Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
108 Cards in this Set
- Front
- Back
Source of Judicial Power
|
Article III - Sec. 1 - Req. SCOTUS & Gives Cong. Power to Create Cts. & Limit Jurisdiction
|
|
Art. I v. Art. III in Judicial Power
|
Specialized Courts created under Art. I, BUT Art. III Courts have greater power b/c INDEP. of Congress, President & Political Process
|
|
Jurisdiction of Fed. Cts. per Art. III, Sec. 2?
|
Cases or controversies:
1. arising under constitution, laws & treaties of US 2. affecting foreign dignitaries. 3. Involving admirality & maritime 4. When US is a party 5. Btwn. 2+ states, or btwn. state and citizens of another state 6. Btwn citizens of diff states or citizen of same state claiming lands under grants of diff states; or 7. Btwn. state, or its citiziens, and foreign states, citizens, subjects. |
|
Judicial Power to Review Act of Another Branch of Fed. Govt. and declare it unconstit.
|
Marbury v. Madison
(1) Constitution is paramount law (2) SCOTUS has final say in interpreting Constitution |
|
Fed. Judicial Power to Judge Constit. of Highest Sate Ct. Decision
|
Martin v. Hunter's Lessee
|
|
Fed. Judiciary Power to Review State Actions (Constitution & Case)
|
Supremacy Clause (Art. VI Sec. 2) & Flechter v. Peck
|
|
11th Amendment
|
Jurisdictional bar that prohibits the citizens of one state from suing another state in fed. ct.
NOTE: 11th Amendmnt only bars suits suits against state officials for violating STATE law. |
|
Can citizens sue their own state in fed. ct?
|
No. (Hans. v. Louisiana)
|
|
5 Exceptions to 11th Amendment
|
1. Consent: state waives 11th amendmnt protection
2. Injunctive Relief: 11th amndmnt applies only to DAMAGES, can prevent enforcement of unconstitutional state statute. 3. Damages to be paid by an indiv: if action against state officer who has to pay 4. Prospective Damages: fed. ct. may hear action against state officer even if state will have to pay to comply with money order. 5. Congressional Authorization: if congress is expressly acting to enforce rights created by 14th amndmnt. |
|
3 Elements For Standing
|
1. Injury in Fact
2. Causation 3. Redressability |
|
When can a taxpayer challenge government expenditures?
|
Only when taxpayer argues that government expenditure is a violation of the Establishment Clause.
- applies only to congressional taxing and spending powers |
|
Third-party Standing
|
1. 3rd party unable to assert their own rights.
2. special relationship btwn PL and 3rd party (i.e. parent, organization) 3. injury adversely affects the PL's relationship w/ 3rd party. 4. Parties to exchange or transaction can raise rights of other parties to that exchange or transaction. |
|
Non-Justiciability Issues
|
1. Advisory Opinions
2. Declaratory Judgments 3. Political Questions 4. Abstention |
|
Pullman Doctrine
|
Ct. may refrain from ruling on federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts.
|
|
Younger Abstention
|
Ct. will generally not enjoin a pending state criminal case or a state enforcement proceeding in which an especially strong state interest is involved.
EXCEPTION: cases of proven harassment or prosecutions taken in bad faith. |
|
When can SCOTUS review a state court judgment?
|
Only if it turned on FEDERAL grounds. SCOTUS has no jurisdiction if judgment below rested on ADEQUATE & INDEPENDENT STATE grounds.
|
|
Exception to Fed. Taxpayer Inability to Challenge Gov.t Expenditures
|
Taxpayers have standing under the Establishment Clause to challenge SPECIFIC congressional appropriation. NO standing to challenge expenditure of general discretionary funds by the executive branch.
|
|
Three Commonly Mistaken Federal Powers
|
Fed. Govt. Does Not Have:
1. Power to Promote General Welfare 2. General Police Power 3. Free-Standing Necessary & Proper Power. Must be accompanied by other legislative power. |
|
How can Congress Regulate Non-Commercial Intrastate Activity?
|
Commerce Must ACTUALLY Demonstrate Substantial Effect On Interstate Commerce
|
|
When can Congress impose a tax?
|
When it is rationally related to raising revenue.
|
|
Congress' General Welfare Taxing Power
|
Congress can tax for any public purpose, but does not give Congress specific power to legislate for the public welfare in general.
NO burden to prove tax is necessary |
|
What objective can Congress accomplish through the Spending Power that it could not do otherwise?
|
Spending for general welfare.
|
|
Prohibition of Military Trial Provided by Congress Extends to U.S. Civilians. True or False?
|
True
|
|
Thirteenth Amendment
|
Grants congress broad powers to legislate against RACIAL discrimination, whether public or private.
