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180 Cards in this Set

  • Front
  • Back
The requirement for cases and controversies
1. standing
2. ripeness
3. mootness
4. political question doctrine
Standing is the issue of whether the palintiff is the proper party to bring a matter to the court for adjudication.
Requirements for standing
1. Injury- the plaintiff must allege and prove that he or she has been injured or imminently will be injured. May only assert injuries that they personally have suffred, P's seeking injuinctive or declaratory relief must show liklihood of future harm.
2. Causation and redressability- The P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the injury
3. No 3rd Party standing- unless close relationship
4. No generalized greivances- P must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. Exception- taxpayers
Question of wheter a federal court may grant pre-enforcement review of a statute or regulation.
If events after the filing of a lawsuit end the P's injury the case must be dismissed as moot. Exception: wrong capable of repetition but evading review or voluntary cessation
The political quesiton doctrine
The political quesiton doctrine refers to constitutional violations that the federal courts will not adjudicate.
1. the repbulican form of government clause
2. Challenges to the President's conduct of foreign policy
3. Challenges to the impeachment and removal process
Supreme Court review
Vitually all cases come to the SC by writ of certiorari:
1. All cases from state courts come to the SC by writ
2. All cases from US court of appeals come by writ.
3. Appeals exist for decisions of three judge federal district courts
4. The SC has original and exclusive jurisdiction for suits between state governments.
What has to happen at the state court level in order for the SC to hear the case?
There must not be an independent and adequate state law groudn of decision. If a state court cedision rests on two grounds, one state law and one federal law, if the SC's reveral of the federal law ground will not change the result in the case, the SC cannot hear it.
When may SC hear cases?
only after there has been a final judgment of the highest state court, of a United States Court of Appeals, or of the three judge federal disctrict court
Original Juridiciton
The SC has original jurisdiction in all casese affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has gien concurrent jurisdiciton to lwoer federal courts in all cases except those between states.
Appellate Jurisdiciton
The SC has appellate jurisdiciton in all cases to which federal power extends, subject to congressional exceptiong and regulation. Cases can come to the Court by one of two ways:
1. Writ of Certorari
2. Appeal
Writ of Certiorari
Teh SC has complete discretion to hear casese that come to it by certiorari. the casese that come by certiorari are:
1. Cases from state courts where the constitutionality of a federal statute, federal treaty, or state statute is in issue or a state statute allegedly violates a federal law
The SC must hear cases that come to it by appeal. These cases are confined to decisions by a three jduge federal distrcit court panel that grants or denies injunctive relief.
No Advisory Opinions
There must be specific present harm or threat of specific future harm. Fed ocurt can hear actions from declaratory relief if thre is an actual dispute between parties having adverse legal interests. Complainants must show that they have engaged in specific conduct and that the challenged action poses a real and immediate danger to their interests. However, the federal court will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.
Immediate threat of harm- A P is not entitled to review of a statute or regulation before its enforcement unless the P will suffer some harm or immediate threat of harm.
A realy controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot. Exception: contoversies capable of repetition and class actions representaties
A person must have a concret stake in the outcome of the case.
Components of standing
1. Injury- P must show that hse has been or will be directly or personally injured by the allegedly ulawful government action, which affectes her rights under the Const. or federal law. Injury need not be economic.
2. Causation- injury and conduct complained of
3. Redressability- a decision in the litigant's favor must be capable of eliminating grievance.
Common Standing Issues
1. congressional conferral of standing
2. standing to enforce government statutes- zone of interests
3. Standing to assert rights of others-
4. standing of organizations
5. no citizenship standing- no standing merely as citizens
6. taxpayer standing requisites- has standing to litigate her tax bill, exception, first amendment
7. legislator's standing- personal stake and concrete injury
Adequate and Independent Staet Grounds
The SC will not exercise jurisdiciton if the state court judgment is based on adequate and independent state law grounds--even if federal issues are involved. State law grounds are adequate if the are fully dispositive of the case. The are independent if the decison is not based on federal case interpretations of identical federal provisions. When the state court has not clearly indicated that its decision rests on state law, the SC may hear the case.
1. Unsettled Question of State law- A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled quesiton of state law.
2. Pending state proceedings- federal court will not enjoing pending state criminal proceedings.
Political Questions
They will not be decided. Theses are issues
1. constitutionally committed to another branch of government or
2. inherently incapable of judicial resolution
Examples of Political Questions
Challenges based on Republican form of Government clasue of article IV, challenges to congressional procedures for ratifying constitutional amendments, and the President's conduct of foreign policy and political qusetions
Eleventh Amendment Limits on Federal Courts
It prohibits federal courts from hearing a private party's or foreign government's clais against a state government.
Enumerated and Implied Powers
Congress can exercise those powers enumerated in the Constitution plus auxiliary powers necessary and proper to carry out all powers vested in the federal government
Necessary and Proper Power
Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. It must work in conjunction with another federal pwoer to support federal law.
Taxing Power
Congress has the pwoer to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate activity taxed. However, neither Congress nor the states may tax exports to foreign contries.
