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145 Cards in this Set
- Front
- Back
Constitutional Law issues checklist
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+ What power is being excercised?
- judicial - legislative - executive - state + is state action involved? + is the exercise of power constitutional? |
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limitations on judicial power
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- standing
- abstention - mootness - ripeness - advisory opinion - political questions |
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standing: checklist
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Need significant stake in teh controversy + injury in fact
- injury in fact: concrete & individuated? - fed taxpayer: nexus - asserting 3rd party rights - organization |
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standing: taxpayer nexus
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Taxpayer has standing if challenged measure enacted under Congress taxing & spending powers and exceeds specific limitation on taxing & spending powers.
Also can challenge aid to religion! |
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standing: 3rd party rights
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- you have suffered too
- 3rd parties find it difficult to assert their own rights OR - affects your relationship with 3rd party! |
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standing: organization
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- injury in fact to members
- injury related to organization's purpose - individual member's participation in law suit not required |
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judicial abstention
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If there's a state issue, litigate that first (in state court, please!)
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mootness: pregnancy
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It's not moot because you might get pregnant again
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legislative power: checklist
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- COMMERCE power
- ALIEN naturalization & citizenship - FOREIGN affairs - ELECTION regulation - TAXING power - SPENDING power - WAR power - ENFORCEMENT of civil rights - PROPERTY power - DELEGATION power - OTHER powers |
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Congress: commerce power
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- affects interstate commerce (aggregate impact)
- rational basis - reasonably adapted |
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Congress vs. state: foreign affairs power
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states cannot frustrate foreign policy objectives!
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Congress: spending power
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+ general welfare:
- national problem - reasonable means - Congress believes will remedy + strings attached to financial grants: - reasonably related - enumerated powers - not unconstitutional or ambiguous |
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Congress: taxing power
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- bears some reasonable relationship to revenue production
- power to regulate - cannot be a penalty If so, court won't scrutinize! |
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Congress delegation power: executive/administrative officials/agencies
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- power must not be uniquely confined to Congress
- delegation must include intelligible standards |
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Congress delegation power: vote of 1 house
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NO. Congressional action requires both houses & signed by president!
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Presidential power: checklist
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- WAR power
- EXECUTIVE AGREEMENTS - TREATY power - PARDON power - LEGISLATIVE power - FOREIGN affairs |
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President: executive agreements
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Trumps state law!
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treaty power
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- treaties supersede state law
- treaty vs. federal law: last in time |
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state power
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EVERYTHING Not preempted by the fed!
Can't tax foreign commerce State action limitations (list) |
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State action limitations
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- public functions
- private conduct - aid - encouragement - licensing |
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Limitations on government: list
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- limits on state action
- constitutional limitations |
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When do the 14th & 15th Amendments apply?
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Feds: yes
States: no Local government: yes Company towns: yes Malls: no |
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limits on state action: public functions
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- local government & officials: covered by 14th/15th Amendments!
- company towns count as normal towns for 14th Amendment purposes - shopping center is not a public function |
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limits on state action: licensing
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- Just because the private entity is licensed, heavily regulated, or granted a monopoly doesn't make it a state action!
- just because you're licensed by the state doesn't mean you're not private (racist liquor store) |
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limits on state action: encouragement
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- state/local government can't encourage discrimination!
- just because you're heavily regulated doesn't mean you're not private - state can create private entity--still not state action! |
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limits on state action: aid
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- excessive state FINANCIAL ENTANGLEMENT may constitute state action
- eg. privately run housing project (paid for by state) |
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Does the 14th Amendment prevent private conduct?
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NO--no matter how "discriminatory or wrongful"
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limits on government: constitutional limitations - list
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- procedural due process
- substantive due process - equal protection - retroactive legislation - economic taking - first amendment - immunities - irrebuttable presumptions civil rights - contracts clause |
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procedural due process: checklist
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- intentional deprivation of significant life, liberty, or property interest?
- what procedures are required to assure fundamental fairness? |
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bill of attainder
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Congress can't pass a law punishing someone without trial!
