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89 Cards in this Set

  • Front
  • Back
What is the scope of the federal judicial power?
Article II of the Constitution requires that there be a case or controversy (the case must be "justiciable"). Courts cannot render advisory opinions.
What is required to show that a case is justiciable?
1. Standing
2. Ripeness
3. Non-mootness
4. The issue is not a political question
What is required to show that a plaintiff has standing?
To prove that he is a proper party to bring the case to court, P must show:
1. Injury
2. Defendant caused the injury, so that a favorable court decision is likely to remedy the harm ("causation and redressability")
3. Plaintiff is not asserting the claim of another, unless he falls into an exception
4. Plaintiff is not suing solely as a citizen or taxpayer (no generalized grievances), unless challenging government support of religion under the establishment clause.
How can a plaintiff demonstrate injury (as part of his showing that he has standing)?
Plaintiff must allege and prove that he has been injured or imminently will be injured.

Notes:
- Ideological objection does not establish injury (Sierra Club couldn't sue Disney without first using the park they were going to ruin.)
- Plaintiffs may only assert injuries they have personally suffered
- Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm (even if they have already suffered past harm)
What are the exceptions to the general rule that a plaintiff cannot assert the claims of others?
Third party is standing is allowed in the following situations:

1. When there is a close relationship between the plaintiff and the injured party which means the plaintiff can be trusted to adequately represent the interests of the third party (custodial parent-child, doctor-patient)

2. If injured party is unlikely to assert his own rights (criminal defendants can raise rights of jurors illegally dismissed)

3. An organization may sue for its members if:
- Members would have standing to sue
- Interests are germane to the purpose of the organization
- Neither the claim nor relief requires participation of individual members
What is ripeness?
What are the ripeness criteria?
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute of regulation (look for with declaratory relief).

The two ripeness criteria are:

1. Hardship that will be suffered without pre-enforcement review.

2. The fitness of the issues and the record for judicial review.
When does mootness become an issue?
If the plaintiff's injury is ended by events that occur after the filing of the lawsuit, the case must be dismissed as moot because there is no longer a controversy.

A non-frivolous money damages claim will keep a case from becoming moot.

Therefore mootness will likely only be an issue in cases that seek non-monetary relief exclusively.
What exceptions apply so that cases that would normally be moot can be heard?
1. The wrong is capable of repetition but avoids review because of its inherently limited time duration (abortion cases)

2. The action is voluntary ceased by the defendant (he may resume bad activity after case is mooted)

3. Class action suits, as long as one member of the class has an injury
What is the political question doctrine?
It refers to constitutional violations that the federal courts will not adjudicate because the courts think these issues better left to the other branches:

1. The U.S. shall guarantee to each state a republican form of government

2. Challenges to the President's conduct of foreign policy

3. Challenges to the impeachment and removal process

4. Challenges to partisan gerrymandering (census district making)
How do cases come to the U.S. Supreme Court?
Usually by writ of certiorari (discretionary) from state supreme courts or the U.S Courts of Appeals.

Appeals for decisions of three-judge federal district courts go to the Supreme Court as of right.

The Supreme Court has original and exclusive jurisdiction over state vs. state disputes.
What is the final judgment rule?
Generally, the Supreme Court can only hear cases after there has been a final judgment of a U.S. state court, a U.S. Court of Appeals or a three-judge federal district court.
What is the effect on an appeal to the Supreme Court where an independent and adequate state law ground of decision exists?
If the Court's reversal of the federal ground will not change the result in the case, the Court cannot hear the case.
How does sovereign immunity apply to the courts?
When can states be sued?
Courts generally may not hear suits against state governments, but there is no immunity for smaller governments like those of cities, counties and towns.
-The 11th amendment bars suits against states in federal court.
-Sovereign immunity bars suits against states in state courts or federal agencies (even on federal law claims).

States can be sued:
1. If they waive immunity by expressly consenting to suit
2. Pursuant to federal laws adopted under Section V of the 14th Amendment
3. If the federal government is plaintiff
4. In U.S. Bankruptcy Courts
Are suits against state officers allowed?
Generally yes. They can be sued for injunctive relief and money damages to be paid out of their pockets.

However, they may not be sued if the state treasury will be paying retroactive damages.
What are the big three congressional powers?
(1) Taxing and (2) spending for the general welfare and (3) regulating interstate and international commerce. No general police power.
Does Congress have a police power (general power to do all things proper to promote general welfare, health, safety, etc.)?
Generally not. Congress is eliminated to the enumerated powers.

