Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
96 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
How do you know if you have a justiciable case or controversy? (hint: RAMPSE)
|
Ripeness
Abstention Mootness Political Question Standing Eleventh Amendment |
|
|
|
What is the test for whether a state tax on a local aspect of interstate commerce is valid?
|
1) it can't discriminate in favor of in-state interests
2) it has to have a substantial nexus with the taxing state 3) it has to be fairly apportioned (the mbe aholes like to call this "severable" from any effect on IC) 4) it has to be related to services provided by the taxing state |
|
|
|
When a nonpublic forum is involved, will government regulations on speech be upheld?
|
Yes, in a nonpublic forum like a courtroom, the government can impose reasonable time, place and manner restrictions on speech. Such restriction will be upheld if they 1) are viewpoint / content neutral and 2) reasonably related to a legitimate government purpose
|
|
|
|
Is a court in session a public forum?
|
No, a courtroom is a nonpublic forum and where the court restricts speech out of concern for the accused's right to a fair trial, such interests are related to a legitimate government purpose.
|
|
|
|
Do the public and press have a right to access to a trial?
|
The 1st Amendment guarantees the public and press a right to attend criminal trials, but this right may be outweighed by an overriding interest in a fair trial free from disruption. If the trial court's order restricting access to the trial is narrowly tailored, the overriding interest may outweigh the public's right to attend the trial.
|
|
|
|
Is freedom of speech and of the press a fundamental right?
|
Yes. Strict scrutiny will apply whenever the 1st Amendment is implicated because speech is a fundamental right.
|
|
|
|
What is required to establish standing?
|
Standing requires 1) actual injury 2) causal relationship between the injury and the defendant's actions 3) redressibility
|
|
|
|
What is required to establish state action under the 14th Amendment?
|
The 14th Amend. only applies if there is action by a state or local government officer, or a private individual whose conduct makes him a state actor.
|
|
|
|
3rd party standing?
|
1) close relationship between the plaintiff and the 3rd party 2) the 3rd party cannot litigate on her own behalf
|
Examples: NAACP; doctors in abortion cases
|
|
|
1st Amend. "overbreadth" standing?
|
A law violates freedom of speech if it sweeps up a significant amount of protected expression. An individual to whom a statute can be constitutionally applied nonetheless has standing to bring a "facial attack" against the statute.
|
|
|
|
What are the FIVE (5) sources of Congress's authority to act?
|
(1) Express or implied congressional power
(2) Necessary and proper clause (3) Commerce power (4) Taxing and spending power (5) Naturalization and immigration |
|
|
|
What are the so-called "police powers" of the states under the 10th Amend?
|
Under the 10th Amend, states have the power to enact any legislation protecting or promoting the public health, safety, welfare and morals.
|
|
|
|
What is required for taxpayer standing?
|
Taxpayers have standing to challenge government expenditures that violate the Establishment clause.
|
|
|
|
When will a declaratory judgment be issued?
|
Only in an actual case between parties of adverse interests where there will be significant hardship suffered without pre-enforcement review by the court. The greater the hardships, the more likely the court will hear the request.
|
|
|
|
What does ripeness require?
|
Ripeness requires that a case be fully developed, clearly defined and not speculative or premature.
|
|
|
|
Can a federal court hear a challenge to a statute enforceable through criminal sanctions even in advance of prosecution for violations of the statute?
|
Yes, such a challenge does not violate the doctrine of ripeness, unless there is no actual threat that the statute will be enforced.
|
|
|
|
When is a case moot?
|
A case is moot if no contested question essential to the disposition of the suit remains.
|
|
|
|
What is required to defeat mootness?
|
The plaintiff must present a live injury that is ongoing throughout the case. If after the lawsuit is filed, plaintiff cannot show ongoing injury, the case will be deemed moot.
|
|
|
|
What is an exception to mootness?
|
A harm that is capable of repetition, yet evading review. The court can decide these issues even once the plaintiff's case has become moot. Ex: Roe v. Wade.
|
|
|
|
What FOUR (4) types of cases are deemed to be political questions which the federal court will not adjudicate?
|
(1) only Congress can decide on a Constitutional Amendment
(2) Challenges to impeachment and removal (3) Challenges to the President's foreign policies (4) the Guarantee clause |
|
|
|
Can federal courts hear suits against state governments?
|
No, EXCEPT:
(1) Suits against state officials are allowed (2) States can explicitly waive their 11th Amend. immunity and expressly consent to being sued (3) Federal statutes can authorize suits against state governments |
|
|
|
When will the federal court abstain?
|
Federal courts will abstain from deciding the constitutionality of new state statutes that have not yet been fully interpreted by the state court, under principles of equity, comity and federalism.
|
Example: where the state law is unclear and restrictive interpretation can remove the constitutional problems.
