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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.