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83 Cards in this Set
- Front
- Back
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Ripeness
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case brought too soon
P must allege actual harm or immediate threat of harm. |
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Mootness
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case brought too late
need actual live controversy btwn parties at ALL stages of litigation (including appeal) |
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Standing
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Need all 3 to sue:
1) P must suffer actual injury in fact 2) Causation (harm fairly traceable to gov's actions) 3) Redressibility (ct. can remedy injury) |
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When do Orgs & Associations have standing?
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can sue for injury for itself or for injuries to members if:
(i) membs would have standing, (ii) injury related to purpose of org, and (iii) no reason to require indiv memb to participate. |
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When does a party have standing to raise the rights of others?
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a party only has standing to raise his or her own rights EXCEPT if:
(i) party suffered some actual injury AND (ii) special relationship btwn party & 3rd person and some hindrance to the 3rd party raising his/her own right. |
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When can SCOTUS review the decisions of the state cts?
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if and only if:
(1) Case involves a matter of Fed law (?); and (2) it is a final judgment; and (3) is from the highest state ct. authorized to hear the case;a nd (4) there is no indep and adequate state ground on which the state court decision is based. |
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independent & adequate state grounds
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SC will not hear the case if adqequate state grounds applies. where state court decisions establishes adequate/indep state ground.
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When will a fed ct decline to hear a case challenging state law under the doctrine of absentism?
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It involves a Const. challenge to the state law,
but the meaning of the state law is unsettled or unclear, or the matter is already pending before state judicial or admin tribunals |
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What is a political question?
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Questions which are non-justiciable. or Const. committed to another branch of gov to decide OR are beyond the competence or enforcement capability of the judicial branch
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A private party cannot sue a state in fed ct unless:
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state expressly consent or
Congress clearly says to enforce 15th amend rights. |
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For the 11th amend to be a bar:
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P must be a private party, not another gov;
D must be a state (not a local gov/county/municipality) Suit must be for $ to be paid out of the state treasury or for an injunction or declatory relief. |
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Leg powers/10th amend
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all powers not granted to the fed. Gov are reserved to the states or to the people.
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Ness & Prop Clause
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allows Congress to use all means convenient and useful to carry out the enumerated powers.
NOT an independent power and must be combined in furtherance of another congressional power |
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What is the chief source of power for Congress to reg?
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The Commerce Clause
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What can Congress Regulate under the commerce clause?
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Reg includes – setting rules, standards and rates, and promoting, prohibiting, and punishing behavior.
obvi interstate commercial activity such as goods moving across state lines and use the interstate instrumentalities such as the mail or phone system. ALSO may reg: Purely local & Intrastate activities, which by themselves or repeated by others (cumulative effects doctrine) substantially affect interstate commerce. |
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What can't Congress Reg under Commerce Clause?
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Can’t tell states what to laws to enact.
States don’t have to enforce fed law on their own citizens. Congress can’t criminalize behavior which doesn’t in any way relate to a commercial or economic activity |
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When Congress can't use the CC what are 3 things it can do to make the states do what it wants them to do?
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1) Threaten Pre-emption
2) reg states directly through commerce hook 3) Spending power |
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What is the taxing power?
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• Congress May tax and spend for the general welfare)
• Congress may use the taxing power to regulate and prohibit behavior as long as the statute is capable of raising some revenue, such as prohibitive tax on gambling or goods made my child labor. |
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Spending Power: when will a ct enforce a condition against a state that accepted fed funds?
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1) Law must be enacted for the general welfare (broad)
2) Conditions cant violate individual liberties 3) Reasonably related to a legit federal interest. 4) Clear quid pro quo – condition is for $. |
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13th amend & leg. power
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outlaws slavery & gives congress power to enforce the amend.
Applies to anyone to eliminate slavery & end all "badges and incidents - ex: racial discrim in housing |
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14th amend & leg power
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Equal Protection & Due Process
Laws passed under 14th apply ONLY to gov acts, not acts of private parties (state action req). ONLY has power to enforce or remedy rights of 14th as defined by cts, not to redifine rights |
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15th amend & leg power
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protects the right to vote against any federal or state gov, racial discrim, and gives congress power to enforce.
ex: provide fed officials to register voters ok |
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The Delegation of Congressional Power
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Congress may broadly delegate legislative powers to administrative agencies so long as Congress set forth some intelligible principle or some standards to guide the exercise of the delegated power.
