Glossary of NY Bar Exam Constitutional

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what are the 4 juscitciability requirements for Federal courts to acquire jurisdiction?
1. Standing
2. Ripeness
3. Not moot
4. Not a political question
What is standing to bring a case to federal courts?
Standing is the question of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
What is required to show standing?
1. Injury personally suffered
2. The plaintiff must allege and prove that the defendant caused the injury
3. no thrid party standing
4. no generalized grievances
What will the federal courts consider before preenforcement reivew or declaratory judgement?
1. The hardship that will be suffered without preenforcement review.
2. The fitness of the issues and the record for judicial review.
If a federal lawsuit becomes moot because the Plaintiff no longer has a live controversy or an ongoing injury, the case will be dismissed. what are the 3 exceptions to this rule?
1. wrong capable of repetition but evading review in respect to the plaintiff. For example, Roe v. Wade dealing with abortions.
2. voluntary cessation - If defendant voluntarily halts the offending practice but is free to resume it at any time.
3. class action suits. Even if the named plaintiff's claim becomes moot, so long as one member of the class has an ongoing injury.
What are the four types of alleged constitutional violations that the federal courts will not adjudicate becuase they are political questions?
1. The “republican form of government clause.”
2. Challenges to the President's conduct of foreign policy. eg Vietnam War (it was claimed the President waged war without a war declaration by Congress); treating Hong Kong not as a Chinese territory in violation of a treaty
3. Challenges to the impeachment and removal process
4. Challenge to partisan gerrymandering.
In what court can the government of one state sue another?
The Supreme Court has original and exclusive jurisdiction for suits between state governments.
How are virtually all cases brought to the Supreme Court of the US?
By writ of certiorari. The Supreme Court has discretion whether to grant certiorari or not. It requires 4 justices to grant certiorari.
what is the only appellate power remaining with the US Supreme Court today?
Appeals exist for decisions of 3-judge federal district courts.
What is the final judgment rule for appeals to the US Supreme Court?
Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court, of a United States Court of Appeals, or of a 3-judge federal district court.
Can a case dealing with a matter of state law be appealed to the USSC?
No. the Supreme Court cannot adjudicate a state law decision.
Can the USSC hear an appeal of a state court decision that rests on two grounds, one state law and one federal law?
if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it.
Can a state be sued in the federal courts?
No. The 11th Amendment bars suits against states in federal court.
Can state officers be sued in the federal courts?
- State officers may be sued for injunctive relief
- State officers may be sued for money damages to be paid out of their own pockets
- BUT - State officers may NOT be sued if the state treasury will be paying retroactive damages
Does Congress have a general federal police power?
Congress has a MILD police power - it can be exercised only in respect to:
i. Military.
ii. Indian reservations.
Iii. Federal Lands and territories.
iv. District of Columbia.
What does The necessary and proper clause state?
Congress may use any means not prohibited by the Constitution to carry out its authority.
what is the The taxing/spending power of Congress?
Congress may tax and spend for the general welfare
Congress can enact any tax to raise revenue. It can spend as it wants, if it believes it serves general welfare
what is the The commerce power of Congress?
i) Congress may regulate the channels of interstate commerce.
ii) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce.
iii) Congress may regulate activities that have a substantial effect on interstate commerce.
can Congress compel state regulatory or legislative action?
For example, requiring states to clean nuclear waste or requiring states to do background checks on people requesting license to carry firearm?
Can congress induce state government action by putting strings on grants?
Yes - exception to 10th amendment - so long as the conditions are expressly stated and relate to the purpose of the spending program.
Can congress prohibit harmful commercial activity by state governments. For example, the law prohibiting states from selling DMV information?
Yes - exception to 10th amendment
What limits exists on Congress’ ability to delegate legislative power to executive agencies or even to the judiciary?
None. The delegation must contain:
a. Clear criteria.
b. Intelligible standards.
But since 1937 no delegation of power by Congress was found unconstitutional.
What is required to constitute an act of Congress?
1. bicameralism (passage by both the House and the Senate); and
2. presentment (giving the bill to the President to sign or veto.) The President must sign or veto the bill in its entirety.
If a treaty conflicts with a state law, which prevails?
Treaties prevail over conflicting state laws.
If a treaty conflicts with a federal law, which prevails?
If a treaty conflicts with a federal statute, the one adopted last in time controls.
If a treaty conflicts with the US constitution, which prevails?
If a treaty conflicts with the United States Constitution, it is invalid.
What is an Executive Agreement?
An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation. There is no need to ratification by Senate (as there is for treaties)
What is the difference between an executive agreement and a treaty?
1. Both are negotiated by the president, but Treaties must be ratified by the senate, executive agrements are not.
2. both can deal with any subject matter
3. Both prevail over state law, but only a treaty can prevail over a federal law that predates it. Neither prevail over the constitution.
What are the president's powers with respect to the use American troops in foreign countries?
The President has broad powers as Commander-in-Chief to use American troops in foreign countries
The SC has never intervened in such actions.
typically the SC holds the case is unjusticiable on account of the political question doctrine.
Can congress give itself the power to appoint members of an executive agency?
