Constitutional Law

Front 1

When may Congress spend?

Back 1

Congress has the power to spend for any public purpose if there is a rational basis to believe the spending will promote the good of the people.

= Rational Basis Test

Front 2

When may Congress delegate one of its authorities to the executive branch (a committee)?

Back 2

Congress may delegate authority to the executive branch so long as Congress specifies intelligible standards for the delegate to follow.

Intelligible standard = very easy standard to meet!

Front 3

What is the Necessary and Proper Clause?

Back 3

The necessary and proper clause merely allows Congress to use necessary and proper means to execute enumerated powers, and is not an independent source of power itself.

Front 4

When may a state legislate on the same topic as the federal government?

Back 4

When Congress has legislated in a particular area, but does not intend to occupy the field and the state law does not directly or indirectly conflict with the federal statute, then states are free to enact similar legislation. If Congress has legislated merely minimal standards (such as in the areas of health and safety), states are free to enact more stringent standards than those imposed by federal law.

Front 5

When may Congress regulate under the Commerce Clause?

Back 5

Congress has the power to regulate (1) instrumentalities of interstate commerce; (2) the channels of interstate commerce; and (3) any activity, local or interstate, that in and of itself or in combination with other activities has a “substantial economic effect upon” or “effect on movement in” interstate commerce (provided the regulation does not infringe upon any other constitutional right).

Front 6

What is the standard to determine is a law is overly vague?

Back 6

A person of ordinary intelligence would not be able to determine what is prohibited. Such vague laws against speech are prohibited as having a chilling effect on speech.

Front 7

What is the standard of scrutiny for a content-based regulation on speech?

EX: No sale of "overly violent" video games to minors.

Back 7

Laws that restrict the content of speech are only constitutional if they are necessary to achieve a compelling government interest and are narrowly tailored to meet that interest.

Strict Scrutiny

Front 8

What are the categories of speech constitutionally permitted to be regulated based on their content?

Back 8

Court has expressly ruled that legislatures cannot add to the list of categories of speech that may be constitutionally regulated: obscenity, incitement, fighting words, defamation, and commercial speech.

Front 9

Explain strict scrutiny.

Back 9

The government has the burden to prove that the law is necessary to achieve a compelling interest.

If a fundamental right (under the Substantive DP Cl) is being regulated, such as the right to privacy (which includes child-rearing), strict scrutiny applies.

Front 10

When to governmental employees have a legitimate property interest of employment under procedural due process?

Back 10

A legitimate property interest in continued public employment exists only if there is an employment contract or a clear understanding that the employee can only be fired for cause. At-will and probationary employees have no rights to continued employment and therefore no procedural due process.

Front 11

When is a person entitled to notice (procedural due process) before a governmental seizure?

Back 11

The government is required to provide the owner of real property (ex: house) with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute. However, the government does not need to provide notice prior to the seizure of personal property (ex: car).

Front 12

What is the standard for intermediate scrutiny?

Back 12

The government’s action must be substantially related to an important government interest, and there must be an “exceedingly persuasive justification” for the classification.

Front 13

Who appoints inferior officers?

Back 13

Congress may decide who appoints inferior executive officials. “Inferior” officials are those supervised by Senate-confirmed appointees. Such power may be vested in the President, the judicial branch, or the heads of executive branch departments. It may not be vested in the legislative branch, as Congress may not itself appoint members of a body with administrative or enforcement powers.

Front 14

Government also cannot show a preference of one religion over another. If government action benefits a religion, it will only be valid if:

Back 14

If a government action does benefit religion, it will only be valid if (i) it has a secular purpose, (ii) the principle effect neither advances nor inhibits religion, and (iii) it does not result in excessive entanglement of government with religion.

Front 15

The Enabling Clause, explain:

Back 15

The Enabling Clause (Section Five) of the Fourteenth Amendment permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Amendment, but not to expand those rights or create new ones.

Thus, when Congress exercises power vested in it by the 14th Amendment and Commerce Clause, for example, Congress may enact appropriate remedial legislation expressly subjecting the states to private suits for damages in federal court.

Front 16

Under the Dormant Commerce Clause, a state tax that favors local commerce over interstate commerce is invalid unless ____.

Back 16

A tax that favors local commerce over interstate commerce is invalid under the Commerce Clause, unless Congress specifically authorizes such a tax.

Front 17

When may the government deny you employment based on a political organization you belong to?

Back 17

The government may justifiably infringe the right of association to advance a compelling state interest, such as preventing discrimination or subversive activities designed to undermine the democratic process. A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization's illegal activities, and (iii) has a specific intent to further those illegal objectives.

Front 18

What must a P have in order to bring a claim in federal court?

