Constitutional Law*

Front 1

Federalism

Back 1

Limits placed on state and local government because existence of federal gov't and 49 other states

Front 2

Standing

Back 2

The issue of whether plaintiff is proper party to bring this case

Front 3

What are the 4 topics of justiciability doctrine?

Back 3

1) Standing

2) Ripeness

3) Mootness

4) Political question doctrine

Front 4

What must be shown to show injury?

Back 4

- P must prove that they have been injured or imminently will be

- Causation and redressability: D caused the injury and a favorable court decision is likley to remedy the harm

- P personally suffered the injury

- No generalized grievances

Front 5

When does a plaintiff have standing to sue simply because they are a citizen or taxpayer?

Back 5

1) To challenge government expenditures as violating the establishment clause

2) To challenge a federal action as violating the 10th amendment

Front 6

Is third party standing allowed if the injured party is unlikely to assert their own rights?

Back 6

Yes

Front 7

Can injury be based on mere ideological objection?

Back 7

No

Front 8

When may an organization sue for its members?

Back 8

When members themselves would have had standing

Front 9

What is considered when determining ripeness?

Back 9

1) The hardship that would be suffered without pre-enforcement review

2) The fitness of the issu eand records

Front 10

What are the exceptions to the bar on moot cases?

Back 10

1) the wrong is capable of repetition but evades review because of inherently limited time restraints

2) Voluntary cessation by the defendant

3) Class action suits

Front 11

What are the 4 types of cases that are dismissed as non-justiciable political questions?

Back 11

1) Guarantee of republican form of government

2) Challenges to President's conduct of foreign policy

3) Challenges to the impeachment and removal process

4) Challenges to political gerrymandering

Front 12

Can the Supreme Court hear a case when there exists an independent and adequate state law basi s of the decision?

Back 12

No

Front 13

Where does congress have a general police power?

Back 13

1) Military

2) Indian Reservations

3) Federal Lands

4) District of Columbia

Front 14

Describe the bounds of the commerce clause

Back 14

1) Congress can regulate the instruments of interstate commerce

2) Congress can regulate the channels of interstate commerce

3) May regulate non-economic activities that have a substantial effect on interstate commerce

4) Cannot compel activity

Front 15

Can congress compel regulatory or legislative action on behalf of state governments?

Back 15

No

Front 16

How can Congress induce state government action?

Back 16

Putting strings on monetary grants, as long as the conditions are expressly stated and relate to the purpose of the spending programs and are not unduly coercive

Front 17

What limits are there on Congress' ability to delegate legislative power?

Back 17

None

Front 18

Can congress delegate executive power to itself or others?

Back 18

No

Front 19

What is required for a treaty to be succesful?

Back 19

they must be negotiated by the President and ratified by the senate.

Front 20

What happens to state laws that conflict with treaties?

Back 20

They are invalid

Front 21

What happens when a federal statute conflicts with a treaty?

Back 21

Whichever was adopted last in time controls

Front 22

What happens if a treaty conflicts with the U.S. Constitution?

Back 22

The treaty is invalid

Front 23

Executive agreement

Back 23

Agreement between the United States and a foreign ocuntry that is effective when signed by the President and head of the foreign nation.

Front 24

What happens when an executive agreement conflicts with a state law?

Back 24

The agreement prevails

Front 25

What happens when an executive agreement conflicts with a federal law or the constitution?

Back 25

The federal law or constitution prevails

Front 26

What is the removal power?

Back 26

The President may remove any executive branch official unless limited by statute

Front 27

What two requirements must be met for Congress to be able to pass a statute limiting removal?

Back 27

1) It must be an office where independence from the President is desirable

2) Congress cannot prohibit removal; it can limit removal to where good case shown

Front 28

What happens if Congress says that a federal law is exclusive in a field?

Back 28

Then state and local laws are pre-empted

Front 29

What happens if a person cannot simultaneously comply with both the federal and state law?

Back 29

The state law is preempted

Front 30

What does the Courts presume in areas of law normally within the power of the states?

Back 30

State powers are not to be superseded unless it was the clear and manifest purpose of Congress

Front 31

Dormant Commerce Clause

Back 31

State or local laws are unconstitutional if they place an undue burden on interstate commerce

Front 32

Privileges and Immunities Clause of Article 4

Back 32

No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification

Front 33

Does the privileges and immunities clause apply if the law at issue does not discriminate against out of staters?

Back 33

No

Front 34

When does a law violate the dormant commerce clause?

Back 34

When the burden of the law on interstate commerce outweighs the benefit of the law

Front 35

What analysis must be undertaken if a law does discriminate against out-of-staters?

