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85 Cards in this Set

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What are the requiremens for standing
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)
When is 3rd party standing allowed
1. Close relationship
2. 3rd party is unlikely to be able to assert his own right
3. Organization may sue for its members
Requirements for Associational Standing
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
When may a P sue as a taxpayer
To challenger government expenditures of money (not property) as violating the Establishment Clause
Exceptions to Mootness
1. Capable of repitition yet evading review
2. Voluntary cessation
3. Class action suits
Categories of Political Questions
1. Republican form of government clause
2. President's conduct of foreign policy
3. Impeachment and removal process
4. Partisan gerrymandering
Rule of 4
Need 4 votes of justices to hear a case by writ of certiorari
Exceptions to state immunity
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
When does the federal government have police power
If legislating for military, Indian reservations, federal land or territories, and District of Columbia

Federal Police Power is MILD
Article I Section 8
Commece Power
What may Congress regulate under the Commerce power
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
Wicker v. Filburn
Wheat for personal consumption has a "cumulative impact"

Cumulative effect can't be for things other than economic
10th Amendment
All powers not granted to the US an not prohibited to the states are reserved to the states
Can Congress compel state regulatory or legislative action
No but can induce them to act by putting strings on grants
May Congress Delegate legislative power
Yes but must give intelligible principles to guide the delegation
What test is used for laws effecting economic rights
Rational basis test

Ex: Consumer protection law = rational basis
The takings clause
The government may take private property for public use if it provides just compensation
(don't use rational basis)
Possessory Taking
Government confiscation or physical occupation of property is a taking no matter how small
Regulatory Taking
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
In order to not be a taking government conditions on development of property must be...
justified by a benefit that is roughly proportionate to teh burden imposed
Is temporarily denying an owner use of his property a taking?
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
Can a property owner challenge as a taking regulations that existed at teh time the property was acquired?
Yes
Public use for a taking
Broad--taking is for a public use if the government acts out of a reasonable belief that the taking will benefit the public
Just compensation for a taking
Measured in terms of loss to the owner not in terms of gain to the taker
The contracts clause
No STATE shall impair the obligations of k

Only applies to state and local government
State interference with private contracs must meet
intermediate scrutiny

Must be a reasonably and narrwoly tailored means of promoting an important and legitimate public interest
State interference with a government contract must meet
Strict scrutiny
Does the ex post facto clause apply in civil cases?
No, retroactive liability need only meet a rational basis test
Fundamental Rights Protected under due process
Contraception, Abortion, Marriage, Procreation, Eduction, Relations (family)

CAMPER--must pass strict scrutiny
The right to custody of one's children
State may create an irrebuttable presumption that a married woman's husband is the father of her child
The right to keep the family together
Broader than parents and children but the individuals must be related
The right to control the upbringing of one's children
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
The right to an abortion
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
Examples of regulation of abortion that is not an udue burden
24 hour waiting period for abortions

Requirement that they be performed by a licensed physician
Is the prohibition of partial birth abortions allowed
No it is an undue burden
Does the government have a duty to subsidize abourtions or provide abortions in public hospitals
NO
Parental consent laws for unmarried minors
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
The right to refuse medical treatment
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
Does the equal protection clause of the 14th Amendment apply to the federal government
NO, only state and local government
How is equal protection applied to the federal government
Through the due process clause of teh 5th Amendment
What level of scrutiny is used for race based classifications
strict scrutiny
If a law is facially neutral, proving a racial classification requires demonstrating both...
discriminatory impact and discriminatory intent
How should racial classifications benefiting minorities be treated
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
What level of scrutiny is used for gender classifications
Intermediate scrutiny
If a law is facially neutral, proving a gender classification requires demonstrating both
discriminatory impact and discriminatory intent
How should gender classifications benefiting women be treated
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
What level of scrutiny is used for alienage classifications
Strict scrutiny for most

Rational basis test for those that concern self government and the democratic process
and for congressional discrimination
Government may discriminate against non-citizens with regard to:
voting, serving on a jury, being a police officer, teacher or probation officer
What level of scrutiny is used for discrimination against undocumented alien children
Intermediate scrutiny
What level of scrutiny is used in discrimination against non-marital children
Intermediate scrutiny

Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional
Use rational basis review for:
Age discrimination
Disability discrimination
Wealth discrimination
Economic regulations
Sexual orientation discrimination
What are fundamental rights under equal protection
The right to travel and the right to vote
The right to travel is fundamental under
The 14th Amendment due process clause
Laws that prevent people from moving into a state must meet
strict scrutiny
Durational residency requirements must meet
strict scrutiny
Restrictions on foreign travel need meet
rational basis test

Not a fundamental right to international travel
15th Amendment
Right to vote shall not be denied on account of race
Laws that deny some citizens the right to vote must meet
strict scrutiny
Rule for all state and local elections must be
One person one vote

Districts must be about equal in population

Voter approval does not justify deviation from the rule
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 in a presidential election...
without standards violates equal protection
Content based restrictions on speech must generally meet
strict scrutiny
Types of content based laws
Subject matter restrictions--application of law depends on topic

Viewpoint restriction--application of law depends on ideology of the method
Content neutral laws burdening speech generally need meet
Intermediate scrutiny
Court orders suppressing speech must meet
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
Gag orders on press to prevent prejudicial pretrial publicity are
Not allowed
The government may require a license for speech only if:
there is an important reason for licensing and clear criteria leaving alomost no discretion to licensing authority
Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
Overbreadth
A law is unconstitutionally overbroad if it reguolates substantially more speech than the constitution allows to be regulated
Fighting words laws are:
Not constitutionally protected speech, but never get a conviction b/c always vague and overbroad
Symbolic speech
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
What symbolic speech is protected
Flag burning

Cross burning unless there is proof of an intent to threaten or intimidate
What symbolic speech is not protected
Nude dancing

Draft card burning
Contribution limits in election campaigns_________ but expenditure limits________
Constitutional, Unconstitutional
Anonymous speech is
Protected--right to not speak which includes not disclosing identity
Incitement of illegal activity
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
Test for obscenity and sexually oriented speech
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)
Child pornography can be completely banned even..
if not obscene.

Children must be used in teh production, not just computer generated images or adultes with childlike appearance
Government may not punish private persons in possession of obscene material but may punish...
private possession of child pornography
May the government seize assets of businesses convicted of violating obscenity laws
Yes even if not all obscene
Profane and indecent speech is generally protected unless
It comes over the radio or TV or is in schools
Advertising for illegal activity and false and deceptive ads are
not protected by teh 1st Amendment
True commercial speech that inherently risks deception...
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
Other commercial speech can be regulated if it meets
intermediate scrutiny