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;
179 Cards in this Set
- Front
- Back
|
Judiciability Doctrine (4)
|
- standing
- mootness - ripeness - poltical question |
|
|
Standing
|
P must prove injury and a favorable court decision would likely remedy
|
|
|
Exceptions to 3P standing (3)
|
- close relationship with P
- injured party unlikely to be able to assert rights - organizations |
|
|
Organizations (3)
|
- members have standing to sue
- interests are germane to the organization - neither the claim nor relief requires participation of individual |
|
|
Generalized Grievance?
|
P must not be suing solely as a citizen or as a taxpayer in having the govt follow the law
|
|
|
Exception to TP Standing
|
TP have standing to challenge government expenditures as persuant to FED STAT as violating the Establishment Clause
|
|
|
Definition of Ripeness
|
question of whether a federal court may grant pre-enforcement review (hardship)
|
|
|
Definition of Mootness
|
if events after the filing of a lawsuit end the P's injury, the case must be dismissed as moot
|
|
|
Exception to Mootness (3)
|
- wrong capable of repitition yet evading review
- voluntary cessation - class action (so long as one member still sustains injury) |
|
|
Political Question Definition
|
refers to the consitutional violations that the federal courts will not adjudicate
|
|
|
Political Questions (4)
|
- "republican" form of govt
- challenges to the President's conduct of foreign policy - challenges to impeachment and removal process - challenges to PARTISAN gerrymandering |
|
|
How to get to the SCT (3)
|
- from state courts through writ of cert
- US Ct of appeals through writ of cert - appeals exist for decisions of 3 judge district courts |
|
|
Double Law Doctrine
|
SCT will not hear a case which is based on Fed and State law if the decision of the State law serves the complete purpose
|
|
|
Sovereign Immunity (2)
|
- 11 AMD bars suits against states in fed ct
- sov immun bars suits against states in state courts of fed agencies |
|
|
Four Ways to Sue the State
|
- waiver (explicit)
- states may be sued pursuant to fed laws adopted under 14AMD:5 - fed govt may sue states - bankruptcy proceedings |
|
|
Suits Against State Officers (3)
|
- injunctive relief
- money damages paid out of own pockets - not sued if the state treasury will pay damages |
|
|
Abstention
|
Fed Cts may not enjoin pending state court proceedings
|
|
|
Federal Police Power (MILD)
|
- military
- indian reservations - lands (federal) - DC |
|
|
What does the "necessary and proper clause" mean
|
govt can use any means not prohibited by the Const to do its business
|
|
|
Taxing and Spending Power
|
Congress may tax and spend for the general welfare (anything)
|
|
|
Commerce Power (3)
|
- may regulate channels of interstate commerce
- may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce - congress may regulate economic activities that have a substantial effect on interstate commerce (in the area of non-economic activity, a substantial effect cannot be based on cumulative impact) |
|
|
10AMD as a limit to Cong. Power
|
all powers not granted to the the US, nor prohibited to the states, are reserved for the states or the people
|
|
|
Congress' Power under 14AMD:5
|
Congress mahy not create new rights or expand the scope of rights - it may act only to prevent or remedy violations or rights recognized by the courts and such laws must be proportionate and congruent to remedying const violations
|
|
|
Limit on Congress' ability to delegate legislative power
|
None
|
|
|
Limit on Congress' ability to delegate executive power to itself or its officerrs
|
May NOT
|
|
|
Senate Approval for Treaties and EA
|
EA - no
T - yes |
|
|
Conflicts with State Law for Treaties and EA
|
EA - controls
T - controls |
|
|
Conflicts with Federal Statute for Treaties and EA
|
EA - fed statute controls
T - last in time |
|
|
Conflicts with Constitution for Treaties and EA
|
EA - Const Controls
T - Const Controls |
|
|
Appointment Power (3)
|
- Pres appts ambassadors, federal judges, and officers of the US
- Cong may vest appt of inferior officers in the Pres, the heads of departments, or the lower federal courts - Cong may not give itself or its officers appt power |
|
|
Limits to Removal Power (2)
|
- officer must have independence
- can limit removal for good cause where it cannot prohibit removal |
|
|
What is Exec Privilege
|
Pres has exec priv for presidential papers and conversations, but such privilege must year to other important govt interests
|
|
|
Supremacy Clause
|
Supremacy Clause of Art VI provides that the Const and laws and treatises made pursuant to it, are supreme law of the land
|
|
|
Express Preemption
|
Federal Law says it is exclusive in that area
|
|
|
Implied Preemption (3)
|
- if fed and state laws are mutually exclusive, fed law preempts state law
- state law impedes the achievement of a federal objective, fed law preempts - if Congress evidences a celar intent to preempt state law, fed law controls |
|
|
Can States ineact laws for stricter environmental standards?
