MBE Con Law
Order by
176 terms
Terms | Definitions |
|---|---|
 jurisdiction of article III federal courts limited to | cases and controversies |
| article I courts | tax courts, DC courts are vested with administrative and judicial functions |
| power of judicial review | marbury v madison- held that supreme court may determine the constitutionality of acts of other branches of govenment |
| jurisdiction of supreme court | extends to all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party; congress may neither enlarge nor restrict but may give concurrent jursidiction to lower federal courts |
| two statutory means of SCOTUS review | 1. APpeal (mandatory) applies to decision of 3 judge federal district courts 2. certiorari - (4 or more justices vote to hear case) - cases involving federal law issues and courts of appeal cases |
| judicial review: standing | concrete personal stake in the outcome (injury in fact) - specific, not theoretical, injury must arise from government conduct being complained of |
| flast v cohen | federal taxpayer has standing to make an establishment clause challenge to an expenditure which exceeds some specific limitation on the taxing and spending power |
| exception to mootness | capable of repetition yet evading review (pregnancy, elections) |
| 11th amendment | state cannot be sued in federal court without consent, but state officials may be sued for federal law violations local governments can be sued US may sue a state and congress can remove state's immunity (like for civil rights violations) |
| doctrine of enumerated powers | feds only have authority granted express or implied by Constitution 10th amendment - powers not delegated are retained by states (protect health, safety, welfare, morals) |
| necessary and proper clause | grants congress the authority to carry into execution any enumerated power; not an independent source of power |
| commerce power | plenary power which regulated both interstate and foreign commerce |
| affectation doctrine | regulates any activity which has a substantial economic effect on stream of interstate commerce |
| cumulative impact doctrine | even an entirely intrastate commercial or economic activity which has a cumulative impact on interstate commerce may be regulated |
| taxing and spending power | plenary power to tax and spend for the general welfare congress can attach strings to federal appropriations, thereby regulating indrectly where it cannot legislate directly |
| taxing power of Congress | a federal tax is valid if the dominant intent is fiscal, direct taxes must be apportioned, indirect taxes must be geographically uniform |
| "legislative veto" | congress can delegate legsialtive power to executive and administrative agencies, but cannot subsequently retract it (INS v Chadha) |
| appointment powers | president can appoint purely executive officers, ambassadors, public ministers and supreme court judges with advice and consent of senate congress may not appoint members of bodies having administrative or enforcement powers |
| removal powers | constitution is silent; president may remove purely executive officers (Cab.) without cause but good cause is required to remove admin. official with fixed terms congress has no power of summary removal |
| veto power | president has 10 days to exercise his veto, which may be overridden by 2/3 vote of each house |
| president and impounding funds | president has no power to impound funds |
| pardon power | extends only to federal crimes, not state crimes --cant be used for cases of impeachment |
| executive privilege | to refuse to disclose information, privilege must yield to important government interests |
| civil suits against pres. | absolute immunity in civil suits for damages based on actions taken while in office |
| foreign policy power of president | may establish military govt in occupied territory treaties with 2/3 consent (advice and consent of senate) |
| executive agreements | informal means by which pres. can conduct day to day economic and business between foreign countries without senate consent |
| intergovernmental immunities | states can't tax feds, except fed employees states not immune to suit by feds feds may not compel states to enact regulatory program (nuclear waste, NY vs US) |
| dormant commerce clause | negative implications doctrine - where congress has not otherwise regulated, the states are free to regulate interstate commerce is 1. nondiscriminatory, 2)not unduly burdensome (interests balanced against burden on commerce such that no alternative less restrictive alternative exists) |
| market participation doctrine | where the state uses its own taxpayer funds to create the market, it may favor its own citizens with subsidies and hiring preferences |
| state taxation of interstate commerce | state tax must be reasonable and nondiscriminatory to satisfy the commerce clause and substantial nexus must exist between the state interest and the activity being taxed - good in the stream of commerce are exempt from state taxation, but may be taxed at beginning and end of transit |
