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211 Cards in this Set
- Front
- Back
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parties 2 types
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P and D
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types of Ps
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person or gvot
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types of D
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persons or govt
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P person C&C 3 major components
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1) timeliness, 2) injury, 3 ) 3a's abstention, adequate state grounds no advisory opinions
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P person C&C injury injury
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must suffer real harm - blood
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P person C&C injury standing 3P
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P bringing action has to have suffered some injury -usually economic, 3 p difficult or unlikely to assert their own rights, special relationship exists - craig v boren OK law 18-21 males 3.2 beer but females could 3 p male has standing but P was seller of beer
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P person C&C injury TP Fed and State
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tax payers have no standing per se except own liability but - you can challenge 1) fed govt when fed govt spends in violation of church and state and 2) state when show some measurable expenditure of state or local $ in violation of fed C
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P person C&C injury 3 A's advisory opinion
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scotus will not advise must be real contoversy
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P person C&C injury standing association
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P must be member, no particular individual member must come forward to move the action , action must be germane to the association's charter
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P person C&C injury 3A's
adequate state grounds |
adequate state grounds
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3rd P standing
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1) members themselves must have standing 2) are interests asserted by association germane to association - nexus 3) neither claim no relief individual members need not participated - damages generally not good because each member need different damages - injunc ok
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P person C&C timeliness 2 basic rules
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ripeness and mootness
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P person C&C timeliness ripeness
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actual injury or threat of imminent injury - poe statute on books 8 years never enforced - sought to strike down statute - no real threat
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P person C&C timeliness
mootness |
injury already passed so no standing passage of time resolved matter - defunis v odegaard - admission to school - EQP - he was admitted so moot - except technically moot capable of repetition yet evading review
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mootness catch phrase
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capable of repetition yet evading review
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mootness collateral consequences
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fund guilty of F - paroled when hits scotus - there are collateral consequences
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C&C P person standing 3A's abstention
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if P brings action in Fed for state action - Fed may abstain - equitable doctrine
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C&C P person standing 3A's abstention grounds -
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1) state law unsettled, 2) question is already pending in state court 3)
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C&C P person standing 3A's abstention - doctrinal justification
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scotus does not want to unnecessarily invoke fed constitutional - avoid unnecessary resolution of federal matters - except to protect against discrimination
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C&C P person standing 3A's
adequate state grounds |
scotus will not review if case is clearly based on adequate and independent state grounds - any ambiguity about whether compelled by fed law then Scotus will hear
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C&C P person standing 3A's
adequate state grounds - how to recognize |
long question - tells you state court opinion - holding - waht is it based on - clearly state or nay possibility federal - if ambiguous look for answer that says scotus will hear
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C&C P person standing 3A's
adequate state grounds where applies |
scotus only
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C&C P person standing 3A's
advisory opinions |
must be live & court's ruling must resolve - MBE makes it clear - rush to court
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C&C P hear political questions
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no - MBE 1) private person challenging president concerning foreign affairs 2) state citizen challenging state govt does not run a republican form of govt - guarantee clause 3) challenges by which US C is amended by states - reapportionment issues were political questions but scotus reversed and voting district questions can be brought
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C&C P govt immune? state on fed - regulation and tax
fed P state D |
state reg generally no unless fed consent - comply with local zoning rules in post office
tax - federal govt workers pay state taxes because its indirect |
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C&C P govt immune? fed on state - regulation and tax
state P fed D |
reg yes generally step process - 1) source of power 2) limitation
tax yes as long as it has source of power and does not destroy state sovereignty |
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steps for analyzing fed on state regulations
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1) source of power
2) limitation - federalism, 10th a - fed can not do so in a way hat destroys state sovereignty- cannot commandeer state legislative process - congress tried to pass law making states pass laws but cannot do |
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D issues
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person, state limits, govt
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D private person - amount to state action
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exception 13th a involuntary servitiudes- C limits only govt power
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D - 3 ways to find govt action
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1) compulsion 2) entanglement 3) function
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D - govt action private person compulsion
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police force person to act on behalf of govt - affirmatively encouraging unC conduct discrimination
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D - govt action private person entanglement
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private restaurant in govt structure paying rent to govt discriminating - since paid rent % so govt benefited = mutual benefit and constituted govt action