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equal protection: standards of review
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- rational basis
- intermediate scrutiny - strict scrutiny |
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rational basis test
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RATIONALLY related to a LEGITIMATE governmental interest
Burden on challenging party! Applies to: - economic legislation |
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intermediate scrutiny
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SUBSTANTIALLY related to an IMPORTANT governmental interest
Burden on government? Applies to: - gender |
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strict scrutiny
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NARROWLY TAILORED to a COMPELLING governmental interest, using LEAST RESTRICTIVE means available!
Heavy burden on government! Applies to: - fundamental rights - suspect classes (race & alienage) |
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difference between substantive due process and procedural due process
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SUBSTANTIVE: why was I locked up? ("some forms of liberty are so essential that government may not abridge them by any process")
PROCEDURAL: now that I've been locked up, how can I get a fair trial? |
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substantive due process
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+ fundamental right: strict scrutiny!
- interstate travel - privacy (abortion, reproduction, etc.) - voting - 1st Amendment + economic regulations: rational basis - can't be "arbitrary, capricious or unreasonable" |
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just compensation
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IS THERE A TAKING?
Taking: - subjacent support maintenance - physical occupation (cable TV) - government use/disclosure of trade secrets - public easements Not a taking: - property restrictions that protect public health, welfare, safety, morals - substantially advance legitimate state interest & do not extinguish ownership - prohibit sale of property |
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is the taking for a public purpose?
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- safety
- health - economic - political - social - welfare - aesthetic - moral Then just compensation must be paid! |
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1st Amendment free speech
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- does the law attempt to regulate speech?
- if yes, does it fall under an exception? - if it doesn't fall under an exception, then it's invalid! |
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1st Amendment: when can the government regulate speech?
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when you can:
- clear & present danger - fighting words - obscenity - defamation - false or deceptive advertising / commercial speech - sign regulations when you can't: - public forum: strict scrutiny - prior restraint (requires prior approval) - vague or overbroad - forcing a person to speak |
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1st Amendment: establishment clause (religion)
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- secular PURPOSE
- secular PRIMARY EFFECT - avoids undue ENTANGLEMENT - won't produce DEVISIVENESS |
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privileges & immunities clause
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Only protects essential rights!
- commercial fisherman: yes - recreational hunter: no - travel: yes - vote: yes |
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irrebuttable presumption
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Is the right protected by the Constitution?
If yes: can't have a rebuttable presumption If no: rational basis test |
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Statutes that modify existing contracts
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Private contracts: intermediate scrutiny
Public contracts: strict scrutiny Doesn't apply to the feds!!! |
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Three standards of scrutiny with definitions
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strict: NARROWLY tailored to COMPELLING gov't interest using LEAST RESTRICTIVE means available
intermediate: SUBSTANTIALLY related to IMPORTANT gov't interest rational basis: RATIONALLY related to LEGITIMATE gov't interest; burden on challenger |
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Is it a taking? Subjacent support maintenance
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Yes
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Is it a taking? Physical occupation (cable TV)
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Yes
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Is it a taking? Government use/disclosure of trade secrets
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Yes
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Is it a taking? Public Easements
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Yes
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Is it a taking? Property restrictions that protect public health, welfare, safety, morals
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No
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Is it a taking? Laws that substantially advance legitimate state interest & do not extinguish ownership
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No
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Is it a taking? Prohibiting sale of property
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No
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Can government regulate this form of speech? Clear & present danger
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yes
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Can government regulate this form of speech? fighting words
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yes
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Can government regulate this form of speech? obscenity
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yes
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Can government regulate this form of speech? defamation
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yes
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Can government regulate this form of speech? false or deceptive advertising / commercial speech
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yes
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Can government regulate this form of speech? sign regulations
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yes
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Can government regulate this form of speech? public forum
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strict scrutiny
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Can government regulate this form of speech? prior restraint
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no
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Can government regulate this form of speech? vague or overbroad
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no
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Can government regulate this form of speech? forcing a person to speak
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no
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If the state creates a private entity, do the actions of that private entity count as state action?
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No.
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Injury in fact: requirements
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Must be concrete & individuated
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Congress spending power: general welfare
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- national problem
- reasonable means - Congress believes will remedy |
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Congress spending power: strings attached to financial grants
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- reasonably related
- enumerated powers - not unconstitutional or ambiguous |
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substantive due process: level of review for fundamental rights
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strict scrutiny!
examples: - interstate travel - privacy (abortion, reproduction, etc.) - voting - 1st Amendment |
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substantive due process: level of review for economic regulations
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rational basis.
can't be "arbitrary, capricious or unreasonable" |
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Can Congress appoint members of a commission that exercises enforcement powers?
