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79 Cards in this Set

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  • Back
Under Article III, what power does Congress have over the courts?
Congress has the power to limit the appellate jurisdiction of the U.S. Supreme Court and Congress has the power to vest federal judicial power in lower federal courts which it may "from time to time ordain and establish."
What are Congress' restrainst of power over the federal courts?
1. Congress may not restrict original jurisdiction of the Supreme Court

2. Congresss may not give the Supreme Court the right to exercise jurisdiction over matters which are not "cases and controversies."
Can Congress restrict the appellate jurisdiction of the U.S. Supreme Court?
Yes, under Article III of the Constitution Congress has the power to limit the appellate jurisdiction of the U.S. Supreme Court.
Who has the burden when the government infringes upon a fundamental right.?
the goverment has the burden to show that the regulation is unconstitutional.
What is the jurisdiction of the federal courts?
Under Article III Section 2, cases arising under the Constitution, laws and treaties of the US, cases of admiralty and maritime jurisdiction.
What is the general rule for taxpayer standing?
a federal taxpayer has no standing to challenge a federal spending program.
When does a federal taxpayer have standing?
taxpayer has standing to challenge governmental spending when it violates the Establishment Clause of the First Amendment.
Can the government supplement private religious teachers' salary?
No, The Establishment Clause prohibits government conduct which has a primary religious purpose, a primary effect which either advances or inhibits religion or would foster excessive government entanglement with religion.
Can the government financially assist post-secondary religious schools for secular purpose?
Yes, Supreme Court has upheld the grant of public funding for use by by religious and universities when the funds are used for non-religious purposes.
What is Congress' spending power?
Under the spending power, Congress may spend for the general welfare.
What is the Commerce Clause?
Congress may regulate the channels, facilities and instrumenalities of interstate comerce and all activities which in their aggregate might have a significant impact on the national economy.
What is the burden on challenging congressional act under the commerce clause?
Federal government regulation pursuant to the commerce clause is presumed to be valid unless the party challenging the validity of that regulation can show it is not rationally related to any legitimate governemnt interest.
What is "property power?"
Under Article IV, Section 3 of the Constitution provides that "Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States
Under what authority can Congress regulate Washington DC?
Under Article IV Section 3, Congress may regulate all federal propery, which includes DC, and Congress may regulate for the health, safety and general welfare of the resident.
Under what power is the Attorney General?
As a principal officer of the Executive Branch, the AG has the power to decide whether to prosecute or not. Congress may not interfere with core Executive Branch Functions.
Under what authority does Congress have to conduct investigations?
Congress can only conduct investigations on those areas in which the Constitution allows it to legislate.
Can Congress appoint executive officers?
No, Congress may not appoint executive officers, Under Article II. The President appoints ambassadors, Supreme Court Judges and all other Officers of the United States.
Can the President "impound" funds that Congress expresses need to be spent?
The President does not have the right to "impound" funds which Congress has expressly mandated must be spent.
How can Congress delegate powers?
1. the power must be one which Congress may delegate

2. the delegation must contain at least some general guidelines
Can federal government regulate local and state taxes?
Yes, so long as the exercise of federal power is within the scope of an enumerated constitutional power.
Can a state tax be levied against an independent contractor hired by the federal government?
Yes, so long as the tax does not discriminate against the federal government.
What are the factors for determining a state law indirectly violating the supremacy clause?
1. whether there is a need for uniform enforcement on the subject such that state or local regulation should not be allowed.

2. whether the federal regulatory scheme is so pervasive and extensive that no room is left for conflicting or even.

3. whether the existence of the state or local law stands as an obstacle to full accomplishment of the federal
What level scrutiny are aliens?
state or local laws which intentionally discriminate against aliens will generally be struck down as violative of the Equal Protection Clause of the 14th Amendment.
What are the requirements for 3d party standing?
1. special relationship extists between the claimant and the 3rd party

2. it would be difficult, unlikely or impossible for the 3rd party to challenge the government action itself
Explain the right to vote.
The right to vote is a fundamental right, but jursidictions may restrict the right to vote so long as the restriction is necessary to advance a compelling government interest and hte jurisdiction has chosen the least restrictive means of achieving that interest.

