Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
72 Cards in this Set
- Front
- Back
|
Federal Subject Matter Jurisdiction
|
(Law and Party)
-Fed law, Const. -Admiralty/Maritime -US is party -State v State -State v. citizen of other -diversity -foreign diplomats |
|
|
11th Amendment
|
Sovereign immunity of states
-prevents suit for money damages by private individuals against state (and officials in official capacity) |
|
|
Exceptions to 11th
|
-state can waive immunity
-only prevents money damages -cities and counties don't get immunity -states can sue other states -fed can sue states -fed can create private actions through 13, 14, 15 |
|
|
case and controversy requires:
|
-a real and substantial dispute that touches on the legal relations of parties having adverse interests
-That can be resolved by a judicial decree of a conclusive nature |
|
|
RAMPS stands for:
|
-Ripeness
-abstention/adequate -mootness -political Q -Standing |
|
|
taxpayer standing
|
-only works if challenging an establishment violation
|
|
|
Congressional Powers
(8 main, 5 minor) |
-Tax and Spend
-Commerce (intersate and foreign) -immigration/nationalization -Declare War (and raise army, Navy, militia) -Investigatory power -Eminent Domain -Speech and debate protection -enabling powers of 13 14 15 -bankruptcy, postal, copyright/patent, maritime, borrow |
|
|
Commerce
(3 things) |
-Channels
-Instrumentalities -activities with substantial effect on interstate commerce |
|
|
War powers
|
-declare, raise etc
-estb military tribunals IN WARTIME -draft -price and wage controls -civilian exclusion/confinement (koramatsu) |
|
|
War powers
(military tribunals) |
-Not article three so do not get full bill of rights
-everyone (citizen and non) entitled to due process within the US, territitories, and areas where US has complete jurisdictional control -Can only try civilian (terrorist) in military court if congress has authorized |
|
|
Delegation of powers
|
-Can delegate authority to make rules having the force of law
-must be some intelligible principle to limit discretion of agency |
|
|
Executive powers
|
-enforce laws
-appointment -removal -veto -pardon -executive privilege -Commander in Chief -treaties/executive agreements |
|
|
Appointment power
|
-congress can delegate full appointment for inferior officers to the judiciary, president, or heads of department
-Cannot retain appointment to any executive body, or require approval for removal |
|
|
Removal power
|
-executive officers without cause UNLESS: fixed term or serving judicial function (must have cause)
-Federal judges require impeachment |
|
|
Veto
|
-has 10 days or becomes law
-pocket veto ok when term ending, no override -LINE ITEM and Legislative vetos are unconst. (both lack bicameralism and presentment |
|
|
Executive privilege
|
-Absolute for natl security secrets
-presumed privilege for other confidential communication (subpoena in trial will overcome) |
|
|
Commander in Chief powers
|
-can respond to attack w/o cong. declaration of war
-If in conflict with congress, only prevails on battlefield tactics -in WAR, can sieze private unless cong. prohibits |
|
|
Appropriations and impoundment
|
-Congress can order Prez to spend money, he cannot refuse (impound)
-Congress can also prohibit spending |
|
|
Federal immunities
|
-Immune from private damages suit unless consented
-States can tax fed employees and contractors, but cannot regulate or interfere with federal functions |
|
|
Federal taxation of states
|
invalid if applied to:
-unique state activities -essential govt functions |
|
|
Powers prohibited to the states
|
-treaties
-coining money -bills of attainder -ex post facto laws -impairing obligation of contracts -import or export duty (except if necessary for inspection) -engaging in war or maintaining army |
|
|
Commandeering
|
Fed cannot
-order legislative action -order state executive to administer federal law |
|
|
State preemption and preclusion
|
-If fed and state law conflict/inconsistent, Fed law prevails
-If Congress intended to occupy field completely, similar state legislation is completely prohibited -but states can enact higher stds for health and safety when congress has set a floor |
|
|
Incorporation and reverse incorporation
|
-bill of rights generally enforcable against states as incorporated through the 14th due process
-equal protection and substantive due process enforceable against fed by incorporation through 5th DPC |
|
|
Incorporated amendments
|
1st
2nd 4th search and seizure 5th (except grand jury) 6th (7th civil jury tiral IS NOT) 8th (except excessive fines) |
|
|
procedural due process deprivations
|
-Life
-Liberty: bodily restraint, physical punishment, mental commitment (forced psych meds NOT covered) -Property: public education, welfare benefits, drivers license, public employment if tenured/fixed term, prejudgment garnishment |