Spending Power
Congress may spend to "provide for the common defense and general welfare". Spending may be for any public purpose.
Commerce Power
Congress has the exclusive power to regulate all foreign and interstate commerce. To be within Congress's power under the Commerce Clause, a federal law regulating interstate commerce must either:
1. regulate teh channels of interstate commerce
2. regulate the instrumentalities of interstate commerce and persons and things in interstate commerce or
3. Regulate activities that have a substantial effect on interstate commerce.
If Congress attemtps to regulate noneconomic intrastate activity, the feds must prove to teh cour that the activity in fact affects interstate commerce.
War and Related Powers
The Constitution gives Congress the power to declare war, raise and support armies, and provide for and maintain a navy.
1. Economic Regulation- during war and in the powtwar period to remedy wartime disruptions has been upheld
2. Military Courts and Tribunals- is authorized to make rules for the government and regulation of armed forces.
Military Courts and Tribunals
Congress is authorized under the war related powers to make rules for the government and regulation of armed forces.
1. Judicial review- regular federal courts have not general power of review over court martial proceedings.
2. Enemy Civilians and Soldiers- enemy civilians and soldiers may be tried in military courts
3. American soldiers- military courts have jurisdiciton over all offenses committed by persons who are members o fhte amred services both at the time the offense and when charged.
4. American Civilians- only if war forces courts to shut down
Investigatory Pwer
This power of Congress is implied. Investigation must be expressly or impliedly authorized by the appropriate congressional house.
Property Power
Congress has the pwoer to dispose of and make rules for territories and other properties of the US. While there is no express limitation on Congress's power to dispose of property, federal taking must be for the purpose of effectuating an enumerated power under some other provision of the Constitutions.
Now Federal Police Power
Congress has no general police power. However, Congress has police power type pwers over the DC, federal lands, military bases, and indian reservations.
Bankruptcy power
Congress has power to establish uniform rules for bankruptcy is nonexclusive; states may legislate in teh field as long as their laws do not conflict with federal laws.
Postal Power
The postal power is exclusive. Under the postal power, Congress may validly classify and place reasonable restriction on use of the mails, but may not deprive any citizen or group of citizens of the mail privilege.
Power over Citizensip
Congress may establsih uniform rules of naturalizaiton. This gives Congress plenary power over aleins.
Admiralty Power
Congress's admiralty power is pleanary and exclusive unless Congress leaves maritime matters to state jurisdiciton.
Power to Coin Money and fix Withgts and Measures
Congress has the power to coin money and fix standards for weights and measures.
Patent and Copyright Power
Congress has teh pwoer to control teh issuance of patents and copyrights.
Delegation of Legislative Power
Legislative pwoer may genreally be delegated to teh executive or judicial branch as long as intelligible standards are se tand teh power is not uniquely confined to Congress (power to declare war, impeach). never invalidated.
Speech and Debate Clause
Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.
Congressional Veto of Executive Actions invalid
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism or presentment. Legislative vetoes of executive actions are invalid.
Executive Powers
1. Appointment Powers
2. Removal of Appointees
3. Pardons
4. Veto Power
5. Power as Executive Chief
6. War- as military hostilities, can't declare
7. foreign relations
8. treaty
9. executive agreements
Appointment Powers
The executive appoints "all ambassadors, other public ministers and consuls, justices of the SC, and all other officers of the US whose appointments are not otherwise provided for with advice and consent of Senate. Congress, however, may vest teh appointment of infereior officers in teh president alone, the courts, or the heads of departments.
Appointment of Independent Counsel
a special prosecutor is an inferior officer, and therefore the appointment clause allows congress to vest teh power to appoint a speical prosecutor in the judiciary.
Removal of Appointees
1. By president- the president can remove high level, purely executive officers at will, without any interference of Congress. However, Congress may provide statutory limitations on the Presidne't power to remove all other executive appointees.
2. Congress- may remove executive officers only through the impeachment process
The President may grant pardons for all federal offenses but not for impeachment or civil contempt. the pardon power cannot be limited by congress.
Veto Power
If the president disapproves an act of congress, teh act may still become law if the veto is overridden by a two thirds vote of each house:
1. Pocket Veto- has 10 days to exercise. If he fails to act within that time, the bill is automatically vetoed if Congress is not in session. If Congress is in session , the bill becomes a law.
2. Line Item Veto- The veto power allows teh President only to approve or reject a bill in toto- he cannot cancel party adn approve parts.
Power as Chief Executive
Clearly the President has some power to direct subordinate executive officers, and there is a long history of Presidents issuing executive orders. Perhaps the best guide follows:
1. If he acts with express or implied authority of congress, his authority is at its maximum and his actions valid.
2. If he acts where Congress is silent, his aciton will be uphel unless it usurps teh power of anohter branch or prevents anohter branch from carrying out its tasks an
3. If he acts against will of Congress, he has little authority and is likely invalid.
President and War Powers
The President ahs no powers to declare war but may act militarily in actual hostilities against the US without a congressional declaration of war. However, Congress, unders its power to enact a military appropriation every two years, may limit the President.
