Con Law

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what is a nonpublic forum: government properties that the government constitutionally can and does close to speech. the government may regulate in non public forums so long as the regulation is reasonable and viewpoint neutral.
other government restrictions based on the CONTENT of speech must meet: strict scrutiny
may congress delegate executive power to itself or its officers?: No! can give its powers but cannot take other's powers- ie-- can not appoint members of a commission or agency with admin powers
can congress apply constitutional norms to private conduct?: yes, by statute. the 13th amendment can be used to prohibit private race discrimination-- nut only w/slavery this is the only constitutional provision that directly applies to private conduct. note-- private discrimination does NOT violate the 13th amendment but it does vioalte federal law adopted under the amendment-- only slavery itself can violate 13th. also 2. commerce power can be used to apply constitutional norms to private conduct. and congress can NOT use section 5 of 14th amendment to regulate private behavior- congress can only regulate state and local governments
government sponsored religious activity in public school is: unconstitutional-- NO SILENT PRAYER, NO MOMENT OF SILENCE, NO CLERGY DELIVERED SPEECH AT GRADUATION, NO STUDENT DELIVERED PRAYER AT FOOTBALL GAME. but, religious student and community groups must have the same access to school facilities ad non religious groups - so if open a room for whatever, jews allowed to go there too
who must approve of president's appointment of officers: the senate - ie officers of the us, fed judges and ambassadors
can the federal government be sued under the contracts clasue: NO WAY EVER (can only be challenged on DP grounds)
when will a deprivation of property occur: when there is a violation of entitlement ( THERE IS NO LONGER A RIGHTS V. PRIVILEGES DISTINCTION!) - need to have an expectation in order for there to be a violation-- ie-- told u will have a year K and fire u half way- violaiton. year to year employment K with no expectation to renew- NO violation NEED A REASONABLE EXPECTATION OF BENEFIT
injury: plaintiff only may assert injuries that they personally have suffered AND plinaitiffs seeking injunctive or declaratory relief must show a likelihood of future harm.
implied preemption: even if texto r federal law is silent, there can be preemption in 3 ways:
what may state do after viability with abortion: may prohinit them unless necessary to protect the woman's life or health
regulations regarding public forums-: regulations must be subject matter and viewpoint neutral or if not, STRICT SCRUTINY MUST BE MET. regulations must be a time, place or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication. -- ie-- making a law stating that no trucks with sound amplifications equitpment are allowed in residential areas are night was upheld
3 ways for implied preemption: 1. if federal and state law are mutually exclusive, federal law preempts state law. 2. if state law impedes the achievement of a federal objective, federal law preempts state law 3. if congress evidences a clear intent to preempt state law, federal law preempts
right to physicial assisted suicide: there is NO CONSTITUTIONAL RIGHT TO THIS!
in alienage classifications which test is used: when u discriminate against non us citizens, use STRICT SCRUTINY (ie-- if only citizens get welfare benefits- unconstitutional. or only us citizens get civil service jobs- unconstitutional) - stricken on strict scrutiny standard
can congress ever appoint?: yes it can appoint inferior officers in the president, the heads of departments or the lower federal courts.
privilege and immunities clause of the 14th amendment: always a wrong answer unless the question involves the right to travel
rational basis -: upheld if rationally related to a legitimate government purpose. challenger has burden and gov usually wins
what is a legislative veto?: when congress tries to overturn an executive action without bicameralism or presentment with the vote of just 1 house
10th amendment: limits congressional powers--all powers not granted to the US nor prohibited to the states are reserved to the state and people respectively
the right to vote: is a fundamental right and laws that deny citizens right to vote must meet strict scrutiny-- poll taxes or property ownership rights are not constitutional
how is the existence of gender classification proven?: 1. either it exists on the fact of the law (ie women can drink at 18 and men at 21) or 2. the law is facially neutral, and proving a gender classigication requires demonstrating both a discriminatory impace And a discriminatory intent (ie- the hypp where firefighters must be 5'10 min and min 150 lbs. very few women r that tall). Note: discriminatory use of preemptory challenges based on gender deny equal protection unless intent is to discriminate women
parents rights to child permanently terminated then-->: ntocie + PRE TERMINATION HEARING
congress cannot compel state regulatory or legislative action but: congress can induce state actionby attaching strings or grants so long as the conditions are expressly stated and relate to the purpose of the spending program
when in the right to travel is a RATIONAL basis used?: restrictions on foreign travel- international travel is not a fundamental right
what is unique about the right to abortion?: what it is a fundamental right, it is no longer decided under strict scrutiny. abortion can be regulated so long as they do not create an UNDUE BURDEN ON THE ABILITY TO OBTAIN ABORTIONS- this is the standard prior to viability. (ie- having a 24 hr waiting period or requring that abortions be performed by licensed doctors are not uncon)
exception to preemption: states CAN set environmental standards stricter than federal law unless congress explicitly prohits it
american citizen apprehended in a foreign country then-->: must be given DP!