|
|
|
The 11th Amend. prohibits a federal court from hearing a claim for damages against a state government unless:
|
(1) the state has consented to suit
(2) the plaintiff is the United States, or another state (3) Congress has clearly granted federal courts the authority to hear a specific type of damages claim against state governments (as in a federal civil rights statute) |
|
|
|
Does the 11th Amend. apply to local governments or individual state officers?
|
The 11th Amend. prevents a private individual from bringing suit in federal court against a state government. However, this prohibition does not apply to local governments, nor to individual state officers.
|
|
|
|
When can the Supreme Court here a state court case?
|
Only after there has been a final judgment by the highest state court, by a US Court of Appeals, or by a 3-judge federal district court.
|
|
|
|
What about independent and adequate state grounds?
|
For the Supreme Court to review a state court decision, there must not be independent and adequate state law grounds plainly stated in the decision. Where there is no plain statement but dual grounds, remand back to clarify.
|
|
|
|
What is a treaty and when is it effective?
|
A treaty is an agreement between the United States and a foreign government negotiated by the President and effective once ratified by the Senate.
|
|
|
|
When a treaty conflicts, which law controls?
|
Treaties conflicting with state law: treaty controls
Treaties conflicting with federal statute: last in time controls Treaties conflicting with the Constitution: the Constitution controls and the treaty will be invalid. |
|
|
|
What is an executive agreement?
|
An executive agreement is one between the United States and a foreign country that is effective when signed by the President and the ruler of the foreign land. It does NOT require Senate approval to be effective.
|
|
|
|
When an executive agreement conflicts, what law controls?
|
Executive agreement conflicts w/ state law: EA controls.
Executive agreement conflicts w/ federal statute: Federal statute controls. An EA will never prevail over controlling federal law. Executive agreements that conflict with the Constitution: the Constitution always prevails over a conflicting EA. |
|
|
|
What about American troops abroad?
|
The President as commander in chief has broad powers to use American troops abroad.
|
|
|
|
Describe the President's appointment powers.
|
The President has the power to appoint federal judges and officers as well as ambassadors.
|
|
|
|
Can Congress give itself or its agents the appointment power?
|
Negatory. That would be an improper violation of separation of powers.
|
|
|
|
Impeachment
|
The President, VP, federal judges and officers of the US can be removed from office for treason, high crimes and misdemeanors.
House: sole power to impeach (indict) by a majority vote. Senate: convicts and removes by a 2/3 vote. |
|
|
|
Presidential immunity from civil suits for money damages?
|
Conduct WHILE in office: absolute immunity
Conduct PRIOR to taking office: no immunity |
|
|
|
Executive privilege? Can the President keep secret conversations with advisers?
|
The President has executive privilege for presidential papers and conversations, but such privilege is not absolute and must yield to other important government interests.
|
|
|
|
Presidential pardon powers?
|
The President can pardon those accused or convicted of a FEDERAL crime, but he cannot pardon for state crimes, civil legal actions, impeachment or treason.
|
|
|
|
What are Congress's MILD police powers?
|
Military bases
Indian lands Land owned by the government District of Columbia |
|
|
|
What is the extent of Congress's Commerce power?
|
- Anything that can potentially cross state lines
- Any activity that, taken in the aggregate, could have a substantial economic effect on interstate commerce even if purely intrastate - Such regulations will be sustained if there is a rational basis for Congress finding a need to regulate the activity in order to protect commerce |
|
|
|
What is the scope of Congress's taxing and spending power?
|
Congress may tax and spend for the general welfare; including war and national defense, foreign affairs, elections, civil rights, coining money, government property, eminent domain, aliens, naturalization and citizenship.
|
|
|
|
What does the 10th Amend dictate?
|
That all powers not granted to Congress nor prohibited to the states are reserved to the states and to the people, respectively.
|
|
|
|
Can the federal government interfere with traditional local government functions?
|
No, not if the proposed regulation impacts an area that is normally reserved to the states by the 10th Amend.
|
|
|
|
Does the federal government have the power to regulate purely local activity?
|
Only if the law is sufficiently related to an express or impliedly authorized Congressional power. The law itself, its intent or legislative history must directly suggest that Congress is trying to regulate interstate commerce, or foreign affairs.
|
|
|
|
Can the federal government commandeer a state agency to take action to enforce a federal mandate?
|
No. The federal government may not commandeer state regulatory agencies or state courts to enforce a Congressional mandate that Congress had no authority to pass in the first case.
|
|
|
|
Can Congress require the state to designate a state agency to enforce a Congressional mandate?
|
No, this would violate the 10th. The legislation will not survive for lack of Congressional power.
|
|
|
|
Is there a direct conflict with federal law?
|
If there is any conflict between federal law and state law, the state law will be preempted under the Supremacy Clause.
|
|
|
|
What if the state law and the federal law are mutually exclusive?
