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123 Cards in this Set

  • Front
  • Back
Where can you find the requirements for federal courts (federal judicial power)?
Article 3 of the constitutions, the requirement for "cases and controversies."
What are the 4 justicability doctrines that have to be met before ANY federal court can hear the case.
1) Standing
2) Ripeness
3) Mootness
4) Political Question
Standing
Is the P the proper party to bring the actions?
1) INJURY: P must prove that he has been or will be INJURED. (personally suffered injuries)
2) CAUSATION: Have to show that a favorable ruling would remedy.
3) NO THIRD PARTY STANDING: Exceptions, if there is a close relationship between P and 3rd party and an organization can sue for its members.
4) NO GENERALIZED GRIEVANCES: P must not be suing solely as a citizen or taxpayer.
Ripeness
Want a "declaratory judgment." But is there a case or controversy?
1) What hardship will the P suffer?
2) Does Fed Court have all that it needs to decide the issues?
Mootness
If events after filing the lawsuit end P's injury then it's moot.
EXCEPTION: If it's a harm that could be repeated, they may decide it anyway.
EXCEPTION: If D halts but is free to resume at any time. "I promise I won't do it again."
4 Types of non-justiciable political questions.
1) The "republican form of government clause." (people would elect gov. and gov. will make the laws)
2) Challenges to Barack's foreign policy.
3) Challenges to impeachment and removal process.
4) Challenges to gerrymandering.
4)
Supreme Court of Review
All the cases come there by Cert. The Supreme court has original and exclusive jurisdiction of suits between state governments.
There has to be a final judgment first.
If there is a state law and a federal law ground to bring the claim. If overruling the fed claim will not change the result, the SC won't hear it.
Federal courts may no hear suits against state governments.
11th Amendment protect state governments from being sued in federal court.

Sovereign immunity protects suits against states in state courts.

EXCEPTIONS
1) States must expressly consent to be sued.
2) The federal government may sue state government.
3) Bankruptcy proceedings. You can sue a state in bankruptcy.
4) States may be sued pursuant to section 5 of the 14th amendment.
* State officers can be sued.
Abstention
Federal courts may not enjoin pending state court proceedings.
Legislative/Congress Power
They don't have police power EXCEPT military, indian reservations, federal lands, district of columbia. MILD
LEGISLATIVE POWER: Necessary and Proper Clause
Congress can use any means not prohibited by constitution to carry out its authority.
LEGISLATIVE POWER: The taxing and spending power
Congress may create ANY tax that congress believes will serve the general welfare.

*"general welfare" can only be a right answer if it's about taxing and spending or congresses limited police power.

"The only time congress can act for the "general welfare" is the taxing and spending or the limited police power exceptions.
LEGISLATIVE POWER: The commerce power
1) congress can regulate the channels of interstate commerce (highways, waterways, internet)
2) congress can regulate the instrumentalities (trucks, planes, phones, internet.)
3) congress can regulate intercourse - electricity, stock, cattle, people....anything going across state lines.
4) anything that has a substantial effect on interstate commerce.
LEGISLATIVE POWER: The tenth amendment
1) congress can't compel state legislative or regulatory activity. *Congress can induce states to act by giving rewards on things.
*Congress can prohibit harmful commercial activity by state governments.
LEGISLATIVE POWER: 14th amendment section 5
Congress can't create or expand rights. They can only remedy violations of rights that are already recognized.
LEGISLATIVE POWER: Delegation of legislative powers
No limit exists. Don't pick these as answers
LEGISLATIVE POWER: Legislative Veto
UNCONSTITUTIONAL - Congress attempts to overturn an executive action w/out:

1) bicameralism (both houses) OR
2) presentment (show to the pres.)
LEGISLATIVE POWER: Line Item Veto
UNCONSTITUTIONAL: Pres tries to veto part of the bill while signing the rest into law. Pres has to sign the whole bill or veto the whole bill.
EXECUTIVE POWER: TREATIES
1) state laws that conflict w/ treaties are invalid.
2) If a treaty conflicts with a federal statute, the one that was adapted last in time controls.
3) treaties that conflict with constitution are invalid.
EXECUTIVE POWER: EXECUTIVE AGREEMENTS.
Agreement between the US and a foreign country.
1) No senate ratification is required.
2) Can be used for ANY purpose
3) Never has one been invalidated.
4) Prevail over conflict state law, but NEVER over conflicting federal law.
5) Pres has broad power to use american troops in foreign countries. Choose 1) political question 2) broad powers.
THE EXECUTIVE POWER: Appointment power
Pres appoints ambassadors, federal judges, and officers of the U.S. The senate must CONFIRM it.

