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103 Cards in this Set
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A law that treats a person or class of persons differently from other is likely to raise an issue of? |
Equal protection |
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If government action is challenged under the DPC or EPC, and no fundamental right or suspect or quasi-suspect classification is involved - what is test to determine constitutionality? |
RB --> The law will be upheld unless the challenger can prove that it is not rationally related to a legitimate government interest. |
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Facets of rational basis review? |
Law will be upheld unless it is arbitrary. Law is valid so long as it is rationally related to a legitimate interest. The burden of proof is on the challenger to show that the law is unconstitutional. |
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If government action intentionally discriminates on the basis of gender, for EPC purposes, the government must show that an exceedingly persuasive justification exists to pass the ______________ scrutiny test. |
Intermediate scrutiny. Classifications based on gender or legitimacy are almost always suspect - the Court will apply the IS and strike the action unless it is substantially related to an important government interest. |
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A state law denying government benefits to an individual based on alienage triggers which level of scrutiny under the EPC? |
Strict scrutiny. State must prove that the discrimination is necessary to achieve a compelling government interest. |
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The government may not impose __________________ on a woman's ability to obtain an abortion before viability. |
Undue burden. |
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Equal protection refers to constitutional requirement that _________? |
Laws not be applied differently to different classifications of people absent a sufficient reason. Sufficiency turns on classification. |
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Under the one person, one vote principle _____________, regarding congressional districts. |
Almost exact mathematical equality between the congressional districts within a state is required. Rationale - voting is a fundamental right, diluting one person's compared to another raises EPC concerns. |
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One factor in determining whether excessive punitive damages violate due process is the disparity between the ______________ and the ______________. |
One factor in determining whether excessive punitive damages violate due process is the disparity between the actual harm suffered by the plaintiff and the punitive award.. Courts also consider the reprehensibility of the defendant's conduct, and difference in award and the criminal/civil penalties authorized for comparable misconduct. |
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In gender-based equal protection cases, the government must show ______________ to pass the intermediate scrutiny test. |
An exceedingly persuasive justification. SCOTUS has not defined term. |
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Where a state law denies government benefits to an individual based on alienage, what level of scrutiny is used to assess its validity under the EPC? |
Strict scrutiny is used to determine whether the law would violate the EPC. |
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Explain facets of strict scrutiny test? |
The government has the burden of proving that the law is necessary to achieve a compelling government interest. |
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Burden and standard that apply to case charging intentional discrimination by a state government on the basis of gender? |
IS --> Government must show an exceedingly persuasive justification to pass the intermediate scrutiny test. |
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Which is not a suspect classification for EP purposes: National origina Race Alienage Geneder |
Gender Gender is not considered a suspect classification for equal protection purposes. Gender is a quasi-suspect classification, triggering an intermediate standard of scrutiny in determining whether a government action or law violates equal protection. |
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SCOTUS has indicated that ____________________ is sufficient justification for a state government hiring program that favors one race over another. |
Remedying past discrimination by the hiring government agency. |
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What standard of review is applied when a government classification based on gender or legitimacy is challenged? |
An intermediate scrutiny standard, under which the law will be upheld if it is substantially related to an important government purpose. |
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If government action intentionally discriminates on the basis of gender, for equal protection purposes the government must show that an exceedingly persuasive justification exists to pass the __________ scrutiny test. |
Intermediate. |
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A program of minority hiring to correct the effects of past discrimination in hiring by a governmental agency _____________ a sufficient justification for a government program differentiating on the basis of a person’s race? Is or is not? |
Is |
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If a law or government action classifies persons based on a suspect classification, a __________________ standard applies to determine whether the law or action violates equal protection. |
Strict scrutiny |
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What standard of review usually is applied when a law involving a fundamental right is challenged? |
Strict scrutiny, and the government has the burden of proving that the law is necessary. |
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When a law that involves classifications based on gender or legitimacy is challenged, __________. |
An intermediate scrutiny standard is applied, and the burden of proving that the law is constitutional generally is on the government |