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D Person performing state action - function
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private person acts in place of govt entity - private corrections company - sufficient govt function - running primary elections by parties - company town
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D state limits 3 categories
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pre-emption, commerce, art IV, sec 2 interstate P&I
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D state limits pre-emption
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valid fed law ,direct conflict, indirect conflict
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D source of power for federal actions - branch of govt
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legislative, judicial, exec
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D state limits pre-emption - indirect conflict
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comprehensive , need for uniformity, obstacle
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D source of power for federal actions -legislative 5 powers
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spending, taxing, commerce, property, enabling clause
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D source of power for federal actions - leg - spending
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congress may spend for general welfare - limited by congress rational belief - may not regulate for general welfare
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D source of power for federal actions - leg -taxing
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congress may tax for general welfare- somehow related to raising $ either objective test (actually raise revenue) or subjective test (intent to raise revenue) - can be punitive
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D source of power for federal actions - leg - commerce
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may regulate channels facilities instrumentalities or conduct that has national
economic impact - wickard aggregate other extreme lopez - not an economic act |
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D source of power for federal actions - leg - enabling clauses,
13th A |
each has an enabling clause
13th A enables regulations that prohibits private activity that discriminates |
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D source of power for federal actions - leg - enabling clauses,
14th A |
eabling clause that prohibits states from discriminating under EQP or due process
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D source of power for federal actions - leg - enabling clauses,
15th A |
prohibits voting rights dicrimination
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D source of power for federal actions - leg - art 4 P power
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congress power to AQ , regulate or dispose of federal P
including military equipment, food stuffs - unlimited |
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D source of power for federal actions - leg - property- fed gives food to religious group - is that violation of establishment clause
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fed gives food to religious group - is that violation of establishment clause - no comes under property clause - parks post offices etc
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D source of power for federal actions - judicial - 2 -what is jurisdiction
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original and appellate- and C&C/ 11th A
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D source of power for federal actions - judicial - scotus original J
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between 2 states - foreign diplomats
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D source of power for federal actions - judicial - scotus appellate J
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writ of certiorari by 4 of 9 justices or mandatory appeal - case certified by federal court of appeal to be heard by scotus
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D source of power for federal actions - judicial - C&C / 11th
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case and controversy - 11th A limits federal courts from hearing cases brought by citizens suing a state in federal court
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D source of power for federal actions - judicial what does 11th A protect
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does not protect employees, political sub divisions - only protect the state entity
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D source of power for federal actions - judicial - 11th A injunction against state officer
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sue the state eee for conduct outside their state authority
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D source of power for federal actions - judicial - 11th A waive 11th A under commerce clause
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no
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D source of power for federal actions - judicial - 11th A congress creates cause of action under 13,14,15 enabling clauses
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congress can pass regulations because these later A came after the 11th
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D source of power for federal actions - exec 2 types
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foreign and domestic
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D source of power for federal actions - exec - treaty
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pres enters into agreement with foreign gvt by 2/3 senate ratification -prevails over all state law or prior fed law but no C and will not prevail over subsequent fed law
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D source of power for federal actions - exec - exec agreement
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looks like treaty but does not require 2/3 senate approval - similar scope - iraq agreemet
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D source of power for federal actions - exec - domestic - 6 actions
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veto, appmt, removal, pardon, exec priv. inherent emerg
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D source of power for federal actions - exec - treaty - precedence over federal law
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last in time prevails
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D source of power for federal actions - exec - exec agreement - prevails
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same rules as treaty
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D source of power for federal actions - exec - domestic - veto
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power to veto federal legislation - act must be signed or overridden by 2/3 house and senate
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D source of power for federal actions - exec - domestic - legislative veto
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congress cannot change legislation later w/o going through pres - UNC- must obey veto power
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D source of power for federal actions - exec - domestic - appmt
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exclusive power to appt federal ambassadors, judges and officers - congress has power to appt inferior officers
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D source of power for federal actions - exec - domestic - appt morrison v olsen
