Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
62 Cards in this Set
- Front
- Back
|
scope of federal judicial power |
Jurisdiction limited to: - cases, in law and equity, arising under US Constitution, federal laws, and treaties; - cases affecting ambassadors, public ministers, and consuls; - cases of admiralty and maritime jurisdiction; - US as a party; - between two or more states; - between state and citizens of another state; - diversity of citizenship |
|
|
governmental/sovereign immunity |
Citizens of one state are prohibited by the Eleventh Amendment from suing their own state or another state on federal claims for money damages, in federal or state court, without the state's consent. Congress can authorize private suits by individuals to compensate for state violations of the 13th, 14th, and 15th amendments. |
|
|
limitations on federal court jurisdiction |
Case or controversy + RAMPS Ripeness Abstention & Adequate State Grounds Mootness Political Questions Standing Ripeness = claims may not be heard if they haven't fully developed (unless plaintiff can show law presents a specific or present harm or a threat of specific future and imminent harm). Abstention = federal court refuses to hear a particular case involving undecided state law issues. Adequate & Independent State Grounds = SCOTUS will not take jurisdiction if a state court decision has support from an adequate and independent state ground even if the decision involved a federal question. Mootness = actual case or controversy must exist at all stages of litigation except where the injury is capable of repetition yet evading review. Political question = a matter assigned to another branch by the constitution or incapable of judicial answer. May not be heard by federal courts. Standing = injury-in-fact + causation + redressability. Third parties can only assert standing if a special relationship exists between the claimant and third party & the third party is unable or finds it difficult to bring suit on his own behalf. |
|
|
jurisdiction of SCOTUS |
Original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls and those in which a state shall be a party. Congress cannot enlarge or restrict this original jurisdiction. Appellate jurisdiction in all other cases, both as to law and fact, with such exceptions and under such regulations as Congress shall make. SCOTUS can hold acts of other branches of federal government unconstitutional; hold state statutes unconstitutional; review state court decisions; decide other state law questions. |
|
|
invoking SCOTUS appellate jurisdiction |
1. By appeal (where jurisdiction is mandatory). 2. By writ of certiorari (discretionary review where four or more justices vote to hear the case). |
|
|
Powers of Congress - Legislative Power |
The power to make laws. Enumerated powers to collect taxes and spend money for the general welfare, to borrow money on the credit of the US, to regulate commerce with foreign nations and among several states, declare war, raise and support military. Implied power (from N&P clause) to make all laws which shall be N&P for carrying into Execution the foregoing powers, and all other powers vested by this constitution in the government of the US or any department or officer thereof. |
|
|
Powers of Congress - Commerce Power |
Congress can regulate: (a) channels of interstate commerce; (b) instrumentalities of interstate commerce; and (c) activities that "substantially affect" interstate commerce. Test for "substantially affect": Congress must show that the regulated activity is "economic" in nature and that the regulated activity (when taken cumulatively throughout the nation) has a substantial effect on interstate commerce. |
|
|
Powers of Congress - Taxing Power |
Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare. (a) objective = raise revenue (b) subjective = intended to raise revenue (c) regulatory = even if a tax has a substantial regulatory effect, if the tax in fact raises revenue, it will be valid |
|
|
Powers of Congress - Spending Power |
Power must be exercised for the general welfare of the United States. Congress may place a condition on the receipt of federal funds by a state if: (a) spending serves the general welfare; (b) condition is unambiguous; (c) condition relates to the federal program; (d) state is not required to undertake unconstitutional action; and (e) amount in question is not so great as to be considered coercive to the state's acceptance. |
|
|
Powers of Congress - War & Defense Powers |
Congress may: (a) declare war; (b) raise and support armies; (c) provide and maintain a navy; and (d) organize, arm, discipline, and call forth a militia. |
|
|
Powers of Congress - Investigatory Power |
Congress may (through N&P) conduct investigations incident to its legislative power. |
|
|
Powers of Congress - Property Power |
Congress has the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the US. |