However Congress does have a police power in the following cases (MILD):
1. Military
2. Indian reservations
3. Lands (federal lands)
4. District of Columbia
What three types of activities does the commerce clause apply to?
1. Channels of interstate commerce (e.g. highways, Internet)

2. Instrumentalities of interstate commerce (e.g. planes)

3. Economic activities that have a substantial impact on interstate commerce (if the activity is non-economic, the substantial impact cannot be based on cumulative impact)
What does the necessary and proper clause say?
Congress can adopt all laws that are necessary and proper to exercise its authority. It does not grant a general police power.
What requirements must Congress comply with to validly pass a law?
Bicameralism (passage by house and senate) and presentment (to the president to sign or veto).

Line-item and legislative vetoes are unconstitutional.
What is the difference between treaties and executive agreements?
Treaties are ratified by the Senate and signed by the President, while executive agreements are just signed by the president.

Both of these trump state law, but executive agreements are always trumped by federal statute while as between treaties and federal statutes, the last in time controls.

Neither of these win a conflict with the Constitution.
Who appoints federal officials?
The President appoints ambassadors, federal judges and other "officers"; the Senate must approve the nominations.

Congress may vest the appointment of inferior officers (can be fired by officers) in the president, heads of agencies, or lower federal courts.
Who can remove federal officials?
The President can fire any executive branch official, unless limited by statute.

Congress can only limit removal by statute if independence from the President is desirable in that office. Congress cannot prohibit removal, only limit it to where there is good cause shown.
Describe the impeachment and removal process.
President, Vice President, federal judges and all officers of the U.S. can be removed from office for treason, bribery and high crimes and misdemeanors.

The House impeaches with a majority vote.

The Senate convicts with a 2/3rds vote.
What does the president have absolute immunity to?
Civil suits for money damages for any actions committed while in office (not actions that occurred prior to taking office)
What does the presidential executive privilege apply to?
Presidential papers and conversations, but it is not absolute; it must yield to other important government interests.
Who can the President pardon?
Anyone accused or convicted of a federal criminal charge, except those impeached by the House of Representative, who can never be pardoned for the crimes underlying the impeachment.
What is preemption and where is the power derived from?
Preemption means that valid federal law preempts inconsistent state law; this power is granted in the supremacy clause of the Constitution.
What are the types of preemption?
1. Express preemption: Congress can state that its power is exclusive in a field.

2. Implied preemption
- If it is impossible to simultaneously comply with federal and state law
- If a state law impedes the achievement of a federal objective
- If Congress evidences a clear intent to preempt state law

3. States cannot tax the federal government
What is the dormant commerce clause?
It refers to the negative implications of the commerce clause: state or local laws are unconstitutional if they place an undue burden on interstate commerce.
What does the privileges and immunities clause of Article IV say?
No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification.
How is the privileges and immunities clause of the 14th Amendment used?
To preserve a persons right to travel from state to state.
What is the analysis under the dormant commerce clause and the privileges and immunities clause of Article IV if the law DOES NOT DISCRIMINATE against out-of-staters?
Privileges and immunities clause does not apply.

Dormant commerce clause is violated if the burden of the law on interstate commerce outweighs the benefits of the law.
What is the analysis under the dormant commerce clause and the privileges and immunities clause of Article IV if the law DOES DISCRIMINATE against out-of-staters?
Privileges and immunities clause is violated if the law discriminates against out-of-staters with regard to their ability to earn a living or their civil rights unless it is necessary to achieve an important government purpose.
- Privileges and immunities clause does not apply to corporations or aliens

Dormant commerce clause is violated if interstate commerce is burdened, unless it is necessary to achieve an important government purpose and there is no less discriminatory alternative.
- Two exceptions to dormant commerce clause violation:
* If Congress approves law, it is OK.
* Market participant exception: A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses (e.g. state universities).
What are the rules on state taxation of interstate commerce?
1. States may not use their tax systems to help in-state businesses

2. A state may only tax activities if there is a substantial nexus between the product or activity to be taxed and the state

3. State taxation of interstate businesses must be fairly apportioned between states with substantial nexuses
What requirements must be met for a judgment to be given full faith and credit in another state?
1. The rendering court had personal and subject matter jurisdiction.

2. The judgment was on the merits.

3. The judgment was final
What provisions of the Constitution can be used to ban private discriminatory action?
13th Amendment: Directly allows Congress to pass laws prohibiting slavery and private race discrimination.

The commerce clause: Congress can apply constitutional normals to private conduct as under the Civil Rights Act of 1964 (prohibits hotels and restaurants from discriminating based on race).