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federal special prosecutor can delegate to federal court power to appt because he was inferior officer
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D source of power for federal actions - exec - domestic - removal
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only pres can remove exec officers not inferior officers
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D source of power for federal actions - exec - domestic - exec priv
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pres has this power - confidential exec branch communications but do not extend to entire branch - pres and confidential advisors
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D source of power for federal actions - exec - domestic - exec priv demonstrated need in criminal trial
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yes unless state secrets privilege
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D source of power for federal actions - exec - domestic - inherent emerg
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pres can make domestic law just like congress - limited to true emergency - steel seizure - truman - congress acts in concert - further away less power
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freedom of speech FoS 3 levels of scrutiny
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strict, middle , rational reas
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FoS - strict scrutiny
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compelling govt interest least restrictive means
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D state limits - D is state or local govt - 3 areas
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pre-emption, dormant commerce clause, Art Iv sec 2 interstate P&I
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D state limits - pre-emption - valid fed law
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any state or local law that directly conflict w valid federal law will be struck down as violative of the supremacy clause
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D state limits - pre-emption - 3 step analysis
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1) valid federal law 2) is there a direct conflict= violative of SC 3) indirect conflict -regulating same area - if federal law occupies the field 1) is there a comprehensive federal law on point 2) is there a need for uniformity 3) if there is an obstacle in state law to accomplishment of fed purpose=violative
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D state limits - pre-emption - indirect conflict 3 steps
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does fed occupy the field - 1) is there a comprehensive federal law on point 2) is there a need for uniformity 3) if there is an obstacle in state law to accomplishment of fed purpose=violative
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D state limits - dormant or negative implications of commerce clause - 2 tests
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discrimination undue burden
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D state limits - dormant or negative implications of commerce clause - discrimination
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cannot discriminate against parties who move good through their state based on their extra citizenry -
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D state limits - dormant or negative implications of commerce clause exceptions to discrimination 3
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no less restrictive means, congress consents, or state is market participant
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D state limits - dormant or negative implications of commerce clause - discrimination
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state or local regs that close borders prohibit flow of commerce -
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D state limits - dormant or negative implications of commerce clause undue burden
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burden on interstate commerce v the benefit of the local regulation
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D state limits - dormant or negative implications of commerce clause dormant commerce
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all commerce is subject to burden but may be struck down if undue burden
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D state limits - dormant or negative implications of commerce clause undue burden example
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az limited trains to 70 cars - scotus said the burden was greater than safety interest - all trains have to unhook etc = heavy burden - safety justification not as great
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D state limits - congress consents
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congress has power to unduly burden or discriminate - so congress ca delegate this power to states - insurance - states can regulate insurance companies
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D state limits - dormant or negative implications of commerce clause undue burden exceptions n less restrictive means
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if the state can demonstrate there is no less restrictive means of achieving safety goal the the state may discriminate - fruit quarantine
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D state limits - dormant or negative implications of commerce clause undue burden - market participant
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state and local gvt is acting s market participant it may burden or discriminate
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D state limits - dormant or negative implications of commerce clause undue burden - market participant
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state using its $ to freely buy and or sell in open market - like private company
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D state limits - dormant or negative implications of commerce clause undue burden - market participant- example
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hughes - maryland could purchase junked cars - only to beautify maryland so they paid higher fee for cars from within state - state was a free market participant - rules of private company
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D state limits - Art Iv sec 2 interstate P&I - 2
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14t A and article IV - 14th is dead letter (weakest power on MBE) but article IV - protect state and local govts cannot discriminate against non-residents as to the privileges and immunities of citizenship unless close related to substantial state purpose
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D state limits - Art Iv sec 2 interstate P&I - discrimination - v non residents
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state cannot discriminate against out of state citizens or outside county or city - Alaska employment - cannot vote out discriminators - look for target of regulation
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D state limits - Art Iv sec 2 interstate P&I - discrimination
priv or immunity of citizenship |
must be citizen of US but not corporations as persons
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D state limits - Art Iv sec 2 interstate P&I - discrimination
closely related to subst govt interest |
can discriminate if you can show closely related to substantial state purpose - people discriminated against must be cause of the problem - they must pay for problem they created
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D state limits - Art Iv sec 2 interstate P&I - discrimination - v non residents types of rights
