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54 Cards in this Set
- Front
- Back
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Requirements for Case/Controversy
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(1) Standing
(A) P been or will be imminently injured (B) Causation & redressability (C) No 3rd Party Standing (I) Close relationship between P and 3rd party (II) 3rd party unlikely to be able to assert rights (III) Organization can sue for its members (injury to member related to organizations purpose & relief does not require member participation) (D) No generalized grievances (2) Ripeness - pre-enforcement review (A) hardship suffered without review (B) fitness of issues and record (3) Mootness (A) Wrong capable of repition but evading review (B) Voluntary cessation but free to resume (C) Named P in class action (4) Political question (A) Republican form of Government (B) President's conduct of foreign policy (C) Challenges to impeachment and removal process (D) Challenges to partisan gerrymandering |
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Supreme Court review
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(1) Writ of Certiorari
(A) All cases from state courts (B) All cases from court of appeals (C) Appeals from 3 judge district court (D) Original and exclusive jurisdiction for suits between states (2) Final judgment rule (3) No independent and adequate state law ground for decision |
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11th Amendment Limits on Federal Courts
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11th Amendment - bars private party/foreign government claim against a state when
(1) Action against state for damages (2) For injunctive or declaratory relief where state is the named party (3) Retroactive damages against state official or quit title action that divests state of ownership of land (4) Actions for violating state law Not Barred (1) Action against local government (2) Action by US or other state (3) Bankruptcy proceedings |
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Sovereign Immunity
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(1) Suit against state government, even on federal claims, without their consent
(2) Adjudicative actions against state/agency before federal agency |
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Federal Legislative Power
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(1) Congress's Authority to Act
(A) Express/implied power except MILD (Military, Indian, Land federal, D.C) (B) Necessary and proper - any means not prohibited |
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Tax/spending & commerce power
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(1) Tax & Spend only for general welfare
(2) Commerce Power (A) channels of interstate commerce (B) Instrumentalities of interstate commerce and persons or things in commerce (C) Economic activities that have substantial effect on interstate commerce (does not apply to non-economic activity) |
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10th Amendment Limit on Congressional Powers
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(1) Cannot compel state regulatory or legislative action
(2) May prohibit harmful commercial activity by state governments |
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Congress' power under Section 5, 14th Amendment
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(1) Cannot create new right/expand scope of right but must be recognized by court
(2) To pass legislation, must be (A) History/pattern of state violation of such rights (B) Narrowly tailed to solving identifed problem |
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Federal Executive Power: Foreign Policy
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Treaties: effective when ratifed by senate
(1) prevail over conflicting state laws (2) conflict between treaty/federal statute, last one wins Executive agreements - effective when both presidents sign (1) Can be for any purpose (2) prevail over state laws but not federal laws |
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Impeachment & Removal
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(1) Impeachment does not remove person from office
(A) requires majority vote in House and 2/3 vote in Senate (B) President has no immunity for actions before taking office (C) President can only pardon federal crimes |
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Preemption
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(1) Express
(2) Implied (A) Mutually exclusive, fed wins (B) State impedes achivement of fed objective, fed wins (C) Congress evidence clear intent to preempt state law, fed wins (3) State may not tax or regulate federal government activity |
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Dormant Commerce Clause
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If a state is the actor, dormant commerce clause; if law burdens interstate commerce, only upheld if benefits exceed burden
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Privileges and Immunities of Article IV & 14th Amendment
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Article IV
(1) Prohibits discrimination by a state against nonresidents (2) Must be important commercial activities (livelihood) or civil liberties 14th Amendment (1) Prohibits states from denying their citizens the privileges and immunities of national citizenship (2) Right to travel - new citizens same privileges as others in states |
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Dormant Commerce Clause and P&I checklist
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(1) Discriminate against out of staters
(A) No - if burdens interstate commerce benefits must exceed burden (P&I of VI does not apply) (B) Yes - If burdens interstate commerce, violation DCC unless necessary to achieve important government purpose or state is market participant or congress approves (C) Yes - may violate P&I clause of VI if discrimination with regard to earning livelihood (or civil liberties), violations unless necessary to achieve an important government purpose (does not apply to corps or aliens) |
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Full Faith and Credit
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(1) Court had jurisdiction over party and subject matter
(2) Judgment on merits (3) Judgment was final |
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Protection of Individual Liberties Checklist
