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201 Cards in this Set
- Front
- Back
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what article of the Q assigns the judicial power?
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Article III
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Article II extends federal judiciary power 2 cases involving
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1. interpretation of:
a. the Q b. federal laws c. treaties d. admiralty and maritime laws and 2. disputes between a. states b. states and foreign citizens c. citizens of diverse citizenship |
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Power of Judicial Review of the SC
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SC can review consitutionality of acts of other branches of the federal gov and state acts pursuant to the supremacy clause
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Federal Courts are established by
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Congress through Art III
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Congress power over fed courts under Art III
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C can delineate the original and appellate jx of these courts but is bound by standards of Art III which include:
-subject matter and party jx -requirement of a case or controversy |
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congress power to create courts under Art I
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example: tax courts
judges in these courts do not have life tenure like art III judges do cases that go to art III courts cannot be assigned to art I courts |
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SC jurisdiction
2 types |
1. Original
2. Appellate |
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Original JX to the SC
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all cases affecting
1. ambassadors 2. public ministers 3. consuls 4. those in which a state is a party Congress has given concurrent jx to lower fed courts for all above except for those in which state is a party |
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appellate JX to the SC
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all cases to which federal power extends subject to congressional exceptions and regulation
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2 ways to get appellate jx into SC
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1. writ of cert
more common, SC has discretion includes: a. cases from state courts where constitutionality of a fed statute , treaty or state statute is in issue OR a state statute is said to violate state law b. all cases from federal courts of appeals 2. appeal court MUST hear these. they are confined to decisions by a 3 judge fed dist court panel that grants or denys injunctive relief |
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the federal court can only address a case that has a ....
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CASE OR CONTROVERSY
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4 requirements for case or controversy
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1. NO advisory opinions
2. ripeness 3. mootness 4. standing |
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No advisory opinions
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there must be a specific present harm or threat of specific future harm
fed cts will not determine the Q of a statute if it has never been enforced and there is no real fear it wver will |
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When can fed cts hear actions for declaratory relief?
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when there is an actual dispute between parties having adverse legal interests
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ripeness/ immediate threat of harms
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P is not entitled to review of a statute before its enforcement UNLESS the P will suffer some harm or immediate threat of harm
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Mootness
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a real controversy must exist at ALL STAGES of review
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Exceptions to Mootness?
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controversies capable of repetition but evading review
aka pregnancy in the case of roe v wade example: issues concerning events of short duration |
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Voluntary Cessation and Mootness
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an issue is not moot where a D who voluntarily stops the offending practice BUT is FREE to resume!
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Mootness in class action suits?
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a member of a class action suit can continue to sue after the representatives controversy has become moot IF claims of other class members oare still viable
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requirements for standing
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injury
causation redressability |
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question that says "which P has the best standing"
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-look for P who was personally suffered injury
-economic loss! |
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example of a case w/no standing
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people who tried to sue ski resort but had never used park so they amended complaint to say their members used the park
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Ps seeking injunctive or declaratory relief must show...
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Likelihood of future harm
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causation and redressibilituy the P must allege and prove
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that the d caused the injury so a favorable court decision is likely to REMEDY the injury
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Exceptions to 3rd party standing
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P can bring claim for 3rd party if P meets all standing reqs AND
1. there is a close relationship between P and injured party (dr/patient) 2. injured 3rd party is unlikely to be able to assert his own rights 3. an organization may sue for its members |
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when can an organization sue for its members?
aka associational standing |
1. the members would have standing to sue
2. the interests are germane to the organizations purpose 3. neither the claim nor the relief requires participation of individual members |
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what are generalized greivances and why are they prohibited?