taxing and spending power and commerce clause: congress may tax and spend for the general welfare as it sees fit- -congress may condition grants under spending power even where it cannot directly regulate
what is a limited public forum: government property that the government can close to speech but chooses to open to speech - like a school on weekend government can open it up
what is content neutral laws: content neutral laws burdening speech generally need only meet intermediate scrutiny. must further a significant government interest, be narrowly tailored and leave open alternative channels for communication. this is where the restriction applies to all speech- ie - can't protest or have a parade in park X or park Y.
congress' power under section 5 of the 14th amendment: congress may NOT create new rights or expand the scope of these rights. It can only provide additional remedies for rights recognized by the courts --and they must be naRROWLY construed--proportionate and congruent.
what is the strongest form of standing/injury: monetary- even 1 dollar!
political Q doctrine: refers to allegations of constitutional violations that the federal courts will NOT adjudicate b/c left to the politicl branch or inherently incpable of judicial resolution-- 1. cases under republican form of government 2. challenges to the president's conduct of foreign policy 3. challenges to the impeachment and removal process 4. challenges to partisan gerrymandering
must u use the least restrictive alternative in restricting commercial speech?: no- just must be narrowly tailored.
sovereign immunity: bars suits against states in state courts even on federal claims unless state consents
can states regulate federal government: no not if it places a significant burden on federal activity- fed government never has to comply with state pollution laws
privacy is protected under--: tt is a fundamental right protected under substantive DUE PROCESS-- thus strict scrutiny when privacy rights are involved
congress can preempt state and local actions by setting standards that they must meet: ()
if the plaintiff is a private figure and the matter is NOT of public concern the plaintiff can recover ...? (re; defamation): presumed or punitive damages with OUT showing actual malice - unclear burden, burden on D to prove truth
what is content based restrictions onspeech: content-based restrictions on speech generally must meet strict scrutiny. the two types include: 1. subject matter restrictions (when the application of the law depends on the topic of the message or 2. viewpoint restrictions ( the application of the law depends on the ideology of the message ie- if u would say pro war demonstrations ok and anti war not ok)
social security benefits terminated then -->: need only a POST TERMINATION hearing (notice/explanation + post term hearing)
what about racial classifications beneffiting minorities: strict scrutiny is applied
states may not tax or regulate federal government activity: inter governmental immunities -- means that the federal government is immune
the appointment power: the president appoints ambassadors, federal judges and officers of the US
first ask- does the state or local law discriminate against out of staters?: if the law does NOT discriminate then the PIC does NOT apply and look to DCC balancing test-- if the law burdens interstate commerce, it violates the DCC. if its burdens exceed its benefits it can be strickes as being too burdensome.
how is the existence of a racial classification proven: 1. the classification either exists on the FACE of the law or 2. the law is facially neutral, and proving a racial classification requires demonstrating both DISCRIMINATORY IMPACT AND DISCRIMINATORY INTENT
what must the government to show that the taking is for public use?: anything that gov't reasonably believes will benefit the public
if a treaty conflicts with a federal statute then: the one adopted last in time controls!! know this!!!!!!!!!!!
gag orders on the press: gag orders on the press to prevent prejudicial pre trial publicity are NOT allowed
procedural process has 2 issues. they are:: 1. has there been a deprivatoin of life, liberty or property? 2. what procedures are required?
