con law

  1. writ of mandamus
    A legal directive ordering a public agency, governmental entity, or governmental official to perform an act required by law.
  2. necessary and proper clause
    Section I, clause 18 of Article One of the U.S. Constitution, which reads: “The Congress shall have power- To make all Law which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
  3. ex post facto law
    A law having retroactive effect or force.
  4. 2nd amendment to cons
    Protects the right of citizens to keep and bear arms as well as form militias.
  5. writ of habeas corpus
    A legal action by which a petitioner or otherwise detained individual can seek release from unlawful detainment.
  6. appellate jurisdiction
    The authority of a court to review and change decisions made by a lower court.
  7. standing
    • The legally protected interest in a dispute and its outcome a party must have to bring a lawsuit.
  8. cases or controversies requirement
    • The constitutional mandate that a case must present an actual dispute requiring a judicial interpretation of the law in order for the court to exercise jurisdiction.
  9. arbitrary and capricious
    • Principal standard of review courts use when reviewing challenges to agency decisions.
  10. redressability
    • The ability of a court to offer a remedy for an injury sustained by an aggrieved party in an action.
  11. free exercise clause
    • The accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution which states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
  12. establishment clause
    • The provision of the First Amendment of the United States Constitution that prohibits the government from making laws that establish or favor a religion, or no religion.
  13. equal protection clause
    • The Fourteenth Amendment provision that requires government to treat similar persons or classes similarly.
  14. malapportionment
    • The unequal distribution of representatives to legislative bodies in order to give an artificial group undue influence over others.
  15. invidious discrimination
    • The granting of a privilege to an arbitrary class on the basis of race, gender, age, or religion that consequently causes others not in that class to be artificially restricted from equal protection under the law.
  16. guaranty clause
    • [U.S. Const., Art. IV § 4 cl. 1] guarantees a republican form of government to the states.
  17. ripeness
    • Doctrine of justiciability that requires a claim be sufficiently ready for adjudication in order to be heard by a court; a claim is only ripe if there is a present dispute that is not speculative in nature.
  18. political question
    • An issue not proper for adjudication by a court because it should be resolved by the political branches of government.
  19. pike test
    • [from Pike v. Bruce Church, Inc. (1970)] Judicial review determining whether the incidental burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits of a statute.
  20. facially discriminatory
    • A term associated with legislation that contains explicit categorization, like sex or race, in its text for identifying the persons to which the legislation applies.
  21. fed subsidy
    • Financial assistance provided by the federal government to a person or group to support a business regarded as being in the public interest.
  22. priv and immunities clause
    • A portion of the Fourteenth Amendment to the United States Constitution that prohibits states from discriminating against citizens of other states with respect to basic constitutional rights.
  23. state police powers
    • States’ powers under the Tenth Amendment to act on behalf of the welfare of their citizens, particularly on issues related to health and safety.
  24. interstate commerce
    • The purchase, sale, transportation, or exchange of goods between states.
  25. 10th amend
    • Provision that declares all powers not granted to the federal government and not prohibited from being granted to the states under the Constitution are reserved by the states.
  26. taxing and spending clause
    • [U.S. Const., Art. I, § 8, cl. 1] Gives the federal government the power to levy and collect taxes and spend collected tax revenue.
  27. spending power
    • Congress’s power under Article I, section 8 of the U.S. Constitution to pay the debts and provide for the common defense and general welfare of the country.
  28. compelling gov't interest
    The first factor of the strict scrutiny test. A statute that prohibits a citizen from exercising a fundamental liberty must offer significant and legitimate benefits to the state.
  29. self executing treaty
    • A treaty may be self-executing if it does not require any additional implementing legislation to take effect, but may be implemented based on its own provisions.
  30. treaty power
    • The United States President’s constitutional authority to make treaties with other States, pursuant to the advice and consent of the United States Senate. The President’s power to make treaties is found in Article II, Section 2 of the United States Constitution. The Article IV Supremacy Clause says that treaties made under the authority of the United States, along with the United States Constitution and the laws of the United States made in pursuance thereof, shall become the supreme law of the land.
  31. take title provision
    • Requires a party to assume ownership and liability over a particular thing.
  32. enumerated powers
    [U.S. Const., Art. I, § 8] Refers to the limited powers granted expressly to Congress in the Constitution.

  33. federalist papers
    • A series of eighty-five articles written between October 1787 and August 1788 advocating for the ratification of the Constitution. Federal judges frequently use the Federal Papers when interpreting the Constitution.
  34. qualifications clause
    • [U.S. Const., Art. I, § 2, Cl. 2] Establishes age, citizenship, and residence requirements for members of the United States Congress.
  35. art 2 of us cons
    • Sets forth the framework for the executive branch of the federal government. Among other things, it requires that the president take care that the laws be “faithfully executed.”
