Con Law Lectures (Flash Cards)

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  1. Cases and Controversies Issues|,|(1) Standing; (2) Ripeness; (3) Mootness; (4) Political Questions Doctrine |,|0|<<|
  2. Standing|,|Must show: (1) [imminent] personal injury [if seeking injunctive/declaratory relief, must also show likelihood of FUTURE harm]; (2) Causation and Redressability [defendant caused injury and court decision could remedy it]. General Rule: no third party standing [exceptions: close relationship; 3rd party is unlikely to be able to assert his own rights; organization may sue for members]. NOTE: no generalized grievances based on citizen/taxpayer status |,|0|<<|
  3. Ripeness|,|Pre-enforcement review of a statute/regulation – must consider: (1) hardship will be suffered without preenforcement review; (2) the fitness of the issues and the record for judicial review |,|0|<<|
  4. Mootness|,|if events AFTER the filing of a lawsuit end the plaintiff’s injury, case must be dismissed as moot. Exceptions: (1) wrong capable of repetition but evading review (e.g. pregnancy re: abortion); (2) voluntary cessation where defendant is capable of resuming wrongdoing; (3) class action suits where at least one class member still has injury |,|0|<<|
  5. Political Questions Doctrine|,|Courts will NOT adjudicate: (1) the “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 |,|0|<<|
  6. How does Supreme Court receive cases?|,|(1) state court cases via writ of certiorari [after it has been heard by highest state court – must NOT be independent state law action that is itself capable of sustaining the result – if the supreme court decision could not change the result, it will not be heard]; (2)US Ct Appeals cases via writ of certiorari; (3) Appeals directly from three-judge federal district courts; (4) Original & Exclusive Jx of suits between state governments. |,|0|<<|
  7. Sovereign Immunity|,|Eleventh Amendment bars suits against states in federal court; bars suits against states in state courts or federal agencies. EXCEPTIONS: (1) state waives immunity; (2) states may be sued under laws enacted to enforce 14th amendment; (3) federal government may sue state governments; (4) bankruptcy proceedings. |,|0|<<|
  8. Abstention|,|Generally, federal courts may not enjoin pending state court proceedings. – exception: federal court will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith |,|0|<<|
  9. Congressional Taxing/Spending Power|,| Congress may tax and spend for the GENERAL WELFARE – general welfare answers may be right with respect to taxing/spending power |,|0|<<|
  10. Congressional Police Powers|,|Generally, no congressional police powers. EXCEPTION: MILD = Military, Indian Reservations, Land and Territories (federal), D.C. [NOTE: general welfare answers & police power may be right with respect to these – especially D.C.] |,|0|<<|
  11. Tenth Amendment|,|all powers not granted to the US, nor prohibited to the states, are reserved to the states or the people – Congress can NOT compel state regulatory or legislative action [but, congress CAN prohibit harmful commercial activity by state governments] |,|0|<<|
  12. Congress’ power under section 5 of the Fourteenth Amendment|,| Congress may not create new rights or expand the scope of rights, BUT congress may act to prevent or remedy violations of rights recognized by the courts. Such laws must be PROPORTIONATE and CONGRUENT to remedying constitutional violation. |,|0|<<|
  13. Delegation powers|,|NO LIMIT exists on Congress’ ability to delegate legislative power. But, Congress may NOT delegate executive power to itself or its officers. |,|0|<<|
  14. Legislative Vetos and Line Item Vetos|,| Both are Unconstitutional. Legislative: congress attempts to overturn executive action without bicameralism and/or presentment; line item: president attempts to veto part and sign part of law |,|0|<<|
  15. How must Congress act if it wants to pass a law?|,|Must be bicameralism (passage by both House and Senate) and presentment (giving the bill to the president to sign or veto) – president must sign/veto in its entirety |,|0|<<|
  16. Treaties|,|agreements between US and foreign country that are NEGOTIATED by the President and effective when RATIFIED BY SENATE. Treaties prevail over conflicting state laws; if conflict with federal statute, Last-In-Time wins. INVALID if conflict with US Constitution |,|0|<<|