|
yes
|
|
|
Intra-governmental Immunity (Tax)
|
States may not tax or regulate federal govt activity (state tax paid by fed treasury)
|
|
|
Dormant Commerce Clause (GR)
|
States cannot pass laws which unduely burden interstate commerce
|
|
|
Privil AND Immunities Clause of Art IV (GR)
|
No state may deny citizens from other states rights
|
|
|
Privil OR Immunities Clause of 14AMD
|
Always a wrong answer unless related to right to travel (welfare)
|
|
|
DCC/PI if law does NOT discriminate (2)
|
- P AND I clause of Art IV does not apply
- if the law burdens interstate commerce, it violates the DCC if its burdens exceed benefits |
|
|
DCC/PI if law DOES discriminate (2)
|
- if burdens interstate commerce, it violates the DCC unless it is necessary to achieve an IMPT GOVT PURPOSE
- violates P&I clause unless it is necessary to achieve an IMPT GOVT PURPOSE |
|
|
P&I v DCC
Discrimination |
DCC - does not require
P&I - does |
|
|
P&I v DCC
Burden |
DCC - requires a burden on interstate commerce
P&I - requires discrimination with regard to civil liberties or important economic interests |
|
|
P&I v DCC
Corporations & Aliens |
DCC - can sue
P&I - cannot sue |
|
|
P&I v DCC
Exceptions |
DCC - Congressional approval and the market participant exception
P&I - none |
|
|
State taxation on interstate commerce (3)
|
- may not use taxes to help in-state business
- may only tax activities with a substantial nexus to the state - interestate businesses must be apportioned |
|
|
Requirements for Full Faith and Credit to Attach (3)
|
- court had personal and subject matter juris
- judgment was on its merits - judgment is final |
|
|
May Congress by statute apply constitutional norms to private conduct?
|
yes
|
|
|
The 13AMD applies ONLY to
|
slavery
|
|
|
Example of how Commerce Power can be used to apply Const Norms to Pvt Conduct
|
motel and restaurant segregation
|
|
|
May Congress use 14AMD:5 to regulate private behavior?
|
No
|
|
|
Two exceptions where pvt conduct must comply with the Const
|
- public function exception
- entanglement exception |
|
|
Public Function Exception
|
Const applies if a pvt entity is performing a task traditionally, exclusively done by govt (company town)
|
|
|
Entanglement Exception
|
Const applies if the govt affirmatively authorizes, encourages, or facilitates unconst activity
|
|
|
Entanglement Exception
Can courts enforce racially restrictive covenants? |
no
|
|
|
Entanglement Exception
Is there a state action when the govt leases premises to a restaurant that racially discriminates? |
yes
(pkg garages) |
|
|
Is there state action when state provides books to private schools which racially discriminate?
|
yes
|
|
|
Is there state action when a pvt school is 99% funded by the govt and fires a teacher over free speech
|
no
|
|
|
Is there state action when the NCAA orders the suspension of a basketball coach at a state university?
|
no
(NCAA is a national org) |
|
|
Is there state action when a pvt entity regulates sports within a state?
|
yes
(TN athletic assn) |
|
|
Is there state action when a private club with a liquor license racially discriminates?
|
no
(Moose Lodge) |
|
|
Does the Bill of Rights apply ONLY to the Fed Govt?