Treaty Power
The President has the power ot enter into treaties with the consent of 2/3 of the Senate. State laws that conflict are invalid. A conflict between a treaty and congressional act, the last in time prevails.
Executive Agreements
signed by Prsident and the head of a foreign country. the y can be used for any purpose taht treaties can be used for. They do not require consent of senate. If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.
Executive Privilege
The president has the privilege to keep certain communications secret. Notation security secretes are given great deference by the courts.
2. The President has absolute immunity from civil damages based on any action he took within his oficial responsibilities, but there is not immunity for actgs that allegedly occurre before taking office.
Impeachment of President
A majority vote in house and two-thirds vote in senate.
Supremacy Clause
A federal law may supercede or preempt local laws.
1. Conflict between state and federal laws- teh state law shall be invalidated
2. State prevents Achievement of Federal objective- if state or local law prevents achievement of a federal objective, it will be invalidated.
3. Preempton- a valid federal statute or regulation may expressly or impliedly occupy the entire field, thus precluding any state or local regulation iven if the state or local regulation is nonconflicting.
When does the FFC apply?
This clause applies only if
1. the ocurt that rendered the judgment had jurisdiction over the parteis and the subject matter
2. the judgment was on the merits and
3. the judgment is final
Sutis by a state against united states
Public policy forbids a state from suing US without consent. Congress can pass legislation that permits the US to be sued by a state in given situations.
Federal Officer as Defendant
1. Limitation- A suti against a federal officer is deemed to be brought against the US itself if the judgment sought would be satisfied out of the pbulic treasury or would interfere with public administration and is therefore not permitted.
2. Specific Releif against officer- as an individual will be granted if the officer acted ultra vires (beyond his authority)
Tax or Regulation Applying to Both State and Private Entities
Congress may subject state and local government activities to regulation or taxation if the law or tax applies to both the public secotr and private sector (minimum wage laws)
Tax or Regulation Applying only to States
A federal tax or regulation that is not applicable to private businesses and that merely taxes or regulates a purely state or local governmental acitivty may be limited by the thenth amendment. Exception: congress may restrict state activities that violate civil liberties and may imppose limitations on the grant of money
Commandering State Officials
While not specifically resting in the Tenth Amendment, the SC has held that Congress may not require state executive officials to enforce federal laws because such a requirement would upse the Contritution's duel sovereignty structure.
State Taxaction and Regulation of Federal Government
A state may not directly tax federal instrumentalities without the consent of Congress. However, nondiscriminatiory, indirect taxes are permissible if the do not unreasonably burden the federal government (state income tax on federal employees). States may not regulate the federal government or its agents whil performing their federal functions
Article IV- Privileges of State Citizenship
The interstate Privileges and immunities clause prohibits discrimination by the state against nonresidents.. Corporations and aliens are not protected by this clause.
1. Only fundamental rights are protected- those involving important commercial activities and civil liberties are protected
2. substantial justification exception
Privilegs of National Citizenship
States may not deny their citizens the privilege or immunities of national citizenship. Corporations not protected.
Regulation of Commerce by Congress
1. Power of Congress to Supercede or Preempt State Regulation- When Congress regulates interstate commerce, conflicting state laws are superceded and even nonconflicting state or lacal laws in teh same field may be preempted.
2. Power of Congress to Permit or Prohibit State Regulation- Congress may permit state regulations that would otherwise vioate the Commerce Clause. Congress may progibit state regulations that could otherwise by upheld under the Commerce Clause. congress may not permite states to violate civil liberties
State Regulation of Commerce in the Absence of Congressional Action
If congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. To do so, however, it must not discriminate against or unduly burden interstate commerce. If it does the stae or local regulation will violate the commerce clause.
Discriminatory Regulations
State or local regulations that discriminate against interstate commerce to protect local economic interest are almost always invalid.
1. Exception- Important state interest- may be valid if it furthers an important, noneconomic state intrest and there are no reasonable nondiscriminatory alternatives available. ex. importation of live bait fish
2. Exception- state as market participant- a state may prefer its own citizens when acting as a market participant
Nondiscriminatory Laws-Balancing Test
If a nondiscriminatory state law burdens interstate commerce, it will be valid unless teh burden outweights teh promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available. Example- Iowa statute banning trucks over 60 feet was invalid becasue the staet showed no significant evidence of increased safty and the burden on commerces was substantial.
When a bar exam question involves a state regulation that affects the free flow of interstate commerce, you should ask:
1. Does the quesiton refer to any federal legislation that might (1) supercede the state regulation or preempt the field or (2) authorize state regulation otherwise impermissable
2. If neither of these, does the state regulation either discriminate against interstate or out of state commerce or place an undue burden on the free flow of interstate commerce? If the regulation is discriminatory it will be invalid unless (1) it futhers an important non economic state interest and there are no alt. or (2) market participant. If it doesn't discrm. but burdens ic, it will be invalid if the burden on commerce outweighs the state interest.