Congress may appoint inferior officers.

*inferior officers are those that can be fired.
*congress cannot give the appointment power to itself or its officers.
THE EXECUTIVE POWER: Removal Power
Pres may fire any executive branch office unless limited by statute.
1) must be an office where independence is desireable.
THE EXECUTIVE POWER: Impeachment and removal
The President, vice president, federal judges, and officers of the U.S. can be impeached.
1) impeachment does not remove.
2) House has sole power to impeach (majority), Then there is a trial in the Senate (2/3). Only if Senate convicts is there removal.
3) Pres has absolute immunity to civil suits while in office (but not things that occurred prior to office)
4) executive privilege, keep secrets, but must yield to an important gov. interest. 5) Pres has power to pardon ACCUSED and CONVICTED of FEDERAL CRIMES.

*Only FEDERAL LIABILITY
*Only CRIMINAL
FEDERALISM (limits on state and local gov power because of existence of national gov. and other states) Express preemption:
If a federal statute explicitly says that federal law is exclusive.
FEDERALISM Implied preemption:
1) If federal and state laws are mutually exclusive. (states may set environmental standards stricter than federal law UNLESS congress forbids it)

2) If state law impedes on a federal objective.

3) If congress evidences a clear intent to preempt state law.

*States may not tax or regulate federal gov activity. Can't pay a state tax out of the federal treasury.

*State can tax mom and pop business on federal land.

*State cannot tax a PX.

Who is going to pay the taxes? If it's anyone other than federal gov't it's okay.
Dormant Commerce Clause (Does the state law discriminate against out of staters)
State and local laws are unconstitutional if they place an undue burden on interstate commerce.

The power lies dormant until a state puts a burden on commerce.

*negative implications of the commerce clause

*Even if the law is NOT discriminatory, the court will balance the burdens and benefits. IF the burdens are outweighed, the law will be struck down.

*If there is a burden, the laws will ONLY be upheld if their is an important interest.

Exceptions: Congressional approval is allowed even if it would violate the DCC.

Market participant exception: State gov May favor own citizens in receiving benefits from gov. programs when dealing with gov. businesses.
Privileges and Immunities Clause of Article 4. (Does the state law discriminate against out of staters)
No state may deny citizens of other states of the P and I it accords its own citizens.



*This is an anti-discrimination provision.

*Applies only when a state is discrimination against OUT OF STATERS

*If no discrimination it's inapplicable.

*Discrimination must involve civil liberties or important economic activity (no elk hunting)."

*Corporations and aliens cannot use the privileges and immunities clause.

*The discrimination will be allowed only if there is an important gov. interest.
Privileges or immunities clause of the 14th Amendment
Freedom of travel is a fundamental right, you can't inhibit interstate migration.

*ALWAYS a wrong answer unless question involves the RIGHT TO TRAVEL.
State taxation of interstate commerce
1) states may not use their tax systems to help in state businesses. (purchased ethanol in state, you get a tax credit. This is wrong.)

2) State may only tax activities with a substantial nexus to the state.

3) State taxation of interstate companies must be fairly apportioned.
2)
Full Faith and Credit
Courts in Utah must give full faith in credit to judgements in CA so long as
1) CA had PJ and SMJ
2) Decision is on the merits.
3) Judgement must be final.
Private conduct and the constitution
The constitution applies only to government action. 1st amendment doesn't apply at a private school.
Private conduct and congress
Congress can adapt laws regulating private behavior. Congress has created statutes preventing private race discrimination. (discrimination never violates the 13th amendment by itself but it can violate a federal statute adopted by congress under the 13th.)

1) Congress may prohibit private race discrimination.
2) Commerce power can be used to apply constitutional norms to private conduct.
3) Congress cannot use section 5 of the 14th amendment to regulate private behavior.

