Constitutional Law (Mbe)

Front 1

May Congress regulate state and local government activities if the law applies to BOTH the state and private entities?

Back 1

Yes, Congress may regulate state and local government activities if the law applies to BOTH the state and private entities.

However, a federal regulation that does NOT apply to private businesses and that merely regulates a purely state government activity may be LIMITED by the 10TH AMENDMENT!

EXCEPTION: Civil rights

EXCEPTION: Spending power conditions

Front 2

A STATE has no power to regulate activities of the FEDERAL government UNLESS
____________________________________________.

Back 2

A STATE has no power to regulate activities of the FEDERAL government UNLESS
CONGRESS CONSENTS TO THE REGULATION.

Hint 2

A STATE has no power to regulate activities of the FEDERAL government UNLESS _______ ________ to the regulation. (ie. noun, verb)

Front 3

The power to regulate foreign commerce lies exclusively w/ __________.

Back 3

The power to regulate foreign commerce lies exclusively w/ CONGRESS.

Front 4

CONTRACT CLAUSE: This prohibits STATES from acting to __________ impair K rights.

The SC will subject state actions impairing K's to _________ ___________.

Back 4

CONTRACT CLAUSE: This prohibits STATES from acting to SUBSTANTIALLY impair K rights.

The SC will subject state actions impairing K's to STRICT SCRUTINY.

Hint 4

First part: ADVERB

Second part: What standard?

Front 5

EVEN IF a state action substantially impairs rights under an existing K, the action may be UPHELD if it:

(1) Serves an __________ and ___________ public interest; and

(2) Is a ___________ and ____________ ____________ means of promoting that interest.

Back 5

EVEN IF a state action substantially impairs rights under an existing K, the action may be UPHELD if it:

(1) Serves an IMPORTANT and LEGITIMATE public interest; and

(2) Is a REASONABLE and NARROWLY TAILORED means of promoting that interest.

Hint 5

Even if a state action VIOLATES THE COMMERCE CLAUSE, it may be upheld if...

Front 6

Art. II, Section 2 gives the PRESIDENT the EXCLUSIVE power to ________ for __________ against the U.S., EXCEPT in cases of ____________.

This power (IS/IS NOT) subject to control by CONGRESS.

Back 6

Art. II, Section 2 gives the PRESIDENT the EXCLUSIVE power to PARDON for OFFENSES against the U.S., EXCEPT in cases of IMPEACHMENT.

This power is NOT subject to control by CONGRESS.

Front 7

FREE EXERCISE OF RELIGION

The SC has held that a law of ________ applicability will NOT be struck down UNLESS it was enacted for the purpose of __________ ___________.

Back 7

The SC has held that a law of GENERAL applicability will NOT be struck down UNLESS it was enacted for the purpose of BURDENING RELIGION.

Front 8

The President's power to enter into executive agreements w/ foreign nations (IS/IS NOT) explicitly granted in the Constitution.

Back 8

The President's power to enter into executive agreements w/ foreign nations is NOT explicitly granted in the Constitution.

It comes from the President's power over FOREIGN RELATIONS.

Front 9

Under the _________ CLAUSE, executive agreements take precedence over conflicting state law.

Back 9

Under the SUPREMACY CLAUSE, executive agreements take precedence over conflicting state law.

Front 10

The power to protect _________ arises from the President's power over foreign relations.

Back 10

The power to protect AMBASSADORS arises from the President's power over foreign relations.

Front 11

Who or what is the arbiter of conflicts between state and federal governments?

It can resolve these conflicts under its power of ________ ______.

Back 11

The Supreme Court is the arbiter of conflicts between state and federal governments.

It can resolve these conflicts under its power of JUDICIAL REVIEW.

Front 12

The 11th Amendment prohibits the _______ courts from hearing an action by a _______ against his ________.

Back 12

The 11th Amendment prohibits the FEDERAL courts from hearing an action by a CITIZEN against his STATE.

Front 13

TRUE or FALSE?

The government may limit the amount of contributions that an individual can contribute to a candidate's campaign.

Back 13

TRUE!

The government may limit the amount of contributions that an individual can contribute to a candidate's campaign.

This relates to the 1st Amendment.

Hint 13

Relates to the 1st Amendment

Front 14

The DUE PROCESS CLAUSE does NOT require that EVERY law provide for a hearing.

The DPC requires a hearing ONLY for those laws involving the deprivation of ______, ______, or ______ of an ________.

Back 14

The DUE PROCESS CLAUSE does NOT require that EVERY law provide for a hearing.

The DPC requires a hearing ONLY for those laws involving the deprivation of LIFE, LIBERTY, or PROPERTY of an INDIVIDUAL.

Front 15

A POLITICAL QUESTION arises when an issue is:

(1) Committed to another _________ of government by the ___________; or is

(2) Incapable of _________ and enforcement by the _________.

Back 15

A POLITICAL QUESTION arises when an issue is:

(1) Committed to another BRANCH of government by the CONSTITUTION; or is

(2) Incapable of RESOLUTION and enforcement by the JUDICIARY.

Front 16

Under what standard should a law be assessed if NEITHER a fundamental right NOR a quasi-suspect class is involved?

Under this standard, government action will be upheld AS LONG AS it is __________ ___________ to a _____________ government interest.

Back 16

If NEITHER a fundamental right NOR a quasi-suspect class is involved, a law should be assessed under the rational basis test.

Under this standard, government action will be upheld AS LONG AS it is RATIONALLY RELATED to a LEGITIMATE government interest.

Hint 16

Whether the law here is examined under the substantive provisions of the DUE PROCESS CLAUSE or EQUAL PROTECTION CLAUSE, the analysis will be the same.

Front 17

Under the rational basis standard, the government (NEED/NEED NOT) choose the LEAST RESTRICTIVE MEANS available to accomplish this goal.

Back 17

Under the rational basis standard, the government need NOT choose the LEAST RESTRICTIVE MEANS available to accomplish this goal.

Front 18

Art. IV P&I Clause applies to what?

Back 18

Art. IV P&I Clause applies to: discrimination by a STATE against NONRESIDENTS

Front 19

Facts: Congress has NOT allowed NOR prohibited state regulation in a particular area.

A NONDISCRIMINATORY state regulation will be upheld
ONLY if its ________ on commerce does NOT outweigh a _________ _________ interest.

Back 19

A NONDISCRIMINATORY state regulation will be upheld
ONLY if its BURDEN on commerce does NOT outweigh a LEGITIMATE LOCAL interest.

Front 20

The SC has jurisdiction over parties and subject matter of a case from state court.

Under what circumstances will it not hear the case?

Back 20

The SC has jurisdiction over parties and subject matter of a case from state court.

Under what circumstances will it not hear the case?

If there are adequate and independent state grounds to support the decision.

Front 21

MOOTNESS goes to the issue of whether there is a ________, _________ controversy at this stage of the proceeding.

Back 21

MOOTNESS goes to the issue of whether there is a REAL, LIVE controversy at this stage of the proceeding.

Front 22

A municipality CAN place reasonable TIME, PLACE, and MANNER restrictions on certain aspects of speech.

However, it may NOT adopt a regulation that gives officials ________ _________ over speech issues.

Back 22

A municipality CAN place reasonable TIME, PLACE, and MANNER restrictions on certain aspects of speech.

However, it may NOT adopt a regulation that gives officials BROAD DISCRETION over speech issues.

NOTE: If a statute gives licensing officials unbridled discretion, it is VOID ON ITS FACE and speakers need NOT apply for a permit.

Front 23

ART. I, SECTION 8

Under their ______ POWER, the states may legislate for the ______, ______, and ______ of the community.

Back 23

ART. I, SECTION 8

Under their POLICE POWER, the states may legislate for the HEALTH, SAFETY, and MORALS of the community.

Front 24

Substantive due process tests the _____________ of a statute.

It prohibits _________ governmental action.

Back 24

Substantive due process tests the REASONABLENESS of a statute.

It prohibits ARBITRARY governmental action.

Front 25

MOOTNESS DOCTRINE

A court won't hear a case unless there is a _____, ____ controversy.

EXCEPTION: Controversies capable of _________ but evading _________.

Back 25

MOOTNESS DOCTRINE

A court won't hear a case unless there is a REAL, LIVE controversy.

EXCEPTION: Controversies capable of REPETITION but evading REVIEW.

Front 26

________ is a bar to hearing actions BEFORE a controversy arises.

Back 26

RIPENESS is a bar to hearing actions BEFORE a controversy arises.

Front 27

1ST AMENDMENT--Time, Place, and Manner Restrictions

To be valid, they must be:

(1) CONTENT _________;

(2) NARROWLY __________ to serve a significant government interest; and

(3) Leave open alternative ________ of communication.

Back 27

1ST AMENDMENT--Time, Place, and Manner Restrictions

To be valid, they must be:

(1) CONTENT NEUTRAL;

(2) NARROWLY TAILORED to serve a significant government interest; and

(3) Leave open alternative CHANNELS of communication.

Front 28

Under the rational basis standard, the party ____________ the government action has the burden of proving that the action was not __________ related to any _____________ state interest.

Back 28

-Under the rational basis standard, the party CHALLENGING the government action has the burden of proving that the action was not RATIONALLY related to any LEGITIMATE state interest.

Front 29

Art. IV, Section 3 gives ________ the power to dispose of all __________ belonging to the federal government.

Back 29

Art. IV, Section 3 gives CONGRESS the power to dispose of all PROPERTY belonging to the federal government.

Front 30

The DPC prohibits the government from denying persons of life, liberty, or property w/o due process of law.

HOWEVER--->A person must have a _________ property interest in the property taken.

"Property" includes more than personal belongings, but a ______ _________ or desire for the benefit is not enough.

One must have a legitimate claim or ENTITLEMENT to the benefit before one may make a procedural due process challenge.

Back 30

The DPC prohibits the government from denying persons of life, liberty, or property w/o due process of law.

HOWEVER--->A person must have a LEGITIMATE property interest in the property taken.

