Conlaw

Front 1

May the president unilaterally declare a treaty void?

Back 1

Yes, pursuant to his power over treaties and foreign relations.

Front 2

What is the exception to the rule that a federal court may not enjoin an ongoing state criminal proceeding?

Back 2

Prosecutorial harassment

Front 3

What level of scrutiny is applied to laws that discriminate based on citizenship?

Back 3

Strict scrutiny

Front 4

May a state impose any regulation on the sale of foreign goods within the state?

Back 4

No. Regulation of foreign commerce if the exclusive provence of the federal government.

Front 5

What are the justiciability doctrines?

Back 5

1) Standing
2) Mootness
3) Ripeness
4) Political questions

Front 6

What are the standing requirements?

Back 6

1) Injury in fact
2) Causation
3) Redressability
4) No third party standing
5) No generalized greivances

Front 7

What are the exceptions to the mootness doctrine?

Back 7

1) Wrongs capable of repetition, but evading review
2) Voluntary cessation
3) Class action suits

Front 8

What are the classic political questions?

Back 8

1) Republican form of government
2) Presidential conduct of foreign policy
3) Impeachment procedures
4) Partisan gerrymandering

Front 9

What are the exceptions to state sovereign immunity?

Back 9

1) Waiver
2) Federal government sues
3) Congressional abrogation pursuant to Section 5 of the Fourteenth
4) Bankruptcy proceedings
5) Suits against officers for injunctive relief or damages to be paid out of the officer's pocket

Front 10

What types of things may Congress regulate under its Commerce powers?

Back 10

1) The channels of interstate commerce
2) The instrumentalities of interstate commerce
3) Activities that have a substantial effect on interstate commerce (for economic activities, substantial effect can be shown by cumulative impact)

Front 11

What are the appointment rules?

Back 11

1) President may appoint judges, ambassadors, and officers of the US
2) Congress may vest the appointment of inferior officers in the president, heads of departments, or lower federal courts
3) Congress may not vest the appointment power in itself or its officers

Front 12

What are the removal rules?

Back 12

1) Unless limited by statute, the president may remove any executive branch official
2) For Congress to limit removal, must be an office where independence from the president is desirable
3) Congress cannot prohibit removal, it can only limit to removal for good cause

Front 13

What are the three types of implied preemption?

Back 13

1) The federal and state statutes are mutually exclusive
2) The state law impedes the achievement of a federal objective
3) Congress evinces a clear intent to preempt state law

Front 14

If a state law discriminates against nonresidents, what is the Dormant Commerce Clause analysis?

Back 14

The law is invalid unless necessary to achieve an important government interest. Two exceptions:
1) Congressional approval
2) Market participant exception

Front 15

If a state law does not discriminate against nonresidents, what is the Dormant Commerce clause analysis?

Back 15

The law is unconstitutional if the burden on interstate commerce exceeds the benefits of the law.

Front 16

If a state law discriminates against nonresidents, what is the Privileges and Immunities Clause analysis?

Back 16

The law is invalid unless necessary (no less restrictive means) to achieve an important government interest.
Note: the P&I Clause only protects "fundamental rights" (commercial activities and civil liberties). It does not apply to
1) Corporations, or
2) Aliens

Front 17

What are the requirements for a state to tax interstate commerce?

Back 17

1) States may not use their tax system to benefit in-state businesses
2) A state may only tax activities with a substantial nexus to the state, and
3) The tax must be fairly apportioned

Front 18

What does the Contract Clause prohibit?

Back 18

It prohibits STATES from enacting any law that RETROACTIVELY impairs contract rights unless the legislation
1) Serves an important and legitimate public interest, and
2) Is a reasonable and narrowly tailored means of promoting that interest

Front 19

What does the ex post facto provision prohibit?

Back 19

The state or federal government may not pass a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity. Substantially prejudicial if:
1) It makes criminal an act that was innocent when done
2) Prescribes greater punishment for an act than was prescribed when the act was done, or
3) Reduces the evidence required to convict a person of a crime from what was required when the act was done

Front 20

What is the test for determining what process is due?