|
The federal law wins.
|
|
|
|
What if a state law impedes achievement of a federal objective?
|
The federal law will preempt the state law.
|
|
|
|
What if Congress expresses clear intent to preempt state law?
|
Federal law preempts.
|
|
|
|
When will the Dormant Commerce Clause invalidate a state or local law?
|
If the state regulation unduly burdens interstate commerce and discriminates against out-of-state interests, the state regulation will be void for violating the Dormant, or Negative, Commerce Clause, unless it is necessary to achieve an important government purpose.
|
|
|
|
If a law discriminates against interstate commerce, how will the court decide if the law is valid?
|
The law must be necessary to achieve an important government purpose, or it will be invalid.
|
|
|
|
What if a nondiscriminatory state or local law that regulates commerce imposes a burden on interstate commerce?
|
Then, we balance. A nondiscriminatory law that nonetheless burdens interstate commerce will be invalidated only if the burden on interstate commerce outweighs the benefit of the legitimate, non-discriminatory local interests.
|
|
|
|
DORMANT COMMERCE CLAUSE BALANCING TEST: balance the benefit to the state against the burden on interstate commerce.
|
Benefit exceeds the burden: law will be upheld.
Burden exceeds the benefit: law will be struck down. |
|
|
|
Does the subject matter of the law require national uniformity?
|
Congress has exclusive power to regulate aspects of interstate commerce requiring national uniformity.
|
|
|
|
Does the subject matter NOT require national uniformity?
|
States have concurrent power to regulate local aspects of commerce that do not require national uniformity.
|
|
|
|
What if it appears that Congress intended to "occupy the field?"
|
Under the Supremacy Clause, a state or local law may fail even if it does not directly conflict with federal legislation, if it appears that Congress intended to occupy the entire field.
|
|
|
|
What does the Article IV Privileges and Immunities of State Citizenship clause mandate?
|
Article IV P & I provides that "the Citizens of each state shall be entitled to all of the privileges and immunities of citizens in the several states." It thus prohibits discrimination by a state against nonresidents.
|
|
|
|
Does the state action discriminate against out-of-staters with regard to their ability to earn their livelihood?
|
If the law discriminates against out-of-staters with regard to their ability to earn a livelihood, it violates the P & I clause of Article IV unless it is necessary to achieve an important government purpose.
|
|
|
|
What is the test for the Article IV P&I clause to kick in?
|
1) there must be discrimination against out-of-staters and
2) the discrimination must be with regard to civil liberties or important economic activities |
|
|
|
Can corporations and aliens claim the protections of the Article IV P&I Clause?
|
No, it does not apply to corporations or aliens, only "citizens of the several states."
|
|
|
|
When will discrimination against out of state citizens be allowed under Article IV P&I?
|
Only where necessary to achieve an important government purpose.
|
|
|
|
What about the 14th Amend. Privileges of National Citizenship Clause?
|
This one hardly ever applies and no law has ever been struck down for violating it, but it prohibits states from denying their OWN citizens the right to petition Congress for the redress of grievances, the right to vote for federal officers, the right to interstate travel and any other right flowing from the distinct relationship of a citizen of a state to the United States government.
|
|
|
|
Is state taxation of interstate commerce ever ok?
|
Yes, under the principle that interstate commerce should pay its fair share for services rendered by the state.
|
|
|
|
Can states use taxes to help in-state businesses?
|
No, states may not discriminate against interstate commerce by favoring in-state interest in the tax scheme.
|
|
|
|
Can states tax the federal government?
|
No. Federal government agencies are immune from direct state taxation and regulation. Preemption doctrine requires invalidation of state taxes to the extent they impinge on federal entities.
|
|
|
|
Rational basis test
|
-A law will be upheld if it is rationally related to a legitmate government purpose.
-Presumed validity; upheld unless arbitrary or irrational -Burden on the challenger - |
|
|
|
Intermediate scrutiny
|
-A law will be upheld if it is substantially related to an important government interest
-Burden of proof on government |
|
|
|
Strict scrutiny
|
-A law will be upheld if it is necessary to achieve a compelling government interest and the government cannot achieve the goal through any less restrictive alternative
-Burden of proof on the government to prove they cannot achieve the same result in a less burdensome way |
|
|
|
Procedural Due Process
|
The Due Process Clause of the 5th Amend (applicable to the feds) and the 14th Amend. (applicable to the states) provide that the government shall not take away a person's life, liberty or property without due process of law.
|
|
|
|
What does due process of law mean?
|
Notice and an oppotunity to be heard.
|
|
|
|
When does a deprivation of liberty occur?
|
A deprivation of liberty occurs where there has been a loss of a significant freedom provided by the Constitution or a statute.
|
|
|
|
When has a deprivation of a property interest occurred?
