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137 Cards in this Set
- Front
- Back
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Article III
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Federal Courts: only cases and controversies
1. Arising under Constitution, laws or treaties of U.S. 2. Admiralty and Maritime 3. U.S. is a party 4. Between two or more states 5. Between state and citizen of another state. 6. Citizens of diff. states 7. Cit. of same state claiming land under grants of different states. 8. State v. foreign states, citizens, etc. |
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Judicial Review
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Determine constitutionality of acts of other branches. Legislature cannot interfere with courts' final judgment.
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Supremacy Clause of Article VI
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the Constitution, Laws adn Treaties of the U.S. take precedence over state laws. Judges of state must follow federal law
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Types of Federal Courts
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1. Article III courts - established by Congress
2. Article I courts - US Tax Court, DC Courts *only Article III courts judges have lifetime tenure and protection from salary decrease. |
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Jurisdiction of Supreme Court
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Original - all cases affecting Ambassadors, other public Ministers, and where a State is a party
Appelllate - writ of certiorari; statutory application |
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Writ of Certiorari
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Jurisdiction is within Court's discretion; four justices must agree. Only cases from the hightest state courts concerning statutes and cases from federal courts of appeal
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Advisory Opinions
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1. Legislation that is not yet law.
2. Ct. Cases where court is not final authority. *Must show a real and immediate danger resulting from specific conduct |
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Ripeness
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Not entitled to review of a state law before it is enforced. Must be harm or immediate threat of harm.
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Mootness
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A real, live controversy must exist at all stages of review. Exceptions:
1. Reasonable expectation that the same complaining party will be ubjected to teh same action (time period) 2. Class actions (as long as at least one party isn't moot) |
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Ripeness v. Mootness
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Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after they hae been resolved.
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Standing
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Must show an injury in fact caused by the gov't that willb e remedied by a decision in her favor. No standing just as "citizen"
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Taxpayer Standing
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Generally no standing to challeng how tax dollars are spent. Exceptions:
1. The challenged measure was enacted under Congress's taxing and spending power 2. The challenged measure exceeds some specific limitation on the power. |
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Political Questions
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The court will not decide political questions:
1. Issues committed by the Consittuion to another branch of government 2. Those inherently incapable of resolution and enforcement by the judicial process. Examples - outline pg. 8 |
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11th Amendment
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prohibits fed. court from hearing a private party's or foreign gov'ts claims against a state gov't. What is not barred:
1. Actions against local gov't 2. Actions by US Gov't or other state gov't 3. Discharges in bankruptcy court. |
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Exceptions to 11th Amendment
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1. Actions against state officers for injunctions
2. Actions against state officers for monetary damages from officer 3. Actions against state officers for prospective payments from state. 4. State expressly consents 5. To prevent discrimination under the 14th Amendment |
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Necessary and Proper Clause
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Merely gives Congress the power to execute specifically granted powers. If question asks what is the best source of power - THIS IS NOT THE ANSWER.
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Taxing Power
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Must be uniform throughout country. Export taxes not permitted. A tax measure will be uheld if it bears some reasonable relationship to revenue production. BE HESITANT TO RULE AGAINST A TAX MEASURE
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Spending Power
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Any public purpose. Nonspending regulations are not authorized
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Commerce Power
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Includes all activity affeting two or more states.
*transportation or traffic *any activity that either in itself or in combination with other activities has a SUBSTANTIAL ECONOMIC EFFECT upon interstate commerce. |
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Commerce Power over INTRASTATE activity
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If an economic or commercial activity, court must show rational basis that activity substantially affects interstate commerce.
*If not economic or commercial, Congress must show a substantial economic effect on interstate commerce. |
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Property Power
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1. No express limitation on Congress's power to dispose of propery owned by the U.S.
2. Federal taking must be for the purpose of effectuating an enumerated power under some other provision of the Constitution |
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No General Police Power
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Congress has no general police power. On exam - validity of federal statute cannot rely on "police power"
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Power over Citizenship
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*Resident aliens entitled to notice and hearing before being deported
*Non-resident aliens can be refused entry because of their political beliefs |
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Power of Appointment (President)
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appoint ambassadors, public ministers, supreme ct. judges, and other US officers. Must have consent of Senate
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Article III Judges
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Cannot be removed "during good behavior"
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Supremacy Clause in General
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When states and fed. gov't pass legislation on same subject matter, federal wins. State law is void. Even if the local law just interferes with achievement of federal purpose.
