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62 Cards in this Set

  • Front
  • Back
Cases and Controveries (4 requirements)
1. Standing
2. Ripeness
3. Mootness
4. Political Question Doctrine
Standing (4 requirements)
1. Injury
- Must be 1) personally injured or 2) likelihood of future harm
2. Causation and redressability
- No advisory opinions
3. No 3rd party standing
- Exception 1 - close relationship to P
- Exception 2 - injured party unlikely to assert his or her own rights
- Exception 3 - organization sue for its members
4. No generalized grievance
Whether a fed court may grant pre-enforcement review of a statute or regulation
If events after the filing of a lawsuit end the P's injury
- Exception 1 - wrong capable of repetition (e.g. abortion)
- Exception 2 - voluntary cessation
- Exception 3 - Class action suits
Political Question
Referring to constitutional violations that the federal courts will not adjudicate
- republican form of gov't
- pres conduct to foreign policy
- impeachment and removal
- partisan gerrymandering
SCT review
- States cases by cert
- Ct of Appeals by cert
- Appeals of 3-judge panels
- Original juris for disputes between states
- Only decisions from highest courts (no interlocutory review)
Lower fed court review
Can't hear suits against state gov't
Eleventh Amendment

Sovereign immunity
11A - Bars against suits against states in federal court

Sov. Imm - Bars against states in state courts

- Waiver by state
- Sec 5 of 14A
- Against officers of the state
Congressional Power
No general police power, except...
M ilitary
I ndian reservation
L lands, federal
D istrict of Columbia
Taxing/Spending power
Spend for the general welfare

Bear some reasonable relationship to revenue production or if Congress has the POWER to REGULATE the activity taxed
Commerce Power
1. Channels of interstate commerce
2. Instrumentalities
3. Substantial effect
Congress delegation of powers
No limit on Congress to delegate legislative power

- Can't delegate executive powers, like
-- Executive power to enforce or implement rules
-- Congress can give, but can't take powers away
Legislative vetoes and line-item vetoes
Unconstitutional, b/c need
1) bicameralism
2) presentment
Executive Powers
1. Treates/executive agreements
2. Use American troops in foreign countries
3. Appointment/removal power
4. Absolute immunity to civil suits
5. Executive privilege for pres papers and conversations
6. Pardon power
Appointment power
1. Pres appoints ambassodors, fed judges, and officers of US
2. Congress can appoint inferior officers (those who can be fired by officers)
3. Congress can't give itself power to appoint
Removal power
Pres may fire any executive branch office

1. Congress may limit where independence from Pres is desirable
2. Congress can't prohibit but can limit removal where there is GOOD CAUSE.
Supremacy Clause
Constitution, and its laws and treaties are supreme law of the land.
Express preemption
If fed statute is exclusive to a field, then the state law is preempted.
Implied preemption
1. Where state/fed are mutually exclusive, then fed law preempts.

2. If state law impedes achievement of FED OBJECTIVE, then fed preempts

3. If Congress evinces clear intent to preempt state law, fed law preempts.
Dormant Commerce Clause
State/local laws are unconstitutional if they place an UNDUE BURDEN on interstate commerce
P & I of Art IV
No state may deny citizens of another state the P & I it gives to another state (anti-discrimination statute)

- Fundamental rights and commercial activities are only ones protected (difference btw commercial fishing and recreational hunting)
P & I of 14A
Right to travel, only
DCC Analysis steps

P & I of Art IV analysis
If found to be BURDEN out of staters w/respect to interstate commercie :

1. Violates DCC unless it is NECESSARY to achieve IMPORTANT gov't purpose
- Exception 1 - Cong approval
- Exception 2 - Market participation exception

If DISCRIMINATES to out of state regarding LIVELIHOOD, then same test as above
- No corporations or aliens
- Necessary means LRA
Individual liberties: Private Conduct Exceptions
1. Public function exception (like company towns performing traditional gov't tasks)

2. Entanglement - where gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity
Entanglement - leading cases
State action exists:
1. Gov't leases premises to a restaurant that racially discriminates
2. State provides books to school that racially discriminates
3. When private entity regulates interscholastic sports within a state

No state action:
1. Private school 99% funded by the gov't fires a teacher b/c of her speech
2. NCAA orders the suspension of a bball coach at StateU
3. When private club with liquor license from state racially discriminates
Bill of Rights: Application to states
Through incorporation of the due process clause of 14A
Intermediate scrutiny
Substantially related (narrowly tailored)

Important gov't purpose (actual purpose matters)
Strict Scrutiny
Necessary (LRA)

Compelling gov't interest
Procedural Due Process: Definition
Has there been a deprivation of life, liberty, or property

Liberty - loss of significant freedoms from Const.