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cant sue solely as a citizen or taxpayer interested in having the gov follow the law
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what is the exception to generalized grievances
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taxpayers have standing to challenge gov expenditure pursuant to fed statutes as violating the establishment clause
the establishment clause is meant to be a limit on congress' power has to be $ not property or expenditures from general executive revenues (Pres) |
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ripeness requirements
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1. hardship suffered without preenforcement review
2. the fitness of the issues and the record for judicial review |
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tip on ripeness
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request for declaratory judgment then look at ripeness
this is a question of law |
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3 exceptions to mootness
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in all stages P must present a live controversy unless
1. wrongs capable of repetition but evading review 2. voluntary cessation class action suits |
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4 types of non justiciable political questions
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1.republican form of gov clause
2.challenges to Pres conduct of foreign policy 3.challenges to impeachment and removal Process 4.challenges to partisan gerrymandering |
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what is the final judgment rule
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Generally the SC can hear a case only after there is a final judgment of highest state court, of us ct of appeals, or of a 3 judge fed dist ct
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for the SC to review a state court decision there must NOT be
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independent and adequate state law ground of decision
aka if sue over fed and state law and ct finds for P under both and d appeals the fed one, then the SC cannot hear it because P can still recover full amount under state claim |
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what cases cant lower fed courts hear?
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fed cts and state cts CANNOT hear suits against state govs
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4 exceptions where state gov can be defendant
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1. waiver/consent
2. pursuant to fed statutes adopted by congress under Section 5 of the 14th (congress can adopt law to enforce the 14th) 3. fed gov can sue state govs 4. bankruptcy |
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where state gov cant be sued who can?
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state officers
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state officers can be sued if
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1. they are personally liable
2. money will come out of their own pockets 3. for injunctive relief |
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state officers cannot be sued if
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1. state treasury wil have to pay retroactive damages
2. where the damages will have to come from the treasury |
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abstention
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fed cts cannot enjoin pending state ct proceedings. if the state court proceeding is going on fed ct cannot address it too
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Congress has authority to act
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when there is express or implied authority
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does congress have federal policing power?
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NO, states have policing power
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what can congress do under the necessary and proper clause
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congress can adopt all laws that are necessary and proper
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congress can
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- adopt all laws necessary and proper
-use any means not prohibited by Q to carry out its authority -congress can use any means necessary to raise an army or navy |
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congress' taxing and spending power
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C can tax and spend for the general welfare
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congress and the commerce power
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C can regulate the channels of interstate commerce
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commerce powers include regulation of the instrumentalities, persons and things
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all things that facilitate it and go across state lines
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congress can regulate activities that have a SUBSTANTIAL effect on interstate commerce
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limited to economic activities! ie u can regulate wheat grown by farmers but u cant regulate assault of women
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the 10th amendment
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all powers not granted to the US or prohibite by states are powers states have!
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how can congress affect state legislation?
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C CANT compel states to act but it can put strings on grants
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what is required for C to put strings on state grants?
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1. conditions must be expressly stated and
2. relate to the purpose of the spending program |
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congress can prohibit harmful commercial state activity
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cant sel dmv records
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law has impact on activity within the state
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not crossing borders
1. is it economic or commercial if it is congress only has to have a rational basis to conclude that in the aggregate/big scheme of things it affects interstate commerce (wheat) 2. if it is not economic or commercial -its pretty much out unless they can substantialy show ecomic effect (restaurant case, gun case, battered women) look at that one activity not in the aggregate (not in the big scheme of things) |
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if its intrastate and non economic
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has to be a WHOLE lot of facts!!!
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limitations to congress power under section 5 of the 14th amendment
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cannot create rights or expand scope of rights
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can congress delegate legislative power?
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yes! example- congress creates post office, gives them power to enact all their rules.
