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265 Cards in this Set

  • Front
  • Back
Art III deals w/
fed judical power
Fed. judicial power extends to cases involving
1. INTERPRETATION of the Con, fed law, treaties, admiralty & maritime laws AND
2. DISPUTES b/n states, states & foreign citizens & citizens of diverse citizenship.
SC's power of judicial review
review constitutionality of acts of other branches of fed govt.
review state acts pursuant to Supremacy Clause
SC has original jurisd/n
in all cases affecting ambassadors, public ministers, consuls & those in wh a state is a party but Congress has given concurrent jurisd/n to lower fed courts in all cases except those b/n states.
2 ways cases come to SC
1. Writ of Certiorari
2. Appeal
certioraria is
extraordinary writ issued by an appeallate court at its discretion directing a lower court to deliver a record for review.
Cases which come to SC by Writ of Certioraria are
1. from state courts where constitutionality of a fed stat, treaty or state stat is in issue or those in which state stat allegedly violates fed law.
2. All cases from fed courts of appeals.
Appeal cases which SC must hear
are only those decisions by 3 judge fed dist court panels that deny or grant injunctive relief.
Whether a case is justiciable (so fed court may address it) depends first on whether
there is a case or controversy requirement
Besides case or controvery requirement, list other limitations on fed court juris/n
1. No advisory opinions
2. Ripeness
3. Not moot
4. P must have standing
5. Adequate & Ind State Grounds
6. Abstention
7. No political ?s
8. 11thA limitations
No advisory opinions restriction means
Fed Courts will not determine constitutionality of a stat which has never been enforced. Must be SPECIFIC HARM and P must show challenged action poses a REAL & IMMEDIATE DANGER to his interests.
Ripeness means
P under an immediate threat of harm--Ripeness bars consideration of claims BEFORE they have been developed.
Mootness means
real controversy must exist at all stages of review. Mootness bars consideration of claims AFTER they have been resolved.
Exception to fed courts not hearing cases which has been resolved
1. controversies capable of repetition but evading review
2. class action suit where class reps case may have become moot, but claims of other class members still viable.
concrete personal stake in the outcome of a case. 3 components: injury by unlawful govt ac/n wh is direct & personal wh affect her rights under the Con or fed law, causation & rederessibility
Components of standing
1. injury--P must show direct & person injury by alleged govt action.
2. causation
3. redressability
Redressability means
a decision in litigant's favor must be capable of eliminating her grievance.
Can Congress can confer standing?
no Congress has no power to eliminate the case or controversy requirement, but fed stat may create new interests, injury to which may be sufficient for standing.
When does P have standing to enforce a fed stat?
when w/in the ZONE OF INTERESTS Congress meant to protect.
A claimant w/ standing may assert rights of a 3rd party only if
1. 3rd party cannot assert own rights
2. special re/ship exists between claimant & 3rd party
An organization has standing if
1. there is an injury in fact to members that gives them a right to sue on their own behalf
2. injury is re/d to organization's purpose
3. ind participation in law suit not required
Citizenship standing?
People have no standing merely as "citizens" to govt action violates fed law or Con--injury is too generalized.
Taxpayer standing requirements
Can litigate own tax bill but no generally no standing to CHALLENGE GOVT EXPENDITURES b/e taxpayers interest too remote. EXCEPTION: CONGRESSIONAL taxing & spending measures on 1st A ESTABLISHMENT CLAUSE grounds
Exception to tax payers lacking standing
Suits attacking congressional taxing & spending on 1stA Establishment Clause grounds
Adequate state grounds doctrine
prevents SC from reviewing a state court decision based partially on state law if a decision of a fed issue would not change the result.
2 types of cases in which fed court will abstein
1. unsettled ? of state law
2. pending state proceeding.
2 types of cases involving political questions which fed courts will not hear
1. those constitutionally committed to another branch of govt
2. those inherently incapable of judicial resolution
Examples of political ?s
Challenges based on "republic form of govt," on Congress' procedures for ratifying Con amendments, whether person elected to Congress meets requirements, Pres's handling of foreign affairs.
Examples of nonpolitical ?s which fed courts have addressed
Legislative apportionment, arbitrary exclusion of a congressional delegate, production of pres papers
11th A
prohibits fed court from hearing an ac/n between a state & a person who is not a citizen of that state or b/n a foreign govt & a state.
What is barred by 11thA? (doctrine of sovereign immunity)
suits against state govt in state court, even on fed claims unless D state consents.
What is not barred by 11thA?
Does not extend to actions against local govts, actions by the US or other states, or proceedings in fed bankruptcy courts.
Exceptions to 11thA immunity
1. Certain actions against state officers
2. Congress can remove 11thA immunity as to actions created under the 14th A.
Powers of Congress are limited to
those ENUMERATED in the Con plus all powers NECESSARY & PROPER to carry out all powers vested in the fed govt.
Necessary & Proper "Power"
standing alone does not support any fed law; can only work in conjuction w/ another fed power.
Taxing Power
Congress has power to tax. Most will be upheld if they bear some REASONABLE RE/SHIP TO REVENUE PRODUCTION.
Spending Power
Congress may spend for the common defense & welfare--may be FOR ANY PUBLIC PURPOSE.
