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115 Cards in this Set

  • Front
  • Back
Judiciabilty Test:

R-A-M-P-S
Ripeness
Advisory Opinions
Mootness
Poltical Question
Standing
Supreme Court

Congress Can ... (Original)
Neither enlage or restrict
Supreme Court

Congress Can ... (appellate)
May broadly regulate
When does Fed Cts employ abstention? (2)
1. unsettled issue of state law
2. pending state criminal proc.
Appointment Power of President
Principal Officers and Cabinet Officials
Appointment Power of Congress
Inferior officers (e.g., heads of departments, judiciary)
Treaty v. Law

Which trumps?
Last in time prevails
Congress passes a law which allows the President to set fuel standards. Allowed?
Yes, this is not legislative power
11 AMD in general, may states be sued?
State MAY be sued in Fed CT by its own citizens, or citizens of another state --- only with consent
11 AMD Exceptions to barring of suits against states.
1. state official sued personally
2. state sued by US or another state
3. Congress waives immunity
Property Power of Congress
Congress has the power to dispose of territory or other property in the US.
Property Power of Congress

Other than land...
Wild animals
Military Ships and Planes
Federal Bldgs
Indian Reservations
Three ways to uphold a Federal Statute
1. Supremacy Clause
2. An enumerated power of Congress
3. Federal property power
Uphold a State Statute under Dormant Commerce Clause
- nondiscrimination
- no unusual burden
Uphold a State Statute under Police Power
- health or safety
- welfare
- morals
- aesthetics
Affectation Doctrine
Modern Commerce Clause
Congress may regulate any activity which has a substational effect on commerce
When may a state discriminate against outsiders?
Where a state uses its own funds to build a market
Where a law effects SOME person on class of person ---
Equal Protection
Where a law effects ALL persons ---
Substantive Due Process
Voting Issues (4) Fundamental
Fundamental Right
- discrimination
- reapportionment
- switching party affiliations
- ballot restrictions
Voting Issues (2) Not Fundamental
Not Fundamental
- filing fee
- min and max age restrictions
Define Art IV, Privilege and Immunities Clause
Prevents economic discrimination of one state against citizens of another state UNLESS there is a substantial govt. interest
Define Procedural Due Process
Safeguards for a notice and hearing whenever a SERIOUS deprivation of live, liberty, or property interest is at stake
Type of Liberty Interest (2)
- right to contract
- right to be employed
Define Bill of Attainder
Legislative punishment of a named group or individual without a judicial trial
Define Ex Post Facto Law
Invalidates retroactive criminal laws that (1) make criminal conduct that which was not with the act occured or (2) decreases amt of evidence needed at trial
Define Obsenity (3)
- appeal to purient
- depict sexual conduct in a patently offensive way
- lack serious literary or artistic value
What must a law do in order to not violate the Establishment Clause (3)
- purpose must be secular
- effect must not inhibit or advance religion
- no entanglement
Generally Wrong Answers:

General Welfare Clause
only where limits taxing and spending
Generally Wrong Answers:

Necessary and Proper
carries into effect OTHER powers
Generally Wrong Answers:

14 AMD Priv and Imm CL
Never Correct
Generally Wrong Answers:

Distinctions between Rights and Priv in answers
Never Correct
Generally Wrong Answers:

10AM
Except where Congress passes a law making States pass a law
Generally Wrong Answers:

Contracts Clause
- only to states
- retroactively impairs obligations to existing contract
Approach to Con Law Q (3)
- underline who is passing law
- determine subj matter of Q
- match appropriate power
Four Facial Attacks to 1st AMD
- overbreadth
- vagueness
- prior restraint
- unfettered discretion
Unprotected Speech (6)
- clear and present danger
- defamation
- obscenity
- child pornography
- fighting words
- fraudulent COMMERCIAL speech
Strict Scrutiny for Suspect Classifications

R-A-N
Race
Alienage
National Origin
Strict Scrunity for Fundamental Rights

C-A-M-P-E-R
Contraception
Abortion
Marriage
Procreation
Education (Private)
Relations (Family)
Intermediate Scrutiny