| supremacy clause | field preemption- any state law in an area congress intends to occupy the field is unconstitutional conflict preemption - any state law in actual conflict with a federal law will be unconstitutional (where federal law only establishes minimum standards, states may afford greater protection by enacting stricter laws than required by federal standards) |
| bill of rights : selective incorporation | under the 14th amendment due process clause, most bill of rights limitations are applicable to the states except 2: right to a grand jury in criminal cases and right to jury trial for civil cases |
| retroactive legislation | contracts clause: prevents states from enacting legislation which retroactively impairs obligation of public or private contracts ex post facto- can't make criminal conduct that was not a crime when committed bill of attainder - legislative punishment of a named group or individual without judicial trial |
| state action: public function | where a private entity is performing activities traditionally and exclusively carried on by the state |
| state action: significant state involement | public school system: use of sate owned textbooks by private school, symbiotic relationship where state facilitiates, encourages, or authorizes discrimination in areas such as housing, employment, or essential services |
| licensing by state, state action>? | no |
| procedural due process | procedural safeguards of notice and a hearing are availabel whenever there is a serious deprivation of any life, liberty or property procedure- the court balances the severity of harm to the individual against the admin. costs of the govt to determine what if any safeguards are required |
| takings | private property may not be taken for public use without just compensation: eminent domain and inverse condemnation require compensation but exercise of state police power regulation does not |
| "per se taking" | a confiscation or a physical occupation or a regulation which denies the owner all reasonable economically viable use: balancing test determines whether taking has occurred when there is no per se taking |
| substantive due process: economic regulation | economic - must meet rational basis |
| substantive due process - fundamental rights | STRICT SCRUTINY right to vote or be candidate, right to travel, right to privacy (CAMPER) contraception, abortion, marriage, procreation, education, relations |
| equal protection | where persons similarly situated are treated differently |
| 3 standards of review for equal protection- strict scrutiny | strict scrutiny (likely to fail) - protected 1st amendment cases, suspect classes (race, alienage, origin), fundamental rights (vote, travel, privacy) |
| equal protection - intermediate scrutiny | burden on state to show the law is substantially related to an important interest 1)gender 2)illegitimacy purposeful discrimination required; affirmative action permitted subject to middle-tier test |
| equal protection - rational basis | burden is on plaintiff to show the law is not rationally related to any legitimate interest, applies to all other classifications including 1) poverty 2) age 3)retardation 4)necessities of life 5) economic and social welfare (govt usually succeeds) |
| freedom of religion: free exercise | free exercise - individuals religious beliefs are absolutely protected; conduct in furtherance may be regulated a law that discriminates against religious conduct is subject to STRICT SCRUTINY (can't use peyotee, Oregon v Smith) |
| establishment clause | govt may not aid or prefer one religion or sect over another STRICT SCRUTINY review Lemon Test: 1)secular purpose 2)doesn't primary advance or inhibit religion 3)no excessive entanglement with religion |
| 4 attacks on regulation of free speech | 1) overbreadth (punishes protected speech as well as unprotected) 2)vagueness (statute is so unclearly defined that persons of ordinary intelligence must guess at its meaning) 3)prior restraint (restriction in avdance of publication generally invalid, except national security 4)unfettered discretion (where licensing official has unfettered discretion whether to convey or deny permit) |
| essay approach to freedom of speech: content specific | ask: is action content specific? strict scrutiny if protected - have to show compelling interest unprotected: clear and present danger, defamation, child porn, fighting words |
| essay approach to freedom of speech: content neutral | (regulation does not depend on the speaker's identity, message, or viewpoint) time place and manner = 3 part test 1)further significant gov't interest (safety, etc) 2)narrowly tailored (no more restrictive than necessary) 3)leave open alternative channels of communication |
| freedom of association | public employment/bar membership may not be denied based upon group affiliation unless 1)knowing and active member of subversive group 2)specific intent to further group's unlawful objectives -- loyalty oaths (generally invalid as condition for employment, except for uphold const. oath) --disclosure requirements (to avoid a chilling effect on first amendment, disclosure not necessary unless govt could make membership illegal) |