Commerce Power
Congress has EXCLUSIVE power to regulate all foreign & interstate commerce.
Fed law regulating commerce must either
1. REGULATE the channels of interstate commerce
2. REGULATE THE INSTRUMENTALITIES of interstate commerce
3. REGULATE ACTIVITIES that have a substantial effect on interstate commerce
Court will uphold regulation of Congress of intrastate activity if
2. RATIONAL BASIS to conclude the activity IN AGGREGATE substantially effects interstate commerce.
Rules for military courts are made by
Do regular fed or state courts have any power to review military court marital proceedings?
Military courts have jurisdiction
over all offenses committed by persons who are members of the military.
Can civilians ever be tried in military courts?
only if actual warfare causes fed courts to shut down.
Property Power
the power of Congress to dispose of & make rules for territories & other props of US. Fed taking (eminent domain) must be for purpose of effectuating an enumerated power under some other provision of the Con.
Fed Police Power?
No fed police power. However, Congress has police power over DC, fed lands, mil bases & Indian reservation.
Whether fed Bankruptcy Power is exclusive
no. State may leg. in field as long as it does not conflict w/ fed law.
Whether Congress has exclusive power to regulate postal system
Power of Congress re: aliens
Plenary (widely construed) Congress may establish uniform rules of naturalization.
Can aliens be refused entry into US
Yes, bur RESIDENT ALIENTS are entitled to NOTICE & A HEARING before deportation
What power does Congress have over naturalization & denaturalization
What power does Congress have over regulation & administration of admiralty?
plenary & exclusive
May Congress delegate legislative power?
Yes as long as "intelligent" standards are set & power is not uniquely confined to Congress (e.g. powers to declare war, impeach)
May congress appoint members to a body w/ admin or enforcement powers?
Speech and Debate Clause
Clause in Con which gives members of Congress immunity for stmts made during debate in either the House or Senate.
Legislative veto
Veto in which Congress blocks a fed executive or agency action taken
Executive appoints " . . .
ambassadors, other public ministers & consuls, justices of the SC & all other officers of US whose appointments are not otherwise provided for."
Congress may vest appointment of _____ _____in the Pres, the courts of the heads of depts.
inferior officers
May Congress itself appoint members of a body w/ administrative or enforcement powers?
What officers may Pres remove at will?
high level, purely executive officers (e.g. cabinent members). Congress may place stat limits on Pres's power to remove other executive appointees.
May Congress remove executive officers?
Yes, but ONLY through the impeachment process.
Pres veto power
If Pres vetos act of Congress, the act may still become law if the veto is overriden by 2/3 vote of each house.
Pocket veto
Pres has 10 days to exercise the veto power. If he fails to act, bill is automatically vetoed if Congress is NOT in session. If Congress IS in session, the bill becomes law.
Line item veto is
Guide to Pres's unsettled power over internal affairs
1. If Pres acts w/ express or implied authority of Congress, his authority is max, likely valid.
2. If Pres acts where Congress is silent, his action will be upheld unless it usurps power of another branch.
3. If Pres acts against the express will of Congress, he has little authority and his action is invalid.
Whether Pres has power to declare war
NO POWER to declare war but may act militarily w/o Congressional declaration of war.
Power of Pres in day to day foreign re/ns is
Pres's power to enter into treaties requires
consent of 2/3 of Senate
Hierarchy of US law
US Con prevails over
Treaties & Fed Stats (last in time if conflict) prevail over
Executive agreements prevail over
State Law
Executive privilege
Privilege, based on sep of powers, that exempts the executive branch of the fed govt from usual disclosure requirements when the matter to be disclosed involves national security or foreign policy.
Exception to executive priv.
In crim proceedings, Pres info will be availabe to prosecution if need shown
Pres, VP & all civil officers are subj to impeachment. A maj in House is required to invoke charges of impeachment (grounds include treason, high crimes, bribery ) & 2/3 vote in Sen is required to convict & remove from office.
1. Powers of state expressly limited (e,g, treaty power, coin $)
2. Powers are inherently Fed b/e nature of power itself (e,g, declare war)
All powers not delegated to the fed govt are reserved to the states. Note however fed powers are given an expansive interpretation and thus little state power is exclusive
Supremacy Clause
Declares all laws made in furtherance of Con & all treaties made under authority of the US are the "supreme law of the land" and enjoy legal superiority over any conflicting provision of a state law.
Principle (derived from Supremacy Clause) that a valid fed law can supercede or supplant any inconsistent state law or reg. EVEN IF STATE OR LOCAL REG IS NONCONFLICTING.
Before reaching preemption, courts will start
will start w/ presumption that state police powers are NOT superseded unless that was the CLEAR & MANIFEST PURPOSE OF CONGRESS.
Interstate Compact Clause
concerns agreements b/n states. If the agreement increases the states' power at the expense of fed power, Con approval is required. --Disallows a state from entering into a K w/ another state or a foreign country w/o approval from Congress
Full Faith & Credit Clause
requires states to give effect to the leg acts, public records & judicial decisions of other states
Full Faith & Credit Clause applies only if
1. court that rendered judgement had juris/n over parties & subj matter.
2. judgment was on the merits AND
3. judgment was final.
