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608 Cards in this Set
- Front
- Back
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Four justiciability doctrines
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Standing
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What is standing?
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The issue of whether the plaintiff is the proper party to bring a matter to court for adjudication
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What are the four requirements for standing:
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P has been injured or imminently will be injured
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What must P show for standing if P seeks injunctive/declaratory relief?
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A likelihood of future harm
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'Best standing'
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P has personally suffered monetary loss
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What is the problem if there is no redressability?
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If a favorable court ruling would have no effect it would be an impermissible advisory opinion
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Third party standing - exceptions
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P must meet other standing requirements
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Can father sue on behalf of daughter
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if he doesn't have legal custody
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When may P sue 'as a taxpayer'?
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ONLY to challenge government spending (of MONEY) pursuant to federal statutes as violating the Establishment Clause (RELIGION)
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When may P sue 'as a citizen'?
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Never
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What Establishment Clause spending won't be a basis for taxpayer standing?
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Spending from general expenditures (rather than fed statutes)
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What is ripeness?
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The question of whether a federal court may grant preenforcement review of a statute or regulation.
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When should I look for ripeness
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especially?
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What criteria do courts consider in deciding ripeness questions?
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Hardship that will be suffered without preenforcement review
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What is mootness?
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If events after the filing of a lawsuit end P's injury
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What are the exceptions to mootness?
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Wrong capable of repetition but evading review
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What case exemplifies wrong capable of repetition but evading review?
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Roe v. Wade
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How does mootness work in class-action context?
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If named P's claim becomes moot
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What are the nonjusticiable political qs?
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'Republican form of government' clause (Art. 4
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What's wrong with Vietnam war lawsuits saying President didn't have to declare war?
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They're nonjusticiable because they challenge the President's conduct of foreign policy
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Which cases must come to Supreme Court by writ of certiorari?
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All state court cases
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What does a writ of certiorari mean?
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Discretionary review
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Which cases must the Supreme Court hear on appeal?
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Decisions of three-judge federal district courts (available only for some specific statutes) - appeals heard DIRECTLY by U.S. supreme Court
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Which court(s) have original/exclusive jurisdiction?
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Suits between state governments
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What is the final judgment rule?
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Supreme Court may hear only after there has been a final judgment of the highest state court
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The final judgment rule means there's no ___ appeal
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Interlocutory
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For the Supreme Court to review a state court decision
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there must not be …
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When can the Supreme Court review a state court decision?
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When there is no independent and adequate state law ground of decision
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What is the principle of sovereign immunity?
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The 11A bars suits against state in federal court (unless exception)
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May federal courts (or state courts) hear suits against state governments?
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No
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When may states be sued - AKA
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when does sovereign immunity not apply? (4)
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When may state officers be sued?
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For injunctive relief
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When may state officers NOT be sued?
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If the state treasury will wind up paying retroactive damages
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How do you get around sovereign immunity?
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Sue state officers for injunctive relief or money damages to be paid out of their own pockets (and don't name the state!)
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What does abstention mean in context of constitutional law?
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Federal courts may not enjoin pending state proceedings (even though federal court has jx and all justiciability requirements are met)
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What does congress need to act?
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Express or implied authority
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When does Congress have police power?
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MILD: When legislating for MILITARY
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What does the Necessary and Proper clause allow?
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Congress may choose any means not prohibited by the constitution to carry out its authority
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What would allow Congress to hold a national bake sale to fund the army and the navy?
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The Necessary and Proper clause.
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For what purposes may Congress tax and spend?
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For the general welfare
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When is the general welfare sufficient justification for congressional action?
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Only for taxing and spending
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What is the commerce clause allow?
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Congress may regulate commerce among states
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In what three situations may Congress regulate interstate commerce?
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Channels of commerce (railroad
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What's the challenge with noneconomic activity and commerce clause legislation?
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Congress cannot find substantial economic impact based on cumulative
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What does the 10A do?
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Reserves to the states
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What does the 10A keep Congress from doing?
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Compelling state legislative or regulatory activity
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How may congress induce state government action without violating the 10A?
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By putting strings on grants
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What does the 10A NOT keep Congress from doing?
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Prohibiting harmful commercial activity by state governments
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What does § 5
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14A allow?
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What limits are there on § 5 legislation?
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Congress may not create or expand 14A rights. It may only prevent or remedy violations of 14A already recognized by courts; even then laws must be proportional and congruent to remedying the constitutional violation.
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What limit exists on Congress' ability to delegate legislative powers?
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Traditionally
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Legislative and line-item vetoes are…
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Unconstitutional
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Why are legislative/line-item vetoes unconstitutional?
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They lack bicameralism and presentment
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May the President sign/veto only part of a bill?
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No; the President must sign/veto the bill in its entirety
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When may Congress delegate executive power to itself/its officers?
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Never
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What is a treaty?
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Agreement between U.S. and foreign power that is negotiated by president and ratified by senate
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Which controls
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treaty or state law?
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Which controls
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treaty or federal law?
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Which controls
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treaty or U.S. constitution?
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What is an executive agreement?
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Agreement between U.S. and foreign power that is effective when signed by the president and head of a foreign nation
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What is the difference between a treaty and an executive agreement?
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Only treaties require senate ratification
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Which controls
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executive agreement or state law?
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Which controls
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executive agreement or federal law
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Which controls
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executive agreement or constitution?
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If someone sues over President's use of troops in foreign country?
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Best result
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Who must be appointed by the President?
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President appoints ambassadors
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Who appoints inferior officers?
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Congress may vest appointment of inferior officers in President
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What is an inferior officer?
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One who can be fired by other officers
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When may Congress give itself the appointment power?
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Never
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The President may fire any executive branch officer unless…
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Congress by statute limits removal
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When may Congress limit removal?
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Must be an office where independence from President is desirable (not cabinet officer)
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Who may be impeached?
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President
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For which offenses may Congress impeach
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treason
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Does impeachment remove a person from office?
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No - a trial in the senate must follow
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Who impeaches?
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House
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When does the President have absolute immunity?
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For civil suits for money damages for anything President do to carry out office while in presidency
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When does President not have absolute immunity?
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Actions that occurred prior to taking office
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What protects presidential papers/conversations?
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Executive privilege
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When must executive privilege yield?
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Other important government interests (e.g.
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Who may president pardon?
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All accused/convicted of federal crimes
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When may president pardon as to state crimes?
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Never - only federal
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What's the difference re criminal/civil liability re presidential pardon power?
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President may pardon only criminal convictions (under federal
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What is the Supremacy Clause?
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Art. VI - the Constitution and laws
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What are the types of preemption?
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If federal statute provides that federal law is exclusive in the field
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May states set stricter environmental standards than federal law?
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Yes
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What does inter-governmental immunity prohibit?
