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73 Cards in this Set

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  • Back
Original Subject Matter Jurisdiction
The SC has original subject matter jurisdiction in cases affecting ambassadors, public ministers and consuls, and those in which the state is a party. The SC has appellate jurisdiction to the extent provided by Congress.
In order to establish standing, P must show that he has suffered a direct injury, which was caused by D's violation of a duty arising out of a constitutional or federal law, and that his injury will be redressed by the relief sought.
Constitutional Limitations
1. Cases involving a federal question.
2. Cases in which the U.S. of a federal officer acting in his official capacity is a party
3. Cases between a state, including it's officials acting within their official capacity; citizens of another state, and
4. Cases between citizens of different states.
11th Amendment
The 11th Amendment ordinarily precludes a U.S. of foreign citizen from seeking damages or injunctive relief against a state or its officers in federal court. However, it does not preclude:
1. Sutis against state officials for injunctive relief, where the latter are allegedly acting contrary to the U.S. Constitution, federal law, or a US treaty.
2. Suits against subdivisions of a state (counties, municipalities)
3. Suits against a state or officials which have consented to the suit
4. Suits authorized by Congress pusuant to Section 5 of the Fourteenth Amendment.
Supreme Court Review of State Court
A final decision by the highest state court available which has invalidated a state statute or rule based upon the contention that it contravenes the Constitution, a federal statute or a US treaty, may be reviewed by the US Supreme Court via certiorari (4 justices)
Supreme Court Review of a Lower Federal Court
Any decision by a US Court of Appeals may be reviewed if certiorari is granted.
Adequate, Independent State Grounds Doctrine
The SC will not review (an otherwise reviewable) state court decision where there is adequate, independent state law basis for judgment (the ultimate outcome would not be altered, even if the dtermination of the federal issue was reversed).
Taxpayer Standing
General rule: no standing (direct injury). However, US citizen taxpayers have standing to contest a Congressional spending measure (even though it has no direct impact upon them) when the expenditure exceeds a specific constitutional limitation on the spending power. (Funds to religious schools)
State Taxpayer Standing
A state taxpayer will have standing in the federal court to challenge a local (municipal, county) or state expenditure if (1) the activity challenged is supported by a measureable expenditure of state taxpayer revenues and (2) the suit is not barred by the 11th Amendment.
Third Party Standing
If P has suffered direct injury, but not as a result of a violation of her own rights, P may have standing if (1) the third parties will experience difficulty or are unlikely to assert their own rights, and (2) a special relationship exists between the P and the third parties (doctor-patient), vendor-purchaser)
Federal courts will not decide moot questions. (The controversy must exist at all stages of judicial review).
1. A criminal D may appeal his conviction even after completing his sentence if other collateral legal consequences (loss of right to vote) result from the conviction).
2. Capable of repetition, yet evading review: If the duration of the challenged action is too short to be fully litigated prior to its expiration and there is reasonable expectation that teh same P will be subjected to the same action again, the question is not moot.
The federal courts will not accept a case for review unless it is certain that an actual controversy exists between the parties. (Actual injury or threat of imminent injury)
Political Questions
A federal court will not decide a controversy which should be left to the political branches of the government
Advisory Opinions
No advisory opinions, there must be an actual case or controversy.
Association Standing
An association may assert the rights of its members if: (1) one or more of its members would have standing, (2) the injury asserted is pertinent to the associations's purpose, and (3) neither the claim asserted, nor relief requested, require individual members to particpate in the suit.
Abstention Doctrine
Where in federal court, (1) it is asserted that state or local legislation is unconstitutional and (2) the issue rests upon unsettled qustion of state law which might be resolved by a curative interpretation of teh statute involved, a federal court may, in its discretion, abstain from hearing the matter unitl after a decision is rendered in state court.
Enumerated Powers Doctrine
Congress may legislate only with respect to those powers specifically enumerated in Article I, Section 8 of the Constituion.
Commerce Power
Under the Commerce Clause, Congress has the right to regulate (1) any movement (persons, things, information, etc.) across state lines, (2) any activity which regularly facilitates, or results in, the movement of persons, things, or information across state lines, and (3) any activity which, in the aggregate, has an appreciable impact upon the movement of persons, things, or informaiton across state lines.

