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93 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
Political Question
11th Amendment
I. Ripeness: re. preenforcement review, when there has been no violation and the defendant is requesting a declaratory judgment. Must show that there is a likelihood of future harm.
a. hardship to plaintiff w/out preenforcement review.
b. fitness of the issues and record
II. Mootness: there must be a live case and controversy at all stages of the litigation.
a. Exceptions (3)
i. Wrongs capable of repetition but evading review.
ii. If there was voluntary cessation
iii. If there is a class action only one member needs to satisfy this mootness requirement.
III. Abstention: occurs when the federal issue may be decided once the state law claims are settled. Then the federal court should abstain until the state has had a chance to hear the case.
a. Injury to the plaintiff
b. Causation
c. Redress-ability: that if relief is granted the plaintiff will be set right.
d. No third party standing
e. No general grievances
No Third Part Standing (Exceptions)
1. If there is a special relationship.
2. If the harmed victim is unlikely to assert his/her rights.
3. If there is organizational standing (3)
a. members would have standing
b. Interests are germaine to the organizations purpose.
c. Neither the claim nor relief requries participation by individual members.
No General Grievances - Exception
1. Exception: taxpayers have standing to challenge expenditures as violating the EC, but NOT grants of property
Political Question (4)
Courts cannot here these claims b/c they are left to the political process
a. Challenges to foreign policy
b. Challenges re. the impeachment or removal process
c. Challenges to political gerrymanderying.
d. re. republican form of government.
11th Amendment
neither the federal courts, state courts, or federal agencies can hear suits against states.
a. Exceptions (3)
i. Waiver
ii. Suits under Section 5 of the 14th Amendment (or 13, or 15th)
iii. Federal government can sue the state in federal court.
b. State officers can be sued provided damages will not be paid out of the state treasury.
Judicial Review

Executive / Presidential Power

Legislative Power
Judicial Review
Supreme Court: Writ v. Appeal
Federal Court
Supreme Court: Writ v. Appeal
i. Appeal: mandatory, from decisions from 3-judge district courts
ii. Must be no independent state law ground of decision
iii. Final Judgment Rule.
iv. Original and exclusive jurisdiction is state suits against each-other.
Federal Court
Sovereign Immunity (see above)
Executive Power/Presidential Power - Foreign
i. Treaties v. Federal Law – last in time prevails
ii. Executive Agreements – only prevails against state law.
iii. Commander in Chief – broad powers touse armed forces in foreign countries even w/out a declaration of war from Congress.
Executive Power: Domestic
Appointment Power
Removal Power
Immunity from civil suits for money for
actions while in office.
Executive Privilege:
Pardon power:
Appointment Power
• For ambassadors, officers of the US and federal judges
• Congress can appoint lesser us officers
• Congress cannot give itself the appointment power.
Removal Power
- or any executive office.
Congress can regulate if it is a position where independence would be desired but can only limit to good cause.
can be impeached by a majority of house; convicted by 2/3 of the senate.
Executive Privilege
to keep confidential conversations and documents that private but must yield to superceeding informational interests.
Legislative Power
b. No General Police Power:
c. Taxing and Spending Power – for the general welfare.
d. Commerce Clause:
e. Necessary and Proper Clause:
f. 10th Am – limitation commercial activity.
g. Section 5 of the 14th Am.
h. Delegation Power:
i. Miscellaneous Power
No General Police Power
Exception (MILD): military; Indian reservations; federal lands and territories; DC.
Taxing and Spending Power – for the general welfare
Taxing: will be held constitutional if it is reasonably related to revenue production or Congress has the authority to regulate the area taxed
Commerce Clause
can regulate the channels, instrumentalities, things and people and activities that have a substantial effect on interstate commerce, but only economic activities may be evaluated under an aggregate effect.
Necessary and Proper Clause
Congress may use any means not prohibited by the constitution to carry out an express or implied power.
10th Am – limitation on Congress’s power
Cannot commandeer the states to enact legislation, but can induce by putting strings on grants, provided the requirements are clear and reasonably related to the purpose of the legislation.
Can regulate dangerous governmental commercial activity.
Section 5 of the 14th Am
Congress cannot expand rights or create new rights. Can only remedy violations of rights already recognized and must be proportionate and congruent.
Legislative Power - Delegation Power
Can delegate legislative power but cannot delegate executive power (enforcement or implementation).
• No legislative veto: must have bicameralism and presentment.
• No line item veto.
Misc Congressional Powers™ (9)
• Prop: C can dispose of & make rules for US territories/prop
• BR: C pwr to estab uniform BR rules is nonexclusive.