Property - an entitlement hasn't be fulfilled
Procedural DP: Procedures/test
Balancing test:
1)Important of the interest of individual
2) Ability of additional procedures to increase the accuracy of the fact-finding
3) Gov'ts interest
Substantive Due Process: Definition
Whether the gov't has adequate reason to take awya life, liberty, or property
Takings Clause
Possessory taking - gov't confiscates or physically occupies land

Regulatory taking - gov't regulation leaves no reaonable economically viable use of the property

If a taking, then must be 1) for PUBLIC USE, and 2) fair COMPENSATION paid
Contracts Clause
No state shall impair the obligations of contracts

- Applies only to STATE and LOCAL interference of contracts
- Subject to intermediate scrutiny (diff test) w/PRIVATE contracts
- Subject to strict scrutiny for GOV'T contracts
- Ex post facto does NOT apply in CIVIL cases
Bill of Attainder
Punishment w/o a trial
1. Right to marry
2. Procreate
3. Custody of one's children
4. Keep family together (must be related)
5. Control upbringing of children
6. Purchase and use contraceptives
7. Abortion
8. Consensual gay activity
9. Right to refuse med treatment
Prior to viability, can't prohibit abortions, but can regulate as long as no undue burden
- 24 hours watiing period is ok
- Requirement of licensed physicians is ok
- Prohibition of partial birth abortion NOT ok

No duty to subsidize

Spousal consent laws unconstitutional

Parent notification - ok as long as there is a judge exception
Equal protection (constitutional basis for 1) states and 2) federal)
14A - applies to states/local
Due process of 5A - applies to fed
Alienage classifications
Strict Scrutiny

Exceptions - rational basis
1) Self-gov't and democratic process (voting; juries; police; teacher; probation officer)
2) Congressional discrimination of aliens

Exceptions - intermediate
1) Undocumented alien children
Non-marital children (scrutiny)
intermediate scrutiny
Right to Vote (analyzed under equal protection)
1. Laws denying some citizens right to vote must meet strict scrutiny
2. One person, one vote
3. At large elections unconstitutional
4. Use of race in drawing district lines must meet strict scrutiny
5. Counting uncounted votes w/o standards violates EP
Content based vs. Content-neutral regulaions on speech
Content based - strict

Content neutral - intermediate
Prior restraints
Strict scrutiny (gag orders not allowed)
Symbolic speech
Regulate if it has important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve gov't purpose

- Flag burning
- Burning cross (unless done w/intent to intimidate)
- Contribution limits

Not OK
- Draft card burning
- Nude dancing
- Expenditure limits
1) Material appeals to PRURIENT interest
2) Material is PATENTLY OFFENSIVE under whatever law
3) Materal lacks SERIOUS REDEEMING artistic, literary, political, or scientific value
Obscenity: Examples
1) Zoning ordinances ok to regulate adult bookstores and movie theaters
2) Child porn may be completely banned
3) Can't punish private possession of porn (may punish for having child porn)
4) Profane and indecent speech is generally PROTECTED (exception in broadcast media and in schools)
Commercial speech
Not protected - false, deceptive ads or promoting illegality

Generally, intermediate scrutiny
Public Forums
Gov't properties that must be made available for speech (sidewalks and parks)

Regulations regarding these places must be VIEWPOINT and SUBJECT MATTER neutral, or subject to strict scrutiny

Generally, this means TIME, PLACE, and MANNER must serve important gov't interest, leaving open alternate places for communication.
- BUT, doesn't have to LRA.
Limited Public Forums
Gov't properties that the gov't could close to speech but chooses to open to speech (same rules as public).
Non-public forums
Can close these places to speech, so long as regulation is reaosnable and viewpoint neutral
- Military bases
- Area outside prison
- Advertising space on city buses
- Sidewalks on post office property
- Airports (but not solicitaion of literature)
Private property (for speech purposes)
No right to access privacy property (like privately owned shopping centers)
Freedom of Association
Strict scrutiny
- If law prohibits or punishes group membership
- If law requires disclosure of group membership
- No interfernce with intimate association or expressive activity
Free Exercise Clause
Can't be used to challenge neutral law of general applicability
Establishment clause
S ecular purpose
E ffect must be neither to advance or inhibit religion
e X cessive entanglment (none)

Parochial schools - gov't can aid so long as not used for religious instruction
State Action
Where the state is involved in providing a public function or there is significant state involvement
Standing (requirements)
1) Significant stake in the controversy by demonstrating injury in fact that will be remedied by a decision in her favor
Organizational Standing
1) members have standing
2) the injury is related to the organization's purpose
3) individual member participation in the lawsuit is not required
Taxpayer Standing
Standing to challenge tax bill, but no standing to challenge gov't expenditures

Exception: Suit can attack taxing and spending measures on 1A Establishment clause grounds
Use Tax
Tax on goods purchased outside the state, but used within it
- Valid (unless higher than sales tax)
Sales Tax
Tax on the sale of goods consummated within the state
- Valid (if there is nexus to the taxing state and tax is properly apportioned)
Ad Valorem Tax
Tax on the assessed value of some property
- Commodities - valid only if property no longer in interstate commerce
- Instrumentalities - valid if instrumentality has "taxable situs" in state and tax is fairly apportioned.
Privilege, License, Franchise, and Occupational Tax
Tax placed on some activity ("doing business" tax)
- Valid if 1) nexus to taxing state, 2) doesn't discriminate against interstate commerce, 3) fairly apportioned, and 4) fairly relates to services provided by the state
Ex Post Facto Laws
state or federal gov't may not pass an ex post facto law (retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purose of punishing a person for some past activity)
- ONLY applies to criminal cases