Con Law Mbe

Front 1

Under Article III, what power does Congress have over the courts?

Back 1

Congress has the power to limit the appellate jurisdiction of the U.S. Supreme Court and Congress has the power to vest federal judicial power in lower federal courts which it may "from time to time ordain and establish."

Front 2

What are Congress' restrainst of power over the federal courts?

Back 2

1. Congress may not restrict original jurisdiction of the Supreme Court

2. Congresss may not give the Supreme Court the right to exercise jurisdiction over matters which are not "cases and controversies."

Front 3

Can Congress restrict the appellate jurisdiction of the U.S. Supreme Court?

Back 3

Yes, under Article III of the Constitution Congress has the power to limit the appellate jurisdiction of the U.S. Supreme Court.

Front 4

Who has the burden when the government infringes upon a fundamental right.?

Back 4

the goverment has the burden to show that the regulation is unconstitutional.

Front 5

What is the jurisdiction of the federal courts?

Back 5

Under Article III Section 2, cases arising under the Constitution, laws and treaties of the US, cases of admiralty and maritime jurisdiction.

Front 6

What is the general rule for taxpayer standing?

Back 6

a federal taxpayer has no standing to challenge a federal spending program.

Front 7

When does a federal taxpayer have standing?

Back 7

taxpayer has standing to challenge governmental spending when it violates the Establishment Clause of the First Amendment.

Front 8

Can the government supplement private religious teachers' salary?

Back 8

No, The Establishment Clause prohibits government conduct which has a primary religious purpose, a primary effect which either advances or inhibits religion or would foster excessive government entanglement with religion.

Front 9

Can the government financially assist post-secondary religious schools for secular purpose?

Back 9

Yes, Supreme Court has upheld the grant of public funding for use by by religious and universities when the funds are used for non-religious purposes.

Front 10

What is Congress' spending power?

Back 10

Under the spending power, Congress may spend for the general welfare.

Front 11

What is the Commerce Clause?

Back 11

Congress may regulate the channels, facilities and instrumenalities of interstate comerce and all activities which in their aggregate might have a significant impact on the national economy.

Front 12

What is the burden on challenging congressional act under the commerce clause?

Back 12

Federal government regulation pursuant to the commerce clause is presumed to be valid unless the party challenging the validity of that regulation can show it is not rationally related to any legitimate governemnt interest.

Front 13

What is "property power?"

Back 13

Under Article IV, Section 3 of the Constitution provides that "Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States

Front 14

Under what authority can Congress regulate Washington DC?

Back 14

Under Article IV Section 3, Congress may regulate all federal propery, which includes DC, and Congress may regulate for the health, safety and general welfare of the resident.

Front 15

Under what power is the Attorney General?

Back 15

As a principal officer of the Executive Branch, the AG has the power to decide whether to prosecute or not. Congress may not interfere with core Executive Branch Functions.

Front 16

Under what authority does Congress have to conduct investigations?

Back 16

Congress can only conduct investigations on those areas in which the Constitution allows it to legislate.

Front 17

Can Congress appoint executive officers?

Back 17

No, Congress may not appoint executive officers, Under Article II. The President appoints ambassadors, Supreme Court Judges and all other Officers of the United States.

Front 18

Can the President "impound" funds that Congress expresses need to be spent?

Back 18

The President does not have the right to "impound" funds which Congress has expressly mandated must be spent.

Front 19

How can Congress delegate powers?

Back 19

1. the power must be one which Congress may delegate

2. the delegation must contain at least some general guidelines

Front 20

Can federal government regulate local and state taxes?

Back 20

Yes, so long as the exercise of federal power is within the scope of an enumerated constitutional power.

Front 21

Can a state tax be levied against an independent contractor hired by the federal government?

Back 21

Yes, so long as the tax does not discriminate against the federal government.

Front 22

What are the factors for determining a state law indirectly violating the supremacy clause?

Back 22

1. whether there is a need for uniform enforcement on the subject such that state or local regulation should not be allowed.

2. whether the federal regulatory scheme is so pervasive and extensive that no room is left for conflicting or even.

3. whether the existence of the state or local law stands as an obstacle to full accomplishment of the federal

Front 23

What level scrutiny are aliens?

Back 23

state or local laws which intentionally discriminate against aliens will generally be struck down as violative of the Equal Protection Clause of the 14th Amendment.

Front 24

What are the requirements for 3d party standing?

Back 24

1. special relationship extists between the claimant and the 3rd party

2. it would be difficult, unlikely or impossible for the 3rd party to challenge the government action itself

Front 25

Explain the right to vote.

