Constitutional Law Flash Cards

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  1. Federal courts may decide only actual:
    cases and controversies.
  2. In order for a case to be ripe a plaintiff must allege:
    actual harm or immediate threat of harm.
  3. A deadletter statute is:
    a case involving an old statute which has never been enforced and will present an unripe case.
  4. A case will be dismissed as moot unless there exists an:
    actual, live controversy between the parties at all stages of the litigation including on appeal.
  5. A case is not moot if the injury is capable of
    repetition. (Think Roe v. Wade)
  6. A case is not moot if the case is brought as a:
    class action and the issues remain alive at least as to one member of the class.
  7. A case is not moot if there are by-product:
    harms or some continuing issues between the parties.
  8. A case is not moot if a defendant has voluntarily:
    ceased the harm but is free to return to his or her old ways.
  9. An organization has standing to sue for injury to itself, but it may also sue for injuries to its members if:
    1. a member ormembers would have standing, and

    2. the members' injury is related to the purpose of the organization, and

    3. there is no reason (such as an award of damages to individual members) that would require participation of the individual members in the suit.
  10. A party has standing to sue on behalf of a third party if the third party has:
    1. Suffered some actual injury and

    2. There is a special relationship between the the plaintiff and the third person.
  11. Citizen standing is:
    never enough for standing.
  12. Taxpayers may sue to:
    challenge their own tax liability.
  13. Federal taxpayers have no standing as plaintiffs:
    to challenge how the federal government spends the money it has collected.
  14. A plaintiff as a tax payer may challenge a law if:
    1. It is a law enacted under Congress' taxing and spending powers, Not executive or administrative action, AND

    2. it exceeds a specific constitutional limit on taxing and spending (meaning, an Establishment clause challenge to a taxing and spending law.
  15. Legislators may challenge acts that:
    cause them a personal and concrete injury, but has no standing to challenge laws which were properly enacted but which he or she believes are unconstitutional.
  16. The Supreme Court may review the decisions of state courts if and only if:
    The case involves a matter of federal law, it is a final judgment, is from the highest state court authorized to hear the case and there is no independent and adequate state ground on which the state court decision is based.
  17. A case rests on an independent state ground so long as:
    state law does not depend on an interpretation of federal law or incorporate a federal standard.
  18. A case rests on an adequate state ground if:
    no matter how the federal issue in the case is decided, the outcome will still be the same under the resolution of the state law issue.
  19. Under the doctrine of abstention a federal court will decline to hear a case challenging a state law if:
    it involves a constitutional challenge to the state law, but the meaning of the state law is unsettled or unclear, or the matter is already pending before state judicial or administrative tribunals.
  20. Political questions are issues that are:
    constitutionally committed to another branch of the government to decide, or are beyond the competence or enforcement capability of the judicial branch.
  21. Under the 11th amendment, a private party cannot sue a state in federal court unless:
    the state consents, or Congress clearly says so to enforce 14th Amendment rights.
  22. The 11th Amendment only bars suits in:
    Federal Court.
  23. Under the 10th amendment all powers not granted to the federal government:
    are reserved to the states or to the people.
  24. Under the Commerce Power Congress can regulate:
    1. the use of interstate instrumentalities

    2. Sales of goods moving across state lines or

    3. Any commercial activity which substantially affects interstate commerce
  25. Congress may not commandeer state:
    regulatory agencies and force them to enforce federal law.
  26. Congress may tax and spend for:
    the general welfare.
  27. A court will enforce a condition against a state which has accepted federal funds if it is:
    1. For the general welfare