*Exceptions - private conduct must conform w/ the constitution where the private entity is performing a task traditionally exclusively done by the gov. (JW's can proselyte where a company owned the whole town)

Entanglement exception: If the gov. affirmatively authorizes or encourages the unconstitutional activity the constitution applies. (If gov leases spaces to a restaurant that discriminates, free textbooks to schools that discriminate)
The Bill of Rights
The Bill of Rights applies JUST TO the federal gov't. All of the Bill of Rights apply to State and Local Governments EXCEPT: 2nd amendment right to bear arms. 3rd Amendment right to not have a soldier quartered in a person's home. 5th amendment right to grand jury indictment in criminal cases. 7th Amendment right to jury trial in civil cases. 8th Amendment right against excessive fines.
Levels of Scrutiny
Rational Basis Test - A law will be upheld if it is rationally related to a legitimate gov't purpose. (Gov's goal just has to be something that's permissible - it's actual purpose doesn't have to be legit.) Gov't almost always wins & challenger has the BOP.

Intermediate Scrutiny - A law will be upheld if it is substantially related to an important gov't purpose. (Govs goal must be more than something legit, the interest has to be important. The means has to be a very good way of achieving the goal. Narrowly tailored. But it doesn't have to be the best way.) Gov't has the burden of proof.

Strict Scrutiny - A law will be upheld if it is necessary to achieve a compelling gov't purpose. (Must be vital. Look only to the actual purpose. The means must be necessary to achieve the objective. Least Restrictive Alternative Analysis - no less restrictive alternative can achieve the goal. Gov't generally looses. Gov't has the burden of proof.
Procedural Due Process
1) Has there been a deprivation of life liberty or property (Loss of a significant freedom provided by the Constitution or statute)

* A person has a property right if there is an "entitlement".

*Has to be intentional or reckless gov't act. (emergency situation - the gov't has to act with the intent of causing the harm)

* Generally gov't has no duty to protect people from private inflicted harms.

*Example - before an adult can be institutionalized, there must be notice in a hearing.

*Example - When a parent institutionalizes a child, there needs to be a screening by a neutral factfinder.

*Example - Harm to reputation itself is not a loss of liberty.

*Example - Prisoners rarely have a liberty interest.

*(CUSTODY - notice and a hearing before custody is terminated)

2) What procedures are required? Balancing 1) The importance of the interest to the individual 2) the ability of additional procedures to increase the accuracy of the fact-finding 3) Governments interests

*Example before welfare benefits can be terminated, there must be notice and a hearing.

Example: When social security benefits are terminated there need only be a POST termination hearing.

Example: When a student is disciplined by a public school, there must be notice of the charges and an opportunity to explain.

Example: Before child custody can be terminated, there must be notice and a hearing.

Example: Punitive damages require instructions to the jury and judicial review.

Example: An american citizen detained as an enemy combatant must be given due process.

Example: Except in exigent circumstances, pre-judgment attachment or government seizure of assets must be proceeded by notice and a hearing.

*Gov may seize property used in illegal activity even if it has an innocent owner.


CHART

Has there been a deprivation of life liberty and property?

What procedures are required? 3 Part balancing test.
Substantive Due Process
Is there an adequate justification for taking away a person's life, liberty, or property?

*(CUSTODY - a compelling reason for terminating custody such as parental abuse and neglect. )
Equal Protection
How people are treated in relation to other people.
Protection to economic liberties
Only has minimal protection. Rational basis test.
Takings Clause
Test:
1) Is it a possessory taking or a regulatory taking?

* possessory - government confiscation
*regulatory taking - gov. regulation leaves no reasonable viable use of the property. (Not just because it decreases value).
-Government conditions on development of property must be justified by benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.
- A property owner may bring a takings challenge to regulations that existed at the time the property was acquired.
- temporarily denying an owners use of property is NOT a taking if reasonable.

2) Is it for public use? If not for public use, the gov't is going to have to give the property back.

*gov't has defined public use so broadly that almost all takings will meet it. "so long as the gov act w/ reasonable belief that the taking will benefit the public"

3) Is just compensation paid.
*Measure in terms of the loss to the OWNER.
The Contracts Clause
No State shall impair the obligations of contracts.