May US sue a state w/o its consent
May a state sue US w/o its consent
no. Congress can pass leg. that permits US to be sued by a state in given situations
Intersovereign Litigation
US v. State w/o permission? Yes
State v. US w/o permission? No
State v. State w/o permission? yes & SC has exclusive original jurisd/n
Fed Officer as D
1. limitation--considered v. US if judgment to be paid out of US treasury
2. Specific relief against officer if officer acted ultra vires
Fed taxation which applies to both state & private entities
Valid. Congress may subj state & local govt activities to regulation or taxation if the law or tax applies to both the public & private sector (e.g. min wage laws)
Fed Tax or reg applying only to states (not private)
may be limited by 10th A (eg. reg of radioactive waste) Exception-civil rights
Exception--indirect reg by spending power conditions
When can state tax and regulate fed govt instrumentalities?
NONDISCRIMINATORY, INDIRECT taxes are permissible.
Art IV, Sec 2 Privileges & Immunities Clause
prohibits discrimination by a state AGAINST NONRESIDENTS. Comity Clause
Are corps & aliens protected by Art IV Privileges & Immunities Clause?
What "fudamental rights" does Art IV Privileges & Immunity Act protect?
When can state law discriminating against out of state residents be valid?
if substantial justification for the diff. treatment. State must show law is addressing problem connected w/ nonresidents & NO LESS RESTRICTIVE MEANS are available to solve the problem.
14th A Privileges or Immunities Clause
States may not deny their citizens the privileges or immunities of national citizenship. Corps are not protected by this Clause.
Commerce Clause
gives Congress the exclusive power to regulate commerce among the states, with foreign nations & w/ Indian tribes.
Dormant Commerce Clause
Con principle that the Commerce Clause prevents state reg of interstate commerce which DISCRIMINATES or UNDULY BURDENS interstate commerce. True even in areas w/in which Congress has not acted.
State or local laws which discriminate against interstate commerce in favor of local ec interest are
1. almost always invalid
2. may be valid if furthering an impt, nonec state interest & NO REASONABLE NONDISCRIMINATORY ALTERNATIVES.
Market participant exception
State may prefer its own citizens when buying or selling, hiring labor or giving subsidies.
Whether nondiscriminatory state laws which burden interstate commerce are valid
yes unless the burden outweighs the promotion of a legitimate local interest.
Approach to dormant commerce clause ?s
1. Does ? refer to fed leg that might SUPERCEDE state regs or PREEMPT the field or AUTHORIZE state reg otherwise impermissible.
2. If no, does the state reg either DISCRIMINATE against interstate or out of state commerce or place an UNDUE BURDEN?
3. If yes, it will be invalid unless it furthers an impt state int, there are no reasonable nondiscriminatory alternative or the state is a market participant.
4. If no, it will be invalid if the burden outweighs the state interest.
Exam Tip: Discriminatory laws
which violate Comemrce Clause may also violate
Privileges & Immunities Clause of Art IV or Equal Protection Clause
repealed the 18th A (prohibition) & returned power to reg alcohol to states.
Congress can impact liquor sales through
1. Commerce Power
2. Spending power conditions
3. Antitrust laws
State taxes that discriminate against interstate commerce violate
the Commerce Clause (also maybe Art IV Sec 2 or equal protection)
State taxes that DO NOT discriminate against interstate commerce are valid if
1. substantial nexus to taxing state
2. fairly apportioned according to a rational formula
3. fair re/ship to services or benefits provided by state.
Use Tax
1. tax imposed on goods bought outside the taxing authority's juris/n
2. designed to discourage purchase of products not subj to sales tax
3. are valid
State may force seller to collect use tax if
seller has a SUFFICIENT NEXUS w/ taxing state (e.g. maintains offices. soliticing mail order sales not enough)
ad valorem tax
tax based on value of something (e.g. real prop) rather than its quantity
Can commodities in course of interstate commerce be taxed?
No. begins w/ delivery, ends w/ destination, and break in transit does not destroy the interstate character of the shipment.
Whether instrumentalities used to transport goods interstate can be imposed depends on
1. Taxable situs (sufficient benefit or protection from state)
2. if fairly apportioned (approximates physical presence in state)
Privilege tax
tax on privilege of carrying on a bus or occupation for which license or franchise is required.
Privilege, license, franchise or occupational taxes are valid if
1. substantial nexus to taxing state
2. fairly apportioned
3. does not discriminate against interstate commerce
4. fairly relate to services provided in state.
Approach to ? involving state taxation affecting interstate commerce.
1. Does ? refer to any fed law that might FORBID tax, PREEMPT field or AUTHORIZE the state tax.
2. If no, does state tax DISCRIMINATE or UNDULY BURDEN (i.e. no substantial nexus, unfair apportionment or no fair re/ship) interstate commerce.
3. If so, invalid.
Import Export Clause
prohibits states from taxing imports or exports. SC has liberally interpreted, allowing states to tax imports as long as the tax does not discriminate in favor of domestic goods.
State action requirement
Before an action can be challenged as unconstitutional, a threshold requirement of govt conduct must be satisfied.
