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57 Cards in this Set
- Front
- Back
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What are the 4 components of standing?
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1. Injury
2. Redressability 3. No 3rd party standing 4. No generalized grievances |
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Is there any exception to the limit on 3rd party standing?
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YES-when there is close proximity in the interests of the party injured and the party suing. Think Dr-patient
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Can citizen bring a CoA under Consitution for general grievances as a taxpayer?
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NO--there must be injury specifically to the claimant.
Exception: taxpayer's can bring claims of tax money for religious purposes under establishment clause w/out personal harm |
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On what 2 grounds might a claim be rejected certiorari for ripeness?
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1. Hardship: P must show that she will suffer w/out review; and
2. Fitness: the issue must be fit for judicial review--issues of fact must be resolved |
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Ripeness
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i) Hardship suffered w/out pre-enforcement review
ii) Fitness of issues and record for judicial review (1) Does fed ct have anything to decide (2) Should ct wait until there is an actual case |
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Mootness; define and give exceptions. (3)
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if after filing P’s injuries end, case must be dismissed as moot; P must present ongoing injury; Exceptions:
(1) Wrong capable of repetition but evading review (2) Voluntary cessation (3) Class action suits |
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Political question doctrine- 3 examples
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i) Challenges to President’s conduct of foreign policy
ii) Challenges to impeachment and removal process iii) Challenges to partisan |
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SC has original juris in 2 cases—which?
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Conflicts btw states and conflicts involving ambassadors/diplomats
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States may NOT be sued; Exceptions – 4
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Under following circumstance
(1) Waiver – must be explicit, no implied or constructive (2) States may be sued pursuant to fed laws adopted under §5 of 14th Am. Congress cannot authorize suits against states under other constitutional provisions (3) Fed govt may sue state govt (4) Bankruptcy proceedings |
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In what instance does Congress HAVE police power? 4 (MILD)
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(MILD)
Military, Indian reservations, fed Lands/territories, DC |
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What does the necessary and proper clause give Congress the power to do?(2)
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i) Congress may adopt all laws necessary/proper
ii) Congress may choose any means not prohibited by Constitution to carry out authority |
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May Congress may tax and spend for general welfare?
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(1) Adopting tax to raise revenue
(2) Congress may act for general welfare if Congress is taxing or spending where Congress has limited police power |
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Will Commerce Power limit states ability to tax ?
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YES if it intereferes with interstate commerce
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What areas does the Commerce Power affect? 3
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regulate channels of interstate commerce
regulate instrumentalities regulate activities that have substantial effect of interstate commerce: state taxing and regulating |
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What does the 10th amend. Prevent
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Congress’s commandeering of the states regulatory power for its own ends.
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Can Congress delegate its powers?
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YES—always; BUT can never delegate executive powers to itself
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Line item vetos?
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NO- never
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When are treaties effective?
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When ratified by senate; they are laws and are due deference under supremacy so state laws are subservient
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congress by statute creates new agency and has head of House and Senate appointing officers to new agency—any issue?
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wrong answer bc Congress cannot appoint officers; ALSO cannot fire officers related to executive branch
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Is pres. Immune from civil suits?
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Yes but only those arising while in office
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What types of violations can pres pardon?
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Fed. Crimes ONLY; governors pardon state crimes
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Which wins-fed statute or executive agreement with foreign power
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equally binding--latest in time wins
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Does preemption preclude all state laws that deal with fed. Matters?
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NO only limits laws which make it impossible to comply with both; state may impose higher standards ; also violates preemption if state law impedes compliance w/ fed
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Can congress pre empt an entire area of law?
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YES—field preemption i.e. states cannot tax fed gov’t—when congress shows intent to govern, will preempt all laws in area
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What does dormant commerce clause prevent?
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In conjunction w/ art IV priv and Immun, prevents states from regulating against or taxing out of staters
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When is rational basis applied?
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When socio-economic interests are at stake
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Define analysis.
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The gov’t action must be RATIONALLY RELATED to a LEGITIMATE possible/CONCEIVABLE govt’ interest; burden on challenger
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When is intermediate scrutiny applied?
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When the gov’t action deals w/ legitimacy or gender
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Define analysis.
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The gov’t action must be substantially related to an IMPORTANT gov’t interest/purpose; burden is on the gov’t
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When is strict scrutiny applied?