National Economic Effect: activity that in the aggregate might produce a national economic effect (wheat)
Taxing and Spending Powers
Congress has the power to lay anc collect taxes to pay the debts and provide for the common defense and general welfare of the US. It may not tax foreign exports.
- Tax must in fact raise revenue or was intended to raise revenue
- Congress can spend to promote the general welfare. Thus if there is a rational basis it is within the spending power.
Impairment of Contracts Clause
No state may pass a law which substantially modifies obligations of an outstanding contract.
- indirect affection by state legislation is not substantial modification.
Privileges and Immunities Clause of the 14th Amendment
The Privileges and Immunities Clase of the 14th Amendment precludes states from impairing an individual's rights of national citizenship protected by this provision include the right to (1) petition congress, (2) peaceably assemble for the purpose of discussing national issues, (3) use navigable waterways, (4) travel across interstate lines, (5) vote in federal elections, (6) utilize the Writ of Habeas Corpus, and (7) claim the benefits of US treaties made with foreign countries.
Privileges and Immunities Clause in Article IV, Section 2
Precludes a state from discriminating against teh natural citizens of other states where a basic or fundamental right is involved, unless (1) the state has a substantial reason for subjecting citizens of another state to different treatment, and (2) the discrimination practiced against nonresidents bears a substantial relationship to that objective.
Ex-Post Facto Law
An ex-post facto law is one which (1) punishes, in a criminal or penal manner, and individual for prior conduct which was legal when undertaken, or (2) enhances the criminal or penal punishment for a prior act.
Bill of Attainder
A bill of attainder is a legislative act which purposefully subjects an individual or identifiable group to adverse treatment.
Dormant Commerce Clause
A state law is invalid where it results in an undue burden upon interstate commerce (the local interest sought to be protected by the legislation is outweighed by the burden which it places upon the movement of persons, things or information across state lines.
A statute is facially vague when a person of ordinary intelligence would, even with knowledge of the law, be uncertain as to whether contemplated conduct was proscribed or not. A statute which is facially vague cannot serve as the basis of governmental action unless (1) it is subsequently interpreted in a constitutionally proper manner, and (2) the party affected by the law had reason to anticipate the curative interpretation.
Supremacy Clause
Under the Supremacy Clause, a state or local law is void if it (1) confilcts with a federal law, or (2) impiars accomplishment of the objectives of a federal law.
Preemption Doctrine (Supersession)
As a consequence of the Supremacy Clause, where Congress validly enacts legislation with the intent that it be the exlusive body of law in that area, any state or local statute pertaining to the subject matter of the US law are invalid.
Intergovernmental Immuinities Doctrine
Validly enacted federal legislation must be oberved by the states, even if it interferes with traditional local funcitons. Also, state laws which discriminate agaisnt, or unduly burden, federal property or activiies are invalid.
Facial Discrimination or Direct Discriminatory Effect upon Interstate Commerce
A state or local law which (1) facially discriminates against or (2) has a direct discriminatory effect upon, interstate commerce, is unconstitutional, unless the jurisdiction can show (i) an overriding benefit reulting to its citizens from the legislation, and (ii) the absence of any non-discriminatory means to achieve that interst.
State Tax of Foreign Commerce
Unless authorized by Congress, no state may lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.
State Tax of Instrumentalities of Interstate Commerce
Personal property which is utilized in interstate commerce is subject to an ad valorem tax by (1) the juridiction which constitutes the taxpayer's principal place of business, and (2) by states in which the item has acquired a taxable situs. To the exent that this equipment has acquired a taxable situs outside of the taxpayer's principal place of business, he is entitled to a corresponding reduction in teh ad valorem tax assessed by the domiciliary state.
State Sales or Use Tax
A state may not ordinarily impose a sales tax on a transaction which is conummated outside of that jurisdiciton. A state may, however, collect use tax for the purchaser of an itme which will be utilized in that jurisdiction.
Establishment Clause
Governmental action which affects religion conravenes the Establishment Clause unless: (1) it has a secular purpose, (2) the primary effect of the action neither advances nor inhibits religion, and (3) it will not result in excessive entanglement with religion.
Governmental Financial Assistance and the Establishment Clause
Where government aid benefits private religious schools in an indirect manner and does not require constant monitoring, it will ordinarily be upheld.
Free Exercise Clause
Where governmental action inadvertentl interferes with the exercise of religoius beliefs, a court must balance (1) the importance of the governmental interest sought to be achieved, (2) the severity of the interference with the reigoius action in question, and (3) whether the governmental entity could satisfy its interests by less beurdensome means. If there factors weigh in favor of the religious right asserted, the governmental action contravenes the Free Exercise Clause.
Overbreadth Doctrine
A statute which is substantially overbraod on its face is void, unless (1) a constitutionally curative interpretation of the law is made prior to the D's trial, and (2) such a construction was reasonbly foreseeable.
Judicial Order (Injunction)
Unless (1) patently void on its face, or (2) it was not possible for the D to obtain prompt judicial review, a contempt convictoin for disobeying a judicial order is valid (even if the order was, in retrospect, not properly issued).
Traditional Public Forum Doctrine
Traditional Public Forums (streets, sidewalks, parks etc.) must be made available to persons wishing to communicate their views, Access may be subject to the reasonable restrictions upon the time, place, and manner of such expression.
Limited or Semi Public Forum Doctrine
Once a non-traditional public forum is made available to a certain type of expressive activity, similar forms of expression may not be foreclosed, unless (1) a substanital governmental interest is involved, (2) which is unrelated to the content of the speech, and (3) the restriction is no greater than necessry to accomplish the governmental objection.
Governmental Limitation on Private Expressive Activities
Governmental action which is content-neutral and regulates expressive activity by a private party, in other than an incidental manner, (1) must serve a substantial purpose, (2) be narrowly drawn to accomplish the governmental objective, and (3) not unreasonably limit alternative avenues of communication.
State Action Doctrine
The individual rights protected by the 14th Amendment apply only to gevernmental (rather than private) action or conduct. State action is present when: (1) governmental officers purport to perform their offical functions, (2) private parties undertake a public funciton (activities which have traditionally been the exclusive preogative of the state) or (3) there has been a significant involvement or encouragement by a government entity of private conduct.
Eminent Domain
Under the 5th and 14th Amendments, private property may be approprated for a public purpose by a govermental entity if just compensation (fair market value of the property) is paid to its owner.
Constitutional limitaions on the law of defamation.
- Where the P is a public figure, he must prove that the defamatory publication was made with actual malice (knowledge that the publication was inaccurate or under the circumstances in which the D should have entertained a serious doubt as to its accuracy)
- Where the P is a private figure and the D is a mass media entity, the P must prove that the defamatory statement was (1) false, (2) was made in at least a negligent manner.
- To recover punative damages agaisnt a mass media entity, the P must prove actual malice
- Where the statement involves a matter of public concern, P must show actual malice.
Fighting Words
Language which, by its very utterance, would have a direct tendency to incite an immediate violent response by the person to whom adressed, can be made criminal.