can congress give itself or its officers the appointment power: no-- but can create new agency
test ot know if the speech is obscene and sexually oriented: 1. material must appeal to the prurient ( shameful and morbid interest in sex; local standard; what excites is not enough), 2. the material must be patently offensive under the law prohibiting obscenity- (local community standard) and 3. Taken as a whole the material but lack serious redeeming artistic, literary political or scientific value (social and national standard)
symbolic speech: the government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government purpose.
intermediate scrutiny: substantially related to an important government purpose. means must be narrowly tailored and best way is not required. gov has burden. only looks at government's ACTUAL purpose
commander in chief: president has broad powers to use troops in foreign countries -- this would be a political Q- broad powers
absolute immunity-: the president has absolute immunity to civil suits for money damages for any actions while in office -- can can NOT be prior to office!!!
equal protectoin rights that require strict scrutiny: 1. right to travel 2. right to vote 3. freedom of speech 4. freedom of association 5. free exercise of religion
exceptions-- situations where private conduct must comply with the constitution: 1. public function exception and 2. entaglement exception
necessary and proper clause is: not an independent source of power
exceptions to deprivations of due process (what usually will not be a violation): 1. prisoners rarely have liberty interests when they sue 2. harm to reputation is NOT by itself a loss of liberty - also show tangible loss- 3. emergency exception- before an adult can be institutionalized, must have notice. 4. when a parent institutionalizes a child only needs a screening approval by a factfinder b/c a parent acts in best interest of child
who are inferior officers: officers that can be fired by other officers can also get to appoint independent counsel
which bill of rights do NOT apply to the states?: - 2nd amendment right ot bear arms ( states can adopt any type of gun control they want) - 3rd amendment right to not have soldeirs quartered. - 5th amendment right to grand jury indictment in criminal cases. - 7th amendment right ot jury trial in civil cases, - 8th amendment right to excessive fines.
approach to equal protection: 1. see if u need it to apply to federal government and if yes look at 5th amendment. 2. if state or local look at 14th amendment 3. ask what the classification is, which level of scrutiny should be applied and whether the law meets this level
executive privilege: the president has executive privilege for presidential papers and conversations but such privilege must yield to other important government interests --clinton tried to invoke this with the tapes -- didnt work! need for evidence in criminal trial
application of the bill of rights: applies only to federal government firectly and is applied to the state and local governments through its incorporation into the due process of the 14th amendment.
what test is used for classifications based on race and national origin: strict scrutiny
treaties are: agreements between the US and a foreign country that are negotiated by the presiend and are effective when ratified by the senate - they prevail over conflicting state law
final judgment rule: there is no interlocutory review by the supreme court--may hear cases only after there has been a final judgment
at-large voting: elections where all the voters vote for all the office holders-- ie- if 4 positions vote for all-- they ARE constitutional UNLESS there is proof of a discriminatory purpose!
does the government has a duty to subsidize abortions or provide them in public hospitals: NOPE
can attorneys make mail solicitations for clients: yes only in person is prohibited
mootness: bars consideration of claims AFTEr they were resolved-- does a real controversy still exist? general rule is that if the events end after filing lawsuit then it is moot
Standing: whether P is the proper party to bring this action
student disciplined by a public school then-->: notice + opp to explain but NO TRIAL TYPE OF HEARING
10th , 11 or privileges and immunities are: rarely correct
fighting words: unconstitutionally vague and overbroad. BE CAREFUL ON EXAM- ALWAYS SAY UNCONSTITUTIONALLY VAGUE DO NOT FEEL BAD FOR THE GUY BEING THREATENED
narrowly tailored government regulation of public forums need not....?: use the least restrictive alternative -- just narrrowly tailored
state or local interference with PUBLIC K'S must meet which standard?: Strict Scrutiny -- don't want to let government just get out of K's for no reason. explain yourself!
