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54 Cards in this Set
- Front
- Back
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What are the four requirements for justiciability (aka case or controversy)?
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1. Standing
2. Ripeness 3. Mootness 4. Political Q |
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What are the four main rules of standing?
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1. Injury: Plaintiff must have an actual injury, or, in seeking injunctive relief, P must show likelihood of future harm.
2. Causation and redressability: P must show D caused the injury, and that a court ruling will remedy the injury. (No advisory opinions.) 3. No third-party standing, unless close relationship. 4. No generalized grievances. No standing as citizen or texpayer, EXCEPT Establishment Clause cases. |
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What is ripeness? How is it determined?
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Whether the case may be reviewed pre-enforcement. Often arises in declaratory judgment cases. Balancing Q: weigh the hardship suffered without pre-enforcement review against the fitness of the issues and record for judicial review.
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What is mootness? What are some exceptions?
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Mootness occurs when events after filing end the plaintiff's injury. It is no longer a live controversy. Exceptions: capable of repetition yet evading review; voluntary cessation by D, and class actions.
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Which cases come to the S Ct by writ of cert?
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All cases from state courts.
All cases from US Cts of Appeals. Need 4 votes. |
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Which cases come to the S Ct via direct appeal?
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Certain three-judge federal district court decisions, provided by statute.
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Which cases come to the S Ct via original jurisdiction?
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Suits between state governments.
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When can S Ct review a state court decision?
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When there is NO ADEQUATE AND INDEPENDENT STATE GROUNDS for the decision.
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Can state governments be sued in federal courts? In state courts? Why or why not.
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No and no. 11th A bars suits against state govts in federal court. Sovereign immunity bars suits against state govts in state courts.
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What are exceptions to the ban on suing state governments?
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1. Explicit waiver.
2. States may be sued pursuant to federal laws adopted under section 5 of 14A (Title VII). 3. Federal government may sue state govts. 4. Bankruptcy proceedings. 5. SUITS AGAINST STATE OFFICERS. |
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When may state officers be sued?
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Only for injunctive relief or for damages to be paid out of their own pockets. Anytime the state treasury will be paying retroactive damages, state officials may not be sued.
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What is abstention?
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Federal courts decline to enjoin pending state proceedings, even though they have jurisdiction to do so.
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What is police power, and where does federal police power exist?
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Police power is general authority to legislate for health, safety, and welfare.
MILD: Military bases, Indian reservations, federal lands, DC. |
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Other than police power, what portions of the constitution allow Congress to act?
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1. Taxing and spending power
2. Commerce power 3. Necessary and proper clause (means) 4. Section 5 of 14A |
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What is the taxing and spending power?
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Congress may tax and spend for the general welfare.
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What is the Commerce Power?
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Congress may regulate:
1. Channels of interstate commerce (roads, rivers, etc.) 2. Instrumentalities of interstate commerce (trucks) 3. Persons and things in interstate commerce 4. Economic activities (NOT inactivity) that have a substantial effect on interstate commerce. |
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What limits does 10A place on Congress?
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Cannot compel state regulatory or legislative action: No unfunded mandates.
BUT funded mandates are ok. That is, Cong can put strings on grants, so long as the conditions are expressly stated, relate to the purpose of the grant, and are not unduly coercive. |
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What is Cong's power under section 5 of 14A?
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Cong cannot create or exapnd the scope of rights. May only act to prevent or remedy violations of rights recognized by the courts.
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When may Cong delegate its legislative power?
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Whenever it wants. No limits.
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What is required for Congress to act?
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Bicameralism (passage by both houses) and presentment to the President for signature or veto.
No line-item vetoes. |
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What are treaties and executive agreements? When is each effective?
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Both are agreements between US and foreign govt. TREATIES are effective when RATIFIED BY THE SENATE. EXEC AGREEMENTS are effective when SIGNED BY THE PRESIDENT AND THE FOREIGN SOVEREIGN.
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When treaties and/or executive agreements conflict with other laws, what prevails?
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Treaties and exec agreements prevail over state laws. Constitution prevails over both. Only distinction: when they conflict with federal law, federal statute controls over exec agreements, whereas WHICHEVER WAS LAST ADOPTED prevails in conflict with treaty.
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Whom must the President appoint?
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1. Ambassadors
2. Federal judges 3. Officers of the US (cabinet) |
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In whom may Congress vest the power to appoint inferior officers?
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The President, heads of departments, or lower federal courts.
CONGRESS MAY NOT give itself or its officers appointment power. |
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When may the President remove an executive branch official?
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Anytime. Cong can only limit his ability to do so where there is good cause and independence from Pres is desirable.
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What votes are required for impeachment?
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Majority in the House to impeach; 2/3 in the Senate to convict.
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When is federal legislative preemption IMPLIED?
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1. When federal and state law are mutually exclusive--that is, one cannot comply with both.
2. If state law impedes the achievement of an important federal objective (NLRB). 3. If Cong evidences a clear intent to occupy the field (immigration). |
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Can states regulate or tax federal government activity?
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No. No state tax on Bank of the US, federal govt does not have to comply with state pollution laws, etc.
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What is the dormant commerce clause?
