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85 Cards in this Set
- Front
- Back
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What are the requiremens for standing
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1. P has been personally injured or will be imminently
2. Causation and redressability 3. No 3rd party standing 4. No gerneralized grievances (citizen or taxpayer) |
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When is 3rd party standing allowed
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1. Close relationship
2. 3rd party is unlikely to be able to assert his own right 3. Organization may sue for its members |
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Requirements for Associational Standing
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1. Members would have standing to sue
2. Interests are germane to the organization's purpose 3. Neither the claim nor releif requires participation of individual members |
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When may a P sue as a taxpayer
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To challenger government expenditures of money (not property) as violating the Establishment Clause
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Exceptions to Mootness
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1. Capable of repitition yet evading review
2. Voluntary cessation 3. Class action suits |
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Categories of Political Questions
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1. Republican form of government clause
2. President's conduct of foreign policy 3. Impeachment and removal process 4. Partisan gerrymandering |
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Rule of 4
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Need 4 votes of justices to hear a case by writ of certiorari
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Exceptions to state immunity
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1. Waiver/consent
2. May be sued pursuant to federal laws adopted under section 5 of the 14th Amendment (Civil Rights Act) 3. Against state officers as long as state treasury will not pay the money |
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When does the federal government have police power
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If legislating for military, Indian reservations, federal land or territories, and District of Columbia
Federal Police Power is MILD |
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Article I Section 8
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Commece Power
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What may Congress regulate under the Commerce power
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1. Commerce with foreign nations, indian tribes and between states
2. Channels of Interstate Commerce 3. Instrumentalities 4. Activities with a substantial impanct on IC |
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Wicker v. Filburn
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Wheat for personal consumption has a "cumulative impact"
Cumulative effect can't be for things other than economic |
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10th Amendment
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All powers not granted to the US an not prohibited to the states are reserved to the states
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Can Congress compel state regulatory or legislative action
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No but can induce them to act by putting strings on grants
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May Congress Delegate legislative power
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Yes but must give intelligible principles to guide the delegation
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What test is used for laws effecting economic rights
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Rational basis test
Ex: Consumer protection law = rational basis |
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The takings clause
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The government may take private property for public use if it provides just compensation
(don't use rational basis) |
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Possessory Taking
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Government confiscation or physical occupation of property is a taking no matter how small
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Regulatory Taking
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Government regulation is a taking if it leaves no reasonably economically viable use of the property
Not a taking just b/c it decreases the value |
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In order to not be a taking government conditions on development of property must be...
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justified by a benefit that is roughly proportionate to teh burden imposed
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Is temporarily denying an owner use of his property a taking?
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No, so long as the government's action is reasonable
Ex: 3 year moratorium not a taking b/c gov't had a reasonable justification of enviornmental studies |
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Can a property owner challenge as a taking regulations that existed at teh time the property was acquired?
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Yes
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Public use for a taking
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Broad--taking is for a public use if the government acts out of a reasonable belief that the taking will benefit the public
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Just compensation for a taking
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Measured in terms of loss to the owner not in terms of gain to the taker
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The contracts clause
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No STATE shall impair the obligations of k
Only applies to state and local government |
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State interference with private contracs must meet
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intermediate scrutiny
Must be a reasonably and narrwoly tailored means of promoting an important and legitimate public interest |
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State interference with a government contract must meet
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Strict scrutiny
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Does the ex post facto clause apply in civil cases?
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No, retroactive liability need only meet a rational basis test
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Fundamental Rights Protected under due process
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Contraception, Abortion, Marriage, Procreation, Eduction, Relations (family)
CAMPER--must pass strict scrutiny |
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The right to custody of one's children
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State may create an irrebuttable presumption that a married woman's husband is the father of her child
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The right to keep the family together
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Broader than parents and children but the individuals must be related
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The right to control the upbringing of one's children
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Parents have a fundamental right to send kids to parochial school
Violates due process for court to order grandparent visitation over a parent's objections |
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The right to an abortion
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Undue Burden test
-prior to viability states may not prohibit abortions but may regulate them as long as it doesn't create an undue burden -After viability, states may prohibit abortions unless necessry to protect the woman's life or health |
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Examples of regulation of abortion that is not an udue burden
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24 hour waiting period for abortions
Requirement that they be performed by a licensed physician |
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Is the prohibition of partial birth abortions allowed
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No it is an undue burden
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Does the government have a duty to subsidize abourtions or provide abortions in public hospitals
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NO
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Parental consent laws for unmarried minors
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A state may require parental 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 woudl 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
A state may require clear and convincing E that a person wanted treatment terminated before it is ended A state may prevent family members from terminating treatment for another |
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Does the equal protection clause of the 14th Amendment apply to the federal government
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NO, only state and local government
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How is equal protection applied to the federal government
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Through the due process clause of teh 5th Amendment
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What level of scrutiny is used for race based classifications
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strict scrutiny
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If a law is facially neutral, proving a racial classification requires demonstrating both...