Back 20

Balance
1) The importance of the interest to the individual,
2) The value of specific procedural safeguards to that interest, and
3) The government's interest in fiscal and administrative efficiency

Front 21

What does the Takings Clause prohibit?

Back 21

Private property may not be taken for public use without just compensation. Note: this applies to the states via the Fourteenth.

Front 22

How can the government satisfy the public use requirement under the Takings Clause?

Back 22

If the government's action is rationally related to a legitimate public purpose (health, welfare, safety, economy, esthetics) the requirement is satisfied.

Front 23

What sorts of takings fall under the Takings Clause?

Back 23

1) Actual appropriation
2) Physical invasion
3) Regulations that deny all economic value of land
4) Regulations that temporarily deny the owner all economic use of the property subject to a "fairness and justice" balancing test

Front 24

What is the analysis for a regulatory taking?

Back 24

The Court will consider the economic impact of the regulation on the claimant and whether the regulation substantially interferes with the claimant's distinct, investment backed expectations.

Front 25

What must P show for the Court to apply strict or intermediate scrutiny in an EP case?

Back 25

Intent on the part of the government to discriminate. Intent may be shown by:
1) A facially discriminatory law
2) A discriminatory application of a facially neutral law
3) A facially neutral law that was motivated by a discriminatory purpose and has a disparate impact

Front 26

What must be shown under the EPC for the government to remedy past discrimination?

Back 26

The past discrimination must have been persistent and readily identifiable. A race-based plan cannot be used to remedy general past societal discrimination.
Note: Strict scrutiny applies here, but the government has a compelling interest in remedying past discrimination against a racial or ethnic minority.

Front 27

What must the government show in a gender-based EPC challenge?

Back 27

The classification is substantially related to an important government interest. There must be an exceedingly persuasive justification for the discrimination.

Front 28

What standard of review is applied to EP challenges based on legitimacy?

Back 28

Intermediate scrutiny.

Front 29

What rights have been recognized as fundamental for SDP purposes?

Back 29

1) Privacy (marital, sexual, procreative)
2) Voting
3) Interstate travel

Front 30

What is the test for time, place, and manner restrictions on a public or designated forum?

Back 30

The regulations must be:
1) Content neutral
2) Narrowly tailored to serve a significant government interest, and
3) Leave open alternative channels of communication

Front 31

What is the test for time, place, and manner restrictions on nonpublic forums?

Back 31

The regulation must be:
1) Viewpoint neutral, and
2) Reasonably related to a legitimate government purpose

Front 32

What are the recognized categories of unprotected speech?

Back 32

1) Incitement
2) Fighting words (note void for vagueness)
3) Obscenity
4) Defamation
5) Commercial speech that proposes unlawful activity or is misleading or fraudulent

Front 33

What are the elements of obscenity?

Back 33

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 contemporaneous community standards, AND
3) Lacks serious artistic, literary, political or scientific value, using a national reasonable person standard

Front 34

What is the test for regulation of commercial speech?

Back 34

Commercial speech that proposes unlawful activity or that is misleading or fraudulent is unprotected. For other commercial speech, the regulation will be upheld IF:
1) It serves a substantial government interest,
2) It directly advances that interest, AND
3) It is narrowly tailored to serve that interest (not least restrictive means, just reasonable fit)

Front 35

What is the standard for limits on campaign finance?

Back 35

1) Contribution limits to political candidates (but not referenda) are allowed, subject to intermediate scrutiny
2) Expenditure limits are not allowed

Front 36

What is the standard of review for government regulation/action that evidences a preference for one sect over another?

Back 36

Strict scrutiny.

Front 37

What is the standard of review for government regulation/action that does not evidence a preference for one sect over another?

Back 37

The regulation is valid IF it:
1) Has a secular purpose
2) Has a primary effect that neither advances nor inhibits religion, AND
3) Does not produce excessive government entanglement with religion

Front 38

What is the analysis for generally applicable laws that interfere with religious beliefs?

