2008 Mbe Constitutional Law

Front 1

Requirements for Case and Controveries

Back 1

1. Standing
2. Ripeness
3. Mootness
4. Not a political question

Front 2

Standing: Plaintiff must allege a personally

Back 2

Suffered injury or an imminent injury for an injunction/declaratory relief

Front 3

General rule is No Third Party Standing: 3 Exceptions

Back 3

1. Certain close relationships (dr./patient)
2. Injured party unlikely able to assert their own rights (D can raise rights of potential jurors)
3. An organization may sue for its members

Front 4

An orgnization may sue for its members if (3)

Back 4

1. The members would have standing to sue
2. The interests are germane to the orgnization's purpose
AND
3. Neither the claim noe relief requires participation of individual members

Front 5

No generalized grievances (b/c no standing)

Back 5

Plaintiff may not sure solely as a citizen or as a taxpayer to force government to follow the law

Front 6

Exception to no generalized grievances

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Taxpayers have standing to challenge government expenditures as violating the Establishment clause (very narrow - limited to money, not land)

Front 7

Three exceptions to mootness

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1. Wrong capable of repition but evading review
2. Voluntary cessation
3. Class action suits

Front 8

Political Questions

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1. "Republican form of government clause"
2. Challenges to the President's conduct of foreign policy
3. Challenges to the impeachment and removal process
4. Challenges to partisan gerrymandering

Front 9

All cases from state courts and US courts of appeals come to the Supreme Court by way of

Back 9

Writ of Certiorari

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The Supreme Court has original and exclusive jurisdiction for

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Suits between state governments

Front 11

Supreme Court review of three-judge federal district courts

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Immediately appealable

Front 12

Final Judgement Rule prevents

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Interlocutory review

Front 13

For the Supreme Court to review a state court decision there cannot be

Back 13

Adequate and Independent state law ground of decision

Front 14

Eleventh Amendment bars

Back 14

Suits against states in federal courts

Front 15

Principle of sovereign immunity

Back 15

States cannot be named as a Defendant in federal or state courts

Front 16

Exceptions to sovereign immunity

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- Consent (waiver must be explicit)
- Pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment
- Federal government may sue state governments

Front 17

Suits against state officers allowed in what circumstances

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- For injunctive relief
- For money damages paid personally (but not if the state treasury would be paying retroactive damages)

Front 18

Define Abstention

Back 18

Federal courts may not enjoin state court proceedings

Front 19

Commerce Power allows Congress to act through (3)

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1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
3. To regulate economic activities that have a Substantial Impact on interstate commerce

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Substantial Effect on interstate commerce for non-economic activity

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Effect cannot be based on cumulative impact

Front 21

Tenth Amendment

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Limit on Congressional powers; cannot compel state regulatory or legislative action

Front 22

Legislative action requires

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Both House and Senate and presentation to the President

Front 23

Legislative and line-item vetos common trait

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Both are unconstitutional

Front 24

What limits exist on Congress' ability to delegate legsilative powers

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No limits

Front 25

What limits exist on Congress' ability to delegate executive powers to itself

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May not delegate such powers

Front 26

Treaties

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Negotiated by the President and effective when ratified by Senate

Front 27

Treaty vs. state laws

Back 27

Treaty prevails

Front 28

Treaty vs. federal statute

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Last in time controls

Front 29

Treaty vs. US Constitution

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Treay is invalid

Front 30

Executive agreements effective when

Back 30

When signed by the President and head of the foreign nation (no Senate approval required)

Front 31

President has the power to appoint (3)

Back 31

1. Ambassadors
2. Federal Judges
3. Officers of the US

Front 32

Congress' power to appoint

Back 32

May not give itself or its officers the appointment power

Front 33

President's removal power over any executive branch office is absolute unless

Back 33

Limited by statute

Front 34

For Congress to limit President's removal power (2)

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1. Must be an office where independence from the President is desirable
AND
2. Cannot prohibit removal, only authorized to limit removal for good cause

Front 35

President's immunity from suit

Back 35

Absolute immunity to civil suits for money damages for actions while in office; no immunity for actions that occurred prior to taking office

Front 36

Executive privilege covers papers and conversations but must yield to

Back 36

Other important government interests

Front 37

President's power to pardon extends to

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Those accused or convicted of federal crimes

Front 38

Implied preemption: Federal law preempts state law where (3)

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1. Federal and state laws are mutually exclusive
2. State law impedes achievement of federal objective
3. Congress evidences a clear intent to preempt