|
yes
|
|
|
5 exceptions to the Bill of Rights when applied to the states via the due process clause of 14AMD
|
- 2AMD right to bear arms
- 3AMD soldier quartering - 5AMD right to grand jury indictment in criminal cases - 7AMD right to jury trial in civil cases - 8AMD right against excessive fines |
|
|
RATIONAL BASIS TEST
- MEANS - ENDS - LEAST REST ANAL - BURDEN OF PF |
- rationally related
- legitimate conceivable purpose - no analysis - P has BoP |
|
|
INTERMEDIATE SCRUTINY TEST
- MEANS - ENDS - LEAST REST ANAL - BURDEN OF PF |
- substantially related
- important actual purpose - no analysis - govt has BoP |
|
|
STRICT SCRUTINY
- MEANS - ENDS - LEAST REST ANAL - BURDEN OF PF |
- necessary
- compelling actual purpose - least rest analysis - govt has BoP |
|
|
Rational Basis Test
|
rationally related to a legitimate government purpose
|
|
|
Intermediate Scrutiny
|
substantially related to a compelling government purpose
(narrowly tailored) |
|
|
Strict Scrutiny
|
necessary to achieve a compelling government purpose
(narrowly tailored AND least restrictive act) |
|
|
Two types of due process
|
- substantive
- procedural |
|
|
Procedural Due Process
|
remedy is procedure
|
|
|
Definition of Deprivation of Liberty
|
deprivation of liberty occurs if there is the loss of a significant freedom provided by the constitution or a statute
|
|
|
What is a deprivation of liberty?
|
loss of a significant freedom provided by the Const or Statute
|
|
|
Is harm to reputation a loss of liberty?
|
No
|
|
|
What is a deprivation of property?
|
there is an entitlement and that entitlement is not filled
|
|
|
Is govt negligence sufficient for a deprivation of due process?
|
no, must be reckless
|
|
|
When is a government liable to a violation of due process in an emergency situation?
|
only when it does an act which shocks the conscience
|
|
|
Does the failure of the govt to protect people from private harm deny due process?
|
no
|
|
|
What procedures are required to ensure procedural due process (3)
(Balance Test) |
- the importance of the interest to the individual
- the ability of additional procedures to increase the accuracy of fact finding - government's interests |
|
|
Can the govt seize a car owned by two people if only one committed the crime?
|
yes
|
|
|
Before or After?
Welfare termination |
before
|
|
|
Before or After?
termination of ss disability |
after
|
|
|
Before or After?
custody termination of parents |
before
|
|
|
Before or After?
govt seizure of assets |
before
|
|
|
is a US citizen charged as an enemy combatant, in the US, subject to due process?
|
yes
|
|
|
Which test is used for laws affecting economic rights?
|
rational basis
|
|
|
Define Takings Clause
|
govt may take private property for public use if it provides just compensation
|
|
|
If the govt requires a cable box (1 sq foot) on a building, is that a taking?
|
yes
|
|
|
Two types of taking
|
- possessory
- regulatory |
|
|
Possessory Taking
|
govt confiscation or physical occupation of property
|
|
|
Regulatory Taking
|
govt regulation is a taking if it leaves no reasonable economically viable use for the property
|
|
|
Are moratoriums on development a taking?
|
no
|
|
|
May a property owner bring a takings challenge to regulations which existed at the time the property was acquired?
|
Yes
|
|
|
What two elements are required for the government to use the takings clause?
|
- public use
- fmv to the owner (gain to govt is irrelevant) |
|
|
Contracts Clause and its application
|
No state shall impair the obligations of contracts - applies only to STATE and LOCAL interference with EXISTING contracts
|
|
|
What scrutiny should State or Local interference with private contracts be looked at?
|
strict (impair rights, narrowly tailored)
|
|
|
9 Fundamental Rights under Privacy
|
- right to marry
- right to procreate - right to custody of own children - right to keep family together - right to control upbringing - right to purchase and use contraceptives - right to an abortion - right to engage in private, consensual, homosexual activity - right to refuse medical treatment (but not suicide) |
|
|
Three Issues for Right to Refuse Medical Treatment
|
- competent adult
- clear and convincing evidence - state may prevent family members from termination of treatment of another |
|
|
Right to Travel (3) laws
|
- prevent people moving into a state (strict scrutiny)
- durational residency requirements (strict scrutiny) - restrictions on foreign travel (rational basis) |
|
|
Right to Vote (15 AMD) (5)
|
- denying right must meet strict scrutiny (but may prevent fraud)
- one-person one-vote - at-large elections ok unless pf of discriminatory purpose - use of race in drawing election districts must meet strict scrutiny - counting uncounted votes without standards in a pres election violated EP |
|
|
Is there a fundamental right to education?
