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30 Cards in this Set

  • Front
  • Back

7 MAIN TOPICS

1. Judiciary Powers


2. Legislative Powers


3. Executive Powers


4. Federalism


5. Individual Liberties


6. Equal Protection


7. First Amendment



4 JUDICIABILITY LIMITS

1. Standing


2. Ripeness


3. Mootness


4. Political Question Doctrine

TAXPAYER STANDING

- They have standing to challenge gov't expenditures pursuant to federal (state and local) statutes as violating the Establishment Clause


- They can only challenge gov't giving money to religious institutions


- They CANNOT challenge gov't giving property to religious institutions



RIPENESS

- The question of whether a federal court may grant pre-enforcement review of a statute or regulation


Two things to consider:


(1) The hardship that will be suffered WITHOUT pre-enforcement review


(2) The fitness of the issues and the record for judicial review


- Think of this when considering Declaratory Judgment questions

3 EXCEPTIONS TO MOOTNESS

These cases will not be dismissed if:


1. Wrong capable of repetition, but evading review (ex: abortion)


2. Voluntary Cessation


- If (D) voluntarily halts the offending conduct, but is free to resume it at any time, the case will NOT be dismissed


3. Class Action Suits - only one member needs an ongoing issue

4 KINDS OF POLITICAL QUESTIONS

Constitutional violations that the federal court will NOT adjudicate


1. The "republican form of government clause" | Guarantee Clause


2. Challenges to the President's conduct of foreign policy


3. Challenges to the impeachment and removal process


4. Challenges to partisan gerrymandering

4 POLICE POWERS


[Usually the wrong answer on Bar]

M I L D




Exceptions of when Congress does have these powers


1. Military


2. Indian Reservations


3. Lands & Territories belonging to Fed. Gov't


4. D.C.

3 WAYS CONGRESS CAN REGULATE THROUGH THE COMMERCE POWER

1. Congress may regulate the channels of interstate commerce (places, highways, waterways)


2. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce (trucks, planes, internet)


3. Congress may regulate economic activities that have a substantial effect on interstate commerce


- Congress CANNOT regulate inactivity


- Non-economic activity - NOT Substantials Effects Test

10TH AMENDMENT

- Limit on Congressional powers


- All powers not granted to the U.S., nor prohibited to the states, are reserved to the states or the people


- Congress CANNOT compel state regulatory or legislative action


- Congress CAN induce state gov't action by putting strings on grants, so long as the conditions are:


(1) Expressly stated; and


(2) Relate to the purpose of the Spending Program


(3) Conditions CANNOT be unduly coercive

CONGRESS' POWER UNDER SECTION 5


OF 14TH AMENDMENT

- Congress may NOT create New Rights or Expand the Scope of rights


- Congress MAY act only to prevent or remedy violations of rights recognized by the courts


- Such laws must be "proportionate" and "congruent" to remedying constitutional violations


- Laws must be Narrowly Tailored

DELEGATION OF POWERS

- No limits exist on Congress' ability to delegate legislative powers


- Excess of Delegation of Legislative Powers is usually WRONG answer on Bar


- Since 1936, no delegation has been declared in excess of Delegation Powers


- Congress may NOT delegate Executive Power to itself or its officers

TREATIES

- Agreements between the U.S. and foreign country


- They are negotiated by the President and


- They are effective when ratified by the Senate


- Senate approval is required


- They prevail over conflicting state laws


- If they conflict with a Federal Statute, the one adopted last in time controls


- They are invalid if they conflict with the U.S. Constitution

EXECUTIVE AGREEMENTS

- An agreement between the U.S. and a foreign country that is effective when signed by the President and the head of the foreign nation


- NO Senate approval required


- Can be used for ANY purpose


- They prevail over conflicting state laws


- They NEVER prevail over conflicting federal laws


- They NEVER prevail over the Constitution

PRESIDENT'S POWERS AS


COMMANDER-IN-CHIEF

- Broad powers given to the President


- For use of American troops in foreign countries


- Best answer usually has to do with Political Question or President wins

PRESIDENT'S PARDON POWER

- President has this power over those accused or convicted of federal crimes


- Only for Federal crimes - NEVER State


- Only for Criminal Liability - NEVER Civil


- Exception: Not available for impeachment of President



PREEMPTION

- The Supremacy Clause of Article 6 provides that the Constitution and laws and treaties made pursuant to it, are the supreme law of the land


- It can be Express or Implied


- States may NOT tax or regulate federal government activity (Inter-governmental Immunity)


