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267 Cards in this Set

  • Front
  • Back
Article III grants what types of authority?
The authority for review of federal laws and executive actions
The authority for review of state courts and state government actions
4 justiciability doctrines
Standing, ripeness, mootness, political question
Standing requirements
1.
2.
causation and redressability
3.
no 3rd party standing
4.
no generalized grievances
Injury types and requirements
Plaintiffs only may assert injuries that they personally have suffered
Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm
Causation and redressability
*Plaintiff must show that defendant caused injury so that a favorable court decision is likely to remedy the injury
Exceptions to 3rd party standing
1.
2.
Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights(Criminal defendants have third party standing to raise rights of prospective jurors to be free from discrimination in juror selection)
3.
Exceptions: an organization may sue for its members, if –
No generalized grievances – rule and exception
1.
2.
Exception: taxpayers have standing to challenge government expenditures as violating the Establishment Clause (Very narrow exception – taxpayers lack standing to challenge governmental property grants to religious institutions)
Ripeness OR May federal court allow pre-enforcement review of statute or regulation?
The fitness of the issues and the record for judicial review
Mootness – Rule and Exception
Events after filing of the lawsuit end the plaintiffs the case shall be dismissed as moot
1.
Exception: wrong capable of repetition but evading review
2.
Exception: voluntary cessation
3.
Exception: class action suits
What is a political question and give examples
Allegations of constitutional violations that court will not get involved in:
The "republican form of government clause"
The process for ratifying constitutional amendments
Challenges to the President’s conduct of foreign policy
Challenge to Carter’s recession of a treaty
Challenges to the impeachment and removal process
Independent and Adequate State Grounds
*If a state court decision rests on 2 grounds, one state and one federal, 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
Fed. Courts won’t hear suits against states BUT will hear:
1.
2.
Waiver is permitted
3.
States may be sued pursuant to federal laws adopted under section 5 of the 14th amendment. Congress cannot authorize suits against states under other congressional provisions
Abstention
Have jurisdiction but will not exercise it
Exceptions to no federal police power
MILD: Military, Indian Lands, Lands (federal) and District of Columbia
Necessary and proper clause
*Congress may take all actions to carry out authority
Taxing and spending power
Congress may tax and spend for the general welfare BUT
Commerce Power
1.
2.
Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
3.
Congress may regulate activities that have a substantial effect on interstate commerce
10th amendment
Congress cannot compel state regulatory or legislative action
Congress can not force states to administer federal mandate
Congress can put strings on grants so long as conditions are explicitly stated
Congress may prohibit harmful commercial behavior by state government
Congress’ power under §5 of the 14th Amendment
Congress may not expand the scope of rights under §5 of the 14th Amendment: Congress only may provide additional remedies for rights recognized by the courts
Delegation of powers
No limit exists on congress’ ability to delegate legislative power to executive agencies or even to the judiciary BUT Legislative veto and line item veto are unconstitutional and Congress may not delegate executive power to itself or its officers
Treaties
Treaties are agreements between the US and a foreign country that are negotiated by the President and are effective when ratified by the Senate
1.
Treaties prevail over conflicting state laws
2.
If a treaty conflicts with a federal statute, the one adopted last in time controls
3.
If a treaty conflicts with the US Constitution it is invalid
Executive Agreements
Definition – an 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, Do not require Senate approval, Executive agreements can be used for any purpose, Never has any agreement been invalidated
Appointment Power
Congress may vest the appointment of inferior offices in the President, the heads of departments or the lower federal courts
Congress may not give itself or its officers the appointment power
Removal Power
Unless removal is limited by statute, the President may fire any executive branch office.
1.
For Congress to limit removal, it must be an office where independence from the President is desirable
2.
Congress can not prohibit removal of cabinet members
3.
Where Congress cannot prohibit removal, it can limit removal to where there is good cause
Impeachment and Removal
The President, the Vice president federal judges and officers of the United States can be impeached and removed from the office for treason or for high crimes and misdemeanors
President – 1 immunity, 1 privilege and 2 powers
The President has executive privilege for the presidential papers and conversations, but such privilege must yield to other important governmental interests
The President has power to pardon those accused or convicted of federal crimes
Commander in Chief – leader of armed forces
Preemption
3 types:
1.
express preemption
2.
implied preemption
3.
states may not tax or regulate federal government activity
Implied preemption
1.
