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84 Cards in this Set
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Federal Judicial Power
[Article 3] Requirements |
(1) Standing
(2) Ripeness (3) Mootness (4) Political Question Doctrine |
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Standing
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**The issue of whether the P is the proper party to bring a matter to the court for adjudication.
Requirements: (1) Injury (2) Causation/Redressibility (3) No 3rd Party Standing (4) No Generalized Grievances |
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Standing: Injury
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P must allege and prove that he or she has been injured or imminently will be injured.
(1) P may only assert injuries they have personally suffered [Sierra Club v. Morton] (2) Ps seeking injunctive relief or declaratory relief must show a likelihood of future harm. [City of LA v. Lyons] |
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Standing: Causation/Redressibility
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P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the injury.
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Standing: No 3rd Party Standing
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P cannot assert claims of others, of 3rd parties, who are not before the court.
EXCEPT: 3rd party standing is allowed if the injured 3rd party is unlikely to be able to assert his own rights. OR An organization may sue for its members if the members would have standing to sue; the interests are germane to the organization's purpose; neither the claim nor relief requires participation of individual members. |
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Standing: No Generalized Grievances
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P must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law
EXCEPT: Taxpayers have standing to challenge government expenditures as pursuant to federal statutes as violating the Establishment Clause [Flask v. Comb] |
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Ripeness
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**Question of whether a federal court may grant pre-enforcement review of statute or regulation.
(a) the hardship that will be suffered without pre-enforcement review (b) the fitness of the issues and the record for judicial review |
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Mootness
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IF events after the filing of a lawfuit end the P's injury, the case must be dismissed as moot.
EXCEPTIONS: **Wrong capable of repetition but evading review **Voluntary Cessation **Class Action Suits |
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Political Question Doctrine
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Refers to constitutional violations that the federal courts will not adjudicate.
(a) "Republican form of government clause" (b) Challenges to the President's conduct foreign policy (c) Challenges to the impeachment and removal process (d) Challenges to partisan gerrymandering |
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Federal Judicial Power
[Article 3] Supreme Court Review |
**All justiciability requirements must be met
Virtually all cases come to Supreme Court by writ of certiorari. **ALL cases from state courts and US Court of Appeals come to the Supreme Court by writ of cert. Appeals exist for decisions to 3-judge federal district courts. S.C. has original and exclusive jurisdiction for suits between state governments **May only hear cases after there has been a final judgment of the highest state court, of a US court of appeals or of a three judge federal district court. **Must not be an independent and adequate state law ground of decision. IF a state court decisions rests on one state law and one federal law and the SC reversal on federal ground will not change the result, SC cannot hear it. |
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Lower Federal Court Review
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**May not hear suits against state governments
**Note: Principle of Sovereign Immunity ***Federal gov't may sue state governments. **Suits against state officers are allowed for injunctive relief, money damages to be paid out of pocket, but NOT if it is the state treasury that will be paying retroactive damages. **Abstention: fed courts may not enjoin pending state court proceedings |
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Principle of Sovereign Immunity
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11th Amendment bars suits against states in federal court.
**Bars suits against states in state courts or federal agencies. [Alden v. Maine] |
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Exceptions Where States MAY be Sued
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(1) Consent: can't be implied, must be explicit
(2) States may be sued pursuant to federal laws adopted under section 5 of 14th Amendment. Congress cannot authorize suits against states under other constitutional provisions. |
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Federal Legislative Power
[Article 1] |
Congress' Authority to Act:
(1) There must be express or implied Congressional power (2) The Necessary and Proper Clause (3) Taxing/Spending Power and the Commerce Power (4) 10th Amendment Limit on Congressional Power (5) Section 5 of 14th Amendment |
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Taxing/Spending Power & The Commerce Power
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Congress may tax and spend for the general welfare:
Commerce Power: (a) May regulate the channels of interstate commerce (b) May regulate the instrumentalities of interstate commerce and persons/things in interstate commerce (c) May regulate economic activities that have a substantial effect |
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10th Amendment Limit on Congressional Power
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States that all powers not granted to the US nor prohibited to the states are reserved to the states or the people
**Congress cannot compel state regulatory or legislative action. [Congress can induce state gov't action by putting strings on grants so long as the conditions are expressly stated and relate to the purpose of the spending program] **Congress may prohibit harmful commercial activity by state gov't. |
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Section 5 of 14th Amendment Congress' Power
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Congress may not create new rights or expand the scope of rights.
**Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constitutional violations. [City of Berney v. Flores] |
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Delegation of Powers
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**No limit exists on Congress' abililty to delegate legislative power.
Legislative vetos and line item are unconstitutional. **For Congress to act, there always must be bicameralism and presentment. The President must sign or veto the bill in its entirety. **Congress may not delegate executive power to itself or its officers. |
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Federal Executive Power
[Article 2] Foreign Policy |
Treaties: Agreements between US and a foreign country that are negotiated by the President and are effective when ratified by the Senate.
**prevail over conflicting state laws **If a treaty conflicts with a federal statute, the one adopted last in time controls **If a treaty conflicts with the US Constitution, it is invalid. |
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Federal Executive Power
[Article 2] Executive Agreements |
An agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation.
**Executive agreements can be used for any purpose **Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution. |
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Federal Executive Power
[Article 2] Domestic Affairs |
(1) Appointment/Removal Power
(2) Impeachment/Removal (3) Absolute Immunity (4) Executive Privilege (5) Pardon Power |
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Domestic Power: Appointment/Removal Power
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Appointment
(1) President appoints ambassadors, federal judges, and officers of the US (2) Congress may vest appointment of inferior officers in the President, the heads of departments, or the lower federal courts. (3) Congress may not give itself or its officers the appointment power Removal (1) Unless removal is limited by statute, the President may fire any executive brand office (2) For Congress to limit removal, it must be an office where independence from the President is desirable AND (3) Congress cannot prohibit removal, it can limit removal to where there is good cause |
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Domestic Power: Impeachment/Removal
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President, VP, federal judges, and officers of US can be impeached and removed from teh office for treason, bribery, or for high crimes and misdemeanors
(a) Impeachment does not remove a person from office. (b) Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires a 2/3 vote. |
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Domestic Power: Absolute Immunity
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President has absolute immunity to civil suits for money damages for any actions while in office.
**NO immunity for actions that occurred prior to taking office. |
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Domestic Power: Executive Privilege
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Presidential papers and conversations, but such privilege must yield to other important government interests
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Preemption
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Supremacy Clause of Article VI provides the Constitution and laws and treaties made pursuant to it are the supreme law of the land.
**Can be express or implied |
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Implied Preemption
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(a) If federal and state laws are mutually exclusive, federal law preempts state law.
(b) If state law impedes the achievement of a federal objective, federal law preempts state law. (c) If Congress evidences a clear intent to preempt state law, federal law preempts state law. |
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Inter-Governmental Immunity
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States may not tax or regulate federal government activity
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Privileges & Immunities Clause of Article IV
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Citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states.
Prohibits discrimination by a state against non-residents **Only fundamental rights protected |
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Privileges & Immunities of 14th Amendment
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Prohibits states from denying their citizens the privileges and immunities of national citizenship.
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Analysis if Law Doesn't Discriminate
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(a) Privileges and Immunities Clause of Article IV does not apply
(b) IF the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceeds its benefits. |
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Analysis if Law Does Discriminate
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(1) If law burdens interstate commerce, it violates the dormant commere clause unless it's necessary to achieve an important government purpose EXCEPT
(a) Congressional Approval (b) Market Participant Exception: state/local gov't may prefer its own citizens in receiving benefits from gov't programs or in dealing with gov't owned business (2) If the law discriminates against out of state with regard to their ability to earn their livelihood, violation of P/I clause unless it is necessary to achieve an important gov't purpose. (a) law must discriminate against out of staters (b) discrimination must be with regard to civil liberties or important economic activities (c) Corporations and aliens cannot use their privileges and immunities clause (d) discrimination must be necessary to achieve an important gov't purpose. |
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State Taxation of Interstate Commerce
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(1) States may not use their tax system to help in-state businesses
(2) A state may only tax activities if there a substantial nexus to teh state. (3) State taxation of interstate business must be fairly apportioned. |
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Full Faith and Credit
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**Courts in one state must give full faith and credit to judgments of courts in another state so long as:
(1) The court that rendered there judgment had jurisdiction over the parties and subject matter (2) Judgment was on the merits (3) Judgment is final |
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Determining Government Action
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Consitution applies only to government action. Private Conduct need not comply with the Constitution.
