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92 Cards in this Set
- Front
- Back
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May Congress delegate its ability to legislate?
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Yes, but must give intelligible principles to guide the delegation
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What are the requirements for Congress to act
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Bicameralism (passage in house and senate)
Presentment to president President signs or vetos bill in its entirety |
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May Congress delegate executive power to itself?
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No, nor to its officers
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Treaties
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Negotiated by president and ratified by the senate
Prevail over conflicting state laws |
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If a treaty and a federal law are at odds, which one prevails?
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The one adopted last in time
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Presidents appointment power
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He appoints amabssadors, federal judges adn officers of teh US
Senate must confirm the appointment |
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Who may appoint inferior officers
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Congress may vest the power ieh president, the heads of departments or teh lower federal courts
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May Congress give itself the appointment power
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NO, cannot appoint any members of an agency
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What is the scope of the president's removal power?
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Unless removal is limited by statute, he may fire any executive branch office
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When may Congress limit the president's removal power?
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When the office is one where independence from the president is desirable
Ex: Independent Counsel **Congress may never prohibit removal, only limit it to where there is good cause |
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Who can be impeached and for what?
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President, VP, federal judges and officers of the US
For high crimes and misdemeanors |
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Does impeachment remove a person from office?
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NO, House impeaches and the Senate decides whether or not to remove
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Presidents immunity
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Absolute as to civil suits for money damages for any action while in office
No immunity for actions that occurred prior to taking office |
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President's executive privilege
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Has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interets
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Whom may the president pardon
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FEDERAL CRIMINAL liability
Exception: may never pardon for that for which someone has been impeached |
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Express preemption
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If a federal statute particularly says that federal law is exclusive in a field the state and local law is preempted
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Environmental standards
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States may set environmental standards stricter than federal law for private individuals unless Congress specifically prohibits
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Implied Preemtion
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1. If federal and state laws aer mutually exclusive, federal law preempts state law
2. If state law impedes the achievement of a federal objective, federal law preempts state law 3. If Congress evidences a clear intent to preempt state law, federal law preempts staet law |
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May states tax or regulate federal government activity
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No
Federal government never has to comply with state pollution laws Unconstitutional to pay state taxes out of the federal treasury |
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Dormant Commerce Clause
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State and local laws are unconstitutional if they place an excessive burden on interstate commerce
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Privileges and Immunities of ARTICLE IV
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Anti-discrimination provision
No state may deprive citizens of another state teh privileges and immunities it gives to its own citizens |
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Privileges and Immunities of 14TH AMENDMENT
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Right to Travel
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If a law does not discriminate against out of staters
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The law burdens interstate commerce if its burdens exceed its benefits
(violates DCC) |
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If a law discriminates against out of staters
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1. If the law burdens interstaet commerce if volates the DCC unless it is NECESSARY to achieve an important government interest
Exceptions: Congressional approval or Market participant |
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Market Participant Exception to DCC
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A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses
Ex: State school tuition, concrete company |
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If a law violates P&I of Article IV
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If the law discriminates against out of staters with regard to their ability to earn their livelihood it violates unless it is necessary to achieve an important government purpose
Can't be used by corporations and aliens discrimination must be necessary and no less discriminatory means available |
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When must courts give full faith and credit
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1. The court that rendered the judgment had jurisdiction over the parties and the subject matter
2. The judgment was on the merits 3. The judgment was final |
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Does private conduct need to comply with the Constitution?
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No,it only applies to government action
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May Congress apply constitutional norms to private concuct?
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Yes, by statute
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13th Amendment
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Only slavery violates the 13th Amendment
Discrimination can violate statutes adopted by Congress under the 13th |
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Section 5 of the 14th Amendment
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Cannot be used to regulate private behavior, can only regulate state and local government
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Situations where private conduct must comply with the Constitution
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1. The public function exception (doing a function traditionally and exclusively done by government)
2. Entanglement--if government affirmatively authorizes, encourages or facilitates unconstitutional activity |
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Examples of entanglement
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1. Courts cannot enforce racially restrictive covenants
2. Leasing premises to a business that discriminates 3. Giving books to schools that discriminate 4. When a private entity regulates interscholastic sports within a state |
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Examples of no state action for entanglement
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1. When a private school is 99% fundend by the government and a teacher is fired for her speech
2. NCAA orders the suspension of a coach 3. Private club with a liquor license discriminates |
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Is a government subsidy state action?
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NO
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Which of the Bill of Rights are not incorporated to the states by the 14th Amendment
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1. 2nd Am. right to bear arms
2. 3rd Am. right not to have a soldier quartered in your home 3. 5th Am. right to grand jury indictment 4. 7th Am. right to jury trial in civil cases 5. 8th Am. right against excessive fines |
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Rational Basis Test
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A law is upheld if it is rationally related to a legitimate government purpose
Actual purpose does not have to be permissible, only the stated goal |
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Who has the burden of proof in rational basis test
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Challenger
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Intermediate Scrutiny
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Law is upheld if it is substantially related to an important government purpose
Government objective must be important--look only to actual purpose Means must be narrowly tailored but not least restrictive |
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Who has burden of proof in intermediate scrutiny
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Government
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Strict Scrutiny
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Law upheld if necessary to achieve a compelling government purpose
Look only to actual objective Must be least restrictive alternative |
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A deprivation of liberty occurs when
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there is a loss of a significant freedom provided by the Constitution or statute
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Except in an emergency before an adult can be institutionalized there must be?
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Notice and a hearing
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When a parent institutionalizes a child there needs to be?
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A screening by a neutral factfinder
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Is harm to reputation a deprivation of liberty?