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Full Faith and Credit Requirements
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1. Rendering state has jurisdiction over parties and subject matter
2. Judgment was on the merits 3. Judgment was final. |
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Suits by State against U.S.
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Public policy forbids without U.S. consent.
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Congressional Limits on State Tax or Regulation
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*Congress may not compel states to enact or enforce a regulatory program.*Congress cannot pass a tax that does not apply to private businesses but merely taxes state entities.
Exceptions: *may restrict state activities that discriminate *may regulate through spending power (law will withhold 5% of fed. funds if state doesn't set drinking age) |
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Privileges and Immunities - Article IV
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prevents discrimination by states against nonresidents.
*corporations and aliens not protected *only fundamental rights protected (important commercial activities such as employment or civil liberties) |
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Nonresident Discrimination - Exception
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A state law discriminating against nonresidents may be valid if the state has a substanital justification for the differing treatment. Must show that the nonresidents are either the cause or part of he problem and there are no less restritive means.
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State Regulation of Commerce in the Absensce of Congressional Action
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If congress has not enacted laws regarding the subject, states can regulate if:
1. It does not discriminate out of state competition to benefit local economic interest and 2. It is not unduly burdensome. *if requirements not me, it wll bevoid for violating the commerce clause |
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Discriminatory Regulations
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1. Laws to protect local business against interstate competition - invalid.
2. Local operations laws - invalid (all local melon buys have to buy from local melon producers) 3. Regulations limiting access to in-state products (cannot sell products at a lower price to in-state residents) |
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Exceptions to Discriminatory Regulations
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1. Furthers an important, non-economic state interest (health or safety) and no reasonable alternatives.
2. Market Participant Exception |
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Market Participant Exception
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State can prefer it's own citizens when the state is acting as a market participant (buying and selling, hiring labor, giving subsidies)
*city may require all construction projects funed by the city be perfomred by contractors where at least 50% are residents. (this may violate Priv. and Imm unless there is a substantial justiication) |
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Nondiscriminatory Laws - Balancing Test
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Law may be invalid if the burden on interstate commerce outweighs the promotion of legitimate local interest.
*are there less restrictive alternatives? |
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Bar Exam Approach to Interstate Commerce (IC)
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If question involves state regualtion affecting IC:
1. Does question refer to any federal leg. that might supersede or preempt? 2. Is there fed. leg. that might authorize state reg. othewise impermissible? 3. If no, does it discriminate or place undue burden? 4. If discriminates, invalid unless furthers an important state interst and no reasonable alternatives or is a market participant. 5. If undue purden, invlid if burden outweighs interest. Consider less restrictive alternatives. |
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Discriminatory Taxes
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state taxes that discriminate against IC violate the commerce clause.
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Which clause does the discrimatory tax violate most?
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Privileges and Immunities: if tax discriminates against a natural person who is a nonresident.
Equal Protection: Congress has given the state the power to do something that would otherwise violate the commerce clause. Also, taxes based on suspect classifications (long time residents) or fundamental rights. |
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Nondiscriminatory Tax
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Valid If:
1. Substantial nexus between activity or property taxed and the state. 2. Fairly apportioned according to rational formula 3. tax is fairly relate to services or benefits provided by teh state. |
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14th Amendment
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prohibits STATES from depriving any person of life, liberty, or property without due process and equal protection of the law.
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Application of 14th Amendment
(State Action Requirement) |
Only if there is action by:
1. State or local gov't 2. gov't officer 3. Private individual who meets requirements for state action (perform exclusive public functions or have significant state involvement in their activities) |
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Commerce Clause and Individual Rights
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Limits the power of individuals over other individuals. Includes racial discrimination and reaches to any business that is opent o interstate travelers or uses products shipped in interstate commerce.
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State Action Requirement
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Exists whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
1. State must be significantly involved in the private entity 2. States are not required to outlaw discrimination (just cannot encourage) |
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Contract Clause
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prohibits STATES from enacting any law that retroactively impairs contract rights. Must be substantial impairment of contract.
