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120 Cards in this Set

  • Front
  • Back
What are the 4 requirements of jusiticiability?
Political Question Doctrine
What is the definition of standing?
Standing is the question of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
What are the three requirements of standing?
1. Injury (must be personally suffered)
2. Causation and redressability (defendant must have caused it_
3. No third party standing
No generalized griveances (exception is with the establishment clause)
What are the thee exceptions to the rule that a plaintiff cannot assert claims of others, or third parties who are not before the court?
1. 3rd partystanding is allowed if there is a close (very close) relationship bw the p and the injured 3rd party.
2. is allowed if the injured third party is unlikely to be able to assert his own rights
3. An organization may sue for its members if the members would have standing to sue, the interests are germaine to the organization's purpose, and neither the claim nor relief requiresparticipation of individual members.
What is ripeness?
Ripeness is the question of whether a federal court may grant preenforcement review of a statute or regulation.
What are the issues that determine ripeness?
1. The hardship that will be suffered without preenforcement review
2. The fitness of the issues and the record for judicial review?

Basically, I probably can't get a preenforcement judgment unless i can show imminent harm if no declaratory judgment.
What are the 3 exceptions to mootness?
1. A wrong capable of repetition but evading review (roe v. wade)
2. Voluntary cessation
3. Class action suits (as long as some members claims are still viable)
What are the 4 issues that federal courts will not touch bc of the political question doctrine?
1. "The republican form of government clause."
2. Challenges to the PResident's Conduct of foreign policy
3. Challenges to the impeachment and removal process
4. Challenges to partisan gerrymandering.
Most cases come to the supreme court by writ of certiorari....what types of cases are included in that?
1. Cases from state cts where constitutionality of a stattue is in issue or a state statute that allegedly violates federal law.
2. federal court of appeals
3. 3judge panels
4. If it rests on state law ground and federal law, if the supreme court's reversal of the federal law ground will not change the result in the case, the supreme court cannot hear it.
What is the rule about the 11th amendment and limits on federal courts?
It prohibits fed courts from hearing a private party's or foreign government's claims against a state government. Under sovereign immunity, no suits against states in state courts or federal agencies.
When can states be sued?

Actions against local governments
Actions BY the US or states
State Officers
14th Amendment
Is there a federal police power?
No. For Congress to act, there must be express or implied authority.
What is the necessary and proper "power?"
It means that Congress can do whatever it takes to execute the powers it has.

Note, this power only works with other powers. No act is every justified by it alone.
So what are the three most important Congressional Powers?
taxing Power
spending power
commerce power.
What is MILD
Its thetimes that congress can simply legislate for the general welfare.
Stands for Military, Indian Affairs, Land (federal), and District of Colombia
What do we know about the Commerce Clause?
1. Regulate channels (highways)
2. Regulate instrumentalities (the trucks, planes
3. Activiites that have a substantial effect on them. (rational basis, marijuana growing passed this test)

Look for if activity is noncommercial and noneconomic, you need substantial economic effect on interstate commerce
What's a perfectly legitimate, but tricky way that Congress can get around the 10th amendment limitation on congressional powers (all powers not granted to the US are reserved to the states and the people)
Congress can induce state government action byputting strings on grants so long as the conditions are expressly stated and relate to the purpose of the spending program.
Is there any limit on Congress's ability to delegate legislative power?
No. Never overruled, always a wrong answer.
Legislative vetoes, line item vetoes are....
If a treaty conflicts with a federal statute
the one adopted last in time prevails...
Executing agreements prevail over ____ but never over ______ or ______
conflicting state laws....conflicting federal laws.....the constitution
Can the president fire any member of the executive branch?
Pretty much. Congress can never prohibit removal, but in certain cases, it can limit removal to where there is good cause.
What's the deal with executive privilege for presidential papers and conversations?
They are privileged but not absolute, they must yield to other important government interests
Can the PResident pardon somebody for any crime?
No- just federal offernse, not for impeachment and not for civil contempt.
What is implied preemption?
1. If federal and state law are mutually exclusive, federal law preempts state law
2. If state law impedes the achievement of a federal objective, federal law preempts state law
3. If Congress evidences a clear intent to preempt state law, federal law preempts state law.
Why is it called the dormant commerce clause?
"even where congress has not acted, the Commerce Clause restricts state regulation of interstate commerce, states may not favor local economic interests or unduly burden interstate commerce
What is the privileges and immunities clause?
prohibits discrimination by a state against nonresidents
What is the first question to ask in a DCC and Privilege and Iimmunities clause question of article IV.
Does the state law discriminate against out of staters?
What is the analysis if the law does not discriminate?
The privileges and immunities clause of Article IV does not apply