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Applying Constitutional Norms to Private
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**The 13th Amendment can be used to prohibit private race discrimination
**The commerce power can be used to apply constitutional norms to private conduct **Congress cannot use section 5 of the 14th Amendment to regulate private behavior. EXCEPTIONS: Situations where private conduct must comply with the Constitution (a) public function exception: Constitution applies if a private entity is performing a task traditionally, exclusively done by the government (b) Entanglement Exception: Constitution applies if the gov't affirmatively authorizes |
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Examples of Entanglement Exception
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(1) Courts cannot enforce racially restrictive covenants
(2) There is a state when the government leases premises to a restaurant that raciall discriminates (3) There is state action when a state provides books to schools that racially discriminates (4) There is no state action when a private school that is over 99% funded by the gov't fires a teacher because of her speech (5) There is no state action when the NCAA orders the suspension of a basketball coach at a state university. (6) There is state action when a private entity regulates interscholastic sports within a state (7) There is not state action when a private club with a liquor license from the state racially discriminates. |
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Application of the Bill of Rights
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**Applies directly only to the federal government.
**Applied to state and local governments through its incorporation into the due process clause of 14th Amendment except: (a) 2nd Amendment right to bear arms (b) 3rd Amendment right not have a solider quartered in a person's home (c) 5th Amendment right to grand jury indictment in criminal cases (d) 7th Amendment right to jury trial in civil cases (e) 8th Amendment right against excessive fines. |
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Levels of Scrutiny
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(1) Rational Basis Test
(2) Intermediate Scrutiny (3) Strict Scrutiny |
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Rational Basis
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Must be rationally related to a legitimate government purpose for law to be upheld.
**Challenger of the law has burden of proof. must: (1) no conceivable legit purpose (2) not rationally related |
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Intermediate Scrutiny
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Upheld if substantially related to an important government purpose.
Court wiil look at government actual objective. **Government has burden of proof. **Must show substantial relation to objective. |
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Strict Scrutiny
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Upheld if necessary to achieve a compelling government purpose.
**Objective must be compelling, vital, and crucial. Court will look for actual purpose. **Must be necessary to obtain objective **No less restrictive can achieve **Must be narrowly tailored. *****Gov't usually loses--but gov't bears burden of proof. |
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Procedural Due Process
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Procedures gov't must follow to take away life, liberty, property
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Substantive Due Process
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gov't has adequate reason take away life, liberty, property
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Equal Protection
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Gov't differences in treatment of ppl are adequately justified.
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Deprivation of Liberty
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Occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
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Deprivation of Property
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Occurs if there is an entitlement and that entitlement is not fulfilled.
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Government Negligence in Deprivation for Due Process
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Generally, there must be intentional gov't action or at least reckless action for liability to exist.
However, in emergency situations, the government is liable under due process only if its conduct "shocks the conscience" **Generally, the gov't failure to protect people from privately inflicted harms doesn't deny due process |
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Deprivation of Interest Balancing Test
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(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 gov't interest |
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Economic Liberties
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Only a rational basis test is used for laws affecting economic rights the Constitution provides only minimal protection for economic liberties.
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Takings Clause
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Gov't may take private property for public use if it provides just compensation
IS there a taking?? (a) possessory taking: gov't confiscation or physical occupation of property is a taking (b) regulatory taking:gov't regulation is a taking if it leaves no reasonable economically viable use of the property. **Gov't conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking **A property owner may bring a takings challenge to regulations that existed at the time the property was acquired. **Temporarily denying an owner use of property is not a taking so long as the government's action is reasonable. |
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To Determine a Taking:
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(1) Is there a taking?
(2) IS it for public use? (3) Is just compensation paid? |
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Contracts Clause
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No state shall impair the obligation of contracts.
**Applies only to state or local interference with existing contracts **State or local interference with private contracts must meet intermediate scrutiny (a) Does legislation substantially impair a party's rights under an existing contract? (b) If so, is the law a reasonably and narrowly tailored means of promoting an important and legit public interest? **State or local interference with government contracts must meet strict scrutiny. **ex post facto clause does not apply in civil cases. Retroactive civil liability only need meet a rational basis test. |
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Ex Post Facto
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A law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.
