Constitutional Law - Selected Mbe And Pa

Front 1

A plaintiff does not have standing as a citizen or tax payer (generalized grievance) to sue the government EXCEPT:

Back 1

taxpayers have standing to challenge government expenditures as pursuant to federal statutes as violating the establishment clause (religion).

Front 2

Political question doctrine - courts will not adjudicate constitutional violations if they involve political questions - examples:

Back 2

1. 'republican form of government clause'
2. challenges to president's conduct of foreign policy
3. challenges to impeachment and removal process
4. challenges to partisan gerrymandering

Front 3

SCOTUS must take appeals from:

Back 3

three judge federal district court panels - provided for by statute, appeals go directly to SCOTUS.

Front 4

SCOTUS can only hear appeals after there has been a _________ _________ from the highest state ct, US ct appeals, or 3 judge panel - no ________ review.

Back 4

final judgment

interlocutory

Front 5

Federal courts may not hear suits against state governments, based on 11th Am and sovereign immunity, except:

Back 5

-waiver by states, must be explicit
-federal laws adopted under 14th Am, section 5 (ex, Title VII)
-the federal govt may sue state govts
-bankruptcy proceedings
*suits against state officers are allowed - for injunctive relief and money damages out of their own pockets - but not if state treasury will be paying retroactive damages

Front 6

The necessary and proper clause of the constitution gives Congress the power...

Back 6

to choose any means not prohibited by the constitution to carry out its powers.

Front 7

If a question involves Congress acting for the general welfare, it is acting under which power?

Back 7

Its taxing and spending power - congress may tax and spend for the general welfare.

Front 8

Under the Commerce Power, Congress may:

Back 8

-regulate the channels of interstate commerce
-regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
-regulate economic activities that have a substantial effect on interstate commerce (in area of non-econ activity, substantial effect cannot be based on cumulative impact)

Front 9

The Tenth Amendment limits congressional powers by:

Back 9

providing that all powers not granted to US, nor prohibited to the states, are reserved to the states, so that:
1. congress c/n compel state regulatory or statutory action (but can induce by putting strings on grants so long as conditions express and relate to purpose of spending program)
2. congress can prohibit harmful commercial activity by state governments

Front 10

Congress's power under section 5 of the 14th Amendment:

Back 10

congress can act to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent (narrowly tailored) to remedying constitutional violations - cannot create new or expand scope of rights

Front 11

Which prevails if treaty conflicts with:
-state laws
-federal statute
-US constitution

Back 11

-state laws that conflict with treaties are invalidated
-when treaties conflict with federal statute, the one adopted last in time prevails
-if treaty conflicts with US constitution, treaty is invalid

Front 12

Executive agreements - definition, purpose and effect:

Back 12

-an agreement between the US and foreign country that is effective when signed by president and head of foreign nation - doesn't have to be approved by senate

-can be used for any purpose

-prevail over conflicting state laws, but never of conflicting fed law or constitution

Front 13

In whom may Congress invest the appointment of inferior officers, and in whom may it not invest appointment power?

Back 13

In President, heads of departments, or the courts; NOT in itself or its officers

Front 14

The president has absolute immunity to...

Back 14

civil suits for money damages for any actions while in office.

Front 15

The president has executive privilege for...

Back 15

presidential papers and conversations, but such privilege must yield to other important government interests.

Front 16

Implied preemption applies to federal statutes, over state, in three circumstances:

Back 16

1. if federal and state laws are mutually exclusive
2. if state law impedes the achievement of a federal objective
3. if congress evidences a clear intent to preempt state law

Front 17

The dormant commerce clause (or negative implications of the commerce clause) provides:

Back 17

principle that state laws are unconstitutional if they place an undue burden on interstate commerce - not explicit, but inferred by SCOTUS from granting of commerce power to congress

Front 18

The privileges and immunities clause of Article IV provides:

Back 18

no state may deprive citizens of other states of the privileges and immunities it accords its own citizens - only protects fundamental rights (those involving commercial activities and civil liberties); law may be valid if state has a substantial justification for the different treatment (show nonresidents cause or are part of problem the state is attempting to solve and that there are no less restrictive means to solve the problem)

Front 19

The privileges and immunities clause of the 14th Am generally only applies...

Back 19

to the right to travel - otherwise has been largely read out of the constitution, usually the wrong answer.

Front 20

If a law burdens interstate commerce, it violates...