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When a government classification intentionally discriminates on the basis of gender or legitimacy, the classification will be found unconstitutional unless the government can prove that the classification is at the least __________. |
Substantially related to an important government purpose. |
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Under the rules the Supreme Court currently uses to determine whether an abortion regulation is valid, the government may not impose an undue burden on a woman’s ability to obtain an abortion __________. |
Before viability. After viability, the government may prohibit abortion unless the woman’s health is threatened. |
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Which of the following lists includes only what the Supreme Court considers suspect classifications under the Equal Protection Clause? |
Race and national origin. Gender is not a suspect classification, although the Court does apply intermediate scrutiny when state action discriminates on the basis of gender or legitimacy. These two classifications are usually called “quasi-suspect.” |
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Under the Due Process Clause of the Fifth Amendment, a person has a _________ interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A ___________ employee may not be fired for expressing his views regarding _______ issues, but can be fired for speech that ______________________ or ___________________. |
Liberty, Government, Public, Disrupts the employer's policies / undermines the employer’s authority |
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The mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny. There must be __________________ on the ____________________, which can be shown by the _____________________ or regulation that appears ___________________. |
Intent to discriminate / on the part of the government, discriminatory application of a law / regulation that appears neutral on its face. |
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Intent to discriminate is established, which can be shown by__________. And triggers _______________ (level of scrutiny). |
(i) facial discrimination, (ii) discriminatory application, or (iii) discriminatory motive. Strict scrutiny, which requires proof of a compelling interest to uphold the discriminatory classification. |
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Is discriminatory effect sufficient for purposes of finding an intent to discriminate? |
No. |
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When analyzing government action based on gender classifications, the Court will apply an _______________ and strike the action unless the ____________ proves, by an ______________, that the action is ___________ to an ___________ government interest. |
Intermediate scrutiny standard, government, exceedingly persuasive justification, substantially related, important. |
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The DPC of the 5th amend is applicable to whom? The DPC of the 14th amen is applicable to whom? |
5th amend DPC applies to the federal government. 14th amend DPC applies to states. Rule: The government shall not take a person's life, liberty, or property without due process of law. |
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When is there a right to procedural due process? |
When the government acts to deprive an individual of life, liberty, or property. There is no right to individualized adjudication when the government acts generally. |
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Fair process is required for ___________ acts of the government or its employees. |
Intentional acts of government. If an injury is caused to a person through the mere negligence there is no violation of the DPC. |
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What is a deprivation? |
Only when the government affords no remedy or inadequate remedies may a deprivation of life, liberty, or property result. More than a mere denial of certain kinds of remedies. |
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When does the DPC require the judge recuse himself? |
When he has actual bias, or when there is merely a serious risk of actual bias. One has actual bias when he has a direct, personal, substantial, pecuniary interest in a case. A serious risk of actual bias arises when under a realistic appraisal of psychological tendencies and human weakness, the judge's interest poses such a risk of actual bias or prejudice that it must be forbidden. |
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General rule for when life, liberty, or property is taken, go. |
The Court will determine whether a legitimate liberty or property interest is being taken. No longer does the distinction turn on rights v. privileges. |
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A deprivation of liberty occurs where: |
a person 1. loses significant freedom of action, or 2. is denied a freedom provided by the Constitution or a statute. Typical examples include commitment to mental institution, injury to reputation that causes significant employment loss, and prohibiting a person's freedom to engage in activities that involve fundamental rights. |
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Adults are entitled to a(n) ______ _______ before they are indefinitely committed to a mental institution against their will. Standard of proof is _________. |
Entitled to adversary hearing before committed. 1. State must prove the basis for commitment by clear and convincing evidence, unless 2. A person has been acquitted of criminal charges on the basis of an insanity defense, then the defendant can be committed on a preponderance of the evidence that the person should be committed. |
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Confinement and minors, go. |
Minors are entitled to a screening by a neutral factfinder before commitment and mere parental consent to commitment is not enough. |
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Can a public employee be fired for engaging in constitutionally protected speech? |
No, if fired a hearing must be conducted to determine whether speech was protected. If it was, the employee cannot be fired. |