"Property" includes more than personal belongings, but a MERE EXPECTATION or desire for the benefit is not enough.

One must have a legitimate claim or ENTITLEMENT to the benefit before one may make a procedural due process challenge.

Front 31

The Equal Protection Clause is NOT applicable to the ___________ government.

However, equal protection guarantees are applicable through the _____ Amendment DPC.

Back 31

The Equal Protection Clause is NOT applicable to the FEDERAL government.

However, equal protection guarantees are applicable through the 5th Amendment DPC.

Front 32

TRUE OR FALSE:

Commercial speech can be subject to significantly more regulation than noncommercial speech.

Back 32

TRUE!

Commercial speech can be subject to significantly more regulation than noncommercial speech.

Front 33

To determine whether a restriction on commercial speech is valid, a court first asks whether the speech concerns LAWFUL activity and is NOT MISLEADING.

If yes, the court will determine whether:

(1) Government interest in the regulation is __________;

(2) The regulation _________ advances that interest; and

(3) The regulation is _________ tailored to the substantial interest.

Back 33

If yes, the court will determine whether:

(1) Government interest in the regulation is SUBSTANTIAL;

(2) The regulation DIRECTLY advances that interest; and

(3) The regulation is NARROWLY tailored to the substantial interest.

Front 34

REGULATION will amount to a "taking" ONLY when it _______ reduces the _________ value of property, so that there cannot be a ______ return on investment.

Back 34

REGULATION will amount to a "taking" ONLY when it UNJUSTLY reduces the ECONOMIC value of property, so that there cannot be a FAIR return on investment.

Front 35

Congress has the power to control interstate commerce in nearly any manner it desires.

ONLY the _______ are prohibited from ________ ___________ interstate commerce.

Back 35

Congress has the power to control interstate commerce in nearly any manner it desires.

ONLY the STATES are prohibited from UNDULY BURDENING interstate commerce.

Front 36

Speech and Debate Clause:

This says that conduct that occurs in the ________ course of the federal ___________ process and the _________ behind that conduct are _______ from prosecution.

Back 36

-This says that conduct that occurs in the REGULAR course of the federal LEGISLATIVE process and the MOTIVATIONS behind that conduct are IMMUNE from prosecution.

Front 37

What is required to impeach?

(1) ______ vote of House to _______ charges; and

(2) ______ vote of Senate to ______ and ______ from office.

Back 37

(1) MAJORITY vote of House to BRING charges; and

(2) 2/3 vote of Senate to CONVICT and REMOVE from office.

Front 38

Under rational basis standard, the party ____________ government action has the burden of proving that the action was not __________ related to any _____________ state interest.

Back 38

Under rational basis standard, the party CHALLENGING government action has the burden of proving that the action was not RATIONALLY related to any LEGITIMATE state interest.

Front 39

Art. IV, Section 3 gives ________ the power to dispose of all __________ belonging to the federal government.

Back 39

Art. IV, Section 3 gives CONGRESS the power to dispose of all PROPERTY belonging to the federal government.

Front 40

The DPC prohibits the government from denying persons of life, liberty, or property w/o due process of law.

HOWEVER--->For the restrictions of the Clause to apply, a person must have a _________ property interest in the property taken.

"Property" includes more than personal belongings, but a ______ _________ or desire for the benefit is not enough.

One must have a legitimate claim or ENTITLEMENT to the benefit before one may make a procedural due process challenge.

Back 40

The DPC prohibits the government from denying persons of life, liberty, or property w/o due process of law.

HOWEVER--->For the restrictions of the Clause to apply, a person must have a LEGITIMATE property interest in the property taken.


"Property" includes more than personal belongings, but a MERE EXPECTATION or desire for the benefit is not enough.

Front 41

The Equal Protection Clause is NOT applicable to the ___________ government.

However, equal protection guarantees are applicable through the _____ Amendment DPC.

Back 41

The Equal Protection Clause is NOT applicable to the FEDERAL government.

However, equal protection guarantees are applicable through the 5TH Amendment DPC.

Front 42

TRUE OR FALSE:

Commercial speech can be subject to significantly more regulation than noncommercial speech.

Back 42

TRUE!

Commercial speech can be subject to significantly more regulation than noncommercial speech.

Front 43

FIRST AMENDMENT--->

This prohibits Congress from:

(1) __________ a religion or interfering w/ the ______ exercise of religion;

(2) __________ the freedoms of speech and press; or

(3) Interfering w/ the right of _________.

Back 43

FIRST AMENDMENT--->

This prohibits Congress from:

(1) ESTABLISHING a religion or interfering w/ the FREE exercise of religion;

(2) ABRIDGING the freedoms of speech and press; or

(3) Interfering w/ the right of ASSEMBLY.

Front 44

EQUAL PROTECTION CLAUSE

Back 44

This prohibits government from treating similarly situated people differently w/o good reason.

Front 45

Personally abusive words that are likely to incite immediate physical retaliation in an average person.

Back 45

FIGHTING WORDS: Personally abusive words that are likely to incite immediate physical retaliation in an average person.

Front 46

Regulations of conduct associated w/ speaking.

Ex. time of the speech, sound level, etc.

Back 46

-Conduct regulations

Front 47

What type of regulations forbid communication of specific ideas?

Back 47

CONTENT REGULATIONS: Forbid communication of specific ideas.

Front 48

If a fundamental right is denied to everyone, it is a/an __________________ problem.

Back 48

If a fundamental right is denied to everyone, it is a SUBSTANTIVE DUE PROCESS problem.

Front 49

If fundamental rights are denied to SOME individuals but NOT OTHERS, it is a/an ________________ problem.

Back 49

If fundamental rights are denied to SOME individuals but NOT OTHERS, it is an EQUAL PROTECTION problem.

Front 50

INTENT may be shown by:

(1) A law that is ____________ on its ________;

(2) A discriminatory __________ of a facially _______ law; or

(3) A discriminatory ______ behind the law.

Back 50

INTENT may be shown by:

(1) A law that is DISCRIMINATORY on its FACE;

(2) A discriminatory APPLICATION of a facially NEUTRAL law; or

(3) A discriminatory MOTIVE behind the law.

Front 51

To whom does the Due Process Clause of the 14th Amendment apply?

Back 51

To state and local governments.

Front 52

To whom does the 5th Amendment Due Process Clause apply?

Back 52

The 5th Amendment DPC applies to the FEDERAL GOVERNMENT.

Front 53

Who has the BURDEN OF PROOF in rational basis review?

Back 53

The PERSON CHALLENGING THE LAW has the BOP in rational basis review.

Front 54

Who has the BURDEN OF PROOF in intermediate scrutiny?

Back 54

It is unclear who has the BOP in intermediate scrutiny--it is probably the GOVERNMENT.

Front 55

Who has the BURDEN OF PROOF in strict scrutiny?

Back 55

The GOVERNMENT has the BOP in strict scrutiny.

Front 56

List the quasi-suspect classifications:

(1) ____________

(2) ____________

Back 56

The quasi-suspect classifications are:

(1) GENDER
(2) LEGITIMACY

Front 57

List the suspect classifications:

(1) ____________

(2) ____________

(3) ____________

Back 57

The suspect classifications are:

(1) RACE

(2) NATIONAL ORIGIN

(3) ALIENAGE (sometimes)

Front 58

Alienage classifications:

(1) Federal classifications-->
___________ SCRUTINY

(2) State/Local classifications-->
___________ SCRUTINY

(3) Undocumented aliens-->
___________ ________

Back 58

Alienage classifications:

(1) Federal classifications-->
INTERMEDIATE SCRUTINY

(2) State/Local classifications-->
STRICT SCRUTINY

(3) Undocumented aliens-->
RATIONAL BASIS

Front 59

List the fundamental rights:

(1) _______________

(2) _______________

(3) _______________

(4) _______________

Back 59

The fundamental rights are:

(1) VOTING

(2) INTERSTATE TRAVEL

(3) PRIVACY

(4) 1ST AMENDMENT RIGHTS

Front 60

Under which standard are regulations that do NOT affect fundamental rights nor involve suspect or quasi-suspect classifications reviewed?

Back 60

-Regulations that do NOT affect fundamental rights nor involve suspect/quasi-suspect classifications are reviewed under RATIONAL BASIS REVIEW.

Front 61

Under which standard are regulations involving QUASI-SUSPECT CLASSIFICATIONS reviewed?

Back 61

Regulations involving QUASI-SUSPECT CLASSIFICATIONS are reviewed under INTERMEDIATE SCRUTINY.

Front 62

Under which standard are regulations involving FUNDAMENTAL RIGHTS or SUSPECT CLASSIFICATIONS reviewed?

Back 62

Regulations involving FUNDAMENTAL RIGHTS or SUSPECT CLASSIFICATIONS are reviewed under STRICT SCRUTINY.

Front 63

If a law treats a _______ or ______ of persons differently from others, it is an EQUAL PROTECTION problem.

Back 63

If a law treats a PERSON or CLASS of persons differently from others, it is an EQUAL PROTECTION problem.

Front 64

If a law limits liberty of _____ persons to engage in some ______, it is a SUBSTANTIVE DUE PROCESS problem.

Back 64

If a law limits liberty of ALL persons to engage in some ACTIVITY, it is a SUBSTANTIVE DUE PROCESS problem.

Front 65

Is the governmental action a TAKING or merely a REGULATION?

A TAKING requires payment of _______ _____________.

A REGULATION does _____ require compensation.

Back 65

Is the governmental action a TAKING or merely a REGULATION?

A TAKING requires payment of JUST COMPENSATION.

A REGULATION does NOT require compensation.

Front 66

This says that private property may NOT be taken for PUBLIC USE w/o JUST COMPENSATION.

Back 66

The 5TH AMENDMENT "TAKING" CLAUSE says that private property may NOT be taken for PUBLIC USE w/o JUST COMPENSATION.

This applies to the STATES via the 14TH AMENDMENT.

This is NOT a source of power, but a LIMITATION.