Back 20

the dormant commerce clause, unless it is necessary to achieve an important government purpose - state must show there is no other way to achieve an important government purpose - protecting in-staters vs out-of-staters is almost never ok

Front 21

Two exceptions to the prohibition of the dormant commerce clause against state burdens on interstate commerce:

Back 21

1. where congress has approved the burden
2. market participant exception - a state or local govt may prefer its own citizens in receiving benefits from govt programs or in dealing with govt-owned businesses

Front 22

The privileges and immunities clause does not apply to:

Back 22

corporations or aliens.

Front 23

Three rules regarding state taxation of interstate commerce:

Back 23

1. states may not use tax systems to help in-state businesses
2. state may only tax activities if there is a substantial nexus to the state
3. state taxation of interstate business must be fairly apportioned

Front 24

Three requirements for the full faith and credit clause to apply to a judgment:

Back 24

1. court that rendered the judgment had jurisdiction over the parties and subject matter
2. judgment was on the merits
3. judgment is final

Front 25

Two situations where private conduct must comply with the constitution (exception to requirement of state action):

Back 25

1. public function exception - if private entity performing a task traditionally, exclusively done by govt
2. entanglement exception - if govt affirmatively authorizes, encourages or facilitates unconstitutional activity

Front 26

Seven examples of the entanglement exception, whereby the constitution is applied to private actors because the govt is 'entangled' in the activity:

Back 26

1. cts cannot enforce racially restrictive covenants 2. state action when govt leases premises to restaurant that racially discriminates 3. state action when state provides books to school that racially discriminates 4. NO state action when private school that is over 99% funded by govt fires teacher b/c of her speech 5. NO state action when NCAA orders suspension of basketball coach of state university 6. IS state action when private entity regulates interscholastic sports in a state 7. NO state action when private club w/liquor license racially discriminates

Front 27

Those amendments in Bill of Rights that have not been incorporated through 14th Am to the states:

Back 27

-2nd (circuit split after Heller)
-3rd Am right to not have soldiers quartered in person's home
-5th Am right to grand jury indictment in criminal cases
-7th Am right to jury trial in civil cases
-8th Am right against excessive fines

Front 28

The rational basis test:

Back 28

if law is rationally related to legitimate government purpose, it will be upheld - burden of proof on P/challenger

-actual purpose doesn't have to be legit, so long as A rationally related conceivable purpose is legit

Front 29

The intermediate scrutiny test:

Back 29

law upheld if substantially related to an important government principle; burden of proof on the govt

-ct will only look at actual purpose; cts have said means must be narrowly tailored; NO least restrictive alternative requirement

Front 30

The strict scrutiny test:

Back 30

law will be upheld if necessary to achieve a compelling government purpose - burden on govt

-means chosen must be only method available - least restrictive alternative applies; ct will only look at actual purpose

Front 31

State the standard for procedural due process and the test for whether government procedures are sufficient:

Back 31

Standard: deprivation of life, liberty (loss of significant freedom provided by constitution or statute - harm to reputation itself not deprivation of liberty) or property (unfulfilled entitlement) **need intentional or reckless govt action **in emergency, govt conduct must shock the conscience **failure to protect ppl from privately inflicted harms d/n violate DPC **Test for procedures: Balance... 1. the importance of the interest to the individual 2. the ability of additional procedures to increase accuracy of the fact-finding 3. the govt's interests (ex, efficiency, fiscal)

Front 32

Specific examples of where DPC does or does not require specific processes:

Back 32

1. before welfare benefits terminated, need notice and hearing 2. when SSDI benefits terminated, need only post-termination hearing 3. when student disciplined by public school, need only notice of charges and opportunity to explain 4. before parental rights terminated, need notice and hearing 5. punitive damages need instructions to jury and judicial review to ensure reasonableness 6. an american citizen detained as enemy combatant entitled to due process 7. except in exigent circumstances, prejudgment attachment or govt seizure of assets must be preceeded by notice and hearing

Front 33

Laws affecting economic activities are entitled to which level of scrutiny:

Back 33

rational basis

Front 34

Define possessory taking:

Back 34

govt confiscation or physical occupation of property

Front 35

Define regulatory taking and its nuances:

Back 35

govt regulation is a taking if it leaves no reasonable economically viable use of property *merely reduces property value insufficient *conditions on development must be justified by benefit roughly proportionate to the burden imposed *property owner may challenge regs that existed at time property acquired *temporarily denying owner use of property is NOT a taking so long as action reasonable

Front 36

Standard/requirements for takings:

Back 36

must be:
1. for public use - is for public use so long as govt acts on reasonable belief that the taking will benefit the public (Kyllo)
2. provide compensation - measured in terms of loss to owner - gain to recipient is irrelevant

Front 37

The contracts clause provides...