Con restrictions on power over individuals contained in
1. Bill of Rights
2. 13th A
3. 14th & 15th As
4. Commerce Clause
State action can be found in seemingly private ind conduct if
1. exclusive public functions that are TRADITIONALLY prerogative of state.
2. if AFFIRMATIVE state involvement
Bill of Rights
1st 10As limits fed power. 14thA Due Process Clause applies almost all provisions to states (incorporation)
Exceptions to incorporation of rights w/in Bill of Rights
5thA prohibiton of crim trials w/o grand jury indictment
7thA right to jury trial in civil cases
prohibits slavery & invol servitude. Has Enabling Clause through which Congress can prohibit racially discriminatory action by ANYONE.
14th: prohibts STATES from depriving any person of life, liberty, or prop w/o due process & equal protection of law.
prevents both FED & STATE GOVTS from denying cit right to vote on basis of race.
Scope of power of Congress under 14th A
1. can adopt APPROPRIATE LEG to enforce the rights and guarantees provided.
2. can't expand existing Con rights
3. valid law should reflect historical pattern of violation & be CONGRUENT & PROPORTIONAL to IDed violation.
Congress may prohibit private racial discrimination through
Commerce Clause where activities might have a substantial effect on interstate commerce.
Places in Con where retroactive legislation concerned
1. K Clause
2. Expost facto laws
3. Bills of attainder
4. Due process considerations
Contracts Clause
prohibits STATES from passing a law which RETROACTIVELY impairs private Kual obligations
No K clause applicable to fed govt but
flagrant K impairment would violate 5th A Due Process Clause
For Ks Clause to invalidate state legislation, the law must
Level of review of private Ks under K Clause
Intermediate Scrutiny--State leg which SUBSTANTIALLY IMPAIRS existing PRIVATE K invalid unles it serves an impt & legitimate pub interest & is a reasonable & narrowly tailored means of promoting that interest.
Level of review of public Ks under K Clause
Probably a more strict intermediate scrutiny than private Ks especially if law reduces Kual burdens on the state.
Expost Facto Clause
forbids passage of ex post facto crim laws.
An expost facto law
applies retroactively in effecting a person's rights by altering criminal offenses or punishments creating prejudice against a D.
A state retroactively alters a law in a prejudicial mannter if it
1. makes crim an act that was innocent when done
2. prescribes greater punishment for an act than when act was done
3. reduces the evid required to convict for crime than was required when act was done.
Bills of Attainder
legislative acts that inflict punishment on ids w/o a judicial trial. Both fed & state govts are prohibitted.
Due process considerations & retroactive law
If retroactive law does not violate the Ks, Ex Post facto or Bill of attainder Clauses, it still must pass muster under the Due Process Clause. If the retroactive law does not relate to a fundamental right, it need only be rationally related to a legitimate govt. interest.
Basic prinicple of procedural due process
A FAIR PROCESS (notice & a hearing) is required for govt agency to individually take a person's "life, liberty or prop." Only intentional--not neg--deprivation violates the Due Process Clause.
"life, liberty or prop"--define liberty
not specifically defined. includes more than just freedom from bodily restraints. includes right to contract & to engage in gainful employment. Deprivation of liberty includes loss of sig freedom of action OR denial of freedom provided by Con.
"life, liberty or prop"--define prop
Procedural Due Process--Type & extent of required procedures are determined by
3 part balancing test:
2. Value of specific PROCEDURAL SAFEGUARDS to that interest
3. GOVT INTEREST in fiscal & adm safeguards.
Procedural due process rights can be waived if
Govt fees & indigent Ps
1. must be waived when fee would deny fundamental right (i.e. marriage fee)
2. can be imposed when no fundamental right involved.
Type of procedural due process required for commitment to mental institution
Adults: prior notice & prior evid hearing
Children: prior screening by "neurtal fact finder."
Type of procedural due process required for cutting off welfare benefits
prior notice & PRIOR evid hearing.
Type of procedural due process required to cut off disability benefits
prior notice, opportunity to respond & SUBSEQUENT hearing
Type of procedural due process required to suspend driver's license
Prior evid hearing except breathalyzer test suspencion states
Taking Clause
5thA & 14thA provides private prop may not be taken for PUBLIC USE w/o JUST COMPENSATION. Takings includes not only physical appropriations but also some govt action that damages prop or impairs its use.
Meaning of PUBLIC USE in Taking Clause
liberally construed RATIONALLY RELATED to LEGITIMATE public purpose, Includes authorized private taking if advantageous to the public.
Importance of Taking v Regulation
Critical issue is whether govt action is taking or regulation. Taking requires payment of just compensation. Reg does not.
Guidelines for determining taking v. regulation
1. Actual appropriation or phy invasion most always a taking
2. If use restrictions, depends on the level of restriction.
Evaluating use restrictions--issue: taking v. reguation?
1. Denial of ALL ec use, a taking.
2. Parital or temporary--evaluate relevant factors (planner's good faith, length of delay, owner's reasonable expectations & actual effect on the value of prop.)
3. Regs that decrease ec value do NOT amount to taking if they leave an ECONOMICALLY VIABLE USE FOR PROP. Court will consideration ec impact of the reg on the calimant & whether reg substantially interferes w/ distinct, investment backed expectations of the claimant.