|
|
Substantive due process
-fundamental rights |
-voting
-travel (migrancy through 14th P+I) -1st amendment -SCAMPERD -Economic only gets RBR |
|
|
fundamental right to vote
|
-Generally get SS
-Procedural regs= important interest, no undue burden Permitted: residency, time and manner, felon bar, reasonable registration -Ballot access: interest against voter confusion and factionalism (age and residency ok) |
|
|
Takings Clause generally
|
must be conceivable public purpose and just compensation
|
|
|
14th EPC standards of review
|
SS: narrowly tailored, compelling
Intermediate: substantially related, important RBR: rationally related to legitimate |
|
|
Scrutiny by Classification
|
Strict: Race, religion, national origin, Alienage (state level), voting
Intermediate: sex, illegitimacy, illegal children RBR: Alienage (federal), gay, disability, age, poverty |
|
|
EPC intent
|
if facial discrimination, go right into std of review
If facially neutral, must show intent before getting heightened scrutiny |
|
|
Affirmative action
|
Gets SS, only compelling interests are:
-remedying past de jure discrimination -diversity in higher education Must still be narrowly tailored (for remedying de jure, this means directing benefits to those particularly effected in past) |
|
|
EPC in schools
|
Higher Ed affirmative must be holistic, individual consideration, no quota or set weight on race
other schools, cant assign on basis of race, but can make race conscious decisions in drawing districts |
|
|
Privileges and immunities
|
ONLY PROTECTS CITIZENS
14th: very limited, travel bw states (migrancy) Article IV Sec. 2 Comity : temporary travel (visiting) *ok to discriminate when protecting natural resources *protects non-residents from discrimination infringing on rights and activities that are fundamental to the national union |
|
|
Contracts Clause
|
-Only applies to legislative acts
-modification ok under police powers when necessary to serve an important and legitimate public interest and reasonably and narrowly tailored *actually pretty deferential, balance interest vs impairment |
|
|
Ex post facto
|
retroactive criminal law
-make an act criminal -add greater punishment -reduce the evidentiary burden -lengthen SOL (if already expired) |
|
|
Bill of attainder
|
law punishes an individual or identifiable group for past conduct
|
|
|
Adequate and independent state grounds**
|
(only applies to US supreme court)
-IF state grounds were sufficient to invalidate action -If state is following federal interpretation of federal law, Supremes can hear -If unclear whether decided on state or fed grounds, Supremes can take case, dismiss, or remand |
|
|
Abstention**
|
-abstain if state law is unsettled and resolution could render constitutional decision unnecessary
-Abstain from hearing injunction if state proceedings have commenced before a substantial federal hearing (covers criminal, expanding into civil proceedings) |
|
|
3rd party standing**
|
(third party must have some injury)
-special relationship bw parties bc of a connection bw the interests of claimant and the constl rights of the absent thrid party -Party is unable to bring suit or finds it difficult to do so |
|
|
Standing Basics**
|
-Injury in fact (actual or imminent threat of harm)
-causation (harm caused by challenged action) -redressability |
|
|
Associational Standing**
|
-members would otherwise have standing to sue in their own capacity
-purpose of association is germane to the interest at suit -individual participation not required (identical remedy/success on merits) |
|
|
political questions**
|
-text of constitution demonstrably commits the issue to another branch
-lack of judicially discoverable and manageable standards -(would require initial policy determination, would express inherent lack of respect for other branches, need to adhere to prior decision of other branch, harm from conflicting position bw branches) |
|
|
Commerce
(Substantial effect)** |
-affectation doctrine: can reach activities (inter or intra-state) if have substantial effect (direct or indirect)
-cumulative effect doctrine allows aggregation -cannot reach non-economic intrastate activity unless necessary to effect a comprehensive regulatory scheme -cannot force entry into a market |
|
|
Taxing power**
|
-objective: raises revenue
-subjective: intended to raise revenue -regulatory: If cong. could regulate through other powers, tax can be used as the regulatory device |
|
|
Spending**
|
Conditional grants
-general welfare -unambiguous conditions -condition related to purpose of program -doesnt require unconstl activity -amt not so large as to be coercive -- |
|
|
Enabling Clause powers **
|
-13th can reach private action (badges and incidents)
-14th and 15 require: -----state action -----widespread violation -----congruent and proportional to violation |