if u r regulating other commercial speech u use: intermediate scrutiny - cannot soolicit accident victims for 30 days is upheld
laws that require disclosure of group membership where such disclosure woud chill association must: meet STRICT SCRUTINY
name the 5 other areas that rational basis review is used for regarding discrimination: 1. age (mandatory retirement laws are often challenged and gov usually wins) 2. disability ( government lost in ban of mental homes in town) 3. wealth (poverty is not a suspect classification) 4. economic (hot dog owners have to be there for 8 years- held constitutional) 5. sexual orientration
the government may limit its dissemination of information to protect private trials but: but not to protect criminal trials-- only the press have 1st amendment right in pre trial criminal proceedings
for what purpose can an executive agreement be used for: for ANY purpose! - and anything that can be done by treaty can be done by executive agreement
can you count uncounted votes without standards in a presidential election: no- it violates equal protection (bush v gore)
public employment requires-->: notice + opp to explain + POST TERM HEARING
** WHEN IT PROPERTY OWNERSHIP REQUIREMENT ALLOWED FOR VOTING?>: WHEN IT HAS TO DO WITH WATTER RIGHTS- WATER DISTRICT ELECTIONS
no third party standing: a plaintiff cannot asset claims of others or third parties who are not before the court EXCEPT 1. third party standing IS allowed if there is a close relationship between the P and the injured third party (ex: abortion case- by the time brought she'd alreayd have kid anyway) 2. third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights - 3. associational standing- an organization can sue for its members - provided interests are germane to the organization's purpose .
may the government give asssistance to parochial schools?: yes- so long as the money is not used for religious instruction
what does the supreme court have original and exclusive jurisdiction over: suits between state governments
What protection is applied by the Cosntitution for economic liberties (which test): very minimal so use only a rational basis test (ie- if lose job)
is senate approval required for treaties?: yes
if Q talks about congress's authority to act and abotu general welfare then the correct answer-: must be tax/spend of police power
what is the limite on congress' delegation power: NONE! remember admin law - non delegation doctrine
punitive damages awards require -->: instruction to jury + judicial review on reasonableness. Grossly punitive Violate DP!
what is substantive due process: whether government has adequate reasons for taking away an individual's life, liberty or property
congress may prohibit commercial activity by state governments such as: cant give out DMV personal information
power to pardon: the president has the power to pardon only for federal crime, NOT state crimes and nOT for impeachment and only for criminal liability not civil.
how may the government restrict obscene mateiral?: 1. the government may use zoning ordinances to regulate location of adult bookstored; child born might be completely banned even if not obscene (note to be child ****, kids MUST be used in the production of the material- if a child is not used it cannot be considered child ****- so adults that look like children or computer generated images are fine) and 3. the government may not punish private possession of obscene materials, but the government may punish private possession of child **** 4. government may seize the assets of a business convicted of violating obsenity laws
executive agreement is: an agreement between the us and a foreign country that is effective when signed by the president and the head of the foreign nation
what speech is NOT protected by the 1st?: 1. incitement of illegal activity and obscenity and sexually oriented speech
what are prior speech restraints: judicial orders to stop the speech BEFORE it occurs. MUST MEET STRICT SCRUTINY. Also, the proper court orders must be complied with until they are vacated or overturned. someone who violates a court order is barred from later challenging it.
generally the government's faulure to protect people from privately inflicted harms does not deny due process, except: if the government literally creates the danger or physically in government custody
state taxation: states may not use their tax system to help in state businesses, a state may only tax activities if there is a substantial nexus to the state, and state taxation of interstate businesses must be fairly apportioned
note profane and indecent speech is generally protected by the 1st amendment EXCEPT: 1. over the broadcast media (cant regulate tv and radio; accessible to a minor; cable is fine b/c u choose to have cable and u choose to have internet in home) or 2. exception- schools. ct ruled in favor of school that suspended kid for giving a sexually undertoned school speech.
entaglement exception: the constitution applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity. in such sitations, 1. either the government must stop what is it doing or 2. the private party must be bound by the constitution
privilege and immunities clause of article IV: " no state shall deprive citizens of other states the privilege and immunities it accords its own citizens- anti discrimination agaisnt out of staters
constitutional source for substantive due process: 14th amendment applies only to state and local governments-- never to federal government. Equal protection is applied to the fed government through the 5th amendment
if the plaintiff is a private figure and the matter is of "public concern" that state may allow the plaintiff to recover ...? (re; defamation): for defamation by proving falsity and negligence by the defendant. however the plaintiff may recover presumed or punitive damages only by showing actual malice
when u decide there was a DP violation what is the test to determine which procedures are requires: balance 1. the importance of the interest to the individual with 2. the ability of additional procedures to increase the accuracy of fact finding with 3. the government interest in admin efficiency
how do we know if there is a taking/: 1. Possessory taking ( government confiscation or physical occupation of property is a taking-- NOTE IT DOESN'T MATTER IF IT IS EVEN JUST 1 DOLLAR! - and 2. Regulatory taking- government regulation is a taking if it leaves no reasonable economically viable use of the property-- needs to be fully - not a taking simply because it decreased the value-- ask: is it usable AT ALL?!!