NOTE: ONLY amendment regulating pure private discrimination. |
|
Fourteenth Amendment
|
Grants congress power to REMEDY violations of INDIVIDUAL rights by GOVT. ONLY RIGHTS DEFINED BY COURTS
NOTE: Congress cannot redefine constitutional rights by legislation. |
|
Standard for Remedial Legislation For Constitutional Right Declared By Supreme Court
|
Must have "congruence" and "proportionality". Must be a reasonable fit.
|
|
Fifteenth Amendment
|
Congress has power to ensure no racial discrimination in voting. Courts have interpreted the right to vote to include the right to have that vote meaningfully counted.
|
|
Plenary Executive Powers
|
1. Pardon Power
2. Veto Power (10 days to veto; 2/3 vote overrides) 3. Appointment & Removal of Executive Officers |
|
What is the Senate's Power in appointing cabinet officer, ambassadors & federal judges then?
|
Requires advice and consent of Senate, a power of rejection, does not translate into power to appoint.
NOTE: If appointed by legislature, then can't have executive power. |
|
Authority of Treaties?
|
Same as statute, when approved by 2/3 of SENATE.
|
|
Authority of Executive Agreements?
|
Take precedence over conflicting state laws, not binding like treaties. But can be authorized, precluded, or overridden by statute.
|
|
Standard for Congress delegating powers to admin. agencies?
|
Must have intelligible standards governing the exercise of that delegated power.
NOTE: Almost always upheld. |
|
Presidential Immunity
|
Absolute for official acts, and has executive privilege not to reveal confidential information, but can be outweighed by specifically demonstrated need in a CRIMINAL prosecution.
|
|
Immunity for Judges
|
Absolute, even for acts done with malice.
|
|
Speech or Debate Clause
|
Protects legislators + aides and cannot be prosecuted or punished in relation to their official acts/legislative process.
|
|
Can State Officers be Immune From Federal Liability?
|
Cannot be shielded by state
|
|
Anti-Comandeering Principle
|
Federal govt. cannot force states to implement federal programs. BUT states are NOT immune from direct federal regulation.
|
|
Does a state have to consent before the United States can file a suit against it?
|
No. Only the state is required to get a consent from the US before the state can file suit against it in FEDERAL ct.
Fed. Law actions brought against state govt. w/o state's consent in STATE ct. violate sovereign immunity. |
|
Privileges and Immunities of State Citizenship under Article IV (Comity Clause)
|
No RESIDENCY requirement for PRIVATE employment. PUBLIC employment can have residency requirement. Also applies to fundamental rights or essential activities.
Note: Out-of-State Corporations Not Protected |
|
Dormant Commerce Clause Rule
|
If no federal reg, state reg. of commerce is valid if:
1. No discrimination against out-of-state interests. 2. Does not unduly burden out of state interests. 3. Regulation does not apply to wholly extraterritorial activity. |
|
Exceptions to No Discrimination in Dormant Commerce Clause
|
1. State as Market Participant.
2. States Providing Subsidies 3. Federal Approval of State Regulation, even if discriminatory. |
|
Reqs. for State Taxation of Interstate Commerce
|
1. Must be a SUBSTANTIAL NEXUS btwn. state & object to be taxed.
2. Must be a FAIR APPORTIONMENT of tax liability among states. (i,e. tax only activity in state, not worldwide) |
|
State Taxation of Value-Based Property Taxes Rule
|
1. COMMODITIES: pay full tax to state where goods STOPPED fora business purpose on tax day. No taxes when passing through.
2. INSTRUMENTALITIES: each state where instrumentality is used can tax the value of instrumentality |
|
Full Faith and Credit Clause
|
States must give full faith and credit to other states' courts, if:
1. Ct. had jurisdiction. 2. Rendered Final Judgment. 3. On Merits |
|
Anti-Discrimination Statute
|
State action is IRRELEVANT if there is anti-discrimination legislation.
|
|
Procedural Due Process Test
|
1. Is LIFE, LIBERTY, or PROPERTY being taken?
2. If they are, what process is due? NOTE: must be taken away INTENTIONALLY |
|
When are govt. entitlements property?
|
When govt. provides it by contractual term or discharge only "for cause." Need legitimate entitlement to continued employment of job or benefit.
|
|
Three Factors To Decide What Process is Due
|
1. Individual Interest at stake.
2. Value of procedure in protecting interest. 3. Government's interest in efficiency and cost. |
|
When must hearing be before deprivation?
|
1. Terminating Welfare
2. Non-emergency revocations of drivers' licences |
|
When can hearing occur after action?
|
1. Terminating disability benefits
2. Dismissing students for academic reasons RULE: Post-deprivation hearing must be PROMPT and FAIR |
|
Hearing req. for "for cause" public employees
|
Must be given opportunity to be heard prior to discharge, UNLESS there is a significant reason not to keep employee on the job.
|
|
Strict Scrutiny Standard of Review
|
Is the law NECESSARY for a COMPELLING interest?