  36. executive order
    • An order issued by the president that has the full force of law. Such orders are pursuant to certain congressional acts, which specifically delegate to the president the power to create legislation, or pursuant to power inherently granted to the president by the Constitution.
  37. fed habeas corpus statute
    • [28 U.S.C. § 2241] Statute setting forth the rules for issuance of writs of habeas corpus by federal courts.
  38. war crime
    • A punishable offense committed during wartime that violates the laws of war as defined by international law and the Geneva Conventions.
  39. enemy combatant
    • A person who associates with forces that are engaged in hostilities against the United States or its allies. This includes any person who commits acts or provides aid to enemy forces.
  40. The right of the federal executive branch to avoid disclosing information involving certain sensitive policy matters.
    executive privilege
  41. sovereign immunity
    • The principle that a government may not be sued in its own courts without its consent.
  42. bicameral legislature
    • A lawmaking body composed of two subsidiary bodies, or "houses," each of which may have its own discrete powers or functions. Both houses must usually approve of specific legislation before such legislation may be presented to the chief executive for signature or veto.
  43. inferior officer
    • A public official that may be appointed to his or her position by the president alone, courts of law, or the heads of departments.
  44. appts clause of us cons
    • Provides the processes for the appointment of high level public officials.
  45. cons convention
    • A meeting to draft, adopt, or revise a constitution.
  46. original intent
    • A legal concept suggesting that, in the interpretation of law, a judge should consider the author’s meaning of the words at the time they were written.
  47. 5th amend
    • A constitutional amendment prohibiting the taking of private property for public use without just compensation.
  48. due process clause
    • of the Fourteenth Amendment provides that a state may not deprive a person of life, liberty or property without a fair trial.
  49. rational basis review
    • The level of scrutiny generally applied to legislation, which requires that a law be rationally related to a legitimate government interest.
  50. overinclusiveness
    • The tendency of legislation to burden more people than necessary to accomplish the legislation's goal.
  51. strict scrutiny
    • The most demanding standard of judicial review used by courts. Strict scrutiny review requires that the law or policy being challenged supports a compelling governmental interest, is narrowly tailored to achieve that interest, and is the least restrictive means available to achieve that interest.
  52. intermediate scrutiny
    • Also known as heightened scrutiny, under constitutional jurisprudence, a level of scrutiny between rational-basis and strict that is applied to determine whether a quasi-suspect classification, such as gender or legitimacy, is substantially related to the accomplishment of an important governmental purpose.
  53. right to privacy
    • The right to be let alone and to make personal decisions regarding private matters.
  54. Justifiability requirements
    • 1.advisory opinions
    • 2.standing
    • 3. mootness
    • 4.ripeness 
    • 5.political question
  55. Things that cause political questions
    • 1textual commitment to another branch
    • 2 lack of judicial standards
    • 3policy determination necessary
    • 4respect to other branches
    • 5adherence to precedent
    • 6potential embarrassment
  56. exceptions clause
    congress power to strip the supreme court of jurisdiction over specific types of cases
  57. legislative veto
    invalid(idk what it really is though)
  58. validity of exec agreements?
  59. pocket veto
    an indirect veto of a legislative bill by the president or a governor by retaining the bill unsigned until it is too late for it to be dealt with during the legislative session.
  60. take care clause
    mposes a duty on the President to take due care while executing laws. The purpose of this clause is to ensure that a law is faithfully executed by the President.
  61. With regard to commerce: congress can regulate(3)
    • channels
    • instrumentalities
    • substantial effect
  62. dormant commerce clause
    is that this grant of power implies a negative converse—a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce.
  63. classes of ppl that fall under strict scrutiny
    • minorities
    • historically disadvantaged groups
  64. classes of ppl that fall under intermediate scrutiny
    • quasi suspect classes
    • gender
  65. classes of ppl that fall under rational basis review
    • economic regulations and social welfare
    • everyone else
    • sexual orientation
  66. classes of ppl that fall under rational basis plus
    • disabled 
    • mentally ill
  67. strict scrutiny level of tailoring?
    narrow tailoring to a compelling governmental interest
  68. intermediate scrutiny level of tailoring?
    substantial relation to an important government interest
  69. rational basis review level of tailoring?
    related to a legitimate state interest
  70. procedural due process gives right to:
    notice and hearing
  71. substantive due process gives right to:
    fair and reasonable laws
  72. jackson's 3 categories analysis
  73. prudential standing
    doctrines are (1) the prohibition against litigating generalized grievances, (2) the prohibition against litigating the rights of a third party, and (3) the requirement that the plaintiff's interest falls within the zone of interests that the statute was designed to protect.
  74. types of preemption(3)
    • express 
    • field
    • implied
  75. undue burden test
    n the field of reproductive rights, having the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a fetus that is not yet viable. Laws that impose an undue burden on a fundamental right are unconstitutional under current Supreme Court cases.
