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118 Cards in this Set

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What are the requirements for standing?
- Injury
- Causation and redressability
- No 3rd Party standing
- No generalized standing
Injury requirement
P has been or imminently will be injured
- Can only assert injuries P himself suffered
- P seeking injunctive/declaratory relief must show likelihood of future harm
- "Best standing" is a) person who suffered injury, or, if more than one person, b) person who suffered economic injury
Causation and redressability requirement
P must allege and prove that:
- D caused the injury
- A favorable ct decision will redress the injury--> SC doesn't issue advisory opinions!
When CAN a P assert the claims of a 3rd party?
- Close r'ship bwn P & 3rd party
- Injured 3rd party unlikely to be able to assert her rights
- An organization suing on behalf of its members (associational standing)
Note: P will still have to meet all other requirements
When does an organization have association standing?
1. Members would have standing
2. Interests are germane to the org’s purpose
3. Neither claim nor relief requires participation of individual members
Can a taxpayer assert generalized standing?
No generalized standing: π must not sue solely as a citizen or taxpayer
Narrow exception: taxpayers can challenge gov’t expenditure under Establishment Clause (but not other grants! Property, e.g.)
Ripeness: Can a P challenge the law w/out violating it?
Yes, if she can show:
- Hardship that will be suffered w/out review
- Fitness of the issues/record for judicial review
When is a claim moot?
If events after filing end P's injury, since violates the requirement of present injury and ongoing controversy.
Are there exceptions where a claim that ordinarily would be adjudicated moot can be saved?
- Wrong capable of repetition: a chance it will happen to π again
- Voluntary cessation: Δ voluntarily halted practice, but will likely resume it
- Class action lawsuit: If named π’s suit is moot, action can go on so long as at least one member still injured
What issues are precluded by the Political Question Doctrine?
- “Republican form of gov’t” clause (Guaranty clause)
- Challenge to Prez’s conduct of foreign policy
- Challenges to impeachment and removal process
- Challenges to partisan gerrymandering
How do cases go up to the SC?
- Virtually all cases come by writ of certiorari (Cases from state court & US C of A )
- SC is only court of review for decisions of the 3-judge federal district court
- SC has original j/n over cases between state gov’ts
What are the requirements for SC to review a case?
- Final judgment rule: SC may only hear a case after there’s been a final j’ment in state ct, C of A, or federal district ct
- There must NOT be an independent and adequate state law ground of decision
such that SC action wouldn’t change outcome
Can federal courts other than SC hear suits against state governments?
No-- 11th Am bars suits against states in fed Ct, and sovereign immunity bars suit against states in state ct or federal agency.
How can a state gov't be sued?
- Give an explicit waiver
- Under §5 of 14th Am
- If Fed’l gov’t is the π
- Gov’t officer is the Δ (Officers may be sued for:
- Injunctive relief
- $ damages paid out of their pockets)
What is abstention?
When the federal ct has jurisdiction to hear a case but abstains from using it pending a state court proceeding.
Does Congress have an general police powers?
No, it's reserved for states and localities, except with respect to:
- Military
- Indian reservations
- Fed'l lands and territories
What are the sources of Congress's authority to act?
- Necessary and proper clause
- Taxing/spending power
- Commerce clause
Authority under the necessary and proper clause
If it's granted authority to act, Congress may choose any means necessary and not prohibited by the Constitution.
Authority under Congress' taxing & spending power
Congress may tax and spend if it believes it will help public welfare.
Authority under the commerce clause
Congress may regulate:
- Channels of interstate commerce
- Instrumentalities of interstate commerce and persons/things in interstate commerce
How do cases go up to the SC?
- Virtually all cases come by writ of certiorari (Cases from state court & US C of A )
- SC is only court of review for decisions of the 3-judge federal district court
- SC has original j/n over cases between state gov’ts
What are the requirements for SC to review a case?
- Final judgment rule: SC may only hear a case after there’s been a final j’ment in state ct, C of A, or federal district ct
- There must NOT be an independent and adequate state law ground of decision
such that SC action wouldn’t change outcome
Can federal courts other than SC hear suits against state governments?