|
|
Powers of Congress - Power of Eminent Domain |
Power to take property is implied in aid of the other powers granted to the federal government. Fifth Amendment requires that private property shall not be taken for public use without just compensation. |
|
|
Executive Power - Chief Executive |
President executes the laws of the United States. Appointment power = w/advice and consent of Senate, President may nominate and appoint high level officials. Other presidential appointments may be made without Senate approval if Congress has delegated such appointment to him. Removal power = president may remove any executive appointee without cause. President must have cause to remove executive officers with fixed terms and officers performing judicial or quasi-judicial functions. Veto power = President has 10 days to veto something passed by Congress and presented to him. Cannot line-item veto. President may only exercise those powers expressly or impliedly granted by Constitution or an act of Congress. If Congress validly exercises one of its powers and overrides the president, Congress prevails over the president. Executive Privilege = Absolute privilege to refuse to disclose information relating to military, diplomatic, or sensitive national security secrets. Overcome when confidential communications are subpoenaed as evidence in a criminal trial. Obligation to Report = president shall from time to time give Congress information of the State of the Union. |
|
|
Executive Power - Commander-in-Chief |
Military Powers = power to deploy military forces without a formal declaration of war in response to an attack upon the US. Power to seize private property during wartime unless denied by Congress. |
|
|
Executive Power - International Affairs |
Treaty power = make treaties with foreign nations by and with the advice and consent of the Senate. Treaties require 2/3 consent of Senate before enacted. Treaties are either self-executing (take effect without necessity of any further action by Congress beyond consent or ratification) or not self-executing (requiring Congress or state legislatures to pass legislation to implement its provisions.) Executive Agreements = enter such agreements/compacts with foreign nations. Valid and prevail over inconsistent STATE law. Do NOT prevail over federal statutes. |
|
|
impeachment power |
House of Representatives has the sole power to impeach. Senate has the sole power to try impeachments. A 2/3 vote in the Senate is required for conviction. |
|
|
Presidential limit on Congress |
Every act of Congress must be approved and signed by the president before it can become law, or, being disapproved, must be passed by a 2/3 vote of each House. |
|
|
US Const. limitation on state police powers |
(a) reserving certain enumerated powers exclusively for fed. gov't; (b) restricting both fed and state gov't from acting in violation of constitutional provisions; and (c) providing under Supremacy Clause that if Congress enacts legislation w/intention of preempting state law, congressional regulation will control. |
|
|
immunity of federal government |
Federal gov't and its agencies are immune from suits by private individuals except where they allow themselves to be sued. Fed gov't and agencies are immune from state taxation and state regulation. |
|
|
immunity of state governments |
Fed taxation if the tax is applied to either unique state activities or essential government functions. |
|
|
authority reserved for the states |
10th Amendment = powers not delegated to US by the Const., nor prohibited by it to the states, are reserved to the states respectively, or to the people. Dormant Commerce Clause = When Congress has not enacted legislation, the states are free to regulate local transactions affecting interstate commerce, subject to certain limitations, i.e. no discrimination against out of state goods ore economic actors unless the regulation serves a compelling state interest and the regulation is narrowly tailored to serve that interest. Traditionally within state's power to enact legislation for the protection of the health, safety, and welfare of its citizens. If a state regulation furthers no ostensible benefit and imposes a substantial burden on interstate commerce, it will likely be held unconstitutional. |
|
|
reserved state power in taxation |
State taxation of interstate commerce is permissible as long as the tax does not discriminate against or unduly burden interstate commerce. Factors considered by the court: (a) substantial nexus between the activity taxed and the taxing state; (b) tax must be fairly apportioned; (c) tax must not discriminate against interstate commerce; and (d) tax must be fairly related to the services provided by the taxing state |
|
|
state action vs. private action |
