Constitutional Law

Front 1

Define standing

Back 1

The Constitution only allows review of actual cases and controversies. Whether the plaintiff is the proper party to bring the case.

Front 2

Requirements for standing

Back 2

(1) Injury in fact; (2) causation; and (3) redressability.

Front 3

Advisory opinion

Back 3

A judgment conclusively resolves the case because a Judicial Power is one to render dispositive judgments

Front 4

Injury requirement to standing

Back 4

The plaintiff must allege that he or she has suffered or imminently will suffer injury

Front 5

Causation requirement to standing

Back 5

The plaintiff must allege that the injury is fairly traceable to the defendant's conduct

Front 6

Redressability requirement

Back 6

The plaintiff must allege that a favorable federal court decision is likely to redress the injury.

Front 7

Exc. to general rules of no third party standing

Back 7

(1) Close relationship;
(2) third party unable to assert own rights;
(3) organization if injured or if at least one member is injured and the individual's participation is not needed.

Front 8

Tax payer standing exception

Back 8

Also violates establishment clause

Front 9

Define ripeness

Back 9

The question of pre-enforcement review.

(1) the greater the hardship the more likely a court will grant pre-enforcement review; and
(2) the issues are fit for review.

Front 10

Mootness defined and the exceptions

Back 10

When it is time to hear the case the dispute has not gone away. If a case is moot, there is no longer an actual controversy between adverse litigants.

Exceptions:
(1) wrongs capable of repetition but evading review;
(2) voluntary cessation;
(3) class action suits.

Front 11

Define political question and the three main areas where it is found

Back 11

Allegations of constitutional violations that federal courts will not adjudicate, and that the Supreme Court deems to be inappropriate for judicial review.

1. Th republication form of government clause;
(2) challenges to the President's conduct of foreign policy (Carter);
(3) challenges to the impeachment process (Nixon); and
(4) challenges to partisan gerrymandering.

Front 12

Sovereign immunity and exceptions

Back 12

(1) 11th Amendment bars suits against states in federal court;
(2) sovereign immunity bars suits against states in state courts.

Exc:
(1) waiver;
(2) fed laws adopted under section 5 of the 14th Amendment;
(3) federal government may sue states;
(4) bankruptcy proceedings.

Front 13

When are suits against state officers not allowed

Back 13

If the state treasury will be paying retroactive damages

Front 14

Abstention Tr

Back 14

Generally, federal courts may not enjoin pending state court proceedings

Front 15

Limitation on spending clause

Back 15

1. For the general welfare (main one;
2. Unambiguous
3. Conditions must be related to the federal interest associated with the grant. (funds purpose is defined broadly)
4. Other Constitutional provisions may be an independent bar.

Front 16

Commerce power

Back 16

Congress has the power under the commerce clause:

(1) to regulate the channels of interstate commerce;
(2) the instrumentalities of interstate commerce an persons or thing in interstate commerce; and
(3) the power to regulate those activities having a substantial effect on interstate commerce. (econ-aggregate otherwise no aggregate)

Front 17

10th Amendment limits

Back 17

(a) Congress cannot commandeer the legislature or act in a way that coerces states into action.

Front 18

Which prevails between treaties, executive agreements, and statutes.

Back 18

state law v. executive agreement=executive agreement.
Executive agreement vs. statute=statute
Treaty vs. statute: One passe dlatest in time.

Front 19

Define executive agreement

Back 19

An agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation.

Front 20

Can Congress limit the power of removal of executive branch officers?

Back 20

Yes:
(1) must be an office where independence from the president is desired; and
(2) cannot prohibit removal, but only limit for good cause.

Front 21

How far does the president's pardon power extend?

Back 21

Only federal crimes.

Front 22

Define preemption

Back 22

The Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

Front 23

Types of preemption

Back 23

(1) express;
(2) implied;
(3) inter-governmental immunity (taxing or regulating gov. activity.

Front 24

Explain implied preemption

Back 24

(1) federal and state laws are mutually exclusive;
(2) the state law impedes the achievements of a federal objective; or
(2) if Congress evidences a clear intent to preempt state law.

Front 25

When does Article IV privileges and immunities apply

Back 25

When the state is discriminating against out of state residences in regard to civil liberties or important economic activities.

Front 26

Exceptions to dormant commerce clause

Back 26

(1) Market participant exception; or
(2) congressional approval.