    2. Doesn't violate individual liberties

    3. Reasonably related to a legitimate Federal Interest.

    4. Not coercive of the state to take action.
  28. The 13th amendment:
    outlaws slavery and all badges and incidents of it, and gives Congress the power to enforce the amendment.
  29. The 14th amendment guarantees:
    equal protection and due process, but only against government acts, not acts of private parties.
  30. The 15th amendment protects the right:
    to vote against any federal or state government racial discrimination, and it gives Congress the power to enforce the amendment.
  31. Congress may broadly delegate legislative powers to:
    administrative agencies so long as Congress sets forth some intelligible principle to guide the exercise of the delegated power.
  32. If Congress delegates authority to the executive branch, Congress may not:
    reserve for itself a veto over the particular acts taken by the executive branch pursuant to that delegation.
  33. Members of Congress may not be prosecuted or civilly fined for their:
    official or legislative acts.
  34. The President has the power and duty to enforce or carry out:
    the laws of Congress.
  35. The President may not make law, only carry it out except:
    if there is an emergency AND Congress has not said no to the particular act.
  36. The President may sign or veto legislation but may not veto:
    some parts of legislation but not others (line item veto)
  37. The President has the power to appoint and remove:
    executive officials.
  38. As to principle officers, such as ambassadors, judges, and cabinet heads, the President appoints:
    only with the advice and consent of the Senate.
  39. As to inferior officers, those who answer to another or have limited duties or jurisdiction:
    Congress may vest the appointment in the President alone, or in department heads, or in the judiciary.
  40. Congress may never remove directly remove executive branch officials except through:
  41. Congress may not give executive powers to persons it may:
    hire and fire.
  42. Congress alone has the power to declare:
  43. The president may act, without any approval of Congress as:
    the chief foreign policy spokesperson of the government, to receive ambassadors, or meet with heads of state.
  44. When the president seeks to enter into agreements with foreign governments:
    some form of Congressional approval is required.
  45. Treaties require 2/3 of:
    senate approval.
  46. Executive agreements require:
    Congressional acquiescence is enough, but invalid if Congress disapproves.
  47. When treaties conflict with later Congressional legislation:
    the later legislation controls in USA.
  48. Describe the impeachment process:
    1. Voted on by the house, need majority.

    2. Senate tries the president, 2/3 vote needed for removal from office.
  49. Federal law preempts or prevails over any:
    inconsistent state law.
  50. Express preemption holds that:
    If Congress says that federal law displaces or ousts state law in an area, then state law in that area is preempted, period.
  51. Implied preemption holds that:
    Even if Congress doesn't specifically so state, state law will be preempted if state law is inconsistent with federal law.
  52. The Privileges and Immunities Clause of Article 4 holds that:
    States may not discriminate against natural citizens with respect to commercial activities or the enjoyment of civil liberties.
  53. State may, however, require in-state residency for their own:
    employees and may charged out of staters more for hunting licenses or tuition benefits, and may prefer their own citizens in giving state benefits.
  54. The Dormant Commerce Power holds that:
    where Congress has not acted, state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce.
  55. Laws that discriminate for the purpose of favoring in-state commerce are
  56. Laws that discriminate against interstate commerce for the purpose of promoting health or safety are:
  57. A state law that in non-discriminatory towards interstate and intrastate commerce will be held invalid if:
    it imposes an unreasonable burden on interstate commerce.
  58. A State is free to discriminate or excessively burden interstate commerce when:
    Congress gives its permission to do so.
  59. Under the market participant doctrine whenever a state is acting, not as a regulator, but as a buyer or seller of commodities or services:
    the negative commerce clause does not apply to its actions, and the state may discriminate or burden interstate commerce. (The same applies with government subsidies)
  60. The 21st Amendment gives state the power to:
    regulate the possession, sale, and transportation of intoxicating liquors within their borders.
  61. A state tax on interstate commerce will be valid only if:
    it is non-discriminatory, the activity or thing taxed must have a substantial nexus to the state, and not reasonably burdensome.
  62. The Bill of Rights protection apply against the Federal government, not the states but:
    most also apply against state and local governments through the Due Process Clause of the 14th Amendment.
  63. Except for the 13th amendment, which prohibits lsavery, all other constitutional rights are protection against:
    only the government.
  64. Any bar examination question raising issues of constitutional rights must involve:
    state action.
  65. Government officials' decisions are considered state action as long as:
    they are acting under color of law.
  66. State action will be found when a private entity performs a governmental function that is:
    traditionally and exclusively performed by governments, such as conducting elections to fill public offices.
  67. State action may also be found where private actors are:
    working together with government as partners or joint venturers, such that they each will derive benefits from the actions of the other.
  68. Under the Contract clause, states may not by legislation substantially impair per-existing contracts unless:
    the law serves an overriding public need, and the law is reasonable and narrowly tailored means of meeting that need.
  69. Ex Post Facto laws are laws that:
    Make a crime today of activity yesterday.