Front 67

These are legislative acts that inflict punishment on individuals w/o judicial trial.

Back 67

BILLS OF ATTAINDER: These are legislative acts that inflict punishment on individuals w/o judicial trial.

Front 68

What is an EX POST FACTO LAW?

It is a law that ____________ alters __________ offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some _____ activity.

Back 68

EX POST FACTO LAW: This is a law that RETROACTIVELY alters CRIMINAL offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some PAST activity.

Front 69

CONTRACT CLAUSE: Prohibits _______ from enacting any law that retroactively impairs _______ rights.

NOTE: It does NOT affect K's NOT yet entered into!

Back 69

CONTRACT CLAUSE: Prohibits STATES from enacting any law that retroactively impairs K rights.

NOTE: It does NOT affect K's NOT yet entered into!

Front 70

This says that Congress may prohibit _________ racial discrimination in activities that might have a __________ ________ on interstate commerce.

Back 70

COMMERCE CLAUSE: This says that Congress may prohibit PRIVATE racial discrimination in activities that might have a SUBSTANTIAL EFFECT on interstate commerce.

Front 71

15TH AMENDMENT: Prohibits BOTH state and federal governments from _________ a citizen the right to _______ on account of _______ or ______.

Back 71

15TH AMENDMENT: Prohibits BOTH state and federal governments from DENYING a citizen the right to VOTE on account of RACE or COLOR.

Front 72

____ AMENDMENT: Prevents ________ from _________ any person of life, liberty, or property w/o _____ ________ and ________ ____________ of law.

Back 72

14TH AMENDMENT: Prevents STATES from DEPRIVING any person of life, liberty, or property w/o DUE PROCESS and EQUAL PROTECTION of law.

Front 73

Prohibits slavery and involuntary servitude.

Back 73

13TH AMENDMENT: Prohibits slavery and involuntary servitude.

Front 74

______________: The process by which the 14th Amendment DPC applies almost all of the provisions of the _____ of _________ to the ______.

Back 74

INCORPORATION: The process by which the 14th Amendment DPC applies almost all of the provisions of the BILL of RIGHTS to the STATES.

Front 75

A tax placed on some ACTIVITY ("doing business" tax).

Back 75

PRIVILEGE, LICENSE, FRANCHISE, & OCCUPATIONAL TAX: A tax placed on some ACTIVITY ("doing business" tax).

Front 76

A tax on the assessed value of some property.

Back 76

AD VALOREM TAX: A tax on the assessed value of some property.

Front 77

________ TAXES: Taxes imposed on the _______ of goods for sales consummated ______ the state.

Back 77

SALES TAXES: Taxes imposed on the SELLER of goods for sales consummated WITHIN the state.

Front 78

Taxes imposed on goods purchased OUTSIDE the state but used WITHIN it.

Back 78

USE TAXES: Taxes imposed on goods purchased OUTSIDE the state but used WITHIN it.

Front 79

STRICT SCRUTINY: The law must be _________ to achieve a/an __________ government purpose.

Back 79

STRICT SCRUTINY: The law must be NECESSARY to achieve a COMPELLING government purpose.

Front 80

INTERMEDIATE SCRUTINY: The law must be ___________ related to a/an ___________ government purpose.

Back 80

INTERMEDIATE SCRUTINY: The law must be SUBSTANTIALLY related to an IMPORTANT government purpose.

Front 81

RATIONAL BASIS: The law must be __________ related to a/an __________ government purpose.

Back 81

RATIONAL BASIS: The law must be RATIONALLY related to a LEGITIMATE government purpose.

Front 82

Says that states may not deny their citizens the privileges or immunities of NATIONAL citizenship.

Back 82

14TH AMENDMENT P&I CLAUSE: Says that states may not deny their citizens the privileges or immunities of NATIONAL citizenship.

Front 83

Prohibits discrimination by a STATE against NONRESIDENTS.

Back 83

Art. IV INTERSTATE P&I CLAUSE: Prohibits discrimination by a STATE against NONRESIDENTS.

Front 84

If a person acts ULTRA VIRES, he is acting _______ his ________.

Back 84

If a person acts ULTRA VIRES, he is acting BEYOND his POWER.

Front 85

LEGISLATIVE VETOES of executive actions. Valid?

Back 85

NO!

LEGISLATIVE VETOES of executive actions are INVALID.

Front 86

Giving a bill to the President for his signature or veto.

Back 86

PRESENTMENT: Giving a bill to the President for his signature or veto.

Front 87

____________: Passage by BOTH Houses of Congress.

Back 87

BICAMERALISM: Passage by BOTH Houses of Congress.

Front 88

A __________ ________ is an attempt by Congress to overturn executive agency action WITHOUT:

(1) ___________ or

(2) ___________.

Back 88

A LEGISLATIVE VETO is an attempt by Congress to overturn executive agency action WITHOUT:

(1) BICAMERALISM or

(2) PRESENTMENT.

Front 89

Under the SPENDING POWER, Congress may spend to provide for the:

(1) ___________ __________; and the

(2) ___________ __________.

Spending may be for ANY ________ PURPOSE.

Back 89

Under the SPENDING POWER, Congress may spend to provide for the:

(1) COMMON DEFENSE; and the

(2) GENERAL WELFARE.

Spending may be for ANY PUBLIC PURPOSE.

Front 90

____ AMENDMENT: Prohibits federal courts from hearing claims against state governments brought by private parties and foreign governments.

Back 90

11TH AMENDMENT: Prohibits federal courts from hearing claims against state governments brought by private parties and foreign governments.

Front 91

RULE: A ________ generally has no standing to challenge government expenditures.

EXCEPTION: Suits attacking _________ and _________ measures on _____ AMENDMENT _________ CLAUSE grounds.

Back 91

RULE: A TAXPAYER generally has no standing to challenge government expenditures.

Why? B/c a taxpayer's interest is TOO REMOTE!

EXCEPTION: Suits attacking TAXING and SPENDING measures on 1ST AMENDMENT ESTABLISHMENT CLAUSE grounds.

Hint 91

Why? B/c a taxpayer's interest is TOO REMOTE!

Front 92

When a decision in the litigant's favor is capable of eliminating her grievance.

Back 92

REDRESSABILITY: When a decision in the litigant's favor is capable of eliminating her grievance.

Front 93

_________ bars consideration of claims BEFORE they have been DEVELOPED.

_________ bars consideration of claims AFTER they have been RESOLVED.

Back 93

RIPENESS bars consideration of claims BEFORE they have been DEVELOPED.

MOOTNESS bars consideration of claims AFTER they have been RESOLVED.

Front 94

21ST AMENDMENT deals w/ what?

Back 94

21ST AMENDMENT: Deals w/ STATE control over intoxicating liquor.

Front 95

ESTABLISHMENT CLAUSE:

(1) There must be a ________ PURPOSE for the law;

(2) The effect must be neither to _________ nor _______ religion; and

(3) There must NOT be _________ ENTANGLEMENT w/ religion.

Back 95

ESTABLISHMENT CLAUSE:

(1) There must be a SECULAR PURPOSE for the law;

(2) The effect must be neither to ADVANCE nor INHIBIT religion; and

(3) There must NOT be EXCESSIVE ENTANGLEMENT w/ religion.

Front 96

Property that the government can constitutionally close to speech.

Speech there can be regulated so long as it is _________ and __________________.

Back 96

NON-PUBLIC FORUM: Property that the government can constitutionally close to speech.

Speech there can be regulated SO LONG AS it is REASONABLE and VIEWPOINT NEUTRAL.

Front 97

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

Back 97

LIMITED PUBLIC FORUMS: Government properties that the government COULD close to speech, but chooses to open to speech.

Front 98

Property the government is constitutionally required to make available for speech.

This is public property that has historically been open to speech-related activities (STREETS, SIDEWALKS, and PUBLIC PARKS).

Back 98

PUBLIC FORUMS: Property the government is constitutionally required to make available for speech.

This is public property that has historically been open to speech-related activities (STREETS, SIDEWALKS, and PUBLIC PARKS).

Front 99

A law is unconstitutionally overbroad if it regulates ___________ _______ speech than the Constitution allows to be regulated.

Back 99

A law is unconstitutionally overbroad if it regulates SUBSTANTIALLY MORE speech than the Constitution allows to be regulated.

Front 100

A law is unconstitutionally vague if a reasonable person cannot tell what speech is ________ and what speech is ________.

Back 100

A law is unconstitutionally vague if a reasonable person cannot tell what speech is PROHIBITED and what speech is ALLOWED.

Front 101

Law that punishes a specific person w/o giving him a trial.

Back 101

BILL OF ATTAINDER: Law that punishes a specific person w/o giving him a trial.

Front 102

_________ _______: Provides that the Constitution, and the laws and treaties made pursuant to it, are the ________ _____ of the land.

Back 102

SUPREMACY CLAUSE: Provides that the Constitution, and the laws and treaties made pursuant to it, are the SUPREME LAW of the land.

This is in ART. IV!

Front 103

________ refers to the limits on STATE and LOCAL powers b/c of the existence of a national government.

Back 103

FEDERALISM refers to the limits on STATE and LOCAL powers b/c of the existence of a national government.

Front 104

TREATY: An agreement between the U.S. and a _________ country that is negotiated by the __________ and is effective when ________ by the _______.

Back 104

TREATY: An agreement between the U.S. and a FOREIGN country that is negotiated by the PRESIDENT and is effective when RATIFIED by the SENATE.

Front 105

EXECUTIVE AGREEMENT: An agreement between the U.S. and a __________ country that is effective when _______ by the President and the _______ of the foreign nation.

Back 105

EXECUTIVE AGREEMENT: An agreement between the U.S. and a FOREIGN country that is effective when SIGNED by the President and the HEAD of the foreign nation.

Front 106

To which part of the Constitution does this refer?

Conduct that occurs in the REGULAR course of the federal LEGISLATIVE process and the motivation behind that conduct are IMMUNE from prosecution.

