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120 Cards in this Set
- Front
- Back
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What are the requirements for a case to be justiciable?
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RAMPS
Ripeness Advisory Opinions Mootness Political question Standing |
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What is standing?
What are the requirements of standing? |
1) Standing is the issue of whether the P is the proper party to bring a matter to the court for adjudication
2) P must show that they suffered an injury, and that D caused an injury that the court can remedy (the relief sought will eliminate the harm alleged) Ex: Poor Ps alleged that they were denied free health care because an IRS rule that allowed hospitals to keep tax exempt status even if they did not provide free health care. Challenge failed because P's could not show that if the IRS rule was reversed that P's would receive free health care aka could not show that the IRS rule was the cause of their injury (hospital could forgo tax exempt status and not give free health care). |
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What must a P show in order to satisfy the injury requirement of standing?
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1) P must allege and prove that he or she has been personally injured or imminently will be injured. Ex: Clapper v Amenty Int - Congress enacted a statute allows the NSA to intercept telephone conversation btwn the US and foreign countries. Challenge failed due to lack of standing because could not prove a personally suffered injury aka their personal conversations were intercepted.
2) For injunctive or declaratory relief must show a likelihood of future personal harm. Ex: Lyons was put in a chokehold by LAPD and sued for injunctive relief to stop LAPD from using chokehold. Challenge failed because Lyons could not show that he personally would likely be put in another chokehold. |
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What is the general rule for third party standing? -exceptions
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A plaintiff cannot assert claims of others,of third parties, who are not before the court. 2) The injured third party is unlikely to be able to assert his or her own rights 3) As members of an organization if: (i) the members would have to standing to sue; (ii) the interests are germane to organization's purpose; (iii) neither the claim nor relief requires participation of individual members |
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Can a P assert standing on the basis of being a citizen or taxpayer (generalized grievance) seeking to stop the gov from violating the law? |
1) No, P can't sue solely for being a citizen or taxpayer unless to challenge gov't expenditures pursuant to federal, state or local statutes as violating establishment clause (never narrow exception). Ex: Taxpayer citizen had standing to challenge Fed statute that provided for direct funding of religious schools. 2) The following challenges lack standing: (i) fed grants of property to religious institutions; (ii) expenditures from general executive revenue (Bush executive initiative to facilitate religious institutions); and (iii) tax credits benefitting religion in violation of the Establishment Clause will not suffice ($500 tax credit for charitable gifts to schools, most of the money went to evangelical and Catholic schools). |
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What is the ripeness requirement?
-Factors |
Ripeness prevents the federal court from granting pre-enforcement review of a statute or regulation (look for declaratory judgment).
1) the hardship that will be suffered without pre-enforcement review. The greater the hardship without pre-enforcement review, the more likely the court will decide the request for declaratory judgment. 2) The fitness of the issues and the record for judicial review. Ask does the court have all it needs to effectively decide the issue? |
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What is the mootness requirement?
What are the exceptions to this requirement? |
Def: If events after the filing of a lawsuit end the P's injury, the case must be dismissed as moot.
Exceptions: 1) Wrongs capable of repetition but evading review, i.e. Roe v. Wade - P no longer pregnant, but could become pregnant again and seek abortion 2) Class action suits - If the named P's claim in a class action becomes moot, wont be dismissed so long as there's one member of that class with an ongoing injury. 3) Voluntary cessation - if D voluntarily halts the offending conduct, but is free to resume it at any time. Ex: ER has racially discriminatory test and agrees to stop it as soon as lawsuit is filed. Not moot as long as D is legally able to resume whenever it wants. |
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What is the political question doctrine?
When has it been invoked? |
1) Refers to constitutional violations that the federal courts will not adjudicate- a constitutional question left to the political branches of gov to resolve
Ex: (i) The republic form of gov't - provision in art 4, section 4: US shall guarantee to each state a republican form of gov; (ii) challenges to President's conduct of foreign policy (Vietnam War unconstitutional, waging war without authorization); (iii) challenges to the impeachment and removal process; (iv) challenges to partisan gerrymandering (where political party controlling legislature draws election districts to maximize seats for democrats). |
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How do cases reach SCOTUS?
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Virtually all cases come via writ of certiorari (discretionary)
1) All cases form state courts come via cert 2) All cases from federal appeals courts come via cert 3) Appeals from decisions of three-judge federal district courts (SCOTUS obligated to take and decide the case when appellate review is requested. Skips fed court of appeals) 4) SCOTUS has original jurisdiction over suits between state gov'ts (e.g. CA wants to sue AZ for water rights dispute) |
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What is the final decision doctrine (final judgment rule)?
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Generally, SCOTUS may hear cases only after there has been a final judgment of the highest state court, US circuit court, or three judge federal district court
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When is SCOTUS permitted to hear a state court decision?
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1) There must NOT be an independent and adequate state law ground for the decision
2) If a state court decision rests on two grounds, a federal law ground and a state law ground, SCOTUS cannot hear the case unless the reversal on federal law grounds will change the result in the case Ex: person roughed up by police bring state law battery claim and fed civil rights claim. He wins on both claims. Same damages (amount of money) under both claims. D appeals to fed system and loses. SCOTUS can't hear bc even if reverse on fed law grounds, P wins same $ on state law ground. |
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What is the principle of sovereign immunity?
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1) The 11th Amendment bars suits against state governments in federal courts
2) Sovereign immunity bars suits against state governments in state courts or federal agencies |
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What are the exceptions to the principle of sovereign immunity?