Constitutional rights can be violated only by governmental actors, not by private actors. "State action" is a term of art referring to governmental action either by the federal or state governments. 14th and 15th Amendments, therefore, only apply to state action, not private action. Exceptions are (1) public function theory, where a private entity is carrying on activities traditionally and exclusively performed by the government; and (2) significant state involvement, endorsement, or encouragement theory, where the government and private entity are so closely related that the action by the private party fairly can be treated as action by the government. |
|
|
Supremacy Clause
|
Constitution, treaties, and laws of the US are supreme law of the land. Fed law supersedes state law with which it is in direct conflict. Congress can also preempt any state law in an area in which the exercise of fed power is constitutional. Where Congress does not intend to occupy a field completely, and state laws are not otherwise preempted, the states may enact similar legislation. |
|
|
Bill of Rights - applicability to States |
All applicable to states through 14th amendment, except 5th, 7th, and 8th. |
|
|
14th Amendment Privileges or Immunities Clause |
No State shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States. |
|
|
14th Amendment Due Process Clause |
nor shall any State deprive any person of life, liberty, or property, without due process of law; |
|
|
14th Amendment Equal Protection Clause |
nor deny to any person within its jurisdiction the equal protection of the laws |
|
|
Doctrine of Selective Incorporation |
14th Amend. Due Process incorporated 1st Amend., 4th Amend. freedom from unreasonable searches and seizures, 5th Amend. protection against double jeopardy and privilege against self-incrimination and takings clause, 6th Amend. rights guaranteeing speedy and public trial to criminally accused, 8th Amend. prohibition against cruel and unusual punishments, and 2nd Amend. right to keep and bear arms. |
|
|
Procedural Due Process - life/liberty/property |
Life = capital punishment requires rigorous due process protections. Liberty = freedom from bodily restraints; physical punishment; and commitment to mental institution. NOT injury to reputation and forced administration of medicine. Property = public education; continued welfare benefits; retention of driver's license unless hearing; tenured employment; prejudgment attachment/garnishment of wages not allowed; business licensing. |
|
|
Procedural Due Process - Process type |
Process = look at procedural safeguards required. Matthews Test = private interest affected by official action + risk of erroneous deprivation of this interest through procedures used, and the probable value of additional or substitute procedures + government's interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. |
|
|
Procedural Due Process - Irrebuttable Presumptions |
These violate procedural due process. |
|
|
substantive due process - economic regulation |
Economic regulations are upheld if rationally related to a legitimate government interest. |
|
|
substantive due process - fundamental rights |
Sexual orientation = strict rational basis Contraceptives = undue burden test Abortion = undue burden standard Marriage = any substantial interference must be necessary to further a compelling interest Possession of obscenity = possession within privacy of one's home Education = right to privately educate outside public school system Relatives = related persons may live together Death = doesn't have to undergo unwanted medical procedures; no right to die |
|
|
substantive due process - right to travel |
Privileges & Immunities clause + Commerce Clause mutually enforce right of every citizen to travel freely from state to state. Durational residency requirements for dispensing government benefits are subject to strict scrutiny. |
|
|
substantive due process - right to vote |
Fundamental right. Strict scrutiny review to adjudicate restrictions on right to vote. Gov't regulations of ballot-access by candidates based on age, duration of residency, or payment of filing fees require only minimum rational basis scrutiny. Typically follow one-person/one-vote. Voting can be limited to landowners for a special purpose. |
|
|
Takings Clause |
1. Was there a taking? (a) direct government appropriation; (b) regulatory taking, either a permanent, physical invasion, no matter how minor, or a land-use regulation if it denies an owner all reasonable, economically beneficial uses of his land; (c) temporary restrictions; or (d) conditional permits (logical nexus between condition and governmental purposes + rough proportionality between impact on proposed development and governmental objectives served by condition.) 2. Was there compensation? |
|
|
Equal Protection of the Laws - Standards of Review |