administrative agencies can develop their own regulations- congress delegates this to them rules 1. inteligible standards 2. not expressly/solely given to congress congress can create the body and in the bill congress has to delegate who gets to appoint the officer- congress has to say president gets to appoint the president |
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for congress to act there must be
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1. bicameralism
2. presentment |
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if congress does not act- bicameralism AND presentment then
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this is a legislative veto and it is UNQ
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Line item vetos are
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UNQ
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pocket veto
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if pres doesnt sign it in 10 days and congress is in session it goes to law
if congress not in session then it blows away |
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executive domestic power
power of pres at home |
-appointment and removal
-pardons -veto -power as cheif executive |
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appointment
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-ambassadors
-public ministers -consuls -justices of the SC -and all other officers of the US whose appointments are not otherwise provided for with advice and consent of senate |
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congress and appointment
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-C can vest appointment of inferior officers in the
PRESIDENT alone the COURTS or the HEADS of departments -congress cannot appoint members of a body with administrative or enforcement powers |
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Removal of appointees By pres
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-can remove high level purely executive officers (cabinet members at will) without interference by congress
congress can provide statutory limitations (removal for only good cause) on the presidents power to remove all other exec apppointees |
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removal of appointees by C
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executive oficers ONLY through the impeachment process
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pardons
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pres can grant pardons for
-federal offenses but not for impeachment or civil contempt the pardon power cannot be limited by congress |
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power as chief executive
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1. if pres acts with express or implied authority of congress his authority is at its maximum and actions likely valid
2. if congress is silent pres action will be upheld unless it usurps the power of another gov pranch or precents another branch from carrying out its tasks and 3. if pres acts against express will of C then he has little authority and his action is likely invalid |
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president power over external affairs
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1. no power to declare war BUT can commit troops
2. foreign relations 3. treaty power -2/3 of senate 4. executive agreements |
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treaties
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if self executing then supreme
state laws that conflict with self executing treaty are invalid fed law that conflicts with treaty- last in time prevails Q is supreme law if treaty conflicts |
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executive agreements
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dont require consent of senate
-if state law conflicts agreement prevails -if fed law conflicts fed law prevails |
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executive privilege/immunity
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-pres has privilege to keep communication private unless need during criminal prosecution outweighs privilege
-pres has absolute immunity for civil suit during pres but not before |
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impeachment
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pres, vp, and all civil officers of US are subject to impeachment
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grounds for impeachment
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treason, bribes, high crimes, misdemeanors
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invoking the charges of impeachment
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majority vote in the house and 2/3 senate
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exclusive federal powers
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1. power of states expressly limited by the Q
(treaty power/coinage) 2. inherent federal powers (declaraton of war/federal citizenship) |
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exclusive state powers
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all powers not given to feds are reserved to states
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concurrent fed and state power- effect of supremacy clause
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1. federal law supersedes state law
2. if state prevents achievement of federal objective state law invalid 3. a valid federal statute or regulation may expressly or impliedly occupy the entire field precluding any state or local regulation even if the state or local regulation is nonconflicting! |
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express preemption
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will be narrowly contrued
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implied preemption
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historic state police powers are not to be superseded unless that was the clear and manifest purpose of congress
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interstate compact clause
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agreements between states- if the agreement increases the states power at the expense of federal power, then congressional approval is required
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full faith and credit clause
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the clause applies only if
1. the court that rendered the judgment had jx over parties and subject matter 2. the judgment was on the merits 3. the judgment is final |
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can the us sue a state
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yes without consent
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can state sue US
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not without consent
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can congress pass legislation that permits states to be sued?
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yes, but only if it falls under the 14th amendment
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can a state sue another state and if so where?
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yes only in the SC
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can states tax the US
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no! the power to tax is the power to destroy
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can a state tax be paid out of the federal treasury?
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no it is UNQ
state cant tax federally owned store on federal land state can tax privately owned store on federal land |
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when cant state and local govs regulate the fed gov?
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when they put a substantial burden on federal activity
example: fed goes does not have to comply with state polution laws or kims example of food |
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intergovernmental immunities
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immunity the fed gov has from unwanted state taxation or regulation
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when can congress subject state and local governemtn activities to regulation or taxation?
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when the law or tax applies to both public and private sectors (minimum wage)
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the 10th amendment limits
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a fed tax or regulation that is not applicable to private businesses and that merely taxes or regulates purely state or local gov activity
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exceptions to the 10th amendment limits
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1. civil rights- congres may restrict state activities that violate civil liberties
2. spending power conditions - congress can indirectlt regulate state thru the spending power by imposing conditions on the grant of money (strings on grants) |
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dormant commerce clause different from commerce clause because...