2.
If state law impedes the achievement of a federal objective, federal law preempts state law
3.
If Congress expresses a clear intent to preempt state law, federal law preempts state law
Dormant commerce clause definition
State and local laws are unconstitutional if they place an undue burden on interstate commerce
The privileges and immunities clause of Article IV
Anti discrimination provision which
The privileges or immunities clause of the 14th amendment
Always a wrong answer unless the question involves a right to travel
Analysis if the state law does not discriminate
If the law burdens interstate commerce, it violates the dormant commerce clause if it burdens exceed its benefits
Analysis if the law discriminates against out of staters
If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose
State and local taxation of interstate commerce
1.
2.
A state may only tax activities if there is a substantial nexus to the state
3.
State taxation of interstate businesses must be fairly apportioned
Which statutes may be used by Congress to apply constitutional norms to private conduct?
1.
2.
The commerce power can be used to apply constitutional norms to private conduct
3.
Congress cannot regulate private conduct through §5 of the 14th Amendment
Exceptions where private conduct must comply with constitution
** The public function exception. The Constitution applies if a private entity is performing a task traditionally exclusively done by the government
Application of Bill of Rights
The Bill of Rights applies directly only to the federal government
Amendments NOT incorporated
2nd amendment right to bear arms
Rational basis test
Rationally related to a legitimate government purpose
Intermediate scrutiny
Substantially related to an important government purpose
government has burden of proof
Only look to actual goal that court finds
Uncertain if least restrictive alternative analysis is a necessity here
Strict scrutiny
Upheld only if necessary to compel a vital government interest
government has burden of proof
means must be necessary – least restrictive alternative IS used here
most exacting review
Procedural Due Process Definitions
1.
2.
a deprivation of property occurs if there is an entitlement (reasonable expectation to continued receipt of a benefit) and the entitlement is not fulfilled (year-to-year contract does not give you due process)
Is government negligence sufficient to state a claim under due process clause?
Generally there must be intentional government action or ate least reckless action for liability to exist. However, in emergency, government is liable under due process only if conduct shocks the conscience
Is failure to protect give rise to claim?
Generally the government’s failure to protect people from privately inflicted harms does not deny due process
Test for procedure required under due process
1.
2.
the ability of additional procedures to increase the accuracy of the fact finding
3.
government interest in administrative efficiency (cost factor)
Examples of when procedure is required
1.
2.
When SS disability benefits are terminated there must be a POST termination hearing
3.
When a student is disciplined by a public school there must be notice of the charges and an opportunity to explain
4.
Before parent’s right to custody of a child can be permanently terminated there must be notice and a hearing
5.
Punitive damages require instructions to jury and judicial review to ensure reasonableness
6.
except in exigent circumstances, prejudgment attachment and seizure of assets requires notice and a hearing (does not require an innocent owner defense to government forfeiture)
Substantive due process definition
Is there an adequate reason for the government violating the persons life, liberty, or property?
protection for economic liberties
Only a rational basis test is used for laws affecting economic rights
5th Amendment Takings Clause Test
1.
2.
Is it for public use? So long as government act of reasonable belief that taking will benefit the public (HHA v. Midkiff)
3.
is just compensation paid? Measured in terms of loss to the owner in reasonable FMV terms
Dollan Test for benefit compared to burden
government conditions on development use of the property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking (Dollan v. City of Tigard)
Contracts Clause
1.
2.
State and local government's may interfere with private contracts must meet intermediate scrutiny TEST: Substantial impairment of contract rights; Reasonably and narrowly tailored means of promoting an important and legitimate public interest
3.
State or local interference with government contracts must meet strict scrutiny
4.
The ex post facto clause does not apply in civil cases. Retroactive civil liability only need meet a rational basis test
Privacy umbrella – fundamental rights
1.
2.
the right to procreate
3.
the right to custody of one’s children
4.
the right to keep the family together
5.
the right to control the upbringing of one’s children
6.
the right to purchase and use contraceptives
7.
the right to abortion
8.
the right to refuse medical treatment
9.
NO right to physician-assisted suicide
10.