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1) States may waive their immunity (states can waive and consent to be sued but waiver must be express, not implied or constructive).
2) States may be sued pursuant to federal laws adopted under §5 of 14th Amendment. Ex: States can be sued under title 7 for employment discrimination through the 14th amendment. 3) Fed gov't may sue state gov'ts 4) Bankruptcy proceedings e.g. if debtor wants to have student loans owed to state discharged |
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Are suits against state officers are allowed? |
1) state officers may be sued for injunctive relief; 2) state officers may be sued for money damages to be paidout of their own pockets 3) state officers may not be sued if it is the state treasury thatwill be paying retroactive damages |
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May a Federal courts enjoin a pending state court proceedings? |
No. Ex: Cali adopts a law that prohibits Barbri books and prof is sued for owning Barbri books. Prof goes to federal court to get an injuntion, but the court must abstain because Federal courts cannot enjoin a pending state court proceeding. |
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What is state power power? Do state and local gov have police power? Does the Congress have police power? |
1) Police power regulates any health, safety, welfare, morals, or aesthetics interest. 2) State and local gov do have police power, authority to do anything that is not prohibited by the Constitution. 3) Congress does not have police power and can only act pursuant to express or implied authority from constitution unless: MILD (i) on military bases; (ii) indian reservations; (iii) federal lands; and (iv) DC |
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Necessary and Proper Clause
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1) Congress may use any means not prohibited by constitution to carry out its authority. EX: art 1 says congress can raise an army and a navy. Congress could decide that a national bake sale is a good way to make money to raise an army and a navy. 2) Not an independent source of federal power. It carries into affect other ennumerated powers |
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The Taxing/Spending Power |
Congress may tax and spend for the general welfare Ex: 2012 affordable care act individual mandate upheld. Authorized by congress's taxing authority |
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Medium Priority Pursuant to its commerce power, what may the congress regulate? |
1) The channels of interstate commerce (roads, waterways, highways, internet etc...)
2) The instrumentalities of interstate commerce and persons or things in interstate commerce (planes, trucks, internet, cattle, any goods or persons that cross state lines for commerce) 3) Economic activities that have a substantial effect on interstate commerce. Ex: Congress passed a law limiting wheat production, farmer argued that the wheat he produced for his family did effect interstate commerce, SC found that the wheat production of all individual farmers had a cumulative impact effected interstate commerce. 4) In the area ofnon-economic activity, a substantial effect cannot be basedon cumulative impact. Ex: federal law allowed victims of domestic violence to sue in Fed court, SC found that domestic violence was a non economic activity and thus cumulative impact could not be used. 5) Can't regulate inactivity (obamacare decision) |
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What is the effect of the 10th Amendment?
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1) 10th Amendment states that all powers not granted to the U.S., nor prohibited to the states, are reserved to the states or the people
2) Congress can't compel state regulator or legislative action. Ex: (i) Fed law required states to clean up their nuclear waste by 1996 or assume liability of the waste. SC found that the law was unconstitional bc it was compelling state action; (ii) required that states do background checks before issuing license for firearms. SC found that Congress was commandeering state action. 3) Congress can induce state government action by puttingstrings on grants, so long as the conditions are expressly stated andrelate to the purpose of the spending program. Ex: States could only get funds for highways if they raised the drinking age to 21. Also, the conditions cannot be unduly coercive (affordable care act medicare funding). 4) Congress may prohibit harmful commercial activity by state gov't. Ex: Congress prohibited state DMV's from releasing private info, court upheld because Congress was not imposing an affirmative duty on the states but rather prohibiting harmful commercial activity. |
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What power does §5 of the 14th Amendment give Congress over the states?
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Congress may not create new rights or expand the scope of rights, but Congress may act only to prevent or remedy violations of rights recognized by courts and such laws must be proportionate and congruent to remedying the constitutional violation
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What are the limits on Congress's power to delegate?
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1) No limit exists on Congress’ ability to delegate legislative power.
2) Legislative vetos are unconstitutional. For Congress toact, there always must be bicameralism (passage by both the House and theSenate) and presentment (giving the bill to the President and sign or veto).The President must sign or veto the bill in its entirety. 3) Line-items vetos are unconstitutional. Line item is when he attempts to veto part but not all. President has to veto the whole bill or sign the whole bill. 4) Congress may not delegate executive power to itself or its officers |
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What happens when a treaty provision conflicts with a state law, a federal law, or the US Constitution?
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1) Treaty prevails over conflicting state law
2) If treaty conflicts w/ a fed statute, the one adopted last in time controls 3) If a treaty conflicts w/ U.S. Constitution, it is invalid |
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What is an executive agreement? What happens if an executive agreement violates a state law, a federal law, or the US Constitution? |
1) An executive agreement is an agreement between theUnited States and a foreign country that is effective when signed bythe President and the head of the foreign nation. Senate approval is not necessary. 2) Executive agreements can be used for any purpose. Anything that can be done by a treaty can be done by an executive agreement. 3) Exec. Agreement prevails over conflicting state law, but never over conflicting federal laws or the Constitution |
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Treaties v Executive Agreements |
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What is a limit on Congress's recognition power? What power does the President have to use American troops in foreign countries? |
1) It is unconstitutional for Congress bystatute to designate the capitol of a foreign country. Ex: Congress could not designate Jerusalem as the capital of Israel on a passport 2) The President has broad powers as Commander-in-Chief to use Americantroops in foreign countries. Never has a presidents use of american troops in foreign countries been found unconstitutional. |
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What is the executive's appointment power?