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states are acting not congress
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privileges and immunities of art IV v. 14th amendment
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Art IV. - prohibits discrimination by a state against non residents
14th Amendment- right to travel |
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Art IV privileges and immunities clause
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corporations and alients are NOT protected
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what protects corporations and aliens then?
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EP, DP and Dormant Commerce Clause
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Art IV/4 included 2 clauses
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dormant commerce clause and
privileges and immunities |
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14th and privileges and immunities
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limit people moving to state- example no welfare
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what question do u ask for privileges and immunities
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does the state law discriminate against out of staters?
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if it does not discriminate ask...
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1. does it burden interstate commerce?
BALANCING TEST burden on commerce v. benefits of law example: truck flaps case |
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if it puts burden on interstate commerce..
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1. is the law necessary to achieve an important gov interest?
2. state and local gov have HEAVY BURDEN when it worked- the bait fish case |
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Exceptions to the dormant commerce clause
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1. congressional approval- once they act its no longer DCC
2. the market participant exception |
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the market participant exception
(the GOV is a market participant) |
a state can prefer its own citizens in receiving BENEFITS from gov owned programs or dealing with government owned businesses
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examples of the market participant exception
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can charge more to out of staters for in state tuition
can charge less for state owned concrete to in staters and more to out of staters Cant |
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If the law discriminates against out of staters with their ability to earn a livelihood then...
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state must show that
1. it is necessary to achieve an important gov interest and 2. no less discriminatory alternative can achieve its objective |
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who does art IV apply to
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citizens only!
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can states use their tax systems to help in state busines?
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NO! cant put a low tax on in state products and high tax on same products from out of state
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can a state tax activities? businesses in foreign states?
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only if there is a substantial nexus to the state
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how can a state tax interstate companies?
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must be fairly apportioned- can do % of miles truck drives in CA v. rest of US and tax based on that
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When doe sthe Q apply to individual liberties?
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Must have
1. government action 2. |
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what levels of the gov does the Q apply?
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all levels!
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what about private conduct?
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it does NOT have to comply with the Q
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when do Q norms apply to private conduct?
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congress can enact statutes requiring private actors meet the same standards as imposed on the government
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when/how can congress apply Q norms to private conduct?
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1. 13th amendment can be used to prevent private race discrimination
2. commerce power can be used to apply Q norms to private conduct |
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the 13th amendment and antidiscrimination
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C can apply the Q norm of equality
13th SAYS C has broad power to prevent race discrimination discrimination CANT violate the 13th but it can violate laws enacted by congress under the 13th |
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Commerce power and Q norms as applied to private conduct
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norm of equality applied to private behavior in BBQ case because BBQ product came across state lines
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when cant C regulate private conduct?
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Under section 5 of the 14th C cant do this- this only applies to regulation of state and local govs
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when MUST private conduct comply with Q?
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1. the public function exception
2. the entanglement exception |
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the public function exception
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private entity is performing tasks traditionally done by gov
examples: gov traditionally runs town so company who runs town is regulated by the public function exception |
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the entanglement exception
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the Q applies if the gov affirmatively authorizes, encourages or facilitates UNQ activities
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7 examples of entanglement exception
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look for race discrimination
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#1 entanglement exception
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a K among members of neighborhood not to sell property to blacks or jews
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#2
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gov releases premises to restaurant that racially discriminates
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#3
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there is a state action when gov provides books to school that racially discriminates
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#4
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there is NO STATE ACTION when private school that is 99% gov funded fires teacher for speech- no entanglement state did nothing to encourage firing
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#5
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NO STATE ACTION when NCAA orders suspension of basketball coach at UNI. NCAA is private entity so it does not have to comply with Q
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#6
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There is a state action when a private entity regulates interscholastic sports in a state. (operates in state where NCAA is nationwide)
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#7
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NO state actionw hen private club with liquor license given to them by the state discriminates based on race
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who does the bill of rights apply to?
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applies directly to the federal government
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does the bill of rights apply to state gov?