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Under the DPC, what does property mean? |
A legitimate claim or entitlement to the benefit under state or federal law. Typical examples include: public education, welfare benefits, continued public employment, |
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What does a property right with respect to public employment turn on? |
Whether the employee was at will or whether he can only be fired for cause. If it is for cause, then the employee has a property interest. |
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What does the court weigh to assess the process in a DPC claim? |
1. the importance of the individual interest 2. the value of specific procedural safeguards to that interest, and 3. the government interest in fiscal and administrative efficiency. But in all situation the Court will probably require fair procedures and an unbiased decision maker. |
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What does DPC require with regard to welfare benefits? |
DP requires an evidentiary hearing prior to termination of welfare benefits. |
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Rule regarding DPC w/ respect to disability benefits. |
No prior evidentiary hearing is required for termination of disability benefits, as long as there is prior notice to the recipient, an opportunity to respond in writing, and a subsequent evidentiary hearing. |
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Termination of parental rights, requires? |
DP does not require the appointment of counsel for indigent parents in every case in which the state seeks to terminate parental status, but only when "fundamental fairness" requires the appointment. To terminate parental rights the state must prove its allegations of parent neglect or misconduct by "clear and convincing evidence." |
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Where does the power to regulate foreign commerce lie? |
Almost exclusively with Congress, and Congress may delegate to the President. |
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When does a state violate the prohibition against impairing the obligations of a contract? |
When it substantially impairs any contract to which it it s party and the impairment does not meet the various exceptions recognized by the Court. |
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A state law criminalizing sodomy between members of the same sex (or any non-commercial private sex between consenting adults) violates what part of the Constitution? |
Substantive Due Process. |
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A state may require citizenship for important state jobs that directly affect the political process, provide that state has a __________ _________ for such discrimination. This analysis trigger which clause of the Constitution? This is an exception to which general rule? |
Rational basis. Equal protection clause. This is an exception to the usual rule that state classification of aliens are "suspect" and subject to strict scrutiny. |
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A prior restraint violates which part of the Constitution? What is the rule? |
Prior restrains on speech violate the First Amendment. A prior restraint on speech will be upheld only if it is the only sure way of preserving a fair trial for the defendant. Prior restrains are tolerable only if no less restrictive alternative would work. |
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It is ________ _________ for the government to place burdens on speech because of its content. Content based restrictions require a ___________ ________________. |
presumptively unconstitutional compelling interest. |
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A state regulation promulgated to protect the health and welfare of the citizens of the state will prevail over constitutional objections, as long as the state regulation was not instituted _______ ___ __________ against a particular religious group. |
merely to discriminate |
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When the government takes private property for public use, damages usually are measured by: |
The fair market value of the property at the time of the taking. |
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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. |
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What is an ex post facto law? |
Legislation that retroactively alters the criminal law in a substantially prejudicial manner so as to deprive a person or any right previously enjoyed for the purpose of punishing the person for some past activity. Retroactive alterations: make criminal an act that was innocent when done, prescribe greater punishment for an act that was prescribed for the act when it was committed, or reduce the evidence required to convict a person of a crime from what was required at the time that the act was allegedly committed. |
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Does the 14th amendment apply to the federal government or private individuals? |
No. No, unless their action can be attributed to the states. |
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Rule for contracts clause, go |
The CC limits the ability of states to enact laws that retroactively impair contract rights. It does not affect contracts not yet made. It do not apply to the federal government (although a flagrant impairment would be forbidden under the DPC of the 5th amen). |
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The Fifteenth Amendment prohibits the __________ from denying the right to vote to any citizen on the basis of race. |
States and the United States government |
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Test for contracts clause rule regarding private contracts |
1. does the legislation substantially impair an arty's rights under an existing contract? (if it does not, then the legislation is valid - if it does, then it will be valid only if it meets #2 and #3), 2. serve an important and legitimate public interest, and 3. is a reasonable and narrowly tailored means of promoting that interest. ** Public contracts use the same test but the action will receive stricter scrutiny. |