• Postal: monopoly (but C can’t deny any cit gen mail priv)
• Citizenship: C can estab uniform rules of naturalization
• War: declare war, raise/support armies, & mntn Navy
• Admiralty: plenary and exclusive (unless C leaves to st J)
• Coin & Fix Weights and Measures:
• Patent/Copyright: C controls issuance of patents/copyrights
• Foreign commerce – exclusive pwr to regulate
General Police Power
Dormant Commerce Clause
Privileges and Immunities Clause of Article 4:
Privileges and Immunities Clause of the 14th
Taxing Interstate Commerce
Full Faith and Credit Clause
Preemption (including Intergovernmental Immunity)
 Express – where congress has expressly stated that state law is preempted, or that federal law is exclusive in a particular area.
 Implied:
• If it is impossible to comply with both
• If the state law impedes a federal objective.
• If congress has evidenced an intent that federal law should be exclusive (based on history).
 Intergovernmental Immunity – cannot tax or regulate the federal government.
General Police Power
to protect the health, safety and morals of its citizens.
Dormant Commerce Clause
 Cannot place a substantial burden on interstate commerce. If it does than it is unconstitutional unless the benefits outweigh the burdens.
 Cannot discriminate against out of staters. If it does it is unconst. unless it is necessary (LRA) to achieve an important government purpose (favoring in-staters at the expense of out of staters is not sufficient.
• Exceptions:
o If congress has approved the discrimination
o Market Participant Exception: A state or local govt may prefer its own citizens in receiving benefits from gov’t programs or in dealing w/ gov’t owned businesses. (university e.g. , Dakota & state owned cement factory – charged less to in-staters).
Privileges and Immunities Clause of Article 4:
No state may deny citizens of other states the priv. and immunities it accords it’s own citizens.
 Must Discriminate Against out of staters.
 With regard to a civil liberty or important economic activities (i.e. right to pursue a livelihood).
 Aliens and corporations cannot sue.
• If so it is unconstitutional unless it is necessary (LRA) to achieve an important government purpose (substantial)
Privileges and Immunities Clause of the 14th Am
only if states discriminate against their own citizens w/ re. to the right to travel. (see EPC)
Taxing Interstate Commerce
 There must be a SUBSTANTIAL nexus b/n the taxed activity and the state and
 There must be fair appropriation
• Cannot use taxes to benefit instate business.
Full Faith and Credit Clause
• If there was personal and subject matter jurisdiction.
• If there was a judgment on the merits
• If he judgment was final.
Bill of Rights
Government Action
Free Speech (1st Am)
Religion (1st Amendment)
Retroactive Legislation
Equal Protection
Due Process Clause of the 5th Am
Bill of Rights
Applies directly to the federal gov’t
Applies to the states through the DPC of the 14th Am.
Government Action
The constitution only applies to government action, unless one of the following exceptions applies.
o Congress can bring private individuals w/in the purview of the constitution under the 13th amendment to prohibit race discrimination.
o Public Function: If the private act is in an area traditionally and exclusively done by the government.
• Entanglement Exception: if the government is affirmatively authorizing, encouraging or facilitating the private action.
Free Speech (1st Am) (3 Topics)
Prior Restraints
Vagueness and Overbreadth
Content Neutral v. Content Based Restrictions
Prior Restraints: (1) Court Orders; (2) Licenses
judicial or administrative actions that chill speech before it is made.
 Court orders must meet strict scrutiny.
• They must be complied with or the right to challenge them is waived.
• Gag orders on the press to prohibit pretrial publicity is unconstitutional.
 Licenses: the gov’t CAN REQUIRE only if there is (i) an important reason for licensing and (ii) clear criteria (iii) leaving almost no discretion to the licensing authority. (iv) Must also contain procedural safeguards such as prompt determination of requests for licenses and judicial review.
Vagueness and Overbreadth
includes fighting words
• Vagueness: A law is UNCONSTITUTIONALLY vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
• Overbreadth: when the regulation prohibits substantially more speech than the Constitution allows.
Content Based Restrictions
must meet strict scrutiny
• Two Kinds:
o Subject Matter Restrictions – based on the topic of the speech
o Viewpoint Restrictions – based on the ideology of the speech.
Content Based Restrictions – Exceptions
Inciting Illegal Activity
Commercial Speech
Inciting Illegal Activity
the government may punish speech that is likely to result in imminent illegal activity and that is directed to cause imminent illegal activity
in order to be considered obscene the following three requirements must be met.
 The law must appeal to the prurient interest – a shameless or morbid interest in sex
 The speech must be patently offensive under the law prohibiting the speech.
• zoning ordinances
• child porn
• punishment for private possession
• government can seize all assets.
 The speech must lack all serious artistic, political, literary or scientific value (measured by a national standard).
 Profane or Indecent Speech is Protected, Generally
• Exceptions: over the free broadcast media; in school.
Commercial Speech
 Commercial speech that advertises illegal activity or ads that are fraudulent or deceptive are not protected.
 True commercial speech that has an inherent risk of deception can be prohibited.