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Not by itself, must prove some tangible economic loss
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Do prisoners have liberty interests?
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Rarely
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When is there a deprivation of property
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When there is an entitlement and that entitlment is not fulfilled
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When does an entitlement exist
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If there is a reasonable expectation of continued receipt of a benefit
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Is government negligence a sufficient depravation of due process?
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No, generally has to be intentional or reckless action
In an emergency the government is liable under due process only if the conduct shocks the conscience |
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What procedures are required under due process?
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1. The importance of the interest to teh individual
2. The ability of additional procedures to increase the accuracy of the fact-finding 3. The governments interest BALANCE |
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Before welfare to be terminated there must be
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Notice and a hearing
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When SS disbility benefits are terminated ther need be
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only a post termination hearing
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Whare a student is disciplined by a public school there must be
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notice of the charges and an opportunity to explain
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Before parents right to custody can be permanently terminated there must be
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notice and a hearing
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Punitve damage awards require
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instructions to the jury and judicial review to ensure reasonableness
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An amerian citizen apprehended in a foreign country and held as an enemy combatant must get
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due process
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Except in exegent circumstances, pre-judgment attachment or government seizure of assets must be preceeded by
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notice and a hearing
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Does government regulation of commercial speech need to be the least restrictive alternative
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No, just narrowly tailored
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If the P is a public official or running for public office P can recover for defamation by proving:
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Falsity of the statement and actual malice
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If the P is a public figure teh P can recover for defamation by proving
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Falsity and actual malice
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If teh P is a private figure adn the matter is of public concern P may recover by proving
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falsity and negligence by the D. However, the P may recover presumed or punitive damages only by showing actual malice
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If the P is a private figure and the matter is not of public concern the P can recover punitive damages
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without showing actual malice
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What if information was lawfully obtained and reported truthfully
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Even under privacy, government cannot create liability
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If the media broadcasts a tape of an illeally intercepted call
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Liability is not allowed if the media did not participate in the illegality and it involves a matter of public importance
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The government _______ limit its dissemination of information to protect privacy.
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May
Only have to allow press and public to attend criminal trials and most pretrial proceedings |
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Public Forum
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Government properties that hte government is constitutionally required to make available for speech
Sidewalks, parks, etc. |
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Can the government regulate speech in a public forum?
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Yes but the regulation must be subject matter and viewpointe neutral or meet strict scrutiny
Should be time, place and manner regulations that serves an important purpose and leaves adequate alternative places for communication Need not be the least restrictive means City officials cannot have discretion to set permit fees for public demonstrations |
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Limited public forum
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Government properties that the government could close to speech but chooses to open to speech
Ex: School facilities open at night |
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Non-public forums
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Government properties that the government constitutionally can and does close to speech
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Regulation in a non-public forum must be
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Reasonable and viewpoint neutral
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Examples of non-public forums
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Military bases, even parts usually open to the public
Advertising space on city busses Sidewalks on Post office property Airports--may prohibit solicitation of $ but no distribution of literature |
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Laws that prohibit or punish group membership must meet
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strict scrutiny
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Does government regulation of commercial speech need to be the least restrictive alternative
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No, just narrowly tailored
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If the P is a public official or running for public office P can recover for defamation by proving:
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Falsity of the statement and actual malice
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If the P is a public figure teh P can recover for defamation by proving
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Falsity and actual malice
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If teh P is a private figure adn the matter is of public concern P may recover by proving
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falsity and negligence by the D. However, the P may recover presumed or punitive damages only by showing actual malice
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If the P is a private figure and the matter is not of public concern the P can recover punitive damages
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without showing actual malice
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What if information was lawfully obtained and reported truthfully
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Even under privacy, government cannot create liability
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If the media broadcasts a tape of an illeally intercepted call
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Liability is not allowed if the media did not participate in the illegality and it involves a matter of public importance
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The government _______ limit its dissemination of information to protect privacy.
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May
Only have to allow press and public to attend criminal trials and most pretrial proceedings |
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Public Forum
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Government properties that hte government is constitutionally required to make available for speech
Sidewalks, parks, etc. |
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Can the government regulate speech in a public forum?
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Yes but the regulation must be subject matter and viewpointe neutral or meet strict scrutiny
Should be time, place and manner regulations that serves an important purpose and leaves adequate alternative places for communication Need not be the least restrictive means City officials cannot have discretion to set permit fees for public demonstrations |
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Limited public forum
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Government properties that the government could close to speech but chooses to open to speech
Ex: School facilities open at night |
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Non-public forums
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Government properties that the government constitutionally can and does close to speech
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Regulation in a non-public forum must be
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Reasonable and viewpoint neutral
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Examples of non-public forums
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Military bases, even parts usually open to the public
Advertising space on city busses Sidewalks on Post office property Airports--may prohibit solicitation of $ but no distribution of literature |
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Laws that prohibit or punish group membership must meet
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strict scrutiny
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To punish membership in a group it must be proven that the person
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1. Actively affiliated with the group
2. Knowing of its illegal activities 3. With specific intent of furthering those illegal activities |
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Laws that require disclosure of group membership must meet:
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strict scrutiny if such disclosure would chill association
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Laws that prohibit a group from discriminating are constitutional unless they:
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Interfere with intimate association or expressive activity
Ex: Boy scouts don't have to allow a gay scoutmaster |
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The free exercise clause cannot be used to challenge:
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A neutral law of general applicability
Must show the law is intended to target religion or motivated by a desire to get at religion |
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Leon Test
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Secular purpose for the law
Effect neither to advance nor prohibit religion no eXessive entanglement with religion SEX |