Back 106

SPEECH AND DEBATE CLAUSE: Says that conduct that occurs in the REGULAR course of the federal LEGISLATIVE process and the motivation behind that conduct are IMMUNE from prosecution.

Front 107

NECESSARY AND PROPER CLAUSE

Gives _______ power to make all _____ necessary and proper for executing any power granted to any ________ of the federal government.

Back 107

NECESSARY AND PROPER CLAUSE

Gives CONGRESS power to make all LAWS necessary and proper for executing any power granted to any BRANCH of the federal government.

Front 108

CONTENT-NEUTRAL speech regulations generally are subject to ___________ scrutiny.

They must advance _________ interests unrelated to the suppression of speech and must NOT burden __________ more speech than ________ to further those interests.

Back 108

CONTENT-NEUTRAL speech regulations generally are subject to INTERMEDIATE scrutiny.

They must advance IMPORTANT interests unrelated to the suppression of speech and must NOT burden SUBSTANTIALLY more speech than NECESSARY to further those interests.

Front 109

It is presumptively unconstitutional to place burdens on speech b/c of its CONTENT except for certain categories of speech.

Give 2 examples of these categories.

Back 109

It is presumptively unconstitutional to place burdens on speech b/c of its CONTENT except for certain categories of speech.

Example: Obscenity

Example: Defamation

Front 110

CONDUCT can be regulated by content-neutral ______, ________, and ________ restrictions.

Back 110

CONDUCT can be regulated by content-neutral TIME, PLACE, and MANNER restrictions.

Front 111

In NONPUBLIC forums, regulations are valid if they are:

(1) ____________ neutral; and

(2) ___________ related to a ________government purpose.

Back 111

In NONPUBLIC forums, regulations are valid if they are:

(1) VIEWPOINT neutral; and

(2) REASONABLY related to a LEGITIMATE government purpose.

Front 112

To be valid, restrictions on the CONTENT of speech must be ________ _________ to achieve a _________ government interest.

Back 112

To be valid, restrictions on the CONTENT of speech must be NARROWLY TAILORED to achieve a COMPELLING government interest.

Front 113

If a defamatory statement is about a PUBLIC OFFICIAL or PUBLIC FIGURE or involves a PUBLIC CONCERN, the 1st Amendment requires P to prove all the elements of defamation PLUS _______ and some degree of ________.

Back 113

If a defamatory statement is about a PUBLIC OFFICIAL or PUBLIC FIGURE or involves a PUBLIC CONCERN, the 1st Amendment requires P to prove all the elements of defamation PLUS FALSITY and some degree of FAULT.

Front 114

In general, commercial speech gets 1st Amendment protection if ________.

However, it may be burdened if it proposes ________ ACTIVITY or is __________ or MISLEADING.

Other regulation of commercial speech will be upheld ONLY if it:

(1) Serves a __________ GOVERNMENT INTEREST;

(2) DIRECTLY ________ that interest; and

(3) Is ________ TAILORED to serve that interest.

Back 114

In general, commercial speech gets 1st Amendment protection if TRUTHFUL.

However, it may be burdened if it proposes UNLAWFUL ACTIVITY or is FRAUDULENT or MISLEADING.

Other regulation of commercial speech will be upheld ONLY if it:

(1) Serves a SUBSTANTIAL GOVERNMENT INTEREST;

(2) DIRECTLY ADVANCES that interest; and

(3) Is NARROWLY TAILORED to serve that interest.

Front 115

"Narrowly tailored" does NOT require the _______ __________ means of accomplishing a legislative goal.

There need only be a _________ FIT between the goal and the means chosen.

Back 115

"Narrowly tailored" does NOT require the LEAST RESTRICTIVE means of accomplishing a legislative goal.

There need only be a REASONABLE FIT between the goal and the means chosen.

Front 116

PRIOR RESTRAINTS prevent speech BEFORE it occurs, rather than punish it AFTERWARDS.

The government has a heavy burden in justifying a prior restraint; it must show that some _______ SOCIETAL _______ will otherwise result.

Back 116

PRIOR RESTRAINTS prevent speech BEFORE it occurs, rather than punish it AFTERWARDS.

The government has a heavy burden in justifying a prior restraint; it must show that some SPECIAL SOCIETAL HARM will otherwise result.

Front 117

To be valid, a system for prior restraint must provide several safeguards:

(1) The standards must be _______ drawn, REASONABLE, and _________;

(2) Injunction must _______ be sought; and

(3) There must be PROMPT and ________ DETERMINATION of the validity of the restraint.

Back 117

To be valid, a system for prior restraint must provide several safeguards:

(1) The standards must be NARROWLY drawn, REASONABLE, and DEFINITE;

(2) Injunction must PROMPTLY be sought; and

(3) There must be PROMPT and FINAL DETERMINATION of the validity of the restraint.

Front 118

TRUE or FALSE:

Members of the press may NOT be required to testify before grand juries.

Back 118

FALSE!

Members of the press MAY be required to testify before grand juries.

Front 119

FREEDOM OF ASSOCIATION: Means that the government may neither prohibit politically ________ groups nor unduly burden a person's right to _______ to such groups.

However, this is NOT an absolute right:

An infringement of the right may be justified by a _________ state interest, other than to suppress ideas, if it is the _____ ___________ MEANS of protecting the government interest involved.

Back 119

FREEDOM OF ASSOCIATION: Means that the government may neither prohibit politically UNPOPULAR groups nor unduly burden a person's right to BELONG to such groups.

However, this is NOT an absolute right:

An infringement of the right may be justified by a COMPELLING state interest, other than to suppress ideas, if it is the LEAST RESTRICTIVE MEANS of protecting the government interest involved.

Front 120

The Court uses a __________ test to determine whether a regulation of the electoral process is valid.

Back 120

The Court uses a BALANCING test to determine whether a regulation of the electoral process is valid.

Front 121

TRUE or FALSE:

Members of the press may not be required to testify before grand juries.

Back 121

FALSE!

Members of the press MAY be required to testify before grand juries.

Front 122

FREEDOM OF ASSOCIATION: Pursuant to this freedom, the government may neither prohibit politically ________ groups nor unduly burden a person's right to _______ to such groups.

Back 122

FREEDOM OF ASSOCIATION: Pursuant to this freedom, the government may neither prohibit politically UNPOPULAR groups nor unduly burden a person's right to BELONG to such groups.

HOWEVER, this is NOT an absolute right...

Infringements of the right may be justified by a COMPELLING state interest, unrelated to the suppression of ideas, if the infringements are the LEAST RESTRICTIVE MEANS of protecting the government interest involved.

Front 123

The Court uses a __________ test to determine whether a regulation of the electoral process is valid.

Back 123

The Court uses a BALANCING test to determine whether a regulation of the electoral process is valid.

Front 124

ART. IV--PRIVILEGES OF STATE CITIZENSHIP

o Prohibits discrimination by a _______ against _________

o _________ and _________ are NOT protected

o Only _________ rights are protected

o There is a SUBSTANTIAL __________ exception (e.g. must be no ______ ___________ means to solve the problem).

Back 124

ART. IV--PRIVILEGES OF STATE CITIZENSHIP

o Prohibits discrimination by a STATE against NONRESIDENTS

o CORPORATIONS and ALIENS are NOT protected

o Only FUNDAMENTAL rights are protected

o There is a SUBSTANTIAL JUSTIFICATION exception (e.g. must be no LESS RESTRICTIVE means to solve the problem).

Front 125

14TH AMENDMENT--PRIVILEGES OF NATIONAL CITIZENSHIP

o Prohibits ________ from denying their __________ the privileges and immunities of __________ citizenship.

o CORPORATIONS (are/are not) protected.

Back 125

14TH AMENDMENT--PRIVILEGES OF NATIONAL CITIZENSHIP

o Prohibits STATES from denying their CITIZENS the privileges and immunities of NATIONAL citizenship.

o CORPORATIONS are NOT protected.

Front 126

ART. IV--Privileges of _______ citizenship

14TH AMENDMENT--Privileges of _______ citizenship

Back 126

ART. IV--Privileges of STATE citizenship

14TH AMENDMENT--Privileges of NATIONAL citizenship

Front 127

Do treaties require consent of the Senate?

Do executive agreements require consent of the Senate?

Back 127

YES! Treaties require consent of the Senate (e.g., two-thirds).

NO! Executive agreements do NOT require consent of the Senate.

Front 128

SUBSTANTIVE DUE PROCESS--->If a law limits liberty of ____ persons to engage in some activity.

EQUAL PROTECTION--->If a law treats a _______ or _______ of persons differently from others.

Back 128

SUBSTANTIVE DUE PROCESS--->If a law limits liberty of ALL persons to engage in some activity.

EQUAL PROTECTION--->If a law treats a PERSON or CLASS of persons differently from others.

Front 129

____ AMENDMENT

Prohibits federal courts from hearing claims against _______ GOVERNMENTS brought by a PRIVATE PARTY or FOREIGN GOVERNMENT.

Back 129

11TH AMENDMENT

Prohibits federal courts from hearing claims against STATE GOVERNMENTS brought by a PRIVATE PARTY or FOREIGN GOVERNMENT.

Front 130

1ST AMENDMENT

This prohibits Congress from:

(1) ___________ a religion;

(2) ___________ w/ the free __________ of religion;

(3) ___________ the freedoms of ________ and _________; or

(4) Interfering w/ the right of ___________.

Back 130

1ST AMENDMENT

This prohibits Congress from:

(1) ESTABLISHING a religion;

(2) INTERFERING w/ the free EXERCISE of religion;

(3) ABRIDGING the freedoms of SPEECH and PRESS; or

(4) Interfering w/ the right of ASSEMBLY.

Front 131

Treaty vs. conflicting state law

Which prevails?

Back 131

Treaty vs. conflicting state law

Treaty prevails!

Front 132

Treaty vs. conflicting federal law

Which prevails?

Back 132

Treaty vs. conflicting federal law

Last in time prevails!

Front 133

Executive agreement vs. conflicting state law

Which prevails?