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It prohibits states from taxing or regulating federal government activity
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Can a state tax a store operated by a federal government on an army base?
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No; this is prohibited by inter-governmental immunity
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Must the federal government comply with state anti-pollution laws?
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No
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What is the dormant commerce clause?
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The principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce
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What are the two applications of the Commerce Clause?
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Authority of Commerce to Act
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What is the negative implications of the commerce clause?
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The dormant commerce clause
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What is the Privileges and Immunities Clause of Art. IV
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Art IV - no state may deprive citizens of other states of the privileges and immunities it accords its own citizens
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Which constitutional provision is an anti-discrimination provision protecting out-of-staters?
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Privileges & Immunities clause of Art IV
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The Privileges and Immunities Clause of 14A is always the wrong answer
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unless the question involves…
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What does the Privileges and Immunities Clause of the 14A protect?
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Freedom of travel
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How to analyze a law that doesn't discriminate among states?
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If the law burdens interstate commerce
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When does a state/local law NOT violate the Dormant Commerce Clause
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if it discriminates against out of staters and burdens interstate commerce?
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What does the market participant exception allow?
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A state/local government may favor its own citizens in receiving benefits from government programs or in dealing with government-owned businesses
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What are the two situations that illustrate the market-participant exception?
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In-state tuition preferences by PUBLIC universities
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When does a state/local law NOT violate the Privileges and Immunities Clause of Art. IV
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if it discriminates against out-of-staters with regard to their ability to earn a livelihood?
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If a state/local government discriminates against out-of-staters
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and challenger is corporation or alien
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How may states use their tax systems to help in-state businesses?
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Not at all
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When may state tax activities?
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If there is a substantial nexus to the state
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How is state taxation of interstate business limited?
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It must be fairly apportioned (e.g.
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What does Full Faith and Credit require?
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State/federal courts in one state must give full faith and credit to judgments of courts in another state
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Re individual liberties
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need the president of Austin College comply with the First Amendment?
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Re individual liberties
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need a local officer comply with the constitution?
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How may Congress apply constitutional norms to private conduct?
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By statute - 13A - Congress may prohibit private race discrimination; the commerce power can be used to apply constitutional norms to private conduct
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Can discrimination violate the 13A?
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No - only federal laws adopted under 13A (only slavery violates the 13A)
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Best grounds for Congress to use to adopt laws prohibiting race discrimination in housing?
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13A could work
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14A § 5 can regulate only…
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public action
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In what situations must private conduct comply with the Constitution?
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Public function (private entity performing a task traditionally/exclusively done by government - e.g.
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Does the public function exception apply to private utilities (e.g.
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must the utility provide due process before cutting off service)?
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In what seven main situations does the entanglement exception apply?
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Government cannot enforce racially restrictive covenants
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When does the Court seem most willing to apply entanglement exception?
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When race discrimination is found
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How does Bill of Rights apply to state/local governments?
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Through its incorporation into the due process clause of the 14A.
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In what cases does the Bill of Rights not apply to state and local governments (because these rights are less fundamental)?
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Second Amendment right to bear arms
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Rational basis test
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Rationally related for a legitimate conceivable government purpose / burden on challenger / no least restrictive alternative analysis
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Intermediate scrutiny
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Substantially related to an important
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Strict scrutiny
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Necessary to a compelling
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What is a substantive due process question?
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Whether the government has sufficient justification for taking away rights
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What is an equal protection clause question?
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Whether government's different treatment of people is adequately justified
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What is a procedural due process question?
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Whether the government followed sufficient process in taking away life liberty or property
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Due process violation analysis:
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Has there been a deprivation of life
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When does a deprivation of liberty occur?
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If there is a loss of a significant freedom provided by the Constitution or a statute
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Is harm to reputation a violation of liberty?
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No
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Do prisoners have liberty interests?
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Rarely
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How do we consider whether a person has a property interest?
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Whether there is an entitlement = a reasonable expectation of continued receipt of a benefit
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What is the rights/privileges distinction?
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A red herring - it is always wrong to distinguish
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What kind of government act is required for due process violation?
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Intentional
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When can an officer be held liable for due process violation
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in an emergency case?
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Does the government have a duty to protect people from privately inflicted harms?
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No
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When does the government have a duty to provide protection?
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Only if government literally creates the danger
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How to determine proper procedure?
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Balance the importance of the interest to the individual
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What procedure is required for termination of welfare benefits?
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Notice and hearing
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What procedure is required for termination of social security disability benefits?
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Only a post-termination hearing
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What procedure is required for a student to be disciplined by a public school?
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Notice of the charges and an opportunity to explain
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What procedure is required before a student is disciplined through corporal punishment by a public school?
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None
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What procedure is required before a parent's custody of a child can be permanently terminated?
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Notice and a hearing
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What procedure is required for punitive damages?
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Instructions to the jury and judicial review
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Grossly excessive punitive damages violate…
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due process
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What procedure is required for an American citizen detained as an enemy combatant?
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Due process
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What procedure is required for prejudgment attachment?
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Except in exigent circumstances (reasonable belief that person would get rid of property before judgment)
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What standard of review is used for laws affecting economic rights?
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Rational basis review
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What are examples of economic rights?
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Minimum wages
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What does the takings clause allow?
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The government may take private property for public use if it provides just compensation?
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Analysis for takings?
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Is there a taking (possessory/regulatory)
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What is a possessory taking?
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Government confiscation or physical occupation of property is always a taking
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What is a regulatory taking?
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Government regulation that leaves no reasonable economically viable use of the property
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When are government conditions on development of property a taking?
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When the benefit is not roughly proportionate to the burden imposed
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May a property owner bring a takings challenge to regulations that existed when the property was acquired?
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Yes
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Is the government's temporarily denying an owner use/development of property a taking?
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No
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When is a taking for public use?
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So long as the government acts out of the reasonable belief that the taking will benefit the public
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How is 'just compensation' measured?
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By the loss to the owner in reasonable economic/market terms. The gain to the government is irrelevant.
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When does the contracts clause apply to the federal government?
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Never
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What does the contract clause state?
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No state shall impair the obligations of contracts
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To which contracts does the contract clause apply?
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State or local interference with existing contracts
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What is the test for determining whether local/state government interference violates the contracts clause?
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Does the legislation substantially impair a party's rights under an existing contract? If so
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What is the standard for state/local interference with government contracts?
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Strict scrutiny
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How does the ex post facto clause apply in civil cases?
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It doesn't. An ex post facto law is a law that criminally punishes conduct that was lawfully when it was done or that increases punishment for a crime after it was committed
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What is the standard for retroactive civil liability?
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Rational basis review
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Privacy is…
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a fundamental right protected under substantive due process
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When may the federal government interfere with the right to privacy?
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Only when government can meet strict scrutiny (exception: abortion rights - different standard; homosexual activity/refuse medical care - no articulated standard)
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What rights are included in the right to privacy?
