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160 Cards in this Set

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FEDERAL LEGISLATIVE POWER
FEDERAL LEGISLATIVE POWER
*No limit exists on Congress' ability to delegate ___ ___.
legislative power
If an answer says a law is unconstitutional because it is an excess of Congress's delegation powers, it is the ___ answer!
wrong
Legislative vetos and line item vetos are always ____. Why?
Unconstitutional. You must have bicameralism - passage by both the House and Senante and presentment to the President for him to sign or veto the bill in its entirety
The president must sign or veto a bill in its ___.
entirety
Congress may not delegate ___ power to itself or officers.
executive (i.e. the power to enforce the law)
*Q's frequently ask: What is Congress's power to enact or enforce a certain law. Police Authority is the 1.____ answer unless an exception is met. 2.What are these exceptions?
1. wrong 2. MILD Military Indians Land District of Columbia
+What are the five possible ways Congress could have authority to enact or enforce a law? Just name them.
1. Necessary and proper clause 2. Tax/spend for General Welfare (may be called taxing/spending power or general welfare clause) 3. Commerce Power 4. Section 5 of the 14th Amendment 5. Tenth Amendment
The ___ Amendment may act as limit on Congressional Power.
Tenth
+*What does the Tenth Amendment do?
*Basically, Congress cannot compel state regulatory or legislative action. The 10th Amendment states that all powers not granted to the US nor prohibited to the states are reserved to the states or the people. *However, Congress can induce state government action by putting strings on grants so long as the conditions are expressly stated and relate to the purpose of the spending program. Example: LA & 21 drinking age & highway funds. A less tested area of the Tenth Amendment - Congress may prohibit harmful commercial activity by state governments. Example: Federal law prohibited the state of Nevada from selling driver's personal info. Congress was not imposing a duty on the state...it was just prohibiting it from doing something
*What does the General Welfare Clause state?
Congress may tax and spend for the general welfare. It may create any tax it believes will serve the general welfare. This may also be called the taxing/spending power.
*+How/What may Congress regulate pursuant to its COMMERCE POWER?
Congress may regulate: 1.Channels of interstate commerce: i.e. the places where commerce occurs - highways, internet, etc. 2. Instrumentalities of interstate commerce and persons or things in interstate commerce: Instrumentalities are the things that facilitate interstate commerce like phones, trucks, the internet, etc. 3. Congress may regulate economic activities that have a SUBSTANTIAL EFFECT on interstate commerce: If the activity involves a non-economic activity then the "substantial effect" cannot be based on cumulative impact (e.g. remember the holding concerning the Violence Against Women Act)
+++What is Congress' power under section 5 of the 14th Amendment?
Congress may not create new rights or expand the scope of rights, but they may act to prevent or remedy violations of rights recognized by the courts. Such laws must he "proportionate" and "congruent" to remedying constitutional violations.
*+The General Welfare clause will only be the correct answer if the answer deals with ___, ___ or ___.
taxing, spending or the police power
+What does the NECESSARY AND PROPER CLAUSE state?
Congress may take any action to carry out its authority not prohibited by the Constitution.
FEDERAL JUDICIAL POWER *15% of Con Law Q's on MBE
FEDERAL JUDICIAL POWER *15% of Con Law Q's on MBE
What are the 4 requirements for/features of standing?
(1) Injury (2) Causation & redressability (3) No 3rd P Standing (4) No Generalized Grievances Allowed
*What is the significance of the injury requirement for standing? What does it entail both for a regular P & a P seeking injunctive or declaratory relief?
1) Plaintiffs may only assert injuries that they have personally suffered. 2) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm. EXAM TIP: for who has "best standing" Qs → look at Answer choice where P has personally suffered an injury... if more than one, choose P who has suffered an economic loss
*+Standing: A P must have standing. What is standing? What four requirements must be met for a P to have standing?