| freedom of the press | --right of access (both public and press have a right to attend trial, unless overriding gov't interest) --newsperson privilege (no privilege exists to refuse to disclose confidential sources to grandjury, unless state shield law exists) --broadcasting (may be regulated more closely than press due to frequency, for instance equal time on tvs (but not equal space in newspapers) |
| 6 forms of speech that may be regulated without strict scruinty analysis | --clear and present danger 1(directed at imminent unlawful action 2)likely to produce --defamation --obscenity --child porn --fighting words --freedom not to speak (dont have to pay pledge of allegiance, can cover motto on licdnsd plzgd |
| obscenity test | miller v california 1)appeal to prurient interest in sex applying contemporary community standards 2) depict sexual conduct in offensive way 3)lack serious literay, artistic, political, or scientific value |
| time, place, manner restriction of speech | reaosnable restriction may be permitted public forums, 3 step test: 1)further significant gov't interest (safety, etc) 2)narrowly tailored (no more restrictive than necessary) 3)leave open alternative channels of communication --nonpublic forums (jails/billboards/military) - regulation must be 1)viewpoint neutral 2)reasonably related to government interest |
| regulation of speech in nonpublic forum (jails/airports/etc) | regulation must be 1)viewpoint neutral 2)reasonably related to government interest |
| speech licensing statutes | to be valid a licensing shceme must relate to important govt objective, be clearly written, narrowly drawn, and reasonably regulate if statute is valid - can't speak unless license, have to challenge in court first if invalid - speaker may ignore if injunction is issued - must obey even if its invalid, and appeal - no defense to contempt charge |
| 2 basic approaches to free exercise | purposeful interference -> apply strict scrutiny incidental burden -> rational basis |
| vice advertising restrictions | regulation must 1)directly advance 2)substantial govt interest 3)narrowly tailored |
| abortion regulation | (casey) state may regulate abortion provided no undue burden on right to obtain abortion |
| election funding regulation | total spending limits by a candidate = unconstitutional individual campaign contribution limits, constitutional if reasonable |
| supercession doctrine | federal law will supercede any state law in direct conflict |
| generally wrong answers, 6 things | 1)general welfare clause 2)necessary and proper clause 3)14th amendment P & I 4)contracts clause 5)distinction between rights and privilege 6)10th amendment, except New York v Us (forced nuclear regulation program) |
| the jurisdiction of the federal courts is limited to: | 1)cases in law and equity arising under the Constitution 2)ambassadors and consuls 3)admiralty and maritime 4)case between two or more states 5)US is a party 6)state and citizens of another state 7)citizens of different states |
| the 11th amendment prohibits... | the citizens of one state from suing their own state or another state on federal claims for money damages, in federal court, without state's consent |
| exceptions to the 11th amendment: | 1)suits against state officials 2)federal suits brought by one state against another state 3)suits for injunctions to enjoin a state official from violating constitutional rights |
| although advisory opinions are banned, declaratory judgments may be made which are... | a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief |
| ripeness bars consideration of claims if... | they haven't fully developed court will consider hardship of withholding court consideration |
| if state criminal proceedings are pending.... | the federal court will abstain in a suit seeking an injunction against the state prosecution, absent a showing of bad faith harassment on the part of the state prosecutors 1)where state civil proceedings had commenced 2)where civil contempt hearings had begun |
| a third party can raise constitutional rights of another in 2 circumstances: | 1)special relationship -- because of connection between interests of claimant and constitutional rights of 3rd party 2)3rd party unable or has difficulty bringing suit |
| 6 factors for determining if political question: | 1)textual constitutional commitment to political dept. 2)lack of judicial standards for resolving 3)impossibility of deciding without policy determination 4)impossibility of a court's undertaking independent resolution without lacking respect to branch 5)unusual need for unquestioning adherence to political decision 6)potential for embarrassments |
| justiciability acronym RAMPS | 1)ripeness 2)advisory opinions 3)mootness 4)political questions 5)standing |
| if state supreme court already has interpreted an issue, SCOTUS... | will defer to that decision |
| if state law has not been interpreted by that state yet, SCOTUS will... | decide based on how it predicts state court would interpret |
| grounds for certiorai are: | --conflicts between different federal courts of appeal --conflicts between highest courts of two states --conflict between highest state court and federal court of appeals --state courts and appeals court involving yet unresolved issued |