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national rights medical car, education , access to courts and jobs and fundamental rights
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D state limits 3 misc. rules - contract clause
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contract clause only applies to state or local govts and if feds impair contract rights violated 5th A - 1) substantial impairment of existing K right
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D state limits 3 misc. rules - bill of attainder
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state of federal or local govt cannot impose punishment w/o trial
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D state limits 3 misc. rules - e post facto
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state or local govts cannot impose criminal penalty for conduct in the past
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FoS strict scrutiny - when applied
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content based speech
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FoS strict scrutiny - rule
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where govt prohibits expression that is content or view point based the regulation must advances a compelling state interest with no less restrictive means of accomplishment
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FoS strict scrutiny
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burden is on govt to shoe regulation is necessary to advance a compelling state interest and that there exist no less restrictive means of advancing that interest
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FoS rational basis or lowest protection 3 areas of no protection
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violence, obscenity, defamation
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FoS rational basis - violence 3 areas
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advocacy of unlawful action, fighting words, hostile audience - govt can regulate speech that is directed and is likely to incite imminent violence
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FoS rational basis - violence -advocacy of unlawful action
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must be directed to incite unlawful action and likely to incite - fuck the draft shirt did incite unlawful action but not likely to incite imminent violence
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FoS rational basis - violence - fighting words
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no political value and likely to incite -
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FoS rational basis - violence -hostile audience
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imminent violence and so long as police use reasonable efforts and imminent lawless action is likely then police may stop speech
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FoS rational basis - obscenity 3 prongs
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taken as a whole 1) appeals to prurient interest of adults 2) patently offensive (child P is per se offensive) 3) lacks serious value
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FoS rational basis - obscenity appeals to prurient interest of adults
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objective jury in the community
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FoS rational basis - obscenity
patently offensive |
objective jury in the community - contemporary standards in their community - sexual conduct must be expressly - stated- child pornography need not be patently offensive = prima facie patently offensive
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FoS rational basis - obscenity -lacks serious value
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national average reasonable person standard
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FoS obscenity - children in school
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can be punished for merely vulgar or lewd speech - need not fit 3 prong test
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Fos middle protection - 4 areas
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commercial speech, symbolic conduct, time manner and place, limited access
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Fos middle protection - commercial - unlawful
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unlawful or misleading is not protected
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Fos middle protection - commercial test
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speech regulation not on unlawful or misleading - 2 prong test 1) narrow tailored to 2) advance a substantial govt interest - booze and butts billboards near elementary schools - city prohibits billboard w/i 100 ft - legal product not false - narrow tailoring school zones most likely narrow some rational connection - substantial govt interest in infant health
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Fos middle protection -symbolic conduct 3 prongs - pure conduct or viewpoint
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1) content neutral 2) substantial govt interest 3) narrowly tailored - if viewpoint then moves to strict scrutiny
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rational basis rule burden
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challenger
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Fos middle protection -symbolic conduct - substantial govt int - narrow - tinker
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tinker - black arm band - school claims mere conduct - viewpoint war - substantial govt int in dress code =yes - narrowly tailored = no could not show rational connection to disruption
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Fos middle protection -symbolic conduct - flag burning
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texas case - content based regulation so failed - subject to strict scrutiny =
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Fos middle protection -TPM
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govt reg of speech on face only regulate time, place and manner - generally upheld
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Fos middle protection -TPM - where upheld
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public forums can be subject - traditional streets sidewalks etc. designated fora civic meeting room
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Fos middle protection -TPM - content
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must be content neutral
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Fos middle protection -TPM - traditional - designated shut down
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traditional must be kept ope at some time - designated can be closed
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Fos middle protection -TPM - elements
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1) must be content neutral 2) advance a substantial govt interest 3) narrowly tailored (reasonable relationship-too broad) 4) are there alternative channels of communication - can speaker get reasonable means to get message out
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Fos middle protection -TPM - tactics -
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void on face
valid on face |
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Fos middle protection -TPM - permit or license look at tactics - void on face - valid on face
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is reg void on face - unbridled discretion to grant or deny permit = may proceed burden on govt - valid on face then burden on speaker