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yes through the due process clause of the 14th
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all rights apply except 4
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1. 3rd amendment right to not have soldier quartered in home
2. 5th amendment right to grand jury indictment in criminal case 3. the 7th amendment right to jury trials in civil cases 4. the 8th amendment right to excessive fines |
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3 levels of scrutiny
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1. rational basis
2. intermediate 3. strict |
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rational basis test
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law upheld if rationally related to a legitimate gov interest
-governments actual purpose does not have to be legitimate, just conceivable -gov usually wins -challenger has burden of proof challenger has to prove: 1. no conceivable legit purpose 2. law not rationally related to it |
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intermediate scrutiny test
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law upheld if substantially related to important gov purpose
-court only looks to govs actual purpose -means chosen must be substantially related to achieve the objective of the purpose -same thing as narrowly tailored -good way not the best way -gov has proof |
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strict scrutiny test
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law upheld if NECESSARY to achieve a compelling gov interest
-gov has burden -gov objective must be vital/compelling -gov must show there is NO less restrictive alternative can achieve its goal -means chosen must be necessary and narrowly tailored -gov loses most of time |
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procedural DUE PROCESS
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gov takes away life liberty or property
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gov takes away property- when does perosn have a property interest?
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when there is entitlement!
entitlement exists if there is a reasonable expectation to continue receipt of a benefit |
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Due process requires what kind of act by the gov?
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intentional or reckless- negligence is not sufficiant
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in emergency situations when the gov liable for officer action?
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when they shock the conscience
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what if the gov fails to protect ppl from privately inflicted harm?
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Gov does not violate DP unless:
1. gov created harm or 2. in physical gov custody |
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Depravation balancing test
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1. importance of interest to the individual
2. ability of additional procesudre to increase accuracy of fact finding 3. gov interest (saving money) |
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notice/hearing required for
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1. termination of welfare
2. termination of child custody 3. seizure or pre judgment attachment to assets UNLESS a. person would destroy property or b. property involved in illegal activity |
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pre termination opportunity to respon to charges required for
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for cause employees (not at will)
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post termination hearing required for
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termination of social security benefits
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due process required for
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american citizen held as enemy combatant
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instructions to the jury and judicial review required for
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punitive damages
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notice of charges and opportunity to explain required for
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discipline of student by a public school
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substantive due process
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does the gov have adequate reason for taking away life, liberty or property?
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substantive due process used to protect
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1. economic liberties
2. safeguard privacy |
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Economic Liberties test
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Rational basis
law upheld if rationally related to legit gov purpose |
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takings clause of the 5th amendment
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gov can take private property for public use if it provides just compensation
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takings clause test
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1. is there a taking?
-possessory -regulatory (no reasomably economically viable use of property left) -public use 2. is just compensation paid? |
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contracts clause applies only to
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state or local interference with existing Ks
NO FED |
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no state or local gov shall substantially impair obligations of exisitng Ks unless
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1. Private ks (intermediate scrutiny)
2. public/gov Ks (strict scrutiny) |
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retroactive laws
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ex post facto clause forbidden by Q
cant apply to crim law in civil apply rational basis |
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privacy rights level of scrutiny
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STRICT
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examples of privacy rights
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marriage, procreation, contraceptives, consentual homo acts, abortions, refusal of meds, custody, keeping family together, upbringing of children, obscene material in home, state right to collect/distribute date about citizens,
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right to bear arms can be regulated as to...
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in home for security
who can own guns where u can have guns |
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right to travel- level of scrutiny? where in Q?
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P and I AND EP
Strict Scrutiny |
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right to travel
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durational resident requirements
voting 50 days ok |
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15th amendment right to vote
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strict scrutiny
if law is keeping ppl from voting |
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laws to prevent election fraud
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ok if benefit outweighs burden
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equal protection and fed gov
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DP clause of 5th amendment
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equal protection and state and local gov
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14th amendment
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Is there a classification?
classification test |
1. discriminatory on its face?
