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145 Cards in this Set

  • Front
  • Back
Constitutional Law issues checklist
+ What power is being excercised?
- judicial
- legislative
- executive
- state

+ is state action involved?

+ is the exercise of power constitutional?
limitations on judicial power
- standing
- abstention
- mootness
- ripeness
- advisory opinion
- political questions
standing: checklist
Need significant stake in teh controversy + injury in fact
- injury in fact: concrete & individuated?
- fed taxpayer: nexus
- asserting 3rd party rights
- organization
standing: taxpayer nexus
Taxpayer has standing if challenged measure enacted under Congress taxing & spending powers and exceeds specific limitation on taxing & spending powers.

Also can challenge aid to religion!
standing: 3rd party rights
- you have suffered too
- 3rd parties find it difficult to assert their own rights


- affects your relationship with 3rd party!
standing: organization
- injury in fact to members
- injury related to organization's purpose
- individual member's participation in law suit not required
judicial abstention
If there's a state issue, litigate that first (in state court, please!)
mootness: pregnancy
It's not moot because you might get pregnant again
legislative power: checklist
- COMMERCE power
- ALIEN naturalization & citizenship
- FOREIGN affairs
- ELECTION regulation
- TAXING power
- SPENDING power
- WAR power
- ENFORCEMENT of civil rights
- PROPERTY power
- OTHER powers
Congress: commerce power
- affects interstate commerce (aggregate impact)
- rational basis
- reasonably adapted
Congress vs. state: foreign affairs power
states cannot frustrate foreign policy objectives!
Congress: spending power
+ general welfare:
- national problem
- reasonable means
- Congress believes will remedy

+ strings attached to financial grants:
- reasonably related
- enumerated powers
- not unconstitutional or ambiguous
Congress: taxing power
- bears some reasonable relationship to revenue production
- power to regulate
- cannot be a penalty

If so, court won't scrutinize!
Congress delegation power: executive/administrative officials/agencies
- power must not be uniquely confined to Congress
- delegation must include intelligible standards
Congress delegation power: vote of 1 house
NO. Congressional action requires both houses & signed by president!
Presidential power: checklist
- WAR power
- TREATY power
- PARDON power
- FOREIGN affairs
President: executive agreements
Trumps state law!
treaty power
- treaties supersede state law
- treaty vs. federal law: last in time
state power
EVERYTHING Not preempted by the fed!

Can't tax foreign commerce

State action limitations (list)
State action limitations
- public functions
- private conduct
- aid
- encouragement
- licensing
Limitations on government: list
- limits on state action
- constitutional limitations
When do the 14th & 15th Amendments apply?
Feds: yes
States: no
Local government: yes
Company towns: yes
Malls: no
limits on state action: public functions
- local government & officials: covered by 14th/15th Amendments!
- company towns count as normal towns for 14th Amendment purposes
- shopping center is not a public function
limits on state action: licensing
- Just because the private entity is licensed, heavily regulated, or granted a monopoly doesn't make it a state action!
- just because you're licensed by the state doesn't mean you're not private (racist liquor store)
limits on state action: encouragement
- state/local government can't encourage discrimination!
- just because you're heavily regulated doesn't mean you're not private
- state can create private entity--still not state action!
limits on state action: aid
- excessive state FINANCIAL ENTANGLEMENT may constitute state action
- eg. privately run housing project (paid for by state)
Does the 14th Amendment prevent private conduct?
NO--no matter how "discriminatory or wrongful"
limits on government: constitutional limitations - list
- procedural due process
- substantive due process
- equal protection
- retroactive legislation
- economic taking
- first amendment
- immunities
- irrebuttable presumptions
civil rights
- contracts clause
procedural due process: checklist
- intentional deprivation of significant life, liberty, or property interest?
- what procedures are required to assure fundamental fairness?
bill of attainder
Congress can't pass a law punishing someone without trial!
equal protection: standards of review
- rational basis
- intermediate scrutiny
- strict scrutiny
rational basis test
RATIONALLY related to a LEGITIMATE governmental interest

Burden on challenging party!