    Increase crime punishment after crime committed, or

    Reducing elements of conviction after act.
  70. The Ban on Bills of Attainder prevents:
    any federal or state legislation that inflicts punishment, civil or criminal, on named individuals or ascertainable members of a group without a judicial trial.
  71. Procedural process requires:
    1. Some form of notice and

    2. An opportunity to be heard
  72. Procedureal due process is required for any:
    deprivation of a life, liberty, or property interest that is taken away by an adjudicative-type act.
  73. For procedural due process purposes, an entitlement is property, while a mere:
    expectancy is not.
  74. A waiver of filing fees for indigents will be required if charging the fee would:
    result in the denial of a fundamental right.
  75. According the Takings Clause, neither the federal government (5th amendment) nor the states (14th amendment due process) may:
    take property without just compensation.
  76. A taking is a physical:
    invasion or occupation.
  77. Regulatory takings are not takings so long as the regulation:
    reasonably advances a legitimate state interest and leaves an economically viable use for the property.
  78. Conditional permits occur when the government will require a property owner to satisfy certain conditions in order to receive the permit and are reasonable when:
    there is a rough proportionality, or connectedness, between the impact of the proposed development and the condition.
  79. The 14th Amendment

    The Privileges and Immunities of National Citizenship:
    Protects almost nothing, almost always wrong answer. Only protects the right to become a citizen of any state and, once a bona-fide resident, to enjoy the same rights given other residents.
  80. The 14th Amendment

    Federal government equal protection component comes from:
    The fifth amendment.
  81. The 14th Amendment

    State government equal protection comes from:
    the 14th amendment by incorporation.
  82. The 14th Amendment

    The Strict Scrutiny standard is:
    The government must prove that the law is necessary to achieve a compelling interest. No presumption of constitutionality.
  83. The 14th Amendment

    The Intermediate Scrutiny standard is:
    The government must prove that the law substantially serves an important interest. There is no presumption of constitutionality.
  84. The 14th Amendment

    The Rational Basis test (minimum scrutiny) is:
    The Plaintiff must prove that the law lacks a rational basis and is unrelated to any legitimate objective. The law is presumed constitutional.
  85. A law is discriminatory if it:
    1. Discriminates on its face.

    2. Written neutral on its face, but discriminatorily administered.
  86. Strict scrutiny is applied to:
    Laws that discriminate on the basis of Racial or Ethnic groups.
  87. For voluntary affirmative action to be upheld by the court, the discriminating party must have:
    engaged in discrimination in the past, and the policy must be tailored to remedy that past discrimination.
  88. The 14th Amendment

    Scrutiny level for Laws based on Alienage:
    1. Congressional laws -Rational Basis

    2. Strict scrutiny
  89. The 14th Amendment

    States may require US citizenship for:
    government policy making or policy implementing positions, including: law enforcement personnel, public school teachers. Non-citizens may also be barred from participating in the governmental process, as in voting or holding elective office.
  90. The 14th Amendment

    Mid-level scrutiny applies to laws that discriminate based on:
  91. In MA, laws that discriminate based on gender are reviewed under:
    strict scrutiny examination.
  92. The 14th Amendment

    Most gender discriminatory laws will fail unless it falls within one of the two exceptions:
    1. Bona Fide Affirmative Action, but state must prove that it is making up for past discrimination.