Power of States to Tax Interstate Commerce
Congress has complete power to authorize or forbid state taxation that affects interstate commerce.
Discriminatory Taxes
Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause.
Nondiscriminatory taxes
A nondiscriminatory tax will be valid if the following requirements are met:
1. substantial nexus- to be valid, the tax must apply to an activity having a substantial nexus to the taxing state. (lack of substatial nexus migh aslo violate the DP)
2. Fair apportionment- to be valid, the tax must be fairly apportioned according to a rational formula. However, the taxpayer has teh burden of proving unfair apportionment.
3. Fair Relationship- to be valid, the tax must be fairly related to teh services or benefits provided by the state.
Use Taxes
Use taxes are imposed on goods purchased outside the staet but used within it. They are valid.
Sales Taxes by seller state
1. sale within state- if the sale is consummated in the state, a sales tax by the seller's state is valid
2. sale consummated outside the state- if the sale is made to a buryer outside the state, a slaes tax by the seller's state is invalid.
Sales Tax by Buyer's State
Here sales are to local buyers outside teh state.
Tax Permitted if Seller has substantial contacts- if the interstate sleler ahs substantial contacts with the buyer's staet, a sales tax by the buyer's state is valid--even though the goods are delivered from outside the state.
Drummers insufficient- however, if the only contact betweeen the interstate seller and the buyer's state consists of drummers, a sales tax by the buer's state is invalid.
Ad Volerum Property Taxes
are based on teh assessed value of the property in question
Tax on Instumentalities Used to Transport Goods Interstate
The validity of ad valorem property taxes on instrumentalities of commerce depends on wheterh teh instrumentatlity has acquired a taxable situs in teh taxing sate and whter the value of the instrumentality has been properly apportioned according to the amount of the contacts with each taxing state.
Taxable Situs
An instrumentatlity has a taxable situs in a state if it receives benefits or protection from the state. Example: Airplane had tasable situs in staet--even though airline owned no property in state--becasue airline made 18 regularly scheduled flights daily from a rented depot in state.
Apportionment Requirement
A tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality in the taxing state.
Privilege, License, Franchis, or Occupantional Taxes
These so called doing business taxes are generally permitted as lon as the basic requirements are met:
1. the activiyt taxed must have a substantial nexus to the taxing state
2. the tax must be fairly apportioned
3. the tax must not discriminate against interstate commerce and
4. the tax must fialry relate to services provided by the state
Taxes on Interstate Carriers
License taxes on interstate carriers will be upheld if they are imposed to compensate the state for the use of its rods. These taxes must not discriminate against out of state carriers.
Taxes on Interstate Passengers
A tax on interstaet passengers is valid as long as teh amount of the tax is based on some fair approximation of use and does not discriminate against interstate commerce.
Net Income Taxes
States may impose fairly apportioned nondiscriminatory net income taxes on interstate firms that conduct business within their borders. Note: a federal statute prohibits state net income taxes on out of state businesses who only contacts with the taxing state are salespeople.
Value Added Tax
a value added tax (a tax on the value added to an item at each state of production or distribution) is valid if it meets teh general requirements set out.
When a question involves state taxation that affects interstate commerce, you should ask?
1. Does the quesiton refer to any federal legislation taht (i) might forbid stte tax or preempt the field or (ii) authorize state taxation?
2. If nether of these possibilities is dispositive, does the staet tax discriminate against or unduly burden teh free flow of interstate commerce? If the state tax discriminates or is unduly burdensome, it is invalid.
Bill of Rights
the Bill of Rights limits federal power. However, the 14th Amendment Due Process Clause applies almost all provisions of the BOR to the staes. Exceptiosn: 1. 5th prohibition of criminal trials without grand jury indictment. 2. 7th right to a jury in civil cases.
13th Amendment
prohibits slavery and involuntary servitude. Under the 13th Amendments enabling clause, Congress can prohibit racially discriminatory action by anyone (the government or private citizen).
14th and 15th Amendments
14th prohibits states from depriving any person of life, liberty or property without due process and equal protection of law. 15th prevents both federal and state govs from denying a citizen the right to vote based on color.
State Action Requiremnet
Since the Constitution genrally applies only to governmental action, to show a constitutional violation "state action" must be involved. The state action can be found in actions of seeminly private individuals who (i0 perfrom exclusive public functions or (ii) have significant state involvement.
Exclusive Public Functions
Activities that are so traditionally the exclusvie prerogative of teh state are state action no matter who performs them.
Significant State Involvement
State action also exists whereve a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. States are not required to outlaw discrimination. The are only forbidden to facilitate, encourage, or authorize it.
Contract Clause- Impairment of Contract
The Contract Clause prohibits states from enacting any law that retroactively impairs contractual rights. It does not affect contracts not yet entered into.
Basic Impairment Rules
1. private contracts- intermediate scrutiny- state legislation that substantially impais an existing private contract is invalid unless the legislation serves an important and legitimate public interest and is reasonalb ena narrowly tailred measn of promoting that interest. Ex. imposeing moratorium on mortgage foreclosures during a severe depression did not violtaet the Contract cluse.