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Fos middle protection -TPM - void on face burden
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govt has burden to stop speaker
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Fos middle protection -TPM - valid on face burden
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speaker has burden
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FoS orderscollateral bar rule
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must obey court orders - seek judicial assent
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FoS - middle protection - limited access P - schools jails military bases
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1) govt P 2) reasonable reg of content ok relevant to purposes may be permitted ,3) viewpoint reg not permitted
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FoS - middle protection - limited access P - schools jails military bases
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military base open on weekends - no groups advocating political view is permitted - does not pick an choose but prohibits all political views - if only those in favor is not allowed
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FoS - prior restraint-obscene
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permitted nut must be given a hearing reas time after restraint to decide matter
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FoS - prior restraint- national security
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danger test
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FoS - prior restraint- reas TPM
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obtain permit is prior restraint - if reas it is valid
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FoS - prior restraint- 4 areas
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constitutionally suspect unless exception 1)misleading commercial speech, 2) obscene, 3)natl security, 4) TPM
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FoS - benefit denied - govt job
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gvt cannot condition benefit based on speech - SS govt job - constitutionally protected speech
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FoS - vagueness
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apply to speech and any reg cannot be subject to punishment under reg that is vague - person of reasonable intelligence would have to guess at its meaning
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FoS - overbreadth
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vague and overbroad tend to be mutually dependent -
prohibits protect and a substantial amount of protected is overbroad |
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FoS - vagueness - if MBE tells you statute at least one word will be vague - annoying offensive contemptuous , obprobrius
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probably vague
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FoS doctrine of overbreadth - where applies
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only non-commercial speech
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doctrine of overbreadth - landmark case
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jews for jesus -
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FA - freedom of association - when can membership in group be punished by govt 3 prongs
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1) group must have illegal purpose or illegal goal 2) member must have knowledge of illegal goal 3) member must have specific intent to accomplish that illegal goal
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FA - freedom of press - viable testing areas
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1) allowing public to put info in press 2) G extract info from reporters 3) allow reporters in court
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FA - freedom of association - when can G force group to allow those it refuses to allow in group - forced entry
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if 1) very large O, 2) frequent member turnover and 3) if primarily for bus purposes has to let new members in - st patrick day parade did not have to let glbt in
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FA - freedom of press - public right of publication
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no generally right - even if attacked no equal time - no C right
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FA - freedom of press -extract info from reporters
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reporters privilege no FA right to shield sources
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FA - freedom of press - get reporters in court
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access to courts public and press - balancing - D right to fair trial as against public/press right - make finding on record
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FA - freedom of press - get reporters in court - burden
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court must show with findings court imposes restrictions on access to court - gag lawyers etc
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FoR - 2 clauses tested
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establishment clause and free exercise
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FoR - establishment clause when and how to apply
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G activity that is assisting or advancing religious conduct
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FoR - establishment clause
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G conduct that assists must meet lemon 3 prong test - 1) must have a secular purpose AND 2) primary effect that neither advances nor inhibits religion AND 3) does not amount to excessive G entanglement with religion
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FoR - establishment clause - struck down
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loans og educational equipment that could advance religious instruction projectors etc, reimbursement for cost of grading essay examinations, moment of silence laws primary purpose religious, prayers at public high schools
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FoR - establishment clause - examples that passed
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loans of text books to religious schools, reimbursement for costs of admin standardized tests, G funding of religious family planning - help teen
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FoR - establishment clause - MBE anomalies upheld and struck down
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1) Marsh v Chambers - legislative session opened with prayer upheld - long held historical trad - every coin "in God We trust" no significant relig purpose 2) religious nativity scenes scotus upheld some struck down others - G is not sponsoring any particular religious belief more is more likely to be held due to watered down religious message = Santa claus and Jesus celebrate Kwanzaa
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FoR - free exercise - 2 principles
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1) religious belief you can choose but conduct may be regulated
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FoR - free exercise - regulation on conduct related to religious belief
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balance - competing state interest as against burden on religious conduct purpose Amish children had to go to work at 14 state said had to go to school til 16 - G interest to promote economy -vs was not well served because Amish are fully functional members of their society