2. facially neutral? a. discriminatory intent and impact 3. what level of scrutiny? 4. does it meet level of scrutiny? |
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race and national origin classification
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SS!
ok if remedying past discrimination |
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educational institutions and race
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1. can be one factor
2. cant add points or save spots |
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gender
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IS
exceedingly persuasive justification |
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alienage
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SS for most
RB for those concerning self gov and democratic process IS for undocumented alien children |
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all other types of classifications
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RB!
age, height, weight, disability, economic, wealth, sexual orientation |
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1st amendment rule
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prohibits c from abridging the freesom of speech
applies to states through 14th |
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Prior Restraints Look for
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restriction of speech before it occurs!
Court orders! license or permit for speech! |
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test for prior restraint
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gov must show societal harm would otherwise result
PR must have 1. standards must be narrowly drawn reasonable and definite 2. injunction must be promptly sought (before u violate restraint) 3. there must be prompt and final determination of validity of the restraint |
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court orders preventing speech
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must meet SS
-person who violates a court order is barred from later challenging it |
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gov requirement of a license or permit for speech ok if
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1. important reason for licensing and clear criteria leaving NO discretion to licensing authority
2. contains procedural safeguards |
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unbridled discretion
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a regulation CANT give officials broad discretion over speech issues there msut be defgined standards for applying the law.
if the statute gives unbrideled discretion it is VOID on its FACE |
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vagueness
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dunno what is prohibited and what is allowed?
fear of chilling speech |
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overbreadth
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regulates speech that the Q allows
example- no live entertainment to prohibit strip clubs |
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fighting words statutes
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always vague and overbroad
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content based
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Strict Scruitny
subject matter restriction like (cant talk about war) viewpoint restriction (can only talk about pro-war) |
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content neutral
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IS!
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time place and manner
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content neutral
1. standards must be specifically defined and 2. unrelated to the content of speech |
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Public Forum Test
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1. content neutral
2. narrowly tailored 3. serves important gov interest 4. leave open alternative means |
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Non Public Forum Test
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1. viewpoint neutral and
2. reasonably related to legitimate gov purpose |
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limited public forum test when open to such activities on a permanent limited basis
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1. content neutral
2. narrowly tailored 3. serves important gov interest 4. leave open alternative means |
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private forum
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no 1st amenment right
|
|
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symbolic speech
|
SS
|
|
|
incitement to illegal activity test
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1. substantial likelihood of imminent illegal activity and
2. if the speech is directed to causing imminent illegal acitivty |
|
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obscntity test
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1. appeals to prurient interests (shameful and morbid interest in sex)
2. patently offensive 3. the material lacks seriously redeeming artistic, literary, political or scientific value |
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indencent speech
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is ok unless
- knowingly sending indecent material to minor over the net -in schools -over broadcast media |
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commercial speech is prohibited if
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-ads are false or deceptive
-illegal activity Apply Intermediate Scrutiny |
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IS test for commercial speech
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1. regulation must be narrowly tailored but
2. it does not need to be the least restrictive alternative |
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Can state create liability for truthful reporting of info that was lawfully obtained from gov?
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NO
|
|
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can media be held liable for revealing illegally recorded conversations
|
Not if they didnt do the recording and if its a matter of public concern
|
|
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can gov limit its dissemination of info?
|
yes to protect privacy
|
|
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who has a right to attend criminal trials?
|
the public and the press
|
|
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limiting Freedom of association in a group requires the government prove
|
SS
|
|
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laws that prohibit a group from discriminating are Q unless
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1. they inferfere with
a. intimate association or b. expressive acitvity |
|
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the free exercise clause
|
cant be used to challenge a law if it is applied NEUTRALLY (payote)
if not neutral apply SS |
|
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the establishment clause
|
-lemon test
-if gov discriminates against religious speech or religion then SS -gov cant sponsor religious acts in public school classrooms -gov can assist religious schools as long as $ not used for religious purpose |
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lemon test (SEX)
|
1. must be secular purpose
2. effect must be neither to advance or inhibit religion 3. there must not be excessive entanglement with religion |