No-- 11th Am bars suits against states in fed Ct, and sovereign immunity bars suit against states in state ct or federal agency.
How can a state gov't be sued?
- Give an explicit waiver
- Under §5 of 14th Am
- If Fed’l gov’t is the π
- Gov’t officer is the Δ (Officers may be sued for:
- Injunctive relief
- $ damages paid out of their pockets)
What is abstention?
When the federal ct has jurisdiction to hear a case but abstains from using it pending a state court proceeding.
Does Congress have an general police powers?
No, it's reserved for states and localities, except with respect to:
- Military
- Indian reservations
- Fed'l lands and territories
What are the sources of Congress's authority to act?
- Necessary and proper clause
- Taxing/spending power
- Commerce clause
- Sec. 5 of the 14th Am
Authority under the necessary and proper clause
If it's granted authority to act, Congress may choose any means necessary and not prohibited by the Constitution.
Authority under Congress' taxing & spending power
Congress may tax and spend if it believes it will help public welfare.
Authority under the commerce clause
Congress may regulate:
- Channels of interstate commerce
- Instrumentalities of interstate commerce and persons/things in interstate commerce
- Activities that have a substantial effect on interstate commerce
How can you tell if an activity has a substantial effect on interstate commerce?
- If it's an economic activity, can aggragate effects and look at cumulative total
- If non-economic, can't aggragate effects
What are the limits of Congress' power grant under sec. 5 of the 14th Am?
Congress may only act to prevent/remedy violations through “proportionate” and “congruent” laws; Congress cannot create new rights or expand scope of rights under §5
What are the limitations on Congressional power under the 10th Am?
All powers not granted to US, or prohibited to the states, are reserved to the states and the people.
- Anti-commandeering principle: Cong cannot compel state regulatory action.
- Exceptions:
i. Can induce state government action by placing “strings” on grants
- Must be express and related to purpose of spending program
ii. Congress may prohibit harmful commercial activity by state gov’ts
What are the constitutional requirements for valid legislative action?
Must have:
1. Bicameral action: passage by House and Senate
2. Presentment: giving to Prez to sign or veto
Therefore, cannot have:
i. Legislative veto: Cong attempts to overturn executive action w/out bicameralism or veto (e.g., by resolution)
ii. Line-item veto: Prez attempts to veto part of the bill while signing other part into law
Are there any limits on Congress' authority to delegate its powers?
NO limit on Cong’s ability to delegate legislative power
- Since 1937, no delegation has been struck down
- But can’t delegate executive (enforcement) powers to itself
What are treaties and what is their effect?
Treaties are agreements bwn US and foreign country that are negotiated by Prez and effective when ratified by Senate
- Prevail over conflicting state laws
- ** If conflicting w/ fed §, later in time controls
- If conflicting w/ Con, invalid
What are executive agreements and what is their effect?
Executive agreements are agreement bwn US and foreign country effective when signed by Prez
- ** Prevail over conflicting state laws
- **Do not prevail over conflicting fed’l laws, Con
What are the prez's powers as Commander in Chief?
Prez has broad powers as Commander-in-Chief to use military power abroad. Never has this action been declared uncon’l: either dismissed under Political Qquestion doctrine or Prez wins
What is the prez's powers of appointment? Vis-a-vis Congress'?
Prez appoints ambassadors, fed’l judges, officers of the US
- Cong may vest appt of inferior officers (undersecretaries, e.g.) in the Prez, heads of departments, or lower fed’l courts
- But may not give itself or its officers appointment power (executive grant)
What are the prez's powers of removal? Vis-a-vis Congress'?
Unless limited by §, Prez may remove any executive branch office
- Congress may only limit removal of offices for which independence from Prez is key
- Can only limit by requiring good cause-- cannot limit removal altogether
- Cannot itself remove
Impeachment and removal
Prez, VP, judges, and other officers can be impeached and removed for treason, bribery, or high crimes and misdemeanors
- Impeachment by a House majority vote
- Removal by a 2/3 vote in Senate
What is the scope of presidential immunity?
Absolute immunity for money damages for any action while in office
- No immunity while in office for acts performed prior to taking office
What is the scope of the presidential pardon powers?
Prez may pardon those accused of federal crimes.