The advocacy of illegal conduct as a means of accomplishing political or social objectives can be made criminal if (1) it was intended to cause imminent, unlawful condcut, and (2) it was likely to produce that result.
Material is obscene (and therefore regulable) when (1) taken as a whole, to the average person, it appeals to the prurient interest in sex, (2) it portrays sexual conduct in a patentl offensive way, and (3) it lacks seriously literarly, artistic, political or scientific value.
- first two prongs are local standards, the last prong is national standard
Governmental Classfications on Race
Governmental action which purposefully discriminates upon the basis of race must satisfy strict scrutiny (a compelling state interest and no less burdensome means of accomplishing that objective) to be constitutional.
Fundamental Constitutional Rights
Governmental action which impairs a fundamental right must satisfy strict scrutiny (compelling state interest and least restrictive alternative) to be constitutional.
- contraception
- abortion
- marry
- live with members of ones extended family
- read obscene literature in ones own home
- if indigent, divorce without a filing fee
- parent children
State Action of Legal Aliens
Ordinarily, state action which purposefully discriminates against legal aliens must satisfy strict scrutiny. However, where legal aliens are involved in political or basic governmental functions, state classfications are subject to a rational relationship test.
Immigration, Naturalization, and Citizenship
Congress has plenary power to determine the (1)standards pursuant to which aliens may be admitted into, or remain within, the US and (2) process of naturalization. Congress also determines the standard pursuant to which US citiznship may be lost and aliens deported.
Gender Discrimination
Legislation which purposefully discriminates on the basis of gender must be (1) substantially related to an important governmental interest, and (2) colsely tailored to accomplish that objective, to be constitutional.
Affirmative Action
Governmental Action which (1) is aimed at remedying the effects of past, purposeful, discrimination against a particular group, (2) is narrowly tailored to accomplish that ojective, and (3) does not unduly deprive innocent persons who might be disadvantaged by the law or judical decree is constitutional.
- no quotas
Procedural Due Process
Under the Due Process Clauses of the 5th and 14th Amendments, when deprived of life, liberty, or property interests by governmental action, an individual is entitled to notice and a hearing.
Executuve Powers of Appointment, Removal, and Pardon
The president may appoint (1) ambassadors, members of the SC, and federal officials who exercise significant authority, with the consent of a majority of the Senante, and (2) lower level federal officials (i) cabinet heads, (ii) federal judiciary. Congress may prescribe the procedures (including qualifications) pursuant to which lower level federal officials are appointed.
- The president has an absolute right to remove executive officials appointed by him. Federal officials performing quasi-judicial (War Claims Commissioner) or quasi legislative (FTC) funcitons may not be removed except where Congressional authority to do so has been bestowed upon him.
- The president may pardon anyone charged with, or convicted, of, committing a federal crime.
Legislative Powers
Commerce Power
Taxing Power
Spending Power
Power over Foreign Affairs
Treaty Power
Aliens, Naturalization, Citzenship
Postal Power
Federal Property Power
Necessary and Proper Clause
Enabling Clause of 13th, 14th, and 15th
Executive Powers
Appointment and Removal
Impound Funds
Executive Priviledge
Inherent Emergency Powers
International Relations
War Power
Judicial Power
Article III courts
Article I courts
11th Amendment
- orignal jurisdiciton
- appellate jurisdiction
Limitations on State Regulatory Power
Police Power
Preemption (Supremacy Clause)
Procedural Due Process
(1) Is the individual interest a protected liberty or property interest? and (2) If so, what kind of process is due?
- Liberty: imprisionment, right to purchase alcohol, right to continued public employment not sufficient, damage to reputaion alone is not sufficient.
- Property: Protected property interests are those public benefits to which the individual has a legitimate claim of entitlement by virtue of a statute, emplyment contract, or custom. Welfare, disablity, public employment (if for cause), licenses
Substantive Due Process
A governmental action that infringes a fundamental right is subject to strict scrutiny. If the right is not fundamental, it need only meet the rational basis test.
Fundamental Rights
Fundamental rights are those that (1) are implicit in the concept of ordered liberty, and (2) deeply rooted in our nation's history and tradition.
- marry, procreate, contraceptives, abortion, related individuals to live together, right to choose the manner in which one's children are educated
Undue Burden Test: even when state interst not compelling, if SC will not impose strict scrutiny unless the regulation represents a substantial obsticle to abortion.
Viewpoint Discrimination
Is the very worst content based discrimination (political speech)
Prior Restraint
Regualtion before the affected speech (unconstitutional)
Hostile Audience (Heckler's Veto)
If a speaker creates an imminent danger of uncontrolled violence, the police may order the speaker to desit or face arrest.
Commercial Speech
Commerical speech may be regualted if (1) the expression is initially protected by the 1st Amendment, in that is must concern lawful activity and not be misleading, the asserted governmental interst is substantial, the regulation directly advances the governmental interst, the regulation is not more extensive than is necessary to serve the interests.
A regulation is content neutral if it is not necessary to know what the speaker siad in order to apply the regulation.
Equal Protection
Strict, intermidiate, and rational basis.