No. The President appoints ambassadors, federal judges and officers of the United States
Senate needs to approve the appointment, but the President is the one with the power to appoint.
Can the President pardon individuals convicted of a state law crime?
No. Only federal crimes.
If a Federal statute says that it wholly occupies the field, can a state pass a law dealing with the same field?
No. Express preemption: If a Federal statute expressly says that Federal law wholly occupies the field, then state and local law are preempted.
If a federal and a state law are mutually exclusive, which prevails?
If federal and state law are mutually exclusive, federal law preempts state law.
Can a state set environmental laws stricter than the Federal standards?
Yes - unless Congress clearly prohibits this.
does the Federal government have to comply with state pollution control law?
No. States may not tax or regulate federal government activity (inter-governmental immunity).
-- It is unconstitutional to pay state tax out of Federal Treasury
Can state laws deal with interstate commerce at all?
The dormant commerce clause: state or local law are unconstitutional if they place undue burden on interstate commerce.
Can a state deny citizens of other states of the privileges and immunities it awards its own citizens?
No. The privileges and immunities clause of Article IV prohibits this.
what is the undue burden test for local laws dealing with interstate commerce?
if the law does not discriminate against out-of-staters, then If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.
if it does discriminate against out-of-staters, it violates the dormant
commerce clause unless it is necessary to achieve an important government purpose.
what is the the Privileges and Immunities Clause of Article IV?
• Applies to state laws that discriminate against out-of-staters with regard to civil liberties or important economic activities
Corporations and aliens cannot sue under it
what is the the dormant commerce Clause of Article IV?
Applies to laws that burden interstate commerce
• Does not require discrimination against out-of-staters in order to apply
• Corporations and aliens can sue under it
• Exceptions: Congressional approval and the market participant exception
How can states tax businesses that operate in more than one state?
State taxation of interstate businesses must be fairly apportioned.
Meaning the state can only tax the amount apportioned to it in accordance with the ratio between the in-state business and the entire business.
what are the 3 requirements for a state to give full faith and credit to the judgements of another state?
1. The court that rendered the judgment had jurisdiction over the parties and the subject matter.
2. The judgment was on the merits.
3. The judgment is final.
Can states use their tax systems to help in-state businesses, eg by giving credit for goods manufactured in-state or charging a lower tax for in-state manufactured goods?
Can the constitution ever apply to a non-governmental actor?
The 13th Amendment can be used to prohibit private race discrimination.
if Congress enacts statutes under it); only slavery directly violates it.
2. The commerce power can be used to apply constitutional norms to private conduct.
3. a. The public function exception. The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government.
4. b. The entanglement exception. The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
Does the constitution apply when the government leases premises to a restaurant that racially discriminates?
Does the constitution apply when a private school that is more than 99% funded by the government fires a teacher?
is there a state action when a private entity regulates interscholastic sports within a state?
is there a state action when a private club with state liquor license racially discriminates?
Is there a state action when the NCAA order the suspension of a basketball player in a state university?
No. The NCAA is a private organization.
To whom does the Bill of rights apply?
The Bill of Rights applies directly only to the federal government
The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment.
What are the levels of scrutiny a court will apply when determining whehter a state law is constitutional?
1. rational basis test
2. intermediate scrutiny
3. strict scrutiny
What is the rational basis test applied when determining whehter a state law is constitutional?
A law will be upheld if it is rationally related to a legitimate governmental purpose.
The challenger has the burden of proof;
What is the inermediate scrutiny test applied when determining whehter a state law is constitutional?
A law will be upheld if it is substantially related to an important governmental purpose.
The government's goal has to be not only legitimate but also important and it has to be the actual goal.
The means need to be a narrowly tailored way to achieve the goal. But it does not have to be the best means or the least restrictive alternative.
The government has the burden of proof.
What is the strict scrutiny test applied when determining whehter a state law is constitutional?
A law will be upheld if it is necessary to achieve a compelling governmental purpose.
The government's objective has to be vital, compelling. The court will look only to the actual purpose.
The means have to be the least restrictive alternative, i.e. the best way and not just a narrowly tailored way to achieve the purpose.
This is the most exacting scrutiny and the government has the burden of proof.
What is the threshold test for a procedural due process claim?
Has the government deprived a person of life, liberty (a significant freedom secured by the Constitution or Statute), or property (an entitlement to a continued receipt of a benefit)?
what is substantive due process?
The government has adequate reason to take a person's liberty or property. Used in 2 areas: Protect economic liberty and safeguard privacy.
What level of protection is provided by the constitution for economic liberties?
The Constitution provides only minimal protection for economic liberties.
Only a rational basis test is used for laws affecting economic rights.
Under what circumstances can a government regulation be considered a "taking" that requires just compensation?
Government regulation is a taking if it leaves NO reasonable economically viable use of the property.
Only decreasing the value is not enough.
When are goverment regulations regarding property development considered a taking that requires just compensation?
Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.
can a property owner bring a takings challenge to regulations that existed at the time the property was acquired?
How is just compensation for a taking measured?
