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92 Cards in this Set

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May Congress delegate its ability to legislate?
Yes, but must give intelligible principles to guide the delegation
What are the requirements for Congress to act
Bicameralism (passage in house and senate)
Presentment to president
President signs or vetos bill in its entirety
May Congress delegate executive power to itself?
No, nor to its officers
Treaties
Negotiated by president and ratified by the senate

Prevail over conflicting state laws
If a treaty and a federal law are at odds, which one prevails?
The one adopted last in time
Presidents appointment power
He appoints amabssadors, federal judges adn officers of teh US

Senate must confirm the appointment
Who may appoint inferior officers
Congress may vest the power ieh president, the heads of departments or teh lower federal courts
May Congress give itself the appointment power
NO, cannot appoint any members of an agency
What is the scope of the president's removal power?
Unless removal is limited by statute, he may fire any executive branch office
When may Congress limit the president's removal power?
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
Who can be impeached and for what?
President, VP, federal judges and officers of the US

For high crimes and misdemeanors
Does impeachment remove a person from office?
NO, House impeaches and the Senate decides whether or not to remove
Presidents immunity
Absolute as to civil suits for money damages for any action while in office

No immunity for actions that occurred prior to taking office
President's executive privilege
Has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interets
Whom may the president pardon
FEDERAL CRIMINAL liability

Exception: may never pardon for that for which someone has been impeached
Express preemption
If a federal statute particularly says that federal law is exclusive in a field the state and local law is preempted
Environmental standards
States may set environmental standards stricter than federal law for private individuals unless Congress specifically prohibits
Implied Preemtion
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
May states tax or regulate federal government activity
No

Federal government never has to comply with state pollution laws

Unconstitutional to pay state taxes out of the federal treasury
Dormant Commerce Clause
State and local laws are unconstitutional if they place an excessive burden on interstate commerce
Privileges and Immunities of ARTICLE IV
Anti-discrimination provision

No state may deprive citizens of another state teh privileges and immunities it gives to its own citizens
Privileges and Immunities of 14TH AMENDMENT
Right to Travel
If a law does not discriminate against out of staters
The law burdens interstate commerce if its burdens exceed its benefits
(violates DCC)
If a law discriminates against out of staters
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
Market Participant Exception to DCC
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
If a law violates P&I of Article IV
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
When must courts give full faith and credit
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
Does private conduct need to comply with the Constitution?
No,it only applies to government action
May Congress apply constitutional norms to private concuct?
Yes, by statute
13th Amendment
Only slavery violates the 13th Amendment

Discrimination can violate statutes adopted by Congress under the 13th
Section 5 of the 14th Amendment
Cannot be used to regulate private behavior, can only regulate state and local government
Situations where private conduct must comply with the Constitution
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
Examples of entanglement
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
Examples of no state action for entanglement
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
Is a government subsidy state action?
NO
Which of the Bill of Rights are not incorporated to the states by the 14th Amendment
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
Rational Basis Test
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
Who has the burden of proof in rational basis test
Challenger
Intermediate Scrutiny
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
Who has burden of proof in intermediate scrutiny
Government
Strict Scrutiny
Law upheld if necessary to achieve a compelling government purpose