If regulation is a taking, the govt must pay "just compensation" which means
1. FMV
2. TERMINATE REG & PAY for temp taking damages.
3. Measured by LOSS TO OWNER--not gain to taker. I.e., if worthless no compensation need by paid.
Re/ship b/n substantive due process and equal protection
1. both require Court to review substance of law rather than procedures
2. If restriction involves ALL persons doing something, usually due process.
3. If restriction treats a PERSON OR CLASS OF PERSONS diff from other, probably an equal protection issue.
Class of One
SC has recognized--at least in re/ship to prop reg--that an equal protection claim may be brought not only for discrimination against a group, but also for arbirary trmt against an ind.--class of one. however court has held that an at will govt employee who claims to be a victim of arbitrary discrimination cannot use the class of one theory to make an equal protection claim
3 standards of review used
1. strict scrutiny
2. intermediate scrutiny
3. rational basis
Strict scutiny (Max Scrutiny) affects
Law upheld if NECESSARY to ACHIEVE a COMPELLING govt purpose.
Strict scutiny burden of proof on
Intermediate scrutiny
involves QUASI-SUSPECT CLASSIFICATION (i.e. gender and legitimacy) Law upheld if it is SUBSTANTIALLY RE/D to an IMPT govt purpose
Intermediate scrutiny burden of proof
unclear--probably the govt.
Rational Basis (Min Scrutiny)
involve regs that do NOT affect fundamental rights or involve suspect or quasi-suspect classifications.Law upheld if it is RATIONALLY RE/D to a LEGITIMATE govt purpose. Very easy unless ARBITRARY or IRRATIONAL. Age disability & poverty are not suspect or quasi suspeect
Rational Basis burden of proof
person challenging the law
Con sources for substantive due process
Due Process Clause of 5thA--applies to fed govt
Due Proces Clause of 14thA--applies to states
The same tests under each clause.
Applicable standards in substantive due process
when a fundamental right is limited, the law or action is evaluated under STRICT SCRUTINY standard. In ALL OTHER CASES, RATIONAL BASIS standard is applied.
"irributable presumption" & substantive due process
If facts are presumed against a person so that she cannot demonstrate that she is qualified for some impt benefit or right, the "irrebuttable presumption" may be unCon. SC no longer treats irrebuttable presumptions differently from other regs or classifications. (Thus on ans choice says "invalid b/e irrebuttable presumtpion" probably wrong--consider whether it concerns a fundamental right or susupect or quasi suspect class & judge it accordingly
Con sources for equal protection
Equal Protection Clause of the 14th A--limited to state action
Grossly unreasonable discrimination by fed govt violates the Due Process Clasue of 5th A--Court applies the same tests under either Con provision
Equal protection applicable standards
Fundamental right or suspect classification--strict scrutiny
Quasi supect classification--intermediate scrutiny
No fundamental right nor suspect or quasi suspect classification--rational basis.
To prove strict or intermediate scrutiny there must be ______on part of govt.
Proof of govt intent to discriminate may be shown by
2. DISCRIMINATORY APPLICATION of a facially neutral law or
3. DISCRIMINATORY MOTIVE behind the law--most difficult to prove--discriminatory effect NOT enough--legislature's discriminatory motive must be shown (e.g. by evid. of hx of discrimination)
Suspect classifications
those based on race, national origin or alienage.
Suspect classifications & school integration
Only intentional segregation violates the Con. If school systems & attendance zones are established in a racially neutral manner, there is not violation. Thus there is no violation if housing patterns result in racial imbalance in schools.
Govt action which favors racial or ethic minorites
1. are subject to same strict scutiny as regs which discriminate
2. cannot be used to remedy GENERAL societal past discrimination, but CAN be used to remedy more specific easy to recognize persistent past discrimination
3. Even where there was no past discrimination the govt may have a compelling interest in affirmative action but it must be narrowly tailored to that interest.
Diversity in education
IS compelling govt interest (if considered one OF A RANGE OF FACTORS) for colleges & univs but not for elem or high school.
Whether race can be considered in drawing up new voting districts
depends on if it was one of other factors and it CANNOT BE PREDOMINANT FACTOR. If P can show that a redistricting plan was drawn up predominately on the basis of racial consideration, the plan will violate the Equal Protection Clause unless the govt can show that the plan is narrowly tailored to serve a compelling state interest.
Fed classifications of aliens
NOT subj to strict scrutiny b/e of Congress's plenary power over aliens. Fed. alienage classifications are NOT subj to strict scrutiny. Such classifications valid if not unreasonable or arbitrary.
State & local classification on alienage
are suspect classification subj to strict srutiny. Exception--participation in self government process where RATIONAL BASIS applied.
Undocumented aliens
are NOT a suspect classification so subject to rational basis standard. Thus state laws regarding them subject to rational basis standard. However, denial of free puiblic ed to undocumented alien children is invalid and more than simple rational basis standard used.
Quasi suspect classifications
those based on gender & legitimacy. Gender classification are reviewed under the intermediate scrutiny standard. They must be SUBSTANTIALLY RELATED to an IMPORTANT GOVT purpose. Govt bears the burden of showing an "exceedingly persuasive justification" for the discrimination. Legitimacy classifications are also reviewed under the intermediate scrutiny standard. Discriminatory regs intended to punish illegitimate children are invalid.