Note: residency, age and citizenship have been allowed.
When does your procedural due process rights attach?
The procedural due process protections of notice and timely hearing only attach when the government deprives someone of a protected life, liberty, or property interest.

Note: to establish a protected property interest in a government job, the employee must establish that he or she relied on some oral or written statement that the job is secure.
When does the Fifth Amendment apply to discrimination cases?
When the federal government discriminates in a manner which would raise an equal protection issue, the court will apply the Fifth Amendment Due Process Clause to test the validity of the discriminatory practice.
What levels of scrutiny is applied to illegitimates?
any government action which discriminates against illegitimates must pass the heightened scrutiny test required by the Equal Protection Clause.
Who has the burden when the government discriminates against illegimtates?
The government must that its regulation is substantially related to an important government interest.
Can government restrict alien students from receiving financial aid?
No, in Nyquist v. Mauclet, the Supreme court held denying college financial aid to aliens would not affirm their intent to apply for citizenship and it was an unconstitutional discrimination against aliens.
What is the rule for restricting "running" for political offices?
the right to run for political office is not a fundamental right, state restrictions on canditates are invalid unless they further "vital state objectives" that cannot be achieved in "signficantly less burdensome ways."
What is the exception to "one man, one vote" rule?
Supreme Court has held that this principal does not apply to elections which are held for a limited purpose
What is the Contracts Clause?
Contracts Clause provides that state or local laws which substantially impair existing contract rights will be struck down unless reasonably necessary to achieve a "significant and legitmate public purpose."
When can the government regulate religious conduct.
the government can regulate religious conduct if the interests advanced by the government regulation outweigh the burden imposed on religion.
Who has the burden on time, place or manner of expression?
When the government regulates the time, place or manner of expression (opposed to content of the expression) the burden of proof is on the government to show that the regulation supports an important government interest and is narrowly tailored to achieve that interest
How are content neutral restrictions on speech valid?
1. advance an important government interest independent of the content of expression

2. are narrowly tailored to advance that important interest and

3. allow the speaker reasonable alternative channels of communication.
What is the Brandenburg Test?
Speech which is directed toward and likely to incite imminent lawless action may be prohibited.
What is the level scrutiny for gender?
discrimination on the basis of gender requires a showing that the discrimination is substantially related to a important government interest
What is the exception to strict scrutiny for alienage?
where the federal government is discriminating against aliens, only rational basis test.
What is full faith and credit?
judicial proceedings in one state need to be honored in another state.
What is adequate state grounds in which federal courts will not hear a case?
Adequate state grounds will not hear a case where the state court decision establishes both an adequate and independent state ground upon which the case was decided.
What are the Four Justiciability Doctrines?
1. Standing

2. Ripeness

3. Mootness

4. Political Question
What is standing?
1. injury

2. causation and redressability
What is ripeness?
In order to be ripe there must be a genuine immediate threat of harm
What is Mootness?
if after filing of a lawsuit, the plaintiff is no longer injured, the case is moot.

Ex. Law school applicant was denied and sued under equal protection by the time the case was heard the plaintiff graduated from another law school.
What is the exception to the mootness doctrine?
Where the injury is capable of repetition.