Standing is the issue of whether the P is the proper party to bring a matter to the court for adjudication. 4 Requirements to have standing: 1. INJURY: P must have personally suffered injury, AND P seeking declaratory or injunctive relief must show a likelihood of future harm (e.g. LAPD chokehold case) 2. NO 3rd PARTY STANDING: P cannot assert claims of 3rd parties (with some exceptions) 3. CAUSATION AND REDRESSABILITY: D caused P's injury and a favorable decision is likely to remedy the injury (e.g. free care to indigents from hospitals) 4. P CANNOT BE SUING SOLELY AS CITIZEN OR TAXPAYER INTERESTED IN HAVING GOV. FOLLOW THE LAW: Exception - Taxpayers have standing to challenge government expenditures pursuant to federal statutes as violating the Establishment Clause - but this exception is very narrow The Establishment Clause refers to the part of the First Amendment that states "Congress shall make no law regarding the establishment of religion." The establishment clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference of one religion over another or the support of a religious idea with no identifiable secular purpose. I think this references the narrow exception that taxpayers can challenge government expenditures if the expenditures prefer one religion or group of religions over another or if the expenditure is made in support in of an idea with no indentifiable secular purpose.
What must P do to show she meets the causation & redressability requirement for standing?
The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to redress the injury (in other words, federal CTs do NOT give advisory opinions)
*+++What is the 1 exception to the generalized grievances prohibition? How restrictive is it?
taxpayers have standing to challenge government expenditures as violating the Establishment Clause.BUT taxpayers lack standing to challenge Fed Gov grants of PROPERTY to religious institutions... taxpayers only have standing to challenge $!!!!
*If a fact pattern says that a person is suing as a "citizen" or a "tax payer" they will generally not have ____.
standing Exception - Taxpayers have standing to challenge government expenditures pursuant to federal statutes as violating the Establishment Clause - but this exception is very narrow
What are the exceptions to when a third party can sue on behalf of another person and have standing to do so?
*1.Close relationship between the P and injured third party (doctor can sue on behalf of patient, father without custody can't sue on behalf of child) 2.Third party can't or is unlikely to be able to assert his own rights 3. Organization may sue for its members if: -members have standing -interests are germane to the organization's purpose -neither claim nor relief requires participation of individual members *most tested of the exceptions
*+TIP: Whenever you have a Con Law question saying the P is seeking a declaratory judgment, consider the ____ issue.
RIPENESS
+Ripeness is the question of whether a federal court may grant ____ review of a statute or regulation. What two issues should you consider?
pre-enforcement -the hardship that will be suffered without pre-enforcement review and the fitness of the issues/record for judicial review.
What must you remember when deciding if someone qualifies for a standing exception?
Qualifies ONLY IF P meets other standing requirements + exception present
+Exceptions where the court will consider a case even though the issue is technically "Moot":
1.Wrong capable of repition but evading review (Roe v Wade) 2. D voluntarily haults the offending behavior but is free to resume it at anytime 3. Class actions suits: Even though a class representative's claim may become moot, court will still consider it so long as 1 member has an ongoing dispute
What is the effect of the mootness restriction?
If events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. P must present a LIVE CONTROVERSY at all stages of the proceeding.
If events after the filing of a lawsuit end the plaintiffs injury the case must be dismissed as ___.
MOOT
P must present a LIVE CONTROVERSY at ____.
all stages of the proceeding.
+++Article 3 of the C defines federal judicial power using "cases & controversies" – how has SC interpreted that phrase?
SC has interpreted as giving limits on judicial power. Those limits = justiciability doctrines
+What is the significance of the political Q restriction? What are the 4 areas it covers?
Allegations of constitutional violations that federal courts will NEVER adjudicate – they are non-justiciable. • Cases under “the republican form of Government” clause • Challenges to President’s foreign policy • Challenges to impeachment and removal process • Challenges to partisan gerrymandering
+What are the 4 Justiciability Requirements (required at all levels)?
(1) P must have standing, (2)Case must be ripe for review, (3) Case must not be moot AND (4) It must NOT be a political Q
If something is challenged because it violates the REPUBLICAN FORM OF GOVERNMENT, it will be ____ as ___.
dismissed non-justiciable
*Can people challenge the President's conduct on foreign policy (e.g. people bringing lawsuits on a treaty or the Vietnam War)?