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Bill of Attainder
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Law that directs the punishment of a specific person or persons without a trial.
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Right to Privacy
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**Fundamental right protected under substantive due process.
Includes: (1) The right to marry (2) The right to procreate (3) The right to custody of one's children (4) The right to keep the family together (5) The right to control the upbringing of one's chlidren (6) The right purchase and use contraceptives (7) The right to abortion **The right to privacy protects a right to engage in private consensual homosexual activity. |
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Right to Abortion
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**Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on ability to obtain abortions.
**After viability, states may prohibit abortions unless necessary to protect the woman's life or health. **Gov't has no duty to subsidize abortions or provide abortions in public hospitals **Spousal consent and notification laws are unconstitutional. **Parental notice and consent laws for unmarried minors. A state may require notice and/or consent for an unmarried minor's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide for herself. |
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The right to refuse medical treatment
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**Competent adults have the right to refuse medical treatment, even life saving medical treatment
**State may require clear and convincing evidence that a person wanted treatment terminated before it is ended. **State may prevent family members from terminating treatment for another **No constitutional right to physician-assisted suicide. |
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Right to Travel
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(1) Laws that prevent people from moving into a state must meet strict scrutiny
(2) Durational residency requirements must meet strict scrutiny. (3) Restrictions on foreign travel need meet only the rational basis test. |
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Right to Vote
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**Laws that deny some citizen the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need be on balance desirable
**One person/one vote must be met for all state and local elections **At large elections are constitutional unless there is proof of a discriminatory purpose. **The use of race in drawing election district lines must meet strict scrutiny. **Counting uncounted votes without standards in a presidential election violates equal protection. |
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Equal Protection Analysis
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(1) What is the classification?
(2) What level of scrutiny should be applied? (3) Does this law meet the level of scrutiny? |
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Constitutional Provisions Concerning Equal Protection
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**Equal Protection Clause of 14th Amendment applies only to state and local government
**Applied to the federal government through the due process clause of the 5th Amendment |
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Race/National Origin Classifications
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**Strict Scrutiny
Existence of Racial Classification Proven: (a) 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 Racial classifications benefitting minorities: (a) Strict scrutiny applied (b) Numerical set asides require clear proof of past discrimination (c) Educational institutions may use as one factor in admissions decisions to help minorities (d) Public school system may not use race as a factor in assigning students to school unless strict scrutiny is met. |
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Gender classification
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**Intermediate scrutiny is used
Existence is proven: (a) Classification exists on the fact of the law (b) If the law is facially neutral, proving gender classification requires demonstrating both discriminatory impact and discriminatory intent. Classifications benefiting women: (1) Based on role stereotypes will not be allowed. (2) Gender classifications that are designed to remedy past discrimination and difference in opportunity will be allowed. |
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Alienage Classifications
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**Strict Scrutiny is used.
**Only a rational basis test is used for alienage classification that concern self-government and the democratic process. [voting, jury service, police officer/probation officer/teacher] **Only a rational basis test is used for Congressional discrimination against aliens. **Intermediate scrutiny is used for discrimination against undocumented alien children. |
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Discrimination Against Non-Marital Children
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**Intermediate scrutiny is used
**Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional |
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All other types of discrimination under teh Constitution
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**Rational basis review
(1) Age discrimination (2) Disability discrimination (3) Wealth discrimination (4) Economic regulations (5) Sexual Orientation discrimination |
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First Amendment:
Content-based Restrictions |
Must meet strict scrutiny.
Two type of content based laws: (1) subject matter restriction (application of the law depends on the topic of the message) (2) viewpoint restrictions (application of the law depends on the ideology of the message) |
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First Amendment:
Content-neutral Restrictions |
**Need only meet intermediate scrutiny
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First Amendment:
Prior Restraints |
**Court orders suppressing speech must meet strict scrutiny. 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.
**Gov't can require a license for speech 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. |
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First Amendment:
Vagueness & Overbreadth |
**A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
**A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated. **Fighting words laws are unconstitutionally vague and overbroad |
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First Amendment: Symbolic Speech
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Gov't 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.