|
A deprivation of property occurs when the government creates a legitimate claim of entitlement in a person and then takes it away. An entitlement is a reasonable expectation of continued receipt of some benefit, like welfare payments.
|
|
|
|
Is mere government negligence enough for deprivation of due process?
|
No, mere negligence by the government is not enough. You need to show intentional or reckless government conduct.
|
|
|
|
Is failure to protect people from privately inflicted harms a denial of due process?
|
No, government failure to protect people from privately inflicted harms does not deny due process.
|
|
|
|
Notice and the opportunity to be heard-- what procedures are required?
|
The court will weigh:
(1) the importance of the individual's interest (2) the value of specific procedural safeguards to that interest-- ie would additional procedures increase the accuracy of the fact-finding? (3) the government's interest in fiscal and administrative efficiency |
|
|
|
What does the 5th Amend. Takings Clause provide?
|
The 5th Amend prohibits governmental taking of private property "for public use" without just compensation.
|
|
|
|
Does an ordinance amount to a governmental taking without just compensatioon violating the Takings clause?
|
ALL 3 prongs must be met:
(1) there must be a taking (2) for public use (3) such that just compensation must be paid |
|
|
|
Is there a taking?
|
2 ways:
(1) Government confiscation or physical occupation of property, no matter how small, is always a taking (2) Government regulation is a taking if it deprives a landowner of all reasonable economically viable use of property (need more than just decreased value, even if the land's most beneficial use is now prohibited) |
|
|
|
What about a temporary denial?
|
Not a per se taking. Instead, the court will weigh all relevant circumstances.
|
|
|
|
Is the taking for public use?
|
A use will be held to be "public" as long as it is rationally related to a legitimate public purpose such as health, welfare, safety, economic, political, social, moral and aesthetic ends
|
|
|
|
What is just compensation?
|
The owner is entitled to the reasonable value of the property at the time of the taking, measured by the loss to the owner, not the gain to the taker.
|
|
|
|
Remedy for a taking?
|
(1) payment of just compensation
(2) termination of the regulation plus damages for the time the regulation was in effect |
|
|
|
Are zoning ordinances takings?
|
No, provided they are a valid exercise of the state's police powers.
|
|
|
|
Does the banning of a non-conforming use constitute a taking?
|
The city or state generally cannot ban uses already in existence when the ordinance is passed. The use should be allowed to remain, but the zoning ordinance can:
(1) limit the use to its present space or a normal growth rate, permit repairs but prohibit nonconforming rebuilding (2) require termination after a reasonable time (may be a taking and require compensation) |
|
|
|
Contracts Clause?
|
The Contracts Clause applies only when existing contracts are interfered with by the state or local government. NEVER applies to the federal government.
|
|
|
|
What scrutiny do we apply to state or local interference with private contracts?
|
(1) if the legislation substantially impairs a party's rights under an existing contract
(2) the law will be invalid unless it is a reasonable and narrowly tailored means to promote an important and legitimate public interest |
|
|
|
What does substantive due process guarantee?
|
Substantive due process guarantees that laws will be reasonable and not arbitrarily (applied to ALL people)
|
|
|
|
What does Equal Protection guarantee?
|
The Equal Protection clause guarantess that similarly situated persons will be treated alike and given the "equal protection" of the laws of the United States.
|
|
|
|
What two clauses protect substantive due process rights?
|
(1) the Due Process Clause of the 5th Amend applies to the federal government
(2) the Due Process Clause of the 14th Amend. applies to state and local governments |
|
|
|
What substantive due process rights are fundamental and trigger strict scrutiny?
|
1. Right to Travel
2. Voting 3. All 1st Amendment Speech & Freedom of the Press Rights 4. Privacy |
|
|
|
Privacy
|
Privacy is a fundamental right protected under substantive due process. Under the "liberty" portion of the due process clause, privacy is considerd a fundamental right.
|
|
|
|
What rights are included under the privacy umbrella?
|
1. Right to marry
2. Right to procreate 3. Right to refuse medical treatment 4. Right to keep the family together 5. Right to control the upbringing of one's children 6. Right to custody of one's children 7. Right to purchase and use contraceptives 8. Right to freedom from an undue burden on the ability to obtain an abortion |
|
|
|
Abortion
|
Prior to viability: state may regulate so long as the regulations do not create an undue burden on the ability to obtain an abortion
Post-viability: state may prohibit abortions after viability unless necessary to protect a woman's life or health Spousal consent and notification: unconstitutional Parental consent and notification: constitutional with judicial bypass option |
|
|
|
Consensual homosexual activity
|
Is protected by a right to privacy under the Due Process Clause: "the free right to engage in private conduct without government intervention."
|
|
|
|
Business and labor regulations?
|
Rational basis.
|
|
|
|
Taxation?
|
Rational basis.
|
|