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No
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Can legislative power be delegated under very vague guidelines without creating an unconstitutional delegation?
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Yes!
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If city council is going to repeal a challenged ordinance, does that make the challenge moot?
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It's not moot unless the ordinance has actually been repealed.
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Due process: do you need a hearing before having a business license suspended/revoked?
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YES - a business license is a valid property right, and procedural due process requires a hearing if it is suspended.
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Does the Privileges & Immunities Clause extend to non-citizens?
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No
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If police see a suspect inside the house may they enter & arrest without a warrant?
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Only in hot pursuit or if suspect is going to destroy evidence
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"Necessary & proper clause"
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Always wrong answer!
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Constitutional justification for Congress money grants
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Power to tax & spend for the general welfare
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state tax: rules
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- state may not tax out-of-state businesses to assist in-state businesses
- must have clear connection or substantial nexus to state activities - must be fairly apportioned fairly related to services provided by the state |
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federal justiciability doctrines:
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ripeness
advisory (can't do it!) mootness political question standing |
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Can Congress command the President to send troops to specific locations?
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No; infringes on President's authority as Commander in Chief
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Requirements for a taking:
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PROMOTES an IMPORTANT PUBLIC PURPOSE
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Level of scrutiny for discriminating against aliens
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feds: rational basis test (weak)
state/local: strict scrutiny —NECESSARY to achieve COMPELLING GOVERNMENT INTEREST |
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substantive due process vs. procedural due process
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if you want a hearing: procedural due process
content of the law: substantive due process |
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Right/privilege answer
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Always wrong answer!
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Is there an Equal Rights Amendment?
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No.
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Level of review for facially neutral economic measures
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Rational basis test
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Content-based discrimination violates:
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First Amendment!
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free exercise clause: statute upheld if
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it's a law of general application neutral not intended to discriminate
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Do federal taxpayers have standing to challenge any federal spending?
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Yes!
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establishment clause:
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purpose
effect entanglement |
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Is a nondiscriminatory indirect tax on the federal government permissible?
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YES as long as it does not unreasonably burden the federal government.
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Can an at-will employee be terminated without a hearing?
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YES.
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What if some at-will employees get a hearing but some don't? Does that violate due process?
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NO. If there's no statute requiring a hearing then there's no right to a hearing for at-will employees.
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Can you object to a violation of someone else's 4th Amendment rights?
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NO.
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Police have probable cause to arrest you. You are at someone else's house. Police enter without a warrant and arrest you. Can you object on the grounds that they entered without a warrant?
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NO - you can't object to a violation of someone else's 4th Amendment rights!
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Federal Property Clause of Article IV Section 3:
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"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"
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When a taxpayer can challenge federal spending:
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Challenged measure was:
(1) enacted under Congress' taxing & spending power (2) exceeds some specific limitation on the power Has only been applied to Establishment Clause. |
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Does the SC apply the Establishment Clause more generously to religiously affiliated colleges and hospitals than it does for grade or secondary schools?
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YES; aid to one aspect of an institution of higher education not shown to be pervasively sectarian does not necessarily free it to spend its other resources for religious purposes.
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Do you have a reasonable expectation of privacy with your own bank records?
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NO.
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Level of scrutiny for discrimination on the basis of alienage:
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INTERMEDIATE scrutiny!
Plyler v. Doe, US 1982 |
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In order to combat a specific problem in a specific area during a specific time of day can the police randomly stop cars?
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NO - roadblocks are ok but random stopping isn't. Violates 4th Amendment and any evidence seized would be inadmissible.
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Can Congress have a legislative veto over regulatory rules?
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NO. Unconstitutional. It's Congressional action not subject to presidential review and violates separation of powers.
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rational basis test:
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RATIONALLY related to a LEGITIMATE government interest. Burden of proof is on the CHALLENGER
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intermediate scrutiny:
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SUBSTANTIALLY related to an IMPORTANT government purpose. Burden of proof is on the GOVERNMENT
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strict scrutiny:
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NECESSARILY related to a COMPELLING government purpose. Burden of proof is on the GOVERNMENT
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If Defendant requests a mistrial does double jeopardy apply?