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Right to marry
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May the state create an irrebutable presumption that a married woman's husband is the father of her child
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Yes
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Regulation of abortions: Prior to viability…
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The government cannot prohibit abortions
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Is a 24-hour waiting period for abortions an undue burden?
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No
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Is a requirement that abortions be performed by licensed physicians an undue burden?
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No
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Is the prohibition of 'partial birth abortions' an undue burden?
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No
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Regulation of abortions: After viability…
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States may prohibit abortions unless necessary to protect the public's life/health
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Does the government have a duty to subsidize abortions or provide abortions in public hospitals?
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No
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Is a requirement of spousal consent/notification and undue burden?
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Yes
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Is a requirement of parental notice/consent for an unmarried minor's abortion and undue burden?
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No
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Do competent adults have the right to refuse medical treatment
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even if it would be life-saving?
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What evidence may a state require that a person wanted treatment terminated before it is ended?
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Clear and convincing evidence
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May a state prevent family members from terminating treatment for another?
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Yes
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Does the second amendment provide right to possess guns for self-protection?
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Yes
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What is the standard for laws preventing people from moving into a state?
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Strict scrutiny
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What is the standard for durational residency requirements?
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Strict scrutiny
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What is the standard for restrictions on foreign travel?
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Rational basis review
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What is the maximum allowable durational residency requirement?
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50 days
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Is the right to vote a fundamental right?
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Yes
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Poll taxes must pass…
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strict scrutiny
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Property requirements to vote…
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must meet strict scrutiny (and they won't)
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What is the standard for regulations of the electoral process to prevent fraud?
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The only need be on balance desirable
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One person-one vote must be met for…
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all state/local elections
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Are at-large elections constitutional?
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Yes
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May race be used in drawing election district lines?
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Only if it meets strict scrutiny
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Counting uncounted votes without standard in a presidential election violates…
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equal protection
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The right to education is…
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not a fundamental right
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How to approach equal protection questions:
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What is the classification? What level of scrutiny should be applied? Does this law meet the level of scrutiny?
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When does the 14A apply to the federal government?
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Never
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How is equal protection applied to state and local governments?
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14A
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How is equal protection applied to federal governments?
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5A
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What is the standard for classifications based on race/national origin?
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Strict scrutiny
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How is the existence of a racial classification proven?
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Classification exists on the face of the law; if law is facially neutral
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Does discriminatory use of peremptory challenges based on race deny equal protection?
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Yes
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What is the standard for racial classifications benefiting minorities?
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Strict scrutiny
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Numerical set-asides to benefit minorities require…
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clear proof of past-discrimination
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How can educational institutions use race in admissions tests to help minorities?
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As one factor among many
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Colleges and universities have a compelling interest in …
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a diverse student body
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May colleges and universities add points to applicants' admissions scores solely on basis of race?
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No
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When may public school systems use race as a factor in assigning students to schools?
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Only if strict scrutiny is met - remedy for past discrimination
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What is the standard for gender classifications?
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Intermediate scrutiny - only if 'an exceedingly persuasive justification'
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How is the existence of a gender classification proven?
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Classification exists on the face of the law; if law is facially neutral
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Are gender classifications benefiting women allowed
|
if they are based on role stereotypes?
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Are gender classifications allowed if they are designed to remedy past discriminations/differences in opportunity?
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Yes
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Is it constitutional to grant survivor benefits to women but not to men?
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No
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What is the standard for gender classifications benefiting women?
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Intermediate scrutiny
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What are alienate classifications?
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Laws that discriminate against non-citizens
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What standard is used for alien classifications when government discriminates against non-citizens?
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Strict scrutiny
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When may government discriminate against non-citizens
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Voting
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What standard is used for discrimination against aliens regarding becoming notary?
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Strict scrutiny - not related to self-government/democratic process
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What standard is used for discrimination against nonmarital children?
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Intermediate scrutiny
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Are laws that deny a benefit to all non-marital children but grant it to all marital children constitutional
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and under what test?
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Rational basis review is used for
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All other discrimination (age
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No equal protection cases have been heard for religion
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but the expectation is that that standard would be
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Is poverty a suspect class?
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No - RBR
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Is age a suspect class?
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No - RBR
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Is sexual orientated a suspect class?
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No - RBR
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Free speech methodology
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Content-based v. content-neutral
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Content-based restrictions on speech generally must meet…
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Strict scrutiny
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What are the two types of content-based laws?
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Subject matter restrictions (application of the law depends on the topic of the message)
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Content-neutral restrictions on speech generally must meet…
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Intermediate scrutiny
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What is a prior restraint?
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A judicial order or an administrative system that stop speech before it is made
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Court orders suppressing speech must meet…
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Strict scrutiny
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Gag orders on the press to prevent prejudicial pretrial publicity…
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are not allowed
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Procedurally proper court orders…
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must be complied with until they are vacated or overturned
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A person who violates a court order is barred…
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from later challenging it
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When may the government require a license for speech?
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Only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority; licensing schemes must contain procedural safeguards
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When is a law unconstitutionally vague?
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If a reasonable person cannot tell what speech is prohibited and what is allowed
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When is a law unconstitutionally overbroad?
|
When it regulates substantially more speech than the constitution allows to be regulated
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Are laws prohibiting fighting words protected by the First Amendment?
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No
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What are fighting words?
|
Words directed at another that are likely to promote a fighting response
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Are fighting words constitutionally protected by the First Amendment?
|
No <cq>
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When can government regulate symbolic speech?
|
Only if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater necessary to achieve the government's purpose
|
|
|
Is flag burning constitutionally protected speech?
|
Yes
|
|
|
What is symbolic speech?
|
Conduct that communicates (flag burning
|
|
|
Is draft card burning constitutionally protected speech?
|
No - the government had an important interest in making sure people had their draft cards…and the impact on communication was no greater than necessary to achieve the government's purpose
|
|
|
Is nude dancing protected speech?
|
No
|
|
|
Is burning a cross protected speech?
|
Yes
|
|
|
Are campaign contributions constitutional?
|
Yes
|
|
|
Are campaign expenditure limits constitutional?
|
No
|
|
|
Is anonymous speech protected by the First Amendment?
|
Yes
|
|
|
Which speech is unprotected/less protected by the First Amendment?
|
Incitement of illegal activity
|
|
|
When may the government punish speech related to the incitement of illegal activity
|
When there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality
|
|
|
What is the test for obscenity /sexually oriented speech?
|
The material must appeal to the prurient interferes (shameful/morbid interest in sex - healthy interest not OK)(local standard); material must be patently offensive under the law prohibiting obscenity (based on legislative body involved)
|
|
|
How can the government regulate the location of adult bookstores/movie theaters?
