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147 Cards in this Set

  • Front
  • Back
Whether a case is "justiciable" (i.e., a federal court may address it) depends on what?
whether there is a "case or controversy."
What does the rule of No Advisory Opinions mean?
there must be a specifc present harm or threat of specific future harm.
What is Ripeness?
A plaintiff is not entitled to review of a statute or regulation before its enforcement (i.e., may not obtain a declaratory judgment) unless the plaintiff will suffer some harm or immediate threat of harm.
What is the doctrine of Mootness?
Mootness states a real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot.
What is the requirement of standing and the requirements?
Standing says a person must have a concrete stake in the outcome of a case.
a. Components are:
1) Injury - a Plaintiff must show that she has been or will be directly and personally injured
2) Causation - There must be a causal connection between the injury and the conduct complained of.
3) Redressability
A decision in the litigant's favor must be capable of eliminating her grievance.
When does an organization have standing?
An organization has standing if:
(i) there is an injury in fact to members which gives them a right to sue on their own behalf,
(ii) the injury is related to the organization's purpose, and
(iii) individual member participation in the lawsuit is not required.
What is the exception to the rule that a taxpayer generally has no standing to challenge government expenditures?
Exception: Suits attacking taxing and spending measures on First Amendment Establishment Clause grounds (e.g., federal expenditures to aid parochial schools).
~ (for a taxpayer to have standing, the spending power must be involved).
When do Legislators have Standing?
Legislators may have standing to challenge the constitutionality of government action if they have a sufficient "personal stake" in the dispute and suffer sufficient "concrete injury."
What is the rule on Adequate and Independent State Grounds?
The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds––even if federal issues are involved.
~ State law (nonfederal) grounds are adequate if they are fully dispositive of the case.
~ They are independent if the decision 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 Supreme Court may hear the case.
What are the two areas of abstention?
a. Unsettled Question of State law - A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.
b. Pending State (criminal) Proceedings - Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings invloving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith.
What is the Eleventh Amendment Limit on Federal Courts?
The Eleventh Amendment prohibits federal courts from hearing a private party's or foreign government's claims against a state government.
~ The prohibition extends to actions where the state is named as a party or where the state will have to pay retroactive damages.
~ the prohibition does not extend to actions against local governments or actions by the United States or other states.
Can Congress remove Eleventh Amendment immunity?
Congress can remove Eleventh Amendment immunity as to actions created under the Fourteenth Amendment, but it must be unmistakably clear that Congress intended to remove the immunity.
What is the Necessary and Proper "Power"?
Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government.
~ [Note: the Necessary and Proper Clause standing alone cannot support federal law - must work in conjunction with another federal power.]
What is the Taxing Power?
Congress has the power to tax, and most taxes wil be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed.
~ However, neither Congress nor the states may tax exports to foreign countries.
What is the General Welfare Clause?
Congress may spend to "provide for the common defense and general welfare." (General Welfare Clause)
~ Spending may be for any public purpose.
~ The federal government can tax and spend for the general welfare; it cannot directly legislate for it.
~ Thus, nonspending regulations cannot be supported by the General Welfare Clause.
Generally, what is the commerce power?
Congress has the exclusive power to regulate all foreign and interstate commerce.
To be within Congress's power under the Commerce Clause, what are the ways a Federal law can regulate interstate commerce?
(3 ways)
(i) Regulate the channels of interstate commerce;
(ii) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or
(iii) Regulate activities that have a substantial effect on interstate commerce.
~ If Congress attempts to regulate noneconomic (i.e., noncommercial) intrastate activity, the federal government must prove to the court that the activity in fact affects interstate commerce.
What type of power is Congress's Investigatory Power?
The power of Congress to investigate is implied.
Authorized Investigation must be expressly or impliedly authorized by the congressional house concerned, i.e., by statute or resolution creating or directing the investigating committee or subcommittee.
What is the Property Power?
Congress has the power to dispose of and make rules for territories and other properties of the U.S.
~ While there is no express limitation on Congress's power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the Constitution.
What is Congress's Federal Police Power?
Congress has no general police power.
~ However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capitol and its property power).
What is the extent of Congress's Power over Citizenship?
Congress may establish uniform rules of naturalization. This gives Congress plenary power over aliens.
What is the rule on Congress's Delegation of Legislative Power?
Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards (almost anything will pass) are set and the power is not uniquely confined to Congress (e.g., powers to declare war, impeach).
Note: Although a valid delegation of legislative power requires "intelligible standards" for the delegate to follow, almost anything will pass for an intelligible standard
~ note that Congress itself may not appoint members of a body with administrative or enforcement powers - this is the executive's power
What is the 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.
~ Note: Immunity does not cover bribes, speeches made outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.
What is a Congressional "Veto"?
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism (i.e., passage by both houses of Congress) or presentment (i.e., giving the bill to the President for his signature or veto). Legislative vetoes of executive actions are invalid.
What are the executive's Appointment Powers?
Under Art. III, Sec. 2,
~ The executive appoints, with the advice and consent of the senate, "all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for."
~ Congress, however, may vest the appointment of inferior officers in the President alone, the courts, or the heads of departments.
What are Congress's Appointment powers?
Congress itself may not appoint members of a body with administrative or enforcement powers; such persons are, pursuant to Art. II, sec. 2, officers of the United States and must be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments.
What is the President's power of Removal of Appointees?
The president can remove high level, purely executive officers (e.g., cabinet members) at will, without any interference by Congress.
~ However, Congress may provide statutory limitations (e.g., removal only for good cause) on the President's power to remove all other executive appointees.
What is a Pocket Veto?
If Congress is not in session, the President has 10 days to exercise the veto power; if he fails to act within that time, the bill is automatically vetoed.
~ If Congress is in session, the bill becomes law.
What are the President's Power as Chief Executive?
The president's powers over internal affairs are unsettled.
~ The more Congressional assent there is, the stronger the power to act.
What are the President's Power regarding military hostilities?
The President has no power to declare war but may act militarily in actual hostilities against the United States without a congressional declaration of war.
~ However, Congress, under its power to enact a military appropriation every two years, may limit the President.
What are the President's power re Foreign Relations?
The President has paramount power to represent the United States in day-to-day foreign relations.
What is the President's Treaty Power?
The President has the power to enter into treaties with the consent of two-thirds of the Senate.
How do Treaties relate to congressional acts?
Treaties are on par with congressional acts in supremacy. State laws that conflict are invalid.
What are Executive Agreements?
Executives agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the consent of the Senate.
~ If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.
What is Executive Privilege?
The President has a privilege to keep certain communications secret. National security secrets are given great deference by the courts.
What is the Exception re presidential communiques?
In criminal proceedings, presidential communiquies will be available to the prosecution where a need for such information is demonstrated.
What is Executive Immunity?
The President has absolute immunity from civil damages based on any action he took within his official responsibilities, but there is no immunity for acts that allegedly occurred before taking ofice.
~ If presedential aides have exercised discretionary authority in a sensitive area, they may share in the immunity for suits brought concerning that area.
What is the Effect of the Supremacy Clause?
Because of the Supremacy Clause, a federal law may supersede or preempt local laws.
~ If a state law conflicts with federal law, the state law will be invalidated.
~ If a state or local law prevents achievement of a federal objective, it will be invalidated; this is true even where state law was enacted for some valid purpose and not to frustrate the federal law.
What is Preemption?
A valid federal statute or regulation may expressly or impliedly "occupy" the entire field, thus precluding any state or local regulation even if the state of local regulation is nonconflicting.
~ Factors (if no express preemption) considered are:
(i) comprehensiveness of the federal scheme and
(ii) creation of an agency to administer the law.
What is the Interstate Compact Clause?
The Interstate Compact Clause concerns agreements between states.
~ If the agreement increases the states' power at the expense of federal power, congressional approval is required.
What is the Full Faith and Credit Clause?
By virtue of the Full Faith and Credit Clause, if a judgment is entitled to full faith and credit, it must be recognized in sister states (i.e., a party who loses a case in New York generally may not relitigate it in New Jersey; the New Jersey courts are bound by the New York ruling). This Clause applies only if:
(i) the court that rendered the judgment had jurisdiction over the parties and the subject matter;
(ii) the judgment was on the merits; and
(iii) the judgment is final.
What is the Supreme Court's jurisdiction in Suits by United States Against A State?
The Supreme Court has nonexclusive original jurisdiction in all controversies between the U.S. and a state.