Back 18

In order to bring a claim in federal court, a plaintiff must have standing and the issue must be ripe for litigation. To have standing, a plaintiff must establish (1) a particularized injury, which must have actually occurred or be imminent; (2) that defendant caused this injury; and (3) that the relief requested is likely to redress the injury.

Front 19

Explain the right to travel under the Due Process Clause.

Back 19

The Due Process Clause contains a substantive component that guarantees certain fundamental rights, including the right to travel among the states. This includes the right to enter one state and leave another and to be treated as a welcome visitor.

Front 20

A government employee who can only be fired for cause has _____.

Back 20

Generally, a public employee who may be discharged only for cause has a property interest in her job, and therefore is entitled to notice of termination and a pre-termination opportunity to respond.

Front 21

What does a government employee who can only be fired for cause not get a pre-termination hearing?

Back 21

A formal pre-termination hearing is not required, if there is a significant reason for immediately removing a “for-cause” employee from the job, a prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process.

Front 22

When does a third party have standing?

Back 22

A litigant generally has no standing to bring a lawsuit on behalf of a third party that is not in court. However, a notable exception occurs when there is a special relationship between the plaintiff and the third parties, such as a private school asserting its students’ rights to attend despite a statute requiring attendance at public schools.

Front 23

To what extent do judges enjoy immunity? What actions are not protected by their immunity?

Back 23

A judge is absolutely immune from civil liability for judicial acts, including grave procedural errors. The judge is not immune, however, to lawsuits regarding non-judicial activities.

Front 24

What is the exception to the general rule that there is no taxpayer standing?

Back 24

The narrow exception requires that Congress authorize the funds for a specific use that violates the Establishment Clause.

Front 25

What is the Federal Property Cause of Article 4?

Back 25

Article IV, Section 3 gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” There is no express limit on Congress’s power to dispose of property owned by the United States.

Front 26

When may a state regulate the internal governance of a corporation that is incorporated in its state?

Back 26

Statutes regulating the internal governance of a corporation incorporated in the regulating state may be upheld even if they heavily impact interstate commerce, so long as they do not discriminate against out-of-state shareholders and there is no chance the regulation will conflict with the laws of other states.

Front 27

How can discriminatory intent of a federal statute be shown such that the statute violates the Equal Protection Clause?

Back 27

Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive. A law that is neutral on its face and in its application may still result in a disparate impact; however, absent discriminatory motive or intent, a disparate impact will only be subject to a rational basis test.

Front 28

In additional to disparate impact, what else must be shown in order to be subject to intermediate or strict scrutiny in assessing if a federal statute is violative of the Equal Protection Clause?

Back 28

By itself, a disparate impact is not sufficient to trigger strict or intermediate scrutiny. Proof of discriminatory motive or intent in addition to disparate impact is required to show a violation of the Equal Protection Clause. Otherwise, absent discriminatory motive or intent, only a rational basis test applies.

Front 29

If a state statute is discriminatory against out of state commerce, what must the state prove in order for the state law to be upheld?

Back 29

If the statute is discriminatory, the state must show that the burden (i) serves a legitimate local interest and (ii) there is no non-discriminatory means to achieve that purpose.

Front 30

Under the Supremacy Clause of Article VI, federal regulations are held above those of any state law that is in conflict. What is the rule if the state law only frustrates, but does not directly conflict with federal regulations?

Back 30

Even if a state law does not overtly conflict with federal law, a state law will be preempted under the Supremacy Clause if it frustrates the purpose of a federal statute.

Front 31

A final state court judgment that rests on adequate and independent state grounds may not be reviewed by the Supreme Court. When are there adequate and independent state grounds?

Back 31

The state law grounds must fully resolve the matter (i.e., be adequate) and must not incorporate a federal standard by reference (i.e., be independent). When it is not clear whether the state court’s decision rests on state or federal law, the Supreme Court may hear the case.

Front 32

The Amendments only apply to federal and state action. When may the actions of a private person be considered "state action"?

Back 32

A private person’s action may constitute state action if a private person performs a traditional governmental function or there is significant state involvement.

Front 33

What is the rule regarding the Supremacy Clause and state laws when Congress intends to occupy the field?

Back 33

Federal preemption of state law pursuant to the Supremacy Clause is implied in situations where state law is not directly in conflict with federal law, nor is it expressly prohibited, but Congress intended for federal law to occupy the field.

Front 34

When may states regulate the federal government?

Back 34

The states have no power to regulate the federal government unless Congress permits the state regulation, or the state regulation is not inconsistent with existing federal policy.

Front 35

What is the Privileges and Immunities Clause (the Comity Clause) of Article 4?

Back 35

The Privileges and Immunities Clause prohibits a state from discriminating against the citizens of another state.

Also, a right of interstate travel may plausibly be inferred from the clause (but is also a fundamental right, remember).