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102 Cards in this Set
- Front
- Back
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Standing Requirements
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1. Injury
2. Causation 3. Redressability |
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Exceptions to Third Party Standing Rule
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1. Close Relationship
2. Inability to Assert 3. Organization on Behalf of Members |
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Not Moot
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the matter has not yet been resolved and plaintiff's injury has not ended
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Exceptions to the "not moot" requirement
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1. Repetition
2. Voluntary Cessation 3. Class Action Suit |
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Examples of Political Questions
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1. Republican Form of Government Clause
2. President's conduct of foreign policy 3. Impeachment/Removal Process 4. Partisan Gerrymandering |
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Requirements for Supreme Court Review
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1. Case & Controversy
2. Final Judgment 3. No Independent & Adequate State Ground |
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Ways Cases Come to the Supreme Court
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1. Writ of Certiorari
2. Appeal 3. Original & Exclusive Jurisdiction - state v. state |
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Rule regarding suits against state governments
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Principle of Sovereign Immunity
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Exceptions to Sovereign Immunity Rule
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1. Explicit Waiver
2. Federal Laws adopted under 14th Amendment 3. Suit by federal government 4. Bankruptcy Proceedings 5. State Officers - injunctive relief or money damages for which personally liable |
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Exceptions to General Rule that Congress has no general police power
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M- Military
I- Indian Reservations L- Lands & Territories (federal) D- D.C. |
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Necessary & Proper Clause
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Congress can choose any means not prohibited by the Constitution to carry out constitutional authority
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What Congress can regulate through the Commerce Power
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1. Channels
2. Instrumentalities 3. Persons/Things 4. Substantial Effect |
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Substantial Effect & Cumulative Impact
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can be the basis of substantial effect only if it involves economic activity
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Substantial Effect & Inactivity
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cannot be regulated
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Congress' Power over State Regulation or Legislative Action
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cannot compel but can induce through conditions on grants
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Requirements for Congress to put Conditions on State Grants
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1. expressly stated
2. relate to purpose of program 3. not unduly coercive |
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Harmful Commercial Activity by State Government
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Congress may prohibit
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Legislative Veto
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Congress attempts to overturn an executive action without bicameral ism or presentment
unconstitutional |
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Line-Item Veto
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President attempts to veto part of a bill and sign the rest
unconstitutional |
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Requirements for Congress to act
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Bicameralism + Presentment
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Requirements for Treaty
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1. negotiated by President
2. ratified by Senate |
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Rules for Conflict with Treaties
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1. State Law < Treaty
2. Federal Statute - whichever adopted last in time 3. Constitution > Treaty |
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Executive Agreement
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signed by President and head of another foreign nation
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Rules for Conflict with Executive Agreement
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1. State Law < Executive Agreement
2. Federal Statute > Executive Agreement 3. Constitution > Executive Agreement |
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President's Sole Power of Appointment
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1. Ambassadors
2. Federal Judges 3. Officers |
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President's Removal Power
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any executive branch officer
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When Congress can limit President's Removal Power
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1. an office where independence from President is desirable
2. not a complete prohibition of removal (i.e. limited to cases of good cause) |
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Congress' Impeachment & Removal Power of President, Vice President, federal judges, and officers
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1. Impeachment by House (majority)
2. Conviction by Senate (2/3) |
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Presidential Immunity
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civil suits for money damages while in office
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President's Power of Pardon
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1. people accused or convicted
2. federal crimes |
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Exception to President's Pardon Power
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if person impeached by House
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Implied Preemption of State Law
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1. Mutually Exclusive Laws
2. Impedes Federal Objective 3. Clear Congressional Intent to Preempt |
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Rule on State Regulation of Federal Government
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cannot place a significant burden on federal government activity
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State Pollution Control Laws & Federal Government
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federal government never has to comply
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Dormant Commerce Clause
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principle that a state/local law is unconstitutional if it places an excessive burden on interstate commerce
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Privileges & Immunities Clause of Article IV
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no state may deny citizens of other states the privileges and immunities it gives its own citizens
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Privileges & Immunities Clause of 14th Amendment
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involves right to travel
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When Government can regulate private conduct to protect individual liberties
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1. Statute (race discrimination under 13th Amendment or Commerce Power)
2. Public Function - task traditionally and exclusively done by federal government 3. Entanglement - government authorizes, encourages, or facilitates unconstitutional activity |
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Procedural Due Process
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Deprivation + Intentional/Reckless Government Action
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Deprivation
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of life, liberty, or property
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Deprivation of Liberty
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loss of a significant freedom provided by the Constitution or a statute
*not harm to reputation alone |
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Deprivation of Property
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an entitlement not fulfilled
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Entitlement
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a reasonable expectation to continue receipt of a benefit
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Emergency Exception to Negligent Government Action under Procedural Due Process
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government liable only if conduct shocks the conscience
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Exceptions to Rule that the government has no duty to protect from privately inflicted harm
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1. in government custody or
2. government created the danger |
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Balancing Test for what procedures are required when there has been a deprivation
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1. individual's interest
2. ability of additional procedures to increase accuracy of fact-finding 3. government's interest |
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Termination of Welfare Benefits
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notice + hearing
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Termination of Social Security Disability Benefits
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post-determination hearing
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School Discipline
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notice + opportunity to explain
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Corporal Punishment