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1) The President appoints ambassadors, fed judges, and officers of US (Senate must approve nomination for person to take office).
2) Congress may vest the appointment of inferior officers (those that can be fired by someone appointed by the Prez), in the Prez, heads of departments or lower federal courts 3) Congress may not give itself appointment power. Ex: Congress is creating a new agency. Prez, speaker of the House, majority leader of Senate will appoint some members of the agency. This is unconstitutional because Congress cannot give itself the appointment power for executive branch positions 4) The President may not make recess appointments duringintrasession recesses that are less than 10 days |
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What is the executive's removal power?
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1) Unless removal is limited by statute, the President may fire any executive branch officer.
2) For Congress to limit removal, it must be an office whereindependence from the President is desirable. SC has found that Congress can limit the president's power to fire independent counsel but NOT president's cabinet. 3) Congress cannot prohibit removal, it can limit removal to where there is good cause |
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Who can be impeached, and how are they impeached?
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1) President, VP, federal judges and officers for treason, bribery, or for high crimes and misdemeanors.
2) Impeachment requires a majority vote in the House, but removal requires 2/3 vote after trial in Senate. |
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1) What is the presidential absolute immunity?
2) What is the executive privilege? |
1) President as absolute immunity from money damages for any acts while in office, but not for acts not in office (Paula Jones sued president Clinton for sexual harassment).
2) Presidential papers and conversations are privileged, and can only be overcome by other important gov't interests (like a criminal prosecution). Ex: Watergate Nixon invoked executive privilege to keep the incriminating tapes secret. |
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Who can the President pardon?
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1) The President has the power to pardon those accused or convicted of federal (not state) criminal (not civil) crimes
2) Can't pardon for impeachment offenses (Clinton can never be pardoned). |
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What is the supremacy/preemption clause of the US constitution?
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Supremacy clause provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of land
- federal law will supersede any state law in direct conflict - in the area of health and safety regulation, states may give greater protection than required by the fed law |
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What is the difference between express or implied preemption?
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1) Express preemption: fed statute says law is exclusive, then state law is preempted
2) Implied preemption: a) If it is not possible to comply with fed and state law, fed law preempts state law, but state law standards can be stricter (ex: environmental or safety) unless congress specifically prohibits; b) If state law impedes the achievement of a fed objective, fed law preempts state law (FL law prohibited anyone who filed a labor grievance with the national labor relations board from collecting unemployment benefits from FL); c) If Congress evidences a clear intent to preempt state law, fed law preempts state law. Ex: Congress has demonstrated the intent that federal immigration law preempts state regulation of immigration. |
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What are intergovernmental immunities? |
1) States may not tax the fed gov. Ex: store operates on army base, state cannot tax because the fed gov would have to pay. 2) States may not regulate fed gov't if they put a substantial burden on fed activity. Ex: States cannot force fed to comply with their stricter environmental standards. |
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What is the Article IV privileges and immunities clause?
14th amendment privileges and immunities clause? |
1) Article IV: prohibits states from discriminating against out-of-state citizens when a fundamental right is involved 2) 14th amendment: states may not deny their citizens the privileges of national citizenship (right to interstate travel) Ex: Cali law gave welfare benefits to new residents at the level of the state the person moved from. SC found the law unconstitutional because it would chill interstate migration. |
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Dormant Commerce Clause (Negative implications of thecommerce clause) Definition
1) What is the test for the dormant commerce clause when law discriminates against out of staters? |
Def: A state or local law is unconstitutional if it places an UNDUE BURDEN on interstate commerce. 1) If a law discriminates against out of staters (NJ law banning out of state garbage in its landfills), it violates the dormant commerce clause unless the burden to interstate commerce is necessary to achieve an important government purpose. Heavy burden to meet and gov must also show that there is no less restrictive alternative. Ex: ME prohibited importing out of state fish concerned that the fish would carry parasites. SC upheld the law because ME had an important interest in preserving its natural resources. |
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What is the test for the dormant commerce clause when law does not discriminate against out of staters? |
ii) If a law doesn't discriminate against out of staters, the law violates the dormant commerce clause if it burdens of interstate commerce exceed the benefits. IL law required a different type of mud guard for trucks then all other states. Note: Article IV P and I does not apply because no discrimination. |
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What are the exceptions to the rule about laws discriminating against out of staters violating the dormant commerce clause?
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1) Congressional approval - once Congress has acted its commerce power is no longer dormant
2) Market participation: a state or local gov't may prefer its own citizens in receiving benefits from gov't programs (i.e. in state tuition at a state college) or in dealing with gov't-owned businesses (SD owned a cement factory and charged more to out of staters for cement then in staters). |
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If a law discriminates against out-of-staters w/ regards to their ability to earn their living, what constitutional clause does that violate?
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If the law discriminates against out-of-staters with regard to theirability to earn their livelihood, it violates the privileges andimmunities clause of Article IV unless it is necessary to achieve animportant government purpose
Requirements: i) The law must discriminate against out-of-staters. ii) The discrimination must be with regard to fundamental rights or important economic activities. iii) Corporations and aliens cannot use the privileges and immunities clause. iv) The discrimination must be necessary (no less restrictive alternative) to achieve an important government purpose. |
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Which cases discriminate against out-of-staters with regard to their ability to earn a livelihood in violation of the Privilege and Immunities clause of Article IV: 1) Commercial shrimping license costs more for out of staters then in staters 2) NH law required applicants to the bar to be NH residents 3) MT law charged a smaller fee for an elk hunting license to in staters then out of staters |
1) Unconstitutional 2) Unconstitutional 3) Upheld law finding that elk hunting is hobby so the Privilege and Immunities clause of Art IV did not apply. |
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Comparison of the Dormant Commerce Clause and thePrivileges and Immunities Clause of Article IV |
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Dormant Commerce Clause/Privileges and Immunities Clause of Article IV |
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What are the rules of state taxation of interstate commerce (rarely tested)?