|
Zoning ordinances
|
|
|
Erogenous zoning…
|
is permissible
|
|
|
How may the government regulate child pornography?
|
Child pornography may be completely banned
|
|
|
How can the government regulate private possession of obscene material?
|
It can't - other than child pornography
|
|
|
May the government seize the assets of businesses convicted of obscenity law violations?
|
Yes
|
|
|
Is profane and indecent speech protected by the First Amendment?
|
Yes
|
|
|
How may the government regulate advertising for illegal activity
|
and false and deceptive ads
|
|
|
How may the government regulate true commercial speech that inherently risks deception?
|
It may be prohibited
|
|
|
May the government prevent professionals from advertising/practicing under a trade name?
|
Yes (TX prohibited Sight for Sore Eyes)
|
|
|
May the government prohibit attorney solicitation of clients for profit?
|
Yes - but only in-person solicitation
|
|
|
May the government prohibit accountants from in-person solicitation of clients for profit?
|
No
|
|
|
Generally
|
what is the standard for regulating commercial speech?
|
|
|
Does government regulation of commercial speech need to be narrowly tailored or use the least restrictive alternative?
|
Narrowly tailored? Yes; Least restrictive alternative? No
|
|
|
How can a public official
|
candidate for public office
|
|
|
How can a private figure recover for damages for defamation regarding a matter of public concern?
|
Only by proving falsity and negligence by the defendant; presumed (e.g.
|
|
|
How can a private figure recover for damages for defamation NOT regarding a matter of public concern?
|
P can recover presumed/punitive damages without showing of actual malice
|
|
|
May the government create liability for the truthful reporting of information that was lawfully obtained from the government?
|
No
|
|
|
If the media broadcasts a tape of an illegally intercepted call
|
is liability allowed?
|
|
|
May the government limit is dissemination of information to protect privacy?
|
No
|
|
|
When is there a first amendment right to attend government proceedings?
|
Criminal trials and most pre-trial criminal proceedings
|
|
|
Does the First Amendment protect the speech of government employees on the job in performance of their duties?
|
No
|
|
|
What places are available for speech?
|
Public forums (sidewalks/parks) - government constitutionally required to make available for speech; limited public forums (government property that the government could close to speech but chooses to open to speech); non-public forums (government properties that the government constitutionally can/does close to speech)
|
|
|
In public forums
|
how may regulations avoid strict scrutiny?
|
|
|
Does government regulation of speech in public forums need to use the least restrictive alternative?
|
No
|
|
|
May city officials have discretion to set permit fees for public demonstrations?
|
No - too great a danger that fee will vary based on content/viewpoint
|
|
|
What is a limited public forum?
|
Government property that the government could close to speech but chooses to open to speech.
|
|
|
What is a school campus on weekends?
|
A limited public form
|
|
|
How may speech be regulated in a limited public forum?
|
Same as public forum
|
|
|
When can government regulate speech in a non-public forum?
|
So long as regulation is reasonable and viewpoint neutral?
|
|
|
What are examples of nonpublic forums?
|
Military bases (even parts open to public)
|
|
|
What speech may government prohibit in airports?
|
Solicitation of money
|
|
|
What is the First Amendment right to access private property for speech purposes?
|
None (but CA constitution has that right)
|
|
|
What kind of right is freedom of association?
|
Fundamental right
|
|
|
What is the standard for laws prohibiting or punishing group membership?
|
Strict scrutiny
|
|
|
To punish membership in a group
|
it must be proven that the person:
|
|
|
What is the standard for laws that require disclosure of group membership
|
where such disclosure would chill association?
|
|
|
When are anti-discrimination laws (laws that prohibit a group from discriminating) unconstitutional?
|
Only when they interfere with intimate association (small dinner party) or expressive activity (Klan can exclude blacks; Nazi party can exclude Jews; Boy Scouts can exclude gays)
|
|
|
What are the two constitutional clauses dealing with freedom of religion?
|
General exercise clause
|
|
|
When can the free exercise clause NOT be used to challenge a law that affects exercise of religion?
|
When the law is a neutral law of general applicability
|
|
|
May the government deny benefits to individuals who quit their jobs for religious reasons?
|
No
|
|
|
What is the test for the establishment clause?
|
A law is unconstitutional if it fails any one of these (SEX): there must be a secular purpose for the law
|
|
|
What is the standard for government discrimination against religion speech or among religions?
|
Strict scrunity - religious speech = protected speech; among religions = establish clause
|
|
|
Government sponsored religious activity in public school is…
|
not allowed
|
|
|
Are student-delivered prayers before high school football games allowed?
|
No
|
|
|
Is a moment of silent prayer allowed?
|
No
|
|
|
Is a moment of silent reflection allowed?
|
Unclear
|
|
|
What protections do religious student/community groups have in schools?
|
They must have the same access to school facilities as non-religious groups
|
|
|
When may the government give aid to parochial schools?
|
So long as it is not used for religious instruction
|
|
|
May the government give vouchers for parents to use them in parochial schools?
|
Yes
|
|
|
Can federal government action violate the equal protection clause?
|
No
|
|
|
When can conduct by a private individual violate the Due Process Clause of the 14th Amendment?
|
Only when the private individual was (i) performing exclusively public functions or (ii) took actions with significant state involvement
|
|
|
A complete ban on truthful advertisement of a lawful product is probably...
|
Unconstitutionally because it is overbroad/not narrowly tailored.
|
|
|
What is the standard for regulations of commercial speech that concerns a lawful activity and is not misleading or fraudulent?
|
The regulation will be valid if it (i) serves a substantial government interest
|
|
|
May Congress regulate the wages and salaries of private/state/municipal employees
|
and if so
|
|
|
Which branch has power to dispose of all property belonging to the federal government?
|
Congress
|
|
|
Are charitable solicitations of funds in residential areas protected by the First Amendment?
|
Yes - so municipal ordinance prohibiting door-to-door solicitation by charities that don't use at least 75% of funds for charitable purpose is unconstitutional
|
|
|
May the government limit contributions by one person to a specific campaign? To a lobbying firm?
|
Yes; no - the latter doesn't satisfy sufficiently important interest to outweigh the restraints it puts on First Amendment freedoms of speech/association
|
|
|
Four justiciability doctrines
|
Standing mootness ripeness political question
|
|
|
What is standing?
|
The issue of whether the plaintiff is the proper party to bring a matter to court for adjudication
|
|
|
What are the four requirements for standing:
|
P has been injured or imminently will be injured
|
|
|
What must P show for standing if P seeks injunctive/declaratory relief?
|
A likelihood of future harm
|
|
|
'Best standing'
|
P has personally suffered monetary loss
|
|
|
What is the problem if there is no redressability?
|
If a favorable court ruling would have no effect it would be an impermissible advisory opinion
|
|
|
Third party standing - exceptions
|
P must meet other standing requirements
|
|
|
Can father sue on behalf of daughter
|
if he doesn't have legal custody
|
|
|
When may P sue 'as a taxpayer'?
