Kaplan Foundation Con Law

Front 1

Case and Controversy Requirement

Back 1

Federal court adjudication requires an actual and definite dispute between parties having adverse legal interests

Front 2

Standing

Back 2

Plaintiff must show a concrete personal stake in the outcome

Front 3

Standing: Constitutional Standard

Back 3

1. Injury in fact
2. Causation/redressability

Front 4

Political Questions

Back 4

Just because it's foreign affairs doesn't mean its a political question - purely economical questions (Iike wrongful death) it will not be political questions

Front 5

Justicibility
R
A
M
P
S

Back 5

Ripeness
Advisory Opinions
Mootness
Political Questions
Standing

Front 6

Ripeness

Back 6

For a case to be ripe, there must be a genuine, immediate threat of harm

Front 7

Mootness

Back 7

A case is moot unless an actual controversey exists at all stages of review, unless the injury is capable of repetition, yet evading review

Front 8

Abstention Doctrine - Pullman

Back 8

Federal court will refuse to review a case based on an unsettled issue of state law

Front 9

Abstention Doctrine - Younger

Back 9

Federal court review is prohibited where there are pending state criminal proceedings

Front 10

Statutory Regulation of Appellate Jurisdiction

Back 10

1. By Certiorari (discretionary - rule of 4)
2. By Appeal - 3 judge panel injunctive relief

Front 11

Wrong Answers in Con Law

Back 11

1. General Welfare Clause - does not stand alone; limitation on taxing and spending can be correct
2. Necessary and Proper Clause - carries into effect other enumerated powers
3. 14th A. P&I Clause - protects rights of national citizenship (navigable waters)
4. Contracts Clause - only applies to the states - cannot retroactively impairing the obligation of an existing public or private contract
5. Distinction between rights and priveledges
6. 10th Amendment - weak limitation on commerce power BUT NY vs. US- no commandeering Congress can't tell the states to enact or enforce a federal regulatory program

Front 12

Pardon Power

Back 12

Applies to federal crimes - not state

Front 13

Appoinment Power

Back 13

President appoints principal officers with Senate consent
Congress delegates appointment of inferior officers to the President, Heads of Departments, and/or, the Judiciary

Front 14

Hierarchy of Laws

Back 14

1. Constitution
2. Act of Congress & Treaty (last in time prevails)
3. Executive Agreement - foreign policy/affairs
Executive Order - domestic policy
4. State law

Front 15

11th Amendment

Back 15

A state may not be sued in federal court by its own citizens or citizens of another state without consent

Front 16

Exceptions to the 11th Amendment

Back 16

1. State officials may be sued personally for money damages or enjoined for federal law violations
2. A state can be sued by another state or the US
3. Congress may waive a state's 11th amendment immunity under the enfrocement Clause of Section 5 of the 14th Amendment

Front 17

State taxation of Federal government

Back 17

Fed government is immune, but federal contractors can be taxed.
Validity of state tax: Valid if it is reasonable and non-discriminatory, and fairly apportioned (satisfies the commerce clause)

Front 18

Property Power

Back 18

Congress has the power to dispose of the territory or other property belonging to the US: wild animals on federal land, military ships and airplanes, federal enclaves, and Indian reservation)

Front 19

Affectation Doctrine

Back 19

Congress may regulate any activity which has a substantial economic effect on interstate commerce

Front 20

Fundamental right to travel

Back 20

Only violated when travel is violated for the purpose of establishing residency

Front 21

State Action
Have to address state action before you can address equal protection or due process

Back 21

A threshold requirement of government conduct which must be satisfied before private discrimination can be restricted under the 1st, 4th, 14th, or 15th Amendments (e.g. public function; signficant state involvement or "encouragement")

Front 22

Public Function

Back 22

Private entity performs activities historically only by the government = a company town

Front 23

Licensing as State Action

Back 23

Licensing alone is insufficient to constitute state action

Front 24

Strict Scrutiny

Back 24

Burden is on the state to show the law is necessary (no less restrictive means) to a compelling interest

Front 25

Strict Scrutiny Applies to:

Back 25

1. Protected 1st Amendment rights
2. Suspect Classes (Race, Alienage, National Origin)
3. Fundamental IRghts
- Right to Vote
- Right to Pravel
- Right to Privacy

Front 26

Middle Tier (Intermediate)O Scrutiny

Back 26

Burden on state to show that the law is substantially related to an importtany interest
- applie to Gender, Illegitmacy, and Illegal Alien Children (school)

