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70 Cards in this Set

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If you have both equal protection and due process issues, which answer should you choose?
Always choose equal protection, unless the right is being taken away from ALL citizens.
Equal protection: why ask whether the defendant is the local, state, or federal government?
The 14th Am equal protection and DP clauses only apply to state and local government. The 5th Amendment DP clause applies to the federal government.
What should you do if an answer gives one branch of the government unlimited powers?
Throw it out!
What are the quasi-suspect classifications requiring intermediate scrutiny?
Gender and legitimacy.
What is the general test for a law affecting aliens?

Are there exceptions?
Strict Scrutiny.


Yes.
What do Article IV privileges and immunities do?
Prohibit discrimination by a state against people from out of state for the benefit of its citizens in areas of employment (narrow).
Could the federal government pass legislation regulating state and local employees only?
No. However it could regulate them if they were part of a larger group (say, all employees).
When does a state law violate the dormant commerce clause?
When it inflicts an undue burden on interstate commerce.
What two things should you always remember about the military?
(1) The president has the power to send troops into "hot spots."
(2) Only Congress has the power to declare war.
What are the two main types of advisory opinions?
(1) Cases regarding legislation that is not yet law; and
(2) Cases where the court is not the final authority.
What does the 11th Amendment do?
It prohibits suits against states in federal court.
What three things must a plaintiff allege to have standing?
(1) injury
(2) causation
(3) redressability
Can a plaintiff assert a general injury?
No. The injury must be personally suffered by the plaintiff. Sierra Club v. Morton.
If a plaintiff seeks injunctive or declaratory relief, what must she show to have standing?
A likelihood of future harm. LA v. Lyons.
If asked which plaintiff has the "best" standing, what should you do?
(1) Look for a personally suffered injury.
(2) Look for a personally suffered monetary injury.
For standing, can a plaintiff assert the claims of others?
Generally, no.

Exception: close relationship b/t P and injured 3rd party (MD-patient, child-custodial parent).

Exception: injured 3rd party unlikely to assert own rights (criminal defendants can raise rights of jurors re: discrimination).

Exception: organization may sue for members in some cases.
What are the requirements for organization standing?
(1) members would have standing to sue
(2) interests are germane to the organization's purpose
(3) neither the claim nor relief requires participation of individual members
Does a taxpayer have standing to sue the government to compel it to follow the law?
Generally, no.

Exception: taxpayers have standing to challenges government expenditures as violating the establishment clause.
Does a taxpayer have standing to challenge government allocations of PROPERTY as violationg the establishment clause?
No. The exception applies only to government expenditures.
What issue is usually involved in a request for declaratory judgment?
Ripeness.
What does the court consider in determining the ripeness of an issue?
(1) The hardship that will be suffered without pre-enforcement review.
(2) The fitness of the issues and the record for judicial review. In other words, does the fed ct have all it needs to decide the issue?
What is ripeness?
The question of whether a federal court may grant PRE-enforcement review of a statute or regulation.
Can a state regulate the activities of the federal government?
Only with Congressional consent. So, agents and instrumentalities of the federal government are immune from state regulations relating to performance of their federal functions.
What does the Contract Clause of the Constitution do?
It prohibits states from acting to SUBSTANTIALLY impair contract rights.
Who can grant a pardon?
The President has exclusive power to pardon. Art. II section 2 grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
What does Art. I section 1 of the Constitution do?
It simply vests all legislative powers in Congress.
Can a state tax imports or exports?
The Import-Export Clause states "NO state shall, without the CONSENT of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely NECESSARY for executing its inspection Laws."
What test do you use when a law or government program discriminates among religions?
Strict scrutiny.
Does the merit of Congressional expenditures figure into whether they are proper under spending power?
No. Art. I, section 8.
Can the government limit contributions that an individual may make to a candidate's campaign?

Why?
Yes. It can do so to avoid corruption or the appearance of corruption.
Can the government limit contributions that an individual may make to a political committee that supports or opposes a ballot referendum?
No. Such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the 1st Am freedoms of speech and association.
When does the Due Process Clause require a hearing?
For laws involving the deprivation of life, liberty, or property of an INDIVIDUAL.
For rational basis review, is saving taxpayers money a legitimate state interest?
Yes.
To what does the Privileges and Immunities Clause of Art. IV apply?
To discrimination by a state against nonresidents.
What is a political question?
It is a question involving an issue that the Constitution has committed to another branch of the government, or that is inherently incapable of judicial resolution and enforcement.
Is the First Am protection of speech and assembly absolute?
No. The govt may adopt regs conerning time, place, and manner of speech and assembly in public forums and designated public forums to facilitate order and protect other important govt interests. BUT there are restrictions on these laws (other flashcard).
If a law restricts speech as to time, place, and manner, what conditions must it meet in order to be valid?
(1) content neutral
(2) narrowly tailored to serve a significant govt interest
(3) leave open alternative channels of communication
Does Congress have any power over foreign affairs?
Yes, some, via war power, treaty power, and power to regulate foreign commerce.
Who should oversee disputes between two or more states?
The Supreme Court, under Art. III. It has original and exclusive jurisdiction.
Is the First Am prohibition on laws prohibiting free exercise of religion absolute?
No. A law of general applicability will not be struck down on free exercise grounds unless it was enacted for the purpose of burdening religion.
Does government action include court enforcement of restrictive covenants between private parties?
It can. In Shelly, the court held that deed restrictions based on race were unenforceable b/c enforcement would = government action suporting discrimination against a suspect class.
Do zoning regulations prohibiting 3 or more UNRELATED persons from living together infringe any fundamental rights?
No. Village of Belle Terre (college students challenged an ordinance).
Which law governs when the federal government and the state government share power to regulate a particular subject?
The federal law, under the Supremacy Clause.
Can a state regulate legitimate activities of the federal government if the activities fall within its police powers?
No. In any circumstance, the state may only regulate the legitimate activities of the fed govt if Congress consents.
What does procedural due process require?
It requires that fair procedure be used before a govt agency takes away an INDIVIDUAL's life, liberty, or property.