G-I-C
Gender
Illegitimacy
Children (or illegal aliens)
Original Constitutional Basis of SCT Jurisdiction (2)
- case involving ambassador, public minister, or counsel
- any case where a State is a party
Appellate Basis of the SCT Jurisdiction (2)
- appeal by right
- certiorary

note: Cangess can modify
Can Congress Remove Federal Question of Diversity Jurisdiction?
Only Diversity
What is the first issue to start a Con Law essay?
Standing
Standing (General) (3)
- injury in fact arising from conduct being complained of
- relief sought must eliminate the harm alleged
- injury must be traceable to D's conduct
General Grievance
Usually Denied
Tax Payer Standing (4)
- no challenge to measurable expenditures
- no standing if other than financial
- no standing because interest is too remote
- exception for establishment clause challenge to expenditutre under tax and spend power
Ripeness
Genuine, immediate threat of harm
Mootness & Exception
- actual controversy must exist at all stages of review
- unless injury is capable of repetition with evasion
Define Political Question
Non-justiciable issue committed to another branch of government
11AMD General
State cannot be sued in federal court by its own citizens, citizens of a foreign state, or citizens of a foreign country without consent
Abstention Doctrine (3)
Where:
- pending state criminal proceedings
- injunctive relief from state criminal proceedings
- civil contempt proceedings
Other wording for Police Powers (2)
- legitimate interest
- rational basis
Two Doctrines Under Commerce Clause
- Affectation Doctrine
- Cumulative Doctrine
Affectation Doctrine
Any activity which in the aggregate has a substantial economic effect on the stream of commerce
Cumulative Impact Doctrine
Entirely instrastate activity which can have a cumulative effect on interstate commerce
May Congress Attach Strings To Money?
Yes - if reasonable
Legislative Veto
Congress cannot delegate legislative power and then retract it
Congressional Power over War and Defense (3)
- declare war
- regulate militia
- raise and support troops
Power of Appointment
- President appoints executive officers with consent of Congress
- Congress cannot appoint inferior officers, but can delegate such appointment to the judiciary or executive
How many days to veto a bill?
10
Executive Privilege (2)
- absolute right to refuse to disclose military and diplomatic secrets, otherwise qualified
- absolute immunity from civil suits for actions taken in office
Can the President control state militias?
Yes
Federal Government immunity from state law (2)
- immune from state taxation and regulation
- may tax federal contractors
State Government immunity from federal law (2)
- generally not immune
- can tax proprietary state businesses
Dormant Commerce Clause (2)
If federal government does not regulate, the state can so long as:
- it doesn't discriminate against interstate commerce
- doesn't unduly burden interstate commerce
Privileges and Immunity Clause
Prohibits discrimination by one state of citizens of another state in the areas of basic economic rights or liberties
To ways to uphold state law
- police power
- dormant commerce clause
State Taxation Rules (5)
- must be reasonable and non-discriminatory
- must have substantial nexus between state interest and activity being taxed
- goods in stream of commerce may not be taxed (unless stopover)
- instrumentalities involved in interstate commerce may be taxed if fairly apportioned
- airline can be taxed based on number of days plane is in state's airport
- direct taxes must be apportioned, indirect (sales) taxes must be geographically uniform
Two Part of Supremacy Clause
- premption
- supercession
Supercession Doctrine
Federal law supercedes state laws in direct conflict; however states may enact stricter standards in the area of health and safety
Preemption Doctrine
If the federal government intends to occur the area, any conflicting state laws are invalid
State Action Requirement of 14AMD
Threshhold requirement of government conduct which must be satisfied before private discrimination can be restricted. Without state action, private discrimination is not actionable under 14AMD
Substantive Due Process
Two Strands
- economic regulation valid if rationally related to legitimate govt interest
- fundamental rights require strict scrutiny
Privacy

C-A-M-P-E-R
- Contraception
- Abortion
- Marriage
- Procreation
- Eduction (in home)
- Relations (family)
Three Fundamental Rights