|
ONLY to challenge government spending (of MONEY) pursuant to federal statutes as violating the Establishment Clause (RELIGION)
|
|
|
When may P sue 'as a citizen'?
|
Never
|
|
|
What Establishment Clause spending won't be a basis for taxpayer standing?
|
Spending from general expenditures (rather than fed statutes)
|
|
|
What is ripeness?
|
The question of whether a federal court may grant preenforcement review of a statute or regulation.
|
|
|
When should I look for ripeness
|
especially?
|
|
|
What criteria do courts consider in deciding ripeness questions?
|
Hardship that will be suffered without preenforcement review
|
|
|
What is mootness?
|
If events after the filing of a lawsuit end P's injury
|
|
|
What are the exceptions to mootness?
|
Wrong capable of repetition but evading review
|
|
|
What case exemplifies wrong capable of repetition but evading review?
|
Roe v. Wade
|
|
|
How does mootness work in class-action context?
|
If named P's claim becomes moot
|
|
|
What are the nonjusticiable political qs?
|
'Republican form of government' clause (Art. 4
|
|
|
What's wrong with Vietnam war lawsuits saying President didn't have to declare war?
|
They're nonjusticiable because they challenge the President's conduct of foreign policy
|
|
|
Which cases must come to Supreme Court by writ of certiorari?
|
All state court cases
|
|
|
What does a writ of certiorari mean?
|
Discretionary review
|
|
|
Which cases must the Supreme Court hear on appeal?
|
Decisions of three-judge federal district courts (available only for some specific statutes) - appeals heard DIRECTLY by U.S. supreme Court
|
|
|
Which court(s) have original/exclusive jurisdiction?
|
Suits between state governments
|
|
|
What is the final judgment rule?
|
Supreme Court may hear only after there has been a final judgment of the highest state court
|
|
|
The final judgment rule means there's no ___ appeal
|
Interlocutory
|
|
|
For the Supreme Court to review a state court decision
|
there must not be …
|
|
|
When can the Supreme Court review a state court decision?
|
When there is no independent and adequate state law ground of decision
|
|
|
What is the principle of sovereign immunity?
|
The 11A bars suits against state in federal court (unless exception)
|
|
|
May federal courts (or state courts) hear suits against state governments?
|
No
|
|
|
When may states be sued - AKA
|
when does sovereign immunity not apply? (4)
|
|
|
When may state officers be sued?
|
For injunctive relief
|
|
|
When may state officers NOT be sued?
|
If the state treasury will wind up paying retroactive damages
|
|
|
How do you get around sovereign immunity?
|
Sue state officers for injunctive relief or money damages to be paid out of their own pockets (and don't name the state!)
|
|
|
What does abstention mean in context of constitutional law?
|
Federal courts may not enjoin pending state proceedings (even though federal court has jx and all justiciability requirements are met)
|
|
|
What does congress need to act?
|
Express or implied authority
|
|
|
When does Congress have police power?
|
MILD: When legislating for MILITARY
|
|
|
What does the Necessary and Proper clause allow?
|
Congress may choose any means not prohibited by the constitution to carry out its authority
|
|
|
What would allow Congress to hold a national bake sale to fund the army and the navy?
|
The Necessary and Proper clause.
|
|
|
For what purposes may Congress tax and spend?
|
For the general welfare
|
|
|
When is the general welfare sufficient justification for congressional action?
|
Only for taxing and spending
|
|
|
What is the commerce clause allow?
|
Congress may regulate commerce among states
|
|
|
In what three situations may Congress regulate interstate commerce?
|
Channels of commerce (railroad
|
|
|
What's the challenge with noneconomic activity and commerce clause legislation?
|
Congress cannot find substantial economic impact based on cumulative
|
|
|
What does the 10A do?
|
Reserves to the states
|
|
|
What does the 10A keep Congress from doing?
|
Compelling state legislative or regulatory activity
|
|
|
How may congress induce state government action without violating the 10A?
|
By putting strings on grants
|
|
|
What does the 10A NOT keep Congress from doing?
|
Prohibiting harmful commercial activity by state governments
|
|
|
What does § 5
|
14A allow?
|
|
|
What limits are there on § 5 legislation?
|
Congress may not create or expand 14A rights. It may only prevent or remedy violations of 14A already recognized by courts; even then laws must be proportional and congruent to remedying the constitutional violation.
|
|
|
What limit exists on Congress' ability to delegate legislative powers?
|
Traditionally
|
|
|
Legislative and line-item vetoes are…
|
Unconstitutional
|
|
|
Why are legislative/line-item vetoes unconstitutional?
|
They lack bicameralism and presentment
|
|
|
May the President sign/veto only part of a bill?
|
No; the President must sign/veto the bill in its entirety
|
|
|
When may Congress delegate executive power to itself/its officers?
|
Never
|
|
|
What is a treaty?
|
Agreement between U.S. and foreign power that is negotiated by president and ratified by senate
|
|
|
Which controls
|
treaty or state law?
|
|
|
Which controls
|
treaty or federal law?
|
|
|
Which controls
|
treaty or U.S. constitution?
|
|
|
What is an executive agreement?
|
Agreement between U.S. and foreign power that is effective when signed by the president and head of a foreign nation
|
|
|
What is the difference between a treaty and an executive agreement?
|
Only treaties require senate ratification
|
|
|
Which controls
|
executive agreement or state law?
|
|
|
Which controls
|
executive agreement or federal law
|
|
|
Which controls
|
executive agreement or constitution?
|
|
|
If someone sues over President's use of troops in foreign country?
|
Best result
|
|
|
Who must be appointed by the President?
|
President appoints ambassadors
|
|
|
Who appoints inferior officers?
|
Congress may vest appointment of inferior officers in President
|
|
|
What is an inferior officer?
|
One who can be fired by other officers
|
|
|
When may Congress give itself the appointment power?
|
Never
|
|
|
The President may fire any executive branch officer unless…
|
Congress by statute limits removal
|
|
|
When may Congress limit removal?
|
Must be an office where independence from President is desirable (not cabinet officer)
|
|
|
Who may be impeached?
|
President
|
|
|
For which offenses may Congress impeach
|
treason
|
|
|
Does impeachment remove a person from office?
|
No - a trial in the senate must follow
|
|
|
Who impeaches?
|
House
|
|
|
When does the President have absolute immunity?
|
For civil suits for money damages for anything President do to carry out office while in presidency
|
|
|
When does President not have absolute immunity?
|
Actions that occurred prior to taking office
|
|
|
What protects presidential papers/conversations?
|
Executive privilege
|
|
|
When must executive privilege yield?
|
Other important government interests (e.g.
|
|
|
Who may president pardon?
