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21 Cards in this Set
- Front
- Back
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When does the Supreme Court have original jurisdiction?
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All cases affecting ambassadors, public ministers, consuls, and those in which a state is a party.
Congress has given concurrent jurisdiction in all cases except those between states. |
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When is a case justiciable?
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If is is:
(i) Ripe: Immediate threat of harm. (ii) Not Moot: matter has not already been resolved. (iii) and the person has Standing: A concrete stake in the outcome of a case. (redressability, personal injury, causation) |
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What is the commerce power?
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Congress has the exclusive power to regulate all foreign and interstate commerce. Congress may regulate its channels, instrumentalities, and any activity that has a substantial effect on interstate commerce.
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When may Congress use the commerce power to regulate INTRASTATE activities?
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If the intrastate activity is economic: Congress may regulate it if it has a substantial affect on interstate commerce in the aggregate.
If it is not economic: Congress must factually show a substantial economic effect on interstate commerce. |
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When may Congress delegate its legislative power?
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When it sets intelligible standards for the legislation, and as long as the power is not uniquely confined to congress.
Congress may NOT appoint members of a body with administrative or enforcement powers. |
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When has Congress PREEMPTED a field from state or local regulation?
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If a federal statute EXPRESSLY states that it occupies the entire field.
Court determines that it was the clear and manifest purpose of Congress to preempt the field. |
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What does the PRIVILEGES AND IMMUNITIES clause of article IV do?
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It keeps states from discriminating against non residents regarding their fundamental rights (involving commercial activities pursuit of livelihood and civil liberties)
UNLESS there is no less restrictive means. |
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When will activity be considered STATE ACTION?
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When it is either
(i) TRADITIONALLY state action (like running a town or conducting an election) or (ii) if there is SIGNIFICANT STATE INVOLVEMENT, the state facilitates, encourages, or authorizes acts of discrimination by its citizens. |
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What is PROCEDURAL DUE PROCESS?
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A fair process is required for a government agency to take a person's LIFE, LIBERTY, OR PROPERTY.
Property is taken if there was a legitimate claim or ENTITLEMENT to the benefit under state or federal law (welfare, public school, government employment). |
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What is SUBSTANTIVE DUR PROCESS?
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If a law limits liberty of ALL persons to engage in some activity, the fifth amendment (federal) or fourteenth amendment (states) require that it pass a test of scrutiny.
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What is EQUAL PROTECTION?
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If a law treats a person or CLASS OF PERSONS differently from others, the fifth amendment (feds) or fourteenth amendment (states) will require it to pass a test of scrutiny.
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When is a law DISCRIMINATORY?
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A law will be deemed discriminatory discriminatory INTENT can be shown. Show intent through (Facial discrimination, discriminatory enforcement/application, or discriminatory effect plus legislative motive).
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When may the government regulate the fundamental right of ABORTION?
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The government may regulate pre-viability abortions as long as they do not place an undue burden on abortion.
The government may regulate POST-VIABILITY abortions as much as they want, as long as they don't prohibit a woman from obtaining an abortion when her health or safety is in jeopardy. |
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What does the FIRST AMENDMENT protect?
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The first amendment keeps the federal government (and the states through the fourteenth amendment) from
(i) establishing a religion, (ii) interfering with the free exercise of religion, and (iii) abridging the freedoms of speech/press/assembly. |
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What kinds of regulation of speech are okay?
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In a PUBLIC FORUM: regulations that are content neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication are reasonable TIME, PLACE, AND MANNER regulations.
In a LIMITED PUBLIC FORUM: regulations are valid if they are viewpoint neutral and reasonably related to a legitimate government purpose. |
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What if the government wants to regulate the CONTENT of speech?
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It must meet strict scrutiny, be NECESSARY to achieve a COMPELLING government interest.
(inciting imminent lawless action, fighting words, obscenity, defamatory speech, commercial speech) |
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When is speech considered OBSCENE?
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When it (i) appeals the prurient interests, (ii) is patently offensive based on a community standard (iii) and lacks serious value based on a national standard.
May be regulated if meets strict scrutiny. |
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What must the government show to execute a PRIOR RESTRAINT on speech?
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The standard must be narrowly drawn, reasonable, and definite. The injunction must be promptly sought, and there must be prompt and final determination of the validity of the restraint.
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What is the FREEDOM OF ASSOCIATION and BELIEF?
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The government may neither prohibit politically unpopular groups nor unduly burden a person's right to belong to such groups, unless meets SS with least restrictive alternative standard.
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What are the rights of a GOVERNMENT EMPLOYEE concerning free speech?
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If a government employer seeks to fire an employee for speech related conduct:
Public Concern: compare rights of citizen and government. Not public concern: give wide degree of deference to employer to see if speech was disruptive. |
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What is the LEMON TEST and when is it used?
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The lemon test is used to determine if government action is valid under the establishment clause (doesn't establish a religion). Government action will be valid if it:
(i) Has a secular purpose (ii) Has a primary effect that neither inhibits nor advances religion. (iii) Does not produce excessive government entanglement with religion. |