if the plaintiff is a public official or running for public office the plaintiff can recover...? (re: defamation) (public official is government person): can recover for defamation by proving falsity of the statement AND actual malice. compensatory and punitive
what places are available for speech?: public forums -- such as parks and sidewalks-- streets, sidewalks --
so if on the exam it says fed law is unconstitutional: it will never be because of delegation of legislative powers
the contracts clause states: "no statute shall impair the obligations of contracts"
the right to travel: under EP-- laws that prevent people from moving into a state must meet STRICT SCRUTINY (traveling right is a fundamental right!) Also durational residency requirements must meet strict scrutiny (50 days residency for voting is the max allowed)
exceptions to mootness: 1. wrong capable of repetition but evading review 2. volutnary cessation of offending practice but D can resume it at any time 3. class action as long as 1 member has an ongoing injury.
when will strict scrutiny test NOT be used in alienage classifications? (when is rational basis tests used): 1. rational basis test is used for alienage classifications that concern self government and democratic process-- some privileges may be reserved only for us citizens--> VOTING, SERVING ON A JURY, BEING A TEACHER, BEING A COP, PROBATION OFFICER. NOT a notary public-- but have to do with the government integrating values in society also, only a rational basis test is used for 2. congressional discrimination against alients--congress has plenary power to regulate immigration.
exclusive jurisdiction: suits between states
exceptions to DCC burdenson test: if there is congressional approval or if it falls in the market participant exception- ie state universities can charge its citizens less tuition or cement factory hypo-- must be a GOVERNmental public institution. a private cement co cannot charge differently!
doing something for the general welfare only applies to: taxing and spending
exception to the no generalized grievance: taxpayers do have standing to challenge government expenditures as violating the establishment clause. -- ie- congressionally approved federal expenditures tp aid parochial schools. note not a generalized grievance just b/c many people suffer.
is senate approval needed for executive agreements: no
exception to strict scrutiny right to custody of one's children standard: a state Can create an irrebutabble presumption that a married woman's husband is the father of her child
actual malice: knew the statement was false or acted with reckless disregard for the truth
RIGHT TO REFUSE MEDICAL TREATMENT: 1. competent adults have the right to refuse medical treatment, even life-saving medical treatment 2. a state may require clear and convincing evidence that a person wanted treatment terminated before it is ended and 3. a state pay prevent family members from terminating treatment for another (level of scrutiny "unknown")
state or local interference with PRIVATE K's must meet which standard?: intermediate scrutiny-- but this is a diff/ standard. here, ask: 1. does the legislation substantially impair a party's rights under an existing K? and 2. If so, is the law a reasonably and narrow tailored means of promoting an important and legitimate public interest?
necessary and proper clause: congress can use any means not prohibited by the constitution to carry out its authority -- this cannot stand along though!
* right to education: rational review- not a fundamental right
is there liability if the media broadcasts a tape of an illegally intercepted call?: no- not if the media did not participate in the illegality and it involves a matter of public importance
can the government require spousal consent and notification with abortion: no way!