|
All accused/convicted of federal crimes
|
|
|
When may president pardon as to state crimes?
|
Never - only federal
|
|
|
What's the difference re criminal/civil liability re presidential pardon power?
|
President may pardon only criminal convictions (under federal
|
|
|
What is the Supremacy Clause?
|
Art. VI - the Constitution and laws
|
|
|
What are the types of preemption?
|
If federal statute provides that federal law is exclusive in the field
|
|
|
May states set stricter environmental standards than federal law?
|
Yes
|
|
|
What does inter-governmental immunity prohibit?
|
It prohibits states from taxing or regulating federal government activity
|
|
|
Can a state tax a store operated by a federal government on an army base?
|
No; this is prohibited by inter-governmental immunity
|
|
|
Must the federal government comply with state anti-pollution laws?
|
No
|
|
|
What is the dormant commerce clause?
|
The principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce
|
|
|
What are the two applications of the Commerce Clause?
|
Authority of Commerce to Act
|
|
|
What is the negative implications of the commerce clause?
|
The dormant commerce clause
|
|
|
What is the Privileges and Immunities Clause of Art. IV
|
Art IV - no state may deprive citizens of other states of the privileges and immunities it accords its own citizens
|
|
|
Which constitutional provision is an anti-discrimination provision protecting out-of-staters?
|
Privileges & Immunities clause of Art IV
|
|
|
The Privileges and Immunities Clause of 14A is always the wrong answer
|
unless the question involves…
|
|
|
What does the Privileges and Immunities Clause of the 14A protect?
|
Freedom of travel
|
|
|
How to analyze a law that doesn't discriminate among states?
|
If the law burdens interstate commerce
|
|
|
When does a state/local law NOT violate the Dormant Commerce Clause
|
if it discriminates against out of staters and burdens interstate commerce?
|
|
|
What does the market participant exception allow?
|
A state/local government may favor its own citizens in receiving benefits from government programs or in dealing with government-owned businesses
|
|
|
What are the two situations that illustrate the market-participant exception?
|
In-state tuition preferences by PUBLIC universities
|
|
|
When does a state/local law NOT violate the Privileges and Immunities Clause of Art. IV
|
if it discriminates against out-of-staters with regard to their ability to earn a livelihood?
|
|
|
If a state/local government discriminates against out-of-staters
|
and challenger is corporation or alien
|
|
|
How may states use their tax systems to help in-state businesses?
|
Not at all
|
|
|
When may state tax activities?
|
If there is a substantial nexus to the state
|
|
|
How is state taxation of interstate business limited?
|
It must be fairly apportioned (e.g.
|
|
|
What does Full Faith and Credit require?
|
State/federal courts in one state must give full faith and credit to judgments of courts in another state
|
|
|
Re individual liberties
|
need the president of Austin College comply with the First Amendment?
|
|
|
Re individual liberties
|
need a local officer comply with the constitution?
|
|
|
How may Congress apply constitutional norms to private conduct?
|
By statute - 13A - Congress may prohibit private race discrimination; the commerce power can be used to apply constitutional norms to private conduct
|
|
|
Can discrimination violate the 13A?
|
No - only federal laws adopted under 13A (only slavery violates the 13A)
|
|
|
Best grounds for Congress to use to adopt laws prohibiting race discrimination in housing?
|
13A could work
|
|
|
14A § 5 can regulate only…
|
public action
|
|
|
In what situations must private conduct comply with the Constitution?
|
Public function (private entity performing a task traditionally/exclusively done by government - e.g.
|
|
|
Does the public function exception apply to private utilities (e.g.
|
must the utility provide due process before cutting off service)?
|
|
|
In what seven main situations does the entanglement exception apply?
|
Government cannot enforce racially restrictive covenants
|
|
|
When does the Court seem most willing to apply entanglement exception?
|
When race discrimination is found
|
|
|
How does Bill of Rights apply to state/local governments?
|
Through its incorporation into the due process clause of the 14A.
|
|
|
In what cases does the Bill of Rights not apply to state and local governments (because these rights are less fundamental)?
|
Second Amendment right to bear arms
|
|
|
Rational basis test
|
Rationally related for a legitimate conceivable government purpose / burden on challenger / no least restrictive alternative analysis
|
|
|
Intermediate scrutiny
|
Substantially related to an important
|
|
|
Strict scrutiny
|
Necessary to a compelling
|
|
|
What is a substantive due process question?
|
Whether the government has sufficient justification for taking away rights
|
|
|
What is an equal protection clause question?
|
Whether government's different treatment of people is adequately justified
|
|
|
What is a procedural due process question?
|
Whether the government followed sufficient process in taking away life liberty or property
|
|
|
Due process violation analysis:
|
Has there been a deprivation of life
|
|
|
When does a deprivation of liberty occur?
|
If there is a loss of a significant freedom provided by the Constitution or a statute
|
|
|
Is harm to reputation a violation of liberty?
|
No
|
|
|
Do prisoners have liberty interests?
|
Rarely
|
|
|
How do we consider whether a person has a property interest?
|
Whether there is an entitlement = a reasonable expectation of continued receipt of a benefit
|
|
|
What is the rights/privileges distinction?
|
A red herring - it is always wrong to distinguish
|
|
|
What kind of government act is required for due process violation?
|
Intentional
|
|
|
When can an officer be held liable for due process violation
|
in an emergency case?
|
|
|
Does the government have a duty to protect people from privately inflicted harms?
|
No
|
|
|
When does the government have a duty to provide protection?
|
Only if government literally creates the danger
|
|
|
How to determine proper procedure?
|
Balance the importance of the interest to the individual
|
|
|
What procedure is required for termination of welfare benefits?
|
Notice and hearing
|
|
|
What procedure is required for termination of social security disability benefits?
|
Only a post-termination hearing
|
|
|
What procedure is required for a student to be disciplined by a public school?
|
Notice of the charges and an opportunity to explain
|
|
|
What procedure is required before a student is disciplined through corporal punishment by a public school?
|
None
|
|
|
What procedure is required before a parent's custody of a child can be permanently terminated?
|
Notice and a hearing
|
|
|
What procedure is required for punitive damages?
|
Instructions to the jury and judicial review
|
|
|
Grossly excessive punitive damages violate…
|
due process
|
|
|
What procedure is required for an American citizen detained as an enemy combatant?
|
Due process
|
|
|
What procedure is required for prejudgment attachment?
|
Except in exigent circumstances (reasonable belief that person would get rid of property before judgment)
|
|
|
What standard of review is used for laws affecting economic rights?
|
Rational basis review
|
|
|
What are examples of economic rights?
|
Minimum wages
|
|
|
What does the takings clause allow?
|
The government may take private property for public use if it provides just compensation?
|
|
|
Analysis for takings?
|
Is there a taking (possessory/regulatory)
|
|
|
What is a possessory taking?