• professionals cannot use trade names
• Attorneys cannot participate in person solicitation for services for profit. – but accountants can.
 All other commercial speech must meet intermediate scrutiny
• must be narrowly tailored but does not have to be the least restrictive alternative.
Content Neutral Restrictions
Time Place and Manner Restriction
Public Forums
Symbolic Speech
Unanimous Speech
Time Place and Manner Restriction
is constitutional if it serves an important government interest and provides and adequate alternative for speech.
Public Forums - Public Forum
o Public Forum: governmental properties, that the government is constitutionally required to make available for speech. (sidewalks and parks) But the government can regulate (see time place manner restrictions)
Public Forums - Limited Public Forum
o Limited Public Forum: governmental properties that the government could close but chooses to make available for speech. Same test as for Public Forum. (public schools open on nights and weekends to community groups.)
Public Forums - Non Public Forum
o Non public forum: governmental properties that the government is not required to make available to the public and chooses not to. Government can regulate so long as it is reasonable and viewpoint neutral.
 Examples
• Military bases
• airports
• places outside prisons and jails
• sidewalks on post offices.
• city busses.
Private Property
o No right to free speech on private property.
Symbolic Speech
the government can regulate conduct that communicates provided (1) it has an important interest (2) that is unrelated to the suppression of the speech; (2) and the regulation provides the least restriction on speech that is possible while maintaining the government objective.
Symbolic Speech Examples
o Flag Burning – protected
o Draft Card brining – not protected
o cross burning – protected if not done w/ the intent to intimidate.
o contribution limitations (const) v. expenditure limitations (unconst.).
• Permit fees: public officials cannot have the discretion to determine permit fees for public demonstrations.
Freedom of Association: generally
a fundamental right so it gets SS.
Freedom of Association - Laws Prohibiting Membership in a Group
o Laws Prohibiting Membership in a Group: these must meet strict scrutiny. In order to punish someone for membership it a group it must be shown that the person
 Actively engaged in the group
 knowing of its illegal activities
 And with the subjective intent to further those illegal activities.
Freedom of Association - Laws Requiring Disclosure of Group Members
o Laws Requiring Disclosure of group Members: if it would chill association then it must meet strict scrutiny.
Freedom of Association - Laws that Prohibit Groups From Discriminating
o Laws the Prohibit Groups from discriminating are Const unless they would interfere w/ intimate association or expressive activity.
Takings (+ two differnt kinds).
must be for public use and require just compensation be provided
o Possessory Taking: always a taking no matter how small.
o Regulatory Taking: only if it leaves not reasonably economically viable use of the property.
Taking - Government Conditions on Development.
 Government Conditions on Development: the must be (1) justified by a benefit that is (2) reasonably proportionate to the burden or they will be considered a taking.
Takings - Owner's rights to sue.
 An owner can bring a taking action for regulations that were in effect when he acquired the property.
Temporary Taking
 Temporarily Denying and Owner Use of property is not a taking if the government action is reasonable.
For Public Use

Just Compensation
o For public use – very broad. If the government reasonably believes the taking will benefit the public

o Just Compensation – FMV at the time of the taking/in the hands of the owner.
Religion (1st Amendment)
Establishment Clause
Free Exercise Clause
Establishment Clause
The government must make no establishment of religion. (SEX)
 Secular Purpose: The law must have a secular purpose it it’s main purpose is to advance religion then it is unconstitutional.
 Effect: The law cannot have the effect of advancing or inhibiting religion. The government cannot symbolically endorse a particular religion or religion in general.
 No Government Entanglement: There can be no excessive government entanglement.
• The government cannot directly pay the salaries of teachers at parochial schools.
Establishment Clause – General Rules
• The government cannot discriminate against religious speech or against religions unless it meets strict scrutiny.
• Government sponsored religious speech in public schools is unconst, but community and religious groups must have equal access.
• Government can give benefits to parochial schools so long as they are not used for religious instruction. (equipment/vouchers)
Free Exercise Clause
• Cannot be used to challenge a neutral law of general applicability no matter how much it burdens religion. Must show that the law was motivated or targeted at religions in order to be evaluated under strict scrutiny.
• The government cannot deny and individual benefits when they quit a job for religious reasons.
Retroactive Legislation
Bills of Attainder
Ex Post Facto
Contracts Clause
Contracts Clause
applies only to the states and local government when they interfere w/ an existing contract.
• Has there been substantial interference with a party’s existing contract.
• If so is the law a reasonably necessary means of promoting an important and legitimate public interest.
• State interference with a government contract requires strict scrutiny.
Equal Protection
Applies to the states through the fourteenth Amendment. Applies to the federal government through the due process clause of the fifth amendment if the government is grossly discriminatory.
Equal Protection - Method of Analysis
• What is the Classification?
• What is the level of scrutiny?