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1) States may not use their tax systems to help in-state businesses. Ex: person purchases in state ethanol gets tax credit, person purchases out of state ethanol does not get a tax credit.
2) A state may only tax activities if there is a substantial nexus to the state 3) State taxation of interstate businesses must be fairly apportioned. |
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When does the full faith and credit clause take effect?
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When a judgement is:1) on the merits2) final3) the court that rendered the judgment had personal and subject matter jurisdiction over the partiesEx: Ps bring a class action suit against prof for bad jokes and get a judgment against prof in Cali. Ps can take that judgment to any other court in the country (state or federal) and those courts have to enforce the judgment if the above requirements are met.
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Does private conduct need to comply with the Constitution? May Congress apply constitutional norms to private conduct? |
1) No, private conduct neednot comply with the Constitution. The Constitution applies only to government action. Ex: Prof is fired for giving speech at Duke. Prof cannot bring action under 1st amend because Duke is a private university. Can bring action if fired from UCLA under the 1st amend. 2) Yes, Congress, by statute, may apply constitutional norms to private conduct e.g. prohibit private companies from discriminating based on race |
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What power does the 13th Amendment give to Congress?
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Congress may legislate under the 13th Amendment to prohibit private racial discrimination.
Note: Discrimination never violates the 13th amendment, only slavery. BUT discrimination can violate a federal statute adopted by congress under the 13th amendment. |
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Medium Priority 1) Can the commerce power can be used to apply constitutional norms to private conduct? 2) Can Congress use section 5 of the Fourteenth Amendment toregulate private behavior? |
1) Yes. Ex: Civil Rights Act prohibits private hotels and restaurants from discriminating based on race under the commerce clause. 2) In order for there to be a violationof the Fourteenth Amendment, the allegedly unconstitutional action mustbe attributable to the state – either direct action by the government or someaction by a private party that is fairly attributable to the government. |
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Medium Priority |
1) The public function exception: the Constitution applies if a private entity is a performing a task traditionally, exclusively done by the gov't.
Ex: Does apply to company towns (AL company town tried to exclude jehovah's witnesses) and private political party primaries (TX effort to exclude black from voting). Does not apply to private utility company because not traditionally exclusively done by gov. 2) Entanglement exception: the Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity. Either the gov must stop what it's doing or the private conduct must comply with constitution |
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Medium Priority What are examples of the entanglement exception? |
What is state action? ELFT, PERIS, S99LL
1) Courts cannot enforce racially restrictive covenants. Ex: K among neighbors that they won't sell to jews or blacks. 2) Gov't leases premises to a restaurant that racially discriminates 3) Private entity regulates interscholastic sports within a state 4) State provides free textbooks to schools that racially discriminate What is not state action? 1) There is no state action when the NCAA orders the suspension of a basketball coach at a state university 2) A private school that is over 99% funded by the gov't fires a teacher b/c of her speech 3) A private club with a liquor license from the state racially discriminates. |
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How does the bill of rights apply to the states?What are the exceptions?
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The Bill of Rights applies directly only to the federal government. However, B of R applies to the states through its incorporation into the due process clause of the 14th Amendment except:
1) 3rd Amendment right to not have a soldier quartered in a person's home 2) 5th Amendment right to grand jury indictment in criminal cases (states may eliminate GJ in crim cases) 3) 7th Amendment right to jury trial in civil cases 4) 8th Amendment right against excessive fines |
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Medium Priority What is the Rational Basis Test? -standard -burden of proof |
1) Law is upheld if it is rationally related to a legitimate government purpose (just has to be permissible). 2) Actual purpose doesn't have to be legit. Very deferential to gov. 3) Means only have to be rational/reasonable. 4) Challenger has burden of proof. |
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Medium Priority Intermediate scrutiny -standard -burden of proof -applies to |
1) Upheld if substantially related to an important government purpose. 2) Here, court will only look at gov's actual purpose. 3) Means have to be substantially related aka means must be narrowly tailored (but don't have to be best way; doesn't have to meet least restrictive alternative). 4) Gov has burden of proof. 5) Applies to Gender, illegitimacy (child born out of wedlock), commercial speech, content neutral time place manner regulation, symbolic speech, cable TV |
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Medium Priority Strict scrutiny -standard -burden of proof -applies to |
1) Upheld if necessary to achieve a compelling government purpose. Gov's objective has to be crucial. 2) Only look to gov's actual goal. 3) Means have to be necessary aka must convince court that there is no less restrictive alternative. 4) Gov has burden of proof. 5) Applies to: (i) Protected 1st amendment rights; (ii) suspect classes (RAN: Race, Alienege, National Origin); (iii) Fundamental rights (right to vote, right to travel, right to privacy (iv) CAMPER: contraception, Abortion, Marriage, Procreation, private Education, family Relations |
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1) What is procedural due process?
2) What is substantive due process? 3) What is equal protection? |
1) Procedural: the procedural safeguards of notice and a hearing are required whenever there is a serious deprivation of life, liberty, or property interest
2) Substantive: gov't had an adequate reason for taking life, liberty, or property. Prohibits arbitrary gov't action 3) Equal protection: gov't's differences in treating people is adequately justified |
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What is a deprivation of liberty or property?