impeachment requires: a majority vote by the house or conviction of 2/3 senate
contracts clause applies to: only to state or local interference with EXISTING contracts -- it is NEVER applied to the federal government
government cant discriminate against religious speech or among religions unless: unless strict scrutiny is met
the removal power: unless removal is limited by statute the president may fire any executive branch office
express preemption: if federal law is exclusive in a field, state and local law deemed preempted
examples of constitutionally protected symbolic speech-- where u CAN do these: 1. flag burning 2. burning of a cross (unless intent to threaten) 3. contribution for election campaigns (Cannot limit what u spend in total) 4. anonymous speech
abstentation: federal courts may not enjoin pending state court proceedings
if a treaty conflicts with the us constitution: then the treaty is invalid
how should gender classifications benefiting women be treated?: 1. if they are based on role stereotypes they are not allowed ( ie- women should always get alimony or survivor benefits but men should not- not constitutional) 2. gender classifications designed to remedy past discrimination and differences in opportunity IS allowed -- ie-- can have different social security formula for benefits based on statistics
for supreme court to review a state court decision: there must not be an independent and adequate state law ground of decision. supreme court's review on federal ground for decision would have no effect on the outcome of the case-- rodney king hypo
no generalized grievance: P may not sue solely as a citizen or as a taxpayer interested in having the government follow the law. -- is says taxpayer in quotes or citizen look here
what are the common non public forums?: 1. military bases 2. areas outside prisons and jails 3. advertising space on city buses 4. SIDEWALKS ON POST OFFICE PROPERTY 5. airports-- may prohibit money solicitation but cannot prohibit distribution of literature (fails rational basis review)
levels of scrutiny include: rational basis, intermediate scrutiny and strict scrutiny
exception to PIC: corporations and aliens can NOT use it-- so there only hte DCC would apply. need to show no less discriminatory means available and nec to achieve imp. government purpose.
impeachment and removal-: the president, the CP , federal judges and officers of the us can be impeached and removed from the office for treason, bribery or for high crimes and misdemeanors
can the president sign only part of the bill: no way- this is a line item veto
overbreadth: a law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated - ie- city ordinance prohibiting all entertainment b/c of dancing but not ok- b/c prohibiting also plays and speeches etc
Indtitutionalizing an adult requires: notice + PRE TERMINATION HEARING
if Q talks about declaratory judgment it is likely: a ripeness issue
what about temporarirly denying an owner use of property: that is NOT a taking so long as the government's action is REASONABLE
how can congress limit removal: for congress to limit removal, it must be an office where independent from the president is desirable and it cannot prohibit removal it can limit removal where there is GOOD CAUSE.
may education institutions use race in admissions decisions to help minorities?: - they may use race as ONE FACTOR among many in admissions but they can NOT set aside slots or add to admission scores solely based on race. (must beet strict scrutiny rarely upheld). for seniority classifications- last hired first fired cannot be altered for affirmative action
supreme court review: appellate jurisdiction - most come from a writ of certiorari- cases from state court and us federal court of appeals. justices (all 4) must agree to grant it for it to be heard-discretionary
Difference between equal protection and fundamental rights: EP--> about how people are treated in relation to one another. DP- if government has adequate reasons for taking away-- not about people
full faith and credit: courts in one state must give full faith and credit to judgments of courts in another so long as:1. the court that rendered the judgment had jurisdiciton over the parties and the subject matter, 2. the judgment was on the merits and 3. judgment was final.
commerce power: 1. may regulate the channels of interstate commerce (highways, waterways or internet) 2. may regulate instrumentalities of and persons or things in interstate commerce (Trucks, phones, placeS) and 3. may regulare activities that have a substantial effect on interstate commerce (it is legal to regulate amount of wheat farmers could grow for their own home consumption-- but if it is a non economic activity, congress cannot base decision on cumulative economic effect.
public function exception: the constitution applies if a private entitty is performing a task traditionally, exclusively done by the government -- the hypo of the town owned by private entity and tried to keep religious practice out. town generally done by the government
may the government create liability for the truthful reporting of information: no- not if it was lawfully obtained from the government
what is just compensation: measured in terms of the loss of the owner (FAIR MARKET VALUE) AND NOT the gain to the taker (IRRELEVANT)
can city officials set permit fees for public demonstrations: if they have NO DISCRETIOn
free exercise clause: prohibits government interference with religious beliefs-- members of the clergy CAN hold government office AND it allows regulation of general applicability (conduct) --> exception: unemployment compensation. the government may not deny benefits to individuals who quit their job for religious reasons.
the test for the establishment clause is:: the Lemon test: ("SEX") 1. Secular purpose for the law is needed. (10 commandments cannot be posted on public school door) 2. Effect must be neither to advance or inhibit religion ( government cannot symbolically endore religion or a particular religion) and 3. X- excessive entagement with religion is NOT allowed. if ANY of these are violated then it violates the establishment clause - government cannot pay salaries of parochial school teachers because that would require too much supervision
numerical set asides- are the ok?: they are and require proof of past discrimination but they are rarelly upheld -upheld where every time a white person was hired a black one was. this is about having a racial quota system
what about legislative vetos and line item vetos: they are UNCONstitutionAL!! - always need bicameralism (passage by both gouse and senate) and presentment (giving the bill to the president ot sign or veto).