If the law burdens interstate commerce, it violates the dormant clause if its burdens exceed its benefits.
What if the law discriminates against out of staters?
If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. (this is a heavy burden to reach)
What are the exceptions to the rule of what happens when a state law burdens interstate commerce?
1. Congressional Approval
2. The market participant exception (a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses
WHat happens if the law discriminates against out of staters WRT their ability to earn their livelihood?
It violates the privileges and immunities clause of Article IV unless it is necessary to acheive an important government purpose.
When must courts in one state give full faith and credit to judgments of courts in another state?
1. The court that rendered judgment had jurisdiction over the parties and the subject matter.
2. The judgment was on the merits
3. The Judgment is final.
The Constitution applies only to government action
Private conduct need not comply with the constitution
How do constitutional norms end up applying to private conduct?
By Congress passing statutes.
By the 13th amendment prohiting private race discrimination
The Commerce Power
NOT NOTNOT § 5 of the 14th amendment.
What are the exceptions to the rule of the constitution applying only to govt action?
Public function exception
The entanglement exception-the const applies if the govt affirmatively authorizes, encourages, or faciliatates unconstitutional activity.
What are the best known "entanglement exceptions?
1. Courts cannot enforce raciall restrictive covenants
2. There is a state action when a govt leases premises to a restaurant that racially discriminates
3. There is a state action where state govt provides free books to schools that racially discriminate
4. There is no state action where a private school fires a teacher over free speach (govt subsidies is not enough)
5. There is a no state action where NCAA orders the suspension of a basketball coach
6. There is a state action for TAA
7. There is no state action when a private club with a liquor license intentionally discriminates
What is the rational basis test?
Most deferential to the govt, govt wins if rationally related to a legitimate government purpose.

Challenger has the burden of proof. Has to show that there is no conceivable purpose or that the law is not rationally related to that purpose.
What is intermediate scrutiny?
Must be substantially related to an important govt purpose. More than just legitimate, must be important. Court will look at actual objective and means must be substantially related. Must be narrowly tailored but it doesn't have to be the best, least restrictive way. The government has the burden of proof.
What is strict scrutiny?
A law will be upheld if necessary to achieve a compelling government purpose. The court must be pursuaded that government actual goal is a compelling one. The means shown must be necessary to achieve the objective. No less restrictive alternative can achieve the goal. The govt usually loses and of course govt has the burden of proof.
What is the 2 step process for any Procedural Due Process Question?
Has the been a deprivation of life, liberty or property?

If so, how much process is required?
When does a deprivation of libery occur?
A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
Except in an emergency, before an adult can be institutionalized, there must be ____
When a parent institutionalizes a child there only has to be a ____ fact-finder as _____
Neutral, Screener
Is Harm to reputation, by itself, a loss of liberty?
In terms of procedural due process, will prisoners have liberty interests?
When does a deprivation of property occurr?
If there is an entitlement and that entitlement is not fulfilled
If you see an answer choice with rights v. privileges....
Its always a wrong answer
What is an entitlement?
A reasonable expectation of a continued benefit.
In order for the government to have deprived you of due procee, that action must be....
Intentional or at least reckless. In emergency situatiions, the govt is liable under due process only if its conduct shocks the conscience....
Does the government's failure to protect people from privately inflicted harms deny due process?
No. BOy was beaten by his father. Can't sue the govt for not intervening. In order for this to applyk, the govt must have created the danger or the person must be in govt custody.
What are the three things to balance in determining how much process is required?
1. The importance of the interest to the individual
2. The ability of additional procedures to increase the accuracy of the fact-finding
3. The government's interest in administrative efficiency.
Before welfare benefits can be terminated, there must be ____ and _____
Notice, hearing
Before social security disability benefits are terminated, there only need be......
a post-termination hearing
When a student is disciplined by a public school, there must be _____ of the charges and an _____ to explain
notice, opportunity
Before a parents rights with regard to a child's ____ there must be a ______
PUnitive damage awards require instructions to the jury and post-judicial _____ to make sure an award is ______. Grossly excessive punitive damages violate due process.
Review, reasonable.
Accept in ____ circumstances, pre-judgment attachment or govt seizure of assets must be preceded by ____ and ______ If there's reason to believe that someone would sell, govt can attach
exigent, notice, hearing
What is the definition of substantive due process?
Whether the govt has an adequate reason for taking a person's life, liberty or happiness.
What tests is used for laws affecting economic rights?
Rational basis test.