    2. Real differences between Men and Women.
  93. All other classifications other than race, alienage, and gender are judged on:
    a rational basis scrutiny.
  94. The 14th Amendment

    Laws that deal with a fundamental right are viewed with:
    strict scrutiny.
  95. The 14th Amendment

    The privacy fundamental rights are:
    1. Marriage and Divorce

    2. Contraception

    3. Abortion:Prior to viability, the government may not impose any undue burden on a woman's choice to terminate a pregnancy.

    4. Obscenity in the home (Possession only)

    5. Certain Family relationships (Blood or marriage)

    6. Right to refuse medical Treatment

    7. Protection for Private Consensual Sexual Activity between adults, but no right to engage in: adultery, incest, prostitution, or assisted suicide.
  96. The 14th Amendment

    The Fundamental right to vote allows only:
    reasonable residence, age, and citizenship qualification for voting. Can't have poll taxes or property qualifications for Federal Elections.
  97. The 14th Amendment

    One person one vote requirements:
    1. State elections: deviations of up to 16% have been permitted.

    2. Federal elections: ONe person one vote is required by Art I Section 2. No deviations permitted.
  98. The 14th Amendment

    The Right to Interstate Travel:
    can't discriminate based upon durational residency unless the benefits are of lesser importance and not permanently denied, like lower tuition rates for higher education.
  99. The Right to Interstate Travel

    The Second Amendment protects the right:
    of an individual to have a handgun in the home for self-defense.
  100. Freedom Of Speech and Press is protected by:
    the First Amendment
  101. Freedom Of Speech and Press

    A statute is vague, and thus unconstitutional on its face, if a person of common intelligence could not know what behavior is prohibited.
  102. Freedom Of Speech and Press

    A law is overbroad, and thus unconstitutional on its face, if it prohibits substantially more expression than is necessary. (over-broad)
  103. Freedom Of Speech and Press

    Prior Restraints
    A prior restrain enjoins speech before it is uttered, as opposed to punishing it afterward. Government must show that the prior restraint is necessary to prevent direct, immediate, and irreparable harm.
  104. Freedom Of Speech and Press

    Content control
    Unless it is a special category, or the government shows a compelling need, the government may not restrict a person's opinion, message, or ideas.
  105. Freedom Of Speech and Press

    Tim Place, and Manner Restrictions
    The government may prohibit speech at certain times, places and in certain manners, but not based upon the content of the message.
  106. Freedom Of Speech and Press

    Requirements of Valid TIme, Place, and Manner controls:
    1. Content neutrality

    2. Substantial Alternative Opportunities for the Speech to take Place.

    3. Law Narrowly serves a Significant State Interest.
  107. Freedom Of Speech and Press

    Laws that discriminate based on content are:
    subject to strict scrutiny.
  108. Freedom Of Speech and Press

    Exceptions to Speech Content Strict Scrutiny:
    1. Speech inciting Immediate Lawless or Violent Behavior

    2. Fighting Words or Hate Speech; True Threats

    3. Obscenity

    4. Libel and Defamation and Invasions of Privacy

    5. Commercial speech
  109. Freedom Of Speech and Press

    In order for speech to be considered inciting Immediate Lawless or Violent Behavior the person must be speeking:
    1. directly to a crowd to incite

    2. the incitement is likely to result in imminent lawlessness
  110. Freedom Of Speech and Press

    Fighting words are words which:
    by their very utterance inflict injury or tend to incite an immediate breach of the peace. Must have a tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.
  111. Freedom Of Speech and Press

    True threats are statements which:
    are a serious expression of intent to commit an unlawful act of violence on particular people or groups.
  112. Freedom Of Speech and Press

    Obscenity may be proscribed and completely prohibited if it meets the following requirements:
    1. Average person in the community would find that the work, taken as a whole, appeals to the prurient interest.