Back 133

Executive agreement vs. conflicting state law

Executive agreement prevails!

Front 134

Executive agreement vs. conflicting federal law

Which prevails?

Back 134

Executive agreement vs. conflicting federal law

Federal law prevails!

Front 135

May the U.S. sue a state w/o its consent?

Back 135

YES!

The U.S. may sue a state w/o its consent.

Front 136

May a state sue the U.S. w/o its consent?

Back 136

NO!

A state may NOT sue the U.S. w/o its consent.

However, Congress can pass legislation permitting the states to sue the U.S. in given situations.

Front 137

B/c of the Supremacy Clause, a federal law may ________ or ________ local laws.

Back 137

B/c of the Supremacy Clause, a federal law may SUPERSEDE or PREEMPT local laws.

Front 138

FUNDAMENTAL RIGHTS: Those involving important __________ ACTIVITIES and CIVIL __________.

Back 138

FUNDAMENTAL RIGHTS: Those involving important COMMERCIAL ACTIVITIES and CIVIL LIBERTIES.

Front 139

May an alien or a corporation be a plaintiff?

o Under the Commerce Clause?

o Under the P&I Clause of Art. IV?

Back 139

May an alien or a corporation be a plaintiff?

o Under the Commerce Clause? YES!

o Under the P&I Clause of Art. IV? NO!

Front 140

Define the Abstention Doctrine:

Back 140

The federal court may abstain or refuse to hear a particular case when there are undecided issues of state law presented. The abstention doctrine permits the state court to resolve issues of state law, thereby making a decision on the constitutional issue unnecessary. The federal court may abstain if the meaning of a state law or regulation is unclear. In this situation, the state court might interpret the statute so as to avoid the constitutional issue.

Front 141

Define the Adequate and Independent State Grounds doctrine:

Back 141

Although a state court decision may involve a federal question, if the state court judgment can be supported on an adequate and independent state ground, the Supreme Court will not take jurisdiction.

Front 142

Unlike other doctrines of judicial review, which apply to the entire federal judiciary, adequate state grounds apply only to:

Back 142

the Supreme Court.

Front 143

Explain the “procedural“ component to Adequate State Grounds:

Back 143

If the plaintiff loses in state court for failing to comply with some state procedural rule and the Supreme Court finds the state procedural rule to be "adequate" (fundamentally fair under due process analysis), then the doctrine of adequate state grounds will also apply to foreclose Supreme Court review.

Front 144

Affirmative action based on gender need only pass:

Back 144

intermediate scrutiny.

Front 145

A bill of attainder is:

Back 145

a legislative act
that inflicts punishment
without a judicial trial
upon named individuals or an easily ascertainable group
for past conduct.

Front 146

Article I, section 9, clause 3 and Article I, section 10, clause 1 prevent both federal and state legislatures from:

Back 146

passing bills of attainder.

Front 147

Under the Civil War Amendments, Congress has the power to enforce:

Back 147

the 13th Amendment, banning slavery;
the 14th Amendment, prohibiting the states from violating due process, equal protection, and privileges and immunities; and
the 15th Amendment, prohibiting the states from discriminating in voting rights.

Front 148

To validly enforce the 14th or 15th Amendment, Congress must show that:

Back 148

State governments have engaged in widespread violations of the Amendment; and
the legislative remedy is "congruent with and proportional to" the violations.

Front 149

List the three ways that Congress can regulate commerce:

Back 149

channels of interstate commerce (i.e., highways, waterways, and air traffic);
instrumentalities of interstate commerce (cars, trucks, ships, airplanes); and
activities that "substantially affect" interstate commerce.

Front 150

Describe the Affectation Doctrine:

Back 150

Under the affectation doctrine, Congress now has the power to regulate any activity, whether carried on in one state or many, that has a substantial effect (whether directly or indirectly) upon interstate commerce. The affectation doctrine was expanded upon by the cumulative effect doctrine, in which the Supreme Court held that the federal commerce power permitted regulation of the amount of wheat a farmer could grow on his own land, for his own consumption, because his activity, together with that of other growers of wheat for their own consumption, had a substantial cumulative effect upon interstate commerce.

Front 151

Describe the 10th Amendment's weak limitation on the federal commerce power today:

Back 151

The 10th Amendment does prevent Congress from interfering with a state's law-making processes. Congress may not "commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program."

Front 152

The President may exercise only those powers expressly or impliedly granted by the Constitution or an act of Congress. If Congress validly exercises a power and overrides the President, then:

Back 152

Congress prevails over the President.

Front 153

The 14th Amendment provides:

Back 153

that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Equal protection review is triggered where similarly situated persons are treated differently.

Front 154

If a state law discriminates on its face between in-state and out-of-state economic actors, the state must show:

Back 154

the regulation serves a compelling state interest; and
the regulation is narrowly tailored to serve that interest.

Front 155

If a state law merely incidentally burdens interstate commerce, the state must show;

Back 155

the regulation serves an important state interest; and
the burden on interstate commerce isn't excessive in relation to the interest served.

Front 156

List the two exceptions to the Dormant Commerce Clause:

Back 156

Congress may affirmatively authorize states to legislate in areas that would violate the Dormant Commerce clause.
When states act as market participants, they may discriminate between in-state and out-of-state businesses.

Front 157

Note the level of scrutiny used when a government program prefers one religion, or one religious sect, over others:

Back 157

Strict scrutiny.

Front 158

As a general rule, religious activities conducted in public schools violate the Establishment Clause because:

Back 158

their primary purpose is to promote religion.

Front 159

There are two ex post facto clauses in the Constitution that prevent both the state and federal governments from passing retroactive criminal laws. In general, a statute retroactively alters the criminal law if it:

Back 159

makes criminal an act that was not a crime when committed;
prescribes greater punishment for a crime after its commission;
decreases the amount of evidence required for conviction; or
extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired.

Front 160

List the hierarchy of Laws

Back 160

U.S. Constitution
Treaties and Federal Statutes
Executive Orders and Agreements
State Constitution
State Law & Ordinances

Front 161

A person's religious beliefs are absolutely protected. The government may not punish an individual by:

Back 161

denying benefits or imposing burdens based on religious belief.

Front 162

Where an individual's conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if:

Back 162

the regulation is neutral in respect to religion and is of general applicability.

Front 163

The First Amendment provides:

Back 163

"Congress shall make no law ... Abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Front 164

Regarding Freedom of Expression, the government may neither:

Back 164

censor all categories of speech; nor
engage in content-based discrimination among different categories of speech (even if that speech is offensive), with some exceptions.

Front 165

The regulation of speech is allowable if:

Back 165

it passes strict scrutiny.

Front 166

Where the speaker is the government, not a private actor, the government may discriminate based on:

Back 166

the content of the speech.

Front 167

Where the speaker is the government, not a private actor, the government may discriminate based on:

Back 167

speech that advocates violence or unlawful action, fighting words, hostile audience speech; obscene speech; and defamatory speech.

Front 168

Not all speech advocating violence or unlawful action is unprotected, only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" [Brandenburg v. Ohio, 395 U.S. 444 (1969)]. Fighting words likely to incite an ordinary citizen to acts of immediate physical retaliation may be punished. To fall within this category:

Back 168

the speech must be more than annoying or offensive; and
there must be a genuine likelihood of imminent violence by a hostile audience.
For speech to be considered obscene, the three-part Miller test must be satisfied:
The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (a national standard is not used);
The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Child pornography is unprotected speech. It may be regulated even without satisfying the Miller test because of the state's compelling interest in protecting minor children.

Front 169

Commercial speech is protected by the First Amendment if it:

Back 169

is not false or deceptive; and
does not relate to unlawful activity.
If commercial speech satisfies these requirements, government regulation of the speech must:

serve a substantial governmental interest;
directly advance the substantial governmental interest; and
not be more extensive than is necessary to serve that interest.

Front 170

The government may place reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks--places historically associated with expressive conduct (e.g., picketing, leafleting, and broadcasting). The focus is not on the "content," or "message," of the speech, but rather its "conduct" or "method." The regulation must be:

Back 170

content neutral, as to both subject matter and viewpoint;
narrowly tailored to serve a significant (important) government interest; and
leave alternative channels of communication open.

Front 171

Speech-related activities at non public forums, such as military bases, jails, government workplaces, and mailboxes can be regulated by reasonable time, place, and manner regulations. The test used by the Court requires a government regulation must be:

Back 171

viewpoint neutral, and
reasonably related to a legitimate interest.

Front 172

In general, an individual cannot be denied public employment based upon membership in a political organization unless the position is a high-level policy-making position. EXCEPTION: An individual may be deprived of public employment for political association, if:

Back 172

he is an active member of a subversive organization; such membership is with knowledge of the illegal aims of the organization; and he has a specific intent to further those illegal ends.

Front 173

The federal government and its agencies are immune from suits by private individuals except where:

Back 173

they allow themselves to be sued.

Front 174

The federal government and its agencies are immune from state taxation and state regulation. States may, nevertheless, collect a nondiscriminatory tax on:

Back 174

persons who deal, or contract, with the federal government.

Front 175

As a general rule, the Supremacy Clause impliedly prevents the states from regulating the activities of agents or instrumentalities of the federal government if:

Back 175

the regulation will interfere with the government's ability to carry out its federal functions.

Front 176

The federal government or one of its agencies (or instrumentalities) may sue a state without its consent. In this case, the Supreme Court's jurisdiction is:

Back 176

original, but not exclusive, jurisdiction.

Front 177

As a general rule, the 11th Amendment prohibits:

Back 177

citizens of one state from suing another state in federal court. This rule has been extended to prohibit suits by a citizen of a state against his own state in federal court.

Front 178

The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of:

Back 178

Treason, Bribery or other high Crimes and Misdemeanors

Front 179

The sole power to impeach rests with:

Back 179

the House of Representatives.

Front 180

The Senate has the sole power to try impeachments. A two-thirds vote in the Senate is required for:

Back 180

conviction.