No right to private, consensual homosexual activity
The right to abortion includes:
1.
2.
The government has no duty to subsidize abortions or provide abortions in public hospitals
3.
Spousal consent and notification laws are unconstitutional
4.
Parental notice and consent laws for unmarried minors. A state may require parental notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interest or that she is mature enough to decide for herself
The right to refuse medical treatment
1.
2.
A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended
3.
A state may prevent family members from terminating treatment for another
approach to equal protection questions
What is the classification?
Constitutional provisions concerning equal protection
*The equal protection clause of the 14th amendment applies only to state and local governments (Never applies to federal government)
Test for racial classifications
Use strict scrutiny
How is the existence of a racial classification proven?
If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent (Discriminatory impact alone is not enough)
Example: discriminatory use of preemptory challenges denies equal protection
How should racial classifications benefiting minorities be treated?
1.
2.
Numerical set-asides require clear proof of past discrimination
3.
Educational institutions may use race as one factor in admissions decisions to help minorities
4.
Seniority systems may not be disrupted for affirmative action
Gender Classifications
Intermediate scrutiny should be used – must have exceedingly persuasive justification for the classification
How is the existence of a gender classification proven?
If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent
Example – discriminatory use of preemptory challenges denies equal protection
How should gender classifications benefiting women be treated
Gender classifications benefiting women that are based on role stereotypes will not be allowed
Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed
Alienage Classifications
Only a rational basis test is used for alienage classifications that concern self government and the democratic process (voting, jury, being a police officer, teacher, or probation officer, but for notary public – strict scrutiny)
Only a rational basis test is used for Congressional discrimination against aliens
It appears that intermediate scrutiny is used for discrimination against undocumented alien children
Discrimination against non-marital children
Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional
Rational basis review is used for all other types of discrimination under the Constitution
1.
2.
disability discrimination
3.
wealth discrimination
4.
economic regulation
5.
sexual orientation discrimination
The right to travel
Durational residency requirements must meet strict scrutiny (50 days is the longest durational residence requirement)
Restrictions on foreign travel need meet only the rational basis test
The right to vote
One person-one vote must be met for all state and local elections
At large elections are constitutional unless there is proof of a discriminatory purpose
The use of race in drawing election district lines must meet strict scrutiny
The right to education
There is NO fundamental right to education
Content based v. content neutral restriction
1.
2.
Subject matter restriction (ability to engage in speech depends on its topic)
3.
Viewpoint restriction (Depends on the ideology of the message)
Prior restraint
Court orders suppressing speech must meet strict scrutiny. Procedurally proper court orders must be complied with until they are vacated or overturned (collateral bar rule – violation of ct order stops person from challenging constitutionality of order)
Gag orders on press to stop prejudicial pretrial publicity will not be allowed
The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review
Vagueness definition
Vagueness – a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted
Overbreadth definition
Overbreadth – a law is unconstitutionally overbroad if it regulates substantially more speech that the constitution allows to be regulated
Fighting Words
Fighting word laws are unconstitutionally vague and overbroad (words directed at another trying to get a violent response)
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 to the government’s purpose (example – killing of bar examiner)
Examples of symbolic speech
1.
2.
draft card burning = not protected
3.
nude dancing = not protected
4.
burning cross or painting a swastika = protected
5.
penalty enhancements = constitutional
6.
contribution limits = constitutional
7.
expenditure limits = unconstitutional
Anonymous speech
PROTECTED by the constitution
Unprotected/Less speech
1.
2.
obscenity and sexually-oriented speech
3.
commercial speech
4.
defamation
5.
privacy
Incitement test
1.
2.
Directing at causing illegality
Obscenity Test
1.
2.
The material must be patently offensive under the law prohibiting obscenity
3.
Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value
Obscenity application – what can government do to fight against it ?
Child pornography may be completely banned, even if not obscene
The government may not punish private possession of obscene, but the government may punish private possession of child pornography
The government may seize the assets of businesses convicted of violating obscenity laws
Profane and indecent speech is generally protected by the First Amendment
Exceptions: Over the broadcast media (TV and radio not cable) because it is uniquely intrusive into the home and in schools
Commercial speech
1.
2.
True commercial speech that inherently risks deception can be prohibited
3.
