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34 Cards in this Set
- Front
- Back
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Justiciability |
Individual standing requires concrete injury in fact, causation, and redressability. Redressability means that a court can remedy or redress the injury through damages or an injunction. Organizational standing: an org has standing if its individual members have standing, the claim is related to the purpose of the organization, and the individual members are not necessary to adjudicate the claim. Mootness: Case is overripe, meaning that it’s been resolved while trial or appeal was pending. Exception for controversies that are capable of repetition yet evading review. Ripeness: Concern the prematurity of a case. Plaintiff must show actual harm or an immediate threat of harm. Federal courts cannot issue advisory opinions. Political questions: a court will not decide a non-justiciable question because there are no manageable standards for judicial decision making. |
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Commerce Clause |
Congress can regulate the channels of interstate commerce, the instrumentalities, and intrastate economic activity that has a substantial effect on interstate commerce. Substantial effect is judged in the aggregate: will the aggregate activity of everyone doing the same thing have a serious effect on interstate commerce? For non-economic activity, Congress can regulate intrastate actions only by actually demonstrating a substantial effect on interstate commerce. |
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Taxing and Spending Power |
Congress can impose a tax as long as tax is rationally related to raising revenue. Congress can condition federal funds to state and require states to implement regulations that might otherwise be prohibited us “commandeering" |
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Delegation |
Congress can delegate its powers to administrative agencies so long as there are intelligible standards of governing the exercise of that delegated power. This test is not very demanding and almost all delegation of legislative powers are upheld. |
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14th Amendment Legislation |
Under the 14th amendment, congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by the court. To be properly remedial the legislation must have congruence and proportionality; there must be a reasonable fit between the remedial law enacted by Congress and the constitutional right as declared by the Supreme Court. |
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13th Amendment Legislation |
Congress has broad power to legislate against racial discrimination, whether public or private. |
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Executive Powers |
The President has the power to issue an executive order within the scope of her powers. Domestic affairs: the president has appointment and removal powers, pardon power, the commander in chief power, and the duty to execute the law. Foreign Affairs: the president has the power to conduct foreign negotiations, to reply troops overseas and to make executive agreements. |
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Supremacy Clause |
Under the supremacy clause, federal law governs wherever state and federal law conflict. |
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Preemption |
Express: The federal law explicitly states that it is the only law allowed in that area. Implied: Congress passes a federal law intending to “occupy the field” OR the state law conflicts either directly or indirectly with federal law. |
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Privileges and Immunities Clause |
Prohibits states from discriminating against citizens of other states. This protection only applies to individuals, not corporations. |
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10th Amendment |
All powers no expressly given to the federal government are reserved to the states. Federal government cannot commandeer. |
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Dormant Commerce Clause |
In the absence of federal regulation, state regulation of commerce is valid so long as there is no discrimination against out-of-state interests, the regulation does not unduly burden interstate commerce, and the regulation does not apply to wholly extraterritorial activity. Discrimination does not include when a state acts as a market participant; when buying or selling goods or services, the state can choose to deal with only in-state persons. It also does not include subsidies to state citizens, such as welfare benefits or in-state tuition. If Congress authorizes or consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out of state interests. Non-discriminatory state regulation of commerce will also be invalidated when it imposes an undue burden on interstate commerce. This is rare. The court will balance the purpose of the statute against the burden on interstate commerce. |
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Takings Clause of the 5th amendment |
Under the 5th amendment, private property shall not be taken for public use without just compensation. Public use is basically anything the government wants to do with the property, even reselling to another private owner for economic development; it need only be rationally related to a conceivable public purpose. A physical taking, by occupation, is the clearest example of this. If the taking occurs by regulation, adverse economic impact is not enough to constitute a taking. It may be a total taking if the regulation leaves no economically viable use of the property. A partial taking is unlikely to entitle the owner to relief: the court will consider the economic impact, the owner’s reasonable expectation of return on her investment, and the character of the regulation--whether it impacts a few owners or the whole community. If a taking has occurred, the owner is entitled to the fair market value of the thing that’s been taken at the time of the taking. |
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Zoning |
Local governments have the power to pass zoning ordinances so long as they are reasonably related to a legitimate government purpose. A variance may be granted to allow the owner to continue her nonconforming use of the property, but only if she can show an undue burden if the variance is not granted. Zoning ordinances may constitute takings if they leave no economically viable use for the property (rare). |
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Procedural Due Process |
The Due Process clause provides certain protections before the government can take a person’s life, liberty or property. Examples of procedure include notice, hearing, appeals. The amount of process due will be determined by balancing the interest affected against the value of additional safeguards, against the burden of additional process. |
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Substantive Due Process |
Is triggered when the government’s action infringes on an individual’s rights. If it infringes on a fundamental right, the action is reviewed under a strict scrutiny standard of review and will only be valid if necessary to achieve a compelling governmental interest. If it is not a fundamental right, it will be valid if rationally related to a legitimate government interest. Fundamental rights include interstate travel, voting, privacy--encompassing marriage, contraception, sexual intimacy, abortion, parental rights, family relations, obscene material, and refusal of medical treatment |