Front 181

Although Congress does not have any express constitutional power to investigate, the Necessary and Proper Clause permits Congress to:

Back 181

conduct investigations incident to its legislative power.

Front 182

The federal judiciary is the ultimate arbiter of cases whose disposition depends upon:

Back 182

construction of the Constitution,
an act of Congress, or
a federal treaty.

Front 183

The federal judiciary is the ultimate arbiter of cases whose disposition depends upon:

Back 183

construction of the Constitution,
an act of Congress, or
a federal treaty.

Front 184

The Supreme Court has original jurisdiction:

Back 184

"in all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party." Congress may neither enlarge nor restrict the Supreme Court's original jurisdiction.

Front 185

Describe the Supreme Court's appellate jurisdiction:

Back 185

Article III, section 2, further provides that "in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Front 186

The Supreme Court has the power to:

Back 186

hold acts of the other branches of the federal government unconstitutional; hold state statutes unconstitutional; review state court decisions, in order to ensure that the states act in conformity with the U.S. Constitution and federal statutes; and decide other state law questions in cases of diversity jurisdiction.

Front 187

Grounds for certiorari are the following four types of cases:

Back 187

cases involving conflicts between different federal courts of appeal;
cases involving conflicts between the highest courts of two states;
cases involving conflicts between the highest state court and a federal court of appeals; or
cases from state courts or U.S. courts of appeal involving important, yet unresolved, issues.

Front 188

Explain a Flat License Fee and note its constitutionality:

Back 188

A flat license fee is generally unconstitutional. This is a fee levied by the state upon "drummers," or solicitors who solicit local orders and then fill them out of state and ship them through interstate commerce.

Front 189

A license tax on a "peddler," or traveling salesperson, is valid when a state levies it upon a seller who:

Back 189

actually sells and delivers the product within the state.

Front 190

The President has the power to deploy military forces without a formal declaration of war in response to an attack upon the United States; and he has the power to seize private property during wartime unless Congress denies him that power; however, the President does not have the power to:

Back 190

declare war.

Front 191

If a controversy or matter has been resolved, then the case will be dismissed as:

Back 191

moot

Front 192

While each state has a general police power, there is no federal police power. The federal government must legislate through one of its enumerated powers, whereas the states may regulate:

Back 192

any health, safety, welfare, morals, or aesthetic interest through their respective police powers.

Front 193

The Constitution limits the state's police powers by:

Back 193

reserving certain enumerated powers exclusively for the federal government;
restricting both the federal and state governments from acting in violation of Constitutional provisions; and
providing, under the Supremacy Clause, that if Congress enacts legislation with the intention of preempting state law, the Congressional regulation will control.

Front 194

Federal courts cannot hear cases involving political questions. A political question is a matter assigned to another branch of government by the constitution or incapable of a judicial answer. The Supreme Court set forth the following six relevant factors to consider to determine if the political question doctrine applies:

Back 194

whether there is a textually demonstrable constitutional commitment of the issue to a coordinate political department;
a lack of judicially discoverable and manageable standards for resolving it;
the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion;
the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government;
an unusual need for unquestioning adherence to a political decision already made;
the potential for embarrassment from multifarious pronouncements by various departments on one question.

Front 195

List the five limitations on jurisdiction of the federal courts (justiciability - RAMPS):

Back 195

Ripeness
Advisory Opinions
Mootness
Political Questions
Standing

Front 196

Every act of Congress must be approved and signed by the President before it can become law, or, being disapproved, must be passed by:

Back 196

a two-thirds vote of each House.

Front 197

The Comity Clause, Article IV, Section 2 provides:

Back 197

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This clause prohibits states from discriminating against non-residents (based upon the fact that they do not reside in the state) with respect to rights and activities that are fundamental to the national union.

Front 198

State the Privileges and Immunities Clause:

Back 198

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Front 199

Among the privileges and immunities of national citizenship protected include the following six rights:

Back 199

to travel from state to state;
to petition Congress for redress of grievances;
to vote for national offices;
to enter public lands;
to be protected while in custody of U.S. Marshals; and
to assemble peaceably.

Front 200

Both the 5th and 14th Amendments protect against the deprivation of:

Back 200

"life, liberty or property without the due process of the law." Where there is a deprivation of one's "life," "liberty," or "property" interests, the individual is entitled to fundamentally fair procedural safeguards (e.g., some form of notice and a meaningful hearing within a reasonable time).

Front 201

Once it is determined that there is a sufficient deprivation of life, liberty or property, the next step is to:

Back 201

decide what process is required.

Front 202

In order to determine what procedural safeguards are necessary, the Supreme Court looks to the following three factors:

Back 202

The private interest that will be affected by the official action.
The risk of an erroneous deprivation of this interest through the procedures used, and the probable value of additional or substitute procedures;
The government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Front 203

In recent cases, the Supreme Court has held that irrebuttable presumptions violate:

Back 203

procedural due process.

Front 204

Discriminatory intent must be shown to trigger:

Back 204

strict or intermediate scrutiny. Discriminatory intent may be shown facially, as applied, where a discriminatory motive exists.

Front 205

The President must have cause (good reasons) to remove:

Back 205

executive officers having fixed terms and officers performing judicial or quasi-judicial functions.

Front 206

Define ripeness:

Back 206

Ripeness bars consideration of claims before they have fully developed. The court will consider fitness of the issues for judicial determination and hardship to the parties from withholding court consideration.

Front 207

The jurisdiction of the federal court is limited to the following seven cases or controversies:

Back 207

cases, in law and equity, arising under the Constitution, Laws of the United States and Treaties;
cases affecting ambassadors, public ministers and consuls;
cases of admiralty and maritime jurisdiction;
controversies to which the United States shall be a party;
controversies between two or more states;
cases between a state and citizens of another state; and
cases between citizens of different states ("diversity of citizenship" cases).

Front 208

The 11th Amendment prohibits the citizens of one state from:

Back 208

suing their own state or another state on federal claims for money damages, in federal court, without the state's consent.

Front 209

The Due Process and Equal Protection Clauses of the 14th Amendment protect:

Back 209

the rights of "persons," and not merely "citizens." A corporation is considered a "person" for purposes of due process and equal protection. Note, however, that a corporation is not entitled to the privilege against self-incrimination. Aliens are considered "persons" for purposes of due process and equal protection.

Front 210

Article I, section 8, clause 1, provides Congress with power to collect taxes to:

Back 210

“pay the Debts and provide for the common Defense and General Welfare of the United States."

Front 211

Define Strict Scrutiny and note the suspect classifications to which it applies:

Back 211

Under the strict scrutiny standard, the burden of persuasion is on the government to prove that the measure being challenged is necessary to further a compelling interest. Strict scrutiny review applies to government action that uses suspect classifications--race, alienage, and national origin.

Front 212

As a general rule, federal taxpayers do not have standing to challenge:

Back 212

allegedly unconstitutional federal expenditures.

Front 213

Under the traditional view, a litigant lacks standing to assert the rights of third parties not before the court. The Supreme Court has permitted a party to raise the constitutional rights of a third party, if the following two conditions are satisfied:

Back 213

A special relationship exists between the claimant and third party because of the connection between the interests of the claimant and the constitutional rights of the third person; and
the third party is unable to bring suit on his own behalf.

Front 214

An association has standing to assert the claims of its members, even if the association has not suffered any injury itself, if:

Back 214

the members would otherwise have standing to sue in their own right; the interest asserted is germane to the association's purpose, and neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit.

Front 215

The 14th and 15th Amendments prohibit governmental conduct, and not:

Back 215

private conduct, which infringes upon protected individual rights.

Front 216

"State Action" can be found in the actions of private actors under two theories:

Back 216

the public function theory, where a private entity is carrying on activities traditionally and exclusively performed by the government; or
the significant state involvement, endorsement, or encouragement theory, where the government and private entity are so closely related that the action by the private party fairly can be treated as action by the government.

Front 217

Strict scrutiny review, or other forms of heightened scrutiny, apply to laws that burden the exercise of fundamental rights, including:

Back 217

the right to vote,
the right to travel,
the right to privacy,
First Amendment rights,
family rights, and
other rights referred to as fundamental rights.

Front 218

Contraceptives -- The right to use contraceptives belongs to single as well as married persons. States may not prohibit:

Back 218

the sale of contraceptives to minors except through a licensed pharmacist.

Front 219

Marriage -- The right to marry is deemed fundamental. Any substantial interference with that right must be necessary to further:

Back 219

a compelling interest.

Front 220

Family Relations -- A fundamental right exists for related persons to:

Back 220

live together.

Front 221

Sexual Orientation -- A statute making it a crime for a person to engage "in deviate sexual intercourse with another individual of the same sex" furthered no:

Back 221

legitimate state interest.

Front 222

Private Education -- Parents have a right to:

Back 222

privately educate their children outside the public school system.

Front 223

Obscene Material -- The right to possess obscene materials in the privacy of one's home is protected. But the government can severely restrict:

Back 223

the sale, purchase, receipt, transport, and distribution of obscene materials, both in stores and through the mail. Furthermore, the state can criminalize the private possession of child pornography.

Front 224

Right to Die -- The right of a terminally ill or comatose person to choose to die is not presently a fundamental right. Nevertheless, a person has a well established due process "liberty" interest in:

Back 224

not being forced to undergo unwanted medical procedures, such as life-support.

Front 225

Right to Travel -- The Privileges and Immunities Clause of Article IV, section 2, and the Commerce Clause mutually enforce the right of every citizen to:

Back 225

travel freely from state to state. Durational residency requirements for dispensing government benefits are subject to strict scrutiny. The right to international travel is not absolute and may be subject to reasonable restrictions.

Front 226

Explain the Right to Vote and note the level of scrutiny which attaches:

Back 226

Right to Vote -- The fundamental right of U.S. citizens over age 18 to vote extends to all federal, state, and local elections, as well as to primaries. Strict scrutiny review is used to adjudicate restrictions on the right to vote. However, government regulations of ballot-access by candidates--based upon age, duration of residency, or payment of filing fees--require only minimum rational basis scrutiny. Whenever the government attempts to establish a new apportionment or redistricting scheme, fairly exact mathematical equality between districts is required, so as not to dilute the fundamental right to vote.