If not suspect classification (race, national origin & sometimes alienage), quasi suspect classifications (gender & legitimacy) & fundamental rights (interstate travel, privacy, voting & 1st Am rights) then . .
evaluated under the rational basis standard. These include age, disability, and wealth classification. e.g. mandatory retirement ages may be established. b/e ed is not an equal right, no denial of equal protection when wealthier children can afford to pay for access to the best state operated schools.
Fundamental rights are
significant components of liberty, rooted in our nation's traditions protected under the Con. If denied to everyone, it is a substantive due process problem. If denied to some individuals but not others, it is an equal protection problem. Applicable standard is strict scrutiny. Thus the govt action must be necessary to protect a compelling govt interest. Must be NO LESS RESTRICTIVE means to achieve this goal.
Right of privacy
Various privacy rights including marriage, sexual relations, abortion and child rearing are fundamental rights. Regulations affecting these rights are reviewed under the strict scrutiny standard.
right of male and female to enter into (& probably dissolve) the marriage re/ship is a fundamental right. However restriction of prison inmates to marry will be upheld if reasonably re/d to penal interests.
Use of contraceptives
a state cannot prohibit distribution of nonmedical contraceptives to adults.
Right of privacy includes the right of a woman to have an abortion w/o interference from the state under certain circumstances. However normal strict scrutiny analysis cannot be applied b/e the state has two compelling interests that often compete: protecting the woman's health & protecting the fetus that may become a child. In its latest abortion rights approach, the SC has adopted 2 basic rules: Pre-viability (likelihood fetus could survive outside womb) state can protect the fetus & mother's health if reg does not place an undue burden or substantial obstacle to woman's right to an abortion.
Post viability rule--Once fetus viable, the state's interest in the fetus's life can override the woman's right to obtain an abortion, but the state cannot prohibit the woman from obtaining an abortion if necessary to protect the woman's health or safety.
Remedy when court faced w/ unconstituional application of abortion statute
Court should not invalidate the statute in its entirety but fashion narrower declaratory & injunctive relief.
Issues around other privacy rights
Obscene reading material--rights of privacy includes reading in ones home (but not child) but not the right to sell, purchase or transport
Keeping extended family together--zoning regs cannot prevent--does not include unrelated peop
Rights of parents--make decisions re care, custody & control of kids-
Intimate sexual conduct--state has no interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature
Collection & distribution of personal data--no privacy right--state may reasonably gather & distribute info about its citizens. (e.g. names & addresses re people for whom dangerous drugs are prescribed)
Right to vote
Right to vote is a fundamental right. Restrictions on that right, other than on the basis of residence, age & citizenship are INVALID unless they can pass STRICT SCRUTINY.
Issue: Restrictions on the right to vote
Residency requirement--REASONABLE TIME periods valid. Congress may override state residency requirements in PRESIDENTIAL elections & substitute its own.
Conditioning the right to vote on prop ownership usually invalid (exceptions: special purpose elections e.g. water storage districts)
Poll taxes are unCon
Can states prohibit political parties from opening up their primary elections?
one person one vote rule
principle that the Equal Protection Clause requires legislative voting district to have about the same pop, so states must use ALMOST EXACT MATHEMATICAL EQUALITY when creating congressional districts w/in state.
Does one person, one vote principle apply to Congress apportioning reps among the states?
No Congress's good faith method gets more deference--not subj to a precise mathmatical as are state plans.
One person, one vote principle & state & local elections
For state & local elections, the variance in the # of persons included w/in districts must not be more than a few % points. The apportionment requirement is inapplicable to officials who are appointed or elected "at large" (not limited to any particular place, person or matter)
Exception: Special purpose elections
practice of dividing a geographical area into electoral dists, often of highly irregular shape to give one political party an unfair advantage by diluting the opposition's voting strength. Race cannot be the predominant factor unless plan can pass under strict scrutiny.
Restrictions on ability to be a candidate
Fee must not preclude indigents, ballot access regulation must be a reasonable, nondiscriminatory means of promoting impt state interests. A state may require candidates to show reasonable support to have their names paced on the ballot.
Right to travel
Individual has a fundamental right to migrate from state to state & to be treated equally after moving into a new state. However, not every restriction on the right to cross state lines is an impairment of the right to travel (e.g. increased penalties for a father abandoning his children & leaving state are valid)
Is one yr residency requirement to receive welfare benefits valid?
Is one yr residency requirement to receive state subsidized med care valid?
Is one yr residency requirement to vote in state valid?
Is 30 day residency requrement to vote in state valid?
Is one yr. residency requirement to get divorced in a state valid?
Right to international travel
is NOTA FUNDAMENTAL RIGHT. Protected by 5thA Due Process Clause, the rational review standard applies.
Freedoms protected by the 1st A
Congress is prohibited from estalishing a religion or interfering w/ the free exercise, abridging the freedoms of speech & press or interfering w/ the right of assemby. Applicable to the states through the 14th A.
Free Speech Clause restricts govt REGULATION OF
PRIVATE SPEECH. It does not require the govt to aid private speech nor restrict the govt from expressing its views. B/e govt speech does not implicate the 1st A it is not subj to the various levels of scrutiny that apply to govt reg of private speech. Gen. govt speech & govt funding of speech will be upheld if rationally re/d to a legitimate state interest.