The Constitution provides only minimal protection for laws affecting economic rights.
What are the three steps in a takings clause question?
1. Is there a taking
2. Is it for public use?
3. Is just compensation paid?
What are the 2 types of takings?
1. Possesory taking- govt confication or physical occupation of property is a taking? No matter how small
2. Regulatory taking- only if it leaves no reasonably economicallly viable use of the property.
Govt conditions on development of property must be justified by a benefit that is roughly proportionate
to the burden imposed, otherwise it is a taking
A property owener may bring a takings challenge to regulations that existed...
at the time the property was acquired.
Temporarily denying an owner use of property is not a taking so long as the govt's action is...
What happens if the court finds that the land is not for public use
Give it back. All you need though to constitute for the public use is reasonable belief that it will benefit the public.
What is the contracts clause?
No state shall impair the obligations of contracts.

Applies only to state or local interference with existing contracts
What scruting if state or local interference with private contracts?
What scrutiny if state or local interference with government contracts?
Strict scrutiny
Does the ex post facto clause apply in civil cases?
No. An ex post facto law is a law that crminally punishes conduct that was lawful when it was done or that increases the punishment for a crime after it was committed.
Privacy is a fundamental right protected under substantive due process. Whaat are some examples?
1. Right to marry
2. The right to procreate
3. The right to custody of one's children
4. The right to keep the family together.
5. The right to control the upbringing of one's children
6. The right to purchase and use contraceptives.
7. The right to abortion
What is the current law on abortion?
States may not prohibit it, but they can regulate it. 24 hour watiing periods, performed by licensed physcians, prohibition of partial birth abortions

Spousal consent and notification laws are unconstitutional.

You can require parent consent, as long as they also have a chance to go before a judge.
Do you have a right to refuse medical treatment?
Yes, even life-saving medical treatment.

A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended

A state may prevent family members from terminating treatment for another.
What is the proper approach to equal protection questions?
1. What is the classification
2. What levels of scrutiny should be applied.
3. Does this law meet the level of scrutiny?
What scrutiny for classifications based on race and national origin?
1. Strict Scrutiny
2. Prove the racial classification by on its face, or if facialy neutral must prove discriminatory impact and discriminatory intent.
How should racial classifications benefiting minorities be treated?
Strict Scrutiny
Numerical set asides require clear proof of past discrimination
Educational institutions may use race as one factor in admissions decisisons to help minorities
Seniority systems may not be disrupted for affirmative actions.
How Should Gender Classifications be treated?
1. Intermediate Scrutiny
2. If law is facially neutral, must show both discriminatory impact and intent
3. Gender classifications benefiting women that are based on role sterotypes will not be alloweed
4. Gender classifications that are designed to remedy past discriminations and differences in opportunity will be allowed.
How should alienage classifications be treated?
1. Strict Scrutiny
2. Rational basis for classifications that concern self-government and the democratic process.
3. Rational basis for COngressional discrimination against aliens (such as immigration)
4. Intermediate scrutiny for discrimination against undocumented alien children.
How should Discrimination against non-marital children be treated?
1. Intermediate scrutiny is used
2. Laws that deny a benefit to all-non-marital children but grant it to all marital children are unconstitutional.
Rational basis is used for all other types of discrimination under the constitution, including....
1. Age discrimination
2. Disability discrimination
3. Wealth discrimination
4. Economic regulations
5. Sexual Orientation Discrimination
What fundament rights are protected under equal protection?
The right to travel
The right to vote
there is no fundamental right to education
If a law prevents people from moving into a state or establishes a durational residency requirement, what level of scrutiny will the courts give it?