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(1) Is there government action
(A) Exceptions: entanglement exception (facilitate/encourage unconstitutional activity) (2) Application of Bill of Rights (A) Federal - apply directly (B) State - DP (3) Level of Scrutiny |
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Levels of Scrutiny
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(1) Rational Basis - rationally related to legitimate conceivable government purpose
(2) Intermediate Scrutiny - Substantially related to an important actual purpose (3) Strict Scrutiny - necessary for a compelling actual purpose & least restrictive means |
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Individual Rights Definitions
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(1) Procedural DP - process that must be followed before taking life, liberty, property
(2) Substantive DP - Adequate reason for taking away life, liberty, property (3) Equal Protection - whether government differences for treating people differently are justified |
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Procedural Due Process Checklist
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(1) Deprivation of life, liberty, property
(A) liberty - loss of significant constitutional or statutory freedom (B) Property - entitlement is reasonable expectation of continued receipt of benefit (2) What procedures required (1) Importance of interest to individual (2) Increased accuracy of additional procedures (3) Government interest |
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Takings Clause
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(1) Is there a taking
(A) possessory - government confiscation or physical occupation (B) regulatory - no reasonable economically viable use (C) Zoning justified by benefit roughly proportional to burden (2) Public use (3) Just compensation (as measured by loss) |
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Contracts Clause
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No state can impair the obligations of existing contracts unless it meets intermediate scrutiny
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Substantive Due Process: Privacy
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(1) Marry
(2) Procreate (3) Custody of children (4) Keep family together (5) Control upbringing of children (6) Purchase/use contraceptives (7) Abortion (pre-viability undue burden) -- No Level of Scrutiny Known -- (8) Consensual homosexual activity (9) Right to refuse medical treatment (10) No right to suicide |
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Right to Vote
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(1) 15th & EP
(2) Deny right strict scrutiny (3) One person-one vote (4) At large elections OK unless proof of discriminatory purpose (5) Race in election districts meets strict scrutiny |
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Equal Protection Checklist
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Source: State - 14th; Fed - DP
(1) What is classification (2) What level of scrutiny (3) Does the law meet the scrutiny |
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Equal Protection Classifications
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(1) Race - strict scrutiny; if law neutral then must show impact and intent
(2) Gender - intermediate scrutiny; if law neutral then must show impact and intent (A) Discrimination benefiting women based on stereotypes not allowed (3) Alienage - strict scrutiny unless classification concerns (A) Self-government (B) Democratic process (C) Congressional discrimination (4) Non-marital children - intermediate scrutiny, deny benefit to all NMC but granted to all MC unconstitutional |
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Content Based vs. Neutral
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Content-Based - generally strict scrutiny (subject matter & view point)
Content-neural - generally intermediate scrutiny |
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Vagueness and overbreadth
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Vague - reasonable person cannot tell what speech is prohibited and what is allowed
Overbreadth - regulates substantially more speech than constitution allows (inc. fighting words) |
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Symbolic Speech
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Can regulate conduct that communicates speech if
(1) important interest unrelated to suppression of the message (2) impact on communication is no greater than necessary |
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Unprotected/Less protected Speech
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(1) Incitement of illegal activity
(A) Substantial likelihood of imminent illegal activity (B) Speech directed to causing imminent illegality (2) Obscenity (A) Appeals to prurient interests (shameful/morbid interest in sex) (B) Patently offensive (C) Lack serious social value (3) Profane/Indecent Speech - generally protected except (A) Over broadcast media (B) In school |
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Commercial Speech
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(1) Unprotected
(A) Advertising for illegal activity, false, deceptive ads (B) Commercial speech that inherently risks deception (2) All other commercial speech regulation must (A) Government has substantial interest in the regulation (B) Regulation directly advances that interest (C) Narrowly tailed to the substantial itnerest |
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Speech Forums
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(1) Public Forums - government land required to make available for speech
(A) Time/Place/Manner Restrictions (I) Content neutral (II) Narrowly tailored to serve important government interest (III) Leaves open adequate alternative places for communication (B) If not, strict scrutiny (2) Designated Public forums - could close to speech but choose to open (3) Limited public forums - limited to certain groups or discussion of only some subjects; regulate if reasonable and legitimate interest (4) Non-public forums - can and does close to speech; regulate if reasonable and legitimate interest (A) Military bases (B) Airports (C) Prison area (D) Sidewalks on Post Office property |
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Freedom of Association
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(1) Prohibit or punish group membership must meet strict scruity