| although a state court decision may involve a federal question, if the state court judgement can be supported on an ..... | adequate and independent state ground, SCOTUS will not take jurisdiction |
| "adequete and independent state ground" removes jurisdiction for... | ONLY scotus, not federal courts generally |
| if a plaintiff loses in state court for failing to comply with procedural rule... | if supreme court finds state procedure to be adequate, (fundamentally fair) then doctrine will also apply to foreclose supreme court review |
| a congressional act purporting to be a tax should be upheld as a valid exercise of the taxing power if: | 1)does in fact raise revenue 2)was intended to raise revenue |
| even when congress does not have the power to regulate a taxed activity... | tax will be upheld if "dominant intent" is revenue-raising if does have power, tax can be used as regulating device still |
| general welfare clause has been construed as... | a limitation on taxing and spending powers, not an independent power |
| congress may place a condition on receipt of federal funds by a state if: | 1)spending serves general welfare 2)condition is unambiguous 3)condition relates to the federal program 4)state not required to undertake unconstitutional action 5)amount in question is not so great to be coercive |
| in court martial proceedings, the safeguards are.. | uniform code of military justice, not the bill of rights --military courts have jurisdiction over serviceman |
| although congress does not have any express constitutional power to investigate... | the necessary and proper clause permits congress to conduct investigations incident to legislative power |
| congress may use eminent domain to take power if... | public use and just compensation |
| speech and debate clause protects legislators from... | criminal or civil proceedings for legislative acts --only for acts that occur in regular course of legislative process |
| congress has power to enforce the 13th amendment, which... | bans slavery |
| congress may enforce 14th amendment, by | prohibiting states from violating due process, equal protection, and privileges and immunities |
| congress may enforce the 15th amendment, which... | prohibits states from discriminating against voting rights |
| to enforce the 14th and 15th amendments, congress must show that | 1)widespread violations by state 2)remedy is congruent and proportional to violation |
| the president has excluive power to nominate high level officials such as cabinet members. the senate... | has power to confirm or reject thos enominees |
| may congress delegate the appointment of lesser officers, such as judiciary or dept. heads to pres.? | yes |
| with respect to officer removal power, it is generally agreed that.... | the president may remove any executive appointee without cause |
| if the president wishes to remove executive officers with fixed terms or those with judicial functions, he,... | must have good cause |
| once congress has passed legislation and presented it to the president... | president has 10 days to act upon it, may veto or do nothing and it becomes law |
| if a bill is passed within 10 days of the end of the congressional term... | the president must sign it within 10 days, or it won't become a law |
| a veto may be overridden by | 2/3 vote of senate and 2/3 vote of house |
| when a treaty and federal statute conflict on the issue in question.... | time determines the controlling authority, with last in time controlling |
| if state law is inconsistent with executive agreements... | executive agreement is valid and prevails |
| what kind of ratification do executive agreements need from congress? | none but executive agreements cant prevail over federal statutes |
| impeachment is imposed for... | treason, bribery, or other high crimes and misdemeanors house of representatives has the sole power to impeach, but senate votes for conviction (2/3) |
| if congress directs president to spend appropriated president... | he must do it, he has no power to impound the funds |
| the constitution limits the state's police powers by: | 1)reserving certain enumerated powers for feds. 2)restricting both federal and state gov't in violation of constitution 3)if congress enacts legislation to preempt state law |
| if a state is sued by feds or other state... | goes straight to supreme court |
| a state enjoys immunity from federal taxation if the tax is either: | 1)unique state activities 2)essential government functions |
| anti-commandeering doctrine | 10th amendment prohibits feds from using power to force state legislature to pass a law or state official to administer federal program |
| if a state law discriminates on its face between instate and out of state economic actors, the state must show: | 1)regulation serves a compelling state interest 2)the regulation is narrowly tailored to serve that interest |
| if a state incidentally burdens interstate commerce, state must show: | 1)the regulation serves an important state interest 2)the burden of interstate commerce isn't excessive in relation to the interest served |