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The Legislative Veto
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• If Congress delegates authority to the executive branch, Congress may NOT reserve for itself a one-house, two-house, or committee eto over the particular acts taken by the executive branch pursuant to that delegation.
• It must pass new legislation passed by both houses (bi-cameralism) & signed by the President (presentment) |
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Congressional Immunities
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Members of Congress may not be prosecuted or punished, either civilly or criminally, for their official or “legislative acts”
Legislative acts are narrowly defined to include acts integral to the legislative process. Such as: actions on the floor, voting & committee work. |
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Executive Domestic Power: The Prez may...
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enforce or carry out the laws of Congress (not make laws - unless emerg & Cong didn't ban.
Must carry out Congressional directives. May sign or veto legislation. Exclusive power to pardon fed offenses. Appoint & remove exec branch officials. |
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Can Congress ever appoint exec branch officials?
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No. but may appoint persons who work only for Congress and do not take action or make decisions on behalf of the US gov.
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Congress may limit President’s power to appoint in 2 ways:
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• As to principal officials – such as ambassadors, judges, and cabinet heads, the Pres appoints only w. the advice & consent of Senate; and
• As to inferior officials, such as those who answer to another or have limited duties or jurisdiction, such as independent counsels, Congress may vest the appointment in the President alone, or in dept heads or the judiciary. |
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Can Congress directly remove exec branch officials?
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Never directly.
except through impeach. But as w/ appointments, Congress can limit. Ex may provide Prez may only remove certain officials for cause. |
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Who can Con Congress NOT give executive powers to?
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persons it may hire & fire
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Who has the power to declare war?
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Congress alone.
Congress also retains the purse strings/ may refuse to pay for military ops. But Prez – in addition to conducting military operations once war is declared, may repel invasions, and take emergency action to protect the lives & property of US citizens. |
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Can Prez act as the Chief Foreign Policy Spokesperson of the gov?
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Yes, once authorized may act w/o approval of Congress.
ex: to recieve ambassadors/meet w/ heads of state. |
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Can Prez enter into agreements w/ forgeign govs?
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Yes but needs some form of Congressional approval:
Treates - 2/3 senate approval Exec agrees: not specific (acquisecense is enough) invalid if Cong disapproves Conflict btwn leg: later leg controls. |
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Presidential Immunities
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Presumptive privilege not to disclose presidential communications (balancing test);
Absolutely immune from civil suits for damages and for prez (not purely personal or pre-prezl) acts. |
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When does SC have original jurisdic?
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all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party.
Congress gave lower fed cts. concurrent jurisdic in all cases except those btwn states. |
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When does SC have appellate jurisdic?
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all cases to which fed power extends, subject to congressional exeption & reg; 2 ways:
(1) writ of Certiorari (2) Appeal |
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What cases come by certiorari?
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gives SC complete discretion to hear.
(1) cases from STATE cts where (a) constitutionality of fed stat, treaty, or state stat is in issue, or a (b) state statute allegedly violates fed law |
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11th amend
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Prohibits federal courts from hearing a private party's or foreign gov's claims against a state government.
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How are the powers of the fed gov limited?
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Every exercise of fed power must be traced to the Const.
Cong. can excercise those powers enumerated in the Const plus all auxillary powers necessary and proper to carry out all powers vested in the fed gov. |
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Commerce Power
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Congress has the exclusive power to regulate all foreign and interstate commerce. Ways to be w/in power: fed law must:
(i) regulate the channels (ii) regulate the instrumentalities (iii) regulate activities that have a substantial effect. |
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Art 4. Priv & Immunities Clause
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• States may not discriminate against out of state (non-res) citizens (not corps or aliens) w/ respect to commercial activities (ex: employment, dealings in property, or contract. OR the enjoyment of civil liberties.
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Supremacy of Fed Powers over the States
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Fed law (statutes, regs, treaties) pre-empt or prevail over inconsistent state laws.
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The Negative or Dormant Interstate Commerce Clause
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Where Congress has not acted (ex: only validity of state law – no preemption issue) state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce.