2. Public Contracts-stricter strutiny- legislation that impairs a contract to which th estate is a party i s tested by the same basic test, but the contract will likely receive stricter scrutiny, especially if the legislation reduces teh contractual burdens on the state.
Ex Post Facto Laws
The state or federal government may not pass ex post facto laws. specifically, laws creting a new crime, increasing punishmnet, or reducing required evidence are not valid, but procedural changes not affecting substantive elements are not ex post facto. EX POST FACTO CLAUSES apply only to criminal cases. Thus, an answer choice that attempt to apply these prohibition in civil case is wrong.
Bills of Attainder
are legislative acts taht inflict punishment on individuals without a judicial trial. Both federal and state governments are prohibited from passing bills of attainder.
Due Process Considerations
If a retroactive law does not violate the Contracts, Ex post Facto, or Bill of Attainder Clauses, it still must pass muster under the DPC. If the retroactive law does not relate to a fundamental right, it need only be rationally related to a legitimate government interest.
Basic Principal of Procedural Due Process
A fair process (notice and hearing) is required for government agency to individually take a person's "lif liberty or property". Only intentional--negligent-deprivation of these rights violates the Due Process Clause.
the term liberty is not specifically defined. It includes more than just freedom from bodily retraints (it includes the right to contract and to engate in gainful employment). A deprivation of liberty occurs if a person:
a. loses significant freedom over actions; or
b. is denied a freedom provedied by the Constitution or a statute
includes more than personal belonging and realty, but an abstract need or desire for a benefit is not enough. There mut be a lititimate claim or entitlement to the benefit under state or federal law. Examples of property intersts includ continued attendnace of at public school, welfare benefits, and governmental employment.
What type of Process is Required for Procedural Due process?
The type and extent of required procedures are determined by a three party balancing test:
1. the importance of the interest to the individual;
2. the value of specific procedural safegaurds to that interest; and
3. the government interest in fiscal and administrative afficiency.
presumable fiar procedurs and an unbiased decision maker will always be required. notice and chance3 to respond before termination of the liberty or property interest are usually required.
Due Process Rights are Subject to Waiver
As a general rule, due process rights are presumably subject to waiver if the waiver is voluntary and made knowingly.
Access to Courts
Gevernment fees must be waived when imposition of a fee would dney a fundamental rigth to the indigent. Thus, for example, a marriage license or divorce court filing fee (privacy rights) or filing fee for candidates for electoral office must be waived. However, fees can be imposed when nonfundamental rights are involved. (fees for bankruptcy discharge or review of welfare termination)
Takings Clause
5th Amendment provides taht private property may not be takend for public use without just compensate. This rule is applicable to teh state via the Fourteenth Amendment. The takings clause is not a source of power for taking, but rather is a limitation. Taking includes not only physiciall appropriation but also some government action that damages property or impairs its use. Whether an item constitutes property depends on state law, but there is no constitutional requirements that an item have economic value to consitute property.
Public Use Limitation Liberally construed
If the government action is rationally related to a legitimate public purpose, health welfare or safety or economic, the pbulic use requirement is satisfied. Authorized takings by private enterprises are included if they redound to the public advantage (railroads and public utilities)
Taking vs. REgulation
The crucial issue is whether governmental action is a taking or merely a regulation. There is no clear cut formula for making the determination.
Guidelines as to whether an action is a taking or a regulation
1. Actual Appropriation or Physical invasion- almost always a taking
2. Use Restrictions- either a denial of all economic value of land or decreasing economic value
Denial of all economic value of land
if the government regulation denies a landowner all economic use of his land (a regulation enacted after plaintiff buys his land prohibits building on land) the regulation amount to a takin gunless principals of nuisance or property law that existed when the owner acquired the land make the use prohibitable.
Decreasing Economic Value
Regulations taht merely decrease that value of property (prohibit the most beneficial use) do not amount to a taking if they leave an economically viable use for the property. The Court will consider:
1. the social goals sougth to be promoted
2. the dimunition in value to the owner and
3. the owner's reasonable expectations regarding the property
The more drasitc the reduction in value or the less it promotes public welfare, the more likely it is to be a taking.
Remedy for a Taking
Just Compenstion. If the regulation amounts to a taking, the government must:
1. pay the property owner just compensation for the property or
2. terminate the regulation and pay the woner for damges that occurred whiel the regulation was in effect
Substantive Due Process
Where the law limits liberty of all persons to engage in some activities
Equal Protection
Where the law treats a person or class of personns differently from others.
What Standard of Review will the court apply in reviewin gthe legitimacy of governmental actions?
1. Strict scrutiny
2. intermediate scrutiny
3. rational basis
Strict Srutiny
Regulaitons affecting fundamental rights (interstate travel, privacy, voting and First amendment) or inovling suspect classifications are reviewed under the strict strutiny standard: The law is upheld if it is necessary to achieve a compelling voernment purpose. Usually invalidate, especially wehn three is a less burdensome alternative to achieve the government's goal. Gov. has burden of proof.