14th Amendment, Section V: CANNOT be used to regulated private behavior.
When is private discriminatory action considered to be state action (and therefore subject to the equal protection clause of the 14th Amendment)?
Public functions exception:
If a private entity is performing a task traditionally exclusively done by the government (e.g. running a private town).

The entanglement exception:
If the government affirmatively authorizes, encourages or facilitates unconstitutional activities.

Examples from cases (don't fit together well):

- There is unconstitutional state action when:
* Courts enforce racially restrictive covenants
* The government leases premises to a restaurant that racially discriminates
* The government provides free books to schools that discriminate
* A private entity regulates interscholastic sports within a state (one state)

- There is no unconstitutional state action when:
* The NCAA suspends a basketball coach at a state university
* A private school that is over 99% government funded fires a teacher because of her speech
* When a private club with a state liquor license racially discriminates
What provisions of the Bill of Rights are not applied to the states (and local governments)?
What is such application to the states called?
The Bill of Rights is applied to state and local governments via incorporation into the due process clause of the 14th Amendment.

The following portions of the Bill of Rights have not yet been found to be incorporated:
- 2nd Amendment right to bear arms (but individuals have a right to keep weapons in their own homes)
- 3rd Amendment right to not have a soldier quartered in a persons home
- 5th Amendment right to a grand jury indictment in a criminal cases
- 7th Amendment right to jury trials in civil cases
- 8th Amendment right against excessive fines
What are the levels of scrutiny?
Rational basis test: Rationally related to a legitimate conceivable purpose. Burden of proof on challenger.

Intermediate scrutiny: Substantially related to an important actual purpose. Burden of proof on government.

Strict scrutiny: Necessary (least restrictive alternative) to achieve a compelling actual purpose. Burden of proof on government.
What is the test to ascertain if there has been a procedural due process violation?
1. Has the government deprived a person of life, liberty or property?

2. What procedures must the government use to guarantee due process (balancing individual interest against government interests, usually efficiency and cost-saving)
What is considered a deprivation of life, liberty or property (to satisfy the first prong of the test for a procedural due process violation)?
A loss of life or liberty occurs if there has been a loss of a significant freedom provided by the Constitution or statute (e.g. institutionalization without hearing and notice)

A deprivation of property occurs if a person has an entitlement that has not been fulfilled.

Notes:
- Government negligence is insufficient. There generally must be intentional or reckless government action.
- During emergencies, the government is liable only if its conduct "shocks the conscience."
- Government failure to deny people from privately inflicted harms does not deny due process.
What due process is required to terminate welfare benefits?
Notice and hearing
What due process is required to terminate social security disability benefits?
Only a post-termination hearing
What due process is required to terminate a parent's right to custody?
Notice and hearing
What due process is required for punitive awards?
Jury instructions to guide jury's discretion
What due process is required to protect non-citizens held as enemy combatants?
The ability to challenge their continued detention
What due process is required to protect U.S. citizens held by the U.S. Military for criminal charges in a foreign country?
They can file a habeas corpus petition and seek review of their detention in federal court.
When does due process require recusal of a judge?
When there is a substantial risk of actual bias
When does a taking occur?
Either of the following is sufficient:

Possessory taking- Government confiscation or physical occupation of property (no matter how small).

Regulatory taking: Does the government's regulation leave NO REASONABLE ECONOMICALLY VIABLE USE of the property?

Notes:
- If benefits of a regulatory taking are roughly proportionate to the burden imposed, it is not taking.
- Temporarily denying an owner from developing property is not a taking as long as it is reasonable.
- A property owner may bring a takings challenge to regulations that existed at the time the property was acquired.

JUST COMPENSATION MUST BE PAID FOR TAKINGS FOR PUBLIC USE, OTHERWISE RETURN.
What result if there is a taking?
Is it for public use?

If not, it must be returned. If so, just compensation must be paid (measured by loss to the owner in reasonable market value terms).
What does the constitutional ban on ex post facto laws require?
Neither federal nor state governments can adopt ex post facto criminal laws (laws that criminally punish conduct that was lawful when committed or increase punishments for crimes after committed)
What does the contracts clause say?
"No state shall impair the obligations of [already existing] contracts."

Intermediate scrutiny is the standard for interference with private contracts.