  76. congress powers, generally(6)
    • and spend
    • 2.regulate commerce
    • 3.coin and regulate money
    • 4.regulate federeal property
    • 5.declare war and support and army
    • 6.make all laws necessary and proper
  77. executive powers, generally(5)
    • 1.ensure laws are"faithfully executed"
    • 2.manage foreign affairs
    • 3.act as commander in chief
    • 4.appt federal officers
    • 5.grant pardons
  78. requirements for standing(3)
    • Injury in fact
    • Causation
    • redressibility
  79. exceptions to mootness(2)
    • capable of repetition yet evading review(aka cases with short time limits(abortion, political race)
    • voluntary cessation-(ceases conduct when lawsuit dropped, then bring back up again)
  80. Interstate commerce scope(4)
    • 1.modalities & instrumentalities(things)
    • 2.substantial effect
    • 3.channels
    • 4.and activities themselves need to be economic
  81. sd v dole 4 factors to evaluate a tax
    • 1.exercise must be for general welfare
    • 2.conditions must be unambiguous(so informed decision can be made)
    • 3.cond on fed grants may be legitimate if unrelated to fed in particular national gov't s 
    • 4.other cons provisions may independently bar the fed funds
  82. boerne rule
    just be connection between what congress is trying to prohibit and means pursuant to how congress is prohibiting it
  83. suspension clause
    writ of habeas corpus may not be suspended unless in cases of rebellion, invasion, when pub safety requires it
  84. who has power to enforce treaties?
  85. a tax must be ________ and not___________ to be valid.
    for the general welfare and not unduly coercive.
  86. a tax must have a ________between a tax and the purpose of the tax
    substantial relationship
  87. _________hold the power to appoint and remove judicial officers
  88. _________holds the power of jurisdiction of the federal its.
  89. bill of attainder
    imposing punishment by statute(congress not allowed to do this
  90. ______laws and bills________are not allowed to be used by congress
    ex post facto laws and bills od attainder
  91. Political question elements(6)
    • 1 textual commitment to another branch
    • 2 lack of judicial standards
    • 3policy determination necessary
    • 4 respect to other branches
    • 5 adherence to precedent
    • 6potential embarrassment
  92. rational relationship test
    Under the rational basis test, the courts will uphold a law if it is rationally related to a legitimate government purpose.
  93. balancing test
    A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case.
  94. types of implied preemption
    conflict and field preemption
  95. conflict preemption
    • (a) a state law is in conflict with a federal law because it is impossible to comply with both at the same time (physical impossibility); or
    • (b) a state law is in conflict with a federal law because it interferes with the objectives of the federal law or is an obstacle to the accomplishment of the federal purpose.
  96. field preemption
    field preemption: the federal government has fully occupied the field it has chosen to regulate.
  97. canon of construction
    The system of basic rules and maxims applied by a court to aid in its interpretation of a written document, such as a statute or contract.
  98. presentment clause
    outlines federal legislative procedure by which bills originating in Congress become federal law in the United States.
  99. general grievances are/arent allowed under standing doctrine?
    are not
  100. substantive due process
    is a principle allowing courts to protect certain rights deemed fundamental from government interference, even where procedural protections are present or where those rights are not specifically mentioned elsewhere in the constitution.
  101. procedural due process
    is a legal doctrine in the United States that requires government officials to follow fair procedures before depriving a person of life, liberty, or property.
  102. 6 political question characteristics
    • A "textually demonstrable constitutional commitment of the issue to a coordinate political department; or"
    • A "lack of judicially discoverable and manageable standards for resolving it; or"
    • The "impossibility for a court's independent resolution without expressing a lack of respect for a coordinate branch of the government; or"
    • The "impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court; or"
    • An "unusual need for unquestioning adherence to a political decision already made; or"
    • The "potentiality of embarrassment from multifarious pronouncements by various departments on one question."
  103. 3 part test if the establishment clause is violated(aka lemon test)
    • 1. Has a significant secular (i.e., non-religious) purpose,
    • 2. Does not have the primary effect of advancing or inhibiting religion, and
    • 3. Does not foster excessive entanglement between government and religion.
  104. intermediate scrutiny
    the challenged law must further an important government interest by means that are substantially related to that interest.
  105. federalist 10
    dual sovereignty of both fed and state

    • Advocates for a republic where representatives are elected by people
    • do not get rid of factions
  106. when reading cons look for
    • structural meaning
    • comparative meaning-how other countries interpret
    • current public meaning
    • precedent
  107. fed 45,46
    political process is a check on congressional authority
  108. federalist 27
    says that the fed govt could sometimes use states to administer its laws, but Scalia thinks this can be read the other way
  109. federalist 51
    Separation of Powers (Horizontal  and Vertical Division of Authority)
  110. federalist 78
    • - framers wanted Court to interpret Acts for consistency with Constitution
    • Judges are institutionally isolated, courts are appointed for life so will not feel pressured
  111. guaranty clause
    guarantees republican form of govt
  112. does prove and immunities clause apply to states?
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con law
con law