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23 Cards in this Set
- Front
- Back
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justiciability: RAMPSE
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1) Ripeness - injury in fact; causation, redressability
2) Abstention 3) Mootness - (repetitive injury evading review okay) 4) Political Question (committed to other branch; repub. form of gov't) 5) Standing (no taxpayer unless establishment clause) 6) Eleventh Amendment (states immune from suits by citizens - includes Indian tribes; does not include other states or federal gov't; CAN sue a municipality; Ex Parte Young; suits brought under section 5 of 14A) |
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adequate/independent state grounds
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fed courts won't disturb a state supreme court if the decision is wholly supported in good faith by state law and interpretation of federal law wouldn't change the outcome
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subject matter jurisdiction
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1) exclusive S.Ct. jx over cases between 2 states.
2) appellate: arising under federal law or diversity; US as party Congress has power to create lower federal courts and to limit federal jx |
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powers of Congress - enumerated: CREATES DICE (No Problem)
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1)Civil rights
2)Elections 3)Admiralty 4)Taxation 5)Eminent Domain 6)Spending/taxing for general welfare 7)Defense 8)Interstate commerce 9)Citizenship 10)External (foreign affairs/war) 11)Necessary & proper to enforce enumerated powers 12)Property – control U.S. personal & real property & police powers over D.C. |
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powers of president
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1) treaty
2) executive agreement - between nations; no senate approval 3) war: deploy troops; emergency powers; establish military in territories 4) appointment: ambassadors, federal judges, lower officials to dept heads 5) removal: can fire unless Congress requires good cause (independent department heads) 6) privilege: immune from civil suits/military & diplomatic secrets 7) pardon: fedearl crimes only unless impeachment 8) veto: w/in 10 days; 2/3 override. no more line item veto |
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supremacy clause
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fed trumps if:
1) mutually exclusive/direct conflict 2) state impedes achievement 3) feds have occupied the field 4) clear federal intent to preempt |
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federalism - state powers
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1) 10th Amendment
2) no direct taxation of the feds, but can tax if generally applicable and nondiscriminatory 3) Art IV P&I: no burden on important economic activities or civil liberties of out-of-state citizen unless nec to achieve important gov't interest w/ least restrictive means 4) 14th Amendment P&I only applies to citizens of other states - usually right to travel. doesn't apply to corps. 4) 11th Amendment immunity from suit w/out consent |
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dormant commerce clause
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Can't discriminate against out of state interests or unduly burden interstate commerce:
1) okay if Congress auth'd 2) if discriminates, must be necessary for important gov't interest w/ least restrictive means 3) if burdens interstate commerce, benefit must outweigh 4) market participant exception ** always go with DCC (over an EP RBR analysis) if individual rights are not implicated by state action! |
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individual rights: TRESPASS
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Takings
Religion EP Substantive DP Procedural DP Association Speech State action |
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state action
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1) direct
2) private function of traditional gov't role (insufficient to provide buses or books for schools) 3) significant (and ongoing) gov't involvement in private conduct (insufficient to convey a building if no ongoing involvement) |
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speech: content-based
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subject matter/viewpoint regulation: Strict Scrutiny (compelling state interest and least restrictive means) okay to censor:
1) advocating imminent unlawful conduct 2) defamation 3) obscenity 4) fighting words (vague and overbroad) 5) commercial speech false & deceptive (but truthful gets IR) 6) privacy - no liability for truthful reporting |
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obscenity
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not protected if found obscene:
1) appeals to the prurient interest and patently offensive (local community standards) 2) as whole lacks literary/artistic value (national standard) - okay to possess but not distribute - child porn never okay - business asset seizure okay |
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speech: content-neutral
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must be content and viewpoint neutral - apply IR (substantially related to an important state interest & doesn't have to be least restrictive means):
1) public forums: traditionally public places for speech: TPM ok if other alternatives left open 2) limited/designated public forums: gov't doesn't have to open but if they do, then same as public 3) nonpublic forums (militar, airports, PO sidewalk): ok to regulate if reasonable (RBR) 4) symbolic expression: important interest not related to suppression of msg (draft cards); impact no greater than nec for purpose |
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freedom of association
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apply SS: punish only person actively affiliated - knowing illegal objectives; specific intent to further objective
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establishment clause
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Lemon: secular purpose; doesn't advance or inhibit religion; no excessive entanglement
1) no religion in schools - no direct money to elem/high schools but okay to colleges 2) indirect aid okay if also given to secular schools (books/buses) and not used for religion 3) holiday displays okay if secular too |
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free exercise clause
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can't have a purpose to punish beliefs (unconst. if directed at religion - santeria) but okay if law of general applicability (peyote). can't deny benefits b/c of beliefs.
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contract clause
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state and local gov't cannot substantially impair contracts:
1) IR for existing private contracts - reasonable purpose and narrowly tailored 2) SS for gov't contracts |
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retroactive legislation
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1) contracts clause violations
2) ex post facto laws: applies to criminal only - no increase punishment/reduce evidence/make it illegal after act 3) bills of atttainder: adjudicating from the legislature |
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Equal protection
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State: 14A
Federal: 5A DP clause affects similarly situated people differently |
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EP/DP tests
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SS: narrowly tailored and necessary to achieve a compelling gov't interest & least restrictive means available:
- suspect classes: race, alienage, nat'l origin - fundamental rights (DP) IR: furthers an important gov't interest and is substantially related to that interest - gender; illegitimacy RBR: rationally related to a legitimate gov't interest (burden on P) |
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fundamental rights for DP
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privacy (Contraception, Abortion, Marriage, Procreation, Education, Relations/family), travel, vote, speech
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procedural DP
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intentional or reckless deprivation of liberty/property by gov't requires DP. balance P's interest w/ state interest to determine right to pre-deprivation hearing (NO rights/privileges distinction - balance!)
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5A takings
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any possessory or regulatory taking must be compensated: for public use (can go to private entity) and pay FMV
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