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62 Cards in this Set
- Front
- Back
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Cases and Controveries (4 requirements)
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1. Standing
2. Ripeness 3. Mootness 4. Political Question Doctrine |
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Standing (4 requirements)
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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 |
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Ripeness
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Whether a fed court may grant pre-enforcement review of a statute or regulation
- Look for DECLARATORY JUDGMENTS |
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Mootness
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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 |
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Political Question
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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 |
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SCT review
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- 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) |
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Lower fed court review
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Can't hear suits against state gov't
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Eleventh Amendment
Sovereign immunity |
11A - Bars against suits against states in federal court
Sov. Imm - Bars against states in state courts Exceptions - Waiver by state - Sec 5 of 14A - Against officers of the state |
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Congressional Power
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No general police power, except...
M ilitary I ndian reservation L lands, federal D istrict of Columbia |
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Taxing/Spending power
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Spend for the general welfare
Bear some reasonable relationship to revenue production or if Congress has the POWER to REGULATE the activity taxed |
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Commerce Power
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1. Channels of interstate commerce
2. Instrumentalities 3. Substantial effect |
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Congress delegation of powers
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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 |
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Legislative vetoes and line-item vetoes
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Unconstitutional, b/c need
1) bicameralism 2) presentment |
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Executive Powers
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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 |
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Appointment power
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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 |
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Removal power
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Pres may fire any executive branch office
Limits 1. Congress may limit where independence from Pres is desirable 2. Congress can't prohibit but can limit removal where there is GOOD CAUSE. |
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Supremacy Clause
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Constitution, and its laws and treaties are supreme law of the land.
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Express preemption
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If fed statute is exclusive to a field, then the state law is preempted.
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Implied preemption
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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. |
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Dormant Commerce Clause
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State/local laws are unconstitutional if they place an UNDUE BURDEN on interstate commerce
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P & I of Art IV
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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) |
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P & I of 14A
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Right to travel, only
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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 |
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Individual liberties: Private Conduct Exceptions
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1. Public function exception (like company towns performing traditional gov't tasks)
2. Entanglement - where gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity |
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Entanglement - leading cases
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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 |
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Bill of Rights: Application to states
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Through incorporation of the due process clause of 14A
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Intermediate scrutiny
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Substantially related (narrowly tailored)
Important gov't purpose (actual purpose matters) |
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Strict Scrutiny
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Necessary (LRA)
Compelling gov't interest |
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Procedural Due Process: Definition
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Has there been a deprivation of life, liberty, or property
Liberty - loss of significant freedoms from Const. Property - an entitlement hasn't be fulfilled |
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Procedural DP: Procedures/test
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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 |
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Substantive Due Process: Definition
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Whether the gov't has adequate reason to take awya life, liberty, or property
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Takings Clause
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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 |
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Contracts Clause
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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 - |
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Bill of Attainder
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Punishment w/o a trial
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Privacy
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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 |
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Abortion
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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 |
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Equal protection (constitutional basis for 1) states and 2) federal)
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14A - applies to states/local
Due process of 5A - applies to fed |
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Alienage classifications
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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 |
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Non-marital children (scrutiny)
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intermediate scrutiny
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Right to Vote (analyzed under equal protection)
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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 |
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Content based vs. Content-neutral regulaions on speech
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Content based - strict
Content neutral - intermediate |
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Prior restraints
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Strict scrutiny (gag orders not allowed)
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Symbolic speech
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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
OK - Flag burning - Burning cross (unless done w/intent to intimidate) - Contribution limits Not OK - Draft card burning - Nude dancing - Expenditure limits |
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Obscenity
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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 |
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Obscenity: Examples
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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) |
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Commercial speech
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Not protected - false, deceptive ads or promoting illegality
Generally, intermediate scrutiny |
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Public Forums
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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. |
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Limited Public Forums
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Gov't properties that the gov't could close to speech but chooses to open to speech (same rules as public).
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Non-public forums
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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) |
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Private property (for speech purposes)
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No right to access privacy property (like privately owned shopping centers)
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Freedom of Association
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Strict scrutiny
- If law prohibits or punishes group membership - If law requires disclosure of group membership - No interfernce with intimate association or expressive activity |
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Free Exercise Clause
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Can't be used to challenge neutral law of general applicability
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Establishment clause
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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 |
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State Action
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Where the state is involved in providing a public function or there is significant state involvement
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Standing (requirements)
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1) Significant stake in the controversy by demonstrating injury in fact that will be remedied by a decision in her favor
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Organizational Standing
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1) members have standing
2) the injury is related to the organization's purpose 3) individual member participation in the lawsuit is not required |
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Taxpayer Standing
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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 |
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Use Tax
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Tax on goods purchased outside the state, but used within it
- Valid (unless higher than sales tax) |
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Sales Tax
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Tax on the sale of goods consummated within the state
- Valid (if there is nexus to the taxing state and tax is properly apportioned) |
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Ad Valorem Tax
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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. |
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Privilege, License, Franchise, and Occupational Tax
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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 |
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Ex Post Facto Laws
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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 |
