Constitutional Law

Constitutional Law Flashcards

What is the 11th Amendment?

State Sovereign Immunity - Prohibits a party from suing a state (or state agency) in Federal Court

What are the four main exceptions to State sovereign immunity?

a. State explicitly consents to waive protection b. Lawsuit pertains to federal laws under the 14th Amendment c. Lawsuit only seeks injunctive relief against a state official, OR d. Lawsuit seeks money damages from a state official

Does the 11th Amendment apply to local governments?

No

Does the 11th Amendment apply to a federal lawsuit by a state against another state?

No

Does the 11th Amendment apply to a lawsuit by the federal government against a state?

No

What are the three elements of standing?

a. P personally suffered an injury b. There is causation c. Injury is redressable by court order

What must a P show for injunctive relief?

Concrete, imminent threat of future injury

What are three options where a third-party may have standing?

a. A close relationship exists b. It is unlikely for third-party to assert rights of their own, OR c. Third-party is an organization

What are the three elements that allow an organization to have standing to sue on behalf of their members?

a. Suit is related to organization’s purpose b. Members would have had standing to sue, AND c. Member’s participation is not necessary

When can and can’t a taxpayer bring a lawsuit?

a. They can regarding specific amounts under their tax bill b. They can’t sue solely for being a taxpayer (challenging govt. expenditures)

Are courts able to give advisory opinions? What about hypothetical disputes?

No to both

What is ripeness?

Whether the case is ready to be litigated. Ripe - When actual harm or an immediate threat of harm exists

What is mootness?

When a dispute has ended or was resolved before dispute.

What are three examples of mootness exceptions?

Case is capable of being repeated, Voluntary cessation, but it can resume at any time, Class actions with an ongoing injury

What are the three areas that Congress can regulate under the Commerce Clause?

Channels of interstate commerce (highways), People and instrumentalities of interstate commerce (cars/planes), Economic activity that has a substantial effect on interstate commerce.

What is the 13th Amendment?

Abolition of slavery

What is the 14th Amendment?

Privileges and immunities, due process, equal protection

What is the 15th Amendment?

Right to vote can’t be denied based on race

What type of conduct does the Dormant Commerce Clause (DCC) restrict, and who does it apply to?

It restricts state laws that unduly burden or discriminate against interstate commerce and applies to state governments.

How does the Privileges and Immunities Clause of Article IV differ in protecting individual rights compared to the DCC

It protects out-of-state U.S. citizens from discrimination by a state regarding fundamental rights like employment or access to courts, focusing on individual rights rather than commerce

What is the primary purpose of the Privileges or Immunities Clause of the 14th Amendment, and how is it interpreted today?

It was intended to protect national citizenship rights against state interference, but is narrowly interpreted after the Slaughter-House Cases, with limited application today (e.g., right to travel).

Which clause applies only to U.S. citizens (not corporations or aliens), and prohibits economic discrimination by states?

Privileges and Immunities Clause of Article IV.

Which clause allows states to justify discriminatory laws if they have a substantial reason and no less discriminatory alternatives?

Privileges and Immunities Clause of Article IV (under intermediate scrutiny-like test).

Who has the power to lay and collect taxes/duties?

Congress

Who has the power to execute the law?

President

Who has the power to appoint ambassadors?

President

Can duties and excises vary throughout the U.S.?

No, they must be geographically uniform

Who has the power to spend for the common defense and general welfare?

Congress

Who has the power to remove cabinet appointees?

President

Who has the power to remove agency appointees?

President

What are the five conditions where Congress can attach restrictions on states receiving federal funds?

Spending must be for general welfare, Condition must be imposed unambiguously, Condition must be related to the federal interest, Condition is constitutional Condition is not coercive

Who has the power to pardon and control troops?

President

What responsibilities does the President and Congress have with respect to treaties?

President negotiates, Senate ratifies.

Can the President enter into an Executive Agreement without the approval of Congress?

Yes.

What are the two criteria for when Congress may delegate legislative powers?

They are delegable under the Constitution, AND Congress provides reasonably intelligible standards to guide the delegation

What is the 10th Amendment?

State Immunity from Federal Law b. All powers not granted to the Federal Government are reserved to the states

Can Congress compel a state government to implement legislation?

No

Can Congress induce state government action by attaching restrictions and conditions on federal funding pursuant to its spending power?

Yes

What is the Negative Commerce Clause?

A state may regulate commerce so long as Congress has not enacted laws on the subject matter.

Can a state pass a law that discriminates against out-of-state commerce?

No

Can a state pass a law that puts an undue burden on interstate commerce?

No

What are the two main areas where a law that is facially discriminatory may be constitutional with respect to commerce?

The burden is narrowly tailored to achieve a legitimate, non-protectionist state objective, OR The state is a market participant rather than a regulator of economic activity

What are the two elements that make a law unconstitutional that places an undue burden on interstate commerce?

A burden exists b. The burden is excessive to the benefits to the state government

What is the Supremacy Clause?

A validly enacted federal law will always preempt conflicting state law

What is the incorporation clause?

Most amendments are applicable to the states by incorporation through the 14th Amendment due process clause

Is the conduct of private actors protected by the U.S. Constitution? Exceptions

No, it is not. Exceptions: Traditional public function, Significant government involvement exists

What is the due process clause?

No person shall be deprived of life, liberty, or property without due process of law.

What two amendments make the due process clause applicable to the states and federal government?

14th Amendment - States, 5th Amendment - Public Government

What is substantive due process?

The governments power to regulate certain activities

What level of scrutiny applies to the government regulating fundamental rights?