|
Government confiscation or physical occupation of property is always a taking
|
|
|
What is a regulatory taking?
|
Government regulation that leaves no reasonable economically viable use of the property
|
|
|
When are government conditions on development of property a taking?
|
When the benefit is not roughly proportionate to the burden imposed
|
|
|
May a property owner bring a takings challenge to regulations that existed when the property was acquired?
|
Yes
|
|
|
Is the government's temporarily denying an owner use/development of property a taking?
|
No
|
|
|
When is a taking for public use?
|
So long as the government acts out of the reasonable belief that the taking will benefit the public
|
|
|
How is 'just compensation' measured?
|
By the loss to the owner in reasonable economic/market terms. The gain to the government is irrelevant.
|
|
|
When does the contracts clause apply to the federal government?
|
Never
|
|
|
What does the contract clause state?
|
No state shall impair the obligations of contracts
|
|
|
To which contracts does the contract clause apply?
|
State or local interference with existing contracts
|
|
|
What is the test for determining whether local/state government interference violates the contracts clause?
|
Does the legislation substantially impair a party's rights under an existing contract? If so
|
|
|
What is the standard for state/local interference with government contracts?
|
Strict scrutiny
|
|
|
How does the ex post facto clause apply in civil cases?
|
It doesn't. An ex post facto law is a law that criminally punishes conduct that was lawfully when it was done or that increases punishment for a crime after it was committed
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What is the standard for retroactive civil liability?
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Rational basis review
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Privacy is…
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a fundamental right protected under substantive due process
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When may the federal government interfere with the right to privacy?
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Only when government can meet strict scrutiny (exception: abortion rights - different standard; homosexual activity/refuse medical care - no articulated standard)
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What rights are included in the right to privacy?
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Right to marry
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May the state create an irrebutable presumption that a married woman's husband is the father of her child
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Yes
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Regulation of abortions: Prior to viability…
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The government cannot prohibit abortions
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Is a 24-hour waiting period for abortions an undue burden?
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No
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Is a requirement that abortions be performed by licensed physicians an undue burden?
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No
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Is the prohibition of 'partial birth abortions' an undue burden?
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No
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Regulation of abortions: After viability…
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States may prohibit abortions unless necessary to protect the public's life/health
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Does the government have a duty to subsidize abortions or provide abortions in public hospitals?
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No
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Is a requirement of spousal consent/notification and undue burden?
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Yes
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Is a requirement of parental notice/consent for an unmarried minor's abortion and undue burden?
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No
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Do competent adults have the right to refuse medical treatment
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even if it would be life-saving?
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What evidence may a state require that a person wanted treatment terminated before it is ended?
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Clear and convincing evidence
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May a state prevent family members from terminating treatment for another?
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Yes
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Does the second amendment provide right to possess guns for self-protection?
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Yes
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What is the standard for laws preventing people from moving into a state?
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Strict scrutiny
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What is the standard for durational residency requirements?
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Strict scrutiny
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What is the standard for restrictions on foreign travel?
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Rational basis review
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What is the maximum allowable durational residency requirement?
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50 days
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Is the right to vote a fundamental right?
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Yes
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Poll taxes must pass…
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strict scrutiny
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Property requirements to vote…
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must meet strict scrutiny (and they won't)
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What is the standard for regulations of the electoral process to prevent fraud?
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The only need be on balance desirable
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One person-one vote must be met for…
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all state/local elections
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Are at-large elections constitutional?
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Yes
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May race be used in drawing election district lines?
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Only if it meets strict scrutiny
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Counting uncounted votes without standard in a presidential election violates…
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equal protection
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The right to education is…
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not a fundamental right
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How to approach equal protection questions:
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What is the classification? What level of scrutiny should be applied? Does this law meet the level of scrutiny?
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When does the 14A apply to the federal government?
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Never
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How is equal protection applied to state and local governments?
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14A
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How is equal protection applied to federal governments?
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5A
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What is the standard for classifications based on race/national origin?
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Strict scrutiny
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How is the existence of a racial classification proven?
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Classification exists on the face of the law; if law is facially neutral
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Does discriminatory use of peremptory challenges based on race deny equal protection?
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Yes
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What is the standard for racial classifications benefiting minorities?
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Strict scrutiny
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Numerical set-asides to benefit minorities require…
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clear proof of past-discrimination
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How can educational institutions use race in admissions tests to help minorities?
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As one factor among many
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Colleges and universities have a compelling interest in …
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a diverse student body
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May colleges and universities add points to applicants' admissions scores solely on basis of race?
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No
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When may public school systems use race as a factor in assigning students to schools?
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Only if strict scrutiny is met - remedy for past discrimination
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What is the standard for gender classifications?
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Intermediate scrutiny - only if 'an exceedingly persuasive justification'
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How is the existence of a gender classification proven?
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Classification exists on the face of the law; if law is facially neutral
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Are gender classifications benefiting women allowed
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if they are based on role stereotypes?
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Are gender classifications allowed if they are designed to remedy past discriminations/differences in opportunity?
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Yes
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Is it constitutional to grant survivor benefits to women but not to men?
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No
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What is the standard for gender classifications benefiting women?
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Intermediate scrutiny
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What are alienate classifications?
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Laws that discriminate against non-citizens
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What standard is used for alien classifications when government discriminates against non-citizens?
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Strict scrutiny
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When may government discriminate against non-citizens
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Voting
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What standard is used for discrimination against aliens regarding becoming notary?
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Strict scrutiny - not related to self-government/democratic process
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What standard is used for discrimination against nonmarital children?
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Intermediate scrutiny
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Are laws that deny a benefit to all non-marital children but grant it to all marital children constitutional
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and under what test?
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Rational basis review is used for
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All other discrimination (age
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No equal protection cases have been heard for religion
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but the expectation is that that standard would be
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Is poverty a suspect class?
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No - RBR
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Is age a suspect class?
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No - RBR
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Is sexual orientated a suspect class?
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No - RBR
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Free speech methodology
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Content-based v. content-neutral
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Content-based restrictions on speech generally must meet…
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Strict scrutiny
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What are the two types of content-based laws?
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Subject matter restrictions (application of the law depends on the topic of the message)
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Content-neutral restrictions on speech generally must meet…
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Intermediate scrutiny
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What is a prior restraint?
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A judicial order or an administrative system that stop speech before it is made
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Court orders suppressing speech must meet…
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Strict scrutiny
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Gag orders on the press to prevent prejudicial pretrial publicity…
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are not allowed
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Procedurally proper court orders…
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must be complied with until they are vacated or overturned
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A person who violates a court order is barred…
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from later challenging it
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When may the government require a license for speech?
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Only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority; licensing schemes must contain procedural safeguards
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When is a law unconstitutionally vague?