*applies only to state or local interference w/ already existing contracts. Doesn't apply to federal gov't

*applies only to existing contracts.

*intermediate scrutiny. BUT a little different.

* State or local interference with government contracts must meet strict scrutiny.

*Ex post facto law is a wrong choice.
Privacy
A fundamental right.

The right to marry (strict scrutiny)

The right to procreate (strict scrutiny)

The right to custody of one's children (strict scrutiny)

The right to keep the family together. (strict scrutiny)

The right to control the upbringing of one's children. (strict scrutiny)

The right to purchase and use contraceptives. (strict scrutiny)

The right to abortion. (no longer is strict scrutiny used). Prior to viability, states may not prohibit abortions, but may regulate them so long as they do s create an undue burden on the ability to obtain abortions. (Undue burden test).

*24 waiting period, requiring licensed physicians, prohibition of partial birth abortions are NOT undue burdens.

After viability, states may prohibit abortions unless necessary to protect the woman's life or health.

*Gov isn't required to fund or provide abortions in public hospitals.

Spousal consent laws are unconstitutional.

Parental notice for unmarried minors may be required ONLY IF it provides an alternative where a minor can obtain an abortion by going before a judge who decides it's in her best interest, or she's mature enough to decide herself.

The right to engage in private consensual homosexual activity.

The right to refuse medical care. 1) competent adults can refuse medical treatment. 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 member from terminating treatment for another.

No constitutional right to physician assisted suicide.
The right to bear arms / 2nd amendment.
(Ct didn't' indicate the level of scrutiny)
It's not an absolute right, gov can decide who has them and where they have them.
The right to travel
Laws that prevent people that move into a specific state must meet strict scrutiny.

Durational residence requirement (before getting a benefit such as welfare) must meet strict scrutiny.

SC has said 50 days is the maximum allowable to vote.

Rational basis test is used for restrictions on foreign travel.
The right to vote
Laws that keep some citizens from voting must meet strict scrutiny. Requirement that people pay a fee (poll tax) to vote is unconstitutional. Property ownership requirements for voting or holding public office are almost always unconstitutional.

All districts must be about the same in population.

At large elections (where all of the voters vote for all of the office holders) is allowed unless proof that it exists for discriminatory reasons.

The use of race as a predominate factor in drawing election districts, the gov. must meet strict scrutiny.

The right to education is NOT a fundamental right.
Equal Protection
Whenever the gov. draws a distinction among people.
1) what is the classification
2) what is the level of scrutiny
3) Does the gov's action meet the level of scrutiny.

14th amendment equal protection NEVER applies to the federal gov.

5th amendment equal protection thru due process clause DOES apply to the federal gov.

Due process clause of the 5th amendment
Race or National Origin
If the gov discriminates against people because of their race or national origin (Strict scrutiny). How is existence of race origin proven? 1) the law in its very terms draws a distinction among people.
2) If a law is facially neutral, proving racial classification requires demonstrating both discriminatory impact and discriminatory intent.
3) how should racial classifications benefiting minorities be treated? Strict scrutiny. Education institutions may use race as one factor in admissions decisions to help minorities. Public school systems may not use race in assigning students to schools unless (strict scrutiny)

How do you prove racial classifications?

The classification exists on the face of the law.

If the law is facially neutral then demonstrating both discriminatory impact and discriminatory intent.
Gender Classifications
Intermediate Scrutiny + an exceedingly persuasive justification. How do you prove it? The classification exists on the face of the law. If the law is facially neutral then demonstrating both discriminatory impact and discriminatory intent.

The discriminatory use of preemptory challenges based on gender denies equal protection.

Gender classifications that benefit women that are based on roll stereotypes are NOT allowed.

Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.
Alienage Classifications
Discriminate against non-US citizens. Generally strict scrutiny is used. There are several

EXCEPTIONS where rational basis:

Gov can discriminate against non-citizens w/ regard to voting, serving on a jury, police officer, teacher, or probation officer. (not a notary public)

Rational basis for discriminating a congressional statute.