Back 37

no state shall impair the obligations of contracts; applies only to state or local interference w/existing Ks, never applies to feds (DPC only, rational basis).

Front 38

State or local interference with private contracts must meet a form of intermediate scrutiny under the contracts clause, defined as:

Back 38

does legislation substantially impair a party's rights under an existing contract, and if so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest

Front 39

State or local interference w/ (their own) government Ks must meet what level of scrutiny?

Back 39

Strict scrutiny - may abrogate own Ks only under strict scrutiny

Front 40

The ex post facto clause does not apply to civil liability - retroactive civil liability need only meet what level of scrutiny?

Back 40

rational basis

Front 41

The right to privacy, protected under substantive due process, protects what specific rights, and is subject to what level of scrutiny?

Back 41

(*strict) *right to marry *right to procreate *right to custody of one's children *right to keep the family together (includes extended) *right to control the upbringing of one's children *right to an abortion (NO strict scrutiny - can regulate so long as do not create undue burden; after viability may prohibit, unless necessary to protect woman's life or health) *right to purchase and use contraceptives *right to engage in private consensual homosexual activity (no scrutiny level set) *right to refuse medical treatment

Front 42

Infringement of the right to travel under the 14th Am must meet what level of scrutiny? Durational residency requirements and restrictions on foreign travel in particular must meet what scrutiny?

Back 42

strict scrutiny
residency - strict
foreign travel - rational basis

Front 43

Laws affecting the right to vote are subject to scrutiny, but regulations of the electoral process to prevent fraud need only be...

Back 43

on balance desirable.

Front 44

At-large elections are constitutional unless...

Back 44

there is proof of a discriminatory purpose.

Front 45

The right to education is...

Back 45

NOT a fundamental right.

Front 46

Equal protection is applied to the federal government through...

Back 46

the 5th Am due process clause - "liberty" includes equal protection.

Front 47

Alienage classifications are subject to what standard of scrutiny under equal protection?

Back 47

-strict scrutiny, except:
-only rational basis for alienage classifications that concern self-govt and democratic process
-only rational basis applies to congressioan discrimination against aliens
-intermediate scrutiny is used for discrimination against undocumented alien children

Front 48

discrimination against non-marital children is subject to what standard under equal protection?

Back 48

intermediate scrutiny - laws that deny a benefit to all non- marital children but grant to all marital children are unconstitutional - if law denies benefit to some non-marital kids, intermediate scrutiny

Front 49

Content-based restrictions on speech generally must meet what level of scrutiny? And the two types of content based laws:

Back 49

strict scrutiny

1. subject matter restrictions - application of law depends on topic of message
2. viewpoint restrictions - application of law depends on ideology of message

Front 50

Content-neutral restrictions on speech must meet what level of scrutiny?

Back 50

intermediate

Front 51

Prior restraints on free speech must meet what level of scrutiny?

How are such restraints imposed?

Back 51

Strict.

Through judicial order or administrative system - procedurally proper orders must be complied with til vacated or overturned; person who violates is barred from later challenging it

Front 52

The government can require a license for speech only if...

Back 52

there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.

Front 53

Laws regulating speech are unconstitutional if they are vague or overbroad, defined as:

*any statute limiting speech must be clear

Back 53

vague: if a reasonable person cannot tell what speech is prohibited and what is allowed
overbroad: if it regulates substantially more speech than the constitution allows to be regulated

*fighting word laws are unconstitutionally vague and broad (but fighting words are not protected speech)

Front 54

The government CAN regulate conduct that communicates if:

Back 54

1. it has an important interest unrelated to suppression of the message AND
2. the impact on communication is no greater than necessary to achieve the government's purpose

Front 55

Five examples of symbolic speech and whether they are protected speech:

Back 55

1. flag burning is constitutionally protected speech 2. draft-card burning is NOT 3. nude dancing is NOT 4. cross-burning is protected unless done w/intent to threaten or intimidate 5. contribution limits to election is protected; expenditure limit is unconstitutional

Front 56

What speech is unprotected or less protected under the 1st Am:

Back 56

1. incitement of illegal activity (may punish if substantial likelihood of imminent illegal activity and if directed to causing imminent illegality)
2. obscenity and sexually-oriented speech
3. commercial speech
4. defamation

Front 57

The test for obscenity:

Back 57

Test: 1. the material must appeal to the prurient interest (local, community standard); 2. the material must be patently offensive under the law prohibiting obscenity (local or state law standard); 3. taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (national standard)

Front 58

Five rules regarding obscenity:

Back 58

-govt may use zoning ordinances to regulate the location of adult bookstores and movie theaters *child pornography may be completely banned, even if not obscene *govt may not punish private possession of obscene materials, but may punish private possession of child porn *govt may seize assets of businesses convicted of violating obscenity laws *profane and indecent speech is generally protected by 1st Am *exceptions, over broad cast media and in schools

Front 59

Constitutional requirements regarding defamation:

Back 59

-if P is public official, running for public office, or public figure, P can recover for defamation by proving falsity of the statement and actual malice
-if P is private figure, and matter of public concern, P can recover for defamation by proving falsity and negligence by the D; can recover presumed or punitive damages only by showing actual malice
-if P is private figure, matter not of public concern, P can recover presumed or punitive damages w/o showing actual malice

Front 60

Regulation of speech in public forums (govt properties govt constitutionally required to make available for speech) must be:

Back 60

-subject matter and view point neutral (so that intermediate scrutiny applies), or strict scrutiny must be met
-regs must be a time, place or manner regs that serve an important govt purpose and leaves open adequate alternative places for communication
-restrictions need not use least restrictive alternatives
-city officials c/n have discretion to set permit fees for public demonstrations

Front 61

Regulation of speech in limited public forums must be:

Back 61

subject matter and view point neutral (so that intermediate scrutiny applies) or strict scrutiny must be met

Front 62

The govt can regulate speech in non-public forums (properties where govt can and does close speech) so long as:

Back 62

the regulation is reasonable and viewpoint neutral

Front 63

Five examples of non-public forums where govt can reasonably regulate speech:

Back 63

1. military bases 2. areas outside prisons and jails 3. ad space on city buses 4. sidewalks on post office property 5. airports - govt may prohibit solicitation of money, but cannot prohibit distribution of literature

Front 64

Laws that limit freedom of association by prohibiting or punishing group membership must meet...

Back 64

strict scrutiny - to punish membership in a group it must be proven that the person: a) actively affiliated w/the group; b) knowing of its illegal activities and c) w/specific intent of furthering those illegal activities

Front 65

Laws that limit freedom of association by requiring disclosure of group membership, where such disclosure would chill association, must:

Back 65

meet strict scrutiny.

Front 66

Laws that prohibit a group from discriminating are constitutional unless:

Back 66

they interfere with intimate association or expressive activity - if discrimination is central to expressive message of group

Front 67

The free exercise of religion clause cannot be used to challenge what kinds of laws?

Back 67

neutral laws of general applicability

Front 68

For a law to be valid under the establishment clause (1st Am), it must pass the Lemon test:

Back 68

1. there must be a secular purpose of the law
2. the effect must be neither to advance nor inhibit religion
3. there must not be excessive entanglement with religion

Front 69

Rules regarding religion in public schools, and re: assistance to parochial schools:

Back 69

1. govt sponsored religious activity in public schools unconstitutional 2. religious student and community groups must have same access to school facilities as non-religious groups 3. govt may give assistance to parochial schools so long as not used for religious instruction 4. govt may provide parent vouchers which can be used in parochial schools

Front 70

Under the Edmunds decision, the PA SC requires that lawyers raise, brief and argue what four factors in any case implicating a PA constitutional issue:

Back 70

1. text of the applicable state constitutional provision
2. history of the provision, including relevant case law
3. related case law from other states and
4. the policy considerations, including unique issues of state and local concern

Front 71

The standard in PA for accessing bank records, statements and materials submitted to insurance co, and nonfinancial personal info held by bank:

Back 71

-bank - probable cause
-no PC needed for insurance co and nonfinancial bank info- no expectation of privacy in this information

Front 72

Who has standing to challenge a search in PA related to possessory offenses:

Back 72

anyone charged with a possessory offense in PA has automatic standing to challenge illegal search

Front 73

The standard for use of a pen register in PA:

Back 73

need a warrant

Front 74

Describe where PA police may and may not obtain results from a blood alcohol test without a warrant:

Back 74

1. police may obtain results when the tests are procured pursuant to the statute - when police officer or medical personnel suspect person was driving under the influence
2. police may NOT obtain without a warrant the results of a blood test taken strictly for medical purposes rather than pursuant to the statute

Front 75

The standards for canine sniffs in PA, and whether they are searches:

Back 75

canine sniff is a search

sniff of a person needs PC; sniff of a place (ex, storage locker) needs only reasonable suspicion

Front 76

If a police officer relies on an invalid search warrant in good faith in PA...