Strict Scrutiny = gov't must prove that the challenged measure is necessary (no less restrictive alternative means available) to further a compelling interest. Intermediate Scrutiny = gov't must prove challenged measure is substantially related (exceedingly persuasive justification) to achievement of an important governmental interest. Rational Basis Scrutiny = plaintiff must prove challenged measure serves no legitimate government interest or is not rationally related (law cannot be arbitrary or unreasonable) to any legitimate interest. |
|
|
Equal Protection of the Laws - proving discrimination |
Discriminatory intent, i.e. purposeful discrimination, must be shown to trigger strict or intermediate scrutiny. Facial = a law, by its very language, creates distinctions between classes of persons. As applied = facially-neutral applied in a discriminatory manner. Discriminatory motive exists. |
|
|
suspect classifications |
Race; Alienage; National Origin. Apply strict scrutiny. Laws will be presumptively invalid absent a showing by the state that the measure is necessary to achieve a compelling state interest. |
|
|
quasi-suspect classifications |
Distinctions between legitimate and illegitimate children; based on gender. Apply intermediate scrutiny whether classification is invidious or benign. Statutes that reinforce archaic, gender-based stereotypes will almost certainly be struck down. |
|
|
affirmative action |
Affirmative action measures based on race must pass strict scrutiny. Based on gender must pass intermediate scrutiny. Only justifications upheld are: (a) remedying effects of past or present discrimination in a particular institution; and (b) achieving a diverse student body in an institute or higher education. Quotas are not allowable. |
|
|
other classifications |
Age; disability; sexual orientation; wealth/poverty |
|
|
Privilegs & Immunities vs. Privilegs OR Immunities |
Art. IV, sec. 2 = citizens of each state shall be entitled to all privileges AND immunities of citizens in the several states. States may not discriminate against nonresidents with respect to rights and activities that are fundamental to the national union. 14th Amend. = no state shall make or enforce any law which abridges the privileges OR immunities of citizens of the US. |
|
|
Contract Clause |
Only applicable to state legislation. Requires rational basis scrutiny. Private contracts may be modified by the legislature under its police power when it is necessary to serve an important and legitimate public interest and the regulation is a reasonable and narrowly tailored means of promoting that interest. |
|
|
Ex Post Facto Laws |
Art. I, sec. 9, cl. 3 & Art. I, sec. 10, cl. 1 Statute retroactively alters criminal law if it: (a) makes criminal an act that was not a crime when committed; (b) prescribes greater punishment for a crime after its commission; (c) decreases the amount of evidence required for conviction; or (d) extends statute of limitations for a crime as to which the previously applicable statute of limitations has already expired. |
|
|
Bills of Attainder |
A legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct. Art. I, sec. 9, cl. 3 states: No bill of attainder shall be passed; Art. I, sec. 10, cl. 1 states: No state shall pass any bill of attainder. |
|
|
1st Amendment - Establishment Clause |
Congress shall make no law respecting an establishment of religion. Where a government program prefers one religion or religious sect over others, strict scrutiny analysis applies. Where the legislation or government program contains no religious or sect preference, apply Lemon test: secular legislative purpose for statute + principal or primary effect or purpose must neither advance nor inhibit religion + statute must not foster an excessive government entanglement with religion. |
|
|
1st Amendment - religious activities at public schools |
Invalid: prayer; period of silence with religious motive; posting 10 Commandments; sponsoring nondenominational prayer at public school graduation; anti-evolution laws. Valid: registered student religious organization using school facilities whereas facilities are available to other student groups. |
|
|
1st Amendment - gov't endorsement of religion |
Not allowed. Gov't cannot permit the type of display that a reasonable observer would conclude constitutes an endorsement of religion. Tax deductions allowed because basically charitable organizations. |
|
|
1st Amendment - gov't aid to religious schools |
Only permitted in limited circumstances, such as where a state furnishes textbooks to all students because there was little entanglement and primary effect was secular, or when providing public health services such as a school lunch program etc. |
|
|
1st Amendment - Free Exercise Clause |
A person's religious beliefs are absolutely protected. Gov't may not punish an individual by denying benefits or imposing burdens based on religious belief. State cannot require a person to carry a message on his license plate which offends his religious belief. Gov't may not determine truth or falsity of a person's religious beliefs, but it may determine a person's sincerity in his claim of religious belief. Gov't may regulate or prohibit activity if the regulation is neutral in respect to religion and is of general applicability (peyote case). |