P-V-T
- Privacy
- Vote
- Travel
Travel

Unconstitutional
- welfare
- medical services
- libraries
Travel

Constitutional
- university tuition
- obtaining a divorce
- voting (50 days)
Voting v. Candidates
Voting is a fundamental right, while running for office is not (rational basis)
Procedural Due Procress (GR)
Notice and hearing available whenever there is a serious deprivation of life, liberty, or property interest
Liberty Interests (4)
- right to contract
- right to engage in lawful employment
- right of natural parents in care and custody of child
- right to refuse unwanted medical procedures
Property Interests (5)
- welfare benefits
- disability benefits (post)
- public elementary and secondary education
- garnishment of wages
- continued public employment where tenured
Takings (5 and 14 AMD)
Private property taken for public use by confiscation, physical occupation, or regulation which denies owner all reasonable economically viable use of the land
Three Ways to Take
- eminent domain ($)
- inverese condemnation ($)
- police power (no $)
Equal Protection (General)
Used as argument where persons similarly situated are treated differently
Strict Scrutiny

R-A-N
Strict Scrutiny applies to suspect classifications:

- race
- alienage
- national origin
Can schools use quotas in admissions?
No, but they may use race as a part of the decision, so long as it is narrowly tailored
Exceptions to Alienage under Equal Protection
Government participation
- teachers, policemen, jury service, etc.
Intermediate Scrutiny

G-I
- gender
- illegitimacy
Intermediate Scrutiny Burden
Substantially related to an important government interest
Rational Basis Burden
Plaintiff must show that the law is NOT related to any rationally related legitimate government interest
Privileges and Immunities

WRONG on MBE
Protects rights of citizenship
Establishment Clause Test of Law
Government may not pass a law preferring or aiding one religion over another. Test:
- primary purpose law secular
- primary effect neither advances of inhibits religion
- law must no foster excessive entaglement
Opening Prayers
- ok if long tradition (state legislature)
- no if done by judge
Free Exercise Rules (3)
- violation when government burdens person because of their religion
- beliefs are absolutely protected
- conduct in furtherance of those beliefs may be regulated
What Speech Can be Contented Regulated (6)
- clear and present danger
- defamation
- obscenity
- child pornography
- fradulent commercial speech
- fighting words
Content Neutral Regulation of Speech (3)
- time and place
- requirements
- forum
Requirements to Regulate Neutral Speech (3)
- serve significant govt interest
- narrowly tailored
- leave open other channels of communication
Types of Forums (4)
- traditional public
- limited public
- non-public
- private
How to Facially Attack a Law Concerning Speech (3)
- overbreadth
- vagueness
- prior restraints
Defamation of Public Figure
actual malice
Defamation of Private Person over Public Concern
mere negligence
Defamation of Private Person over Private Concern
just show statement is false, showing malice unlocks punitive damages
Obscenity Test (3) including

L-A-P-S
- purient interest applying community standards
- detect sexual conduct in a patently offensive way
- lacks (literary, artistic, political, or scientific) merit using reasonable person std
Problems getting obscene material (4)
- ban on public dist
- ban films in public theatre
- ban received in mail
- ban purchased in stores
Fighting Words (2)
- insults likely to provoke an ordinary person to violence
- statute must be viewpoint neutral
Requirements for Licensing Forum for Speech
- content and viewpoint neutral
- narrowly drawn
- no unfettered discretion
Punishment for being a member of an association (3)
- organization advocates unlawful conduct
- individual is a knowing and active member
- individual has specific intent to further the illegal objectives of the organization
When doing an analysis which is better to use:

1AMD
EP
1AMD has built in EP
Does the press have more freedom than a person?
No
How does a newspaper have a right to keep a source confidential?
Statute only
When can public access to a criminal trial be revoked? (3)
- compelling or overriding state interest
- narrowly tailored
- D's right to a public trial is not interfered with
Why does the Fairness Doctrine Apply only to Airwaves and Not Newspapers?
Limited amount of airwaves
When can one ban symbolic speech (3)
- further significant government interest
- narrowly tailored
- leave open alternative channels
Regulation of Cable TV (4)
- middle tier
- may ban indecent programming
- may not ban indecent programmin on public access channels
- federal government cannot require stations to scramble signal