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1) A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute
2) A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. |
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What are examples of deprivation of liberty or property?
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(1) except in an emergency, before an adult can be institutionalized, there must be notice and a hearing;
(2) when a parent institutionalizes a child, there only has to be a screening by a neutral fact finder; (3) harm to reputation by itself is not a loss of liberty; (4) prisoners rarely have liberty interests |
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What is an entitlement?
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Entitlement exists if there is a reasonable expectation to continue receipt of a benefit.
Ex: Alex is hired by the gov. Gov promises to employ Alex for the year. Gov fires Alex. Alex had a reasonable expectation to be hired for the year and thus property was deprived and Alex had a right to a hearing/due process. |
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What mens rea must the gov't have to deprive someone of liberty or property?
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1) Gov't negligence is not sufficient for a deprivation of due process --> gov't must act intentionally or at least recklessly
2) Exception: emergency situations must meet a "shock the conscience" standard Ex: Police chase accidentally resulted in the death of a kid 3) Generally, the government’s failure to protect people from privatelyinflicted harms does not deny due process unless person is in gov custody or if gov literally creates the danger. |
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What test does the court use to determine if gov't had adequate procedures?
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Balancing test
1) The importance of the interest to be individual (the more impt, the more procedural protections required) 2) The ability of additional procedures to increase the accuracy of the fact-finding (a court is more likely to require additional procedures if they will reduce erroneous deprivation) 3) The gov't's interest (usually saving money) |
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Examples of adequate procedures balancing test in action: |
PAWSS ECCD 1) Before welfare benefits are terminated there must be noticeand a hearing. 2) When Social Security disability benefits are terminated,there need be only a post-termination hearing. 3) Before a school can discipline a student there must be noticeof the charges and an opportunity to explain (spanking does not requires due process). 4) Before a parent’s right to custody of a child can bepermanently terminated there must be notice and a hearing. 5) Punitive damage awards require instructions to the jury andjudicial review to ensure reasonableness (grossly excessive punitive damages violate due process). 6) An American citizen detained as an enemy combatant mustbe accorded due process. 7) Except in exigent circumstances, prejudgment attachment orgovernment seizure of assets require notice and a hearing (gov may seize property that's used in illegal activity even if it has an innocent owner aka your wife's car that you're ******* a prostitute in). |
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What level of scrutiny do economic liberties get?
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Only a rational basis test is used for laws affecting economic rights (wage law, practice a trade or profession, consumer protection law, etc.).
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What is the takings clause? What is a gov't taking? |
Def: 5th Amendment, the government may take private property for publicuse if it provides just compensation. 1) Possessory taking - gov't confiscation or physical occupation of property is a taking. Ex: (i) raisin growers required to give a percentage of crop to dept. of agriculture; (ii) NYC ordinance required apt building owners make space for cable boxes. 2) Regulatory taking - gov't regulation is a taking if it leaves no reasonable economically viable use of the property (not a taking if it just reduces the value of the property). Ex: (i) owners of grand central station are barred from building additional structure, still economically viable use; (ii) beachfront property owner prevented by regulation from developing the property. |
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When are gov't conditions on develop justified?
Two additional caveats: |
1) When the benefit is roughly proportionate to the burden imposed
2) Temporarily denying an owner use of property is not a taking so long as the gov't's action is reasonable |
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Which property owners can bring a challenge?
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1) A property owner may bring a takings challenge to regulation that existed at the time the property was acquired
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What is public use in the context of the takings clause?
What is just compensation in the context of the takings clause? |
1) Gov can take private property only for public use. If not, gov has to give property back. Public use is satisfied as so long as gov acts out of reasonable belief that the taking will benefit the public. Ex: economically depressed town took private property to sell to developers, court found this met public use. 2) Compensation is measured by loss to the owner in reasonable market value terms. Gain to gov is irrelevant. |
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Contract clause
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no state shall impair the obligations of contracts, unless there is a significant government interest--> applies only to state or local interference with already existing contracts. Never applies to federal gov which can be challenged under DP with rational basis review.
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1) What is the test for whether interference with a private contract violates the contracts clause?2) What is the test for whether interference with a public (local or state) contract violates the contracts clause?
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1) State or local interference with private contracts must meet intermediate scruinty: (i) does the legislation substantially impair a party's rights under an existing contract? (ii) If so, is the law a reasonable and narrowly tailored means of promoting an important and legitimate interest
2) State or local interference w/ governmental contracts meet strict scrutiny |
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When an ex post facto clause permissible?
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In civil cases, retroactive civil liability only needs to meet a rational basis test. An ex post facto criminal law, a law that criminally punishesconduct that was lawful when it was done or that increasespunishment for a crime after it was committed, is unconstitutional.
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What are fundamental rights protected by substantive due process?
-what is the level of scrutiny |
Strict Scrutiny, CCUMPF 1) Right to marry (laws prohibiting same-sex marriage violate theright to marry)2) Right to procreate 3) Right to custody of one's children (state may create a irrebuttable presumption that a married woman's husband is the father of mother's child) 4) Right to keep family together (including extended families) 5) Right to control the upbringing of one's children 6) Right to purchase and use contraceptives |
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What is the test for the right to abortion?