what does ex post facto apply to in con law?: CRIMINAL CASES ONLY. IT WILL NOT APPLY IN CIVIL CASES. in fact, retroactive civil liability must only meet a RATIONAL BASIS test
what level of scrutiny is used for gender classifications?: INTERMEDIATE SCRUTINY IS USED- it is only alllowed if there is an exceedinly persuasive justification
when are cases taken on appeal: for decisions of 3 judge federal district courts-- skip the us fed court of appeals
when is a law unconstitutionally vague: if a reasonable person cannot tell what speech is prohibited and what is allowed - need reasonable notice of what is prohibited
defamation is: not protected, but the ability of a state to limit recovery is limited
entaglement exception examples: 1. courts can't enforce racially restrictive covenants, 2. state action when government leases premises to a restaurant that racially discriminates 3. state action when government gives free books to private schools that racially discriminate 4. NO state action when a private school almost totalyl subsidized fires a teacher b/c of freedom of speech--even 99% subsidized --government subsidy is insufficient for findign state action. 5. no state action where NCAA suspended a basketball coach in a state school, b/c ncaa is a private organization os it doesnt have to comply 6. state action when a private entity regulates the state's interscholastic sports - b/c msot are public 7. no state action when private club discriminated
when should a property owner bring aa takings challenge?: TRICK QUESTION!!! CAN BRING IT EVEN IF THE REGULATION EXISTED AS THE TIME THE PROPERTY WAS ACQUIRED!!
examples where the symbolic speech is NOT constitutionally protected-- u can NOT do these:: 1. burn draft cards 2. nude dancing 3. expenditure limitations (limiting amount for candidate)
are false and deceptive ads protected by the 1st amendment: no- u can prohibit them- true commercial speech that inherently risks deception can be prohibited ALSO- the government may prevent profesisonals from advertising or practicing under a trade name and can prohibit attorney in person solicitation of client for profit but it may NOT prohibit accountants from in person solicitation fo clients for profit. (thus gov can limit your company's name from calling itself that)
can u use race to draw election district lines?: yes to benefit minorities but it must meet strict scrutiny
how must government conditions on development of property be justified?: by a benefit that is ROUGHLY PROPORTIONATE TO THE BURDEN IMPOSED- otherwise it is a taking
original jurisdiction: suits between states and cases involving ambassadors
what if the law DOES discriminate agaisnt out of towners?: this is a DCC violation if the law burdens interstate commerce --> unless necessary to achieve an important government purpose. There is a strong presumption against burdensome state law; helping in staters is NEVER an important government purpose; no less discriminatory alternative could achieve its important gov't objective. this is a PIC violation if the law discriminates agaisnt out of staters with regards to important economic activity (ability to earn a livelihood) or civil lbierties
what prevails- executive agreeement and conflicting state laws: executive agreement
when is intermediate scrutiny used for discrimination of aliens?: against undocumented alien children ( declared it unconstitutional for aliens not to get public ed free and for citizens to get free public ed)
how do you know if there has been a deprivation of life, liberty or property?: a deprivation of liberty occurs if there is the loss of a significant freedom provided by the constitution or statute - usually it will be a violation of a constitutional right.
to punish membership in a group it must be proven that the person:: 1. actively affiliated with the group AND 2. knowing of the groups illegal activities. AND 3. with the specific intent of furthering the illegal activities (NEED ALL 3)
causation and redressibility: P must allege and prove that the defendant caused the injury so that a favorable court decision is likely to redress it --> no advisory opinion!