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Race, ethnicity, sex, religion, alienage (citizen status), nat’l origin; AND FUNDAMENTAL RIGHTS
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Define analysis.
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The gov’t action must be narrowly tailored to a compelling gov’t interest; the burden is on the gov’t
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What are FUNDAMENTAL RIGHTS
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Marriage and divorce, right to procreate, access to contraception, private consensual sodomy, refuse medicine, choice to abort, obscene material at home,
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3 basic due process rights?
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Life, liberty property
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When is Due process analysis triggered?
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When fundamental rights are curtailed by gov’t action
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What 2 parts of due process must be satisfied?
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Procedural and Substantive
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What is the test for Procedural violation?
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What process is due?
-Importance of the interest at stake the more process is due -Ability of additional procedures to increase the accuracy of the fact-finding -Govt interest in administrative efficiency |
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What type of right is PRIVACY?
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Fundamental right gets strict scrutiny under due process clause
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Under what clause do you get due process?
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5 against fed; 14 against states
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What are the PRIVACY rights?
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NOTE overlap w/ Due process; get STRICT SCRUTINY
To marry, to procreate, custody of child, keep family together, control upbringing, purchase and use contraceptives, abortion, private consensual sodomy, refuse medical treatment |
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What’s the difference between due process analysis and equal protection analysis?
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Due process relies on 5th and 14th amendments; equal protection also relies on 14th amendment; Due process asks whether a gov’t action or law violates a fundamental right; equal protection asks whether a law or gov’t action singles out a suspect class; BOTH analyses get levels of scrutiny
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What are the suspect classes that get strict scrutiny?
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SUSPECT classes that get STRICT SCRUTINY: Race, national origin, alienage, travelers to other states, voters
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What are the suspect classes that get intermediate scrutiny?
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SUSPECT classes that get INTERMEDIATE SCRUTINY: gender, illegitimacy, undocumented alien children
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What are the suspect classes that get rational basis scrutiny?
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SUSPECT classes that get rational basis: ALL THE OTHERS inc. age, handicap, wealth, congressional regulation of aliens, aliens who apply for gov’t job that affect the democratic process
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What is the constitutional source of equal protection?
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14th amendment against states; 5th amendment against federal gov't
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what triggers equal protection analysis?
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Whenever the govt draws a distinction among people there is a basis for an equal protection challenge b/c a suspect class is singled out
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Is false advertising protected under the first amendment?
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false and deceptive advertising and advertising of illegal activity are not protected by first amendment
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What scrutiny does legitimate commercial speech get?
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other commercial speech can be regulated by the govt if intermediate scrutiny is met
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what places are trditionally protected as available for speech?
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Public forums are government properties that the govt is required to make available for speech
b. Ie sidewalks and parks c. Time, place or manner restrictions are ok if they reg is content neutral |
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If the speech regulation is subject matter or viewpoint based, what level of scrutiny?
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It must meet with strict scrutiny;
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If the reg is viewpoint neutral, what level of scrutiny?
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—intermediate scrutiny is the test
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Examples of Non public forums are govt property that the govt can and does close to speech?
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military bases, Areas outside prisons and jails
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What is the free exercise clause?
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establishment clause cannot be used to challenge a neutral law of general applicability even if it does impair religion
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What is the test for the Constitutionality of the estab clause?(3)
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1. there must be Secular purpose for law;
2. The primary effect must neither to advance nor inhibit religion; 3. Cannot be excessive govt entanglement with religion |
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IS Government negligence sufficient for a deprivation of due process.
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No-Generally, must be intentional government action or at least reckless action for liability to exist. In emergency situations, government is liable under due process only if its conduct “shocks the conscience”
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When does Deprivation of property occur?
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Deprivation of property occurs if there is a entitlement and entitlement not fulfilled--Under Procedural Due Process
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When does Deprivation of a liberty occur?
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Deprivation of liberty occurs if there is a loss of significant freedom provided by Constitution or statute.
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Which Substantive Due Process fundamental rights generally get protected with strict scrutiny:
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Marriage and Divorce
Procreation Contraception Sodomy (Lawrence v. Texas—no std. identified) Refuse Medical Treatment Abortion Obscene Material Except child porn Family Relationships Parents have fundamental right to custody, educate their kids, exclude grand parents, live together |