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1) Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions
Ex: (i) a requirement for a 24 hour waiting period forabortions is not an undue burden; (ii) a requirement that abortions be performed bylicensed physicians is not an undue burden; (iii) the prohibition of “partial birth abortions” isnot an undue burden. 2) After viability, states may prohibit abortions unlessnecessary to protect the woman’s life or health. 3) The government has no duty to subsidize abortions orprovide abortions in public hospitals |
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Is spousal consent and notice constitutional? Is parental consent and notice for minors constitutional? |
1) No, spousal consent and notification laws are unconstitutional. 2) Parental notice and consent laws for unmarried minors. Astate may require parental notice and/or consent for anunmarried minor’s abortion so long as it creates analternative procedure where a minor can obtain an abortionby going before a judge who can approve the abortion byfinding it would be in the minor’s best interests or that she ismature enough to decide for herself |
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What cases fall under substantive due process, but the courts have not stated a level of scrutiny?
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1) Right to privacy protects a right to engage in private consensual homosexual activity
2) Right to refuse medical treatment: i) Competent adults have the right to refuse medical treatment, even life saving treatment; ii) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended; iii) A state may prevent family members from terminating treatment for another; iv) No constitutional right to physician-assisted death 3) 2nd Am: you can have guns in your home for safety and security but it's not an absolute right. Gov can regulate who has guns, where guns are located, type of guns that people possess. |
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What level of scrutiny applies to the right to travel?
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1) Generally, laws that prevent people form moving into a state must meet strict scrutiny
2) Durational residency requirements must meet strict scrutiny. A durational residency requirment is where someone must live in an area for a specified amount of time in order to get a benefit. Ex: 50 days max for voting residency requirement. 3) Restrictions on foreign travel need only meet the rational basis test |
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What is the test for determining whether an election law is constitutional?
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Voting rights are fundamental under the first Am and must meet SS 1) Laws that deny some citizens the right to vote must meet strict scrutiny (such as property requirements almost always unconstitutional), but regulations of the electoral process to prevent fraud only need be on balance desirable (i.e. voter ID).2) One-person = one vote, must be met for all state and local elections (For any elected body where there are districts, all districts must be about the same in population). 3) The use of race in drawing election district lines must meet strictscrutiny. 4) Counting uncounted votes without standards in a presidentialelection violates equal protection |
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Is there a fundamental right to education? |
No, funding public schools based on property tax is constitutional. |
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An approach to equal protection questions: |
1) What is the classification? i.e. How is gov drawing distinction among people 2) What level of scrutiny should be applied? 3) Does this law meet the level of scrutiny? |
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To whom does the equal protection clause of the 14th Amendment apply to?
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Only state and local gov'ts, not fed gov. Equal protection is applied to the federal government through the dueprocess clause of the Fifth Amendment
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1) What level of scrutiny applies to classification based on race or national origin?
2) What must you prove to show that a facially neutral law has a racially classification? |
1) Strict Scrutiny
2) classification can be shown either on the face of the law (only white men can serve on juries) or facially neural 3) If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent. Ex: (i) In DC to become a police officer need to pass a test, discriminatory impact but no discriminatory intent, RBT triggered instead of SS; (ii) discriminatory use of peremptory challenges based onrace violates equal protection because it has discriminatory impact and intent. |
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What is the level of scrutiny for racial discrimination? When can educational institutions use race as a factor in admissions?-public schools |
1) Strict Scrutiny (doesn't matter if benefiting or disadvantaging minorities) 2) Racial quotas/numerical set asides are only a remedy for proven discrimination. Ex: AL police were discriminating. For every white policeman hired a black had to be hired until discriminatory effects were alleviated. 3) Educational institutions may use race as one factor in admissions decisions to help minorities. They must show, however, that there is no race neutral alternative which could achieve diversity4) Public school systems may not use race as a factor in assigningstudents to schools unless strict scrutiny is met. |
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What scrutiny is used in gender discrimination cases?
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Intermediate scrutiny. However, SC has said that gender discrimination is only allowed if there is an exceedingly persuasive justification.
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How is a gender classification shown/treated? |
Classification can be shown either on the face of the law (military academy will only accept men) or facially neutral. Proving a facially neutral gender classification requires demonstrating both discriminatory impact and discriminatory intent. Ex: discriminatory use of peremptory challenges based on gender violates equal protection. |
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2) Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed. Ex: (i) a women could stay in the Navy longer then a man without receiving a promotion. Men had more opportunity for promotion because they could serve in combat; (ii) women could receive better social security benefits to right wage discrimination. |
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What scrutiny is used in alienage classification cases?
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1) Generally Strict scrutiny is used. Ex: SC struck down laws restricting welfare benefits, bar admission and civil service positions to US citizens.
2) Only a rational basis test is used for alienage classification that concern self-gov't and the democratic process (voting, teaching, jury, police officer, probation officer, tho not notary public). 3) Rational basis is used for congressional discrimination against illegal aliens EXCEPT Intermediate scrutiny is used for discrimination against illegal alien children. Ex: SC struck down Tx law where children of citizens and documented immigrants get free education but children of undocumented don't. |
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What scrutiny is used for discrimination against non-marital children
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1) Intermediate scrutiny if the gov discriminates against those children whose parents are unmarried.
2) Laws that deny a benefit to all non-marital children, but grant it to all marital children are also intermediate scrutiny but always unconstitutional. 3) Harder if only discriminates against some non-marital children. Ex: child could only inherit from father if paternity was established during the father's lifetime. SC applied intermediate scrutiny and upheld the law. |
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What are some common classifications that receive rational basis review?