Govt speech or govt funding of speech
generally upheld if RATIONALLY R/D TO A LEGITIMATE STATE INTEREST. Public monument not subj to Free Speech Clause scrutiny even if the monument is privately donated. When govt choose to fund private messages (e.g. college group newsletters) it generally must do so on a viewpoint neutral basis. Exception--funding of the arts--govt cannot fund all artists, and choosing among those it will fund & not inevitably must be based on the content of the art.
Speech & assemby regs generally are categorized in what two type?
content & conduct
Content neutral regulations are subject to what level of scrutiny?
INTERMEDIATE--that is, they must advance IMPORTANT interests not re/d to suppression of speech & MUST NOT BURDEN MORE SPEECH THAN NECESSARY to further those interest.
Facial attacks on regulating speech or speech r/e conduct include
Void for Vagueness
Officials w/ unfettered discretion
overbreadth doctrine
holds that if a stat is so broadly written that it deters free expression, then it can be struck down on its face b/e of it chilling effect. If reg is NOT SUBSTANTIALLY OVERBROAD, it can be enforced against activities that are not protected by Con.
Examples of regs struck down under overbreadth doctrine
laws disallowing peaceful picketing or those requiring loyalty oaths
void for vagueness
establishing a requirement or punishment w/o specifying what is required or what conduct is punishable so law fails to give reasonable notice of what is prohibited (i.e. "lewd speech). Violates Due Process Clause.
unfettered discretion
Reg over speech issues must clearly DEFINE STANDARDS for applying the law. If stat gives licensing officials UNBRIDDLED DISCRETION, it will be void on its face.
Scope of speech includes
freedom NOT TO SPEAK and extends to SYMBOLIC ACTS.
Govt may regulate symbolic acts
if govt has an IMPT interest in the regulation INDEPENDENT of the speech aspects of the conduct & incidental burden on speech is not greater than necessary (e.g. govt can prohibit draft card burning)
Govt's power to regulate conduct associate w/ speech & assembly depends on
forum involved--i.e. public, designated public, limited public and nonpublic forums.
Public forum
streets, sidewalks, public parks which have historically been open to speech re/d activities.
Designated public forums
Public prop which has not historically been open for speech re/d activiites but which govt has thrown open on permanent or limited basis.
Govt may place reasonable time, place & manner restrictions on public & designated public forums if
2. NARROWLY TAILORED to serven an IMPT govt interest
3. Leave open ALTERNATIVE
CHANNELS of communic/n.
Injunctions against speech in public forums
treated diff than generally applicable laws. If injunction content based, it must be necessary to achieve a compelling interest. If content neutral it must burden no more speech than is necessary to achieve an important govt interest.
Limited public & nonpublic forums
govt owned prop not historically linked w/ speech & assemby & not held open for speech activities (e.g. military bases, schools when classes in session)
Time, place & manner regulations in limited public & nonpublic forums are valid if
1. viewpoint netral and
2. reasonably re/d to a legitimate govt purpose.
To be valid, restrictions on the content of speech must
necessary to achieve a compelling govt interest. Govt has a compelling interest in unprotected speech.
Unprotected speech includes
1, speech which incites imminent lawless ac/n
2. fighting words
3. obscenity
4, defmatory speech
5. some commercial speech
Speech which incites lawless action can be burdened if
immient illegal conduct is LIKELY & speker intended to cause it.
Speech categorized as fighting words can be burdened if
they comprise true threats & are likely to incite immediate physical retaliation in the average person.
Elements of unprotected obscene speech
1. APPEALS TO THE PRURIENT INTEREST in sex using a COMMUNITY (local or state wide) STAND.
2. Is PATENTLY OFFENSIVE & an affront to contemporary COMMUNITY (local or statewide) STANDS and
4. LACKS SERIOUS VALUE (literary, scientific, political or artistic) using a NATIONAL REASONABLE PERSON STAND.
Land use regs may limit location or size of adult entertainment places but cannot
ban them altogether.
State liquor regs
usually valid, b/e under 21stA
states have broad power to regulate. Law which affect free speech rights in this area won't be invalid unless irrational.
Private possession of obscene material
cannot be punished if in HOME (except child). Protection does NOT extend outside home. Govt may prohibit the sale of distribution of visual depictions of sexual conduct involving minors; but govt may not bar visual material that only appears to depict minor engaged in sexually explicit conduct but in fact uses young looking adults or computer generated images.
Defammatory speech is
not protected and can be burdened. If concerning a PUBLIC OFFICIAL or FIGURE or involves PUBLIC CONCERN, P must prove all element sof defamation PLUS FALSITY & some degree of FAULT.
Truthfull commercial speech
is protected by 1st A
Unprotected commercial speech is that which
Regs of truthful commercial speech will be upheld if it
2. DIRECTLY ADVANCES that interest
3. Is NARROWLY TAILORED to serve that interest
W/ truthful commercial speech narrow tailored
does NOT require least restrictive means but rather REASONABLE FIT b/n the goal & means chosen.