| exceptions to dormant commerce clause: | 1)congress may authorize 2)when states act as market participants, can prefer in-state business |
| 4 rules for state's taxing interstate commerce | 1)substantial nexus between activity and state 2)tax fairly apportioned 3)tax must not discriminate against interstate commerce 4)fairly related to services provided |
| a sales tax is valid only if... | sale of goods is consummated instate, not if seller delivers goods to out of state buyer |
| ability to collect use tax depends on.. | whether the interstate seller who receives goods from outside the state has a sufficient nexus within taxing state |
| "doing business" taxes must.... | relate to the benefits conferred by taxing state upon interstate business |
| net income taxes may be applied by the state upon a company engaining in interstate commerce as long as: | 1)fairly apportioned 2)significant nexus 3)non-discriminatory |
| a flat license fee, or a fee levied by state upon people who solicit local orders and then fill them out of state and ship from another state... | are unconstitutional |
| a license tax on a traveling salesperson is valid when... | a state levies it upon a seller who actually sells and delivers the product within the state |
| "state action" can be found in the actions of private actors under 2 theories: | 1)public function theory - traditionally gov't activities 2)significant state involvement or endorsement |
| if congress implements minimum standards... | the states are free to enact more stringent standards |
| for due process, "persons" include... | corporations and aliens, not just citizens |
| 5th amendment due process guarantees: | fundamentally fair procedural safeguards 1)private interest affected 2)risk of an erroneous deprivation 3)govt interest including the function and fiscal burdens that additional procedure would entail |
| if a law has an irrebuttable presumption... | this will violate 5th amendment procedural due process |
| best answer when private individuals who do not qualify as state actors discriminate... | 13th amendment |
| frequently, this is the best answer when first amendment right of free speech or religion is not offered as a choice.. | 14th amendment |
| if a state revokes a contract to which it is a party, this evokes... | contract clause |
| if a state passes legislation that improperly burdens or discrmiinates against interestate commerce, the answer should relate to | the dormant commerce clause |
| best choice for an unconstitutional argument state acts, or 2)state does not have grant a hearing or invades privacy rights | due process clause |
| best option when state action interferes with a fundamental interest (right to vote, travel, race, sex) | equal protection clause |
| congress power to spend treasury funds, but not to regulate activity - best answer when voluntary cooperation by party with federal government is the only way to reach result | general welfare power or spending power |
| the only answer when state action v federal action | police power |
| bars states from discriminating against nonresidents on fundamental matters but almost NEVER the correct aswer | privileges and immunities clause |
| best answer where there is a congressional statute or provision conflicting with a state activity | supremacy clause |
| allowed for regulatory purposes if there is a revenue-raising function --best answer if commerce clause isn't an answer | taxing power |
| fundamental rights, substantive due process doctrine now is used to... | evaluation governmental regulations that affect fundamental rights of person hood evokes strict scrutiny review |
| laws that burden the exercise of fundamental rights are strict scrutiny review, examples: | 1)right to vote 2)right to travel 3)right to privacy 4)1st amendment rights 5)family rights 6)other rights referred to as fundamental rights |
| before time of viability... | woman has right to abortion. otherwise, only for life or health of mother |
| are spousal notification or consent laws allowed for abortion? | no |
| a parental consent for abortion law is allowed if... | state established judicial bypass with consent of judge instead of parent |
| may a state prohibit use of public facilities or publicly employed staff from performing abortions? | yes |
| if law bars same sex sex? | it will be unconstitutional because of no legitimate state interest |
| the right to possess obscense materials in the privacy of one's home is protected, but... | the government can severely restrict the sale, purchase, receipt, transport, and distribution of obscene materials |
| the right to die is not... | a fundamentally right, but a right to not be forced to undergo life support |
| if a government benefits program requires residency duration... | it will be subject to strict scrutiny |
| the right to international travel is subject to... | reasonable restrictions |
| whenever the government attempts to redistrict.... | fairly exact mathematical equality between districts is required so as to not dilute fundamental right to vote |