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1) Age discrimination - mandatory retirement age
2) Disability discrimination 3) Wealth discrimination - poverty is not a suspect classification 4) Economic regulations - it doesn't matter if it is challenged as violating DP or EP, e.g. in order to be hot dog salesman must have already worked there for 8 yrs. SC held gov wins 5) Sexual orientation discrimination |
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Medium Priority 1) What level of scrutiny is applied to content-based restrictions of speech? 2) What are the types of content based laws? |
1) Strict scrutiny
2) (i) subject matter restrictions (application of the law depends on the topic of the message). Ex: no picketing in residential neighborhoods except for labor protests; and (ii) viewpoint restrictions (application of the law depends on the ideology of the message). Ex: pro war demonstration are allowed but not anti war demonstrations. |
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Medium Priority |
Intermediate scrutiny.
Ex: no parades or demonstrations in the city park |
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What is a prior restraint? |
1) Court order (temporary restraining order or injunction) or licensing system that stops speech before it occurs. |
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When can the gov't require licensing or permits for speech?
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The gov't can require a license or permit for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.
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Medium Priority Are fighting words laws constitutional? |
1) A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
2) A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. Ex: city enacted an ordinance that prohibited all live entertainment 3) Fighting words laws are unconstitutionally vague and overbroad. Fighting words are speech directed at another that a likely to provoke a violent response. |
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When may the gov't regulate symbolic speech?
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The gov't can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the gov't purpose.
Ex: Student beats up a bar examiner and claims 1st Am. Gov has an important interest in preventing assault, unrelated to suppression of the message and the impact on comm is no greater than necessary to achieve gov't purpose. |
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Examples of Gov't attempts to regulate symbolic speech: |
(1) flag burning is constitutional; (2) draft card burning is not constitutionally protected speech; (3) local gov't may prohibit nude dancing; (4) burning a cross is protected speech unless it is done w/ intent to threaten; (5) contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional |
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Can speech by the government violate the FirstAmendment? |
No, speech by the government cannot be challenged as violating the FirstAmendment. Ex: (i) Sons of confederate veterans wanted TX license plates with confederate flag. SC found that license plates are a form of government speech and government as speaker cannot violate the 1st Am; (ii) gov curriculum requirements; (iii) museum display |
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Is anonymous speech protected by the First Amendment? |
Yes, SC overturned OH law that prohibited circulating anonymous leaflets for political elections. First amendment protection for anonymous speech. |
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Medium Priority What speech is less protected by the first amendment? |
1) Incitement of illegal activity
2) Obscenity and sexually-orientated speech 3) Zoning ordinances may regulate location of sex shops 4) Child pornography may be completely banned, even if not obscene(To be child pornography, children must be used in production ofthe material, not adults looking like children or computer generated kids). 5) The government may not punish private possession of obscenematerials; but the government may punish private possession ofchild pornography 6) Seizure of assets of business convicted of obscenity laws. Ex: SC upheld gov seizure and burning of a store's obsene sexual magazines and books. 7) Profane and indecent speech is generally protected except over broadcast media (network TV and radio not Cable and Internet) and in schools (bong hits for jesus is not cool, schools have greater leeway to regulate thespeech of students and teachers than the state would have outside the schoolcontext) 8) Commercial speech 9) Defamation |
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Medium Priority |
The gov't may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to cause imminent illegality.
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What is the test for obscene and sexually-oriented speech?
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LAMP1) The material must appeal to the prurient interest (shameful or morbid interest in sex, court looks to local not national standard)
2) The material must be patently offensive under the prohibiting obscenity; and 3) Taken as whole, the material must lack serious redeeming artistic, literally political, or scientific value (national standard, not local standard) |
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What commercial speech is never protected by the 1st Amendment?
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1) Advertising for illegal activity, and false and deceptive ads are not protected by the 1st Amendment
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Can the government regulate commercial speech b/c it inherently risks deceptions?
-examples |
Yes, commercial speech that inherently risks deception can beprohibited 2) the gov may prohibit attorney, in person solicitation of clients for profit 3) The gov't may not prohibit accountants from in-person solicitation of clients for profit |
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Generally, what level of scrutiny applies to commercial speech?
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Intermediate scrutiny --> gov't regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
Ex: SC upheld FL law that said that attorneys could not solicit victims 30 days after an accident. |
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Medium Priority Defamation of public and private figures |
1) If the plaintiff is a public official or running for public office, theplaintiff can recover for defamation by proving with clear and convincing evidence falsity of thestatement and actual malice (knew the statement was false or acted with reckless disregard for the truth) 2) If the plaintiff is a "public figure" (celebrities) the plaintiff can recover fordefamation by proving falsity of the statement and actual malice 3) If the plaintiff is a "private figure" and the matter is of "publicconcern," that state may allow the plaintiff to recover for defamationby proving falsity and negligence by the defendant. However, theplaintiff may recover presumed (automatic damages) or punitive damages only byshowing actual malice. 4) If the plaintiff is a “private figure” and the matter is not of “publicconcern,” the plaintiff can recover presumed or punitive damageswithout showing actual malice just falsity and negligence. |
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What is the standard for IIED in regards to the first amendment? |
Liability for intentional infliction of emotional distress fordefamatory speech must meet the defamation standards and cannotexist for speech otherwise protected by the first amendment. Ex: (i) Hustler published cartoon of Jerry Faldwell having sex with his mother in an outhouse; (2) West Borough Baptist Church |
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What are the rules regarding the right of press to publish private statements?
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1) The gov't may not create liability for the truthful reporting of information that was lawfully obtained from the gov't. Ex: newspaper privileged rape victims name that was lawfully obtained from gov records.
2) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media not participate in the illegality and it involves a matter of public importance. Ex: teachers union officials conversation was intercepted and recorded. Local radio host broadcast the tape. SC found that in was constitutional bc related to matter of public importance, labor negotiations. 3) The gov't may limit its dissemination of information to protect privacy unless criminal trials or pretrial proceedings other than grand jury testimony. |
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May the gov't fire a gov't employee for speech made on the job?
What standard must other government restrictions based on the content of speech must meet? |
1) Yes, speech by government employees on the job in the performance of theirduties is not protected by the First Amendment.
2) Other government restrictions based on the content of speech must meetstrict scrutiny. (Example: restrictions on violent speech must meet strictscrutiny i.e. restrictions on violent video games). |
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Medium Priority What are the rules regarding the regulation of speech of public forum? |
1) Public forums: gov't properties that the gov't is constitutionally required to make available for speech (e.g. sidewalks and parks)
2) Regulations must be subject matter and viewpoint neutral otherwise strict scrutiny 3) Regulations must be a time, place, or manner regulation that serves an important gov't purpose and leaves open adequate alternative places for communication. Ex: no trucks in residential areas with sound amplification equipment at night. TPM and is fine. 4) Government regulation of public forums need not use the leastrestrictive alternative, but must be narrowly tailored. Ex: to have concert in city park, have to use city engineers, SC ruled for city and upheld regulation. 5) City officials cannot have discretion to set permit fees for public demonstrations. |
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Medium Priority What are the rules regarding the regulation of speech of designated public forum? |
1) Gov't properties that the gov't could close to speech, but chooses to open to speech. Ex: public school facilities on weekends/evenings are non-public forums, but if the school opens its facilities to community groups on weekends then it has opend a designated public forum.
2) Same rules apply as for public forums |
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Medium Priority What are the rules regarding the regulation of speech of limited public forums? |
1) Gov't properties that are limited to certain groups or dedicated to the discussion of only some subjects.
2) The gov't can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral. Ex: ordinance allows commercial ads on buses but, not political ads |
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Medium Priority What are non-public forums?What are the rules regarding the regulation of speech of non-public forums? |
1) Gov't properties that the gov't constitutionally can and does close to speech
2) The gov't can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral 3) Ex: military bases, areas outside prisons and jails, sidewalks on post office property, airports (but can distribute literature in airports) |
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Is there a First Amendment right of access to private property for speechpurposes? |
No, there is no First Amendment right of access to private property for speechpurposes. Ex: private shopping malls. |
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What must the gov't to prove to punish a person for membership in a group?
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To punish membership in a group, it must be proven that the person, the gov't must prove:
1) Actively affiliated w/ the group; 2) Knowing of its illegal activities; and 3) With the specific intent of furthering those illegal activities |
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1) What level of scrutiny applies to the freedom of association?
2) Can the gov't require the disclosure of membership in a group |
1) Strict scrutiny
2) Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny 3) Laws that prohibit a group from discrimination are constitutional unless they interfere with intimate association (i.e. small dinner party) or integral to the group's expressive activities Ex: (i) KKK can exclude black people; (ii) Boyscouts have expressive message that it's not ok to be gay. |
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Medium Priority |
Government regulation that burdens free exercise rights may not be religiously motivated
Standard to apply: 1) if the law purposefully interferes with free exercise rights, strict scrutiny 2) If the law incidentally burdens free exercise rights, rational basis scrutiny |
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Medium Priority |
No
Ex: Native Americans challenged a law that prohibited peyote consumption bc their relig ritual required use. Court held for gov becuase it was a neutral law (not motivated by desire to target) and general applicability (applies to everyone). |
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May the gov't deny benefits to individuals who quit their jobs for religious reasons?
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No
Ex: Woman quit her gov job rather than work on the Sabbath. The gov denied her benefits because she voluntarily quit and the SC ruled against the gov. |
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May the gov't hold a religious institution liable for the choices it makes as to who will be its minister?
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No
Ex: Religious school ordained its teachers as ministers and a teacher got sick and was fired. SC upheld on the ground that a religious institution could not be liable for the choices it makes as to who will be its minister. |
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Medium Priority Freedom of Religion: Establishment clause |
Strict scrutiny applies only if you have sect preference (one religion over another).
When there is no sect preference, to be constitutional, must pass Lemon Test (SEX): (1) The primary purpose must be secular (ex: 10 comandments in all county gov buildings fails); (2) The primary effect must neither inhibit or advance religion (ex: naitivity scene in a court house without other religious or secular symbols fails, 10 commandments at TX court house does not fail because other religious symbals); AND (3) There must be no excessive gov entanglement (ex: state cannot directly pay parochial school teacher salaries) |
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Can the gov't support religious schools?
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The gov't may assist parochial schools, so long as if is not used for religious instruction. The gov't may provide parents vouchers which they use in parochial schools
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Is a government sponsored religious activity in public schools constitutional? |
No, government sponsored religious activity in public schools is unconstitutional (ex: school prayer even if voluntary or "silent prayer" is not constitutional). But religious student and community groups must have the same access to school facilities as non-religious groups. |
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Federal Property Power
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Under the property power, congress has the power to make all rules and regulations effecting the territory or other property belonging to the united states such as: (i) federal buildings and enclaves; (ii) army base; (iii) VA hospital; (iv) FBI building; and (v) indian reservations.
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Medium Priority Press Immunity |
The First Amendment does not shield thepress from liability arising under generally applicable law not aimed at suppressionof free speech. |