No. The suit will be dismissed because the issue is non-justiciable.
Challenges to the impeachment or removal process are ___ and will be ___.
non-justiciable, dismissed
Challenges to partisan gerrymandering are also non-justiciable and will be dismissed. What is "partisan gerrymandering"?
When the political party controlling the legislature draws the legislative districts so as the maximize their party's seats.
SUPREME COURT REVIEW
SUPREME COURT REVIEW
All cases from the US Courts of Appeals and state courts come to the Supreme Court by ____.
writ of certiorari (discretionary review)
When is the only time that the SC MUST hear a case?
Appeals from decisions of a three-judge federal district court. These skip the US Court of Appeals and the SC has to hear the case.
The US SC has original and exclusive jurisdiction (this is when the case is initially filed and can only be filed in the US SC) for suits between ______.
state governments
Generally, the SC may hear a case only after there has been a final judgment of the highest state court, a US Court of Appeals or of a three-judge federal district court. This is sometimes called the ____.
Final Judgment Rule
**A person is beaten up by LAPD. The victim sues in a CA state court under federal law and state law and wins. The victim is entitled to recover the same amount under either law but can't recover under both. The police appeal all the way to the USSC. What result?
The USSC can NOT review either the state law claim or the federal law claim because their judgment would not change the victim's award. Even if the USSC reversed the federal issue, the P would still get the exact same recovery under the state law. In broad terms, for the Supreme Court to review a state court decision, there must not be an INDEPENDENT AND ADEQUATE STATE LAW GROUND of decision. If a state court decision rests on two grounds, one state law and one federal law, if the SC's reversal of the fedeal law ground will not change the result in the case, the SC can NOT hear it
SOVEREIGN IMMUNITY
SOVEREIGN IMMUNITY
+Unless an exception applies, Federal and State Courts may not hear suits against the state governments. 1.____ bars suits against state governments in federal court. 2. ___ bars suits against states in state courts and federal agencies.
1. The 11th Amendment 2. Sovereign Immunity
+What are the ONLY four situations where a state government can ever be sued?
1. FEDERAL GOVERNMENT MAY SUE STATE GOVERNMENTS 2. PURSUANT TO LAWS ADOPTED UNDER SEC. 5 OF THE 14TH AMENDMENT (e.g. Title VII): States may be sued pursuant to federal laws adopted under Sec 5 of the 14th Amendment. Congress cannot authorize suits against states under other constitutional provisions like commerce clause or spending power, etc. 3. BANKRUPTCY PROCEEDINGS 4. WAIVER: Waiver must be explicit
When are suits against state officers allowed?
-may be sued for injunctive relief -sued for money damages to be paid out of their own pocket -may NOT be sued if the state treasury will be paying retroactive damages
Treaties are agreements between the US and a foreign country that are negotiated by ____ and are effective when ______.
The President ratified by the Senate
Which prevails? 1. Treaty or conflicting state law? *2. Treaty or conflicting federal law? 3. Treaty or US Constitution?
1. Treaty *2. One adopted last in time controls 3. Treaty is invalid. The US Constitution prevails
What is the difference between an executive agreement and a treaty?
No senate approval is needed for an executive agreement.
Define Executive Agreement.
An agreement between the US and a foreign county that is effective when signed by the Pres and the head of the foreign nation. They can be used for any purpose. Anything done by treaty can be done by exec. agreement.
Which prevails? 1. Executive Agreement or conflicting state law? 2. EA or conflicting federal law? 3. EA or US Constitution?
1. EA *2. Federal Statute 3. Constitution *this is the only one that is different from the treaty
***The president has ___ powers as Commander-in-Chief to use American troops in foreign countries. ____ has something the pres did subject to this power been declared unconstitutional. Even if the use of the troops is outrageous select the answer that says ___ or ___.
very broad, Never, Case dismissed or president wins
The president alone appoints ____,____ and ___. Senate must confirm, but president alone appoints these.
1. Ambassadors 2. Federal Judges 3. Officers of the US
Congress may vest the appointment of _____ in the President, the heads of departments or the lower federal courts. ***However, congress can NOT give ____ the appointment power.