What is the scope of the presidential privilege?
Prez has privilege over documents and conversations, but privilege must yield to other important gov't interests
What is preemption?
Preemption is based on the Supremacy Clause of Article VI. It says that the Con & laws and treaties made pursuant to it, are the supreme law of the land.
What state laws are preempted?
- Express preemption: fed’l § says it is exclusive in the field
- Implied preemption if:
- Fed’l and state laws are mutually exclusive
- State law impedes the achievement of a fed’l objective
- Cong evidences a clear intent to preempt state law (even if § is silent)
- Always preempted: state efforts to tax or regulate fed gov’t activity (EX: uncon’l to pay state tax out of fed treasury)
What is the dormant commerce clause?
Dormant commerce clause: State and local laws are uncon’l if they place an undue burden on interstate commerce
** On Bar: called "The negative implications of the commerce clause"
What is the Privileges and Immunities Clause of Art. IV?
P & I Clause of Article IV: No state may deny citizens of other states the P&I it accords its own citizens. Protects citizen from other states’ gov’ts.
What is the Privileges and Immunities Clause of the 14th Am?
Protects citizen from own gov’t
- Almost always the wrong answer, since effectively read out of the Con in Slaughterhouse
- Exception: narrow right to travel
How do you analyze a law that does not discriminate between state citizens and non-citizens?
A law that does not discriminate does not violate the P & I clause, but it may still violate the dormant commerce clause. Ask:
- Does it burden interstate commerce? I.e., do its burdens exceed its benefits?
How do you analyze a law that does discriminate between state citizens and non-citizens?
If a law discriminates, it may violate the P & I Clause or the dormant commerce clause.
P & I Clause: ask, Does it discriminate w/ regard to out-of-staters' ability to earn a livelihood?
Dormant Commerce Clause: Is the burden necessary to achieve an important government purpose? Does a less restrictive alternative exist?
What is the market participant exception to the application of the dormant commerce clause?
When acting as a mkt participant (buying or selling products, hiring labor, giving subsidies), a state can prefer its own citizens re: benefits from gov’t programs or dealing with gov’t-owned b’nesses
Can a state tax interstate commerce?
Depends.
- States may not use their tax systems to help in-state b’ness
- A state may only tax activities if there’s a subst’l nexus to the state
- State taxation of interstate b’nesses must be fairly apportioned
When do one state's courts have to give full faith and credit to the rulings of courts in another state?
If:
i. Ct rendering the j’ment had j’n over parties and subject
ii. J’ment was on the merits
iii. J’ment was final
Can private conduct ever violate the constitution?
Cong may, by §, apply some Con norms to private conduct:
a. 13th Am can be used to prohibit private race discrimination (discrimination violates the §, not the Am; only slavery violates Am)
b. Commerce power
c. NOT §5 of the 14th Am (can only prohibit state and local gov’t action (Morrison))
What conduct is pseudo-governmental?
- Public function exception: the Con applies where private entity is performing a task traditionally exclusively done by gov’t (ex: White Primary)
- The entanglement exception: Con applies if the gov’t affirmatively authorizes, encourages, or facilitates uncon’l activity.
What provisions of the constitution have NOT been incorporated to apply to state governments?
2nd Am right to bear arms
3rd Am right not to house soldiers
5th Am right to grand jury indictment in criminal cases
7th Am right to jury trial in civil cases
8th Am right against excessive fines
Rationale basis review
Law upheld if it is rationally related to a legitimate gov’t purpose
- Doesn’t need to be actual purpose —just a conceivable one
- Challenger has burden of proof
Intermediate scrutiny
Law upheld if substantially related to an important gov’t purpose
- Must be actual purpose
- Must be narrowly tailored, but not necessarily the best solution
- Gov’t bears burden of proof
Strict scrutiny
Law upheld if it’s necessary to achieve a compelling gov’t purpose
- Must be actual objective
- Least restrictive alternative
- Gov’t bears burden of proof
What is procedural due process? How do you analyze whether its requirements have been met?
Procedural DP encompasses the procedures gov’t must follow when it takes away someone’s life, liberty or property. Ask:
- Has there been a deprivation of life, liberty, or property?