Intermediate Scrutiny
Regulations involving quasi suspect classifications (gender and legitimacy) are reviewed under the intermediate scrutiny standard: The law is upheld if it is substantilly related to an imporant government purpose. Gov. probably has the burden of proof.
Rational Basis
Regulations that do no affect fundamental rights or involve suspect or quasi classifications are reviewed under the rational basis standard: The law is upheld if it is rationally related to a legitimate government purpose. Thisis very easy standard to mee; therefore th law is usually valid unless it is arbitrary or irrational. Person challenging has burden of proop. Age disability and poverty are not suspect or quasi suspect.
Substantive Due Process
Comes from the 5th Amendment and 14th Amendment. No longer treats irrebuttable presumptions differenty from other regulations or classifications.
Proving Discriminatory Classification for Equal Protection purposes
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by:
2. A law that is discrimintary on its face
2. a discriminatory application of a facially netrual law or
3. a discriminatry motive behind the law
Suspect classifications
They are suspect if they are based on race, national origin, or alienage.
Benign Government Discrimination
Government action that favors racial or thinic minorities is subject to teh same stricty scrutiny standard as is government action discriminating against racial or ethnic minorities. The government has a compelling interest in remedying past discrimination.
When there was no past discrimination
Even where the government has not engatged in past discrimination, it may have a compelling interst in affirmative action. However, the governmental action must be narrowly tailored to that interest. Example: Since the government has a compelling interest in promoting racial diversity in public school bodies and faculties, an educational institution may use races as on factor in admissions or hiring but quota systems may not be used.
Alienage Classifications
1. Federal Classificaitons- Because of Congress' pleanary power over aliens, federal alienage classifications are not subjec to strict strutiny.
State law and local classifications- Generally, suspect classificaitons subject ot strict scrutiny. Except rational bases used in participation of self government process.
Undocumented Aliens
Illegal aliesn are not a suspect classification. Thus, state laws regarding them are subject to a rational bases standard. However, a denial of free public education to undocumented alien children is invalid, and more than a sumple rational basisi standard was used by the court.
Quasi Suspect Class
Classifications based on Legitimacy and Gender are quasi suspect class.
Legtimacy classifications
are also reviewed under the intermediate scrutiny standard. Discriminatory regulations intended to punish illegitimate children are invalid. Example: A law allowing only legitimate children to recover from their father's estate is invalid.
Fundamental Rights
1. Right to Privacy
2. Right to Vote
3. Right to Travel
4. Right to Free Speech
Right of Privacy
Various privacy right including marriage, sexual relations, abortion, and childrearing are fundamental rights. Regulations affecting these rights are reviewed under the strict scrutiny standard.
List of Rights to Privacy
1. Marriage- right of male and femal to entier into the marriage relationship
2. Use of contraceptives- a state cannot restrict the distribution of nonmedical contraceptives to adults
3. abortion- in its latest abortion approach, the SC has adopted two basic rules: pre viability and a post viability rule
3. Obscene Reading Material- not right to sell, purchase, or transport, just read
4. Keeping extended family together- zoning regs preventing family from living together
5. Rights of parents- to make decisions concerning the care, custody and control of children
6. Collection and distribution of Personal data- the staet may reasonably do this- no privacy
Pre Viability Rule
Before viability (a realistic possbility that the feduts could survive outsie the womb) a state may adopt a regulation protecting the mother's health and the life o the fetus if the regulation does not palce an undue burden on or substantial obstacles to the woman's right to obtain an abortion.
Post Viability Rule
Once the fetus is viable, the state's interst in the getus life can override the woman's right to choose an abortion, but the state cannot prohibit the woman from obtaining an abortion if an abortion is necessary to protect teh woman's health or safety.
Right to Vote
The right to vote is a fundamental right.
1. Residenty requirements- reasoanble time periods for residency are valid. Congress may overried in presidential elections.
2. Property Ownership- conditioning right to vote or hold office on ownership of propety is usually invalid unless special purpose elections
3. Poll Taxes- are unconstitutional
4. Primary elections- may require early registration. but, political parties may do as they please whether or not registered to vote.
Dilution of Right to Vote
1. Congressional Elections-states must use alsom exact matematical equality when creating congressional districts within the state.
2. State and local elections- the variance in the number of persons included within disctricts must not be more than a few percentage points.
Race cannot be the predominate factor in drawing the boundaries of voting district unless the district plan can pass muster under strict scrutiny.
Campaign Funding
The government may allocate more public funds to the two major parites than to minor aprite sfor political campaigns.
Candidate Qualifications
1. Fee must not preclude indigents- states may not charge candidates a fee that results in making it impossible for indigents to run for office
2. restrictions on ability to be candidate- a ballot access regulation must be a reasonable nondiscriminatory means of promoting important state interest. A state may require candidates to show resasonable support ot have their names placed on teh ballot.
Right to travel
1. Interstate travel- roght to migrate from state to state and be treated equally after moving into a new state.
2. right to international travel- international travel is not a fundamental right. rational basis standard applies.