1. inferior officers (those who can be fired by officers of the U.S.) 2. itself or its officers
What is the president's power to remove?
Unless removal is limited by statute, the President may fire any executive branch office. (Think Richard Nixon firing)
+When can Congress limit the power of the President to remove?
For Congress to limit removal, it must be an office where independence from the President is desirable. And then Congress can only limit removal to where there is GOOD CAUSE...it cannot totally prohibit removal.
The President, Vice President, federal judges and officers of the US can be ____ for treason, bribery or for high crimes and misdemenaors.
impeached and removed from office
Does Impeachment remove a person from office?
No. Impeachment alone does not remove a person from office. The House has the sole power to impeach and requires a majority vote. Only if the Senate convicts is the person removed from office. Conviction in the Senate requires a 2/3 vote.
Can the President be sued?
The president can NOT be sued for $ for anything he does while he is President. He has absolute immunity. However, he does not have immunity for actions that occurred prior to his taking office.
Executive Privilege: The President has executive privilege for presidential papers and conversations but the privile must yield to ____.
Other important government interests.Example: US v. Nixon and the Watergate subpoena --> In this case the executive privilige was limited by the need for info in a criminal case
*Who does the President have the power to pardon?
Those accused or convicted of federal crimes. *NOTE: The President may ONLY pardon for federal criminal liability...never civil liability.
*Could O'Bama pardon Bill Clinton for the crimes that led to his impeachment? What about for civil contempt?
No. Impeachment is civil. So is Civil Contempt. President has no power to pardon for civil liability.
FEDERALISM - limits on state and local power because of the existence of federal law or another state's law
FEDERALISM
+What does the Supremacy Clause of Article VI provide for?
Preemption. It provides that the Constitution and laws and treaties made pursuant to it are the supreme law of the land.
How do you find express preemption?
If a statute says that federal law is exclusive then state and local laws are preempted.
If there is a federal law and a state law on a matter & the federal law is silent, but it is impossible to comply with both, then what happens?
The state law is preempted.
*States ___ set environmental standards stricter than federal law unless Congress prohibits it.
can
What if a state law impedes the achievement of a federal objective? Example: FL law that prohibited people from collecting unemployment if they filed a complaint with the National Labor Board.
State law is preempted. In the example, the FL law was preempted
Implied preemption can also be found where...
Congress evidences a clear intent to preempt state law. An example of this is Immigration Laws.
*States may not ___ or ___ federal government activity. This is known as ____.
tax or regulate Inter-governmental immunity
*If a store is on federal land but is privately owned, can the state tax it? If the same store is owned by the government, can the state tax it?
Yes. No. It is unconstitutional to pay a state tax out of the federal treasurery.
+**What does the Dormant Commerce Clause do?
State and local laws are unconstitutional if they place an UNDUE BURDEN on interstate commerce. This is sometimes also called the negative implications of the commerce clause.
What does the Privileges and Immunities Clause of Article IV state?
No state may deny citizens of another state the privileges and immunities it provides its own citizens. Essentially an out-of-state antidiscrimination clause.
+The Privileges and Immunities Clause of _______(as opposed to the P&I Clause of _____) will always be a WRONG answer unless the question involves _____.
the 14th Amendment Article 4 the right to travel
The Privileges and Immunities Clause of Article IV ____ if a law discriminates against out-of-staters.
only applies
Can a law that does not discriminate violate the DCC?
Yes, if the law burdens interstate commerce. Then the test is whether the laws' BURDENS EXCEED ITS BENEFITS. If so, it violates the DCC.
+What should your analysis be for a DCC questions?
Q1: Does the law burden interstate commerce? If yes 2. If no, not a DCC problem. Q2: Does the law discriminate against out-of-staters? No - Then apply balancing test. If its burdens exceed its benefits then it violates the DCC. Yes - It violates the DCC unless it is NECESSARY to achieve an IMPORTANT governmental purpose (i.e. there is no less discriminatory alternative that can still achieve the same objective). Q3: If it violates the DCC under whichever test is applicable (burdens v benefits or necessary/important purpose) then ask if it fits into one of the two exceptions: 1. Congressional Approval 2. Market Participation Exception: A state or local gov. may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned business
Corporations and aliens ___ sue under the DCC. Corporations and aliens ___ sue under the P&I Clause.