~ means the SC may take original jurisdiction or can allow the case to be heard originally in a lower federal court.
What is the rule re a Suit by a State Against the United States?
Public policy forbids a state from suing the United States without its consent.
~ Congress can pass legislation that permits the the United States to be sued by a state in given situations.
What is the rule as to a Suit Against a Federal Officer?
A suit against a federal officer is deemed to be brought against the United States itself if the judgment sought would be satisfied out of the public treasury or would interfere with public administration and therefore is not permitted.
~ Specific relief against an officer as an individual will be granted if the officer acted ultra vires (beyond his authority).
What is the rule re one state suing another state?
One state may sue another state without the latter's consent. ~ The Supreme Court has exclusive, original jurisdiction.
May One state may be subject to the jurisdiction of another state's court.
Yes, by being sued by the citizen of another state.
May Congress subject state and local government activities to regulation or taxation?
Yes - Congress may subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector (e.g., minimum wage laws).
What is the rule re a Tax or Regulation that is applicable 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 activity may be limited by the Tenth Amendment (e.g., requiring states to either regulate radioactive waste or take title to it is beyond Congress's power).
What are the two exceptions relating to Congress not being able to Tax or Regulate purely state activities?
Exception––Civil Rights: Congress may restrict state activities that violate civil liberties.
Exception––Spending Power: Congress may "indirectly" regulate states through the spending power by imposing conditions on the receipt of federal funds.
What is the rule on State Taxation and Regulation of the Federal Government?
State and local goverments may not directly tax or regulate the activities of the federal government without the consent of Congress.
~ This principle is often termed "intergovernmental immunity."
~ However, nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government
(e.g., state income tax on federal employees).
What is the Interstate Privileges and Immunities Clause?
The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents.
Are Corporations and Aliens protected by the Interstate Privileges and Immunities Clause?
~ In contrast, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Dormant Commerce Clause.
What sorts of rights are protected by the Privileges and Immunities Clause?
Only "fundamental rights"––those involving important commercial activities (e.g., the pursuit of livelihood) and civil liberties––are protected.
~ "Fundamental Rights" include: Voting, Interstate Travel, Privacy, and First Amendment rights)
What is the Substantial Justification Exception to the Privileges and Immunities Clause?
The state law may be valid if the state has a substantial justification and there are no less restrictive means for the different treatment.
~ In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and there are no less restrictive means to solve the problem.
What is the Fourteenth Amendment Privileges and Immunities Clause?
States may not deny their citizens the privileges or immunities of national citizenship.
~ e.g., the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel
What is the rule When Congress regulates interstate commerce vis a vis a state law?
When Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted.
What is the rule as to whether a state may enact a law If Congress has not enacted laws regarding the subject?
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 commrece.
~ If it does, the state or local regulation will violate the Commerce Clause.
What is the rule on state Discriminatory Regulations?
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid
~ e.g., New York cannot ban California wines or tax them at a higher rate than local wines).
What are the exceptions as to when A discriminatory state or local law may be valid?
1. A discriminatory state or local law may be valid if if furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.
2. Exception––State as Market Participant: A state may prefer its own citizens when acting as a market participant (e.g., when buying or selling, hiring labor, or giving subsidies).
What is the test for Nondiscriminatory Laws re interstate commerce?
There is a Balancing Test: If a nondiscriminatory state law (i.e., local and out-of-state interests ae treated alike) burdens interstate commerce, the state law will be valid unless the burden on interstate commerce outweighs the promotion of a legitimate local interest.
~ note that The court will consider whether less restrictive alternatives are available.
What is the rule on taxes that discriminate against interstate commerce?
Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause.
(e.g., a tax on out-of-state businesses higher than tax on in-state businesses)
~ Note that these taxes may also violate other constitutional provisions. (e.g., the Privileges and Immunities Clause of Article IV or the Equal Protection Clause.)
What is the test for whether A nondiscriminatory state tax will be valid?
(3 elements)
a. Substantial Nexus - To be valid, the tax must must apply to an activity having a substantial nexus to the taxing state.
b. Fair Apportionment - To be valid, the tax must must be fairly apportioned according to a rational formula.
c. Fair Relationship - To be valid, the tax must be fairly related to the services or benefits provided by the state.
What are use taxes, are they valid?