  17. Executive Agreements|,| agreement between the US and a foreign country that is EFFECTIVE WHEN SIGNED BY PRESIDENT and the head of the foreign nation. Can be used for ANY purpose. Prevail over conflicting state laws, but NEVER over conflicting federal laws or the constitution. |,|0|<<|
  18. President’s power to use troops in foreign countries|,| broad power – president can’t declare war, but he can send troops to foreign countries for any reason, including for warlike activities |,|0|<<|
  19. President’s Domestic Powers|,|(1) appointment power; (2) removal power; (3) Immunity; (4) Privilege |,|0|<<|
  20. President’s appointment and removal powers|,|(1) appointment = appoint ambassadors, federal judges, officers; congress may vest the appointment of inferior officers in the President, the heads of departments, or the lower federal courts, but can not give itself the appointment powers; (2) removal = unless removal is LIMITED by statue, the President may fire any executive branch office. Congress can only limit removal from offices where independence from the president is desirable, and congress can NOT prohibit removal entirely |,|0|<<|
  21. Impeachment and Removal of President|,|President, VP, federal judges, officers of the US can be impeached and removed for treason, bribery, or for high crimes and misdemeanors. Impeachment does NOT remove person from office. Impeachment by house (majority), conviction by senate (2/3 vote)|,|0|<<|
  22. Presidential Immunity|,|Absolute immunity to civil suits for money damages for any conduct while in office (but NOT for actions that occurred prior to taking office) |,|0|<<|
  23. Executive Privilege|,|president has executive privilege for presidential papers and conversations, but it is not absolute – must yield to other important government interests (think Nixon) |,|0|<<|
  24. Pardoning Power|,|President has the exclusive and absolute power to pardon those convicted of FEDERAL CRIMES (not state, not civil) |,|0|<<|
  25. Preemption – Supremacy Clause|,|(1) Express- statute says it displaces state law; (2) Implied – fed law and state law are mutually exclusive, OR state law impedes the achievement of a federal objective, OR Congress evidences clear intent to preempt state law. |,|0|<<|
  26. Intergovernmental Immunity|,|States may NOT tax or regulate federal government activity |,|0|<<|
  27. Analysis of State/Local Action/Law that DISCRIMINATES Against Out-of-Staters|,|(1) DCC – violation if places a burden on interstate commerce UNLESS it is necessary to achieve an important governmental purpose [exceptions: congressional approval of discrimination; market participant exception]; (2) Article IV Privileges & Immunities – violation if it discriminates against individuals with regard to important economic activities or civil liberties UNLESS it is necessary to achieve an important government purpose |,|0|<<|
  28. Analysis of State/Local Action/Law that does NOT discriminate Against Out-of-Staters |,|(1) DCC – balance the benefits against the burden on interstate commerce (if the benefit exceed the burden, the law is upheld; if the burden exceeds the benefit, the law is struck down); (2) Article IV Privileges & Immunities – INAPPLICABLE |,|0|<<|
  29. DCC v. Privileges & Immunities of Article IV|,|DCC – does not require discrimination against out-of-staters in order to apply; requires burden on IC; corporations and aliens can sue under it; exceptions: congressional approval and market participant exception. P&I – requires discrimination against out-of-staters in order to apply; requires discrimination with regard to civil liberties or important economic activities; corporations and aliens can NOT sue under it; NO exceptions.|,|0|<<|
  30. Privileges and Immunities Clause of Article IV|,|No state may deprive citizens of another state of the privileges and immunities of the citizens of its own State |,|0|<<|
  31. Dormant Commerce Clause|,|principal that state/local laws are unconstitutional I they place an undue burden on interstate commerce |,|0|<<|