Ex. Roe v. Wade
What is the political question doctrine?
1. claims that a state government is not providing a "republican form of government" as required by the Guaranty Clause of the Constitution or

2. claims asserted by individuals challenging the President's handling of foreign affairs
What is abstention?
a federal court will temporarily abstain from hearing a case where you have an unsettled issue of state law and if:
1. pending state criminal proceedings

2. criminally related civil proceedings (welfare fraud)

3. civil comtempt
What is the president's appointment power?
president can appoint executive offices with the advice of the senate, such as Officers of the US (aagencies, or commission which have administrative)
what are the Presidental removal power?
President may remove purely executive officials
Can Congress appoint inferior officers?
no, Congress cannot appoint inferior officers (Special Prosecutor)
What kind of pardon power does the president have?
President may pardon against offenses against the US federal crimes.
What are the hiearchy of laws?
1. constitution (supreme law of land)

2. treaty/act of Congress

3. Executive Agreement/Executive Order

4. State Law
What is the Dormant Commerce Clause?
Dormant Commerce Clause--state or local law is unconstitutional if it places an undue burden on interstate commerce.
What is a state action?
a threshold requirement of governmental conduct which must be satisfied before private discrimination can be restricted under 14th and 15th Amendment
When has the court found there to be State Action with mainly private conduct?
1. public function (where you have a private entity performing activities traditionally and exclusively carried by the state.

2. Significant state involvement

3. facilitation or encouragement
What is a Bill of Attainder?
Legislative punishment of a named group or individual without judicial trial
How is Procedural Due Process determine?
the procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty or property interest.
What is the balancing test of procedural due process?
to determine if a person should be afforded a hearing the court balances the severity of the deprivation to person against the government interest in administrative efficiency.

The procedural test is

1. the importance of the interest to the individual

2. the ability of additional procedures to increase the accuracy of the fact-finding

3. the government's interest
What are property interest under due process?
a deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled
What is substantive due process?
whether the government has an adequate reason for taking away a person life, liberty or property
What is "Taking?"
private property shall not be taken for public use without just compensation
What constitutes a "Taking?"
1. a confiscation or physical occupation or

2. regulation which leaves the owner no reasonable economically viable use of her land
What is the Test of "Taking?"
1. Is it for public use?

2. Is just compensation paid
What is the fundamental right of privacy?
Strict scrutiny is used.
What does C.A.M.P.E.R mean?
1. contraception

2. abortion

3. Marriage

4. Procreation

5. Procreation

6. Private Education

Note: these are fundamental rights under privacy government cannot restrict without a necessay compelling state interest
What is the undue burden test for abortion?
regulations cannot create an undue burden on a woman's right to abortion before viabilty.
What is the judicial by-pass for abortion?
where states require parental notice or consent they must provide a judicial bypass which allows the minor to go before a judge and show sufficient maturity or that its in her best interest to abort

Note: 24 hours waiting period is not an undue burden

Note: a requirement that abortions be perfromed by licensed physicians is not an undue burden.
How to raise equal a protection action?
to raise a challenge you need a situtation where person similarly siutation are being treated differently

Note: applies to the states through 14th amendment
What does the strict scrutiny apply to under the equal protection analysis?
1. 1st amendment

2. Suspect Classes (R.A.N)
(a) Race
(b) Alienage
(c) National Origin
What is Intermediate level scrutiny?
the law is substantially related to an important interest.
What intermediate scrutiny apply to?
content-neutral regualtion of speech (time, place and manner)
What is rational basis?
burden is on the plaintiff to show that the law is not rationally related to any legitmate interest
What does the rational basis analysis apply to?
1. sexual orientation
2. age
3. wealth
4. mental retardation
5. necessities of life
6. social and economic welfare measures
What is the lemon test?
in order for government regulation to be validthe following must be met:

1. primary purposeof the law is secular

2. Primary effect of the law must neither advance or inhibit religion and

3. the law must not foster excessive government entanglement
How can someone attack a restriction on freedom of speech?
1. overbreadth

2. vaugeness

3. prior restraint

4. unfettered discretion
What is overbreadth?
an over broad statute punishes protected and unprotected speech
What is the test for obscenity?
Material must appeal to the prurient interest in sex (contemporary community standards)

material must depict sexual conduct in a patently offensive way and

the material must lack serious literary, artisictic, political or scientific values (reasonable person standard)
What are the types of of forums?
1. traditional public forum (street, parks)

2. limited public forums (government properties)

3. Non-public forums (jail, airport terminal, office building.