Back 25

The right to vote is a fundamental right, but jursidictions may restrict the right to vote so long as the restriction is necessary to advance a compelling government interest and hte jurisdiction has chosen the least restrictive means of achieving that interest.

Note: residency, age and citizenship have been allowed.

Front 26

When does your procedural due process rights attach?

Back 26

The procedural due process protections of notice and timely hearing only attach when the government deprives someone of a protected life, liberty, or property interest.

Note: to establish a protected property interest in a government job, the employee must establish that he or she relied on some oral or written statement that the job is secure.

Front 27

When does the Fifth Amendment apply to discrimination cases?

Back 27

When the federal government discriminates in a manner which would raise an equal protection issue, the court will apply the Fifth Amendment Due Process Clause to test the validity of the discriminatory practice.

Front 28

What levels of scrutiny is applied to illegitimates?

Back 28

any government action which discriminates against illegitimates must pass the heightened scrutiny test required by the Equal Protection Clause.

Front 29

Who has the burden when the government discriminates against illegimtates?

Back 29

The government must that its regulation is substantially related to an important government interest.

Front 30

Can government restrict alien students from receiving financial aid?

Back 30

No, in Nyquist v. Mauclet, the Supreme court held denying college financial aid to aliens would not affirm their intent to apply for citizenship and it was an unconstitutional discrimination against aliens.

Front 31

What is the rule for restricting "running" for political offices?

Back 31

the right to run for political office is not a fundamental right, state restrictions on canditates are invalid unless they further "vital state objectives" that cannot be achieved in "signficantly less burdensome ways."

Front 32

What is the exception to "one man, one vote" rule?

Back 32

Supreme Court has held that this principal does not apply to elections which are held for a limited purpose

Front 33

What is the Contracts Clause?

Back 33

Contracts Clause provides that state or local laws which substantially impair existing contract rights will be struck down unless reasonably necessary to achieve a "significant and legitmate public purpose."

Front 34

When can the government regulate religious conduct.

Back 34

the government can regulate religious conduct if the interests advanced by the government regulation outweigh the burden imposed on religion.

Front 35

Who has the burden on time, place or manner of expression?

Back 35

When the government regulates the time, place or manner of expression (opposed to content of the expression) the burden of proof is on the government to show that the regulation supports an important government interest and is narrowly tailored to achieve that interest

Front 36

How are content neutral restrictions on speech valid?

Back 36

1. advance an important government interest independent of the content of expression

2. are narrowly tailored to advance that important interest and

3. allow the speaker reasonable alternative channels of communication.

Front 37

What is the Brandenburg Test?

Back 37

Speech which is directed toward and likely to incite imminent lawless action may be prohibited.

Front 38

What is the level scrutiny for gender?

Back 38

discrimination on the basis of gender requires a showing that the discrimination is substantially related to a important government interest

Front 39

What is the exception to strict scrutiny for alienage?

Back 39

where the federal government is discriminating against aliens, only rational basis test.

Front 40

What is full faith and credit?

Back 40

judicial proceedings in one state need to be honored in another state.

Front 41

What is adequate state grounds in which federal courts will not hear a case?

Back 41

Adequate state grounds will not hear a case where the state court decision establishes both an adequate and independent state ground upon which the case was decided.

Front 42

What are the Four Justiciability Doctrines?

Back 42

1. Standing

2. Ripeness

3. Mootness

4. Political Question

Front 43

What is standing?

Back 43

1. injury

2. causation and redressability

Front 44

What is ripeness?

Back 44

In order to be ripe there must be a genuine immediate threat of harm

Front 45

What is Mootness?

Back 45

if after filing of a lawsuit, the plaintiff is no longer injured, the case is moot.

Ex. Law school applicant was denied and sued under equal protection by the time the case was heard the plaintiff graduated from another law school.

Front 46

What is the exception to the mootness doctrine?

Back 46

Where the injury is capable of repetition.

Ex. Roe v. Wade

Front 47

What is the political question doctrine?

Back 47

1. claims that a state government is not providing a "republican form of government" as required by the Guaranty Clause of the Constitution or

2. claims asserted by individuals challenging the President's handling of foreign affairs

Front 48

What is abstention?

Back 48

a federal court will temporarily abstain from hearing a case where you have an unsettled issue of state law and if:
1. pending state criminal proceedings

2. criminally related civil proceedings (welfare fraud)

3. civil comtempt

Front 49

What is the president's appointment power?

Back 49

president can appoint executive offices with the advice of the senate, such as Officers of the US (aagencies, or commission which have administrative)

Front 50

what are the Presidental removal power?