  32. Privileges or Immunities Clause of the Fourteenth Amendment|,|ALWAYS wrong on the bar – right-to-travel, CA welfare case (discriminated against new residents vs old residents) only |,|0|<<|
  33. State Taxation of IC|,|states may not use their tax systems to help in-state businesses; may only tax activities if there is a substantial nexus to the state; state taxation of interstate business must be fairly apportioned |,|0|<<|
  34. Full Faith & Credit|,|Courts in one state must give full faith and credit to judgments of courts in another state so long as: the court that rendered the judgment had jurisdiction over the parties and the subject matter; judgment on the merits; judgment final |,|0|<<|
  35. Use of federal Constitution and statutes to apply constitutional norms to private conduct|,| (1) 13th amendment can be used to prohibit private race discrimination; (2) commerce power can be used to apply constitutional norms to private conduct; NOTE: congress can NOT use section 5 of the 14th amendment to regulate private behavior. |,|0|<<|
  36. Situations where Private Conduct must Comply with the Constitution|,|(1) Public Function Exception – private entity performing a task traditionally, exclusively done by the government (e.g. run a town, run primaries); (2) Entanglement Exception – government affirmatively authorizes, encourages, or facilitates unconstitutional activity [EXAMPLES: (1) courts can not enforce racially restrictive covenants; (2) state action when (a) gov. leases premises to a restaurant that discriminates, (b) state provides books to schools that racially discriminate, (c) private entity regulates interscholastic sports within a state; (3) no state action when: (a) a private school that is over 99% funded by federal money fires a teacher for speech, (b) NCAA orders the suspension of a coach at a state university, (c) private club with a state liquor license raciall discriminates |,|0|<<|
  37. Application of Bill of Rights|,|applies DIRECTLY to federal government, applies to state and local through 14th amendment incorporation EXCEPT: (1) 2nd Am right to bear arms; (2) 3rd Am right to not have a soldier quartered in a person’s home; (3) 5th Am right to grand jury indictment in criminal cases; (4) 7th Am right to jury trial in civil cases; (5) 8th am right against excessive fines. |,|0|<<|
  38. Rational Basis Test|,| RATIONALLY RELATED to a LEGITIMATE government purpose |,|0|<<|
  39. Intermediate Scruitiny|,|SUBSTANTIALLY RELATED to an IMPORTANT government purpose |,|0|<<|
  40. Strict Scrutiny|,|NECESSARY to achieve a COMPELLING government purpose |,|0|<<|
  41. Procedural Due Process|,|Procedures gov must follow when it takes away life, liberty, property – typically about notice and hearing |,|0|<<|
  42. Substantive Due Process|,|Asks whether gov has an adequate REASON for taking away life, liberty, or property |,|0|<<|
  43. Equal Protection|,| Asks whether the government’s differences in the treatment of people are adequately justified |,|0|<<|
  44. Distinguishing between PDP, SDP, EP|,|Focus on what the plaintiff is seeking: (1) better notice, better hearing = PDP; (2) life, liberty, property was taken away without adequate reasons = SDP; (3) complaint about his treatment vs treatment of others similarly situated = EP |,|0|<<|
  45. Depravation of Life Liberty Property|,| (a) liberty – loss of particular freedom provided by Constitution or statute; (b) property – entitlement that is not fulfilled]; (c) Government Negligence is not sufficient for deprivation of DP [must be intentional or reckless – an in emergencies (like high-speed chase), liable only if conduct “shocks the conscience;” (d) Gov’s failure to protect people from privately inflicted harms does not deny due process (duty to protect only if gov creates danger or person is in gov custody) |,|0|<<|
  46. Special Deprivation of Liberty cases: institutionalization, reputation|,|(1) institutionalizing a person requires notice & hearing, BUT (a) not in emergencies; (b) with respect to parents institutionalizing children, all you need is hearing; (2) harm to reputation by itself is NOT a loss of liberty; (3) prisoners rarely have liberty interests – usually lose on DP |,|0|<<|
  47. Rights-Privileges Distinction v. Entitlement |,| R-P is ALWAYS WRONG answer choices – court no longer uses rights-privileges distinction. New magic words: Entitlement = continued expectation to continued receipt of benefit |,|0|<<|