Back 76

the exclusionary rule still applies - PA does not allow the good faith search warrant exception

Front 77

The automobile exception to the warrant requirement in PA:

Back 77

police may not conduct a warrantless search of an automobile, absent exigent circumstances, after its occupants are arrested, outside the auto, and in police custody - search not allowed unless reasonable belief D can re-access car OR think there may be loaded weapon in a running vehicle (constitutes exigent circumstances even if no occupants)

Front 78

In PA, investigative stops may be made based on...

Back 78

reasonable suspicion of criminal activity.

Front 79

In PA, if a police officer possesses neither probable cause to arrest nor reasonable suspicion to stop an individual and conduct a Terry frisk, contraband discarded by fleeing suspect is...

Back 79

fruits of an illegal seizure (PA rejects Hodari)

Front 80

PA rules governing stop of a bus to conduct drug interdiction investigation:

Back 80

-police cannot randomly stop a passenger bus to conduct investigation absent probable cause or reasonable suspicion
-BUT, at a scheduled stop, police can board with the driver's permission and ask questions of passengers

Front 81

PA rule regarding use of police radio broadcasts to justify stop and frisk:

Back 81

information from broadcast cannot be used to justify stop and frisk unless police officer is able to establish that the info obtained over the broadcast is reliable, or the officer has independent basis for establishing reasonable suspicion that criminal activity is afoot.

Front 82

PA and federal rule regarding school locker searches:

Back 82

schools can use drug dogs to conduct surprise safety check of student lockers - only limited expectation of privacy in school

Front 83

PA rule regarding drug and alcohol testing of high school students:

Back 83

not allowed as a condition of extracurricular activity and driving privileges absent some actual showing of specific need for such policy and a basis for believing policy would address the need

Front 84

In PA, the knock and announce rule provides:

Back 84

absent exigent circumstances, police must knock and announce their presence or the search is illegal; however, no PA ct decision has considered whether evidence obtained from search violating knock and announce rule is admissible

Front 85

Warrants in PA must meet a particularity requirement that is ...

Back 85

more stringent than the federal requirement - PA SC has at times insisted on more specificity than might be required by SCOTUS - need actual reasonable particularity sufficient to limit govt discretion in the execution of the warrant

Front 86

PA follows federal rule for wired informants EXCEPT:

Back 86

police cannot send an informant into the home of an individual to electronically record the conversations

BUT CAN use wired informant in an individual's office

Front 87

PA Miranda requirements differ from the federal in that PA requires:

Back 87

an explicit waiver of Miranda rights

Front 88

In PA a defendant's silence at the time of his arrest...

Back 88

CANNOT be used to impeach his testimony at trial.

Front 89

In PA, need Miranda be administered before a field sobriety test?

Back 89

NO

Front 90

In PA, defendant statements to a fellow inmate who turned out to be an informant are ...

Back 90

inadmissible, as violation of the right to counsel.

Front 91

In PA, a jury verdict may be rendered by what proportion of the jury in a civil trial, must consist of how many jurors for either civil or criminal, and the right to a jury in criminal cases may be asserted by whom?

Back 91

5/6
12
defense and the commonwealth

Front 92

In PA. a defendant's privilege against double jeopardy prohibits retrial based on what sort of prosecutorial conduct:

Back 92

not only when prosecutorial msiconduct was intended to provoke D into moving for mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the D to the point of the denial of a fair trial

Front 93

In PA, the rule regarding free speech on private property is as follows:

Back 93

-speech on the premises of a privately owned college is protected, particularly when the event is open to the public
BUT
-no protected right to solicit signatures for a political candidate's nominating petition inside a privately owned shopping mall

Front 94

PA constitutional protections for reputation include:

Back 94

-the right to have a dismissed PFA expunged
-a statute disqualifying persons w/criminal records from working in facilities providing elder care violates due process

Front 95

In PA, the constitutional right to equal protection prohibits the passage of "special" or _____ laws, which...

Back 95

local .... include Sunday Blue Laws (prohibiting certain businesses from conducting business on sundays) and statutes providing for special treatment for particular school districts.

Front 96

The PA constitutional rights to free speech, free press, religious freedom and equal protection do NOT require ______ actors (as required in their federal counterparts).

Back 96

State - PA SC has not specifically addressed, but held in at least one case that equal protection was violated by private actor (insurance co requiring different premiums based on gender)