Intermediate scrutiny is used for discrimination against undocumented alien children. (more than rational basis but less than strict scrutiny).
Discrimination against non-marital children
Intermediate scrutiny is used.
Laws that deny a benefit to all non-marital children but grant to marital children are unconstitutional.
Only Rational Basis Review is used for (gov wins):
Age discrimination
Disability discrimination
Wealth discrimination
Economic regulations
Sexual orientation discrimination
The First Amendment
Content based restriction must meet strict scrutiny. To find content based 1) Subject matter restrictions
2) Viewpoint restrictions (pro-war allowed, anti-war not allowed)

Content neutral laws only have to meet intermediate scrutiny. (all parades in parks)

Prior restraints: stopping speech before it occurs. Ct orders must meet strict scrutiny.

Gag orders on the press are not allowed.

A government can require a license for speech only if there is an important reason.

Vagueness; A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

over-breadth: a law is over-broad if it regulates more speech than the constitution allows it.

fighting words laws are ALWAYS vague and over-broad.

Symbolic Speech: flag burning is protected. Draft card burning is not protected speech. Nude dancing is not protected speech. Burning a cross is protected when no intimidation. Contribution (spending all you money on one candidate) limits in election campaigns are constitutional. But expenditure (spending all your money on many candidates) limits are unconstitutional. Anonymous speech is protected.
What types of speech are unprotected or less protected by the first amendment.
Insightment of illegal activity: unprotected by first amendment. Gov. may punish if there is a substantial liklihood of illegality and the speech is directed at causing illegality.

Obscenity and sexually oriented speech:
1) The material must appeal to the prurient interest (shameful or morbid interest in sex)
2) Material must be patently offensive under the law prohibiting obscenity.
3) As a whole, material must lack serious redeeming artistic literary political or scientific value.

Gov may use zoning ordinance to regulate location of adult bookstores and movie theatres.

Gov may prohibit child pornography even if it's not obscene. However, in order to be considered child pornography, it must actually have children.

Gov may not punish a person for having obscene material in his home, except child pornography.

Gov may seize the assets of businesses convicted of violating obscenity laws.

Profane and indecent speech is generally protected by the First Amendment. "to sensor words is to sensor ideas" EXCEPTIONS: Over the broadcast media; in schools.

Commercial Speech: Avertising illegal activity, and false and deceptive ads are not protected by the 1st amendment. True commercial speech that risks deception can be prohibited. The government may prevent professionals from advertising or practicing under a trade name. They government may prohibit attorney, in-person solicitation of clients for profits. A state may not prohibit accountants from in person solicitation of clients for profits. Attys are trained in advocacy.

Other commercial speech can be regulated in intermediate scrutiny is met.

Government regulation of commercial speech must be narrowly tailored, but does not need to be the least restrictive alternative.

Defamation: Defamatory speech is not protected by 1st amendment. If P is a public official, there must be proof of falsity and actual malice. If P is a public figure, the P can recover for defamation by proving falsity of the statement and actual malice.

If P is a private figure and the matter is of public concern the P can recover by proving falsity and negligence. Recovery of presumed or punitive damages must show malice.

If P is a private figure and the matter is not of public concern, P can recover presumed or punitive damages w/out showing actual malice.
Privacy
A state may not create liability for truthful reporting of information that was lawfully obtained.

Media may not be held liable for broadcasting a type that has been illegally intercepted if the media did not participate in the illegality and involves a matter of public importance.

The government may limit it's own dissemination of information to protect privacy.

1st amendment does not protect gov. employees on the job in performace of their duties.

Other government restrictions based on the content of speech must meet strict scrutiny.
What places are available for speech?
Public forums are gov. properties that the gov. is constitutonally required to make available for speech (sidewalks and parks).

Limited Public Forums: gov. properties that the gov could close to speech but chooses to open to speech. (Schools on weekends)

Non-public forums - government properties that the gov can constitutionally close to speech. I.e. military bases, areas outside prisons and jails, advertising space on city buses, sidewalks on post office property, airports.

There is no first amendment right of access to private property for speech purposes. (shopping centers) Under CA constitution you can use shopping centers.
Freedom of association
laws that prohibit group membership must meet strict scrutiny. 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 specific intent of furthering those activities.

Freedom of association does not give groups the right to discriminate.

If someone was not invited to a small dinner party they can exclude.