Applies to:
- economic legislation
intermediate scrutiny
SUBSTANTIALLY related to an IMPORTANT governmental interest

Burden on government?

Applies to:
- gender
strict scrutiny
NARROWLY TAILORED to a COMPELLING governmental interest, using LEAST RESTRICTIVE means available!

Heavy burden on government!

Applies to:
- fundamental rights
- suspect classes (race & alienage)
difference between substantive due process and procedural due process
SUBSTANTIVE: why was I locked up? ("some forms of liberty are so essential that government may not abridge them by any process")

PROCEDURAL: now that I've been locked up, how can I get a fair trial?
substantive due process
+ fundamental right: strict scrutiny!
- interstate travel
- privacy (abortion, reproduction, etc.)
- voting
- 1st Amendment

+ economic regulations: rational basis
- can't be "arbitrary, capricious or unreasonable"
just compensation

- subjacent support maintenance
- physical occupation (cable TV)
- government use/disclosure of trade secrets
- public easements

Not a taking:
- property restrictions that protect public health, welfare, safety, morals
- substantially advance legitimate state interest & do not extinguish ownership
- prohibit sale of property
is the taking for a public purpose?
- safety
- health
- economic
- political
- social
- welfare
- aesthetic
- moral

Then just compensation must be paid!
1st Amendment free speech
- does the law attempt to regulate speech?
- if yes, does it fall under an exception?
- if it doesn't fall under an exception, then it's invalid!
1st Amendment: when can the government regulate speech?
when you can:
- clear & present danger
- fighting words
- obscenity
- defamation
- false or deceptive advertising / commercial speech
- sign regulations

when you can't:
- public forum: strict scrutiny
- prior restraint (requires prior approval)
- vague or overbroad
- forcing a person to speak
1st Amendment: establishment clause (religion)
- secular PURPOSE
- avoids undue ENTANGLEMENT
- won't produce DEVISIVENESS
privileges & immunities clause
Only protects essential rights!
- commercial fisherman: yes
- recreational hunter: no
- travel: yes
- vote: yes
irrebuttable presumption
Is the right protected by the Constitution?
If yes: can't have a rebuttable presumption
If no: rational basis test
Statutes that modify existing contracts
Private contracts: intermediate scrutiny
Public contracts: strict scrutiny

Doesn't apply to the feds!!!
Three standards of scrutiny with definitions
strict: NARROWLY tailored to COMPELLING gov't interest using LEAST RESTRICTIVE means available

intermediate: SUBSTANTIALLY related to IMPORTANT gov't interest

rational basis: RATIONALLY related to LEGITIMATE gov't interest; burden on challenger
Is it a taking? Subjacent support maintenance
Is it a taking? Physical occupation (cable TV)
Is it a taking? Government use/disclosure of trade secrets
Is it a taking? Public Easements
Is it a taking? Property restrictions that protect public health, welfare, safety, morals
Is it a taking? Laws that substantially advance legitimate state interest & do not extinguish ownership
Is it a taking? Prohibiting sale of property
Can government regulate this form of speech? Clear & present danger
Can government regulate this form of speech? fighting words
Can government regulate this form of speech? obscenity
Can government regulate this form of speech? defamation
Can government regulate this form of speech? false or deceptive advertising / commercial speech
Can government regulate this form of speech? sign regulations
Can government regulate this form of speech? public forum
strict scrutiny
Can government regulate this form of speech? prior restraint
Can government regulate this form of speech? vague or overbroad
Can government regulate this form of speech? forcing a person to speak
If the state creates a private entity, do the actions of that private entity count as state action?
Injury in fact: requirements
Must be concrete & individuated
Congress spending power: general welfare
- national problem
- reasonable means
- Congress believes will remedy
Congress spending power: strings attached to financial grants
- reasonably related
- enumerated powers
- not unconstitutional or ambiguous
substantive due process: level of review for fundamental rights
strict scrutiny!