Examples: -flag burning: constitutional protected speech -draft card burn is not protected speech -nude dancing not protected speech -burning a cross is protected unless used to threaten -contribution limit in campaign are constitutional but not expense limits **Anonymous speech is protected. **Speech by the government cannot be challenged as violating the First Amendment |
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First Amendment:
Unprotected/Less Protected Speech |
(1) Incitment of Illegal Activity: gov't may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
(2) Obscenity/Sexual Oriented Speech (test) (3) Commerical Speech |
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Obscenity/Sexually Oriented Speech TEST
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(a) Must appeal to the prurient interest
(b) Must be patently offensive under the law prohibiting obscenity (c) taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value. **Gov't may use zoning ordinances to regulate the location of adult bookstores and movie theaters **Child pornography may be completely banned; even if not obscene. **Gov't may not punish private possession of obscene materials; but the gov't may punish private possession of child porn **Gov't may seize the assets of businesses convicted of violating obscenity laws **Profane and indecent speech is generally protected by the First Amendment (except in broadcast media and schools) |
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Commercial Speech
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**Advertising for illegal activity and false/deceptive ads are not protected by the 1st Amendment.
**True commercial speech that inherently risks deception can be prohibited. (a) May prevent professionals from advertising or practicing under a trade name (b) May prohibit attorney in person solicitation of clients for profit (c) May not prohibit accountants from in person solicitation of clients for profit **Other commerical speech can be regulated if intermediate scrutiny is met **Government regulation of commercial speech must be narrowly tailored, but it does not need ot be the least restrictive alternative. |
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Defamation: Public Figure
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If the plaintiff is a public official or running for public office, the P can recover for defamation by proving falsity of the statement and actual malice
**If the P is a "public figure" the P can recover for defamation by proving falsity of the statement and actual malice. |
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Defamation: Private Figure
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IF the P is a "private figure" and the matter is of "public concern, that state may allow the plaintiff to recover for defamation by proving falsity and negligence by the D. However, the P may recover presumed or punitive damages only by showing actual malice.
If the P is a "private figure" and the matter is not of "public concern" the P can recover presumed or punitive damages without showing actual malice |
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First Amendment: Privacy
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(1) The gov't may not create liability for the truthful reporting of info that was lawfully obtained from the govt
(2) Liability is not allowed if hte media broadcasts a tape of an illegally intercepted call, if hte media did not participate in teh illegality and if involves a matter of public importance. (3) Govt may limit its dissemination of information to protect privacy **Speech by gov't employees on the job in the performance of their duties is not protected by the 1st Amendment. **Other gov't restrictions based on the content of speech must meet strict scrutiny. |
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Available Places for Free Speech: Public Forums
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Gov't properties that the gov't is constitutionally required to make available for speech.
(a) Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met. (b) Regulations must be a time, place, or manner regulation that serves an important gov't purpose and leaves open adequate alternative places for communication (c) Gov't regulation of public forums need not use the least restrictive alternative (d) City officials cannot have discretion to set permit fees for public demonstrations. |
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Available Places for Free Speech: Limited Public Forums
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Gov't properties that the gov't could close to speech, but chooses to open to speech. The same rules apply as for public forums
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Available Places for Free Speech: Non-public Forums
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Gov't properties that the gov't constitutionally can and does close to speech. The gov't can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral.
**No 1st Amendment right of access to private property for speech purposes. |
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Freedom of Association
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**Laws that prohibit or punish group membership must meet strict scrutiny.
To punish membership in a group it must be proven that the person: (1) actively affiliated with the group (2) knew of its illegal activities; and (3) had the specific intent of furthering those illegal activities **Laws that require disclosure of groupl membership, where such disclosure would chill association must meet strict scrutiny **Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity. |
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Freedom of Religion: Free Exercise Clause
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**Cannot be used to challenge a neutral law of general applicability
**Gov't may not deny benefits to individuals who quit their jobs for religious reasons |
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Freedom of Religion: Establishment Clause
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Test:
(1) There must be a secular purpose for the law (2) Effect must be neither to advance or inhibit religion (3) There must not be excessive entanglement with religion **Gov't cannot discriminate against religious speech or among religious unless strict scrutiny is met. **Gov't sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups **The gov't may give assistance to parochial schools so long as it is not used for religious instruction. The gov't may provide parents vouchers which they use in parchial schools |