- Unconstitutional to pay a state tax from a federal treasury


- States CANNOT regulate federal gov't if it puts a burden on Federal activity


- Federal Gov't NEVER has to comply with State pollution or Environmental Laws



DORMANT COMMERCE CLAUSE

Limit on what State and Local Gov'ts can do


- Does NOT require discrimination against out-of-staters in order to apply


- Requires a burden on interstate commerce


- Corporations and Aliens can sue under it


- State or local law is unconstitutional if it places an undue burden on interstate commerce


- Exceptions: Congressional approval and the Market Participant Exception

PRIVILEGES AND IMMUNITIES CLAUSE


OF ARTICLE 4

Anti-Discrimination of Out-of-Staters


- Requires discrimination against out-of-staters in order to apply


- Requires discrimination with regards to fundamental rights or important economic activities


- Corporations and Aliens CANNOT sue under it


- No exceptions


- No state may deprive citizens of other states of these afforded its own citizens

PRIVILEGES OR IMMUNITIES CLAUSE


OF 14TH AMENDMENT

Right to Travel


- Always a wrong answer unless it involves the Right to Travel

MARKET PARTICIPANT EXCEPTION

- A state or local gov't MAY prefer its own citizens in receiving benefits from gov't programs or in dealing with gov't-owed businesses


- Government Benefit programs are allowed




Ex: Public In-State Tuition is cheaper = Benefit to in-staters that is okay!


If Private School giving cheaper tuition= violate DCC

4 ELEMENTS OF PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE 4

1. The law must discriminate against Out-of-Staters


2. The discrimination must be with regard to a fundamental rights or important economic activities (Ability to Earn Livelihood)


3. Corporations and Aliens CANNOT use this clause


4. The discrimination must be necessary to achieve an important gov't purpose


- Necessary = No less discriminatory process can achieve objective + Substantial gov't interest

3 ELEMENTS OF FULL FAITH AND CREDIT

- Courts in one state must give Full Faith & Credit to judgments of courts in another state, so long as:


1. The court that rendered the judgment had jurisdiction over the parties and the subject matter


- Personal Jurisdiction + Subject Matter Jurisdiction


2. The judgment was on the merits


3. The judgment is final

13TH AMENDMENT

- Can be used to prohibit private race discrimination


- Applies directly to Private Behavior


- Discrimination NEVER violates this Amendment itself, only SLAVERY violates this Amendment

PUBLIC FUNCTION EXCEPTION

- Exception: situation where private conduct must comply with the Constitution


- The Constitution applies if a private entity is performing a task traditionally, exclusively done by the gov't


Ex: Private entity running a town

ENTANGLEMENT EXCEPTION

- Exception: situation where private conduct must comply with the Constitution


- The Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity


- Either Gov't STOPS what it is doing, or the Private conduct must comply



4 EXAMPLES OF ENTANGLEMENT EXCEPTION


[State Action]

1. Courts CANNOT enforce racially restrictive covenants


2. There is state action when the gov't leases premises to a restaurant that racially discriminates


3. There is state action when a state provides books to schools that racially discriminate [State = encouraging segregation]


4. There is state action when a private entity regulates interscholastic sports within a state [Entwinement b/w Gov't & State Action]



3 EXAMPLES OF NO ENTANGLEMENT EXCEPTION


[No State Action

1. There is no state action when a private school that is over 99% funded by the gov't fires a teacher because of her speech


- State did nothing to encourage firing teachers because of speech


2. There is no state action when the NCAA orders the suspension of a basketball coach at a state university


- NCAA = private institution that does NOT have to comply with Constitution


3. There is no state action when a private club with a liquor license from the state racially discriminates - Not sufficient for Constitution to apply

RATIONAL BASIS TEST

GOV'T USUALLY WINS


Means: Rationally Related


Ends: Legitimate Conceivable Purpose


Least Restrictive Analysis: No


Burden of Proof: Challenger


- Challenger must prove: (1) Not rationally related + (2) No legitimate purpose


- Extremely deferential to Gov't

INTERMEDIATE SCRUTINY TEST

Means: Substantially Related


Ends: Important Actual Purpose


Least Restrictive Analysis: No


Burden of Proof: Government


- Narrowly Tailored = this is a very good means to achieve the end


- Looks only to Gov'ts Actual Purpose

STRICT SCRUTINY

Means: Necessary


Ends: Compelling Actual Purpose


Least Restrictive Analysis: Yes


Burden of Proof: Government


- No less restrictive alternative can be used