Back 50

President may remove purely executive officials

Front 51

Can Congress appoint inferior officers?

Back 51

no, Congress cannot appoint inferior officers (Special Prosecutor)

Front 52

What kind of pardon power does the president have?

Back 52

President may pardon against offenses against the US federal crimes.

Front 53

What are the hiearchy of laws?

Back 53

1. constitution (supreme law of land)

2. treaty/act of Congress

3. Executive Agreement/Executive Order

4. State Law

Front 54

What is the Dormant Commerce Clause?

Back 54

Dormant Commerce Clause--state or local law is unconstitutional if it places an undue burden on interstate commerce.

Front 55

What is a state action?

Back 55

a threshold requirement of governmental conduct which must be satisfied before private discrimination can be restricted under 14th and 15th Amendment

Front 56

When has the court found there to be State Action with mainly private conduct?

Back 56

1. public function (where you have a private entity performing activities traditionally and exclusively carried by the state.

2. Significant state involvement

3. facilitation or encouragement

Front 57

What is a Bill of Attainder?

Back 57

Legislative punishment of a named group or individual without judicial trial

Front 58

How is Procedural Due Process determine?

Back 58

the procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty or property interest.

Front 59

What is the balancing test of procedural due process?

Back 59

to determine if a person should be afforded a hearing the court balances the severity of the deprivation to person against the government interest in administrative efficiency.

The procedural test is

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

Front 60

What are property interest under due process?

Back 60

a deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled

Front 61

What is substantive due process?

Back 61

whether the government has an adequate reason for taking away a person life, liberty or property

Front 62

What is "Taking?"

Back 62

private property shall not be taken for public use without just compensation

Front 63

What constitutes a "Taking?"

Back 63

1. a confiscation or physical occupation or

2. regulation which leaves the owner no reasonable economically viable use of her land

Front 64

What is the Test of "Taking?"

Back 64

1. Is it for public use?

2. Is just compensation paid

Front 65

What is the fundamental right of privacy?

Back 65

Strict scrutiny is used.

Front 66

What does C.A.M.P.E.R mean?

Back 66

1. contraception

2. abortion

3. Marriage

4. Procreation

5. Procreation

6. Private Education

Note: these are fundamental rights under privacy government cannot restrict without a necessay compelling state interest

Front 67

What is the undue burden test for abortion?

Back 67

regulations cannot create an undue burden on a woman's right to abortion before viabilty.

Front 68

What is the judicial by-pass for abortion?

Back 68

where states require parental notice or consent they must provide a judicial bypass which allows the minor to go before a judge and show sufficient maturity or that its in her best interest to abort

Note: 24 hours waiting period is not an undue burden

Note: a requirement that abortions be perfromed by licensed physicians is not an undue burden.

Front 69

How to raise equal a protection action?

Back 69

to raise a challenge you need a situtation where person similarly siutation are being treated differently

Note: applies to the states through 14th amendment

Front 70

What does the strict scrutiny apply to under the equal protection analysis?

Back 70

1. 1st amendment

2. Suspect Classes (R.A.N)
(a) Race
(b) Alienage
(c) National Origin

Front 71

What is Intermediate level scrutiny?

Back 71

the law is substantially related to an important interest.

Front 72

What intermediate scrutiny apply to?

Back 72

gender
illegitimacy
content-neutral regualtion of speech (time, place and manner)

Front 73

What is rational basis?

Back 73

burden is on the plaintiff to show that the law is not rationally related to any legitmate interest

Front 74

What does the rational basis analysis apply to?

Back 74

1. sexual orientation
2. age
3. wealth
4. mental retardation
5. necessities of life
6. social and economic welfare measures

Front 75

What is the lemon test?

Back 75

in order for government regulation to be validthe following must be met:

1. primary purposeof the law is secular

2. Primary effect of the law must neither advance or inhibit religion and

3. the law must not foster excessive government entanglement

Front 76

How can someone attack a restriction on freedom of speech?

Back 76

1. overbreadth

2. vaugeness

3. prior restraint

4. unfettered discretion

Front 77

What is overbreadth?

Back 77

an over broad statute punishes protected and unprotected speech

Front 78

What is the test for obscenity?

Back 78

Material must appeal to the prurient interest in sex (contemporary community standards)

material must depict sexual conduct in a patently offensive way and

the material must lack serious literary, artisictic, political or scientific values (reasonable person standard)

Front 79

What are the types of of forums?

Back 79

1. traditional public forum (street, parks)

2. limited public forums (government properties)

3. Non-public forums (jail, airport terminal, office building.