- What procedures are required?
What amounts to a deprivation of liberty?
A loss of a significant freedom provided by the Con or by statute
Specific EXs-- has there been a deprivation of liberty, and if so, what procedures are required?
- Institutionalizing an adult
- Parents institutionalizing a child
- Harm to a person's reputation
- Infringement of prisoner's rights
- Loss of liberty; Except for emergency, must have notice & hearing
- Loss of liberty; Must be a screening by a neutral fact-finder
- No loss of liberty
- Rarely a loss of liberty
What amounts to a deprivation of property?
A gov't-granted entitlement is not fulfilled.
Does gov't negligence violate due process?
No, must be intentional or reckless, or, if an emergency situation caused the deprivation, must "shock the conscious"
Does government have a duty to protect people from privately-inflicted harm?
No, Gov’t failure to protect ppl from privately-inflicted harm is not a denial of DP
Exception: gov’t created harm or person is in gov’t custody (DeShaney)
What is the test for determining the necessary procedures?
A balancing test of:
i. The importance of the interest to the individual
ii. The ability to ensure accuracy through additional fact-finding procedures
iii. Gov’ts interest in administrative efficiency
What procedures are necessary?
- Before welfare benefits are terminated?
- Before social sec disability benefits are terminated?
- When a student is disciplined by public school?
- Before parental rights can be permanently terminated?
- If there is a pre0judgment attachment or fov't seizure of property?
- Notice & hearing
- Post-termination hearing
- Notice of the charge and opportunity to explain
- Notice & hearing
- Notice & hearing
What is DP with regard to punitive damages?
Punitive damages require special jury instructions and judicial review; grossly excessive punitive damages are themselves a violation of DP
Substantive DP-- what is it?
Evaluation of whether the gov't has an adequate reason for taking away a person's life, liberty, or property interest
What is the substantive DP standard for deprivation of an economic interest?
Rational basis.
Analysis:
- Is there a taking?
- Is it for a public use?
- Was just compensation paid?
What are the two types of takings?
Possessory: actually confiscation or physical occupation, no matter how small a portion
Regulatory: regulation leaves no r’able economically viable use of the property
What sorts of government actions are insufficient for establishing a taking?
Mere decrease in property value insufficient
Temporarily depriving owner of use of property is not taking as long as gov’ts action is r’able
How do you define public use?
Broadly defined by SC-- requires government's reasonable belief that the taking would benefit the public.
How do you measure whether compensation was just?
Just compensation measured in terms of loss to the owner using market value. Gain to gov’t irrelevant
What is the scope of the Contract Clause?
The Contracts clause says no state shall impair the obligations of contracts. Applies to states, never to fed gov’t.
- Interference w/ private contract must meet intermediate scrutiny:
i. Does legislation substantially impair a party’s rights under an existing K?
ii. If so, is the law a r’ably and narrowly tailored means of promoting an important and legitimate public interest?
Note: Interference w/ a gov’t K must meet strict scrutiny
What rights are protected under the fundamental right to privacy?
- Right to marry and divorce
- Right to procreate
- The right to custody over one's children
- The right to keep the family together in one house (family must mean related individuals)
- The right to control the upbringing of one's children
- Right to purchase contraception
- The right to an abortion
- The right to engage in private consensual homosexual actitivy
- Right to refuse medical treatment
What is the scope of the right to an abortion?
Prior to viability: OK to regulate so long as regulation does not create an undue burden. Exs:
- 24-hr waiting period OK
- R’ment that abortion be performed by licensed physician OK
- Partial birth abortion ban not OK
- Parental notice r’ment OK so long as minor has alternative procedure for best interest
- Spousal consent/ notification not OK
After viability, states may prohibit unless necessary to protect mother’s health
Note: The right does not create a Gov’t duty to provide abortions in public hospitals
What is the scope of the right to refuse medical treatment?
The level of scrutiny is unknown. What we know:
- Competent adults have right to refuse medical trmt, even life-saving
- State may require clear and convincing EV that a person wanted trmt terminated before it is
- State may prevent family members from terminating trmt for another
- No con’l right to physician-assisted suicide
What are the constitutional provision guaranteeing the right to equal protection under the law?