Can Can NOT
+What must be present for a law to violate the Privileges and Immunities Clause of Article IV?
1. law must discriminate against out-of-staters 2. The discrimination must be with regard to civil liberties (rarely litigated) or important economic activities (basically a person's ability to earn a livelihood) 3. The discrimination is not NECESSARY to achieve an IMPORTANT government purpose. *there are no exceptions and aliens and corporations cannot use this
+What does the FULL FAITH AND CREDIT clause provide for?
Courts in one state must give full faith and credit to enforce judgments of courts in other states so long as: 1. The court that rendered the judgment had jurisdiction over the parties and subject matter 2. The judgment was on the merits 3. The judgement was final
The Constitutional applies only to ___. ___ need not comply with the constitution unless an exception applies.
governmental action private conduct
+How can Congress apply constitutional norms to private conduct?
1. By a statute created pursuant to the 13th Amendment. The 13th Amendment prohibits slavery and involuntary servitude. Discrimination never violates the 13th Amendment but it can violate a statute created pursuant to the 13th Am. 2. Commerce Power can be used to apply constitutional norms to private conduct. Example: Civil Rights Act of 1964 - prohibits hotels and restauraunts from discrimination on the basis of race.
+1. Congress ___ use section 5 of the 14th Amendment to regulate private behavior. 2. What does section 5 of the 14th Amendment state?
1. can NOT 2. "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." OTHER PROVISIONS OF THE 14TH AMENDEMTN: The 14TH amendment provides a broad definition of citizenship (e.g. CITIZENSHIP CLAUSE) overruling Dred Scott which had excluded slaves and their descendants from possessing Constitutional rights. It also requires states to provide EQUAL PROTECTION under the law to all persons within their jurisdictions and was used to dismantle racial segregation in the United States, as in Brown v. Board of Education. Its DUE PROCESS CLAUSE has been the basis of much important and controversial case law regarding privacy rights, abortion (see Roe v. Wade), and other issues.
1. There ___ state action when a state provides free books to schools that racially discriminate. 2. There ____ state action when a private school that is over 99 percent funded by the government fires a teacher because of her speech.
1. IS 2. IS NOT
*+What are the situations where private conduct must comply with constitution?
*1. Public Function Exception: The Constitution applies if a private entity is performing a task traditionally done by the government *Example: A company that ran a town. 2. The entanglement exception: The Constitution applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity. Example: -Courts canNOT enforce racially restrictive covenants
1. Courts ___ enforce racially restrictive covenants 2. There ___ state action if the government leases premises to a restaurant that racially discriminates
1. Can NOT 2. IS
There ____ state action when the NCAA orders the suspension of a backetball coash at a state university
1. IS NOT
1. There ____ state action when a private entity regulates interscholastic sports within a state 2. There ___ state action when a private club with a liquor license racially discriminates.
1. IS 2. IS NOT
*Common pattern: If the question asks about race discrimination, there is usually ____.
state action
***Government subsidy is ___ for state action to make the constitution apply.
INSUFFICIENT
+The Bill of Rights applies direcly only to the federal government. However, the Bill of Rights is applied to state and local government through its incorporation into the due process clause of the 14th Amendment. So all of the Bill of Rights applies to state and local governments EXCEPT:
1. The Right to Bear Arms - State and local governments can have any gun control they want 2.The Third Amendment right to not have a soldier quartered in a person's home 3. The Fifth Amendment right to grand jury indictment in criminal cases - States don't have to use the grand jury if they don't want to. 4. The Seventh Amendment right to a jury trial in civil cases - state courts don't have to do this 5. The Eight Amendment right against excessive fines - never been a case
*Rational Basis Test
law is upheld if it is RATIONALLY related to a LEGITIMATE government purpose. Challenger has BofP -Legitimate purpose = this just means any conceivable or permissible purpose...so the court does not look to the government's "actual" purpose as it does in intermediate and strict scrutiny -This test is very deferential to the government
*Intermediate Scrutiny
Law is upheld if it is SUBSTANTIALLY related an IMPORTANT government purpose Government has the burden of proof substantially related = sometimes means have to be narrowly-tailored to achieve the objective but does not have to be the "best" way. looks to government's actual purpose
*Strict Scrutiny
Law is upheld if it is NECESSARY to achieve a COMPELLING government purpose Government has BofP Necessary = no less restrictive alternative will achieve the purpose Compelling = vital/crucial looks to governments actual purpose
PROCEDURAL DUE PROCESS
PROCEDURAL DUE PROCESS
What is the "issue" you are determining in a PROCEDURAL DUE PROCESS question?
