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53 Cards in this Set

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Is a case justiciable?
Must be a viable case or controvery including:

Standing
Eleventh Amendment
Abstention/Political Question
Ripeness/Mootness
Standing Requirements
Injury, Causation & Redressability.
P must show direct & personal injruy. There must be a connection between the injury and the conduct complained of and a decision in the Ps favor must be capable of eliminating her grievance.
Congressional Conferral of Standing
Congress can't eliminate the case or controversy requirement. Can't extend the scope of federal judicial powers
Standing under a government statute
A P can enforce a federal statute if she is within the zone of interests Congress meant to protect.
Standing to Assert the rights of others
Not generally allowed. But if a person has a claim in her own right they may assert the rights of another party when either 1) it is difficult for the third party to assert their own rights or 2) a special realthioship exists between the claimant and the third party.
Standing of Organizations
1) injury in fact to members that gives them the right to sue on their own behalf 2) injury is related to organizations purpose 3) individual participation in lawsuit is not required.
Citizenship & Taxpayer Standing
No claims as citizens & no taxpayer standing with the exception of attacking taxing and spending on Establishment Clause grounds.
Abstention Doctrine
A federal court may abstain from 1) resolving a constituional question when it turns on unsettled question of state law or when 2) state criminal proceedings are pending (unless there is harassment or bad faith).
Political Question
Issues that are constituionally committed to another branch of government.

Hallmark Examples:
Republican Form of Government
President's foreign policy
Impeachment/removal
Partisan Gerrymander
Quals of elected officials

The court can act on questions such as legislative apporitonment & production of presidential papers.
11th Amendment
Prohibits federal courts from hearing a private party or foreign government's claim against a state government. Also SOVEREIGN IMMUNITY bars an action by a state government in state court, unless the state consents.

Exceptions:
State can waive
Congress can pass laws that allow suit under 14A
Fed Gov can sue State Gov
Bankruptcy proceedings

Can instead sue state officers.
Actions against state officers
1) can seek to enjoin an officer from conduct that violates Const/laws or 2) sue for damages against an officer personally.
Ripeness/Mootness
Ripeness - there must be some harm or immediate threat of harm. (potential statute does not qualify)

Mootness - won't consider a resovled matter unles 1) capable of repetition, but evading review 2) volutary stopping but free to resume 3) class actions when the representative's issue is moot but other's arent.
Supreme Court Review
1) Cert - discretion - rule of 4
2) Mandatory review for decisions of 3 judge panel in federal district court - case skips court of appeals
3) exclusive JX for suits between states & ambassadors (concurrent w/ other feds)
What can congress regulate under the commerce power?
1) Channels of interstate commerce
2) Instrumentalities of interstate commerce (persons and things)
3) Activities that have a substantial effect on interstate commerce. A court will uphold a regualtion on an entirely intrastate activity if it is an economic or commercial activity and the court can concieve or a rational basis under which Congresss could find the activity in aggregate affects interstate commerce. But, if it is noncommercial and non economic, Congress must show a substantial economic effect.
Congressional Authority to Act under the police power
Only MILD police powers - Military, Indians, Lands and DC.
Taxing power
The tax must either 1) bear a reasonable relationship to revenue production or 2) Congress should have the power to regulate the activity being taxed.
Spending power
for the general welfare - congress can dispose of property.
Congress - War Power limitations
1) Congress cannot deny habeas corpus review to aliens detained as enemy combatants without a meaningful substitute for review. 2) American civilians may be tried by military courts under martial law only if actual war forces the courts to shut down.
Congress - power over citizenship
Can establish uniform rules. Can deny aliens entry because of their political beliefs. However resident aliens are entitled to notice and a hearing before they can be deported. Congress cannot deprive someone of citizenship without their consent.
Delegation of Legislative Power
Must set intelligible standards and it must not be a power that is confied to Congress under the Constitution.
Speech and Debate Clause
Conduct in the course of the federal legislative process is immune from prosecution. Immunity doesn't cover bribes, speeches outside of Congress, republication in a press release.
Presidential appointment powers
Preident appoints with advice and consent of teh enate. Congress can vest appointment of inferiror officers in the president, the courts or the heads of departments but congress cannot give itself this power. Removal is entirely up to the president, unless statutory limitations for good cause in certain job titles that require it. Congress can only remove through impeachment.
Pardon power
all FEDERAL offenses. Cannot be limited by Congress. Doesn't include civil contempt, even where jail time exists.
President's power as Chief Executive (Steel Seizure Framework)
1) Authority is at it's maximum when Pres acts with express or implied consent from Congress 2) when Congress is silent Pres power will be upheld unless it interferes with sep of powers 3) President acts against the will of congress his action is likely invalid.
Executive Privilege/Immunity
Priviledge - to keep confidential communications secret. In criminal proceedings, prosecution can demonstrate need.

Immunity - absolute immunity for civil damages based on action Pres takes in his official responsibility. Extends to presidential aides w/ discretionary authority.
Preemption
1) If a state or local law prevents acheivement of a federal objective it is invalid.
2) If a federal statute expressly or impliedly occupys the entire field this precludes any reguatlion even if it is non conflicting.