|
|
Supremacy of LAWS**
|
-Constitution
-Federal law, treaty (federal regulations) -Executive orders and agreements -State Constitutions -State Law |
|
|
Treaties, executive agreement, state and federal laws**
|
treaty vs fed = last in time prevails
treaty vs state = treaty wins Ex. Agree vs fed = federal wins Ex Agree vs state = exec wins |
|
|
Dormant commerce**
|
-Facial discrimination gets SS
-Neutral gets balancing of state interests vs interstate burden (consider whether less restrictive exists) Two exceptions: -Congress authorized action -state is acting as market participant |
|
|
State Action**
|
-true state action
-Public function theory: private entity performing activities traditionally performed only by govt (think company owned town) -State involvement, encouragement theory: Private entity and govt are so closely related that private action can be attributed to govt |
|
|
Procedural due process requirements**
|
notice and meaningful hearing
-importance of interest -risk of erroneous deprivation (and value of alternative process) -Burden on govt of additional process |
|
|
SCAMPERD ** (fundamental SDP rights)
|
-sexual orientation -RBR but no legitimate interest
-contraceptives -Abortion -marriage -possession of porn in home -education of children in private school -relations with family -Death - no direct right, but there is right to refuse treatment |
|
|
Abortion restriction framework**
|
-before viability (first and second trimester), cannot be undue burden
-After viability, must be health and safety exception *spousal not. undue *minor consent ok if judicial bypass *24 hour waiting ok *truthful info ok *banning public funds ok *banning methods if not safest |
|
|
Mootness**
|
-actual case and controversy through all stages of litigation
-not moot if capable of repitition yet evading review |
|
|
Is it a taking?**
|
-direct appropriation
-regulatory *permanent physical invasion even if minor *Deprivation of all economically beneficial use *balancing if temporary physical invasion or incomplete deprivation of value |
|
|
Test for establishment clause**
|
Lemon test
-primary purpose is secular -primary effect neither promotes/inhibits religion, AND -No excessive entanglement bw state and religion |
|
|
Free Exercise clause**
|
-conduct can regulate conduct if law is neutral with respect to religion and of general applicability
-if motive for regulating conduct is to target religion, then must pass strict scrutiny -beliefs are absolutely protected |
|
|
unprotected speech**
|
-hostile audience
-fighting words -incitement -obscenity -defamation |
|
|
Hostile audience**
|
speech likely to elicit violent response from a crowd
-police must first take reasonable measure to protect speaker and restrain crowd |
|
|
Fighting Words**
|
-likely to elicit immediate violent reaction against speaker
-personal insult, more than mere annoyance or offense |
|
|
Incitement**
|
(brandenberg test)
-Intended to produce imminent unlawful action -likely to produce such action |
|
|
Obscenity **
|
(miller test)
-appeal to prurient interests (local standards) -depicts a defined sexual act in a patently offensive way (local standards) -lacks SLAPS |
|
|
Defamatory**
|
-no 1st protection if private/private
-private person/public matter: negligence -public person: actual malice (knowlege/recklessness) |
|
|
Commercial speech**
|
Protected unless false, deceptive, or relating to illegal activity
Scrutiny of regulation: -Directly advance a substantial govt interest -narrowly tailored (least restrictive) |
|
|
Time place and manner restrictions**
|
-Content neutral
-narrowly tailored to important interest -leave alternative channels open |
|
|
Free association in govt employment**
|
-Ok to deny high level official jobs based on religious or political affiliations
-Ok to deny high and low for subversive *active member in subversive *knowledge of subversive aims *intent to further those aims |
|
|
speech restrictions at non-public forums **
|
-viewpoint neutral
-RBR |
|
|
1st prior restraints**
|
-OK for reviewing written work relating to prior employment in national security position
-OK for classified military information -Gag orders: nature of publicity, other available actions, probable success of gag |
|
|
parade/rally permits**
|
-OK if have specific, content-neutral criteria (unfettered)
-If facially invalid, can ignore denial -If facially valid, must obey denial and go to court -banning house protests ok as long as: *content neutral *other areas left open |
|
|
Facial invalidity**
|
-unfettered discretion
-vagueness: narrow specificity, reasonable person could discern -overbreadth: must not sweep up or invade protected areas of speech, realistic danger that it will significantly compromise first amendment protections of others |