- govt. must use the least restrictive means. - govt. bears burden of proof. |
|
Intermediate Scrutiny Standard of Review
|
Is the law SUBSTANTIALLY related to an IMPORTANT govt. interest?
|
|
Rational Basis Standard of Review
|
Is the law RATIONALLY related to a LEGITIMATE interest?
- challenger must bear burden of proof. |
|
Is purchasing contraception a fundamental right?
|
Yes
|
|
Two abortion restrictions not allowed
|
1. Parental Consent, (if underage then parent or judge)
2. Spousal Consent requirements |
|
Is refusal of medical treatment a fundamental right?
|
Not clear, but there is a LIBERTY interest.
NOTE: No right to commit suicide. |
|
Privileges and Immunities of National Citizenship under 14th Amendment
|
- Never correct answer on MBE.
|
|
What are the two due process clauses? And what is the difference btwn them?
|
1. 5th Amendment: applies to federal govt.
2. 14th Amendment: applies to localities & states. |
|
Are there two equal protection clauses?
|
No, only one that applies to localities and states via 14th amendment.
NOTE: EPC applied to federal govt. via DPC of 5th amendment. |
|
Classifications that Trigger Strict Scrutiny
|
1. Race
2. Ethnicity 3. National Origin |
|
When does a law make a racial classification?
|
Only if PL show that it has discriminatory purpose, not enough to show disproportionate impact.
NOTE: parties may still bring a claim under a federal statute intended to prevent discrimination. |
|
How do you prove discriminatory purpose?
|
1. Explicit in statute
2. History of discriminatory application 3. Extrinsic evidence about the purposes of those who passed the law |
|
When is affirmative action valid?
|
When it specifically corrects past discrimination, by the specific department or agency now engaged in affirmative action.
NOTE: race must be one of may factors considered in college admissions |
|
When does classification based on alienage not trigger strict scrutiny?
|
1. Federal classifications based on U.S. citizenship.
a. Unless arbitrary or unreasonable 2. U.S. Citizenship may be required to participate in govt. functions. (voting and being a public school teacher) NOTE: cannot require US citizenship for pvt employment or govt. benefits |
|
Are illegal aliens a suspect class?
|
No. But states cannot deny their children public education.
|
|
What classifications trigger quasi-suspect classification?
|
1. Gender.
2. Legitimacy. Were parents married at time of birth |
|
What classifications trigger non-suspect classifications?
|
1. Age
2. Wealth 3. Sexual-orientation 3. Everything else. |
|
Voting Rights Act Rule
|
Requires racial gerrymandering to ensure minority success by creating majority-minority districts.
NOTE: race may be a factor in gerrymandering but not the predominant or only factor. |
|
Takings Clause Rule
|
Pvt property shall not be taken for public use without just compensation.
Pvt property: incl. tangible and intangible. |
|
What is public use in the taking clause rule?
|
Any property taken by the govt. that is rationally related to a conceivable public purpose.
NOTE: incl. taking pvt. property to sell to another pvt. owner for economic development. |
|
Is compensation required if regulation on property reduces the value of the property?
|
No
|
|
What is regulatory taking?
|
When a zoning regulation leaves no economically viable use for the property.
NOTE: state or local govt. can act under police power for purposes of health, safety & welfare for reg. taking |
|
When can govt. destroy pvt. property w/o compensation?
|
in face of public peril
|
|
Development Permits & Exactions Rule
|
Must have:
1. Essential nexus between legitimate interests & conditions on prop. owner 2. Rough proportionality between imposed condition and development. |
|
Three Types of Prohibited Legislation
|
1. Bill of Attainder: legislative punishment
2. Ex Post Facto Laws: cannot expand crim liability retroactively. 3. Contracts Clause: STATE LEGISLATION cannot retroactively impair federal legislation, UNLESS there is an overriding interest. State ct. decisions and fed. legislation can. |
|
Three Part Test for Freedom of Religion
|
1. Does law have SECULAR purpose?
2. Does the PRIMARY EFFECT of law advance or inhibit religion? 3. Does it avoid excessive govt. entanglement w/ religion? |
|
Standard Applied to Content Based Restrictions?
|
Strict Scrutiny
- Vaguenesss: must give clear notice of what is prohibited - Overbreadth: go too far. |
|
When are laws regulating expressive conduct upheld?
|
1. Further IMPORTANT GOVT. interest
2. Interest is UNRELATED to suppression of expression. 3. Burden on expression is NO GREATER than necessary. |
|
When can prior restraints on content based speech be valid?
|
When there is a particular harm to avoid and certain procedural safeguards are provided to the speaker.