  48. Due Process Analysis|,|(1) Depravation of Life/liberty/property?; (2) what procedures are required |,|0|<<|
  49. Procedures Required by PDP|,|Balancing test: importance of interest to the individual; ability of additional procedures to increase the accuracy of the fact-finding; government interests. [EXAMPLES: (1) welfare benefits, terminated - notice & hearing. (2) termination of social security/disability benefits – only post-termination hearing; (3) public school discipline – notice of charges & opportunity to explain (BUT corporal punishment in schools does NOT require any DP); (4) parents’ custody, terminated, notice & hearing; (5) punitive damages, instructions to jury & judicial review (grossly excessive PD violate DP); (5) enemy combatant = PDP; (5) pre-judgment attachment for government seizure of assets = notice & hearing unless exigent circumstances (person would get rid of property)] |,|0|<<|
  50. Government seizure of property used in illegal activity|,| Constitutional, even if owner is innocent |,|0|<<|
  51. Government Protection of Economic Liberties|,| Rational basis test [e.g. right to profession, right to practice]; BUT takings clause, contracts clause|,|0|<<|
  52. Government Conditions on Development Property (exactions)|,|must be justified by BENEFIT that is roughly PROPORTIONATE to the burden imposed; otherwise it is a TAKING |,|0|<<|
  53. Regulations that were in place when property was acquired|,|e.g. zoning ordinance or environmental law; new owner MAY bring a takings challenge to these regulations even if he had notice |,|0|<<|
  54. Temporarily denying an owner use of property|,|NOT a taking as long as the government’s action is REASONABLE |,|0|<<|
  55. Contracts Clause|,|No STATE shall impair the obligations of EXISTING contracts. (1) Private Contracts: intermediate scrutiny – does leg substantially impair a party’s rights under an existing contract? If so, is the law reasonably an d narrowly tailored means of promoting an important and legitimate public interest?; (2) state/local interference with its own government contracts must meet strict scrutiny; (3) ex post facto clause does not apply in civil cases |,|0|<<|
  56. Takings Clause|,| gov may take private property for public use if it provides just compensation [(a) taking? Possessory (confiscation or physical occupation) or regulatory (leaves NO reasonably economically viable use of property) takings; (b) public use? virtually everything will meet this – gov reasonable belief that it will benefit public; (c) just compensation? Measured in terms of loss to owner in reasonable FMV terms ] |,|0|<<|
  57. Ex Post Facto Laws v. Bill of Attainder|,|(1) ex post facto clause does not apply in civil cases -- law that criminally punishes conduct that was lawful when it was done or increases punishment for a crime after it was committed; (2) Bill of Attainder – punishes without hearing |,|0|<<|
  58. Privacy Rights protect by SDP|,|SS: (1) Marry; (2) Procreate; (3) Custody one’s children [note: state may create irrebuttable presumption that woman’s husband is father of her children]; (4) Keep Family Together; (5) Upbringing of Children; (6) Purchase/use contraceptives; (7) Right to Abortion; (8) private consensual gay sex [no articulated level of scrutiny]; (9) Right to refuse medical treatment. [NOTE: SDP does NOT protect physician-assisted suicides] |,|0|<<|
  59. Right to Abortion|,| not SS – (a) prior to viability, gov may not prohibit abortion but may regulate as long as it does not place an UNDUE BURDEN on abortion (24hr waiting period is not UB; licensed physicians only not UB; prohibition of partial birth abortions not UB); (b) after viability, gov may prohibit abortion. [(1) gov has NO dut to subsidize abortions; (2) spousal consent laws are unconstitutional; (3) parental notice/consent laws okay if alternative procedure where minor can obtain an abortion] |,|0|<<|
  60. Refusal of Medical Care|,|(1) competent adults have right to refuse medical treatment, even life-saving medical treatment [no identified level of scrutiny]; (2) state may require “clear and convincing evidence” that a person wanted treatment terminated before it is ended; (3) state may prevent family members from terminating treatment for another |,|0|<<|