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FoR - free exercise - regulation on conduct related to religious belief failed
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smith Indian unemployment benefits - relig ceremony ingesting peyote - neutral applied to all people outweighed ceremonial needs
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14th A EQP - types of scrutiny 2
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strict and heightened
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14th A EQP - strict scrutiny
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burden on G that regulation is necessary to advance compelling G interest and least restrictive means of doing so
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14th A EQP - strict scrutiny 2 general classes or groups
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suspect classes and fundamental rights
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14th A EQP - strict scrutiny - race
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intentional discrimination as opposed to defacto -goes to motivation either facially or as applied - Brown vs board of edu - anglo go to one school african amer go to another
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14th A EQP & DP - federal D what source
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5th A
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14th A EQP - strict scrutiny - race as applied
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san Francisco laundry case - neutral on face but only Anglos got permits
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14th A EQP - strict scrutiny - race - animus sources
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legislative or executive intent but stats alone does not prove but may shift burden to G to show no intent
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14th A EQP - strict scrutiny - race - assume can prove intentional discrimination- what to do
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go through classes race , origin, alien
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14th A EQP - strict scrutiny - alienage - separate rules - 2 primary rules and exception
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G reg that intentional discriminate = strict scrutiny - except if G Discriminates with respect to democratic process - voting jury police officer - school teacher - so heavily American values and demo process can discriminate but not being atty or notary civil engineer
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14th A EQP - strict scrutiny - alienage - federal discrimination
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rational basis test because Congress regs immigration and naturalization
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14th A EQP - strict scrutiny - poverty plus
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D on basis of wealth = rational basis except poverty plus - with respect to rights G ha monopoly over - strict scrut applied
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14th A EQP - strict scrutiny - poverty plus - intent - trial transcripts
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no intent required - no voting fee - cannot force D to pay for appeal transcripts - appointed counsel - counsel on mandatory - fee for divorce - strict scrut applied
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14th A EQP - strict scrutiny - fundamental rights 3
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travel, privacy, political
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Strict scrutiny - definition
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burden on G to show compelling G interest and reg is least r accomplishing restrictive means of that interest
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Strict scrutiny - applied to these areas
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1) substantive DP 2) EQP, 3) FoE
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14th A EQP - heightened scrutiny - illegitimacy
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laws that discriminate have been struck down
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14th A EQP - heightened scrutiny - definition and groups
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substantially related to a G interest illegitimacy and gender
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14th A EQP - heightened scrutiny - illegitimacy all and some
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against all not upheld but among illegitimates upheld
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14th A EQP - strict scrutiny - privacy types
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family living, sex and marriage (abortion and birth control) and education
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14th A EQP - heightened scrutiny - gender
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G must show reg in fact substantially related to important G interest
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14th A EQP - heightened scrutiny - intentional D against women
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struck down - military academies etc
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14th A EQP - heightened scrutiny - intentional D against men
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male only draft upheld - substantially related to G interest of combat force - stat rape unwanted teen pregnancy but drinking alimony state nursing school all struck down
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14th A EQP - not heightened or strict scrutiny - every thing else is rational basis - rule
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burden of proof on challenger to show that challenged action is not rationally related to any legitimate G interest
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14th A EQP - rational basis examples
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aids D or mental disability, age social economic
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balancing rule
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burden of proof on G to show challenged action is narrowly tailored or substantially related to important.substantial.significant G interest that outweighs the interest infringed
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where is balancing rule applied
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state local reg of interstate commerce, Art Iv P&I, contract clause, EQP clause gender illegit, FoE commercial speech, symbolic TPM, and FoA
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affirmative action test
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follows class - strict intermediate or rational - dont fall for fixing past violations
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rational basis test
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burden on challenger to how challenged action is not rationally related to any legitimate G interest
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when to apply rational basis
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1) SDP, 2) EQP clause intentional and non-intentional non-suspect classes or unintentional suspect classes or fundamental rights, 3) FoE , 4) Commerce. 5) leg to enforce 13,14 15th A
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PDP procedural due process 2 areas of protection
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protected liberty and P intersts
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PDP procedural due process 3 liberties
