit false or deceptive ads.
(2) Gov't can prevent true speech with an inherent risk of deception (professionals from using trade name, in-person client solicitation by attorneys)
What level of scrutiny applies generally to regulation of commercial speech?
Intermediate Scrutiny
When can a public official or public figure recover under a defamation claim?
If P is a public official, a public figure, or running for public office, then he can recover only by proving falsity of statement and actual malice.
What type of damages can a public official or public figure get using a defamation claim?
Can get compensation and punitive damages.
Who has the burden of proving falsity when a public official or public figure sues for defamation?
The P has burden of proof for falsity.
When can a private figure with matter of public concern recover under a defamation claim?
Must prove falsity of statement, negligence and actual injury.
What type of damages can a private figure with a matter of public concern recover using a defamation claim?
Can get compensation without malice OR punitive damages with malice.
Who carries the burden of proof when a private figure with a matter of public concern sues for defamation?
P has buren of proof for falsity.
What must a private figure with a private concern prove to bring a successful defamation claim?
Only needs to prove falsity of statement and negligence.
What damages are available to private figure with a private concern under a defamation claim?
Can get compensation and punitive damages.
Who carries the burden of proof when a private figure with a private matter sues for defamation?
Burden of proof is on the D for truth.
Can the gov't create liability for the truthful reporting of information that was lawfully obtained from the gov't?
No
When may the media face liability for broadcasting an illegally intercepted call?
Liability is not allowed if the media did not participate in the illegality and it involves a matter of public importance.
May the gov't keep information confidential from the press?
Yes
What level of scrutiny is applied to gov't restriction based on the content of speech?
Strict Scrutiny
What is a public forum?
It is a place generally open to the public.

Examples: sidewalks and parks.
What types of restrictions can the gov't place on speech in a public forum?
Regulation must be:

(1) Subject matter neutral
(2) Viewpoint neutral
(3) About the time, place, and manner that serves an important gov't purpose and leaves open adequate alternative places for community.
Must gov't regulation of speech in a public forum meet the least restrictive means test?
No
Can city officials have discretion to set permit fees when regulating speech in a public forum?
No
What is a limited public forum?
A non-public forum that the gov't opens to speech.

Example: Schools open for public use.
What standards must the gov't meet when regulating speech in a limited public forum?
Once gov't opens a property for speech, it must meet all of the requirements for public forums.
What is a non-public forum?
Places not open to the public for speech.

Example: Military bases, airports, or sidewalks on post office property.
What standards must the gov't meet when regulating speech in non-public forums?
Regulation must be:

(1) Reasonable for a legitimate interest.
(2) Viewpoint neutral, BUT the reg doesn't have to be subject matter neutral.
What level of protection is speech afforded on private property?
No First Amendment rights. Private owner has the right to their property and privacy.
What level of scrutiny is applied to laws that prohibit or punish group membership (freedom of association)?
Strict Scrutiny
What test must be met for the gov't to lawfully punish a person for group membership?
Gov't must prove:

(1) Actively affiliated with the group
(2) Knows of its illegal activities
(3) Has specific intent to further the illegal activities
What level of scrutiny is applied to laws that require disclosure of group membership that would chill association?
Strict Scrutiny
When are laws that prohibit a group from discriminating unconstitutional?
They are unconstitutional if they interfere with intimate association or express activity.
When can a person use the Free Exercise clause (freedom of religion) to challenge a law of general applicability?
Can use it if the law is motivated by a desire to interfere with religion.
Can the gov't deny benefits for people who quit jobs for religious reasons (free exercise clause)?
No
What is the Establishment Clause test?
Lemon test -- For law to be constitutional, the following elements must be met:

(1) There must be a secular purpose
(2) Effect cannot advance or inhibit religion, and
(3) No excessive entanglement with religion
What level of scrutiny is applied to gov't discrimination against religious speech or religions?
Strict Scrutiny
Is gov't-sponsored religious activity in schools constitutional?
No
What level of access to school facilities must religious student and community groups be afforded?
The same level
Is voluntary or silent prayer in school constitutional?
No
What is the rule for gov't assistance to parochial (religious) schools?
Gov't may give assistance so long as the funds aren't actually used for religious instruction.

Example: It is constitutional to give vouchers to parents who use it in parochial schools if it is used for secular purpose to improve education and its parents' choice.