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Procedural Due Process
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Requres fair process/procedure, which requires at leasta n opportunity to present objections to the proposed action to a fair, neutral decisionmaker - only when gov't acts deprive individual of life, liberty or property
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Due Process and Negligence
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No due process if person was deprived through mere gov't negligence
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Liberty Interest
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A deprivation of liberty occurs if a person:
1. Loses significant freedom of action; or 2. Is denied a freedom rovided by the constitution or statue. *right to contract, employment, travel, vote, etc |
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Property Interest
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Must be a legitimate claim or entitlement. Public Education, welfare benefits, continued public employment
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Fair Process
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Court will weigh:
1. Importance of the individual interest involved 2. The value of specific procedural safeguards to that interest. 3. The gov't interest in fiscal and administrative efficiency. |
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Public Employment
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Must be given notice of charges and a pre-termination opportunity to respond.
Exception - significant reason to keep from job. |
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Taking Clause
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Gov't cannot take private property for public use w/o just compensation.
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Public Use
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rationally related to a legitimate public purpose.
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Taking v. Regulation
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Gov't doesn't have to compensate for regulating private property.
*Taking is less likely to be found in emergecies. |
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Remedy for Takings
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If there was a taking, gov't will be required to either:
1. Pay compensation 2. Terminate the regulation and pay the owner for damages. |
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14th Amendment
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prohibits STATES from depriving any person of life, liberty, or property without due process and equal protection of the law.
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Application of 14th Amendment
(State Action Requirement) |
Only if there is action by:
1. State or local gov't 2. gov't officer 3. Private individual who meets requirements for state action (perform exclusive public functions or have significant state involvement in their activities) |
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Commerce Clause and Individual Rights
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Limits the power of individuals over other individuals. Includes racial discrimination and reaches to any business that is opent o interstate travelers or uses products shipped in interstate commerce.
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State Action Requirement
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Exists whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
1. State must be significantly involved in the private entity 2. States are not required to outlaw discrimination (just cannot encourage) |
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Contract Clause
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prohibits STATES from enacting any law that retroactively impairs contract rights. Must be substantial impairment of contract.
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Procedural Due Process
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Requres fair process/procedure, which requires at leasta n opportunity to present objections to the proposed action to a fair, neutral decisionmaker - only when gov't acts deprive individual of life, liberty or property
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Due Process and Negligence
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No due process if person was deprived through mere gov't negligence
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Liberty Interest
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A deprivation of liberty occurs if a person:
1. Loses significant freedom of action; or 2. Is denied a freedom rovided by the constitution or statue. *right to contract, employment, travel, vote, etc |
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Property Interest
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Must be a legitimate claim or entitlement. Public Education, welfare benefits, continued public employment
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Fair Process
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Court will weigh:
1. Importance of the individual interest involved 2. The value of specific procedural safeguards to that interest. 3. The gov't interest in fiscal and administrative efficiency. |
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Public Employment
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Must be given notice of charges and a pre-termination opportunity to respond.
Exception - significant reason to keep from job. |
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Taking Clause
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Gov't cannot take private property for public use w/o just compensation.
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Public Use
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rationally related to a legitimate public purpose.
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Taking v. Regulation
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Gov't doesn't have to compensate for regulating private property.
*Taking is less likely to be found in emergecies. |
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Remedy for Takings
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If there was a taking, gov't will be required to either:
1. Pay compensation 2. Terminate the regulation and pay the owner for damages. |
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14th Amendment
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prohibits STATES from depriving any person of life, liberty, or property without due process and equal protection of the law.
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Application of 14th Amendment
(State Action Requirement) |
Only if there is action by:
1. State or local gov't 2. gov't officer 3. Private individual who meets requirements for state action (perform exclusive public functions or have significant state involvement in their activities) |
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Commerce Clause and Individual Rights
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Limits the power of individuals over other individuals. Includes racial discrimination and reaches to any business that is opent o interstate travelers or uses products shipped in interstate commerce.
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State Action Requirement
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Exists whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
1. State must be significantly involved in the private entity 2. States are not required to outlaw discrimination (just cannot encourage) |
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Contract Clause
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prohibits STATES from enacting any law that retroactively impairs contract rights. Must be substantial impairment of contract.