| private property can be taken for public use if... | just compensation 1)direct government appropriation 2)regulatory taking 3)temporary restrictions 4)conditional permits |
| equal protection review is triggered where... | similarly situated persons are treated differently no state shall "deny equal protection" 14th amendment |
| strict scrutiny applies to.. | governemtn action that uses suspect classifications (race, national origin) |
| strict scrutiny test is... | must be necessary to further a compelling interest |
| under intermediate scrutiny, burden is on government or prove.. | substantially related to achievement of an important gov't interest |
| intermediate scrutiny applies to ... | gender and illegitimacy |
| rational basis applies to | all classifications not strict or intermediate, such as age, wealth, disability, etc. |
| rational basis standard is... | plaintiff has burden to show no legitimate government interest |
| _____ must be shown to trigger strict or scrutiny | discriminatory INTENT |
| only justifications for upholding affirmative action: | 1)remedying the effect of past or present discrimination 2)achieving a diverse student body in an institute of higher ed. |
| affirmative action based on gender must meet... | intermediate scrutiny standards |
| privileges and immunities clause protects right t: | 1)travel 2)petition congress 3)vote 4)enter public lands 5)protected while in custody of US marshalls 6)assembly |
| the ______ clause prohibits states from discriminating against non-residents | comity clause |
| contract clause applies only to.. | state legislation, and not to state court decisions or federal government |
| a private contract may be modified by state legislature when: | 1)necessary to serve an important and legitimate public interest 2)reasonable and narrowly tailored |
| a statute will be considered ex post facto if: | 1)not a crime when it was committed 2)prescribes greater punishment for a crime after commission 3)decreases amount of evidence required for conviction 4)extends the statute of limitations for a crime as to which the previously applicable SOL has expired |
| things considered to be bills of attainder: | 1)legislative act 2)inflicts punishment 3)without a judicial trial 4)upon named individuals or an easily ascertainable group 5) for past conduct |
| if a government program preferred one religion over others, then... | strict scrutiny will be applied |
| if religious suit, but no explicit preference for a religion, then apply lemon test: | 1)secular legislative purpose 2)principal or primary effect or purpose must neither advance nor inhibit religion 3)must not foster excessive entanglement with religion |
| as a general rule, religious activities in public schools... | will violate the establishment clause because their primary purpose is to promote religion |
| if an individual's conduct is motivated by religious belief... | state may regulate or prohibit if neutral in respect to religion and neutral application --strict scrutiny applied and unconstitutional unless compelling state interest and narrowly tailored means |
| a law that regulates conduct creating an incidental burden on speech is allowable if... | 1)further important government interest 2)restriction on speech is no grater than essential for furtherance of interest |
| a regulation which relates to unprotected speech is permissible if: | fighting words 1)more than annoying or offensive 2)genuine liklihood of imminent violence |
| for speech to be considered obscene, apply miller test: | 1)contemporary community standards would find it appeals to prurient interest 2)work depicts or describes in a patently offensive way, sexual conduct 3)lacks serious literary, artistic, political or scientific value |
| if speaker is in the government... | government can forbid speech, no 1st amendment protection |
| for slander claim... | if private person, negligent standard if public official, malicious statement |
| commercial speech is protected if... | 1)not false or deceptive 2)does not relate to unlawful activity |
| government regulation of speech must.. | 1)serve substantial government interest 2)directly advance the substantial government interest 3)not be more extensive than is necessary to serve that interest |
| regulation of time place and manner for speech must: | 1)content neutral to subject matter and view point 2)narrowly tailored for important interest 3)leave alternative channels of communication open |
| speech related activities at nonpublic forum, like military, jail, or government buildings can be regulated if.. | reasonable time place and manner 1)viewpoint neutral 2)related to legit interest |
| can an individual be denied public employment based on membership in political organization? | no, unless it's a high level policy making position (unless it's a subversive organization with knowledge of illegal aims and intent to further illegal ends) |
| may government suppress or restrain speech in advance of publication or utterance? | generally, no |
First Time Here?
Welcome to Quizlet, a fun, free place to study. Try these flashcards, find others to study, or make your own.