Intentional discrimination required.
Suspect Classes (Strict)
National Origin
Fundamental Rights
Intermediate Scrutiny

Substanitally related to important governmental interests. (Past discrimniation, preventing teenage pregnancy, male only draft)
Rational Basis
Constituional unless challenger can show a clear showing of arbitrariness and irrationality.

Mental Retardation
I. First issue is to determine what power is being exercised. Consider whether it is:
a. Judicial Power
i. Jurisdiction
ii. Limitations
1. Standing – person and organization
2. Abstention
3. Mootness
4. Ripeness
5. Advisory opinions
6. Political questions
b. Legislative Power
i. Commerce Power
ii. Naturalization and Citizenship
iii. Foreign affairs power
iv. Election regulation power
v. Spending power
vi. War power
vii. Property power
viii. Taxing power
ix. Enforcement of civil rights
c. Presidential Power
i. War power
ii. Executive agreements and privileges
iii. Treat power
iv. Pardon power
v. Foreign affairs
vi. Veto powers

d. State Power
i. State Reg. of Federal Activities
ii. State Reg./Taxation of Interstate Commerce – know difference between standards for regulation and taxation
iii. State Reg./Taxation of Foreign Commerce
II. Next, consider limitations on government
a. Consider whether state action is involved
i. Public functions
ii. Licensing
iii. Encouragement
iv. Financial aid