- EP clause of the 14th Am: ** applies only to state and local gov’ts
- EP applies to fed gov’t through DP clause of the 5th Am
What is the level of/scope of scrutiny for classifications based on race or national origin?
Warrants strict scrutiny
Showing requires:
- § discriminates on its face, OR
- Showing that neutral § has a discriminatory impact and a discriminatory intent
How does the SC address racial classifications aimed at benefitting minorities?
Strict scrutiny applied.
Numerical set-asides require proof of past discrimination
- BUT educational institutions have a compelling interest in diversity; T/f may use race as one factor in admission decisions to help minorities
- In non-educational contexts, affirmative action may not disrupt seniority system
What is the level of/scope of scrutiny for classifications based on gender?
Intermediate scrutiny applied: strict scrutiny with exceedingly persuasive justification
Showing required is same as w/ race
How does the SC address gender classifications aimed at benefitting women?
Special case: classifications benefiting women
i. Intermediate scrutiny applied:
- Remedying past discrimination/opportunity differences allowed
- Classifications based on role stereotypes NOT allowed
What is the level of/scope of scrutiny for classifications based on alienage status?
Generally, strict scrutiny applied to state-generated classifications (Ex: classif. against undocumented kids)
- Rationale basis for classifications concerning self-government and the democratic process
Rational basis for Congressional discrimination, recognizing Congress’ plenary power over immigration
What standard of review for classifications re: non-marital children?
Intermediate scrutiny: laws that deny a benefit to ALL non-marital children while granting it to marital children are unconstitutional
- But harder case re: laws that give benefit to some non-marital children but not others
What classification categories receive rational basis review, likely to stand?
1. Age
2. Disability
3. Wealth (poverty is not a suspect class)
4. Economic regulations
5. Sexual orientation discrimination
Equal protection-- fundamental rights. Which rights are protected?
The right to travel
The right to vote
NO fundamental right to education
What standard of review for restrictions on the right to travel?
Strict scrutiny:
- Laws that prevent ppl from moving into a state
- Durational residency requirements (For voting: 50 days’ r’ment is max)
Rational basis:
- Restrictions to foreign travel
What standard of review for restrictions on the right to vote?
Laws that deny some citizens the right to vote must meet strict scrutiny. Exs:
- Poll taxes, property ownership r’ments unconstitutional
- One-person, one-vote for all state & local elections
- @-large elections constitutional unless discriminatory purpose
- Gov’t’s use of race as a predominant factor in districting must meet strict scrutiny
- Counting ballots w/out preset stds violates EP (Bush v. Gore)
What standard of review for restrictions on the First Amendment?
Content-based: strict scrutiny
- Subject matter restrictions: depend on content of the speech
- Viewpoint restrictions: depend on ideology of the message
Content-neutral: intermediate scrutiny
What are prior restraints on speech?
Prior restraints are a judicial order/ administrative system that stops speech before it occurs.
What standard of review for prior restraints on speech?
Court orders: subject to strict scrutiny
- Procedurally proper court orders must be complied with until they are vacated or overturned; violator estopped from later challenging the regulation
Gov’t license r’ment: OK if there’s an important reason and clear criteria
- Must leave no discretion to the licensing authority
- Must include procedural safeguards such as prompt determination of requests and judicial review
What makes a gov't restraint on speech vague or overbroad?
Vagueness: law is uncon’l if a r’able person can’t tell what speech is prohibited/allowed
Overbreadth: law is uncon’l if it regulates substantially more speech that the Constitution allows it to regulate (ex: figting words statutes)
When can the government regulate symbolic speech?
- When the governemtn has an important interest unrelated to the suppression of the message and
- The impact on communication is not greater than necessary to achieve that purpose
Are the following examples of symbolic speech protected?
- Flag burning?
- Draft card burning?
- Nude dancing?
- Burning a cross?
- Campaign financing?
- Protected
- Not protected
- Not protected
- Protected unless done with intent to threaten
- Contributions aren't protected; expenditures are
Does a person have the right to speak anonymously?
Generally, yes
What types of speech are less protected?