  61. Second Amendment Right to Bear Arms|,| second amendment right to bear arms is NOT limited to militia service. No articulated level of scrutiny, and some regulations are okay – can prohibit guns at schools, can prohibit convicted felons from having guns |,|0|<<|
  62. Right to Travel|,|Strict Scrutiny under either: (1)Fundamental Right under PRIVILEGES AND IMMUNITIES clause of Fourteenth Amendment; (2) Fundamental Right under EQUAL PROTECTION clause [includes laws that prevent people from moving into a state; durational residency requirements] [NOTE: restrictions on FOREIGN travel must meet on RB test] |,|0|<<|
  63. Right to Vote|,|Fundamental Right: (1) laws that deny some citizens the right to vote must meet SS, but regulations of electoral process to prevent fraud need only be on balance desireable; (2) one-person, one-vote [all districts must be about equal in population]; (3) at-large elections are constitutional unless there is proof of discriminatory purpose [all voters get to vote on all of the offices being elected]; (4) use of race in drawing election district lines must meet strict scrutiny [includes lines to BENEFIT minorities]; (5) counting uncounted votes without preexisting standards in a presidential election violates equal protection |,|0|<<|
  64. Right to Education|,|NO fundamental right -- RB test only!! |,|0|<<|
  65. Equal Protection Analysis|,|(1) what is the classification? (2) what level of scrutiny to be applied? (3) does the law meet the level of scrutiny? |,|0|<<|
  66. Constitutional Provisions Concerning EP|,|1- Equal Protection Clause of 14th Am applies ONLY to state and local governments (NOT FEDERAL!!); 2- EP is applied to fed gov through the DUE PROCESS clause of 5th am (same analysis) |,|0|<<|
  67. Race & National Origin Classification - EP|,|Strict Scrutiny. Proved: (1) facially distinguishes based on race/nat’l origin; (2) facially neutral – must have BOTH discriminatory IMPACT and INTENT; [discriminatory use of peremptory challenges based on race violates EP; numerical set asides require clear proof of past discrimination; race can be used as a FACTOR; public school systems can not use race as a factor when zoning unless remedy for past discrimination = SS; |,|0|<<|
  68. Gender Classifications|,|Intermediate Scrutiny + “exceedingly persuasive justification.” (1) facial – e.g. different alcohol cut-offs for men and women; (2) facially gender neutral – must have BOTH discriminatory IMPACT and INTENT [discriminatory uses of peremptory challenges based on gender must meet IS; test is same whether benefits or disadvantages women – gender classifications benefiting women based on role stereotypes are NOT allowed, designed to remedy past discrimination and differences in opportunity WILL be allowed] |,|0|<<|
  69. Alienage Classifications|,| STATE laws that discriminate against non-citizens generally draw Strict Scrutiny – BUT only RB is used when classification concerns self-government and democratic process: voting, jury, police officer, teacher, probation officer; ONLY RATIONAL BASIS TEST IS USED FOR CONGRESSIONAL DISCRIMINATION AGAINS ALIENS (congress has plenary power to regulate immigration) [note: Intermediate Scrutiny is used for discrimination against undocumented alien children – withholding free public education from undocumented alien children violates EP] |,|0|<<|
  70. Discrimination against non-marital children: Legitimacy Classifications|,|Intermediate Scrutiny. – laws that draw a benefit to all marital children but deny it to all non-marital children |,|0|<<|
  71. Free Speech Methodology|,|(1) Content v. Content-neutral [content: SS (viewpoint/subject); neutral: intermediate scrutiny – T/P/M]; (2) Look for Prior restraints; (3) look for vagueness and overbreadth (includes nearly ALL fighting words statutes); (4) symbolic speech – gov can regulate if it has an important interest; (5) anonymous speech is protected|,|0|<<|
  72. Prior Restraints|,|(1) court orders preventing speech must meet SS; (b) gov can require a license for speech only if 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 |,|0|<<|