At the least, this requires notice and an opportunity to present objections to an unbiased decisionmaker.
Will federal courts enjoin a pending state criminal proceeding?
Generally no, even if they have jx.

Exception: a fed court will hear an action to enjoin a pending state court prosecution if it is being conducted in BAD FAITH.
What is Congress's property power?
Under Art. IV, section 3, Congress has the power to dispose of all property belonging to the federal government. There are no express limits on this power (need not get the President's permission, for example).
For the first Am regulation, what is the difference between commercial and non-commercial speech?
Commercial speech is subject to more regulation.
How does the court evaluate whether a restriction on commercial speech is valid?
(1) Asks whether speech conerns lawful activity and is no misleading or fraudulent. If not...
(2) Determines whether
- govt interest in the regulation is substantial;
- regulation directly advances that interest; and
- regulation is narrowly tailored to substantial interest.
If a regulation has a substantial impact on a fundamental right, what must the state prove to uphold it?
The state has the burden of proving that the statute is necessary to achieve a compelling government purpose.
What are the exceptions to mootness?
(1) capable of repetition but evading review.

(2) voluntary cessation. Here, defendant may resume the practice at any time.

(3) class action suits. Only one member needs to have an ongoing injury.
What falls under the political question doctrine?
(1) "Republican form of government" clause;
(2) Challenges to the President's conduct of foreign policy.
(3) Challenges to the impeachment and removal process.
(4) Challenges to partisan gerrymandering.
Can the court adjudicate challenges to partisan gerrymandering?
No, it is a political question.
How does a case from a state court get to the USSC?
Always writ of certiorari.
How does a case from a court of appeals come to the USSC?
Always writ of certiorari.
When can an appeal go to the USSC?
When it is an appeal of a decision of a 3-judge federal district court.
Do circuit courts ever hear disputes between state governments?
No. They go right to the USSC, which has exclusive original juridiction.
What prevents the USSC from hearing a case that comes to it via writ of certiorari?
If the decision rests on idependent and adequate state grounds. Why? The USSC decision would not change the result.
Can federal or state courts hear suits against state governments?
No. 11th Amendment sovereign immunity bars such suits.
When may a plaintiff sue a state?
(1) Waiver via EXPLICIT consent.
(2) When sued under federal laws adopted under section 5 of the 14th Amendment.
(3) When sued by the federal government.
Can a plaintiff sue a state under a federal law adopted under section 5 of the 14th Amendment, like Title VII?
Yes. This is an exception to 11th Amendment sovereign immunity.
Can a plaintiff sue a state officer?
Yes.
(1) for injunctive relief;
(2) for monetary damages to be paid out of his own pocket.

But: officer cannot be sued if the state treasury will pay retroactive damages.
Does Congress have a federal general police power?
No. The federal power is laid out in Article 1. There must be an express or implied Congressional power for it to act.

BUT there are exceptions.
What are the exceptions to the general ban on federal police power?
M.I.L.D.
(1) Military
(2) Indial Reservations
(3) Federal lands and territories
(4) D.C.
Congress may act for the "general welfare" in two circumstances ONLY. What are they?
(1) Taxing
(2) Spending
What does Commerce Clause power extend to?
(1) Channels of interstate commerce, like highways, waters, or internet.
(2) Instrumentalities and persons/things in interstate commerce. Trucks, phones, internet, electricity, radio, stock, insurance...
(3) Economic activities w/ a substantial effect on interstate commerce.
What is the basic statement of the 10th Amendment?
The 10th Amendment limits Congressional power. It states that all powers not granted to the U.S., nor prohibited to the states, are reserved for the state or the people.
How can Congress make a state legislate?
It CANNOT compel state regulatory or legislative action. 10th Amendment.

It can induce action by putting strings on grants.
What are the requirements for federal government grants intended to influence state regulatory or legislative action?
(1) conditions are expressly stated;
(2) conditions relate to the purpose of the spending program.

Ex. must have 21 yr old drinking age to get federal highway money.
Can Congress prohibit harmful commercial activity by state governments?
Yes. Important that it is not a command to do something affirmatively.