Front 227

Where Congress does not intend to occupy a field completely, and state laws are not otherwise preempted, the states may:

Back 227

enact similar legislation.

Front 228

Where Congress has legislated to establish minimum standards, the states are free to:

Back 228

enact more stringent standards.

Front 229

The 5th Amendment provides that private property shall not be taken for public use without just compensation. Property can be taken by:

Back 229

direct government appropriation,
regulatory taking,
temporary restrictions, and
conditional Permits.

Front 230

Article I, section 8, provides that Congress has the power to:

Back 230

lay and collect taxes, duties, imposts and excises;
pay the debts; and
provide for the common defense and general welfare.

Front 231

A congressional act purporting to be a "tax" should be upheld as a valid exercise of the taxing power, provided that:

Back 231

it does in fact raise revenue (objective test); or
it was intended to raise revenue (subjective test).

Front 232

The 16th Amendment gives Congress the power to collect taxes on incomes derived from any source. Generally, as long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes. Even when Congress does not have power to regulate the activity taxed, the tax will, nevertheless, be upheld if:

Back 232

its "dominant intent" is revenue-raising.

Front 233

The Contract Clause applies only to:

Back 233

state legislation, and not to state court decisions or the federal government.

Front 234

A private contract can be modified by the legislature under its police power when:

Back 234

the modification is necessary to serve an important and legitimate public interest, and
the regulation is a reasonable and narrowly tailored means of promoting that interest.

Front 235

List Congress's enumerated powers:

Back 235

Congress has enumerated powers to lay and collect taxes, to borrow money on the credit of the United States, to regulate commerce with foreign nations and among the several states, to declare war, to raise and support armies, and to provide and maintain a navy. The Necessary and Proper Clause gives Congress the implied power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof". The Enabling Clauses of the 13th, 14th, and 15th Amendments give Congress the power to enforce those amendments by "appropriate legislation."

Front 236

Once Congress has passed legislation and presented it to the President, the President has 10 days in which to act upon it. The proposed legislation will become law unless:

Back 236

he vetoes it within the 10-day period.

Front 237

Define Pocket Veto:

Back 237

The President can "pocket veto" a bill passed within 10 days of the end of the congressional term by not signing it.

Front 238

Under Congress's War and Defense Powers, Congress may:

Back 238

declare war and raise and support the army, navy, and militia.

Front 239

Military courts have jurisdiction over offenses committed by servicemen or servicewomen on a military post or in an area under military control. Jurisdiction is determined by:

Back 239

the status of the individual as an armed service member, not the connection between service and the offense.

Front 240

The 10th Amendment prohibits:

Back 240

the federal government from using an enumerated power to force a state legislature to pass a law or a state executive official to administer a federal program. This is known as the "anti-commandeering doctrine."

Front 241

Article I, section 10, specifically prohibits any state from engaging in eight activities:

Back 241

making treaties with other nations;
coining money;
passing a bill of attainder;
enacting an ex post facto law;
impairing the obligation of contracts;
laying any duty on imports or exports, except where necessary for executing its inspection laws;
engaging in war; or
maintaining a peacetime army.

Front 242

The 13th Amendment prohibits:

Back 242

slavery and involuntary servitude. The amendment has been interpreted to provide Congress with power to pass legislation prohibiting badges and incidents of slavery, and thus can be used to proscribe purely private acts of forced labor without the requirement of state action.

Front 243

Although the Supreme Court rejected the argument that the Due Process Clause incorporated all of the Bill of Rights, under the doctrine of selective incorporation, the following five specific provisions are now applicable to the states:

Back 243

1) The First Amendment freedom of speech and freedom of press, the right to assemble and petition the government for a redress of grievances, the right to free exercise of religion, and the prohibition against the establishment of religion; 2) The Fourth Amendment provisions guaranteeing the right to be free from unreasonable searches and seizures; 3) The Fifth Amendment protection against double jeopardy, privilege against self-incrimination, and requirement of just compensation when private property is taken for public use; 4) The Sixth Amendment rights guaranteeing the accused in criminal prosecutions a speedy and public trial, the right to confront and cross-examine witnesses, the right to counsel, and the right to a jury trial in criminal cases; 5) The Eighth Amendment prohibition against cruel and unusual punishments; and 6) The Second Amendment right to keep and bear arms.

Front 244

Where state criminal proceedings are pending, the federal court will abstain in a suit seeking an injunction against the state prosecution, absent a showing of bad faith harassment on the part of the state prosecutors. This principle has been extended to two types of cases:

Back 244

where state civil proceedings had commenced; and
where civil contempt hearings had begun.

Front 245

Affirmative action measures based on race must pass strict scrutiny. The only two justifications for affirmative action that have been upheld are:

Back 245

Remedying the effects of past or present discrimination in a particular institution; and
Achieving a diverse student body in an institute of higher education.

Front 246

Article II, Sect. 2 gives the President the power, "with the Advice and Consent of the Senate," to nominate and appoint:

Back 246

all "Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for".

Front 247

The President has the exclusive power to nominate high-level officials such as cabinet members. The Senate has the power to:

Back 247

confirm or reject those nominees.

Front 248

Congress can delegate the appointment of "inferior" officers to:

Back 248

the President; the judiciary; or heads of departments.

Front 249

Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has no power to:

Back 249

impound the authorization of such funds.

Front 250

Article III, section 2, limits the jurisdiction of federal courts to "cases" and "controversies." A case or controversy is a:

Back 250

real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree of a conclusive character.

Front 251

The prohibition against advisory opinions does not preclude federal courts from granting declaratory judgments. A declaratory judgment is:

Back 251

a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief.

Front 252

Doing business taxes (variously referred to as “privilege,“ “occupation,“ “franchise,“ “license,“ “gross receipts“ or “net income“ taxes), as a general rule, must:

Back 252

“relate to the benefits“ conferred by the taxing state upon the interstate business.

Front 253

No Religious Preference: Where the legislation or government program contains no religious or sect preference, the Supreme Court will follow the three-part Lemon test:

Back 253

Constitutional Law(18255)

Confidence Level:
Skip Low Med High
The 10th Amendment prohibits:

Previous Next
Constitutional Law(18256)

Confidence Level:
Skip Low Med High
Article I, section 10, specifically prohibits any state from engaging in eight activities:

Previous Next
Constitutional Law(18270)

Confidence Level:
Skip Low Med High
The 13th Amendment prohibits:

Previous Next
Constitutional Law(18275)

Confidence Level:
Skip Low Med High
Although the Supreme Court rejected the argument that the Due Process Clause incorporated all of the Bill of Rights, under the doctrine of selective incorporation, the following five specific provisions are now applicable to the states:
Previous Next
Constitutional Law(18186)

Confidence Level:
Skip Low Med High
Where state criminal proceedings are pending, the federal court will abstain in a suit seeking an injunction against the state prosecution, absent a showing of bad faith harassment on the part of the state prosecutors. This principle has been extended to two types of cases:

Previous Next
Constitutional Law(18300)

Confidence Level:
Skip Low Med High
Affirmative action measures based on race must pass strict scrutiny. The only two justifications for affirmative action that have been upheld are:

Previous Next
Constitutional Law(18221)

Confidence Level:
Skip Low Med High
Article II, Sect. 2 gives the President the power, "with the Advice and Consent of the Senate," to nominate and appoint:

Previous Next
Constitutional Law(18222)
Separation of Powers
Confidence Level:
Skip Low Med High
confirm or reject those nominees.

Previous Next
Constitutional Law(18223)

Confidence Level:
Skip Low Med High
Congress can delegate the appointment of "inferior" officers to:

Previous Next
Constitutional Law(18241)

Confidence Level:
Skip Low Med High
Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has no power to:

Previous Next
Constitutional Law(18180)

Confidence Level:
Skip Low Med High
Article III, section 2, limits the jurisdiction of federal courts to "cases" and "controversies." A case or controversy is a:

Previous Next
Constitutional Law(18181)

Confidence Level:
Skip Low Med High
The prohibition against advisory opinions does not preclude federal courts from granting declaratory judgments. A declaratory judgment is:

Previous Next
Constitutional Law(18264)

Confidence Level:
Skip Low Med High
Doing business taxes (variously referred to as “privilege,“ “occupation,“ “franchise,“ “license,“ “gross receipts“ or “net income“ taxes), as a general rule, must:

Previous Next
Constitutional Law(18312)
Individual Rights
Confidence Level:
Skip Low Med High

the statute must have a secular legislative purpose;
the principal or primary effect or purpose must neither advance nor inhibit religion; and
the statute must not foster an excessive government entanglement with religion.

Front 254

Describe the President's power to enter into Executive Agreements and note whether these agreements prevail over federal or inconsistent state law:

Back 254

The President has the power to enter into executive agreements and compacts with foreign nations. Such agreements are valid and prevail over inconsistent state law.
Executive agreements are the sole responsibility of the President, and need not be ratified by Congress.
Executive agreements do not prevail over federal statutes.

Front 255

"The executive Power shall be vested in a President of the United States." This provision confers broad authority in the President to:

Back 255

execute the laws of the United States.

Front 256

The President has an absolute privilege to refuse to disclose:

Back 256

information relating to military, diplomatic or sensitive national security secrets. Other confidential communications between the President and his advisors are presumptively privileged.

Front 257

Where the government purposely interferes with particular conduct because it is dictated by religious beliefs, strict scrutiny analysis will be applied and the law will be held unconstitutional unless:

Back 257

it can be justified through proof of a compelling state interest served by narrowly tailored means.

Front 258

The First Amendment was held applicable to the states through:

Back 258

the Due Process Clause of the 14th Amendment.