Front 39

Ability of states to tax and regulate federal governemnt activity

Back 39

States prohibited

Front 40

A state law that burdens interstate commerce violates the dormant commerce clause if

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It burdens exceed its benefits

Front 41

Analysis of a state law that discriminates against out-of-staters

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- Does it burden interstate commerce?
- Yes: Is it neccessary to achieve an important government purpose?
- Yes: valid
- No: Violates DCC

Front 42

Market Participant Exception

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A state/local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses

Front 43

Two exceptions to a law that discriminates against out of staters not necessary to achieve an important government purpose

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1. Congressional approval
2. Market participant exception

Front 44

Laws that discriminate against out-of-staters ability to earn their livelihood violate

Back 44

Violates the Privileges and Immunities clause UNLESS necessary to achieve an important government objective

Front 45

Privileges and Immunities clause prohibited from use by

Back 45

1. Corporations
2. Aliens

Front 46

Full faith and credit so long as (3)

Back 46

1. Court rendering judgment had jurisdiction
2. Judgment was on the merits
3. Judgment is final

Front 47

State tax systems may not be used to

Back 47

Help in state business

Front 48

States may only tax activities that have

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A substantial nexus to the state

Front 49

State taxation of interstate business must be

Back 49

Fairly apportioned

Front 50

Prohibitions on private race discrimination valid under

Back 50

Thirteenth Amendment

Front 51

Situations where private conduct must comply with the Constitution (2)

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1. Public function exception
2. Entanglement exception

Front 52

Public Function exception

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Private entity is performing a task traditionally, exclusivel done by the government

Front 53

Entanglement exception

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Government affirmatively authorizes, encourages, or facilitates unconstitutional activity

Front 54

State action?: Government lease premises to a restaurant that racially discriminates

Back 54

Yes

Front 55

State action?: State provides books to schools that racially discriminate

Back 55

Yes

Front 56

State action?: Private school that is over 99% funded by the government fires a teacher because of her speech

Back 56

No

Front 57

State action?: When the NCAA orders the suspension of a basketball coach at a state university

Back 57

No

Front 58

State action?: When a private entity regulates interscholastic sports within a state

Back 58

Yes

Front 59

State action?: A private club with a liquor license from the state racially discriminates

Back 59

No

Front 60

Amendments not incorporated by the Fourteenth

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- Second: right to bear arms
- Third: quartering soldiers
- Fifth: grand jury
- Seventh: jury in civil cases
- Eighth: excessive bail

Front 61

Levels of scrutiny

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- Rational Basis test
- Intermediate scrutiny
- Strict scrutiny

Front 62

Rational Basis Test

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- Rationally related
- Legitimate conceivable purpose

Front 63

Intermediate Scrutiny

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- Substantially related
- Important actual purpose

Front 64

Strict Scrutiny

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- Necessary
- Compelling actual purpose

Front 65

Burden of Proof:
- Rational Basis
- Intermediate Scrutiny
- Strict Scrutiny

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- Rational Basis: challenger
- Intermediate Scrutiny: government
- Strict Scrutiny: government

Front 66

Deprivation of libterty occurs if

Back 66

There is the loss of a significant freedom provided by the Constitution

Front 67

Deprivation of property occurs where

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There is an entitlement and it is not fulfilled

Front 68

In emergency situations the government is liable under due process only if its conduct

Back 68

Shocks the conscience

Front 69

Standard of conduct for liability to exist

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Governmental action must be intentional or at least reckless; negligence will not suffice for due process claim

Front 70

Balancing test for due process

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- Importance of individual's interest
- Government's interest
- Ability of additional procedures to increase the fact-finding

Front 71

Level of protection for economic liberties

Back 71

Minimal; only apply rational basis test for laws affecting economic rights

Front 72

Takings clause

Back 72

Governemnt may take private property for public use if it provides just compensation

Front 73

Takings clause test (3)

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1. Is there a taking
2. Is it for public use
3. Is just compensation paid

Front 74

Is there a taking (2 kinds)

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1. Possessory - no matter how minimal
2. Regulatory - no reasonable economically viable use

Front 75

Just compensation measured by

Back 75

Loss to the owner; not gain to the taker --> look for FMV

Front 76

Limited application of the contracts clause

Back 76

Applicable only to state or local interference with EXISITING contracts

Front 77

Analysis where state or local government interferes with private contracts

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

Front 78

Level of scrutiny when government contracts are intereferred with by state/local authorities