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What is DISCRIMINATION to strike down a law under Neg Dorm Inst CC?
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1) Laws that discriminate for the purpose of favoring in-state commerce.
These are Per se invalid. 2) Laws that discrim for the purpose of promoting health or safety. Invalid unless state shows that it had no reasonable, non-discriminatory means to achieve its police power objective |
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Unreasonable burden
under Neg Dorm Inst CC? |
Even if state law is non-discriminatory (applies evenly in/out of state) it may still be invalid if it imposes an unreasonable burden on interstate commerce.
o Balancing test – gross disproportionality – ct will weigh the actual effect of the law on the free flow of commerce against the state’s interest served by the law. |
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When the limits of the Neg CC do not apply or are modified
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(1) Congressional Approval
(2) Market participant Doc & Gov. Subsidiaries (3) 21st amend – alcohol. |
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To be valid, a tax on interstate commerce must meet 3 requirements:
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(1) it must be non-discriminatory
(2) the activity, person, or thing taxed must have a substantial nexus to the state. There must be actual presence in the state. • (3) the tax must not be unreasonably burdensome in particular it must be proportioned to the company’s business done in the state or benefits received in the state. |
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The bill of rights protections apply against national gov, not the states BUT...
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most bill of rights protections, but not all, also apply against state and local gov through DPC of the 14th amend.
They have been incorporated into meaning of DP b/c they are “fundamental to the US scheme of justice.” |
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The req. of state action for Const. Rights to apply:
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Except for the 13th amend which prohibs slavery no matter who is enslaving, all other const rights are protections only against the gov.
• Only enjoy free speech and Equal Protection rights only against the gov’s, not against individs or non-gov entities like businesses. |
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Obvious State Action
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When a state passes a law or permits its officials, such as police or bureacrats, to take action, that is state action.
This is true even if the gov officials are acting in violation of law so long as they are clothed w. authority (acting on the job) that is so long as they are acting “under color of law.” |
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The public function doctrine
(private conduct as state action) |
When a private entity performs a gov function traditionally and exclusively performed by gov. (such as conducting elections to fill public offices) that action will be deemed to be a state action, and all const. gurantees will apply.
Very narrowly applied. |
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Private conduct despite state involvement
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the mere fact that the state licenses, regs, funds or confers significant benefits on a person or business, even if the licensing or regs are extensive and the funding or benefit is not critical – NOT enough by itself to est. state action.
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Significant state involvement with private conduct that = state action.
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they are working together as partners or joint ventures, such that they each will derive benefits from the actions of the other
Or, when the state actively, affirmatively, and significantly commands, encourages or approves of the private actor’s challenged behavior. |
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retroactive legislation: the contract clause
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States may not by legislation substantially impair pre-existing contracts, unless the law serves and overriding public need, and the law is reasonable and narrowly tailored means of meeting that need.
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Ban on bills of Attainder
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Prohibits any fed or state leg that inflicts punishment, civil or crim, on named individuals or ascertainable members of a group w/o a judicial trial
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The Contract Clause
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States may not by leg substantially impair pre-existing K’s, unless serve an overidding public need, and the law is reasonable and narrowly tailored means of meeting that need.
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Ex Post Facto Laws
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Neither Cong nor the states may pass ex post facto laws. (only applies to crim statues)
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Bans on Bill of Attainder
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Prohibits any fed or state leg that inflicts punishment, civil or crim, on named individuals or ascertainable members of a group w/o a judicial trial.
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Procedural Due Process
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Concerns HOW the gov acts – if the gov deprives you of life, liberty or property interest, it must follow procedures to insure it is acting fairly and accurately.
• This means some kind of notice (reasonably calculated to inform the person of the action against him) and an opportunity to be heard (hearing). applies to adjudicative-type acts, not legislation |
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Procedural Due Process Analysis:
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(1) Was there a deprivation of life, liberty, or property interest?
If yes... then ask (2) what process is due? Minimal due process requires notice and an opportunity to be heard. |
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What factors does the Ct. Balance to determine the actual Procedural Due Process needed in a case?