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discriminatory impact and discriminatory intent
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How should racial classifications benefiting minorities be treated
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Strict scrutiny applied
Numerical set asides requie clear proof of past discrimination Educational institutions may use race as one factor in admissions decisions Seniority systems may not be disrupted for affirmative action |
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What level of scrutiny is used for gender classifications
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Intermediate scrutiny
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If a law is facially neutral, proving a gender classification requires demonstrating both
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discriminatory impact and discriminatory intent
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How should gender classifications benefiting women be treated
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If based on role stereotypes, not allowed
Ex: Only women can get alimony Those designed to remedy past discrimination and differences in opportunity will be allowed |
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What level of scrutiny is used for alienage classifications
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Strict scrutiny for most
Rational basis test for those that concern self government and the democratic process and for congressional discrimination |
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Government may discriminate against non-citizens with regard to:
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voting, serving on a jury, being a police officer, teacher or probation officer
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What level of scrutiny is used for discrimination against undocumented alien children
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Intermediate scrutiny
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What level of scrutiny is used in discrimination against non-marital children
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Intermediate scrutiny
Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional |
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Use rational basis review for:
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Age discrimination
Disability discrimination Wealth discrimination Economic regulations Sexual orientation discrimination |
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What are fundamental rights under equal protection
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The right to travel and the right to vote
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The right to travel is fundamental under
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The 14th Amendment due process clause
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Laws that prevent people from moving into a state must meet
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strict scrutiny
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Durational residency requirements must meet
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strict scrutiny
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Restrictions on foreign travel need meet
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rational basis test
Not a fundamental right to international travel |
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15th Amendment
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Right to vote shall not be denied on account of race
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Laws that deny some citizens the right to vote must meet
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strict scrutiny
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Rule for all state and local elections must be
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One person one vote
Districts must be about equal in population Voter approval does not justify deviation from the rule |
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At large elections are constitutional unless
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there is proof of a discriminatory purpose
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The use of race in drawing election district lines must meet
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strict scrutiny
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Counting uncounted votes in a presidential election...
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without standards violates equal protection
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Content based restrictions on speech must generally meet
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strict scrutiny
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Types of content based laws
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Subject matter restrictions--application of law depends on topic
Viewpoint restriction--application of law depends on ideology of the method |
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Content neutral laws burdening speech generally need meet
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Intermediate scrutiny
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Court orders suppressing speech must meet
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Strict scrutiny
Procedurally proper court orders must be complied with until thaey are overturned A person who violates a court order is barred from later challenging it even if it was unconstitutional |
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Gag orders on press to prevent prejudicial pretrial publicity are
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Not allowed
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The government may require a license for speech only if:
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there is an important reason for licensing and clear criteria leaving alomost no discretion to licensing authority
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Vagueness
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A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
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Overbreadth
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A law is unconstitutionally overbroad if it reguolates substantially more speech than the constitution allows to be regulated
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Fighting words laws are:
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Not constitutionally protected speech, but never get a conviction b/c always vague and overbroad
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Symbolic speech
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Government can regulate conduct that communicates if it has an important interest unrelated to suppression of teh message and if the impact on communication is not greater than necessary to achieve the government's purpose
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What symbolic speech is protected
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Flag burning
Cross burning unless there is proof of an intent to threaten or intimidate |
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What symbolic speech is not protected
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Nude dancing
Draft card burning |
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Contribution limits in election campaigns_________ but expenditure limits________
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Constitutional, Unconstitutional
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Anonymous speech is
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Protected--right to not speak which includes not disclosing identity
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Incitement of illegal activity
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Clear and present danger
Can punish speech if there is a substantial likelihood of imminent illegal activity and the speech is directed to causing imminent illegality |
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Test for obscenity and sexually oriented speech
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1. Material must appeal to the prurient interest (community standard)
2. Material must be patently offensive under teh law prohibiting obscenity 3. Taken as a whole, teh material must lack serious redeeming artistic, literary, political or scientific value (national standard) |
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Child pornography can be completely banned even..
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if not obscene.
Children must be used in teh production, not just computer generated images or adultes with childlike appearance |
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Government may not punish private persons in possession of obscene material but may punish...
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private possession of child pornography
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May the government seize assets of businesses convicted of violating obscenity laws
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Yes even if not all obscene
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Profane and indecent speech is generally protected unless
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It comes over the radio or TV or is in schools
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Advertising for illegal activity and false and deceptive ads are
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not protected by teh 1st Amendment
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True commercial speech that inherently risks deception...
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can be prohibited.
Professionals can be prevented from advertising under a trade name Gov't may prohibit atty in person solicitations for profit Gov't may not prohibit accountants from in person solicitation |
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Other commercial speech can be regulated if it meets
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intermediate scrutiny
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