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A bill of attainder is what? |
A legislative act that inflicts punishment w/o a judicial trial upon individuals who are designated either by name or in terms of past conduct. Both the federal and state governments are prohibited from passing bills of attainder. |
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What three factors will courts consider when determining the procedure required under the DPC when a person faces deprivation of a protected benefit? |
The importance of the individual interest, the value of specific safeguards to that interest, and the government’s interest in efficiency |
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In determining whether government action is valid under the Establishment Clause, courts will consider: |
Whether: 1. The action has a secular purpose, 2. The action has a primary effect that neither advances nor inhibits religion, and 3. The action does not produce excessive government entanglement with religion. Where it meets all three, it satisfy's the establishment clause. |
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Under current Supreme Court precedent, the First Amendment Free Exercise Clause __________. |
prohibits government from punishing conduct just because it is religious. |
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Rule for establishment cause cases unconnected to financial aid or education |
"Rule of thumb," a law favoring or burdening religion or a specific religious group in particular will be invalid, but a law favoring or burdening a larger segment of society that happen to include religious groups will be upheld. |
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A law or government program that contains a preference for some religious sects over others must be _____________ |
It must be necessary to serve a compelling government interest (SS). |
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A government employer _________ ask a prospective employee about membership in any organization sufficiently relevant to the loyalty and competence of the prospective employee. |
May Asking about any membership is too far, however, because such a requirement would have a chilling effect on First Amendment activities. |
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Regulations of core political speech are upheld if the ___________ (party) can show that they _____________ (scrutiny standard). |
government are necessary to achieve a compelling government interest (SS). |
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Rule for public sponsorship of extracurricular clubs: |
Sponsorship of associations can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest. |
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A law or government program that contains a preference for some religious sects over others? |
It must be necessary to serve a compelling government interest |
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If a government regulation denies a landowner all economic use of his land, what result? |
If a government regulation denies a landowner all economic use of his land, the regulation generally will constitute a “taking” requiring the payment of “just compensation” under the Fifth Amendment. |
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Regulations that decrease the value of property do no necessarily result in a taking, so long as _____________. Three factors the court considers to determine whether the regulation constitutes a taking, here: |
. . . there remains an economically viable use for the property. 1. the social goals sought to be promoted, 2. the diminution in value to the owner, and 3. whether the regulation substantially interferes with distinct, investment-backed objectives. |
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Is performing education a function held to be exclusively a public function? |
No. |
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What does the 13th amen prohibit? |
Neither slavery nor involuntary servitude shall exist within the United States and Congress has the power to adopt appropriate legislation to enforce the proscription. |
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Explain commerce clause, generally: |
Congress may regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce. |
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If a fundamental right or suspect classification is involved, apply which standard? |
Strict scrutiny |
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If a quasi-suspect classification is involved, apply which standard? |
Intermediate scrutiny. |
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If a classification does not affect a fundamental right, or involve a suspect of quasi0suspect classification, apply which standard? |
Rational basis. |
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If Congress has not enacted laws regarding the subject (whatever the regulation is), a state or local government may regulate local aspects of interstate commerce. To do so however, it must . . . |
no discriminate against or unduly burden interstate commerce. If it does, the state or local regulation will violate the Commerce Clause. |
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What privacy rights are included in the right to privacy? What is standard? |
Marriage Use of Contraceptives Abortion Obscene reading material Keeping extended family together Rights of parents Intimate sexual conduct College & distribution of personal date (no privacy right) Strict scrutiny = government action must be necessary to protect a compelling governmental interest (and there must be no less restrictive means to achieving the gaol). |
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Under article III which branch of government has the power to resolve disputes between states, states and foreign citizens, and citizens of diverse citizenship? |
the judiciary |
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What are the 3 elements of the lemon test and when is the test used? |
The lemon test is used when someone challenges government action pursuant to the establishment cause, and the government action will be found invalid unless: 1. the government action has a secular purpose 2. has a primary effect that neither advances not inhibits religion, and 3. does not produce excessive government entanglement with religion. |