|
no
|
|
|
Rights Triggering Strict Scrutiny (11)
|
- marry
- procreate - custody of children - keep family together - control raising of children - purchase and use contraceptives - right to travel - right to vote - freedom of speech - freedom of association - free exercise of religion |
|
|
Rights triggering "undue burden" test (1)
|
abortion
|
|
|
Not a fundamental right - rational basis review (3)
|
- right to practice a trade
- right to physician-asst suicide - right to education |
|
|
Level of scrutiny unknown (3)
|
- homosexual activity
- refuse medical treatments - possess firearms |
|
|
Three steps in approaching an EP question
|
- what is the classification
- what level of scrutiny should be applied - does this law meet that level of scrutiny |
|
|
Does the 14AMD apply only to state and local governments?
|
yes
|
|
|
Is EP applied to the federal govt through the due process clause of the 5AMD
|
yes
|
|
|
Suspect Classes (2)
Strict Scrutiny |
- race
- national origin |
|
|
How is existence of a racial classification proven? (2)
|
- classification exists on face of law OR
- if the law is facially neutral it requires demonstrating BOTH discriminatory impact and discriminatory intent |
|
|
Which level of scrutiny should apply to racial classifications benefiting minorities?
|
strict scrutiny
|
|
|
Do numerical set-asides require clear proof of past discrimination?
|
yes
|
|
|
How may educational institutions use race in factoring admissions?
|
look at totality
|
|
|
May public school systems use race as a factor in assigning students to school if they do not use strict scrutiny?
|
no
|
|
|
Quasi-suspect Classes (2)
Intermediate Scrutiny |
- gender
- bastards |
|
|
How is existence of gender classification proven (2)?
|
- classification exists on face of law
- if facially neutral, proving a gender classification requires demonstrating impact and discriminatory intent |
|
|
How should gender classifications benefitting women be treated?
|
- classifications on role stereotypes will not be allowed
- if they are designed to remedy past discrimination (SS calc) will be allowed |
|
|
Is strict scrutiny, generally, used in alienage classifications?
|
yes
|
|
|
Rational basis test is applied to alienage that concern self-gov and the democratic process - (5)
|
- voting
- jury duty - being a police officer - being a teacher - being a probation officer |
|
|
Which test is used for Congressional discrimination against aliens?
|
rational basis
|
|
|
What level of scrutiny is used for discriminating against illegal-alien children?
|
immediate scrutiny
(may not make illegal aliens pay for education) |
|
|
Level or scrutiny for bastards?
|
intermediate
|
|
|
Are laws that deny a benefit only to bastards constitutional?
|
no
|
|
|
Is a law requiring paternity to be established during life of father ok?
|
yes - prevents fraud
|
|
|
Rational Basis is used for (5)
|
- age discrimination (mandatory retirement)
- disability - wealth discrimination (poverty is not a suspect class) - economic regulations - sexual orientation discrimination |
|
|
Three Part Test for EP
|
- what is the classification
- what is the level of scrutiny - does the law meet the level of scrutiny |
|
|
Scrutiny level for content-based speech restrictions
|
strict scrutiny
|
|
|
Scrutiny level of content-neutral speech restrictions
|
intermediate
|
|
|
Two types of content-based laws
|
- subject matter (message)
- viewpoint (application of law depends on ideology of msg) |
|
|
If you violate a court order, may you challenge it later?
|
no
|
|
|
Judicial orders stopping speech before it occurs must meet what level of scrutiny?
|
strict
|
|
|
Are gag orders on press for pretrial criminal cases constitutional?
|
no
|
|
|
When may the govt require a license for speech (2)
|
- clear criteria with no room for interpretation
- prompt determination of requests for licenses and judicial review |
|
|
Vagueness
|
a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited
|
|
|
Overbreadth
|
a law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
|
|
|
May the Govt Regulate Symbolic Speech?
|
yes, if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than to achieve the govt's purpose
|
|
|
Is flag burning allowed?
|
yes
|
|
|
When is cross-burning allowed?
|
so long as it is not done to threaten
|
|
|
In anonymous speech protected?