First amendement
prohibits congress from establishing a religio nor interfering with teh free exercise of religion, abridging the freedoms of speech and press, or interfering with teh right of assembly. These prohibitions are applicable to the states through the Fourteenth Amendment.
Content vs. Conduct
Speech and assembly regulations can generally be categorized as either content regulations or conduct regulaitons. Different standards are used to assess the validity of a regulaiton within each category.
It is presumptively unconstitutional to place burdens on speech because of its content except for certain categories of speech. Content neutral speech regulations generally are subject to intermediate scrutiny. they must advance important interest unrelated to the suppression of speech and must not burden substantially more speech than necessary.
Conduct related to speech can be regulated by contnet nuetral time place and manner restrictions.
Reasonableness of Regulation
A regulation is void on its face if it explicity vague or overbroad. A regulation could be found to be void if it:
1. is overbroad- regulates substantially more speech than is necessary
2. is vague- does not give reasonable notice of what is prohibited
3. gives officials broad discretion in applying the regulation- allowing issuance of parade permit based on officials' judgment about parade's effect on community welfare.
Scopy of Speech
It inculdes the freedom not to speak. The freedom can extend to symbolic acts undertaken to communicate an idea (protesting war), although the government may regulate such conduct if it has an important interest in the regulation independent of the speech aspects of the speech aspects of the conduct and the incidental burden on speech is no greater than necessary.
Mandatory Financial Support
While the government cannot require a person to apy a fee if the primary purpose of the fee is to subsidize speech taht the person finds offensiv, it can require a person to pay a fee to support a comprehensive program taht benefits the person, even if some of the fee is used to suppor speech that is offensive- union
Time Place, and Manner Restricitions
The government has power to regulate the conduct associated with speech and assembly, although the breadth of this power depends on whether the forum involved is a public forum, a designated public forum, or a non public forum.
Public Forums and Designated Public Forums
public property that has historically been open to speech related activities is called a public forum. Pulbic property that has not historically been open to speech reatled activities but which the gove has thrown open for such activiites on a permanent limited bases, by practice or policy is called a designated or limted public forum.
When may the government regulate speech in public forums and designated public forums
1. content neutral
2. are narrowly tailore to serve significant government interest, and
3. leave open alternative channels for communication
Note: almost every legitimate governmental interst satisfies the significat/important standard
Nonpublic forums
Speech and assembly can be more broadly regulated in nonpublic forums (government owned forums not historically linked with speech and assembly and not held open for speech activities such as military bases, schools while classes are in session, government workplaces) in such locations, regulations are valid if the are:
1. viewpoint neutral
2. reasonably related to a legitimate government purpose
Unptrotected Speech
To be valid, retrictions on the content of speech must be narrowly tailored to achieve a compelling government interst.
When does the government have a compelling interest in unprotected speech:
1. inciting imminent lawless action
2. fighting words
3. obscenity
4. defamatory speech
5. Some commercial speech
Speech inciting imminent lawless action
speech can be burdened if it creates a clear and present danger of imminent lawless action. It must be shown that imminent illegal conduct is likely and that the speaker intended to cause it.
Speech that are fighting words
Speech can be burdened if it constitutes fighting words. Words that are merely annoying are not sufficient. Note also taht Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints.
Speech that is obscenity
1. Appeals to the prurient interest in sex, using a community standard
2. is patently offensive and an affron to contemporary community standards and
3. lacks serious value using a nationa reasonable person standard
Pictures of Minors
To protect minors from exploitation, the government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children.
Simulated Pictures of Minors
Teh government may not bar visula material that only appears to depic minors engaged in sexually explicit conduct, but that in fact uses young looking adults or computer generated images.
Land Use Regulations
A land use regulation may limi the location or size of adult entertainment establishments if the regulation is designed to reduce the secondare effects of such a business (rise in crime and decreased property values). However, regulations may not ban such establishments altogether.
Liquor Regulation
States have broad power ot regulate intoxicating beverages. Laws relating to this pwer taht affect fee speech rights generally will not be set aside unless they are irrational.
Defamatory Speech
If the defamatory statement is about a public official or public figure or involves public conern, the first amendment requires that plaintiff to prove all the elements of defamtion plus falsity to some degree of falut.
Some Commercial Speech
Comercial speech is afforded First Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is misleading or frauduleny may be burdened. Any other regulation of commercial speech will be upheld only if it:
1. serves a substantial gov. interst
2. directly advances taht interest and
3. is narrowly tailored to serve that interest.
Prior Restraints on Freedom of Speech
They are rarely allowed. The government has a heavy burden in justifying a prior restraint; it must show that some speical societal harm will result otherwise. To be valid it must:
1. standards must be narrowly drawn, reasonable and definite
2. innjunction must promptly be sought
3. there must be prompt and final determination of the validity of the restraint.
Gov. bears burden
Seizure of boods and films
Seizures of a single book or film may be made with a warrant based on probably cause, although if the item is available for slae to the public, a police officer may purchase a book or film to use as evidence without a warrant. Larg-scale seizures must be preceded by a full scale adversary hearing and a judicial determination of obscenity.