Courts presume police powers are not superseeded unless that is the clear purpose of Congress
Interstate Compact Clause
An agreement between states that increases their powers at the expense of federal powers must have Congressional approval.
Full Faith and Credit requirements
1) JX 2) on the merits 3) final judgment
Intersovereign Litigation
1) U.S. can sue a state without it's consent
2) U.S. government must give consent to be sued by a state
3) A suit against a federal officer is brought against the U.S. if the judgment would be satisifed out of the treasury or if it interfers with public adminsitraiton. However, specific relief against an officer as an individual is allowed if the officer acted ultra vires.
4) State may sue another state in the S.C. without consent.
Can the Federal Government tax or regulate state and/or local governmental activities?
Only if both the public sector and the private sector are regulated (ex: minimum wage). Regulating or taxing only the state would be limited by the 10th amendment.

Exception - Congress can restrict state activities that violate civil rights.
Exception - Congress can regulate states trhough the spending power.
Commandeering State Officials
Congress may not require state executive officials to enforce federal laws.
Can the state tax/regulate the federal government?
No, not without the consent of congress. However, nondiscriminatory, indirect taxes are permissible if they don't unreasonably burden the federal government (income tax on federal employees).
Article IV - Priviledges and Immunities
Only protects people not corps/aliens. Prohibits discrimination by a state against a nonresident. Only fundamental rights and civil liberties are protected. Subject to "Substantial justification" for the different treatment. State must show that nonresidents cause/contribute to the problem and that there are no less restrictive means of solving the problem.

Consider Dormant Commerce Clause when using P&I
Priviledges and Immnities - 14th Amendment
States cannot deny citizens the P & I of NATIONAL citizenship. Essentially right to travel, vote for federal officers, petition Congress for redress
Dormant Commerce Clause
Facially Discriminatory & unduely burdensome it is invalid unless 1) Market participant 2) furthers an important, noneconomic state interst & no reasonable nondiscrimintaory alternatives or 3) law favors government performing traditional government functions

If non facially discriminatory - does it still place a burden on interstate commerce. If so, it is invalid unless the states interest outweighs the burden.

Actions under the DCC can be brought by an alien or a corporation.
Bill of Rights, those not extended to states
3rd/Quartering
5th/grand jury
7th/jury in civil
8th/excessive fines
13th amendment
Prohibits slavery & involuntary servitude. Under enabling Clause, Congress can prohibit racially discriminatory action by ANYONE (the government or a private citizen)
14th Amendment - Due Process, Esp. Section 5
Only involves state action. Section 5 gives Congress power to adopt legislation to enforce the 14th. They may not expand rights or create new ones, but they may adopt legislation that is "congruent and proportional" to remdying a violation of rights.
Commerce Clause & racial discrimination
Congress can use the substantial effect on interstate commerce prong to limit private racial discrimination.
Rights of National Citizenship
Right to assemble, travel and petition Congress
When can private action constitute state action?
When either individuals 1) perform exclusive public functions or 2) have significant state involvment (when a state affirmatively facilitiates discrimination/enforcing a discriminatory covenant)
Contract Clause
Prohibits sates from enacting a law that retroactively impairs contract rights. If a federal issue, look at due process (5th amendment). Contract Clause doesn't apply to Feds.

1) state legistlation that substantially impairs an existing contract is invalud unless it 1) serves and important and legitimate public interest and 2) it is a reasonable and narrowly tailored means. STRICTER SCRUTINY when the state is a party.
Procedural Due Process (General Rule)
A fair process (notice & hearing) is required for a gov't to take a person's life, liberty or property. Must e intentional or "shock the conscience." Balancing Test...(on another card)
Deprivation of LIberty
loss of freedom of action or statutory freedom

1) Except in an emergency, before an adult can be instituionalized, there must be notice and a hearing

2) When a child is institutionalized by a parent, only a screening by a neutral fact finder

3) Harm to reputation is not loss of liberty
Deprivation of Property
An entitlement, where there is a reasonable expectation of continued benefit (welfare benefits)
Balancing Test for Procedural Due Process
1) Importance of the interest to the individual 2) government's interests in efficiency/money 3) The ability of additonal procedures to increase the accuracy of fact finding.
Government Fees & Indigent Plaintiffs
When government fees would deny a fundamental right, the fee must be waived. (marriage, divorce, filing fee for election)
The Taking Clause, in general
5th amendment - The government may take private property for public use if it provides just compensation.
Takings attack
1) Is there a taking? 2) Is it for public use? 3) Has just compensation been paid?
When a taking exists?
1) posessory taking or 2) reulatory taking that leave no reasonalbe econoically viable use of the property
Defining public use
Very broadly defined - so long as the government acts out of a reasonable belief that the taking will benefit the public
Measuring just compensation
Measured in terms of loss to the owner. (Fair market value)
Takings, Special Rules
1) Government conditions on devleopment must be justified by a benefit that is proportionate to the burden or it is a taking.
2) a property owner may bring a takings challenge to regs that existed before they owned teh property
3) temporary deprivation is not a taking if the action is reasonable