NOTE: never have unfettered discretion for regulation & permits. Must have due prcess |
|
What can be regulated in a public forum?
|
1. Time
2. Place 3. Manner |
|
Standards for speech restrictions in public forums?
|
1. Content Neutral: as applied an de jure, no exec. discretion.
2. Alternative channels of communication must be left open 3. Must narrowly serve a significant interest a. NO compelling interest required. |
|
Standards for speech restriction in non-public forums?
|
1. Any reasonable regulation of speech is upheld if reasonably related a legitimate govt. interest.
NOTE: viewpoint discrimination is always invalid. but can choose not to allow some content. |
|
Categories of content-based regulation that can be restricted.
|
1. Obscecne
2. Incitement 3. Fighting Words 4. Defamation 5. Commercial Speech |
|
Standard for obscenity regulating laws?
|
1. Sexy: erotic, must appeal to prurient interest.
2. Society Sick: must be patently offensive to avg. person in country or local society. 3. Standards: must be able to determine what is obscene cannot be vague or overbroad. 4. Serious Value: must lack serious value. Decided by judge on a national stndrd not community. |
|
Define incitement
|
speech must incite immediate violence
|
|
Define fighting words
|
Words to provoke immediate breach of peace:
1. must be targeted Fighting words statutes are unconstitutional, b/c broad and overvague |
|
Define defamation
|
False statement of facts damaging to a person's reputation. Can be prohibited
|
|
Standard for recovering damages for defamation for PUBLIC officials?
|
If prove
1. knowing 2. reckless Falsity |
|
Standard for recovering damages for defamation of PVT. officials?
|
if prove knowing falsity
|
|
What type of commercial speech is allowed?
|
Advertising that truthful and informational.
|
|
Test for regulation of commercial speech.
|
Regulation must:
1. advance a SUBSTANTIAL govt. interest 2. be NARROWLY tailored to that interest (least restrictive means not required) |
|
1st Amendment Restrictions on Govt.
|
NONE. Free to express a point of view.
|
|
Freedom of Association Rule
|
cannot be punished for political association
NOTE: can deny public employment to subversive organization member doing illegal activiites |
|
Can states require open primaries?
|
No
|
|
Contributions v. Expenditures in a political campaign.
|
Contributions can be regulated, DIRECT expenditures cannot.
Applies to coporations, nonprofits, and unions |
|
Independent Expenditures v. Coordinated Expenditures
|
When expenditures independent of campaign, cannot be regulated, when coordinated can be regulated
|
|
Can states require public financial disclosure of fundraising activities?
|
Yes
|
|
When is media shielded from liability for publishing information illegal obtained by 3rd party.
|
When
1. Involves a matter of public concern 2. Publisher did not obtain it unlawfully 3. Does not know the person who obtained it illegally |
|
Can a state require a semi-closed primary system, even if the party wants to permit anyone to vote?
|
Yes
|
|
May a state prohibit a political party from allowing independents to vote in its primary?
|
No
|
|
May a state adopt a blanket primary system (open to all) that is partisan?
|
No, must be nonpartisan, however, candidate may by itself identify affiliation.
|
|
Can a fusion candidate appear on general-election ballot as a candidate of multiple parties?
|
No
|
|
Can a replacement candidate be selected for an elected official by only its own party?
|
Yes
|
|
What gives Congress the authorization to investigate issues?
|
Necessary and Proper Clause. Congress does not have an independent right to investigate, it may only do so incident to its power to legislate.
No power to legislate = no power to investigate. |
|
When is the government required to provide a formal hearing when taking property?
|
Required to provide the owner of REAL property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute. Does not need to provide notice prior to the seizure of PERSONAL property.
|
|
Are religious acts absolutely protected? What is the standard for judging religious acts?
|
Not absolutely protected. May be valid if necessary to achieve legitimate government interest.
|
|
Minister Exception
|
Religious institutions are immune from labor laws and regulations when dealing with ministers.
|