|
yes
|
|
|
What speech is unprotected (or less protected) by the 1AMD (4)
|
- incitement of illegal activity
- obscenity - defamation - commercial speech |
|
|
What is needed for the govt to punish speech for incitement of illegal activity (2)
|
- substantial likelihood of imminent illegal activity
- speech is directed to causing imminent illegality |
|
|
Three part test for obscenity
|
- material must appeal to the prurient interest (local std)
- material must be patently offensive under the law prohibiting obscenity - taken as a whole, the material has no artistic, literary, political, or scientific value (national std) |
|
|
May the government use zoning ordinances to regulate the location of adult bookstores?
|
yes
|
|
|
May government punish possession of obscene materials?
|
no
|
|
|
May the government seize the assets of businesses convicted of obscenity laws?
|
yes - 9MM seizure !
|
|
|
What two forums will profane speech be limited?
|
- schools
- over the broadcast airwaves |
|
|
Is advertising for illegal activity or false and deceptive ads not protected by 1AMD?
|
yes
|
|
|
What type of commercial speech can be readily prohibited?
|
that which inherently risks deception
|
|
|
Other than false or misleading speech, what level of scrutiny is used for commercial speech?
|
intermediate
|
|
|
Government regulation of commercial speech must be (2)
|
- narrowly tailored
- does NOT need to be the least restrictive alternative |
|
|
Defamation
Public Official |
- falsity
- actual malice |
|
|
Defamation
Public Figure |
- falsity
- actual malice |
|
|
Defamation
Private figure - Public Concern |
- falsity and negligence
- if malice than punitives |
|
|
Defamation
Private figure - Private concern |
- unclear (negligence)
- punitives without malice |
|
|
Defamation
Private figure - Public Concern |
- falsity and negligence
- if malice than punitives |
|
|
Defamation
Private figure - Private concern |
- unclear (negligence)
- punitives without malice |
|
|
May the govt create liability for the truthful reporting of information that was lawfully obtained by the govt?
|
no - rape victim name publishing is OK
|
|
|
Is a broadcaster liable if he plays an illegally recorded tape?
|
no
|
|
|
Are govt employees covered by 1AMD?
|
no
|
|
|
In general, what level of scrutiny applies to content-based restriction?
|
strict scrutiny
|
|
|
Public Forums
|
govt properties that the govt is constitutionally required to make available for speech (sidewalks, park)
|
|
|
Limited Public Forums
|
govt properties that the govt could close to speech but chooses to open to speech (schools)
|
|
|
Non-Public Forums
|
govt properties that the govt constitutionally can and does not open to speech (military bases, outside prisons and jails, advertising space on busses, sidewalks at post office, airports)
|
|
|
Public Forums
- Sub Matter Neutral? - Viewpoint Neutral? - Method of Regulation? - Interest Required? |
- yes
- yes - time, place, or manner - important |
|
|
Limited Public Forums
- Sub Matter Neutral? - Viewpoint Neutral? - Method of Regulation? - Interest Required? |
- yes
- yes - time, place, or manner - important |
|
|
Non-Public Forums
- Sub Matter Neutral? - Viewpoint Neutral? - Method of Regulation? - Interest Required? |
- no
- yes - reasonable - legitimate |
|
|
Scrutiny level for laws that prohibit or punish group membership?
|
strict
|
|
|
To punish membership in a group i must be proven (3)
|
- actively affiliated with the group
- knowing of its illegal activities - with the specific intent of furthering those illegal activities |
|
|
Scrutiny level for laws that require group membership disclosure, where such disclosure might chill association?
|
strict
|
|
|
Laws that prohibit a group from discriminating are constitutional unless...
|
they interfere with intimate association or expressive activities (KKK, Nazi)
|
|
|
May the free exercise clause be used to challenge a neutral law of general applicability?
|
No - peyote
|
|
|
May the govt deny benefits to individuals who quit their jobs for religious reasons?
|
no
|
|
|
What the establishment clause does
|
no law will prohibit religion
|
|
|
Lemon test to determine if the establishment clause is violated (3)
(SEX) |
- must be a secular purpose for the law
- effect must neither advance or prohibit religion - there must not be excessive entanglement with religion |
|
|
What level of scrutiny if the govt tries to discriminate against religious speech?
|
strict
|
|
|
Is government sponsored religious activity in public schools unconstitutional?
|
yes
|
|
|
Must religious student and community groups have same access to school facilities?
|
yes
|
|
|
When may the govt give assistance to parochial schools?
|
so long as it is not used for religious instruction
|