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Equal Protection Clause |
Must be a state action and discrimination. Strict scrutiny is applied to any law involving fundamental rights (and restrictions based on classes of people) and classifications based on race, ethnicity, and national origin. The law must be the least restrictive means to achieve a compelling government interest. The government bears the burden of proof. Intermediate scrutiny applies to laws involving gender and non-marital children born outside of marriage. The law must be substantially related to an important government interest, and the government bears the burden of proof. All other rights and classifications get rational basis review. The law must be rationally related to a legitimate government interest. The plaintiff bears the burden of showing the law is arbitrary or irrational. |
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Abortion |
A woman has a right to terminate her pregnancy until viability of the fetus. After that stage, restrictions can apply so long as there are exceptions to preserve the health and life of the mother. States can regulate abortion, but they cannot impose an undue burden on the woman’s right to terminate her pregnancy. Government financing of abortion is not required. |
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Freedom of Expression |
Content based regulations of expression trigger strict scrutiny and are usually struck down. A law will be struck down if it’s unconstitutionally vague. Vague laws are laws that give no clear notice of what is prohibited and thus violate due process. A law will be struck down if it’s overbroad. Overbroad laws are ones that go too far in regulating speech and burden substantially more speech than is necessary to protect a compelling interest and thus violate the first amendment. |
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Expressive Conduct |
Laws regulating expressive conduct are upheld if they further an important interest, that interest is unrelated to the suppression of expression, and the burden on expression is no greater than necessary. |
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Prior Restraints |
Are especially disfavored and will be struck down even when other forms of regulation might be upheld. (i.e. a permit before engaging in speech). It might be permitted if certain procedural safeguards are in place: standards must be narrowly drawn, reasonable, and definite; and there must be prompt review of the validity of the restraint. Injunctions against speech are almost never awarded. |
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Content neutral regulation |
Must be substantially related to and important government interest. |
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Time place and manner regulation |
Would typically be seen in a public forum, i.e. streets, parks and public sidewalks. Also, the only type of regulation permitted in a limited public forum. 3 requirements: 1. Must be content neutral on its face and as applied; also must not allow executive discretion. 2. Alternative channels of communication must be left open. 3. Must be narrowly tailored to serve a significant state interest. |
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Nonpublic forum |
Government property that’s not a public forum. Any reasonable regulation of speech will be upheld as long as it does not discriminate based on viewpoint. |
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Commercial Speech |
Is protected unless it is false, misleading, or unlawful. Protected commercial speech can only be regulated if it DIRECTLY advances a SUBSTANTIAL government interest and is narrowly tailored to that interest. |
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Obscenity |
Obscene speech can be regulated. Obscene speech is: sexy: erotic, appeal to the prurient interest society sick: patently offensive to the average person in the society (could be whole country or local city) standards: the regulation must be defined by the proper standards for determining what is obscene, not vague or overbroad serious value: the material must lack serious value. If the material has serious artistic, scientific, educational or political value, it cannot be held legally obscene. The determination is made by the court, not the jury, and it must be based on a national standard. |
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Incitement |
Speech is not protected if it is an incitement to immediate violence. |
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Fighting Words |
Words likely to provoke an immediate breach of the peace: must be aimed/targeted at someone and that person might hit back. Vulgarity is not enough. While in theory, fighting words are not protected, the statutes on the bar are vague/overbroad. |
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Defamation |
False statements of fact damaging to a person’s reputation. Public officials/figures can recover only on proof of knowing or reckless falsity. Private plaintiffs can recover on proof of negligent falsity. |
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Campaign Finance |
Use of money to support a political campaign is political speech and the regulation of that money raises first amendment issues. Contributions can be regulated, provided that the limits are not unreasonably low. Direct expenditures in support of a candidate, a campaign or a political issue cannot be regulated. BUT coordinated expenditure (which is a disguised contribution) CAN be regulated as contributions. Equalizing campaign resources is not a valid rationale for restricting campaign expenditures. |
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Establishment Clause |
Prohibits the government from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion. A facial preference receives strict scrutiny. If there’s a preference in EFFECT, the court will apply the Lemon test: (1) the law must have a secular purpose (2) the primary effect neither advances nor prohibits religion, and (c) the law does not result in excessive government entanglement with religion. Endorsements will be struck down if they are coercive. |
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Free Exercise Clause |
Religion must be genuine. Beliefs are absolutely protected Religious conduct/practices: protected qualifiedly. Laws regulating religious conduct because of its religious significance are unconstitutional. Neutral regulation of conduct can be enforced despite religious objections. There is no right to accommodation. |
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11th amendment |
Exception to judicial power: state sovereignty. You cannot sue a state for money damages in state or federal court unless the state consents OR Congress expressly says so to enforce fourteenth amendment rights. Only applies to states, not local governments. Instead, you can sue a state officer for an injunction or damages from officer personally. |
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Supreme Court jurisdiction |
Original JD in controversies between states. Otherwise, appellate subject to Congress’s exceptions. The Supreme Court can only review a state court judgment if it turned on federal grounds, not if it rested on an adequate and independent state ground. |