incitement of illegal activity: the government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality
dormant commerce clause also called: negative implications of the commerce clause - principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce
one person one vote: must be met for all state and local elections- voter approval does not justidy deviation from one person one vote
foreign policy includes: treaties and executive agreements
what level of scrutiny used to protect gays: while the right of privacy protects private consensual homosexual activity the level of scrutiny is not articulated (level of scrutiny "unknown")
strict scrutiny: necessary to achieve a compelling government purpose- must be least restrictive alternative --government usually loses. also look at actual and government has the burden
PRe judgment attschment and government siezure of assets require-->: notice + hearing EXCEPT IN EXIGENT CIRCUMSTANCES!!! - THEN POST ATTACHMENT HEARING
may government sieze property in an illegal activity from an innocent owner?: YES + THIS IS VERY IMPORTANT!!!
what is a bill of attainder: a law that directs the punishment of a specific person without a trial -- in civil cases NOT ok
what if state law impedes the achievement of a federal objective: federal law preempts state law
for a license related to work if in staters paid a small fee and out of staters paid a large fee: violation of PIC b/c affects livelihood. Note-- if it was about a hobby then NOT a violation!
can the government require parental notice and consent for unmarried minor for an abortion: YES- but only if it creates an alternative procedure where a minor can obtain an abortion by going before a judge.
is government negligence sufficient for a deprivation of due process: no- must be intentional government action or at least reckless action. Exception- in an emergency situation the government is liable ONLY if it SCHOCKS THE CONSCIENCE
right to practice a trade or profession is: not a fundamental right-- rational basis test
what is the takings clause: the government may take private property for public use if it provides just compensation -> ask 1. is there a taking? 2. is it for public use? (if not the government MUST return it, but this is defined BROADLY as anything government reasonably believes the taking will benefit the public and 3. is just compensation paid?
does impeachment remove a person from office: nope- need to first be convicted by the senate in order to be removed! so impeachment only means t here will be a trial in the senate!
the constitution only applies to: government action- private conduct need NOT comply with the constitution! - state must affirmatively facilitate, encourage or authorize an allegeld unconstitutional act in order for it to be state action
what is the test for discrimination against non marital kids ("legitimacy classifications"): intermediate scrutiny is used -BUT ALMOST ALWAYS STRICKEN AND UNCONSTITUTIONAL- laws that deny a benefit to all non marital children but grant it to marital are uncon.
preemption: under the supremacy clause, federal law preempts state law, even if non conflicting - the constitution and the laws and treaties made pursuant to it are the supreme law of the land
is there a fundamental right to education: NO!
can the government require a license for speech: yes but only if there is an imoportant reason for licensing and clear criteria leaving almost NO DISCRETION to the licensing authority. they must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.
is there a fundamental right to be a candidate: no not constitutionally guaranteed
ripeness: can you get a declaratory judgment- this is a ripeness issue . look at harship and look at fitness
freedom of association: laws that prohibit or punish group membership must meet STRICT SCRUTINY
laws that prohibit a group from discriminating are constitutional unless they are: 1. interfere with intimate association (if u r not invited to a small dinner party, u cannot sue) or are integral to expressive activity (eg the KKK who have anti black message or boy scouts who had anti gay message). USUALLY THE LAW IS UPHELD AND THE GROUP LOSES
if the plaintiff is a public figure the plaintiff can recover ...? (re; defamation) ( public figure is someone who thrusts himself into spotlight): for defamation by proving falsity of the statement and actual malice SAME And Public official-- compensatory and punitive
if welfare is terminated then-->: hearing REQUIRED BEFORE termination (notice + hearing)
is there a general federal police power: no-- however police power for MILD--> military, indian reservations, federal lands and terrirotis, and over the DC state
can you pay a tax out of the federal treasury: no- unconstitutional
exception to sovereign immunity: 1. waiver 2. states may be sued pursuant to federal laws adopted under section 5 of the 14th amendment- such as commerce clause. 3. federal government may sue state governments 4. suits against state officers are allowed--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 that will be paying retroactive damages.
what is the 1st amendment right of access to private property for speech purposes?: NONE!
plastic reindeer rule: if there are religious symbols accompanied by symbols from OTHER religions and secular symbold (ie plastic reinder) then that is ok
4 standing issues;: need injury, causation, redressibility; no third party standing and no generalized grievance
what prevails executive agreement or conflicting federal law: federal law! and always us constitution
lower federal court review: cannot hear suits against the state governments--11th amendment and sovereign immunity bars against state courts or federal agencies

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Number of cards 218