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Nature of private interest involved
Are the procedures being challenged likely to lead to a mistake; and Gov’ts interest in these procedures |
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Neither the fed gov (5th amend) or the states (14th amend DP) may take private property w/o just compensation. 2 ways a taking is legit:
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(1) must be for public use - legit gov goal. or
(2) just compensation must be paid (FMV at time of taking) |
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What is a taking?
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Physical invitations or occupation: no matter how tiny and even if temporary?
Regulatory takings: Ordinarily, regulations that restrict a property owner’s USE of property, such as zoning laws, historic preservation laws, or environmental laws, are not takings so long as regulation reasonably advances a legit state interest and leaves an economically viable use for the property. Conditional Permits |
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Where do EP and DP powers come from?
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• Fed Gov.: 5th Amend
• State Gov: 14th Amend |
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Strict Scrutiny Standard:
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The Gov must prove law is necessary to achieve a compelling gov’t interest.
There is no presumption of Constit. |
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Intermediate Scrutiny Standard:
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The gov must prove law substantially serves an important gov interest.
There is no presumption of Const. |
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The Rational Basis Test (Minimum Scrutiny)
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The P must prove that the law lacks a rational basis and is unrelated to any legit objective. The law is presumed Const.
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To judge a law discriminating on race, alienage, gender or illegitimacy- the law must intentionally and purposefully discrim - can show by:
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(1) The law intentionally discriminates on its face, or
(2) The law is neutrally written but is intentionally discriminatory as applied • There must be purposeful discrimination. The P must prove, at least, that race or other invidious discrim was a motivating factor in the gov’ts action. |
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What standard applies to discrim against racial or ethnic groups? (even if purports to treat races equally)
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SS
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What standard for preferences in favor of racial minorities
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SS
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Standard applied to discrim based on alienage
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Congress - Rational basis - b/c given broad power to control immigration and natil discrim
State & Local - SS - can be no requt of US citizenship for private employement or rights to own proper/gov benefits. |
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what standard for discrim based on gender?
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Midlevel scrutiny.
Usually struck down unless (1) bona fide aff action or "real diff btwn men & woman" |
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If you are dealing w a fundamental right, the test is...
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some form of strict or heightened scrutiny, not rational basis.
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Vagueness
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A statute is vauge and thus unconstitutional on its face, if a person of common intelligence could not know what behavior is prohibited.
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Overbreadth
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law is overbroad, and thus unconstitutional on its face, if it prohibits substantially more expression than is necessary.
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Prior Restraints
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enjoins speech before it is uttered as opposed to punishing it afterward.
Prior restraints are greatly disfavored, and the gov’t bears a heavy burden to show a prior restraint is necessary to prevent direct, immediate and irreparable harm. |
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The gov’t may not restrict a person’s opinion, message or ideas (content) unless...
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speech falls into a special category of unprotected expression, or the gov’t shows a compelling need
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What are 3 req. of the more lenient Time place and manner controls?
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(1) content neutrality
(2) substantial alternative opp for speech to take place (3) law narrowly serving a significant state interest. |
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Categories which are exceptions to the usual content rules (rare a restriction not in these categories will be upheld):
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(1) speech inciting immediate lawless or violent behavior
(2) fighting words, hate speech, true threats (3) Obscenitiy (4) Libel & defamation & Invasion of privacy (tort) (5) commercial speech (ads) |
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Expressions in a non-public forum
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Unlike traditional public forums – streets, sidewalks, parks – most gov’t property is a nonpublic forum. Unless the gov’t has specifically dedicated non-public forums to be fully opened to all First Amend activities, the gov’t may regulate access to this property under far more lenient first amend rules.
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Free Exercise of Religion
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Gov’s may neither punish people b/c of their religious beliefs nor require them to profess any particular religious belief.
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No Est. of Religion
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The 1st amend prohibits laws “respecting the est. of religion”. This clause does more than prohibit the creation of a state religion or a state church, it is more than just a req that the govt treat all religions equally. The govt is to remain neutral respecting religion and neither “aid one religion, aid all religions, or prefer one religion over the other”
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A law is neutral and no endorsement if it: (lemon test)
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(1) has a secular purpose
(2) has a primary effect that neither advances nor inhibits religion; and does not produce excessive gov entanglement w/ religion. |