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NO. Although it usually would it's an exception if the Defendant asked for the mistrial.
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Does the Privileges & Immunities Clause apply to corporations or aliens?
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NO.
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Standard of review for a law regulating contributions to a PAC that supports or opposes a ballot referendum
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Intermediate scrutiny
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Zoning regulation prohibits 3 or more unrelated persons living together. Is it constitutional?
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Rational basis review. YES.
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Standard of review for GENDER
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Gender is a quasi-suspect class. If a law intentionally targets a single gender then it is subject to INTERMEDIATE SCRUTINY.
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Standard of review for AGE
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Rational basis
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Standard of review for MARITAL STATUS
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Rational basis
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Standard of review for CHILD REARING
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Strict scrutiny!
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Can the President refuse to spend funds allocated by Congress?
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No.
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Can you sue to challenge a law if there is no substantial threat that the statute will be enforced?
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No.
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May a state impose a reasonable fee on an indigent who wants to run for office?
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No.
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Can a state make labeling requirements for foreign goods?
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No - it burdens interstate commerce
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If law enforcement threatens action (but hasn't done it yet) is that enough to sue?
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Yes.
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Standard of review for law that discriminates against all religions equally
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Strict scrutiny - 1st Amendment is implicated because it can make it more difficult to practice religion
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15th Amendment
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Prohibits states and the federal government from denying any citizen the RIGHT TO VOTE on account of race or color. Allows Congress to enact legislation protecting against discrimination affecting the right to vote.
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Can Congress make appointments to executive agencies?
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NO. Congress can delegate the power to appoint to:
- the president - the courts - department heads - never to Congress! |
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Retirement benefits are what type of right?
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Contractual right! (Once you've retired they ripen into a full contractual obligation.)
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Right to appeal to the Supreme Court: what kind of right?
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STATUTORY, not Constitutional.
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Does ex post facto apply to procedure?
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YES.
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Foreign imports mixed with local items. Do they retain foreign import status?
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NO.
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If a tax is invalid as a regulatory measure
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It might still be valid as a fund raising measure
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Age restrictions for candidacy: standard of review
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Rational basis (according to S. Court dicta)
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Wealth restrictions for candidacy: standard of review
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Strict scrutiny
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Residency restrictions for candidacy: standard of review
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Strict scrutiny
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Property ownership restrictions on right to be a candidate: level of review
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No articulated standard
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Party affiliation restrictions on right to be a candidate: level of review
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Strict scrutiny
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Race restrictions on right to be a candidate: level of review
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Strict scrutiny
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Prohibition on officeholders from being candidates for another office
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Rational basis
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Does Congress have exclusive power over the District of Columbia?
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YES.
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Can you have a housing ordinance that restricts family units?
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NO, as long as they're related.
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Legislative punishment for party membership (eg. Communist party). Is it valid?
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No - bill of attainder!
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Can a Senator/Congressman be held liable for statements said in session?
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No!
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Government law says you have to let cable company install cable in your building. Is it a taking?
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Yes.
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Voluntary student-led prayer at school. Is it constitutional?
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Nope.
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Can a state employment statute discriminate against illegal aliens?
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Yes! Not an unconstitutional regulation of immigration or preempted by Supremacy Clause. It is within state's power to regulate employment of illegal aliens.
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General tax used to provide targeted benefit. Constitutional?
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Yes! Two separate issues: federal power to tax for fiscal purposes, and federal power to spend for the general welfare. Congress may decide that a Civil War museum is of general national benefit.
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Does the Equal Protection Clause apply to aliens?
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Yes! Congress has plenary power over the admission of aliens, but once they're here, discrimination is subject to strict scrutiny under the Equal Protection Clause of the 14th Amendment.
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Is an expressed opinion actionable as defamation?
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No - only statements of "fact" are actionable as defamation. Not statements of opinion (ie. "I think they should be deported").
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Can you limit a charity's appeals for fundraising?
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Probably not (1st Amendment); courts usually strike it down.
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Does the Privileges & Immunities Clause apply to the Feds?
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NO. 14th Amendment only applies to the states and Article IV only applies to the states!
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Statutory cause for redress: does it confer property interest?
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YES. And once it's been granted, you can't take it away.
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