(2) To punish membership in group must show (A) Actively affiliated (B) Knowing of illegal activities (C) With specific intent to further those illegal activities (3) Disclosure of membership were it would chill association, strict scrutiny (4) Law can prohibit private group from discriminating unless interfere with (A) Intimate association (B) Expressive activity |
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Freedom of Religion: Free exercise clause
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(1) Cannot challenge neutral law of general applicability, if both not met strict scrutiny
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Freedom of Religion: Establishment clause
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(1) Lemon Test
(A) Secular purpose for law (B) Effect neither advances or inhibits religion (C) No excessive entanglement with religion (2) Cannot discriminate against or among religions unless strict scrutiny is met (3) Government may assist parochial schools so long as it is not used for religious instruction |
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Con Law Checklist
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(1) Congress
(A) Authority to act (B) Violation on limits to its power (2) Executive (A) Exceeded scope of power (B) Violated limit on power (3) Courts (A) Does court have authority to hear the case (standing, ripeness, mootness, political Q) (4) State governmnet (A) Violated limit on its power (5) Private (A) State action, if so (B) Violate constitution |
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Lower Federal court review
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(1) Cannot hear suits against state governments
(A) Sovereign immunity (B) 11th Amendment (2) Abstention - Federal courts may not enjoin pending state court proceedings except (A) in cases of proven harassment (B) prosecutions taken in bad faith |
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State taxation of interstate commerce
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(1) Cannot use tax systems to help in-state business
(2) Can only tax activities if substantial nexus to state (3) Taxation of interstate businesses must be fairly apportioned |
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Fundamental Rights protected by Due Process and Equal Protection
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Privacy, Interstate travel, voting, First Amendment
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Commerce Power: Regulating Activities with Substantial Effect
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(1) For economic activites - rational basis aggragate substantially effects interstate commerce
(2) For non-economic - factual finding a substantial effect |
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10th Amendment
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Power not granted to Congress is reserved for the states
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Equal Protection
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(1) Strict Scrutiny - Fundamental rights involved or suspect classification
(2) Intermediate - Quasi-suspect class |
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State Taxation
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Nondiscriminatory Taxes
(1) Substantial Nexus (2) Fair Apportionment (3) Fair Relationship |
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Durational Residency Requirement
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Violates Right to Travel under Equal Protection clause
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PI of VI
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Discrimination by state in favor of own citizens that affects a fundamental right unconstitutional unless state can show SUBSTANTIAL JUSTIFICATION AND NO LESS RESTRICTIVE MEANS
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Due Process Public Employees
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When employee can only be terminated "for cause" they must have notice and pre-termination hearing
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Fundamental Right - Marriage
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Includes divorce
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Public Employee - Speech
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If speech concerns matter of public concern, can get hearing under procedural due process if fired
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Taxation of Press
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Generaly tax business taxes that also apply to press ok but if only applicable to press or based on content need strict scrutiny
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District Variance for State Wide Elections
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For state elections, can vary from stict equality mandated for federal elections, if reasonable and promotes legitimate state interst (preservation of counting voting ok with 16% variance)
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Military Courts
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No jurisdiction over civilians as long as actual warefare has not shut down the civilian courts
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Government Requirements of Employing Local labor
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Requirement that private contacts on city projects employ certain percentage of city residents violates P&I of Article IV
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Federal Government Preemption
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Even if not directly in conflict, where fed regulation comprehensive and except certain aspect, preemption often found when state leglistates on that aspect
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State Taxation
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(1) Substantial nexus of activty/property taxed with state (2) fair apporintment based on extent of taxable property in state 3) fair relationship betwen tax and its use
#2 violated were all wages of resident subject to income tax even when those earned out of state |
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Tax Exemption for Religious Organizations
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Tax exemption available only for religous organization/activities and not for other organizations engaged in the same activity violates establishment clause
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