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Strict Scrutiny

Front 79

Ex post facto laws in civil cases - standard for review

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Only need meet rational basis test

Front 80

Standard of Review - Privacy

Back 80

Strict scrutiny

Front 81

Fundamental right of privacy found in

Back 81

- Right to marry
- Right to procreate
- Right to custody of one's children
- Right to keep the family together
- Right to control the upbringing of one's children
- Right to purchase and use contraceptives

Front 82

Right to Abortion: Prior to Viability

Back 82

- State may not prohibit
- May regulate so long as not an undue burden

Front 83

Right to Abortion: After Viability

Back 83

State may prohibit UNLESS necessary to protect the woman's life/health

Front 84

Spousal consent and notification laws for abortion

Back 84

Unconstitutional

Front 85

Privacy rights not afforded strict scrutiny

Back 85

- Right to engage in homosexual activity
- Right to refuse medical treatment

Front 86

Equal Protection analysis (3 questions)

Back 86

1. What is the classification
2. What level of scrutiny should be applied
3. Does this law meet the level of scrutiny

Front 87

Classifications based on Race and National Origin

Back 87

Strict scrutiny

Front 88

Classifications benefiting minorities

Back 88

Strict scrutiny

Front 89

Classifications based on Gender

Back 89

Intermediate scrutiny

Front 90

How is the existence of a classification proven

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- Exists on the face of the law
- Law is facially neutral, but there is both a discriminatory Impact and Intent

Front 91

Classifications based on Alienage

Back 91

Strict scrutiny

Front 92

Standard of review for alienage classifications that concern self-government and the democratic process

Back 92

Rational Basis test

Front 93

Government may discriminate against non-citizens for

Back 93

- Voting
- Juries
- Probation officer
- Teacher
- Police officer

Front 94

Classifications based on undocumented alien children

Back 94

Intermediate scrutiny

Front 95

Classifications against non-marital children

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Intermediate scrutiny

Front 96

Rational basis used for

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- Age
- Disability
- Wealth
- Economic Regs
- Sexual orientation discrimination

Front 97

Standard of review for fundamental rights

Back 97

Strict scrutiny

Front 98

Fundamental rights protected under Equal Protection

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- Right to travel
- Right to vote

Front 99

Two types of content-based restrictions on speech

Back 99

1. Subject matter restriction
2. Viewpoint restriction

Front 100

Standard of review for content based restrictions

Back 100

Strict scrutiny

Front 101

Standard of review for content neutral laws burdening speech generally

Back 101

Intermediate scrutiny

Front 102

Unprotected/less protected speech

Back 102

- Incitement of illegal activity
- Obsencity and sexually-oriented speech

Front 103

Incitment of illegal activity test (2)

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1. Substantial likelihood of imminent illegal activity
AND
2. The speech is directed to causing imminent illegal activity

Front 104

Commercial speech for illegal activity or false and deceptive ads

Back 104

Not protected by the First amendment

Front 105

Government regulation of commercial speech (2)

Back 105

- Must be narrowly tailored
- Need NOT be the least restrictive alternative

Front 106

Regarding privacy, no liability for (2)

Back 106

- Truthful reporting of lawfully obtained material
- Matters of public importance

Front 107

Speech for Government employees on the job or in the performance of duties

Back 107

Not protected

Front 108

Regulations on Public forums

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- Limited to time, place, manner restrictions
- That serve an important government purpose
AND
- Leaves open adequate alternatives for communication
- Need not be the least restrictive alternative

Front 109

Regulations on limited Public Forums

Back 109

Same as for public forums

Front 110

Regulations for non-Public forums

Back 110

Government can regulate so long as the regulation is reasonable and viewpoint neutral

Front 111

Standard of review for laws that prohibit or punish freedom of association

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Strict scrutiny

Front 112

To punish membership in a group must prove (3)

Back 112

1. Actively affiliated with the group
2. Knowing of its illegal activities
AND
3. Has the specific intent of furthering those illegal activities

Front 113

Standard of review for laws that require disclosure of group membership

Back 113

Strict scrutiny

Front 114

Laws that prohibit a group from discriminating are constitutional UNLESS (2)

Back 114

- They interfere with intimate associations
OR
- Expressive activity

Front 115

The free exercise clause cannot be used to challenge

Back 115

A neutral law of general applicability

Front 116

The Establishment clause test (3)

Back 116

1. Secular purpose
2. Effect neither advances nor inhibits religion
3. No excessive purpose

Front 117

Standard of review for discrimination against religious speech

Back 117

Strict scrutiny