Prior restraint
govt restriction of speech or press before its actual expression--rarely allowed. Govt must show SPECIAL SOCIETLA HARM will otherwise result.
To be valid, govt system for prior restraint must provide what safeguards
2. Injunction must be PROMPTLY sought
3. PROMPT & FINAL DETERMINATION of the validly of the restraint.
To prove system of prior restraint valid, who bear the burden
GOVT. must prove restriction is NARROWLY TAILORED to accomplish goal.
To seizure books & films
must have WARRANT based on probable cause.
Large scale seizures due to obscenity must be PROCEEDED
Freedom of the Press
right to print & publish materials w/o govt intervention. Generally, press has NO GREATER 1ST A FREEDOM than does a private citizen.
Can govt restrict publication of truthful info?
Press has right to publsh truthful info re a matter of public concern & this can be restricted only by a sanction that is narrowly tailored to further an interest of the highest order.
Access by press & public to trials
guarantees by 1stA OUTWEIGHED by interest in trial judge's findings (e.g. protect child victim)
Can members of press be required to testify before a grand jury
Does 1st Am give press right to interview specific prisoners?
Issue re: bus regulation or tax of press & broadcasting cos.
cannot be targeted for special regulation or taxes
Broadcasting can be more regulated than press b/e
of more paramount right of VIEWERS & LISTENERS to receive info of public concern rather than right of broadcasters to braodcast what they please. This permits govt to forbid newpaper ownership of radio station & to prohibt indecent speech over the airway.
Fairness Doctrine
Fed law, based on an FCC rule, requiring the braodcast media to furnish a reasonable opportunity for discussion of conflicting view on issues of public importance. FCC abandoned but radio station may be required to give equal time to political candidates.
Cable TV regs
subj to standard somewhere b/n strict scrutiny of newspapers & less cricial review of broadcast media. "intermediate scrutiny" b/e it is content neutral & serves the impt interest of preserving ec viability of local broadcasters. Still, content based cable TV restriction of are subj to strict scrutiny
Standard of review for internet reg
strict 1st A scrutiny
Freedom of association
freedom to join w/ others in a common undertaking that would be lawful if pursued ind.
Not explicitly named in Con but protected by 1st A but clearly implied by rights that are specifically noted.
Govt may not infringe on right to belong to a group or burden a person's right to belong unless justified by
a COMPELLING interest not re/d to suppression of ideas and the infringement is the LEAST RESTRICTIVE MEANS.
Laws relating to the electorial process which impact 1st A freedoms of speech, assembly & assoc
are subj to a BALANCING TEST. If restriction severe, strict scrutiny. If reasonable & nondiscriminatory, rational basis.
Level of scrutiny used to judge statute limiting campaign contributions
intermediate scrutiny. Govt may limit amt $ a group, person or corp can contribute to a POLITICAL CANDIDATE but cannot limit $ spend on a BALLOT REFERENDUM or for candidate's POLITICAL PARTY.
Restraints on speech re/d conduct of govt employee depends on
whether speech involved a matter of pub concern.
If govt employee's speech involved a matter of public concern courts balance
employee's rights as a citizen against govt's interest in efficient performance of public service.
If govt employee's speech did not involve a matter of public conern
courts give wide deference to the employer to determine if speech disruptive
May fed executive brance govt employer prohibit active participation in political campaings?
Can the govt discipline a public employee based on polt affiation
May govt require employees to take a loyalty oath?
yes but cannot be overbroad or vague. Oath requiring opposition to the UNLAWFUL overthrow of govt ok.
Freedom of religion
1st A (applicable to states through 14th) right to adhere to any form of religion & to be free of govt interference w/ or promotion of religion.
Free Exercise Clause
prohibits govt from punishing someone due to religious BELIEFS but does NOT prohibit regulation of CONDUCT.
.Can state deny unemployment benefits to persons who quit jobs for religious reasons?
Amist exception to law that free exercise clause does not require religious exemptions from laws that happen to burden religiously motivated conduct.
Based on Free Exercise Clause and fundamental right to educate ones children, SC granted Amist exemption from law requiring compulsory school attendance until 16
Establishment Clause
prohibits laws respecting the est of religion
If govt action includes a preference for one rel sect over another
it is invalid unless NARROWLY TAILORED to promote a COMPELLING interest (unlikely)
If govt action does not involve sect preference, it is valid under the Establishment Clause IF it (Lemon Test)
3. Does not produce EXCESSIVE GOVT ENTANGELEMENT w/ rel.
When may govt give aid to people using $ to attend religious schools
when the aid is in form of assistance to a class of persons defined w/o ref to relgious criteria.
When may govt give aid to colleges or hospital which have religious affiliation?
when clear aid is to be used FOR NONRELIGIOUS PURPOSES
When may govt give aid to religious grde schools & high schools?
Aid to religious grade & high schools usually found to have a secular purpose but may fair other parts of the test. e.g. if prog has detailed adm regs to prevent the effect of advancement of religion, law will be stricken for excessive govt entangelment
Religious activities in public schools
school sponsored religious activity is invalid but school accommodation of religion is VALID. Moreover if a public school allows members of the public & priv organizations to use school prop when classes are not in session, it cannot deny a rel org to use school prop for meetings merely b/e rel topics will be discussed.