Front 259

A law which regulates conduct, creating an incidental burden on speech, is allowable if:

Back 259

the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression; and
the incidental restriction on speech is no greater than is essential to the furtherance of that interest.

Front 260

Explain the constitutional restrictions on the regulation of defamatory speech and the level of proof required for:

A Public Official or Public Figure
A Private Person

Back 260

Constitutional restrictions apply to the regulation of defamatory speech where the plaintiff is either a public official or public figure, or where the defamatory statement involves a matter of public concern. When the plaintiff is a private person and the subject of the statement is a matter of public concern, the plaintiff need not prove actual malice but must prove negligence about the truth or falsity of the statement. When the plaintiff is a public official or public figure, the plaintiff must prove the state law requirements of defamation, plus "actual malice," defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement. This rule holds whether the allegedly defamatory statement is a matter of public or private concern.

Front 261

As a general rule, the government cannot suppress or restrain speech in advance of:

Back 261

its publication or utterance.

Front 262

ongress has the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Thus, federal lands are subject to the authority of the federal government, except:

Back 262

to the extent that Congress has ceded jurisdiction to the state.

Front 263

A state may be sued by a sister state without its consent. In this case, the Supreme Court's jurisdiction is:

Back 263

original and exclusive jurisdiction.

Front 264

A state now enjoys immunity from federal taxation if the tax is applied to either:

Back 264

unique state activities; or
essential governmental functions.

Front 265

In 1868, the 14th Amendment was adopted, which provided:

Back 265

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Front 266

Describe the Supreme Court's approach to interpreting state law:

Back 266

The Supreme Court will defer to an existing state court interpretation of state law; will interpret a state law which has not already been interpreted by the state court based on the Supreme Court's prediction of how the state court will interpret the statute; and will abstain from a decision if the state court's interpretation of unsettled state law could end the dispute and the Supreme Court can't predict how the state court will rule.

Front 267

Since the two categories of decisions that were subject to obligatory review on appeal have been eliminated, practically all decisions from state supreme courts and federal courts are now reviewable by:

Back 267

a writ of certiorari, except decisions purely made on state law.

Front 268

The case will not be dismissed for mootness if the injury is:

Back 268

"capable of repetition, yet evading review."

Front 269

The 10th Amendment provides that:

Back 269

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people."

Front 270

Net income taxes may be applied by the state upon a company engaging in interstate commerce, or a non-resident engaged in business in the taxing state. A net income tax is valid only as long as the tax:

Back 270

is fairly apportioned,
has a significant nexus, and
is non-discriminatory.

Front 271

The President may "grant reprieves and pardons for offenses against the United States, except:

Back 271

“in cases of impeachment“ (applies to federal crimes only).

Front 272

Although the Constitution does not expressly give Congress the power of eminent domain, the power to take property is "implied in aid of the other powers granted to the federal government." This power is limited, however. The Fifth Amendment provides, in part, that:

Back 272

"... nor shall private property be taken for public use, without just compensation."

Front 273

Although the Constitution is silent with respect to removal power, it is generally agreed that the President may remove:

Back 273

any executive appointee without cause.

Front 274

Note the validity of a sales tax if the sale of goods is consummated within the state versus outside of the state:

Back 274

If a sale of goods is consummated within the state (even though the buyer takes the goods outside the state), a sales tax is valid. If, however, the sale is made to a buyer outside the state (i.e., if the seller delivers the goods to an out-of-state buyer), then the sales tax is invalid.

Front 275

The 11th Amendment applies not only to diversity suits but also to

Back 275

federal question cases.

Front 276

Pursuant to its enforcement powers under the post-Civil War amendments (13th, 14th, and 15th), Congress can authorize private suits by individuals to compensate for:

Back 276

state violations of those amendments.

Front 277

List the three exceptions to the application of the 11th Amendment:

Back 277

Suits against state officials for abusing their power in enforcing an unconstitutional state statute [Ex parte Young, 209 U.S. 123 (1908)].
Federal suits brought by one state against another state, or suits brought by the federal government against a state.
Most suits for injunctions--e.g., a private citizen may sue to enjoin a state official from acting in violation of the plaintiff's federal constitutional rights.

Front 278

A state may consent to suit in federal court if it:

Back 278

clearly waives its 11th Amendment immunity and does so expressly and unequivocally.

Front 279

The "judicial power of the United States shall be vested in:

Back 279

one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish."

Front 280

The Speech and Debate Clause protects legislators, and their aides, against criminal or civil proceedings for "legislative acts." Members of Congress can be liable based on defamation for issuing press releases or newsletters that injure reputation. The clause insulates members of Congress only for:

Back 280

"acts that occur in the regular course of the legislative process."

Front 281

The Supreme Court has construed the General Welfare Clause as a limitation on:

Back 281

Congress's taxing and spending powers and not as an independent source of congressional power. In other words, Congress's power to tax and spend must be exercised for the "general welfare" of the United States [United States v. Butler, 297 U.S. 1 (1936)].

Front 282

The Supreme Court held that Congress may place a condition on receipt of federal funds by a state if:

Back 282

the spending serves the general welfare;
the condition is unambiguous;
the condition relates to the federal program;
the state is not required to undertake unconstitutional action; and
the amount in question is not so great as to be considered coercive to the state's acceptance.

Front 283

Define Intermediate Scrutiny and note the quasi suspect classifications to which it applies:

Back 283

Under the intermediate scrutiny standard, the burden of persuasion is placed on the government to prove that the measure being challenged is substantially related to achievement of an important governmental interest. Middle-tier scrutiny is much closer to strict scrutiny than it is to rational basis. Intermediate scrutiny applies to government actions using quasi suspect classifications--gender and illegitimacy.

Front 284

Define Rational Basis Review and note the classifications to which it applies:

Back 284

Under the rational basis standard of review, the burden of persuasion is on the plaintiff to show the measure being challenged serves no legitimate government interest, or is not rationally related to any legitimate interest. Rational basis review applies to all classifications not falling under strict or intermediate scrutiny, such as classifications based on age, poverty, wealth, disability, and need for necessities of life (food, shelter, clothing, medical care).

Front 285

List and define the Three Standards of Scrutiny.

Back 285

Rational Basis-- Plaintiff must prove that there is no legitimate governmental interest.
Intermediate Scrutiny-- Government must prove its classification is substantially related to an important government interest.
Strict Scrutiny-- Government must prove its classification is necessary to achieve a compelling government interest.

Front 286

List the Equal Protection Challenges that apply to each of the following levels of scrutiny:

Rational Basis:
Intermediate Scrutiny:
Strict Scrutiny:

Back 286

Rational Basis--

Age
Alienage (some)
Disability
Sex orientation
Wealth
All else
Intermediate Scrutiny--

Gender
Illegitimacy
Undocumented alien children
Strict Scrutiny--

Alienage
Domestic travel
National origin
Race
Voting

Front 287

Article III requires a person litigating a constitutional question to show:

Back 287

a direct and personal injury, actual or imminent, caused by the violation of a duty affecting the plaintiff's rights arising under the constitution or federal law. The plaintiff must also show that he will benefit from the remedy sought in the litigation.

Front 288

As a general rule, state taxation of interstate commerce is permissible as long as the tax does not discriminate against or unduly burden interstate commerce. In determining the validity of a state tax affecting interstate commerce, the court will generally consider the following four factors:

Back 288

There must be a substantial nexus between the activity taxed and the taxing state.
The tax must be fairly apportioned.
The tax must not discriminate against interstate commerce. A tax favoring local commerce over interstate commerce will be invalidated under the Commerce Clause unless this is authorized by Congress.

Front 289

Explain a woman's protected privacy interest in choosing to have an abortion before viability and the state's ability to regulate after viability:

Back 289

Abortion -- A woman has a protected privacy interest in choosing to have an abortion before viability. For the period of time after viability, a state may "regulate, and even proscribe, abortion except where it is necessary...for the preservation of the life or health of the mother." Neither spousal notification nor spousal consent may be required before a woman may obtain an abortion. However, parental consent may be required before an unemancipated woman under the age of 18 obtains an abortion, if the state establishes a "judicial bypass" procedure through which a minor may obtain an abortion with the consent of a judge. There is no constitutional right for indigent women to obtain government funding for abortions. Furthermore, a state may prohibit the use of public facilities and publicly employed staff in performing abortions. The Supreme Court has upheld a federal ban on "partial-birth" abortions. The Court rejected a facial challenge to a prohibition against use of this particular type of abortion procedure, but left open the possibility of challenges to the act as applied to specific individuals.

Front 290

In general, a federal law will supersede any state law with which it is:

Back 290

in direct conflict.

Front 291

State the Contract Clause:

Back 291

"No state shall ... pass any ... Law impairing the Obligation of Contracts" [Article I, Section 10].

Front 292

The President has the power to make treaties with foreign nations:

Back 292

"by and with the Advice and Consent of the Senate"

Front 293

In accordance with the Supremacy Clause, Article VI, clause 2, treaties are:

Back 293

"the supreme Law of the land; and the Judges of every State shall be bound thereby, anything in the Constitution of Laws of any State to the contrary notwithstanding."

Front 294

When a treaty and federal statute conflict on the issue in question:

Back 294

time determines the controlling authority with the last in time prevailing.

Front 295

The ability of a state to collect a use tax usually depends upon:

Back 295

whether the interstate seller, who receives goods from outside the state, has a sufficient nexus within the taxing state. Where the seller maintains offices within the taxing state (or even sends salespeople into the state as employees or independent contractors), there is a sufficient nexus even though the use tax was imposed on interstate mail-order sales.

Front 296

Congress has the power to override a veto by a two-thirds vote of:

Back 296

both the Senate and House of Representatives [Article I, section 7].

Front 297

Congress has the power to establish military courts and tribunals. Since military courts are not Article III courts, the accused in court-martial proceedings is not entitled to the same procedural safeguards set forth in the Bill of Rights (e.g., right to jury trial, grand jury indictment). Rather, an accused is safeguarded by:

Back 297

the procedures provided in the Uniform Code of Military Justice.