Back 35

It vioaltes the dormant commerce clause unless it is necessary to achieve important government interest

Front 36

What happens if congress approves a statute that would otherwise violate the dormant commerce clause?

Back 36

Then the statute is okay

Front 37

Can a state or local government prefer its own citizens in receiving health benefits from government programs or in dealing with government owned businesses?

Back 37

Yes

Front 38

May state governments use their tax system to benefit in-state businesses?

Back 38

No

Front 39

What is required for the state to have the right to tax an activity?

Back 39

A substantial nexus between the product/activity to be taxed and the state

Front 40

What is required for the full faith and credit claise to apply?

Back 40

1) 1st court must have had personal and subject matter jurisdiction

2) Judgment must have been on the merits

3) Judgment must have been final

Front 41

Can Congress use section 5 of the 14th amendment to regulate private behavior?

Back 41

No - only to regulate state and local governments

Front 42

Must private action conform to the tenets of the Constitution if a private entity is performing a task traditionally performed by government?

Back 42

Yes

Front 43

What is the entanglement exception to private action doctrine?

Back 43

Private action must conform to the Constitution if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

Front 44

Which amendments in the bill of rights have not been applied directly to the states through the 14th amendment?

Back 44

3rd amendment to not have soldiers quartered

5th amendment right to grand jury indictment

7th amendment right to jury in civil cases

8th amendement right against excessive fines

Front 45

Rational basis test

Back 45

Law is upheld if its is rationally related to a legitimate government purpose.

Challenger has the burden of proof.

Front 46

Intermediate scrutiny

Back 46

Law is upheld if it is substantially related to an important government interest.

Government has the burden of proof.

Front 47

Strict Scrutiny

Back 47

Law is upheld if it is necessary to achieve a compelling government interest.

Government has the burden of proof.

Front 48

When does a deprivation of liberty occur?

Back 48

When there is a loss of a significant freedom provided by the Constitution or a statute

Front 49

When does a deprivation of property occurs?

Back 49

When a person has an entitlement and that entitlement is not fulfilled

Front 50

Entitlement

Back 50

Reasonable expectation to the continued receipt of a benefit

Front 51

Can government negligence lead to a deprivation of due process?

Back 51

No - there must be intentional government action or at least reckless action

Front 52

What is required for liability for deprivation of due process in emergency situations?

Back 52

Government action that "shocks the conscience"

Front 53

What is the three part balancing test that must be applied if there has been a deprivation of due process?

Back 53

1) Importance of the interest to the individual

2) Ability of additional procedures to increase the accuracy of the fact-finding

3) The government's interest in administrative and economic efficiency

Front 54

What is required for termination of welfare benefits?

Back 54

Notice and a hearing

Front 55

What is required for permanent termination of a parent's right to custody?

Back 55

Notice and a hearing

Front 56

Substantive Due Process

Back 56

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

Front 57

Takings clause of the 5th Amendment

Back 57

The government may take private property for public use only if it provides just compensation or terminates the regulation and pays damages.

Front 58

What are the two types of taking?

Back 58

1) Possessory taking - gov't confiscation or physical occupation of property

2) Regulatory Taking - regulation is a taking if it leaves no reasonable economic viable use of the property

Front 59

When is a taking for public use?

Back 59

When the government acts out of a reasonable belief that the taking will benefit the public

Front 60

How is just compensation measured?

Back 60

Reasonable market value terms

Front 61

What standard of scrutiny must be met in order for a government to interfere with already existing contracts?

Back 61

Intermediate scrutiny

Front 62

What standard of scrutiny must be met in order for a government to interfere with an existing government contract?

Back 62

Strict

Front 63

Does the ex post facto clause refer to civil cases?

Back 63

No, only criminal

Front 64

What is the maximum allowable durational requirement for voting purposes?

Back 64

50 days

Front 65

What is required for an equal protection challenge?

Back 65

A government action drawing a distinction among people

Front 66

What are the three steps in an equal protection analysis?

Back 66

1) What is the classification?

2) What level of scrutiny should be applied?

3) Does this law meet the level of scrutiny?

Front 67

What must be shown in order to trigger strict scrutiny for race based classification for a race-neutral law?

Back 67

Both discriminatory intent and discriminatory impact

Front 68

What is required for a numerical set aside to be constitutional?

Back 68

clear proof of past discrimination

Front 69

May educational institutions use race as one factor in admissions decisions?

Back 69

Yes - but they must show that there is no race-neutral alternative which could achieve diversity

Front 70

What must be shown to trigger intermediate scrutiny for gender based classifications in a gender neutral statute?