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Procedural Due Process
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Requres fair process/procedure, which requires at leasta n opportunity to present objections to the proposed action to a fair, neutral decisionmaker - only when gov't acts deprive individual of life, liberty or property
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Due Process and Negligence
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No due process if person was deprived through mere gov't negligence
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Liberty Interest
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A deprivation of liberty occurs if a person:
1. Loses significant freedom of action; or 2. Is denied a freedom rovided by the constitution or statue. *right to contract, employment, travel, vote, etc |
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Property Interest
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Must be a legitimate claim or entitlement. Public Education, welfare benefits, continued public employment
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Fair Process
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Court will weigh:
1. Importance of the individual interest involved 2. The value of specific procedural safeguards to that interest. 3. The gov't interest in fiscal and administrative efficiency. |
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Public Employment
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Must be given notice of charges and a pre-termination opportunity to respond.
Exception - significant reason to keep from job. |
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Taking Clause
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Gov't cannot take private property for public use w/o just compensation.
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Public Use
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rationally related to a legitimate public purpose.
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Taking v. Regulation
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Gov't doesn't have to compensate for regulating private property.
*Taking is less likely to be found in emergecies. |
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Remedy for Takings
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If there was a taking, gov't will be required to either:
1. Pay compensation 2. Terminate the regulation and pay the owner for damages. |
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14th Amendment
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prohibits STATES from depriving any person of life, liberty, or property without due process and equal protection of the law.
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Application of 14th Amendment
(State Action Requirement) |
Only if there is action by:
1. State or local gov't 2. gov't officer 3. Private individual who meets requirements for state action (perform exclusive public functions or have significant state involvement in their activities) |
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Commerce Clause and Individual Rights
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Limits the power of individuals over other individuals. Includes racial discrimination and reaches to any business that is opent o interstate travelers or uses products shipped in interstate commerce.
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State Action Requirement
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Exists whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
1. State must be significantly involved in the private entity 2. States are not required to outlaw discrimination (just cannot encourage) |
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Contract Clause
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prohibits STATES from enacting any law that retroactively impairs contract rights. Must be substantial impairment of contract.
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Procedural Due Process
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Requres fair process/procedure, which requires at leasta n opportunity to present objections to the proposed action to a fair, neutral decisionmaker - only when gov't acts deprive individual of life, liberty or property
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Due Process and Negligence
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No due process if person was deprived through mere gov't negligence
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Liberty Interest
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A deprivation of liberty occurs if a person:
1. Loses significant freedom of action; or 2. Is denied a freedom rovided by the constitution or statue. *right to contract, employment, travel, vote, etc |
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Property Interest
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Must be a legitimate claim or entitlement. Public Education, welfare benefits, continued public employment
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Fair Process
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Court will weigh:
1. Importance of the individual interest involved 2. The value of specific procedural safeguards to that interest. 3. The gov't interest in fiscal and administrative efficiency. |
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Public Employment
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Must be given notice of charges and a pre-termination opportunity to respond.
Exception - significant reason to keep from job. |
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Taking Clause
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Gov't cannot take private property for public use w/o just compensation.
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Public Use
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rationally related to a legitimate public purpose.
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Taking v. Regulation
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Gov't doesn't have to compensate for regulating private property.
*Taking is less likely to be found in emergecies. |
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Remedy for Takings
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If there was a taking, gov't will be required to either:
1. Pay compensation 2. Terminate the regulation and pay the owner for damages. |
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Just Compensation
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fair market value at time of taking
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Substantive Due Process v. Equal Protection
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Law limiting the liberty of all persons to engage in some activity = due process question.
Law treating a person or class of person differently= equal protection question |
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Strict Scrutiny
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Suspect Classification or Fundamental right is involved. Law upheld if it is necessary to achieve a compelling or overrideing gov't purpose. Burden on gov't. Most legislation fails.
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Intermediate Scrutiny
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Gender or legitimacy is involved. Law upheld if it is substantially related to an important gov't purpose. Burden probably on gov't.
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Rational Basis
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Used whenever other two standards are not applicable. Law is upheld if it is rationally related to a legitimate interest. Difficult to fail test. Upheld unless arbitrary or irrational. Burden on challenger.
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Fundamental Right
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1. Right to Travel
2. Privacy 3. Voting 4. All First Amendment Rights |
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Use mere rationality test if:
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1. Business and Labor Regs.
2. Taxation 3. Lifestyle 4. Zoning 5. Punitive Damages |
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Proving Discriminatory Classification
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Mere fact that legislation has a discriinator yeffect is not sufficient. Must show gov't intent to discriminate
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Suspect Classifications
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1. Race
2. Alienage Classifications (state) |
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Alienage Classifications
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Federal: not strict scrutiny. Valid if not arbidrary or unreasonable.