Has the government deprive a person of life, liberty or property without due process of law?
Is "harm to reputation" a loss of liberty?
Harm to reputation" by itself is NOT a loss of liberty. There must be proof of economic loss
*If an answer in a procedural due process question talks about the _____, it is the wrong answer
rights/privileges distinction
A deprivation of property occurs if there is an ____ and that ___ is not fulfilled.
Entitlement Entitlement *Entitlement = reasonable expectation to continue the receipt of a benefit. It is the new magic word.
Is government negligence sufficient for a deprivation of due process?
Generally, no. There must be some intentional government action or at least reckless action for liability to exist.
In emergency situations the government is liable under due process only if its conduct ____.
"shocks the conscience"
+What are the 3 steps in the balancing test for Procedural DP?
1. Importance of the interest to the individual. 2. Ability of additional procedures to increase the accuracy of the fact-finding. 3. Gov interest in administrative efficiency.
True or False. The governments failure to protect people from privately inflicted harm will never deny due process.
False. Generally, the government's failure to protect people from privately inflicted harm does NOT deny due process. However, if the government creates the danger or a person is in government custody, they do have a duty.
In order to not violate procedural due process, what must there be before welfare benefits can be terminated?
notice and a hearing
What do punitive damage awards require to not violate procedural due process?
Must have instructions to the jury and judicial review Grossly excessive punitive damages will violate due process
In order to not violate due process when social security benefits are terminated, what must there be?
a post cut-off hearing
Does there have to be a hearing for a student to be disciplined in public schools?
No. Only notice of charges and opportunity to explain.
How do you distinguish procedural from substantive due process?
PDP = procedures Gov must follow, whereas SDP looks at whether there is a sufficient substantive justification for Govermental actions
Before parental rights are terminate, there must be ?
notice and a hearing
Pre-judgment attachment or Gov’s seizure of assets - what are the due process requirements?
notice & a hearing, unless exception no innocent owner defense
True or False. An American citizen held as an enemy combatant must be given due process.
True
What due process rights is an American citizen detained as an enemy combatant entitled to?
notice of charges & representation by attorney
TAKINGS
TAKINGS
+What are the 3 Qs are asked for takings situations?
i. Is there a taking? ii. Is it for Gov/public use?(must be or has to be given back) iii. Is just compensation paid?
What are the 2 types of takings?
(1) Gov confiscation or physical occupation, NO MATTER HOW SMALL the property, equals a taking (e.g. cable boxes) (2) regulatory taking – Government regulation is a taking if it leaves no reasonable economically viable use of the property
Can a property owner challenge a regulation as a taking if it was already in place when he purchased the property? I.e. if he knew beforehand & still bought the property?
yes, he may bring a takings challenge to regulations that existed at the time the property was acquired (doesn’t matter that they were already in place & buyer was aware of them)
Is it a taking if it only last for a limited period of time?
Temporarily denying an owner use of property is not a taking so long as the Gov's action is reasonable
What is the remedy for a takings (2 options) & how is it measured?
i. Pay just compensation ii. Terminate the regualtion & pay damages *** compensation measured by LOSS TO THE OWNER & NOT GAIN to the taker... = no compensation for worthless property
SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION
SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION
+1. What 2 areas is SDP used in? 2. How do you distinguish SDP from EQUAL PROTECTION?