|
|
1st Amendment - Freedom of Expression |
Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. |
|
|
1st Amendment - exceptions to freedom of speech |
1. Strict Scrutiny = regulation is allowable if it passes strict scrutiny. 2. Conduct Regulation = a law which regulates conduct but creates an incidental burden on speech is allowable if (a) the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression; and (b) the incidental restriction on speech is no greater than is essential to the furtherance of that interest. 3. Government as Speaker = where the speaker is the government rather than a private actor, the government may discriminate based on the content of the speech. 4. Unprotected speech = (a) speech advocating violence or unlawful action; (b) fighting words, i.e. words that produce a genuine likelihood of imminent violence by a hostile audience; (c) hostile audience speech, i.e. words that elicit an immediately violent response against speaker by an audience; (d) obscene speech, i.e. speech that (i) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (ii) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (iii) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value; (e) defamatory speech, i.e. where the plaintiff is either a public official or public figure, or where the defamatory statement involves a matter of public concern. 5. Lower-level protection = (a) commercial speech, i.e. cannot advertise matters that are illegal or advertising that is untruthful, misleading, or deceptive. Regulation of commercial speech that is not illegal or false or deceptive must serve a substantial governmental interest + directly advance the substantial governmental interest + not be more extensive than is necessary to serve that interest. (b) sexual speech, i.e. regulation must serve a substantial government interest and leave open reasonable alternative channels of communication. 5. Time, Place, Manner restrictions = reasonable regulation is allowed. Place = public areas, such as streets, sidewalks, and parks, i.e. places historically associated with expressive conduct. These regulations, in public places, must be (a) content-neutral as to both subject matter and viewpoint; (b) be narrowly tailored to serve a significant (important) government interest; and (c) leave alternative channels of communication open. Non-public forum regulation must be (a) viewpoint-neutral; and (b) reasonably related to a legitimate interest. |
|
|
1st Amendment - Freedom of Association |
State action which may curtail the freedom to associate is subject to the closest scrutiny. |
|
|
1st Amendment - public employment |
Individual cannot be denied public employment based upon membership in a political organization unless the position is a high-level policy-making position. An individual may be deprived of public employment for political association if (a) he is an active member of a subversive organization; (b) such membership is with knowledge of the illegal aims of the organization; and (c) he has a specific intent to further those illegal ends. |
|
|
1st Amendment - prior restraint |
Government cannot generally suppress or restrain speech in advance of its publication or utterance. Strong presumption against the constitutional validity of any system of prior restraint of expression. Exceptions: (a) gov't can require prepublication review of writings related to employment of past or present employees where such a review is necessary to protect national security; (b) classified military information; and (c) any case involving a search and seizure is governed by the 4th Amend. Pretrial publicity = 3 factors for determining whether a restraining order against pretrial publicity is appropriate = (1) nature and extent of the pretrial publicity; (2) availability of other measures to mitigate the effects of pretrial publicity; and (3) likely effectiveness of the restraining order. |
|
|
1st Amendment - licensing statute |
Valid provided that it is content-neutral as applied and does not give licensing officials unfettered discretion to determine who may receive a permit. |
|
|
1st Amendment - overbreadth & vagueness |
When a state has the power to regulate an area dealing with free speech, it must not do so by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Governmental regulations must be drawn with narrow specificity. |
|
|
1st Amendment - The Press |
The press has no greater freedom to speak than any ordinary member of the general public does. They have no special right of access to government information. |
|
|
1st Amendment - Bar Admission |
The state is permitted, under the Due Process Clause, to inquire into the qualifications and fitness of candidates for admission to the bar. |