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no due process required
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Termination of Custody
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notice + hearing
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Takings Clause
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Government may take private property for public use if it provides just compensation
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Types of Takings
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Possessory Taking
Regulatory Taking |
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Possessory Taking
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Confiscation or physical occupation of property
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Regulatory Taking
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Regulation leaves no reasonable economically viable use of the property
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Exceptions to Regulatory Taking
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1. Conditions on Development of Property - if benefit roughly proportional to burden
2. Temporary Denial of Use |
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Public Use
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Reasonable belief that the taking would benefit the public
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Just Compensation
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Loss to the owner in reasonable market value
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Contracts Clause
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No state shall impair the obligations of contracts
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Level of Review for Private Contracts
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intermediate scrutiny
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Level of Review for Government Contracts
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strict scrutiny
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Fundamental Rights of Privacy
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1. marry
2. procreate 3. custody of one's children 4. keep related family together 5. control upbringing of children 6. contraceptive purchase and use |
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Abortion
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pre-viability - cannot place undue burden
post-viability - can prohibit unless necessary to protect woman's life or health |
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Right to Travel
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Fundamental right except foreign travel
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Durational Residency Requirements for Voting
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50 days is maximum durational requirement allowed
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Right to Education
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Not fundamental right
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Equal Protection Constitutional Provisions
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State/Local Government - Equal Protection Clause of the 14th Amendment
Federal Government - Due Process Clause of the 15th Amendment |
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Level of scrutiny for classifications based on race and national origin
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strict scrutiny
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Analysis for Facially Neutral Law
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law is unconstitutional if
1. discriminatory impact AND 2. discriminatory intent |
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Level of Scrutiny for Gender Classifications
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intermediate scrutiny
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Analysis for Facially Neutral Law that discriminates against gender
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law is unconstitutional if
1. discriminatory impact AND 2. discriminatory intent |
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Rule on Classifications Benefitting Women
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Not allowed except to remedy past discrimination
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Level of Scrutiny for Alienage Classifications
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1. General - strict scrutiny
2. Undocumented alien children - intermediate scrutiny 3. Congressional discrimination or self-government and democratic process classifications - rational basis |
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Areas where government can discriminate against aliens
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1. voting
2. serving on a jury 3. being police officer, probation officer, or teacher |
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Level of Scrutiny for discrimination against illegitimate children
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intermediate scrutiny
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Discrimination that gets rational basis
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1. age
2. disability 3. wealth 4. economic 5. sexual orientation |
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Level of Scrutiny for Content-Based Restrictions on Speech
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strict scrutiny
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Types of Content-Based Restrictions on Speech
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1. Subject Matter - topic of the message
2. Viewpoint - ideology of the message |
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Level of Scrutiny for Content-Neutral Restrictions on Speech
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intermediate scrutiny
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Prior Restraint
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a judicial order when an administrative system stops speech before it occurs
(TRO, Preliminary Injunction) |
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Level of Scrutiny for Prior Restraints
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strict scrutiny
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Requirements to regulate Symbolic Speech
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1. important interest unrelated to suppression of the message
2. impact on the communication is no greater than necessary to achieve the government's purpose |
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Anonymous Speech - protected or unprotected
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protected
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Government Speech
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no basis to challenge under the First Amendment
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When Government can regulate incitement of illegal activity
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1. Substantial likelihood of imminent illegal activity AND
2. the speech is directed to causing imminent illegal activity |
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Three-part Test for determining Obscenity
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1. material appeals to the prurient interest (community standard)
2. material is patently offensive 3. material lacks serious redeeming artistic, literary, political, or scientific value (national standard) |
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Scrutiny of Commercial Speech
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must be narrowly tailored but not the least restrictive alternative
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Commercial Speech that is not protected
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1. false and deceptive advertising
2. advertising for illegal activity |
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Defamation of Public Official
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1. false statement
2. actual malice - knowledge of falsity or reckless disregard |
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Public Figure
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someone who thrusts himself into the limelight
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Defamation of Public Figure
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1. false statement
2. actual malice - knowledge of falsity or reckless disregard |
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Defamation of Private Figure - Matter of Public Concern
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1. false statement
2. negligence *punitive damages requires actual malice |
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Defamation of Private Figure - Not Matter of Public Concern
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1. false statement
2. negligence *no malice required for punitives |
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Public Forum
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Government properties the government must make available for speech
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Level of Scrutiny for Public Forum Restrictions
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Neutral - intermediate scrutiny
Otherwise - strict scrutiny |
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Designated Public Forum
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Government properties the government chooses to open to speech
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Regulation of Designated Public Forums
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same as public forums
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Limited Public Forums
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Government properties limited to certain groups or certain subjects
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Regulation of Limited Public Forums
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reasonable + viewpoint neutral
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Non-public Forums
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closed to speech
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Regulation of non-public forums
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reasonable + viewpoint-neutral
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Lemon Test (Establishment Clause)
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1. Secular purpose
2. Neutral primary effect 3. No excessive entanglement |