Just compensation is measured by the loss to the owner in reasonable market value terms and not the gain to the taker; the gain is irrelevant (hence no loss since property was worthless to the owner, no compensation).
What is the contracts clause of the constitution?
The contracts clause. No state shall impair the obligations of contracts.

i. Applies only to state or local interference with existing contracts. Meaning it never applies to Federal conduct. But such Federal conduct may violate the due process clause of the 5th Amendment.
What is a bill of attainder?
a law that directs the punishment of a specific person or persons without a trial.
What is the standard of review for laws that interfere with the right to privacy?
Privacy is a fundamental right protected under substantive due process. Hence strict scrutiny is the standard of review.
What are the constitutional provisions concerning equal protection?
1. The equal protection clause of the 14th Amendment applies only to state and local governments; never the Federal government.
2. Equal protection is applied to the federal government through the due process clause of the 5th Amendment.
As a result the same protection applies, only based on different legal basis.
If the law is facially neutral, how is a racial classification proven?
by demonstrating both discriminatory impact and discriminatory intent.
For example, suppose that in order to join the police a certain test is in order, which most blacks fail. There is clearly a discriminatory impact. But the SC held this is not enough and there must be proven discriminatory intent as well. In the absence of such intent, the level of scrutiny is of rational basis test.
What is the standard of review for laws that provide for racial/ national origin classification?
Strict scrutiny
How are racial classifications benefiting minorities treated?
Strict scrutiny is applied.
- Numerical set-asides require clear proof of past discrimination. And then the affirmative action needs to be only to the extent of remedying the past discrimination.
- Educational institutions may use race as one factor in admissions decisions to help minorities, but cannot add points solely based on race.
- seniority systems may not be disrupted for affirmative action purposes.
What is the standard of review for laws that provide for gender classification?
Intermediate scrutiny is used. But the SC added to the test the requirement of "an exceedingly persuasive justification".
If the law is facially neutral, how is a gnder classification proven?
If the law is facially neutral, proving a gender classification requires demonstrating BOTH discriminatory impact and discriminatory intent.
For example, having a height and weight requirement for joining the police, which only 2% of the women population meets. The test is rational basis test, unless discriminatory intent is shown.
How are gender classifications benefiting women treated?
a. Intermediate scrutiny.

b. Gender classifications benefiting women that are based on role stereotypes will not be allowed.
The reason is that such actions perpetuate these stereotypes. For example, a law determining only women are entitled to alimony and men aren't.
Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.
For example, a regulation in the navy determining a man that hasn't been promoted in 6 years must leave the navy, but the period for a woman is 10 years.
How are classifications based on alienage treated?
1. Generally, strict scrutiny is used.
Examples for unconstitutional laws: Have to be US citizen to receive welfare benefits.
Only a rational basis test is used for alienage classifications that concern self-government and the democratic process.
The government may discriminate aliens in the case of: Voting, Serving on a jury, Being a police officer
What level of scrutiny is applied to durational residency requirements for receiving benefits?
strict scrutiny.
Can voters approve a plan that deviates from the one-person, one-vote rule?
are At-large elections constitutional ?
yes - unless there is proof of a discriminatory purpose.
At large election is an election in which all of the voters vote for all of the positions. Again racial impact is not enough.
When is a law that controlls speech unconstitutionally vague?
Vagueness. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
For example, a law forbidding sale of books which "may corrupt teen morals".
What speech is uprotected or less protected by the 1st amendment?
1. Incitement of illegal activity.
2. Obscenity and sexually-oriented speech
3. commercial speech
How can the government regulate commercial speech?
a. False and deceptive ads are not protected by the 1st Amendment.
b.True commercial speech that inherently risks deception can be prohibited.
Other commercial speech can be regulated if intermediate scrutiny is met.
Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
If the plaintiff is a public official or running for public office, what do they need to show in order to recover for defamation?
falsity of the statement and actual malice.
Plaintiff has to prove these with clear and convincing evidence.
Actual malice means defendant knew the statement was false or acted with reckless disregard of the truth.
If the plaintiff is a public figure what do they need to show in order to recover for defamation?
proving falsity of the statement and actual malice. (does not have to be clear and convincing evidence)
A public figure is somebody who throws himself at the limelight (i.e. celebrities).
If the plaintiff is a “private figure” and the matter is of “public concern,” what do they need to show in order to recover for defamation?
proving falsity and negligence by the defendant. However, the plaintiff may recover presumed or punitive damages only by showing actual malice.
If the plaintiff is a “private figure” and the matter is NOT of “public concern,” what do they need to show in order to recover for defamation?
the plaintiff can recover presumed or punitive damages without showing actual malice.
The SC has still to determine who has the burden of proof in this case in respect to the truthfulness of the statement.
if the media broadcasts a tape of an illegally intercepted call and did not participate in the illegality, can they be held liable?
Not if it involves a matter of public importance
Can the government pass laws prohibit the KKK from exclude blacks; or the Boy Scouts from excluding gays?
No. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or EXPRESSIVE activity.
What does the establishment clause provide?
The government cannot discriminate against religious speech or among religions unless strict scrutiny is met.

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