  73. Unprotected Speech|,|(1) Incitement of Illegal Activity [substantial likelihood of imminent illegal activity and speech is directed to causing imminent illegality]; (2) obscenity [appeals to prurient interest, patently offensive, taken as whole lacks serious redeeming artistic, literary, political, scientific value]; (3) Defamatory Speech |,|0|<<|
  74. Indecent Speech|,|General Rule: indecent/profane speech is generally protected by the First Amendment. Exception: broadcase media (free, over-the-air – much less latitude to regulate cable television); schools |,|0|<<|
  75. Commercial Speech|,|(1) advertising for illegal activity and false & deceptive ads are not protected by the First Amendment; (2) true commercial speech that inherently risks deception can be prohibited – [gov can prevent professionals from advertising of practicing under a trade name; gov may prohibit an attorney from in-person solicitation for profit (if offering FREE representation, or sending letters only, then protected!) (but, states can not prohibit accountants from in-person solicitation of clients for profit]; (3) other commercial speech can be regulated if intermediate scrutiny is met; (4) gov regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative |,|0|<<|
  76. Defamatory Speech|,|not protected, but first amendment limits recovery: (1) public official/running for public office/public figure: must prove falsity and actual malice (knowledge of falsity/ reckless disregard); (2) private figure, matter of public concern: must prove falsity and negligence + actual injury; (3) private figure, private concern: negligence for punitive damages only |,|0|<<|
  77. Privacy and First Amendment|,|(1) government may NOT create liability for truthful reporting of information that was lawfully obtained from the government; (2) liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance; (3) government may limit its dissemination of information to protect privacy – NOTE: press and public have right to attend public trials |,|0|<<|
  78. Speech by government employees|,| speech by gov employees on the job in the performance of their duties are NOT protected by first amendment |,|0|<<|
  79. Places Available for Speech|,|(1) public forums – gov is constitutionally required to make available for speech – only content-neutral TPM that serves important gov purpose and leaves open adequate alternative places for communication; (2) Limited Public Forums – gov could close, but chooses to open – has same rules as public forums; (3) Non-public Forums – gov properties that gov can and does close to speech – gov can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral [military buses; areas outside prisons and jails; advertising space on city buses; airports]; (4) no first amendment right of access to private property for speech – under first amendment, NO constitutional right to use private property like shopping malls for speech) |,|0|<<|
  80. Freedom of Association|,|laws that prohibit/punish group membership must meet strict scrutiny. To prohibit/punish, must show: (1) active affiliation; (2) the person knew of the group’s illegal activities, and (3) specific intent to further those illegal activities [laws that require disclosure of group membership lists must meet SS; laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity |,|0|<<|
  81. Free Exercise|,|(1) can NOT be used to challenge a neutral law of general applicability; (2)but, government may not deny benefits to individuals who quit their jobs for religious reasons. |,|0|<<|
  82. Establishment Clause|,|Lemon Test: SEX (1) Secular purpose for the law; (2) Effect must be neither to advance nor inhibit religion; (3) there must not be eXcessive entanglement with religion [gov can not discriminate against religious speech or among religions unless SS is met; gov sponsored religious activity in public schools is unconstitutional (but religious student and community groups must have the same access to school facilities as non-religious groups; gov may give assistance to parochial schools, so long as it is not used for religious instruction – vouchers for parochial schools are ok. |,|0|<<|

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Con Law Lectures (Flash Cards)
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