- Incitement
- Obscenity
- Commercial speech
- Defamation
- Private information
To what extent can the gov't regulate incitement?
May punish speech if:
a. Subst’l likelihood of imminent illegal activity
b. Speech directed to causing imminent illegality
To what extent can the gov't regulate obscenity?
May regulate if:
a. Material appeals to the prurient interest (local std)
b. Material is patently offensive (std used by law that is the subject of the suit)
c. Taken as a whole, material lacks serious redeeming artistic, literary, political or scientific value (national std)
How can the gov't regulate porn/child porn?
- Zoning ordinances to regulate the location of adult stores/movie theaters
- Child pornography may be completely banned, even if not obscene
- Gov’t may not punish private possession of obscene material
- Can punish possession of child porn
- Can seize assets of b'ness convicted of violating obscenity laws
Is profanity protected speech?
Yes, except over boradcast media (speech over cable more protected than over standard channels) and at school.
To what extent can the gov't regulate commercial speech?
Generally, restrictions subject to intermediate scrutiny, narrow tailoring. But gov't can regulate:
i. False and deceptive ads
ii. Commercial speech that inherently risks deception.
What kind of commercial speech inherently risks deception?
- Professional advertising under a trade name
- Atty in-person solicitations for profit (But not accountants (!?))
What does a P need to show to warrant government regulation of defamatory speech?
Πs who are public officials running for public office or public figures must show:
- Stmt was false
- Stmt uttered with actual malice/reckless disregard of the truth
Private figure, matter of public concern, π must show:
- Stmt was false
- Δ was negligent
- To recover punitive or §ory damages, must show actual malice
Private figure, private matter:
- Can recover punitive/§ory damages w/out having to show actual malice
What is the government's duty to protect a person's private information from other people's speech?
Gov’t may not create liability for:
i. Truthful media reporting of information that was lawfully obtained from the gov’t
ii. Media broadcast of a tape illegally intercepted, but not by media
Gov’t may limit dissemination of information to protect privacy
Does the 1st Amendment protect media access to information?
1st Am doesn’t protect media access.
Exception: media access to attend criminal proceedings
What is the level of scrutiny for government restriction on speech in a public forum?
Regulations must be subject matter or viewpoint neutral
- Time, place or manner regulations that serve an important gov’t purpose and leave open adequate places for communication are OK
- Cannot leave discretion to set permit fees in the hands of city officials
- Least restrictive means not necessary
If not content- and viewpoint-neutral, must meet strict scrutiny
What is the level of scrutiny for government restriction on speech in a limited public forum?
Limited public forums are gov’t properties that the gov’t could close to speech, but chooses to leave open.
- Time, place & manner restrictions OK
- Gov’t interest must be important
What is the level of scrutiny for government restriction on speech in a non-public forum?
Non-public forums are forums the gov’t constitutionally can and does close to speech. Gov't regulations ok so long as reasonable, viewpoint-neutral
What are some examples of non-public forums?
- Military basis
- Areas outside prisons and jails
- Ad space on city buses
- ** sidewalks on post-office property
- Airports
- Courthouse
Is there a 1st amendment right to speak in a private forum (like a mall)?
No 1st Amendment right of access for speech purposes.
What is the level of scrutiny for government prohibitions/punishments of group membership?
Gov’t must prove that person:
a. Actively affiliated w/ the group
b. Knew of the group’s illegal activities
c. Affiliated with the specific intent of furthering those activities.
Can the gov't require someone to disclose their group membership?
Laws that require disclosure of membership must meet strict scrutiny.
Can you require a private group to refrain from discriminating?
Laws that prohibit groups from discriminating OK unless interfere with associational/expressive rights
What is the level of review established under the Establishment Clause?
Law violates unless (SEX):
- There’s a secular purpose for the law
- The effect of the law neither advances or inhibits religion
- The gov’t is not excessively entangled with religion
What kind of religious activity may be allowed in public schools?
Gov’t-sposored religious activity not allowed in public schools
- But religious groups must be given equal access to school facilities
- Gov’t may give assistance to parochial schools so long as it is not used for religious instruction (ex: vouchers)
What is the level of scrutiny for a gov't act that discriminates between religions?
Strict scrutiny.