Restrictions on foreign travel need meet only the rational basis test.
How will the right to vote be treated?
Laws that deny some citizens the right to vote must meet strict scrutiny
One person -one vote must be met for all state and local elections.
At large elections are constitutional unless there is proof of a discriminatory purpose.
The use of race in drawing election district lines must meet strict scrutiny
Counting uncounted votes without standards in a presidential election violates equal protection.
What are the two types of restrictions on free -speech?
Content based vs. content neutral
What are the two types of content-based based laws?
Subject matter restrictions (application of the law depends on the topic of the message)
Viewpoint restrictions (application of the law depends on the ideology of the message

Both get strict scrutiny.
What level of scrutiny for content neutral laws burdening speech?
Intermediate scrutiny.
What is the supreme court's take on prior restraint?
They must meet stict scrutiny.

The govt can require a license for speech only if there is an imporant reasons for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.
What about vagueness?
A law is unconstitutionally vauge if a reasonable person cannot tell what speech is prohibited and what is allowe
What is always the answer wtih fighting word laws?
Always unconstitutional
What are some examples of symbolic speech?
Flag burning = const
Draft card burning= unconst
Nude dancing= not const protected
cross burning= const unless bad intent
contribution limits to campaign = const
expenditure limites = unconst.
What is the 3 part test for obscenity, of which all must be met. ?
1. The material must appeal to a shameful or morbid interest in sex
2. The material must be patently offensive under the law prohibiting obscenity
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national standard, not local standard)
May child porn be completely banned?
Yes. CGI cannot though.
May the govt punish private possession of obsene materials?
No, only if you have child porn are you in trouble.
T or F, the govt may seize the assets of business convicted of violating obsenity laws?
True, they can take a huge amount
Does the 1st amendment protect profane and indecent speech?
Yes. exception are broadcast media and in schools
Are false and deceptive ads protected by the 1st amendment?
Must government regulation be narrowly tailored?
YEs, but it need not be the least restrictive alternative.
If you are a public official or running fro public office or a public figure, how can you recover for defamation?
By proving falsity of the statement and actual malice
IF the plaintiff is a private figure and the matter is of public conern?
Plaintiff must prove falistity. you may recover for defamation by proving negligence. If you want damages you need to show actual malice.
If the plaintiff is a private figure and the matter is not of public concern?
The plaintiff can recover presumed or punitive damages without showing actual malice.
True or False...the government may create liability for the truthful reporting of information that was lawfully obtained from the government?
True or false, liability is allowed if th emedia broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality and it involves a matter of public importance?
true or false, Speech by government employees on the job in the performance of their duties is not protected by the 1st amendment
Other government restrictions based on the content of speech must meet...
Strict scrutiny
What places are available for speech?
Public forums are widely available. Regulations must be subject matter and viewpoint neutral or if not, strict scrutiny must be met
Regulations on speech in public forums must serve _______ and leave open adequate alternative places for communication.
an important government purpose.
What are limited public forums?
Govt properties that the government could close to speech but chooses to open to speech. Same rules apply as for public forums
What are non-public forums-
Govt properties tha tthe govt constitutionally can and does close to speech. The govt may regulate speech here as long as its reasonable and viewpoint neutral.
What are some examples of non-public forums
Miltary bases
Areas outside prisoner's jails
Advertising space on city busses
Sidewalks on post office property
True or false, there is no 1st amendment right of access to private property for speech purposes/
How will laws that prohibit or punish group membership be treated?
must meet strict scrutiny. to punish membership in a group it must be proven that the person is actively affiliated with the group, knows of the group's illegal activities, and has the specific intent of furthering the illegal activities
What is the treatment of laws that require disclosure of group memebership, where such disclosure wuld chill association?
Must meet strict scrutiny
True or false, laws that prohibit a group from discriminating are unconstituional
False, they are constituional unless they interfere with intimate association or expressive activity.
What is the test to see if something fails the test for the establishment clause?

If it fails any of these, its unconstituional
1 There must be a Secular purpose for the law
2. The effect must be neither to advance nor inhibit religion
3. There must not be excessive entanglement with religion
If govt sponsored religious activity in public schools is unconstitutional, must religious student and community groups have the same access to school facilities as non religious groups?
Yes. ALso, while school prayer is not allowed, moments of silent reflection are...
May the govt give money to parochial schools?
Yes, as long as its not used for religious instructions. The govt may also provide parents with vouchers that they may use in parochial schools.
What is the "property clause?"
It gives Congress the power to do whatever the fuck it wants on federal lands.
What is the admiralty power?
Congress can regulate all navigable water ways.
Will a tax based on a magazine's content be upheld?
No, absent a compelling justification
When can a federal court hear private claims against a state government?
Only under the 14th amendment Congress's power to prevent discrimination