Movie Censorship
The court ahs found that time delays incident to censorship are less burdensome on movies than on otehr forms of expression. Thus, the court allows the government ot establsih censorship boards to screen movies before they are released, as long as the procedural safeguards discussed are followed.
Press Access to Trials
The public press has a right to attend criminal and probably civil trials. However, the right may be outwighed by an overriding interst and staetd in teh trial judge's finding. The rright includes the right to be present at voir dire and other pretrial proceedings, unless the judge makes a specific findings that clsoure was narrowly tailored to preserve a higher value.
Interviewing Prisoners
1st Am. does not give journalists the right to inerview prisoners.
Broadcasting Regulations
Radior and television may be more closely regulated than the press. the paramount right is the right of viewrs and listerners to receive information of public conern rather than the right of broadcasters to broadcast what they please.
Fairness Doctrine
The 1st Am. does not require broadcasters to accept political advertisements. However, a radio stateion may constitutionally be required to offer free broadcasting time to certain individuals. (opponents of political candidates or views endorsed by station or persons who have been personally attacked in a broad cast).
Nature of the Right of Freedom of Association
Althouth the freedom of association is not mentioned explicityly in the const, it is clearly impled from teh rights taht are explicityly noted. Pusuant to this freedom, the government may enther prohibit politically unpopular groups nor unduly burden a pserson's right to belong to such groups.
note: this right is not absolute...infringments of the right must be justified by a compelling state intersest, unrelated to the suppression of ideas, and must be the least restrictive means of protecting the government interests involved.
Limits on Contributions
To preven corruption or appearance thereof, laws may limit the amoutn of money that a person, group, or coroporation can contribute to a political candidate. However, the government may not limit the amount of money that may be spent to support or oppose a ballot referendum, and there is an aexception for grousp or corporation formed specifically to participate in teh political debated.
Limits on Expenditures
Laws may not limit the amount that a candidate or group spends on a political campaign.
Public employment restraints on conduct
If a government employer seeks to firs an employee for speech related conduct, one o two tests will apply depending on whther the speech involved a matter of public concern. If a matter of public concern is involved, court must carefully balance the employee's rights as a citizen to comment on a matter of public oconenr agaisn teh government's interst as an employer in efficient performance of public service. If the speech did not involve a matter of public concer, the courts should give a wide degree of deference to the government employer's judgment concerning whterh the speech was disruptive.
Independent Contractor working on a government project's speech rights
the contractor cannot lose the contract merely because the government disagrees with something the contractor says.
Hatch Act
Employees within the executive branch cannot take an active part in political campagins?
May a public employee be hired, fired, promoted, transferred, etc. based on party affiliation?
no, except as to policymaking positions, where party affiliation is relevant.
Free Exercise Clause
prohibits government from punishing someon on the basis of her religious beliefs, the clause forbids:
1. state governemtns from requiring office holders or employees to take a religious oath
2. states from excluding clerics from holding public office and
3. courts from declaring a religious belief false.
General Conduct Regulation and the Free Exercise Clause
it cannot be used to challenge a government regulation unless the regulation was sepcifically designed to interfere with religion. Moreover, the free exercise clause does not require religious exemptions from generallly applicable governmental regulations that happen to burden religious conduct.
Exeption: unemployment compensation cases and right of amish not to educate children
Establishment Clause
1. Sect Prefernce-
if a government regulation or action includes a preference for one religious sect over another, it is invalid unless it is narrowly tailored to promote a compelling interest.
2. no sect preference
if a government regulation or action contains no sect preference, it is valid under the EC if
1. has a secular purpose
2. primary effect that neither advances nor inhibits religion and
3. no excessive government entanglement with religion
Cases involving Financial benefits to religious institutions
The SC applies the three part test with greater strctness when government financial aid is going to a religouls affiliated grad or high school than it does when the aid is going to another type of religious instititution.
Recipient based aid
the boernment may give aid in the form of financial assistance to a defined class of persons as long as teh class is defined without reference to religion or religious criteria. such a sprogram is valid even if most of the peopole receivng th eaid use it to attend a religiously affiliated school.
Aid to Colleges and Hospitals
Aid to collegs or hospitals will be upheld as long as the govenrment program requiers teh aid to be used for nonreligious purposes and the recipient agrees.
Aid to Grade Schools and high schools
Aid to religious grad and high schools is usually found to have a secular purpose, but may fail to the other parts of the ttest. for example, if the aid significantly improves the ability of students to attend such schools, it will be deemed to have a primary effect taht advance religion. And if the program has detailed administrative regulations to preven tht eeffect of advancement of religion, the law iwll be stricken form excessive government entantlement.
Religious Activies in Public Schools
School sponsored religious activity is invalid but school accommodation of religion is valid. Moreover, if a public school allows mmembers of the public and private organization to use shcool property when classes are not in session, it cannot deny a religious organization permission to use the proper for meetings merly becasue religious topics will be discussed.