Look only to actual objective

Must be least restrictive alternative
A deprivation of liberty occurs when
there is a loss of a significant freedom provided by the Constitution or statute
Except in an emergency before an adult can be institutionalized there must be?
Notice and a hearing
When a parent institutionalizes a child there needs to be?
A screening by a neutral factfinder
Is harm to reputation a deprivation of liberty?
Not by itself, must prove some tangible economic loss
Do prisoners have liberty interests?
Rarely
When is there a deprivation of property
When there is an entitlement and that entitlment is not fulfilled
When does an entitlement exist
If there is a reasonable expectation of continued receipt of a benefit
Is government negligence a sufficient depravation of due process?
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
What procedures are required under due process?
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
Before welfare to be terminated there must be
Notice and a hearing
When SS disbility benefits are terminated ther need be
only a post termination hearing
Whare a student is disciplined by a public school there must be
notice of the charges and an opportunity to explain
Before parents right to custody can be permanently terminated there must be
notice and a hearing
Punitve damage awards require
instructions to the jury and judicial review to ensure reasonableness
An amerian citizen apprehended in a foreign country and held as an enemy combatant must get
due process
Except in exegent circumstances, pre-judgment attachment or government seizure of assets must be preceeded by
notice and a hearing
Does government regulation of commercial speech need to be the least restrictive alternative
No, just narrowly tailored
If the P is a public official or running for public office P can recover for defamation by proving:
Falsity of the statement and actual malice
If the P is a public figure teh P can recover for defamation by proving
Falsity and actual malice
If teh P is a private figure adn the matter is of public concern P may recover by proving
falsity and negligence by the D. However, the P may recover presumed or punitive damages only by showing actual malice
If the P is a private figure and the matter is not of public concern the P can recover punitive damages
without showing actual malice
What if information was lawfully obtained and reported truthfully
Even under privacy, government cannot create liability
If the media broadcasts a tape of an illeally intercepted call
Liability is not allowed if the media did not participate in the illegality and it involves a matter of public importance
The government _______ limit its dissemination of information to protect privacy.
May

Only have to allow press and public to attend criminal trials and most pretrial proceedings
Public Forum
Government properties that hte government is constitutionally required to make available for speech

Sidewalks, parks, etc.
Can the government regulate speech in a public forum?
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
Limited public forum
Government properties that the government could close to speech but chooses to open to speech

Ex: School facilities open at night
Non-public forums
Government properties that the government constitutionally can and does close to speech
Regulation in a non-public forum must be
Reasonable and viewpoint neutral
Examples of non-public forums
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
Laws that prohibit or punish group membership must meet
strict scrutiny
Does government regulation of commercial speech need to be the least restrictive alternative
No, just narrowly tailored
If the P is a public official or running for public office P can recover for defamation by proving:
Falsity of the statement and actual malice
If the P is a public figure teh P can recover for defamation by proving
Falsity and actual malice
If teh P is a private figure adn the matter is of public concern P may recover by proving
falsity and negligence by the D. However, the P may recover presumed or punitive damages only by showing actual malice
If the P is a private figure and the matter is not of public concern the P can recover punitive damages
without showing actual malice
What if information was lawfully obtained and reported truthfully
Even under privacy, government cannot create liability
If the media broadcasts a tape of an illeally intercepted call
Liability is not allowed if the media did not participate in the illegality and it involves a matter of public importance
The government _______ limit its dissemination of information to protect privacy.
May

Only have to allow press and public to attend criminal trials and most pretrial proceedings
Public Forum
Government properties that hte government is constitutionally required to make available for speech

Sidewalks, parks, etc.
Can the government regulate speech in a public forum?
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
Limited public forum
Government properties that the government could close to speech but chooses to open to speech

Ex: School facilities open at night
Non-public forums
Government properties that the government constitutionally can and does close to speech
Regulation in a non-public forum must be
Reasonable and viewpoint neutral
Examples of non-public forums
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
Laws that prohibit or punish group membership must meet
strict scrutiny
To punish membership in a group it must be proven that the person
1. Actively affiliated with the group
2. Knowing of its illegal activities
3. With specific intent of furthering those illegal activities
Laws that require disclosure of group membership must meet:
strict scrutiny if such disclosure would chill association
Laws that prohibit a group from discriminating are constitutional unless they:
Interfere with intimate association or expressive activity

Ex: Boy scouts don't have to allow a gay scoutmaster
The free exercise clause cannot be used to challenge:
A neutral law of general applicability

Must show the law is intended to target religion or motivated by a desire to get at religion
Leon Test
Secular purpose for the law
Effect neither to advance nor prohibit religion
no eXessive entanglement with religion

SEX