Strict scrutiny is the standard for interference with government contracts.
What fundamental rights trigger strict scrutiny?
Privacy rights:
- Right to marry
- Right to procreate
- Right to custody of children
- Right to keep a family together
- Right to control raising of children
- Right to purchase and use contraceptives

Equal protection rights:
- Right to interstate travel (not international)
* Durational residency requirements trigger strict scrutiny
- Right to vote
* One-person - one-vote must be met
* At-large elections (voters cast votes for all open seats) are constitutional unless there is proof of discriminatory PURPOSE (not impact)

First Amendment rights:
- Freedom of speech
- Freedom of association
- Freedom of religion (if the law burdening religion is not a neutral law of general applicability)
What does the Constitution allow regarding regulation of abortions?
Abortions cannot be prohibited, by they may be regulated so long as they do not create an "undue burden" (standard only used here) on the ability to obtain abortions.
- 24 hour waiting periods are constitutional
- Partial birth abortion bans are constitutional
- Spousal consent and notification laws are unconstitutional
- Parental notice and consent laws are constitutional so long as there is an alternative procedure by which a minor can obtain an abortion by going before a judge who can approve it by finding it would be in the minor's best interests or that she is mature enough to decide for herself.

The government has no duty to subsidize abortions or provide abortions in public hospitals.
What level of scrutiny applies to laws restricting rights to education, to practice a trade or profession or the right to to physician assisted suicide?
Rational basis review. These are not considered fundamental rights.
In what areas is the level of scrutiny for arguably fundamental rights unknown?
- Right to engage in private consensual homosexual activity
- Right to possess firearms
- Right to refuse medical treatment
* Competent adults can refuse any medical treatment.
* States may ban family members from terminating treatment for another, or require clear and convincing evidence that a person wanted treatment terminated.
What are the sources the equal protection rule?
Equal protection clause of the 14th amendment applies equal protection to state and local governments.

Equal protection is applied to the federal government through the due process clause of the 5th Amendment.
What is the three-part analysis to see if a law violates equal protection?
1. What is the classification? (e.g. race, gender, age, wealth)

2. What level of scrutiny is applied to that classification?

3. Does the law meet that level of scrutiny?
What are the ways of showing that a law is discriminatory?
1. Discriminatory on its face

2. If it is classification neutral on its face, both discriminatory impact AND discriminatory intent must be shown
To which classifications does strict scrutiny apply under equal protection?
"Suspect classifications":
- Race
- National origin
- Alienage (discriminate against non-U.S. citizens)
* Except for Congressional regulation of aliens and alienage classifications related "to self government and the democratic process" such as voting, serving on a jury, being a police officer, teacher or probation officer (rational basis applies to these)
To which classifications does intermediate scrutiny apply under equal protection?
"Quasi-suspect classifications":
- Gender
- Undocumented alien children
- Non-marital children (generally not allowed)
To which classifications does rational basis review apply under equal protection?
- Age
- Disability
- Wealth
- Sexual orientation
- All other classifications
What level of scrutiny is required to restrict speech?
Depends whether the restriction is content-based (strict scrutiny) or content-neutral (intermediate scrutiny).

Subject matter restrictions (depends on topic) and viewpoint restrictions (depends on ideology) are both content-based restrictions.
When are prior restraints on speech valid?
Very rarely; only if some special societal harm will other otherwise result.

However, procedurally proper court orders must be complied with until vacated or overturned. A person who violates such an order is barred from later challenging it.
When and how can the government require a license for speech?
The government can require a license if there is an important reason for licensing.

To do so they must create clear criteria leaving almost no discretion to the licensing authority. Additionally, there must be procedural safeguards such as requiring prompt response and judicial review for denials.
When can the government regulate symbolic speech?
If the government has an important interest unrelated to the suppression of the message and the impact on the communication is no greater than necessary to achieve the governments goal.

- Flag burning is protected.
- Cross burning is protected (unless threatening).
- Draft card burning is not protected.
- Nude dancing is not protected.
What types of campaign finance limits are constitutional and unconstitutional under the First Amendment?
Contribution limits to candidates are constitutional.

Contribution limits to issue lobbyists are unconstitutional.

Expenditure limits are unconstitutional.
What two challenges can be made to a law restricting speech regardless of what it regulates or whether it is content-based or content neutral?
Vagueness: a reasonable person cannot tell what speech is prohibited and what is allowed.

Overbreadth: It regulates substantially more speech than the Constitution allows to be regulated.
What types of speech are unprotected or less protected by the 1st Amendment?
1. Incitement of illegal activity is unprotected
2. Defamation is unprotected
3. Obscene and sexual oriented speech is less protected
4. Commercial speech is less protected
What is the standard for incitement to take speech outside the 1st Amendment?
Substantial likelihood of imminent illegal activity and the speech is directed to causing imminent illegality.