(1) To protect economic liberties (2) To protect privacy 2. SDP - limits liberty of all persons to engage in some activity EP - law treats a person or class of persons differently
What is the difference between procedural due process and substantive due process?
PDP = procedures Gov must follow, whereas SDP looks at whether there is a sufficient substantive justification for Govermental actions
Privacy is a fundamental right - what are the 9 privacy categories that are protected by SDP & the 1 highlighted as not being protected?
(1) RT to marry (2) RT to procreate (3) RT to custody of one's children (4) RT to keep the family together (housing) (5) RT to control the upbringing of one's children (6) RT to purchase & use contraceptives (7) RT to abortion (undue burden test) (8) RT to engage in private consensual homosexual activity (9) RT to refuse medical treatment BUT NO RT to physician - assisted suicide
What level of scrutiny do fundamental rights receive?
Strict Scrutiny - necessary to protect a compelling Gov interest
+Under EP, what classifications are suspect? What are quasi-suspect?
Suspect = race, national origin, sometimes alienage Quasi-suspect = gender, legitimacy
*Besides the privacy categories, what other fundamental rights receive strict scrutiny under SDP analysis?
• interstate travel • Voting (besides residence, age, & citizenship, dilution & restrictions are invalid & subject to strict scrutiny) • 1st Amendment RTs
*How is the existence of a racial classification proven?
a. The classification exists on the face of the law. b. If law is facially neutral, proving a racial classification requires demonstrating both discriminatory IMPACT and discriminatory INTENT.
How racial classifications benefiting minorities are treated: What level of scrutiny is applied & in what 3 ways must we recognize it for the exam?
Strict scrutiny is applied i. Numerical set-asides require clear proof of past discrimination. ii. Educational institutions may use race as one factor in admissions. iii. Seniority systems may not be disrupted for affirmative action.
How are gender classifications in a law shown?
Shown in the same 2 ways as for racial classifications (on face or impact + intent)
What will & will not be allowed for gender classifications in the law?
a. Gender classifications benefiting women but based on role stereotypes = NOT allowed. b. Gender classifications designed to remedy past discrimination & differences in opportunity = allowed
***What is at issue in the Alienage Classifications? What level of scrutiny is applied?
discrimination against non-citizens Strict Scrutiny (but this is subject to exceptions)
+What are some examples of unconstitutional alienage classifications?
-Only US citizens could receive welfare benefits -Only US citizens could hold civil service jobs -Only US citizens could take bar & practice law
+What are 3 areas where less than strict scrutiny is applied to alienage classifications?
-RB test for alienage classifications that concern self-government & the democratic process. -RB test is used for Congressional discrimination against aliens. -intermediate scrutiny discrimination against undocumented alien children.
+What are the 5 areas of Equal Protection that only merit RB Test review?
1. Age discrimination (often involves challenges to Gov retirement law & Gov always wins) 2. Disability discrimination (zoning ordinance that prevented home for mentally ill - Gov lost under RB) 3. Wealth discrimination (poverty does NOT = suspect classification) 4. Economic regulations (e.g. pushcart vendors in New Orleans) 5. Sexual orientation discrimination CLUE: SAWED - Sexual Orientation, Age, Wealth, Economic, Disability
What residency requirements are valid (2) & which ones are invalid (3)?
Valid • 30 days to vote in a state • 1yr residency to get divorced Invalid • 1yr residency to receive full welfare benefits • 1yr to receive state subsidized medical care • 1yr to vote in a state
FIRST AMENDMENT
FIRST AMENDMENT
+What levels of scrutiny are applied to content-based vs. content-neutral statutes under the 1st A?
Content-based restrictions on speech generally = strict scrutiny Content-neutral = intermediate scrutiny
+What are the 2 types of content-based restrictions on speech?
i. subject matter restrictions ii. viewpoint restrictions
What level of scrutiny must a court order restricting speech meet?
Strict Scrutiny
What must a person not do if he wants to challenge the CT order?
• Procedurally proper court orders must be complied with until they are vacated or overturned. • A person who violates a court order is barred from later challenging it. So a person wanting to challenge a court order should not violate it before it is overturned.