- interstate travel
- privacy (abortion, reproduction, etc.)
- voting
- 1st Amendment
substantive due process: level of review for economic regulations
rational basis.

can't be "arbitrary, capricious or unreasonable"
Can Congress appoint members of a commission that exercises enforcement powers?
Can legislative power be delegated under very vague guidelines without creating an unconstitutional delegation?
If city council is going to repeal a challenged ordinance, does that make the challenge moot?
It's not moot unless the ordinance has actually been repealed.
Due process: do you need a hearing before having a business license suspended/revoked?
YES - a business license is a valid property right, and procedural due process requires a hearing if it is suspended.
Does the Privileges & Immunities Clause extend to non-citizens?
If police see a suspect inside the house may they enter & arrest without a warrant?
Only in hot pursuit or if suspect is going to destroy evidence
"Necessary & proper clause"
Always wrong answer!
Constitutional justification for Congress money grants
Power to tax & spend for the general welfare
state tax: rules
- state may not tax out-of-state businesses to assist in-state businesses
- must have clear connection or substantial nexus to state activities
- must be fairly apportioned fairly related to services provided by the state
federal justiciability doctrines:
advisory (can't do it!)
political question
Can Congress command the President to send troops to specific locations?
No; infringes on President's authority as Commander in Chief
Requirements for a taking:
Level of scrutiny for discriminating against aliens
feds: rational basis test (weak)
state/local: strict scrutiny
substantive due process vs. procedural due process
if you want a hearing: procedural due process
content of the law: substantive due process
Right/privilege answer
Always wrong answer!
Is there an Equal Rights Amendment?
Level of review for facially neutral economic measures
Rational basis test
Content-based discrimination violates:
First Amendment!
free exercise clause: statute upheld if
it's a law of general application neutral not intended to discriminate
Do federal taxpayers have standing to challenge any federal spending?
establishment clause:
Is a nondiscriminatory indirect tax on the federal government permissible?
YES as long as it does not unreasonably burden the federal government.
Can an at-will employee be terminated without a hearing?
What if some at-will employees get a hearing but some don't? Does that violate due process?
NO. If there's no statute requiring a hearing then there's no right to a hearing for at-will employees.
Can you object to a violation of someone else's 4th Amendment rights?
Police have probable cause to arrest you. You are at someone else's house. Police enter without a warrant and arrest you. Can you object on the grounds that they entered without a warrant?
NO - you can't object to a violation of someone else's 4th Amendment rights!
Federal Property Clause of Article IV Section 3:
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"
When a taxpayer can challenge federal spending:
Challenged measure was:
(1) enacted under Congress' taxing & spending power
(2) exceeds some specific limitation on the power Has only been applied to Establishment Clause.
Does the SC apply the Establishment Clause more generously to religiously affiliated colleges and hospitals than it does for grade or secondary schools?
YES; aid to one aspect of an institution of higher education not shown to be pervasively sectarian does not necessarily free it to spend its other resources for religious purposes.
Do you have a reasonable expectation of privacy with your own bank records?
Level of scrutiny for discrimination on the basis of alienage:

Plyler v. Doe, US 1982
In order to combat a specific problem in a specific area during a specific time of day can the police randomly stop cars?
NO - roadblocks are ok but random stopping isn't. Violates 4th Amendment and any evidence seized would be inadmissible.
Can Congress have a legislative veto over regulatory rules?
NO. Unconstitutional. It's Congressional action not subject to presidential review and violates separation of powers.
rational basis test:
RATIONALLY related to a LEGITIMATE government interest. Burden of proof is on the CHALLENGER
intermediate scrutiny:
SUBSTANTIALLY related to an IMPORTANT government purpose. Burden of proof is on the GOVERNMENT
strict scrutiny:
NECESSARILY related to a COMPELLING government purpose. Burden of proof is on the GOVERNMENT
If Defendant requests a mistrial does double jeopardy apply?
NO. Although it usually would it's an exception if the Defendant asked for the mistrial.
Does the Privileges & Immunities Clause apply to corporations or aliens?
Standard of review for a law regulating contributions to a PAC that supports or opposes a ballot referendum
Intermediate scrutiny
Zoning regulation prohibits 3 or more unrelated persons living together. Is it constitutional?
Rational basis review. YES.
Standard of review for GENDER
Gender is a quasi-suspect class. If a law intentionally targets a single gender then it is subject to INTERMEDIATE SCRUTINY.
Standard of review for AGE
Rational basis
Standard of review for MARITAL STATUS
Rational basis
Standard of review for CHILD REARING
Strict scrutiny!
Can the President refuse to spend funds allocated by Congress?
Can you sue to challenge a law if there is no substantial threat that the statute will be enforced?
May a state impose a reasonable fee on an indigent who wants to run for office?
Can a state make labeling requirements for foreign goods?
No - it burdens interstate commerce
If law enforcement threatens action (but hasn't done it yet) is that enough to sue?
Standard of review for law that discriminates against all religions equally
Strict scrutiny - 1st Amendment is implicated because it can make it more difficult to practice religion
15th Amendment
Prohibits states and the federal government from denying any citizen the RIGHT TO VOTE on account of race or color. Allows Congress to enact legislation protecting against discrimination affecting the right to vote.
Can Congress make appointments to executive agencies?
NO. Congress can delegate the power to appoint to:
- the president
- the courts
- department heads
- never to Congress!
Retirement benefits are what type of right?
Contractual right! (Once you've retired they ripen into a full contractual obligation.)
Right to appeal to the Supreme Court: what kind of right?
STATUTORY, not Constitutional.
Does ex post facto apply to procedure?
Foreign imports mixed with local items. Do they retain foreign import status?
If a tax is invalid as a regulatory measure
It might still be valid as a fund raising measure
Age restrictions for candidacy: standard of review
Rational basis (according to S. Court dicta)
Wealth restrictions for candidacy: standard of review
Strict scrutiny
Residency restrictions for candidacy: standard of review
Strict scrutiny
Property ownership restrictions on right to be a candidate: level of review
No articulated standard
Party affiliation restrictions on right to be a candidate: level of review
Strict scrutiny
Race restrictions on right to be a candidate: level of review
Strict scrutiny
Prohibition on officeholders from being candidates for another office
Rational basis
Does Congress have exclusive power over the District of Columbia?
Can you have a housing ordinance that restricts family units?
NO, as long as they're related.
Legislative punishment for party membership (eg. Communist party). Is it valid?
No - bill of attainder!
Can a Senator/Congressman be held liable for statements said in session?
Government law says you have to let cable company install cable in your building. Is it a taking?
Voluntary student-led prayer at school. Is it constitutional?
Can a state employment statute discriminate against illegal aliens?
Yes! Not an unconstitutional regulation of immigration or preempted by Supremacy Clause. It is within state's power to regulate employment of illegal aliens.
General tax used to provide targeted benefit. Constitutional?
Yes! Two separate issues: federal power to tax for fiscal purposes, and federal power to spend for the general welfare. Congress may decide that a Civil War museum is of general national benefit.
Does the Equal Protection Clause apply to aliens?
Yes! Congress has plenary power over the admission of aliens, but once they're here, discrimination is subject to strict scrutiny under the Equal Protection Clause of the 14th Amendment.
Is an expressed opinion actionable as defamation?
No - only statements of "fact" are actionable as defamation. Not statements of opinion (ie. "I think they should be deported").
Can you limit a charity's appeals for fundraising?
Probably not (1st Amendment); courts usually strike it down.
Does the Privileges & Immunities Clause apply to the Feds?
NO. 14th Amendment only applies to the states and Article IV only applies to the states!
Statutory cause for redress: does it confer property interest?
YES. And once it's been granted, you can't take it away.