    2. The work depicts patently offensive sexual conduct as defined by state law

    3. The work, taken as a whole, lacks serious literary artistic, political or scientific value on a national standard.
  113. Freedom Of Speech and Press

    Even if material is not obscene and is merely sexually explicit the government may:
    1. Limit availability of it to minors

    2. Use zoning powers to prescribe where places of "adult entertainment" may operate.
  114. Freedom Of Speech and Press

    Commercial Speech enjoys some first amendment protection:
    but not all.
  115. Freedom Of Speech and Press

    In regards to commercial speech the government may:
    regulate and prohibit false, misleading or deceitful advertising. However, if it goes beyond those regulations it must prove that its regulation advances a substantial government interest, and is narrowly tailored.
  116. Freedom Of Speech and Press

    Generally, the press has the same:
    rights as everyone else, no more or less.
  117. Freedom Of Speech and Press

    Traditional public forums are:
    streets, sidewalks, and parks.
  118. Freedom Of Speech and Press

    Most government property, unlike sidewalks, streets, and parks, is a:
    non-public forum, unless the government has specifically dedicated non-public forums to be fully opened to all First Amendment activities.
  119. Freedom Of Speech and Press

    In regards to non-public forums on government property the government may limit the speech:
    to the subject which the property has been dedicated as long as it is viewpoint neutral.
  120. Freedom of Speech and Press

    Time place and manner controls in a non-public forum will be upheld so long as:
    they are reasonable (make sense in terms of how the property is used.)
  121. Freedom of Speech and Press

    Time place and manner controls in a non-public forum will be upheld so long as:
    They are reasonable, i.e. they make sense in terms of how the property is used.
  122. Freedom of Speech and Press

    In general, public employees, may not be hired or fired based on:
    political party affiliation, political philosophy, or any act of expression.
  123. Freedom of Speech and Press

    If employees are speaking as citizens about a matter of public concern, they may not be fired or disciplined unless:
    their speech disrupts the operation of the office, undermines authority, or destroys close working relationships.
  124. Freedom of Religion and No Establishment

    In regards to religious belief the government may neither:
    punish people because of their religious beliefs nor require them to profess any particular religious belief.
  125. Freedom of Religion and No Establishment

    The Government may inquire into the _____ of your religious beliefs but not the ________ of your beliefs

  126. Freedom of Religion and No Establishment

    Unless the government can prove that laws aimed at religious behavior are necessary to a compelling state interest it may not:
    single out, prohibit, or punish religious behavior because it is religious or performed by a religious group.
  127. Freedom of Religion and No Establishment

    If the government passess generally applicable laws that are not aimed at religious practices:
    those laws are valid and the government is not constitutionally required to provide religious persons with an exemption from the law.
  128. Freedom of Religion and No Establishment

    The government is to remain neutral:
    respecting religious and neither "aid one religion, aid all religions, or prefer one religion over the other."
  129. Freedom of Religion and No Establishment

    The three part test for determining whether a law is religiously neutral is:
    1. Law must be for a secular purpose

    2. Law must not advance or inhibit religion.

    3. Law must not be entwined with religious purposes.
  130. Freedom of Religion and No Establishment

    A primary effect of advancing religion is likely to be found with aid that is:
    not generally available but is especially designed for religious schools.
  131. Freedom of Religion and No Establishment

    A system of tax credits or deductions only for tuition paid by parents sending their children to religious schools:
    is not advancing religion.
  132. Freedom of Religion and No Establishment

    Recently the Supreme Court has down-played the excessive entanglement/monitoring aspect and has focused on whether:
    government supervision was sufficient to prevent or detect the diversion of government aid to religious purposes.
  133. Freedom of Religion and No Establishment