+Can the government require a license for speech?
• Yes - ONLY IF there is an important reason for licensing and clear criteria leaving ALMOST NO discretion to the licensing authority. • Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses AND judicial review.
When are laws regarding speech invalid for vagueness and/or for overbreadth?
A law is unconstitutionally VAGUE if a reasonable person cannot tell what speech is prohibited and what is allowed. NOTE: "Fighting Words" laws are ALWAYS unconstitutionally vague & overbroad A law is unconstitutionally OVERBROAD if it regulates substantially more speech than the Constitution allows to be regulated.
*Can the Gov regulate conduct that = symbolic speech? *Look this up
= can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
Of the following types of speech, which ones are and are not constitutionally protected speech under the 1st A: Flag Burning, Anonymous Speech, Contribution Limits in Election Campaigns, Draft-card burning, Nude Dancing, Burning a cross
• Flag-burning = C protected speech • Anonymous Speech = protected • Contribution Limits in election campaigns = constitutional • Draft-card burning NOT = protected speech • Nude Dancing NOT = protected speech • Burning a cross = PROTECTED UNLESS it’s done w/ intent to threaten • Gov has interest in preventing A&B [?what does this mean?]
Are "fighting words" laws unconstitutional?
"Fighting Words" laws are ALWAYS unconstitutionally vague & overbroad
+WHAT 4 TYPES OF SPEECH IS UNPROTECTED OR LESS PROTECTED BY THE 1ST AMENDMENT?
1. Incitement of illegal activity. 2. Obscenity and sexually-oriented speech. 3. Commercial speech 4. Defamation
When may Gov punish inciteful speech?
May punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
What is the 3 part test for determining whether something qualifies as obscene?
MUST meet ALL of these requirements: (1) The material must appeal to the prurient interest (a shameful or morbid interest in sex) (2) Material must be patently offensive under the law prohibiting obscenity (ANY law must delineate which depictions would qualify as patently offensive) (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (value determined by a NATIONAL standard & NOT a local value)
***In what 2 cases may the Government use zoning orinances to regulate the location of what some percieve as obscene activity/expression?
Government may use zoning ordinances to regulate the location of adult bookstores and movie theaters.
How does the law treat child pornography? Can it meet the 3 part test? What if it is simulated child porn?
• Child pornography may be banned EVEN IF the material does not meet the test for obscenity • unconstitutional to bar computer generated images or stuff that features child-like looking adults • If no children used in the production, then cannot be DEEMED child pornography
Can the Gov punish you for possession of materials that meet the 3 part test for obscenity?
Gov may not punish a person for having obscene material (= private possession) UNLESS it's child pornography (compelling Gov interest in drying up mkt for kiddie porn)
What happens if a business violates the obscenity laws?
Gov may seize the assets of businesses convicted of violating obscenity laws.
What about profanity & indecent speech? Protected?
Profane and indecent speech is generally protected by the 1st Amendment.
What if the Government only found 7 obscene items in a store?
Gov could destroy the contents of the whole store
Why can a Gov not prohibit profane speech? What about if it is sent over the internet?
Gov could destroy the contents of the whole store
Why can a Gov not prohibit profane speech? What about if it is sent over the internet?
• To censure words is to censure ideas & Gov cannot cleanse English language • Gov cannot make it a crime to send indecent material over internet
What are the 2 Exceptions to the Gov's ability to regulate/limit profane or indecent speech?
i) over the broadcast media ii) in schools
Are advertisements protected by the 1st A?
Yes EXCEPT false & deceptive ads are not protected.
What if the advertisement is technically true but carries w/ it inherent risks of being misleading? 3 categories where this comes up - what are they & what is the result?
True commercial speech that inherently risks deception can be prohibited. i. May prevent professionals from advertising or practicing under a trade name. ii. May prohibit attorney, in-person solicitation of clients for profit (offer of free services & mailings are both OK) iii. May NOT prohibit accountants from in-person solicitation of clients for profit.
+What level of scutiny for commercial speech?
intermediate Gov regulation must be narrowly tailored, but it does not need to be the least restrictive alternative.