Other commercial speech can be regulated if intermediate scrutiny is met
4.
It is unclear whether government regulation of commercial speech must use the least restrictive alternative
Inherently dangerous commercial speech that can be regulated
The government may prohibit attorney in person solicitation of clients for profit
The government may not prohibit CPA in person solicitation of clients
Defamation – plaintiff public official or running for office
Have to prove falsity of the statement and actual malice to recover damages
Defamation – public figure
Those who thrust themselves in the limelight; access to the media; must prove falsity and actual malice
Defamation – private figure and public concern matter
Plaintiff has to prove falsity of the statement and negligence to get compensatory damages; BUT to get presumed or punitive damages – have to show actual malice
Defamation – private figure and private concern matter
Can recover presumed or punitive damages without proof of actual malice (don’t know standard of liability or who has burden of proof)
Privacy speech
The government may limit its dissemination of information to protect privacy
Public forums
Places where government must make available for speech
How can government regulate public forums?
1.
2.
Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication
3.
Government regulation of public forums need not use the least restrictive alternative
4.
City officials cannot have discretion to set permit fees for public determination
Limited/designated public forums
Government could close to speech but chooses to voluntarily open the forum to the speech SO if government has opened it the government has to follow the rules of public forum
Non public forums
Government properties the government can and does close to speech; regulation must be reasonable and viewpoint/content neutral
Examples of non-public forums
Areas outside prisons and jails
Advertising space on city buses
Sidewalks on post office property
Airports
Candidate debates on sponsored by government owned media outlets
Freedom of association – types of unconstitutional laws
Laws that require disclosure of group membership, where such disclosure would chill association must meet strict scrutiny
Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity
To punish membership in a group government MUST prove
To punish membership in a group it must be proven that the person:
1.
Actively affiliated with the group
2.
Knowing of its illegal activities and
3.
With the specific intent of furthering those illegal activities
Free exercise clause application
1.
2.
The free exercise clause cannot be used to challenge a law of general applicability unless the law is motivated by a desire to interfere with religion
3.
The government may not deny benefits to individuals to those who quit their jobs for religious reasons
Establishment Clause Test
1.
2.
The effect must be neither to advance nor inhibit religion
3.
There must not be excessive entanglement with religion
Establishment clause application
1.
2.
Government sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups
3.
The government may give assistance to parochial schools, so long as it is not actually used for religious instruction
Article III grants what types of authority?
1. The authority for judicial review
4 justiciability doctrines
Standing requirements
Injury types and requirements
Causation and redressability
Exceptions to 3rd party standing 1. Exception: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party (Doctor-patient for abortion rights, Barkeeper-customer law)
No generalized grievances – rule and exception
Ripeness OR May federal court allow pre-enforcement review of statute or regulation?
Mootness – Rule and Exception
Appointment Power • The president appoints ambassadors, federal judges and officers of the US
Senate must confirm
** Impeachment by the House of Reps requires a majority vote
conviction in the Senate 2/3 vote
Procedural Due Process Definitions 1. A deprivation of liberty occurs if there is the loss of a significant freedom provided by a statute (before civil commitment
parent institutionalize child – screening by neutral fact finder
Dollan Test for benefit compared to burden government conditions on development use of the property must be justified by a benefit that is roughly proportionate to the burden imposed
otherwise it is a taking (Dollan v. City of Tigard)
Contracts Clause 1. Applies only to state or local interference with existing contracts (Never applies to federal government
Only if interfering with already existing contracts)
2. State and local government's may interfere with private contracts must meet intermediate scrutiny TEST: Substantial impairment of contract rights
Reasonably and narrowly tailored means of promoting an important and legitimate public interest
The right to abortion includes: 1. Prior to validity, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. After viability, states may prohibit abortions unless necessary to protect woman’s health or life (24hr waiting period is not an undue burden
requirement of abortions by licensed physicians is not undue burden
Defamation – public figure Those who thrust themselves in the limelight
access to the media
Defamation – private figure and public concern matter Plaintiff has to prove falsity of the statement and negligence to get compensatory damages
BUT to get presumed or punitive damages – have to show actual malice
Non public forums Government properties the government can and does close to speech
regulation must be reasonable and viewpoint/content neutral