    The establishment Clause prohibits government sponsored religious exercises and prayers:
    in the public schools. Prayers to open a legislative session are ok.
  134. Freedom of Religion and No Establishment

    The government may not sponsor religious displays on public ground if a reasonable observer would conclude that:
    the government was endorsing a religious message.
  135. The contracts clause only applies to what types of contracts?
    state. Article I states that no state legislation may retroactively impair the obligation of contracts. The article does not apply to federal action or to court decisions.
  136. The government may regulate speech-related activities in nonpublic forums as long as the regulation is
    • (i) viewpoint-neutral and
    • (ii) reasonably related to a legitimate governmental interest.
  137. A ______________ classification based on alienage is upheld unless the classification is ____________.
    federal, arbitrary and unreasonable
  138. The media has ______________________ the general public, but ______________ may be subject to greater governmental regulation.
    the same rights as, broadcasters
  139. Under the Free Exercise Clause, neutral laws of general applicability that have an incidental impact on religious conduct are _____________________.
    subject to rational basis review
  140. The Fifteenth Amendment specifically gives Congress the power to eliminate racial discrimination in _____________.
  141. Congress ______________ the power to spend for the general welfare. Congress ____________ pressure states into acting through the conditioning of federal funding on taking such action.
    has; can
  142. The ________________ test requires that a law be substantially related to an important government interest.
    intermediate scrutiny
  143. The Privileges and Immunities Clause of Article IV (i.e., the Comity Clause) deals with the privileges and immunities of ______________ citizenship and prohibits serious discrimination against out-of-state _______________.
    state, individuals
  144. The “General Welfare” Clause of Article I, Section 8 of the United States Constitution gives Congress the power to do what?
    to spend for the general welfare i.e., any public purpose—not just to pursue its other enumerated powers. Although Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation, Congress can use its spending power to accomplish such a result indirectly by conditioning the receipt of federal funding on enacting such legislation.
  145. The rational basis standard of review applies to laws that draw distinctions based on
    age, wealth, or most other classifications, and those that have a disparate impact on a particular class without a discriminatory intent.
  146. When assessing an Equal Protection challenge to state or local governmental action based on alienage, the state or local government must generally satisfy the
    strict scrutiny standard. However, for state laws that restrict or prohibit an alien’s participation in government functions, the burden is on the challenger to show that the governmental action does not have a rational relationship to a legitimate state interest.
  147. In determining whether a regulation constitutes a taking, the court will consider:
    (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding his use of the property; and (3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property. A court generally will not examine whether a regulation substantially advances a legitimate governmental interest.
  148. Restrictions on commercial speech, such as advertising, are subject to intermediate scrutiny and are reviewed under a four-part test:
    (i) it must concern lawful activity and be neither false nor misleading; (ii) the asserted government interest must be substantial; (iii) the regulation must directly advance the asserted interest; and (iv) the regulation must be narrowly tailored to serve that interest.
  149. To establish a prima facie case for non-representative jury selection, a defendant must show that:
    • (i) the group excluded is a distinctive group in the community;
    • (ii) the group was not fairly represented in the venire from which the jury was selected; and
    • (iii) the under representation resulted from a systematic exclusion of the group.
  150. When a government employee contends that his rights under the Free Speech Clause of the First Amendment, as made applicable to state and local government action through the Fourteenth Amendment, have been violated by his employer, the employee must show that he was
    speaking as a citizen on a matter of public concern.
  151. The U.S. Supreme Court does not have appellate jurisdiction over a decision by the highest court of a state when that decision is supported by state law grounds that are
    • (1) independent of federal law and
    • (2) adequate to sustain the result in the case.
  152. the government may regulate the time, place, and manner of speech in a public forum so long as the law is
    • (i) content neutral,
    • (ii) narrowly tailored to serve a significant government interest, and
    • (iii) leaves open alternate channels of communication for the speaker
Card Set:
Constitutional Law Flash Cards
2016-07-17 01:23:55
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