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If a reasonable person cannot tell what speech is prohibited and what is allowed
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When is a law unconstitutionally overbroad?
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When it regulates substantially more speech than the constitution allows to be regulated
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Are laws prohibiting fighting words protected by the First Amendment?
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No
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What are fighting words?
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Words directed at another that are likely to promote a fighting response
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Are fighting words constitutionally protected by the First Amendment?
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No <cq>
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When can government regulate symbolic speech?
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Only if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater necessary to achieve the government's purpose
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Is flag burning constitutionally protected speech?
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Yes
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What is symbolic speech?
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Conduct that communicates (flag burning
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Is draft card burning constitutionally protected speech?
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No - the government had an important interest in making sure people had their draft cards…and the impact on communication was no greater than necessary to achieve the government's purpose
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Is nude dancing protected speech?
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No
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Is burning a cross protected speech?
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Yes
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Are campaign contributions constitutional?
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Yes
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Are campaign expenditure limits constitutional?
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No
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Is anonymous speech protected by the First Amendment?
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Yes
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Which speech is unprotected/less protected by the First Amendment?
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Incitement of illegal activity
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When may the government punish speech related to the incitement of illegal activity
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When there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality
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What is the test for obscenity /sexually oriented speech?
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The material must appeal to the prurient interferes (shameful/morbid interest in sex - healthy interest not OK)(local standard); material must be patently offensive under the law prohibiting obscenity (based on legislative body involved)
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How can the government regulate the location of adult bookstores/movie theaters?
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Zoning ordinances
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Erogenous zoning…
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is permissible
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How may the government regulate child pornography?
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Child pornography may be completely banned
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How can the government regulate private possession of obscene material?
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It can't - other than child pornography
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May the government seize the assets of businesses convicted of obscenity law violations?
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Yes
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Is profane and indecent speech protected by the First Amendment?
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Yes
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How may the government regulate advertising for illegal activity
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and false and deceptive ads
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How may the government regulate true commercial speech that inherently risks deception?
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It may be prohibited
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May the government prevent professionals from advertising/practicing under a trade name?
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Yes (TX prohibited Sight for Sore Eyes)
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May the government prohibit attorney solicitation of clients for profit?
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Yes - but only in-person solicitation
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May the government prohibit accountants from in-person solicitation of clients for profit?
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No
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Generally
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what is the standard for regulating commercial speech?
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Does government regulation of commercial speech need to be narrowly tailored or use the least restrictive alternative?
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Narrowly tailored? Yes; Least restrictive alternative? No
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How can a public official
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candidate for public office
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How can a private figure recover for damages for defamation regarding a matter of public concern?
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Only by proving falsity and negligence by the defendant; presumed (e.g.
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How can a private figure recover for damages for defamation NOT regarding a matter of public concern?
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P can recover presumed/punitive damages without showing of actual malice
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May the government create liability for the truthful reporting of information that was lawfully obtained from the government?
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No
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If the media broadcasts a tape of an illegally intercepted call
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is liability allowed?
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May the government limit is dissemination of information to protect privacy?
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No
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When is there a first amendment right to attend government proceedings?
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Criminal trials and most pre-trial criminal proceedings
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Does the First Amendment protect the speech of government employees on the job in performance of their duties?
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No
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What places are available for speech?
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Public forums (sidewalks/parks) - government constitutionally required to make available for speech; limited public forums (government property that the government could close to speech but chooses to open to speech); non-public forums (government properties that the government constitutionally can/does close to speech)
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In public forums
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how may regulations avoid strict scrutiny?
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Does government regulation of speech in public forums need to use the least restrictive alternative?
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No
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May city officials have discretion to set permit fees for public demonstrations?
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No - too great a danger that fee will vary based on content/viewpoint
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What is a limited public forum?
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Government property that the government could close to speech but chooses to open to speech.
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What is a school campus on weekends?
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A limited public form
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How may speech be regulated in a limited public forum?
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Same as public forum
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When can government regulate speech in a non-public forum?
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So long as regulation is reasonable and viewpoint neutral?
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What are examples of nonpublic forums?
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Military bases (even parts open to public)
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What speech may government prohibit in airports?
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Solicitation of money
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What is the First Amendment right to access private property for speech purposes?
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None (but CA constitution has that right)
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What kind of right is freedom of association?
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Fundamental right
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What is the standard for laws prohibiting or punishing group membership?
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Strict scrutiny
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To punish membership in a group
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it must be proven that the person:
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What is the standard for laws that require disclosure of group membership
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where such disclosure would chill association?
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When are anti-discrimination laws (laws that prohibit a group from discriminating) unconstitutional?
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Only when they interfere with intimate association (small dinner party) or expressive activity (Klan can exclude blacks; Nazi party can exclude Jews; Boy Scouts can exclude gays)
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What are the two constitutional clauses dealing with freedom of religion?
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General exercise clause
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When can the free exercise clause NOT be used to challenge a law that affects exercise of religion?
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When the law is a neutral law of general applicability
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May the government deny benefits to individuals who quit their jobs for religious reasons?
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No
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What is the test for the establishment clause?
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A law is unconstitutional if it fails any one of these (SEX): there must be a secular purpose for the law
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What is the standard for government discrimination against religion speech or among religions?
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Strict scrunity - religious speech = protected speech; among religions = establish clause
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Government sponsored religious activity in public school is…
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not allowed
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Are student-delivered prayers before high school football games allowed?
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No
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Is a moment of silent prayer allowed?
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No
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Is a moment of silent reflection allowed?
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Unclear
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What protections do religious student/community groups have in schools?
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They must have the same access to school facilities as non-religious groups
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When may the government give aid to parochial schools?
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So long as it is not used for religious instruction
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May the government give vouchers for parents to use them in parochial schools?
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Yes
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Can federal government action violate the equal protection clause?
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No
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When can conduct by a private individual violate the Due Process Clause of the 14th Amendment?
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Only when the private individual was (i) performing exclusively public functions or (ii) took actions with significant state involvement
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A complete ban on truthful advertisement of a lawful product is probably...
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Unconstitutionally because it is overbroad/not narrowly tailored.
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What is the standard for regulations of commercial speech that concerns a lawful activity and is not misleading or fraudulent?
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The regulation will be valid if it (i) serves a substantial government interest
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May Congress regulate the wages and salaries of private/state/municipal employees
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and if so
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Which branch has power to dispose of all property belonging to the federal government?
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Congress
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Are charitable solicitations of funds in residential areas protected by the First Amendment?
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Yes - so municipal ordinance prohibiting door-to-door solicitation by charities that don't use at least 75% of funds for charitable purpose is unconstitutional
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May the government limit contributions by one person to a specific campaign? To a lobbying firm?
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Yes; no - the latter doesn't satisfy sufficiently important interest to outweigh the restraints it puts on First Amendment freedoms of speech/association
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