The Boy Scouts can discriminate against a gay leader because their message is anti gay.
Freedom of religion
The free exercise clause: Cannot be used to challenge a neutral law of general applicability.

The government cannot deny benefits to those who quit their jobs for religious reasons.

The establishment clause test:

1) there must be a secular purpose for the law
2) the effect must be neither to advance nor inhibit religion.
3) there must not be excessive entanglement with religion.
SEX - secular purpose, effect must not advance or inhibit religion, no x-cessive entaglement with religion.

Government sponsored religious activity in public schools is unconstitutional. Graduation prayers are not allowed. Student prayers at football games are not allowed.

Religious student groups must have the same access to school facilities as non-religious groups.

The gov. may give assistance to parochial schools as long as it's not used for religious instruction.
If government action fails any prong, it fails the establishment clause.
When a town creates voting districts that are disproportionate (mal-apportionment), in what way does it violate the constitution?
Violates the equal protection clause of the 14th amendment.
Equal Protection Clause of the 14th and the Due Process Clause of the 5th
Unreasonable discrimination by state governments can be challenged under the equal protection clause. But it doesn't exist for the Federal Gov. Grossly unreasonable conduct violates the Due Process Clause of the 5th amendment.
A classification based on gender is...
subject to an intermediate level of scrutiny. Thus, requires a "substantial" rather than "rational" to important government interest.
What is the privilege and immunities clause?
citizens shall be provided the privileges of those in other states. No discrimination of "fundamental rights."
How does the establishment clause affect discriminating against religion?
If a law prefers some religious sects over others, the law will be invalid unless narrowly tailored to promote a compelling government interest.
Can congress regulate the wages of a states private employers?
Yes. Under its commerce power.
Executive agreement vs. state laws
executive agreement wins. They cannot override a valid federal statute.
How is the power over war shared between the Congress and the President?
President is the Commander in chief but Congress has the power to declare war and raise an army and navy.
What's the deal when a private party has a claim against a state's government?
The 11th amendment generally prohibits the federal court from hearing it.
Federal Judicial Power extends to
Interpretation (treaties, federal laws, constitution) and Disputes (states, foreign citizens and states, diversity)
No Advisory Opinions
There must be a specific present harm or specific future harm. Even a statute will not be determined if there is no real threat that it ever will be enforced.
Mootness
There must be a real controversy and if it's already been resolved then it's moot EXCEPT for controversies capable of repetition and evading review.
Components of Standing
Injury

Causation

Redressibility
Standing to Assert Rights of Others
Only if:

Difficult for third party to assert own rights.

A special relationship between claimant and third party.
Standing of an Organization
1) injury in fact to members on their own behalf

2) injury related to orgs. purpose

3) individual member participation in lawsuit not required.
Citizenship Standing
People don't have standing as mere citizens. Too generalized.
Adequate and Independent State Grounds
The Supreme Court will not excercise jurisdiction if the state court judgment is based on adequate and independent state grounds. (not based on federal case interpretations)
Political Questions
1) constitutionally committed to another branch of gov't.

2) inherently incapable of judicial resolution.
Eleventh Amendment Limits on Federal Courts
Prohibits Federal Courts from hearing a private party's or foreign gov't's claims
What powers can congress excercise?
1) Enumerated in the Constitution
2) Necessary and Proper (never standing alone)
Who has the taxing power?
Congress, and most taxes upheld if some reasonable relationship to revenue production or if Congress regulates the activity taxed.

Neither congress or the states may tax exports to foreign countries.
Spending power
Congress may provide for common defense and general welfare. Spending may be for any public purpose.
General Welfare
Federal Gov can tax and spend for it, but can't directly legislate it. Non-spending regulations cannot be supported by the GWC.
Commerce Power
Congress has exclusive power to regulate all foreign and interstate commerce.