Back 38

The Free Exercise Clause does not require religious exemptions from generally applicable government regulations that happen to burden religious conduct.

Front 39

What is the collateral bar rule?

Back 39

Procedurally proper court orders must be complied with until vacated or overturned. A person who violates a court order is barred from later challenging it.
Note: proper remedy is to seek a declaratory judgment.

Front 40

What is the First Amendment analysis for attendance at criminal trials?

Back 40

The FA guarantees the public and press a right to attend criminal trials. Exception:
1) An overriding interest
2) Stated in the judges findings, and
3) The restriction is narrowly tailored to achieve the interest

Front 41

What are the prior restraint rules?

Back 41

Prior restrain prevents speech before it occurs, rather than punish it afterward. The government must show some special societal harm will otherwise result. Required procedural safeguards:
1) The standards must be narrowly drawn, reasonable, and definite
2) Injunction must be promptly sought, AND
3) Must be prompt and final determination of the validity of the restraint.

Front 42

What is incitement?

Back 42

Speech that creates a clear and present danger of imminent lawless action. It must be shown that
1) Imminent lawless activity is likely, AND
2) The speaker intended to cause it

Front 43

What is required for organizational standing?

Back 43

An organization has standing if:
1) There is an injury in fact to members that gives them the right to sue on their own behalf,
2) The injury is related to the organization's purpose, AND
3) Individual member participation in the lawsuit is not required

Front 44

Is taxpayer standing allowed?

Back 44

Generally no. Exception: Suits attacking CONGRESSIONAL taxing or spending measures on ESTABLISHMENT grounds

Front 45

What does the doctrine of sovereign immunity bar?

Back 45

Suits against a state government in state court (even on federal claims), unless the defendant state consents.

Front 46

What does the Eleventh Amendment prohibit?

Back 46

It prohibits federal courts from hearing claims by a private party or foreign government against a STATE government.

Front 47

What rights do detained citizen enemy combatants have?

Back 47

Due process requires that they have a meaningful opportunity to contest the factual basis for their detention before a neutral decisionmaker.

Front 48

What is the basic test for presidential powers over internal affairs?

Back 48

1) President acts with express or implied authority of Congress = maximum power
2) Acts where Congress is silent = upheld unless usurps power of another branch or prevents another branch from carrying out its tasks
3) Acts against express will of Congress = minimum power

Front 49

What powers does Congress have to limit the President's war powers?

Back 49

It has the power over military apportionment every two years.

Front 50

What are the conflict rules for treaties?

Back 50

1) Conflicts with state law = treaty
2) Conflicts with federal law = last in time prevails
3) Conflicts with Constitution= Constitution

Front 51

What are the conflict rules for executive agreements?

Back 51

1) State laws = EA
2) Federal laws = federal law
3) Constitution = constitution

Front 52

What are the rules for executive privilege?

Back 52

The President has a privilege to keep certain communications (e.g. national security) secret. Exceptions:
Criminal proceedings where need for such information is demonstrated.

Front 53

What are the rules for executive immunity?

Back 53

The President has absolute immunity from civil damages for any actions he took within his official responsibilities.
Note: No immunity for acts before taking office. Aides exercising discretionary authority in a sensitive area may share in immunity.

Front 54

What is the state market participant exception?

Back 54

A state does not violate the dormant commerce clause by preferring its own citizens when acting as a market participant (e.g. buying or selling, hiring labor, giving subsidies).

Front 55

Can Congress prohibit racially discriminatory actions by private citizens?

Back 55

Yes, under the Thirteenth Amendment.

Front 56

What are the rules for finding state action in the context of the federal constitution?

Back 56

State action can be found in actions of seemingly private actors IF:
1) Exclusive public functions: activities that are traditionally the exclusive province of the state
2) Significant state involvement: wherever a state affirmatively facilitates, encourages, or authorizes discriminatory acts by citizens

Front 57

What analysis if a fundamental right is being denied to some people but not others?

Back 57

Equal protection analysis applying strict scrutiny.

Front 58

May a federal law be struck down under SDP?

Back 58

Yes, under the Fifth Amendment.