• Is the level of scrutiny met?
Racial Classifications
 How proven
• On its face
• Or if neutral on its face by showing discriminatory impact and intent.
 Benign Classifications – SS
• Quotas – only allowed in very limited circumstances where then is a clear proof of past discrimination.
• Educational Institutions: have a compelling interest in diversity so they can use race as one factor in admissions but cannot add points solely for race or use set asides.
• Seniority programs cannot be set aside.
National Origin
Alienage Classifications
 Exceptions:
• Congressional Discrimination – RB
• Issues paramount to a democratic form of government – RB (voting, being on juries, teacher, parole officer, police officer)
• Undocumented Alien Children – IS
IS must have an exceedingly persuasive interest.
 How Proven – same as race
 Benign – IS
• Laws based on gender stereotypes are unconst.
• Laws to benefit for past discrimination or difference in opportunities are constitutional.
Illegitimate Children
 Grant to all / Deny to All – unconst.
• Grant to some / Deny to some – have been upheld.
The Right to Travel
The Right to Vote
No Right to Education
The Right to Travel
SS is used when a law interferes with a citizens right to move to another state or creates durational residency requirements.
• Durational Residency Requirements: Laws that require an individual to live in a particular jurisdiction to receive a benefit.
The Right to Vote
• SS is used when laws deny certain citizens the right to vote.
o Property Ownership Requirements in order to vote or hold public office are almost never allowed. Exception – water district elections.
• One Person One Vote must be met in every state and local election so the districts must be of almost equal number.
• At Large Elections are constitutional, provided they are not for a discriminatory purpose (remember impact is not enough)
• Redrawing District Lines Based on Race is subject to strict scrutiny – even if it is to benefit minorities.
• Counting uncounted votes in a presidential election without standards violates due process.
5 specific situations addressed
Due Process Clause of the 5th Am
applies to the states through the 14th Am.
• Economic Rights
• Takings Clause
• Procedural Due Process
• Substantive Due Process
Economic Rights
only get rational basis
Procedural Due Process (general definition)
These are procedures the government must follow before denying someone life liberty or property.
Procedural Due Process (Test)
 Has there been a denial of life liberty or property?
• Denial of Liberty: Loss of a SUBSTANTIAL freedom provided by the Constitution or a federal statute.
• Denial of Property: Right to an entitlement and the entitlement is not fulfilled.
o Entitlement: reasonable expectation of a continued benefit.
 If so the following interests must be balanced.
• The individual’s interest
• The ability of increased procedures to add to the effectiveness of the fact finding process.
• the government’s interest.
Procedural Due Process - Government Negligence
 Government Negligence is not sufficient. There must be intentional action by the government or recklessness.
Substantive Due Process
Privacy Rights

Right to Marry
Right to Procreate
Right to Custody of one's Children
Right to keep the related family together
Right to control the upbringing of one's children
Right to purchase and use contraceptives
Right to abortion
Right to engage in private consensual homosexual behavior
Right to refuse lifesaving medical treatment.
(no right to physicial assisted suicide)
Substantive Due Process - These get SS
These fundamental rights get SS unless otherwise mentioned.
 Right to marry
 Right to procreate
 Right to have custody of one’s children
• husband
 Right to keep the related family together
 Right to control the upbringing of one’s children.
• grandparent visitation and parochial schools
 Right to purchase and use contraceptives.
Substantive Due Process - Right to Abortion
 Right to Abortion – not SS
• Pre Viability – cannot prohibit but can regulate provided it does not create an undue burden.
o 24 hour waiting periods and licensed physician okay; partial birth abortion ban is not okay.
• Post viability – can prohibit so long as there is an exception for the life of the mother.
o the government is not required to provide or subsidize.
o Spousal notification / consent laws are unconstitutional.
o Parental consent / notification laws are constitutional if there is a judicial process for maturity or in the best interest.
Substantive Due Process - Right to Engage in Private Consensual Homosexual Behavior
no level of scrutiny articulated.
Substantive Due Process - Right to Refuse Life Saving Medical Treatment
no level of scrutiny articulated.
• Can require clear and convincing evidence
• Can prohibit the family from terminating.
• Rational Basis: BOP is on the challenger. Must show the law is not rationally related to a legitimate government interest.
o Rationally related = reasonable means
o legitimate government interest = any conceivable government interest.
LEVELS OF SCRUTINY - Intermediate Scrutiny
• Intermediate Scrutiny: BOP is on the government. Must show the law is substantially related to an important government interest.
o Substantially Related = very good way but not necessarily the least restrictive alternative.
o Important Government Interest = only the actual government purpose.
LEVELS OF SCRUTINY - Strict Scrutiny
• Strict Scrutiny: BOP is on the government. Must show the law is necessary to achieve a compelling government interest.
o Necessary = LRA
o Compelling Government Interest = only the actual purpose.