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Negative implications of the Commerce Clause: limits on state ability to place an undue burden on interstate commerce.
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What are the three main limits on ability of states to regulate commerce?
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1. Dormant commerce clause.
2. Privileges AND immunities clause of Art. IV. 3. Privileges OR immunities clause of 14A. |
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When does Art. IV priv AND immunities clause apply?
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When state law discriminates against out-of-staters with regard to civil liberties or important economic activities (livelihoods), UNLESS necessary to achieve an important government purpose. (State protectionism is NOT an important govt purpose.)
CANNOT BE USED BY A CORPORATION! |
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When does the dormant commerce clause apply?
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When states unduly burden interstate commerce. Test is whether burden exceeds benefits.
EXCEPTION: Market participant (state may benefit its own citizens in activities in which the state is a market participant, such as in-state tuition) |
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Entanglement:
1. Provides books to schools that discriminate? 2. Courts enforce restrictive covenants? 3. Leases premises to restaurant that discriminates? 4. Funds a private school that fires a teacher based on her speech? 5. NCAA orders suspension of state U coach? 6. Private entity regulates interscholastic sports? 7. Gives liquor license to private club that discriminates? |
1. Yes, state action.
2. Yes, state action. 3. Yes, state action. 4. No state action. 5. No state action. 6. Yes, state action. 7. No state action. |
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Which individual rights have not yet been extended to the states via 14A DP clause?
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3d A (quartering soldiers)
5A right to indictment 7A jury trial in civil cases 8A excessive fines |
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Will negligence on the part of the govt violate Due Process?
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No. Only intentional or reckless govt action.
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Procedural due process: what factors are balanced?
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1. Importance of the interest to the individual
2. Government's interests 3. Ability of additional procedures to increase accuracy |
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How much process is due when...
1. Terminate welfare benefits? 2. Terminate disability benefits? 3. Discipline student in public school? 4. Termination of parental rights? 5. Award punitive damages? 6. Hold American citizen as enemy combatant? 7. Prejudgment attachment or seizure of assets? |
1. Notice and a pre-termination hearing.
2. Post-termination hearing. 3. Notice of charges, opportunity to explain. 4. Pre-termination notice and hearing. 5. Instructions to jury and judicial review. 6. Notice, lawyer, meaningful hearing. 7. Notice and hearing. |
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What are the two kinds of takings?
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1. Possessory taking: govt confiscation or physical occupation of property, even a tiny amount.
2. Regulatory taking: govt regulation leaves no reasonably economically viable use of property |
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For takings purposes, what is public use and what is just compensation?
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Public use: Broadly defined: reasonable belief that it will benefit the public.
Just compensation: measured in terms of loss to the owner, NOT benefit conferred to taker. |
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What is the contracts clause?
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No state shall impair the obligations of contracts. ONLY APPLIES OT EXISTING KS. Does not apply to federal govt.
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What standard applies to state interference with PRIVATE Ks?
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Intermediate scrutiny: Is the law reasonably and narrowly tailored to promote an important and legitimate public interest?
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What standard applies to state interference with government Ks?
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Strict scrutiny: is the law necessary to achieve a compelling state interest, and the least restrictive alternative?
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Can the state impose civil liability for acts that were legal when committed?
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Yes: rational basis test. Ex post facto only applies to criminal.
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Right to interstate travel: What scrutiny for laws that prevent people from moving into a state, or impose durational residency requirements?
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Strict scrutiny (voting: 50 days max)
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For what classifications is strict scrutiny employed, in the Equal Protection realm?
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1. Race
2. National origin 3. Alienage (non-citizen status) (but not as to law enforcement and government functions) |
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When is intermediate scrutiny applied?
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1. Gender
2. Illegitimacy 3. Undocumented alien children |
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Free speech: What are the types of content-based restrictions, and what level of scrutiny is applied?
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Subject matter restrictions and viewpoint restrictions. Both must meet strict scrutiny.
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Free speech: What level of scrutiny is applied to content-neutral restrictions?
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Intermediate.
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Free speech: what level of scrutiny is applied to prior restraint?
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Strict.
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Free speech: When may govt require a permit or license for speech?
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1. Important reason for licensing, and
2. Clear criteria leaving virtually no discretion. |
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When is a law unconstitutionally vague?
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When a reasonable person cannot tell what speech or conduct is prohibited and what is allowed.
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When can govt regulate expressive conduct (symbolic speech)?
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When it has an important interest unrelated to suppression of the message, and impact on expression is no greater than necessary to achieve the govt's purpose.
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What speech is unprotected or less protected by 1A?
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1. Incitement of illegal activity: when speech is directed to causing imminent illegal activity, and substantial likelihood that it will do so.
2. Obscenity and sexually-oriented speech: 3-part test (next card) 3. Commercial speech (advertising for illegal activity, false and deceptive ads, or ads that inherently risk deception) 4. Defamation (another card) |
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What is the test or obscenity and sexually-oriented speech?
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Govt may prohibit sexual speech if:
1. Material appeals to the prurient interest (local standard); 2. Material is patently offensive, under standards delineated in the obscenity statute; and 3. Material, when taken as a whole, lacks serious redeeming artistic, literary, political, or scientific value (National standard). |