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incarceration, institutionalization, defamation plus - reputation alone not protected but coupled with tangible benefit yes
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PDP procedural due process - defamation
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reputation alone not protected but coupled with tangible benefit yes - P name erroneously put on list of alcoholics - defamed and denied right to buy alcohol
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PDP procedural due process - defamation
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paul known shoplifter - denied liberty interest denied hearing - defamed but not deprived of tangible interest
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PDP procedural due process - Property interest
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G job for cause protected P interest w.\/o notice and hearing but not by custom
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PDP procedural due process - Property interest 3 types
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contract, license, entitlement vs unilateral expectation
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PDP procedural due process - Property interest license
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to perform occupation - doctor - drivers license - require notice and hearing
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PDP procedural due process - Property interest entitlement vs unilateral expectation
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SS, G disability - must be G not unilateral expectation like G tax benefit - crop subsidy
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PDP procedural due process - steps
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determine prop interest then what protection entitled to - notice and hearing turn on importance of right , likelihood reduce risk of error, balance against G need for efficiency
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PDP what do right to hearing and notice turn on
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notice and hearing turn on importance of right , likelihood reduce risk of error, balance against G need for efficiency
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PDP taking physical rule
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G may not take P unless for public purpose and just compensation is paid - has G taken or is merely regulating use
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PDP taking dim in value vs public benefit
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balancing test - not required compensation disease in trees G burned down trees - harder case G regulates so that you have no economic value wetlands compensable taking
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PDP taking physical occupation
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if G occupies it is taking of any type occupation - freeways minimal all apts allow cable to run cable - constituted a taking and was compensated
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PDP taking physical occupation balancing language
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not allowing you to use P G has to show restriction roughly proportional to effect your use of P will have
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SDP - fundamental rights - strict scrutiny - privacy 3 areas
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family living, sex and M, education
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SDP two tests
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fundamental interest = strict scrutiny - non-fundamental rights = rational basis test
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SDP - fundamental rights - strict scrutiny - family living
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fundamental right to live with own family members - only 3 of one family could live in on house - cannot restrict - if not family then rational basis
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SDP - fundamental rights - strict scrutiny - sex and marriage contraceptives
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majority age have right to contraceptives,
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SDP - fundamental rights - strict scrutiny - sex and marriage,
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fundamental right to marry , to have children, to engage in sex hetero and homo,
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SDP - fundamental rights - strict scrutiny - sex and marriage, abortion
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fundamental right to obtain an abortion -
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SDP - fundamental rights - strict scrutiny - sex and marriage, abortion general rules
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1) fed and state G can prohibit use of tax $ to perform, discuss 2) fed and state G cannot imposes any undue burden on right to choose abortion such as spousal notification or consent, minors parental consent unless judicial bypass procedure, absolute prohibition unless necessary to protect health and life
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SDP - fundamental rights - strict scrutiny - sex and marriage, abortion not undue burdens
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24 hour waiting period & doctor consultation,
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SDP - fundamental rights - strict scrutiny -education
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right to edu is not a fundamental right unless you have $ to pay for it
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SDP - fundamental rights - strict scrutiny -education public
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if you choose to have child attend private school and you are funding then you have a fundamental right - strict scrut to discrim against student admission in private schools
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Standard of Review
Strict Scrutiny when applied |
1) Substantive due process,
2) equal protection clause suspect classes=race, origin, 3) poverty plus, 4) alienage , 5) freedom of expression (content based) |
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Standard of Review
heightened when applied |
1) state and local G reg of interstate commerce,
2)Article IV P&I, 3) K clause, 4) Equal Protection clause for illegitimacy, gender 5) Freedom of expression Time place manner or commercial speech 6) freedom of association investigations and compelled disclosure 4) |
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Standard of Review
rational basis when applied |
1) Substantive due process burden non fundamental rights 2) eqqual protection intentional and unintantional agasint non-fund rights and non-suspect classes
all unintentinal G discri agasint suspect classes and fundamenal rights 3) federal reg of interstate commerce 4) fed regs of 13,14,15 Ascongress acts to enforce, Age, mental retardation, economic regulation |
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Standard of Review
Strict Scrutiny standard |
burden on G show chalenged action necessary to advance a compelling G interest AND is least restrictive means of achieveing that interest
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Standard of Review
Heightened standard |
burden on G show challenged action is substantially related to substantial G interest that outweighs the interest infringed
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Standard of Review
Rational basis standard |
burden on Challenger to show challenged action is not rationally related to any legitimate G interest
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