"Fighting words," those likely to provoke a violent response, are not protected speech, however, laws regulating fighting words are often overbroad.
What is the obscene and therefore unprotected by the 1st Amendment?
3 part test:
1. Appeals to the prurient interest (a "shameful or morbid interest in sex") (community standard)
2. "Patently offensive" under the law in question (which must define that term) (community standard)
3. Lacks serious redeeming artistic, literary, political or scientific value (NATIONAL standard)

Notes:
- Zoning ordinances restricting where smut peddlers can set up shop are generally OK
- Profane and indecent speech is generally protected (except in schools and an over-the-air broadcast media)
- Government may seize the assets of businesses convicted of violating the obscenity law.
How does the 1st Amendment apply to child pornography?
Child pornography is completely banned, even if not obscene (to be child pornography, children must be used in the product of the material).

Government cannot punish private possession of obscene materials, but may punish private possession of child pornography.
How is 1st Amendment protection of commercial speech limited?
Advertising for illegal activity, and false and deceptive ads are not protected.

Even commercial speech that inherently risks deception can be prohibited:
- States may prevent professionals from using trade names
- States may prevent attorneys, but not accounts from in-person solicitation of clients for profit (attorneys are masters of manipulation)

Regulation of commercial speech must only meet intermediate scrutiny, but must be narrowly tailored, but need not be the least restrictive alternative.
To what extent can the government restrict speech to protect government secrets?
- Government cannot create liability for truthful reporting of information legally obtained from government records (e.g. rape victim's name)

- Media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call, so long as the media did not participate in the illegality and it involves a matter of public importance.

- Government my restrict its own dissemination of information. Public only has a First Amendment right to attend government proceedings and review papers is for criminal trial and pre-trial proceedings.

Note: Government employee speech on duty in furtherance thereof is not protected by the 1st Amendment.
What classes of places are available for speech? How can speech be regulated in these classes of places?
1. Public forums like parks and sidewalks*
(Requirements: important interest; content-neutral or strict scrutiny met; time, place and manner restriction that leaves open adequate alternatives)

2. Limited public forums, i.e. places the government could close off, but chooses to open for speech, e.g., schools at night
(Requirements same as for public forums)

3. Non-public forums such as military bases, areas outside prisons, advertising space on city buses, sidewalks outside the post office, airports (Requirements: rational basis test, viewpoint neutral [need not be subject matter neutral] or strict scrutiny is met)
Does freedom of association bar government prohibition of or punishment for group membership?
No, but laws that prohibit or punish group membership must meet strict scrutiny.

To punish group membership, it must be shown that:
1. Person is actively affiliated with the group;
2. Has knowledge of the group's illegal activities
3. Has the specific intent of furthering those illegal activities.
Can laws require disclosure of group membership?
Where such disclosure would chill association, the laws must meet strict scrutiny.
Does freedom of association protect a right to discriminate?
Generally not, but it does so in two cases:
- For "intimate associations" (e.g. small gentlemen's club)
- Where discrimination is integral to the expressive activities of the group (e.g. KKK)
What is an important limitation on the legal usefulness of the free exercise clause?
It cannot be used to challenge a neutral law of general applicability.
May the government deny benefits to individuals who quit their jobs for religious reasons?
No. That would be a violation of the free exercise clause.
What is required to demonstrate that the establishment clause has not been violated?
SEX

1. Secular purpose for the law
2. Primary Effect is not to advance nor inhibit religion
3. No eXcessive government entanglement with religion
When can the government discriminate against religious speech or among religions?
Only when strict scrutiny is met.
Is school prayer ever allowed?
No, even if silent and voluntary.
Can the government assist religious schools?
Yes, so long as the assistance is not used for religious instruction. Vouchers for parents to use in parochial schools are allowed.
Can the government sponsor any religious activity in public schools?
No, but religious student and community groups must have the same access to school facilities as non-religious groups.
What does the Import-Export Clause do?
Prevents states from laying taxes on imported goods or commercial activity associated with them unless such taxes are approved by Congress or "absolutely necessary for executing it's inspection laws."
Can Congress limit the jurisdiction of federal courts?
Yes
Are administrative law judges considered judges under article III?
No, and they can therefore be removed from their positions at will.
What does the abstention doctrine say?
- "The Federal courts should not adjudicate the Constitutionality of State enactments fairly open to interpretation until the State courts have been afforded a reasonable opportunity to pass on them."

- A federal court sitting in diversity jurisdiction may abstain where the state courts likely have greater expertise in a particularly complex area of state law.

- Federal courts cannot hear a civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim (e.g. drug dealer suing for 4th Amendment violation).