Front 27

13th Amendment

Back 27

Only applies to slavery and the badges of slavery (disc.).

Front 28

When is there governmental action through a private entity or individual?

Back 28

(1) public function (traditionally done by gov.); or
(2) entanglement.

Front 29

Rational basis test

Back 29

The government action must be rationally related to a legitimate governmental activity. (burden on challenger)

Front 30

Intermediate scrutiny

Back 30

The law substantially related to an important governmental interest. (burden on govt.)

Hint 30

Gender (exceedingly persuasive just.)
Non-marital children
undocumented alien children

Front 31

Strict scrutiny

Back 31

The law must be necessarily related to a compelling governmental interest. (government has the burden)

Hint 31

Race;
generally undocumented aliens (rational only as to self-government, democratic process, or congressional action);
national origin

Front 32

Define deprivation of liberty and deprivation of property

Back 32

(1) deprivation of liberty occurs when there is a loss of a significant freedom provided by the Constitution or a statute;
(2) deprivation of property applies where there is a reasonable expectation to continue to receive an entitlement.

Front 33

Test to determine what procedures are required when there is a deprivation to liberty or property

Back 33

(1) the important of the interest to the individual;
(2) the ability of additional procedures to increase the accuracy of the fact-finding; and
(3) the government's interest.

Front 34

Two ways there can be a taking requiring just compensation

Back 34

(1) possessory taking (government confiscation); or
(2) regulatory taking where the action leaves no reasonable economically viable use of the property.

Front 35

Taking clause

Back 35

The government may take private property for public use if it provides just compensation

Front 36

The contracts clause

Back 36

(1) only applies to state or local action;
(2) intermediate scrutiny for interference with private contracts;
(3) strict scrutiny for interference with government contracts;
(4) retroactive civil liability only needs to meet rational basis.

Front 37

Fundamental rights to privacy.

Back 37

(1) right to marry;
(2) right to procreate;
(3) right to custody of biological or adopted child;
(4) right to keep family together;
(5) right to control upbringing of one's children;
(6) right to contraceptives;
(7) right to abortion (prior to viability may not prohibit but can regulate as long as not an undue burden, after viability prohibition except in case of life or health);
(8) private consensual homosexual activity;
(9) refuse medical treatment.

Front 38

If a law is facially neutral what is required?

Back 38

Proof of discriminatory impact and discriminatory intent.

Front 39

Use of race to benefit minorities

Back 39

Quotas and assigning points are violate equal protection, however, educational institutions may use race as one factor in a admissions in the interest of diversity.

Front 40

Two types of content-based restrictions and the implication

Back 40

(1) viewpoint restriction;
(2) subject matter restriction.

Implication-strict scrutiny

Front 41

Test for content neutral restrictions as to speech

Back 41

Narrowly tailored to a substantial government interest.

Front 42

Vagueness

Back 42

A reasonable person cannot tell what speech is prohibited and what is allowed.

Front 43

Overbreadth

Back 43

It regulates substantially more speech than the constitution allows to be regulated.

Front 44

Incitement of illegal activity (unprotected)

Back 44

There is a substantial likelihood of imminent illegal activity and the speech is directed at causing imminent illegality.

Front 45

Time, place and manner restrictions--public forum and designated public forum

Back 45

(1) content neutral;
(2) narrowly tailored to an important government interest;
(3) leaves adequate alternatives for communication.

Front 46

Limited public forums (schools while in session)

Back 46

The regulation is reasonable and viewpoint neutral

Front 47

Non-public forums

Back 47

Reasonable and viewpoint neutral.

Front 48

Freedom of association

Back 48

strict scrutiny

Front 49

Free exercise clause

Back 49

Law must be neutral law of general applicability, otherwise, rational basis.

Front 50

Lemons test (establishment clause)

Back 50

(SEX) (1) the law must have secular purpose; (2) the effect of the law must not be to advance or inhibit religion (i.e., symbolically endorse); and (3) there must not be excessive entanglement with religion.

In essay throw in the Accommodating approach also.

Front 51

Dormant Commerce Clause

Back 51

Law does not discriminate=balance burden and benefit
Law does discriminate=necessarily related to important government purpose.

If a law does not discriminate as to interstate commerce (i.e. out of staters) then it violates the dormant commerce clause if its burdens exceed its benefits.

If the law does not discriminate against commerce but burdens commerce then the law must be necessary to achieve an important government purpose.