Strict scrutiny

What is strict scrutiny?

Government must show that law is necessary to serve a compelling governmental interest

What are a few fundamental rights?

Right to vote, Interstate Travel, Privacy (Marry, procreate, use contraceptives, etc.)

What level of scrutiny applies to the government regulating non-fundamental rights?

Rational Basis

What is rational basis?

P must show the law is not rationally related to a legitimate government interest.

What is procedural due process?

The procedures required when the government deprives a person of life, liberty or property

What are the three Mathews v. Eldridge factors to determine what the court will balance when looking at procedural due process?

Importance of private interests, Risk of error under current procedures/value of new procedures, Importance of state interests

What are the three types of discriminatory classification of a law for equal protection?

The law is discriminatory on its face b. The law is applied in a discriminatory manner c. The law has a discriminatory motive

Define strict scrutiny and give examples of protected classes.

Govt. must show the classification is necessary to serve a compelling government interest. Race, nationality, Alienage or other fundamental rights

Define intermediate scrutiny and give examples of protected classes.

Govt. must show the classification is substantially related to an important government interest. Gender, Sex, Non martial children, Sexual Orientation, Gender Identity

Define rational basis and give examples of protected classes.

Plaintiff must show the classification is not rationally related to a legitimate governmental interest. All other classes not outlined elsewhere.

What is the takings clause under the 5th Amendment?

Government may take private property for public use if it proves just compensation.

What is public use under the takings clause?

It is rationally related to a conceivable public purpose

What is just compensation under the takings clause?

Fair market value at the time of the taking

What are the three categories of regulatory taking?

Depriving owner of all economically viable use b. Penn Central Taking - Court balances (1) economic impact of regulation, (2) investment backed expectations, (3) character of regulation c. Permit Approval i. Not a taking if the government determines the permit is proportional to advancing the state interest

What is the privileges and immunities clause?

States cannot intentionally discriminate against non-residents concerning Civil Liberties (Right to vote, travel interstate), Important economic activities (Ability to earn a livelihood)

What is the Contracts Clause?

Restricts states/local governments from passing laws that interfere with existing contracts

What are the three elements of the contracts clause related to private contracts

State law that substantially impairs a contract is unconstitutional, UNLESS Significant & legitimate purpose for the law, AND The law is reasonable and appropriate for its intended purpose

What is the difference if it is a public contract (state is a contract party)?

A heightened standard of scrutiny is used.

Does the contract clause apply to the federal government?

No, it does not

Can the contract clause override the police power of a state to protect the general welfare of its citizens?

No, it cannot.

What are the two main clauses related to freedom of religion?

Establishment Clause, Free Exercise Clause

What is the establishment clause?

Prohibits the government from establishing a religion OR endorsing/supporting religion

What level of scrutiny applies to laws that discriminate against religion?

Strict Scrutiny

What is the free exercise clause?

It prohibits the government from interfering with the exercise of religion

Are laws that cause unintentional burdens on religion constitutional? Examples?

Yes, they care. Sacrificing chickens and the use of Peyote.

Is the right to not speak protected under the 1st Amendment?

Yes, and the right to anonymous speech.

What is Content-based restrictions?

Government regulations regarding the content of speech (subject matter or viewpoint).

What level of scrutiny applies to content-based restrictions?

Strict scrutiny

What is content-neutral restrictions?

Government regulations on time, place and manner of content-neutral speech.

What level of scrutiny applies to content-neutral restrictions?

Intermediate Scrutiny

What is a public forum? Examples?

Place traditionally available to the public for speech (parks, streets, public sidewalks)

What is a designated forum? Examples?

A place not traditionally made available to the public for speech, but the government chose to make it available (school makes a classroom open for meetings)

What is a limited forum? Examples?

Non-public forums that were specifically designated by the government as open to certain groups or topics (municipal meeting room)

What is a non-public forum? Examples?

Public places traditionally limited for speech (military bases, schools, jails)

Can a government regulate speech in a limited or non-public forum? Criteria?

Yes if (1) reasonable, and (2) viewpoint neutral

Are fighting words protected speech?

No, generally not.

What are fighting words?

By their very utterance, they are meant to (1) inflict injury, OR (2) incite an immediate breach of peace.

What are the three criteria for speech that is an incitement of imminent lawless action?

Advocates use of force b. Directed to incite imminent lawless action c. Likely to incite such action

Is obscenity protected speech?

Generally not

What are the three elements of obscene material?

Appeals to sexual interest of average person of community, Is offensive, Lacks any serious artistic, literary, or scientific value

Can possession of obscene material be made illegal? Exceptions?

No it cannot. An exception is child pornography.

Can a government regulate commercial speech?

Yes, they can.

Can a public school regulate speech?

More so than other areas. Yes, if it shows that the conduct regulated would materially and substantially interfere with the operation of the school.

If a government employee speaks pursuant to their official duties, is the speech protected?

No, it is not.

Is expressive conduct through non-verbal actions treated the same as verbal speech?

Yes, it is.

If a government employee did not speak as a citizen on a matter of public concern, is the speech protected?

No, it is not.

What is prior restraint?

Government attempts to prohibit speech before it happens through a court order or licensing requirement

Is prior restraint constitutional?

Generally not. Unless it is a very limited circumstance (national security at stake). Strict scrutiny will apply,.

What are the procedural safeguards for licensing? (Three of them)

Government has an important reason, Specific, articulated standard to remove discretion, AND Procedural safeguards are in place, including a judicial decision when a license is denited.

What is vagueness?

Doesn’t put the public on reasonable notice as to what is prohibited.