1) Instrumentalities
2) Channels
3) Substantial effect on interstate commerce (intrastate activity must be related to economic or commercial activity, rational basis that in the aggregate substantially affects interstate commerce.
War and Related Powers
The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy
Military Courts Jurisdiction
Military courts have jurisdiction over all offenses committed while in the armed forces or while charged as a member.
Property Power
Congress has the power to dispose of and make rules for properties of the US. i.e. federal park land.
Federal Police Power
1) District of Columbia
2) Federal lands
3) Indian Reservations
Bankruptcy Power
Congress authority to establish rules of bankruptcy is non-exclusive. States can do it, as long as laws don't conflict.
Postal Power
Is exclusive. Congress can put down all restrictions, but not deprive citizen of the general mail privilege.
Power over citizenship
Congress controls naturalization. Plenary power over aliens. However, resident aliens are entitled to notice and a hearing.
Admiralty Power
Plenary and exclusive.
Patent and Copyright law
Congress has the power to control the issuance of patents and copyrights.
A valid delegation of legislative power requires...
Intelligible standards. Almost anything will pass.
Speech and Debate Clause
Conduct that occurs during normal fed. legislation is immune from prosecution
A legislative veto
Congress overturn executive agency
without bicameralism
or presentment
Appointment powers
Pres: ambassadors, public ministers, consuls, justices

Congress: inferior officers
Congress Removal Power
Congress can remove executive officers only through the impeachment process.
Pardons
Pres may grant pardons for federal offense but not for impeachment or civil contempt. Pardon power cannot be limited by congress.
Veto Power
Pres vetos but can be overridden by 2/3 vote of each house.
Pocket Veto
Pres had 10 days
If Congress is not in session - veto
If congress is in session - law
Line item veto
Unconstitutional - pres picks and chooses the parts of the bill he likes.
Power as Chief Executive
Some dispute

If Pres acts w/ express or implied authority of congress, likely valid

If congress is silent, action will be upheld.

IF against Congress, likely invalid.
President's War Power
President has no power to declare war but may act militarily. Congress has power to appropriate to military and can limit pres. power
Foreign Relations
Pres has paramount power to represent the US.
Treaty Power
Pres has power to enter treaties w/ 2/3 of the senate.

Treaties are the supreme law of the land

Treaties are subject to constitutional limits.
Impeachment
Grounds: Treason, high crimes and misdemeanors.

Majority in the House
2/3 in the Senate.
Supremacy Clause
Conflict between state and feds will be invalidated

If state law prevents federal objective, invalid.

A valid fed. statute may occupy the whole field. This, state law is invalid even if not conflicting.
The US may sue a state...
without its consent.
A state can sue the United states...
Only with consent.
One state can sue another...
without consent...SC has original jurisdiction
Privileges and Immunities Clause
Prohibits discrimination against nonresidents.

Only fundamental rights protected. (commercial activities and civil liberties)

State must show that there are no less restrictive means.
State Regulation of Commerce
If congress has not enacted laws, a state or local government may regulate local aspects of interstate commerce.

It must not discriminate

It must not unduly burden
"Market Participant"
A state may prefer its own citizens when acting as a market participant
Commodities in the Course of Interstate Commerce
Commodities in interstate transit are entirely exempt from state taxation.

Begins: when cargo is delivered to carrier or starts its journey

Ends: when cargo reaches destination
Thirteenth Amendment
Under the Enabling Clause, Congress can prohibit racial discrimination by gov. or private citizen.
Contract Clause
Private Contracts - Intermediate Scrutiny

Public Contracts - Stricter Scrutiny.
Procedural Due Process
A fair process is required for gov. to take a person's life, liberty or property.

Three part balancing test:
1) importance of the interest
2) Procedural Safeguards
3) Government interest
Indigent P's
Gov. fees must be waived when imposition of a fee would deny a fundamental right to the indigent. However, can be imposed when non-fundamental rights are imposed.

Typically prior notice and prior evidentiary hearing required.
The Taking Clause
5th amendment provides that private property may not be taken for public use w/out just compensation.

Liberally construed: rationally related to a legitimate gov. purpose.
Substantive Due Process
If law limits ALL persons in some activity.

5th amendment federal gov.
14th amendment state gov.

When a fundamental right is limited - strict scrutiny

In other cases - rational basis
Equal protection
If a law treats a person or class differently.
Strict Scrutiny
SS. North Carolina
Intermediate
IS --> SI
Rational Basis
Legit
Alienage Classification
Federal - not SS
State - SS
Undocumented - rational basis
Fundamental Rights
Right of privacy
Right to vote
Right to travel