State: strict scrutiny - compelling state interest *exception - if law discriminates against alien participation int eh functioning of the state gov't, use rational basis. |
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Quasi-Suspect Classifications
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1. Gender - gov't bears teh burden to show an exceedingly persuasive justification
2. Legitimacy substantially related to an important gov't objective. |
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Classifications not suspect or quasi-suspect (rational basis test)
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1. Age
2. Wealth (abortions and education) |
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Fundamental Rights
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must be necessary to protect a compelling interest.
1. Right of Privacy (marriage, abortion, sexual conduct, etc.) 2. Right to Vote (residency requirements and property ownership are ok restrictions) 3. Right to Travel 4 Right to refuse Medical Treatment |
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1st Amendment Freedoms
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1. Freedom of Speech and Assembly
2. Freedom of Association and Belief 3. Freedom of Religion |
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Speech - Content v. Conduct
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A regulation seeking to forbid communication of specific ideas (content) is less likely to be upheld than a regulation of the conduct incidental to speech.
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Standard for Restriction on Freedom of Speech
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Gov't must show that the reg. is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.
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Exceptions to Freedom of Speech
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1. Obscenity
2. Defamation 3. "fighting words" |
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Content-Neutral Speech Regulations (rather than content-based)
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Time, Place and Manner regulations. Intermediate Scrutiny. Upheld if gov't shows that they advance important interests unrelated to suppression of speech adn do not burden substantially more speech than necessary
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Regulations involving public forums
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must be narrowly tailored to achieve an important gov't interest (no demonstration in hospital zone)
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Regulations involving nonpubic forums
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must have reasonable relationship to a legitimate regulatory purpose (law prohibiting billboards for traffic safety)
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Overbroad Speech regulation
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If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech, it may be facially invalid (look for the word ALL)
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Void for Vagueness Doctrine
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If a criminal law or regualtion fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause. (don't want people to withhold speech for fear it may be prohibited)
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Freedom not to speak
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Gov't cannot compel an individual personally ot express a message with which he disagrees.
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Symbolic Conduct
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Court will uphold a conduct regulation if the reg. is w/in the constitutional power of gov't, it furthers an important gov't interest, the gov't interst is unrelated to suppression of speech adn the incidental burden on speech is no greater than necessary (prohibit public nudity, burning of draft cards, etc)
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Prison Speech
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Reg will be upheld if it is reasonable related to legitimate penological interests.
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Public Forums (Time, Place and Manner)
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Regulation must:
1. Be content neutral 2. Be narrowly tailored to serve a significant gov't interest 3. Leave open alternative channels of communication |
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Residential Areas (public forum)
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Cannot just picket one house.
Charitable Solicitation is fine, subject to reasonable regulation. Don't need permits to go door to door. |
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Injunctions to Prevent Speech
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If content based: upheld only if necessary to achieve compelling gov't interest.
If content neutral: upheld only if it burdens no more sppech than necessary to achieve a significant gov't purpose. |
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Nonpublic Forums (Time, Place, Manner)
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All public property other than streets, sidewalks, designated public forums, etc. Reg is upheld if viewpoint neutral and reasonable related to a legitimate gov't purpose.
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Viewpoint Neutral
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If the gov't allows an issue to be presented in a nonpublic forum, it may not limit the presentation to only one view. Regs in nonpublic forum DON'T have to be content neutral.
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Reasons Court has Allowed Content Based Regulations
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1. Creates a clear and present danger of imminent lawless action.
2. Fighting words 3. Obscene 4. Defamation 5. False/deceptive advertising 6. Compelling interest |
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Clear and Present Danger
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State cannot forbid advocating the use of force or of law violation unless such advocacy is directed to producing or inciting imminent lawless action adn is likely to produce or incite such action.
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Fighting Words
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Words likely to incite physical retaliation
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Defamatory Speech
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Public official may not recover w/o clear and convincing evidence that statement was made with malice (knowledge of falsity and reckless disregard)
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Prior Restraints
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Gov't act that prevents communication from reaching the public. Court will uphold if some special harm would otherwise result. Must be narrowly tailored to achieve some compelling interest.
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Freedom of Religion
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Gov't cannot punish religious conduct solely because it's religious.
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Establishment Clause
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Prohibits laws respecting the establishment of religion (preference)
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