Back 70

Discriminatory intent and discriminatory impact

Front 71

Will gender classifications benefitting women be allowed if they are based on role stereotypes?

Back 71

No

Front 72

Will gender classificatons benefitting women be allowed if they are designed to remedy past discrimination or difference?

Back 72

Yes

Front 73

Content based restrictions must meet what level of scrutiny?

Back 73

Strict

Front 74

What are the two ways to find that a law regarding speech is content-based?

Back 74

1) Subject matter restriction

2) Viewpoint restriction

Front 75

Content neutral laws need to meet what level of scrutiny?

Back 75

Intermediate scrutiny

Front 76

A court order suppressing speech must meet what level of scrutiny?

Back 76

Strict

Front 77

Must a procedurally proper court order suppressing speech be complied with?

Back 77

Yes until it is vacated or overturned

Front 78

If a person violates a court order suppressing speech, may they later challenge the order itself?

Back 78

No

Front 79

Are gag orders on the press to prevent prejudicial pre-trial publicity allowed?

Back 79

No

Front 80

When can a government require a license for speech?

Back 80

Only when there is:

1) An important reason for licensing

2) Clear criteria leaving almost no discretion to the licensing authority.

3) Procedural safeguards

Front 81

When is a regulation of speech unconstitutionally vague?

Back 81

When a reasonable person could not tell what speech is prohibited and what is allowed

Front 82

When a speech regulation overbroad?

Back 82

When it regulated substantially more speech than the constitution allows to be regulated

Front 83

Are fighting words protected speech?

Back 83

No but statutes looking to regulate fighting words are often found to be too broad

Front 84

When may the government regulate conduct that communicates like speech?

Back 84

When it has an important interest unrelated to the suppression of the message and when the impact on communication is no greater than necessary.

Front 85

May spending programs impose conditions that limit first amendment activities of fund recipients?

Back 85

Not outside the scope of the spending program itself

Front 86

What is the test for obescenity and sexually oriented speech?

Back 86

1) The material must appeal to the prurient interest or a shameful interest in sex

2) The material must be patently offensive under the law prohibiting obscenity

3) Taken as a whole the material must lack serious redeeming artistic literacy, scientific or political value as determined by a national standard

Front 87

What must be proven to make a case for defamation if the plaintiff is a public official or running for public office?

Back 87

Clear and convincing evidence of the falsity and actual malice

Front 88

Can the state create liability for the truthful reporting of information that was legally obtained from the government's records?

Back 88

No

Front 89

Can the media be held liable for broadcasting and illegally intercepted and recorded call?

Back 89

Not if they had no hand in the illegality and it involves a matter of public importance

Front 90

Is the speech of government employees on the job in performance of their duties protected by the First Amendment?

Back 90

No

Front 91

Public Forums

Back 91

government properties that the government is constitutionally required to make available for speech

Front 92

What must be met in order to regulate speech at public forums?

Back 92

1) Regulations must be subject matter and viewpoint neutral or else meet strict scrutiny

2) Must be a time, place and manner restriction

3) Need not use the least restrictive alternative

Front 93

What is the constitutional status of permit fee requirements?

Back 93

Unconstitutional if the city officials have discretion in setting the amount of the fee

Front 94

Designated public forums

Back 94

Government properties that the government could close off to speech, but chooses to open to speech.

Front 95

Limited Public Forums

Back 95

Government properties that are dedicated to certain topics or for a limited purpose

Front 96

What rules apply to the regulation of speech at designated public forums?

Back 96

Same as for public forums

Front 97

What rules apply to the regulation of speech at limited public forums?

Back 97

Can regulate as long as the regulation is reasonable and viewpoint neutral

Front 98

Non-public forums

Back 98

Government properties that the government constitutionally can and does close off

Front 99

What rules concern regulation of speech in non-public forums?

Back 99

Gov't can regulate speech in non-public forums so long as the regulation is reasonable (rational basis test) and viewpoint neutral

Front 100

What are examples of non-public forums?

Back 100

Military bases, schools, areas outside of jails, sidewalks outside of post offices, signs on public property, airports

Front 101

Is there a First Amendment right of access to private property for speech purposes?

Back 101

No

Front 102

Laws that prohibit or punish group membership must meet what level of scrutiny?

Back 102

Strict

Front 103

What must be proven to punish someone for being a member of a group?

Back 103

1) Active affiliation with the group

2) knowledge of the group's illegal activities

3) specific intent to further those illegal activities

Front 104

What is the three part test to determine if a regulation complies with the establishment clause?

Back 104

1) must be a secular purpose to the law

2) the primary effect of the law must be neither to advance nor inhibit religion

3) There must not be excessive government entanglement with religion