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42 Cards in this Set

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  • Back
Justiciable Case or Controversy:

Ripeness: plantiff is not entitled to review of a law befoe it is enforced, and acourt will not hear a case nless he plaitif has been hamed or htere is an immediate threat of harm:
Mootnes: one that has eded, r one in whic the plantiff grievaces has been resolved s that there s no longer any dispute for thecourt to decide
justicable case or controversy
juticiable case or controversy:

has to have this i.must show a sufficient stake in the controversy and injury in fact that will be remedied by a decision in her favor. Oranizations - injury to individual members andrelated to organziations purpose
justiciable case or controversy:

i. Sovereign immunity bars suits against states in state courts or federal courts
1. Exceptions:
a. Consent (specific and express waiver)
b. Pursuant to federal laws adopted under § 5 of 14th Amendment
c. By the federal government
11th amendment
justiciable case or controversy:

final judgment from highest state ct, US COA, 3 judge DC Ct
USSC review
kind of constitutinal issue?

no general federal police power, only power by the constitution.
federal legislative powers
what kind of constitutional isue?

Commerce Clause(congress may regulate commerce with foreign nations, Indian tribes, and among the states) with regard to interstate commerce.

Taxing and Spending (Congress may tax and spend for the general welfare)
federal legislative powers
what kind of constitutional issue?

(Congress may enact all laws that are necessary and proper to carry out its authority – must be attached to an enumerated power)
legisative power - necessary and proper clause
what con. issue?

i.Foreign Power: Treaties > negotiated by president and ratified by senate;
Executive Agreement > signed by president and head of foreign nations
1.Commander-in-Chief: broad powers to use American Troops – no review under political, but if hears case, discuss broad powers
ii.Domestic Affairs:
1.Appointment/Removal Power; Immunity from Suit for anything done while in office; Presidential Privilege – in docs & conversations – balance if necessary for criminal trial);
2.Pardon Power – Federal Crimes only
president power
what con issue?

i. General Police Power: states can do anything which is not prohibited by the Constitution under a general police power.
Preemption: if in conflict Fed > state. Express and Implied
State Power
what con issue?

1. Cannot use tax sys to benefit in-state business (tax credits); May only tax activities w/substantial nexus to the state; and Fairly Apportioned (extent)
state power: state taxation of interstate commerce
what con issue?

a state or local law is unconstitutional if it places an undue burden on interstate commerce, even if congress has not acted: Against out of states unconstitutional. Undue burden on interstate commerce - weigh burden on IC against benefit gained by state.
State Power: dormant commerce clause
what con issue?

1. Article IV (no state may deny citizens of other states the P&I it accords its own citizens) (may not discriminate as to the “essential activities or basic rights of national citizenship, i.e., ability to earn a livelihood – not higher hunting fee - recreation) (civil liberties and important economic activities)
state power: privileges and immunities
individual rights:

1. Necessary to achieve compelling state/gov’t interest
strict scrutiny
Individual Rights:

Substantially related to important state/gov’t interest
intermediate scrutiny
individual rights:
1. Rationally related to any legitimate state/gov’t interest
ratonaly basis
1st amendment:

a judicial order or an administrative system that stops speech before it occurs)
1. Court orders prohibiting speech must meet strict scrutiny (compelling interest & narrowly tailored)
2. Licensing or Regulatory Scheme: government may require a license or permit for speech as long as:
a. There is an important government reason;
b. Clear criteria leave almost no discretion to the licensing authority;
c. The licensing scheme contains procedural safeguards
prior restraint
1st amendment:

1. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed (chills const protected speech)
2. A law is overbroad if it regulates substantially more speech than what the constitution allows to be regulated
3. Fighting words (usually vague & overbroad)
vagueness and overbreadth
1st amendment:

content based (subje atter or viewpoin) regulaions need to meet?
strict scrutiny
1st amendment:

content nuetral (applies to all speech) needs to meet?
intermediate scrutiny
1st amendment:

i. Public forum (sidewalks): must be content neutral and TPM restriction serves an important governmental purpose & leaves open adequate alternative places for communications (need not be least restrictive though)
ii. Limited Public Forum: gov’t property that it could close speech to – BUT once gov’t opens up, must meet Public Forum standards (important gov’t interest & content neutral)
iii. Non-public forums (military bases, post office sidewalk): places where gov’t can & does close to public speech - regulations must be reasonable for legitimate gov’t interest and viewpoint neutral (not subject matter neutral)
content nuetral: time place and manner
1st amendment:

a. public figure/official – need to meet malice (knowledge or reckless disregard) & falsity
i. damages – compensatory, presumed/pun
b. private figure/public concern – falsity & at least negligence
i. damages – compensatory for actual injury
ii. actual malice to get presumed/punitive
c. private figure/private concern – presumed & punitive – malice/negligence not necessary (but unclear who has BOP)
1st amendment:

a. Material appeals to the prurient interest (local standard)
b. Material is patently offensive under the law prohibiting obscenity
c. Taken as a whole, the work lacks serious redeeming artistic, literary, political, or scientific value (national standard) SLAPS
1st amendment:

true and nondeceptive speech can be regulated if there is an important government interest and the regulation is substantially related to accomplishing that interest (narrowly tailored, but not the least restrictive alt)
commercial speech
1st amendment:

government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message, and the impact on communication is no greater than necessary to achieve the government’s purpose) – contribution limits ok, spending limits not
symbolic expression
1st amendment:

1. To punish membership, it must be proven that:
a. Person actively affiliated with the group;
b. Knowing of its illegal activities; and
c. With the specific intent of furthering those illegal activities
freedom of association

1. Law is constitutional if (Lemon Test):
a. Secular purpose
b. Effect is neither to advance nor inhibit religion
c. No excessive government entanglement with religion
2. Government sponsored religious activities in public schools are unconstitutional
a. Financial Assistance to Religious Colleges – ok as long as purpose is non-religious
establishment clause

prohibits the government from imposing any burden on, or granting any benefit to, individuals because of their religious beliefs
free exercise clause
retroactive legislation:

impairment of contract) (applies only to states) (no state may impair the obligations of contracts) (applies only to state/local interference with already existing contracts) (a state/local law that impairs private party’s rights: the law must be a reasonably and narrowly tailored means of furthering an important and legitimate public interest) (if law interferes with government contracts, it must meet strict scrutiny)
contract clause
equal protection:

1. Fundamental Right (requires strict scrutiny)
a. 1st Amendment – speech & religion; restricting right to ct trial
b. Travel – durational residency req’mts ok if SS (voting meets this)
c. Voting – (prop ownership for water disct ok) (at-large ok unless discriminatory impact/intent)
fundamntal right
equa protection:

(applies when the government draws a distinction among people or discriminates in a law
equal protecton
equal protection:

race; alienage; travel; voting; national origin (strict scrutiny) (necessary to achieve a compelling government interest + least restrictive means/alternative)
suspect classification
equal protection:

gender; illegitimacy; undocumented alien children (intermediate scrutiny +) (substantially related to important government interest) (gender classification must have an exceedingly persuasive justification) look for basis on stereotypes
quasi suspect
equal protection:

: wealth, age, disability, economic classifications, sexual orientation, marital status, congressional regulation of aliens, (rational basis)
other classes
i. Has there been a deprivation of Life, Liberty, or Property Interest
1. Liberty interests: freedom from bodily restraint, right to protect your honor, good name, and integrity (+ tangible loss); freedom of speech, right to contract, right to marry, right to bring up kids – i.e. Fund. Rights
2. Property interests: an entitlement to a continued receipt of a benefit stemming from contract or state law (statutory – welfare, SS)
3. Gov’t negligence is not sufficient for a deprivation of due process (intent)
procedural due process
procedural due process:

1. Under the DPC, state must provide some fair process or procedure before it may deprive a person of life, liberty or property
2. Fair procedure, at a minimum, requires an opportunity to present objections to the proposed action to a fair, neutral decision-maker
3. Balance: (IRA)
a. private interest involved and its importance
b. the risk of error in existing procedures (how precise are current procedures) and the value/ability of adding additional procedures
c. government interests involved (Admin Costs, burden for more procedures, gov’t objective)
what process is due
procedural due process:

1. Welfare – Opportunity to rec’v face-to-face hearing b/f benefits terminate
2. SS – post-termination hearing ok (not as bad as welfare people)
3. Custody – notice & hearing b/f termination
4. Pre-judgment attachment to property – notice & hearing b/f unless exigent
special cases
Substantive Due Process:

whether the government has an adequate reason for taking away a person’s life, liberty or property)
substantive due process:
a. Possessory taking (government confiscation or physical occupation of property is always a taking)
b. Regulatory taking
i. Government regulation is a taking if it leaves no reasonable economically viable use of the property
ii. Government conditions on the development of property are only takings if they are not justified by a benefit that is roughly proportionate to the burden imposed on the landowner
substantive due process:

c. Penn Central – factual background:
i. Economic effect/harm on the owner
ii. Harm to reasonable investment backed expectations
iii. Nature of the taking (fairness)
substantive due process:

2. Is the taking for a public use? (a taking is for public use so long as the government reasonably believes that the taking will benefit the public)
3. Is the compensation paid just? (FMV of the property in the owner’s hands prior to the taking; gov’t gain irrelevant)
substantive due process:

(a fundamental right protected by SDP) (laws that interfere with the right to privacy must meet strict scrutiny)
1. Right to marry
2. Right to procreate
3. Right to have custody of your children
4. Right to keep the family together
5. Right of parents to control the upbringing of their children (child rearing)
6. Right to purchase and use contraceptives
7. Right to travel
8. Right to vote
9. Free Speech/Association/Religion
substantive due process:

government cannot place an undue burden on the right)
1. Before Viable: cannot prohibit, but can regulate
2. After Viable: can prohibit where except where necessary to protect mom
right to abortion