Front 27

Rational basis Scrutiny

Back 27

Burden is on plaintiff to show the law is not rationally related to any legitiamte interest

Front 28

Rational Basis applies to

Back 28

poverty
age
mental retardation
necessities of life
economic and social welfare measures
everything else

Front 29

Statute is Nuetral on its Face

Back 29

Plaintiff must show:
1. Discriminatory effect and
2. Discriminatory purpose
in order to raise standard above rational basis

Front 30

Fundamental Right of Privacy

Back 30

C ontraception
A bortion
M arriage
P rocreation
E ducation (private) - homeschooling
R elations (family) - related people live together; child birth; child rearing

Front 31

Substantive Due Process

Back 31

A term used to classify the source from which the fundamental rights (right to vote, right to travel, right to privacy) derive.

Front 32

Substantive Due Process vs. Equal Protection (which do I choose)

Back 32

SDP is used where a law affects all persons.
EP is used where a law effects some persons.

Front 33

Abortion

Back 33

A state may regulate abortion provided undue burden is placed on a woman's right to obtain an abortion
Can't impede up to 6 months because fetus isn't viable

Front 34

Fundamental Right to Vote

Back 34

Applies Strict Scrutiny
1. Discrimination in voting
2. Reapportionment
3. Switching Party Affiliation
4. Ballot Restrictions based on special interests (land ownership).

Front 35

Voting Issues Not Deemed to be Fundamental

Back 35

Apply Rational Basis
Right to be a Candidate
1. Payment of a filing fee
2. Both minimum and maximum age requirements

Front 36

Election Funding

Back 36

"Total Spending" limits by a candidate are unconstitutional - violation of 1st amendment freedom of speech
Individual campaign contribution limits - Constitutional if reasonable

Front 37

Article IV P&I Clause

Back 37

Prevents ecnomic discrimination by one state against citizens or residents of another state unless a substanital government interest exists

Front 38

P&I vs. Commerce Clause

Back 38

If entire business/industry = commerce clause
Individuals = P&I

Front 39

Procedural Due Process

Back 39

The procedural safeguards of notice and a hearing are avaialbe whenever there is a serious deprivation of any life, liberty, or property interest

Front 40

Liberty Interests

Back 40

Right to Contract
Right to Engage in Gainful Employment

Front 41

Property Interests/Entitlements

Back 41

Welfare benefits (pre-termination)
Disability benefits (post-termination)

Front 42

Takings Clause

Back 42

Can't take private property for public use without just compensation

Front 43

Bill of Attainder

Back 43

Legislative punishment of a named group or individual without judicial trial

Front 44

Ex Post Facto Clause

Back 44

Invalidates retroactive criminal laws that
1. Make criminal an act that was not a crime when committed; or
2. Decrease the amount of evidence needed to convict/change the procedures for conviction

Front 45

4 Facial Attacks on Statutes

Back 45

1. Overbreadth
2. Vagueness: people of ordinary intelligence would wonder
3. Prior restraints: restrictions on speech in advance of publication (gag orders, pre-trial publicity)
4. Unfettered Discretion: mayor or some official has the discretion to grant or deny license

Front 46

Regulation of Non-Public Forum

Back 46

Rationally related to a legitimate government interest and viewpoint nuetral

Front 47

Regulation of Public Forums

Back 47

Regulations must be content nuetral, narrowly tailored, and further a signifigant governmental interest

Front 48

Freedom Not to Speak

Back 48

You can refrain from promoting a viewppoint that you do not accept

Front 49

Content Specific Regulation

Back 49

1. If Protected Speech = apply strict scrutiny
2. Unprotected speech
* Clear and present danger
* Defamation
* Obscenity
* Child Pornography
* Fighting Words
* Fraudulent commercial
speech

Front 50

Vice Advertising

Back 50

Government reguation must
1. Directly Advance
2. A substantial governmental itnerest AND
3. be narrowly tailored

Front 51

Free Exercise of Religion
Purposeful Interference

Back 51

Apply Strict Scruitny

Front 52

Free Exercise of Religion
Incidental Burden

Back 52

Apply rational basis

Front 53

Establishment Clause

Back 53

In order not to violate the establishment clause
1. The primary purpose must be secular
2. Primary effect must neither inhibit nor advance religion
3. No excessive government entanglement with religion