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With respect to the second prong of the lemon test - the program (government action) will be deemed to have a primary effect that advances religion if . . . |
the government action results in governmental indoctrination of religion or defines its recipients by reference to religion. |
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________ has complete power to authorize or forbid state taxation that affects interstate commerce. |
Congress |
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State taxes that discriminate against interstate commerce ___________________ unless ___________________. |
Violate the commerce clause unless authorized by Congress |
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A nondiscriminatory tax will be valid if |
The tax must apply to an activity having a substantial nexus to the taxing state. The tax must be fairly apportioned according to rational formula (but taxpayer has burden of proving unfair apportionment). The tax must be fairly related to the services or benefits provided by the state. |
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Substantive due process tests the __________ of a statute; it prohibits __________ governmental action. |
reasonableness arbitrary |
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SCOTUS will not exercise jurisdiction if the state court judgment is based on _________ and _________________. |
adequate and independent state law grounds - even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. |
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Normally federal courts will not enjoin pending state criminal proceedings except in what types of cases? |
Cases of proven harassment or prosecutions taken in bad faith. |
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What is the test courts use to assess whether a regulation of the electoral process is valid? |
A balancing test: If the restriction on First Amendment activity is severe, SS is applied. If the restriction is reasonable and nondiscriminatory - it is generally upheld. |
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A statute limiting election campaign contributions is subject to which level of scrutiny? |
Intermediate scrutiny. It must be closely drawn to match a sufficiently important interest. To prevent corruption or the appearance thereof, laws may limit the amount of money that a person, group, or corporation can contribute to a political candidate. However, the government may not limit the amount of money that may be spent to support to oppose a ballot referendum, and there is an exception for groups or corporations formed specifically to participate in the political debate. |
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Basic principle: ____________ is required for a government agency to individually take a person's life, liberty, or property. Only intentional - not negligent - deprivation of these rights violates the Due Process Clause. |
Fair process |
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Can the President's pardon power be limited by Congress? |
No. The President may grant pardons for all federal offenses (federal crimes, not civil charges and not state crimes) but not for impeachment or civil contempt. |
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States _________ regulate the federal government or its agents while performing their federal functions. |
MAY NOT |
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Under the DPC, a public employee who is only subject to removal for cause (under statute, ordinance, contract), is entitled to: |
1. pretermination opportunity to respond to charges 2. Given subsequent evidentiary hearing regarding the termination (w/ reinstatement if the employee prevails). |
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True or false Press and broadcasting companies can be subject to general business taxes? |
True, but a tax applicable only to the press of based on the content of a publication will not be upheld absent a compelling justification - mere need for revenue is probably insufficient. |
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Obscene speech is/is not protected? |
Is not |
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What are the elements for obscene speech? |
Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person: 1. appeals to the prurient interest in sex, using a community standard; 2. is patently offensive and an affront to contemporary community standards; and 3. lacks serious value (literary, artistic, political, or scientific), using a national reasonable person standard. |
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Congress's power to investigate is limited to what? |
Matters on which it can legislate. |
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For what purposes may a city limit the location of adult entertainment establishments? |
To combat the secondary effects of such business, such as lowering of property values, increased traffic, etc. |
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Congress has the power to lay taxes under Art. 1 Sec. 8 and a tax measure will usually be upheld if . . . |
it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. |
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Conduct related to speech can be regulated by . . . |
content-neutral time, place, and manner restrictions. To be valid, the regulation must be content-neutral, narrowly tailored, to serve an important government interest, and leave open alternative channels of communication. |
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Criminal trials and pretrial proceedings can be closed only if . . . |
closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest. |
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To establish a racial, national origin, or ethnicity classification, the party challenging the law must show . . . |
1. (fascial discrimination) the racial classification appears in the law itself 2. the law was applied in a purposefully discriminatory manny, or 3. the law was enacted or maintained for a discriminatory purpose |