Use taxes are imposed on goods purchased outside the state but used within it. They are valid.
What is the rule as to sales to local buyers by sellers engaged in interstate commerce?
If the interstate seller has substantial contacts with the buyer's state, a sales tax by the buyer's state is valid––even though the goods are delivered from outside the state.
What are ad valorem property taxes?
Ad valorem property taxes are based on the assessed value of the property in question.
What is the rule on Taxes on Commodities in the Course of Interstate Commerce?
Commodities in interstate transit are entirely exempt from state taxation.
When Does Interstate Transportation Begin?
Interstate transportation begins when the cargo (i) is delivered to an interstate carrier or (ii) actually starts its interstate journey.
What is the Effect of a "Break" in Interstate Transit?
A break in the continuity of transit does not destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment.
What does the validity of ad valorem (in proportion to the value) property taxes on instrumentalities of commerce (e.g., trucks or airplanes) depend on?
(2 elements)
(i) Taxable Situs: i.e., whether there are sufficient "contacts" with the taxing state to justify the tax and
(ii) Fair Apportionment - whether the value of the instrumentality has been properly apportioned according to the amount of the "contacts" with each taxing state.
When does an instrumentality have a Taxable Situs?
An instrumentality has a taxable situs in a state if it receives benefits or protection from the state. (There may be more than one taxable situs).
Example: Airplane had taxable situs in state––even though airline owned no property in state––because airline made 18 regularly scheduled flights daily from a rented depot in state.
What is the Apportionment Requirement for taxing instrumentalities in interstate commerce?
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.
~ The taxpayer's domiciliary state can tax the full value of instrumentalities used in interstate commerce unless the taxpayer can prove that a defined part thereof has acquired a "taxable situs" elsewhere.
May states impose Net Income Taxes on interstate firms?
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 whose only contacts with the taxing state are salespeople.
Are Value Added Taxes valid?
A value added tax (a tax on the value added to an item at each stage of production or distribution) is valid if it meets the general requirements (i.e., substantial nexus, fairly apportioned, not discriminate against interstate commerce, fairly relate to the services provided by the state).
What does the Thirteenth Amendment prohibit?
The Thirteenth Amendment prohibits slavery and involuntary servitude.
~ Under the 13th Amendment's Enabling Clause, Congress can prohibit racially discriminatory action by anyone (the government or a private citizen).

Note: "By its terms, the Bill of Rights (the first 10 amendments) limits federal power;
However, the Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states.
Exception: The most notable exceptions to incorporation are: (i) the Fifth Amendment's prohibition of criminal trials without a grand jury indictment and (ii) the Seventh Amendment's right to a jury trial in civil cases.
What does the Fourteenth Amendment prevent?
The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without Due Process and Equal Protection of the law.
What does the Fifteenth Amendment prevent?
The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or color.
~ Generally, private conduct is not prohibited by these amendments (the 14th and 15th Amendments) –– only where some state action is involved.
(Purely private conduct may be prohibited, however, on a separate constitutional basis such as the Commerce Clause.)
What is Congress's Rights re National Citizenship?
Congress has inherent power to protect rights of citizenship (e.g., rights to interstate travel, assemble, and petition Congress for redress).
What is the State Action Requirement, generally?
Since the Constitution generally applies only to governmental action, to show a constitutional violation "state action" must be involved.
Note: This concept applies to government and government officers at all levels––local, state, or federal.
Note, however, that state action can be found in actions of seemingly private individuals who
(i) perform exclusive public functions or
(ii) have significant state involvement.
What is the rule where State Involvement Facilitates Private Action?
State action also exists wherever a state state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
What is the Contract Clause?
The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. It does not affect contracts not yet entered into.
What is the test for State Legislation that substantially impairs an existing private contract?
State Legislation that substantially impairs an existing private contract is invalid unless the legislation:
(i) serves an important and legitimate public interest and
(ii) is a reasonable and narrowly tailored means of promoting that interest.
Example: Imposing a moratorium on mortgage foreclosures during a severe depression did not violate the Contract Clause.
What is the test for State Legislation that substantially impairs an existing public contract?
Legislation that impairs a contract to which the state is a party is tested by same basic test, but the contract will likely receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state.
What is the rule on Ex Post Facto Laws?
The state or federal government may not pass ex post facto laws (i.e., laws that retroactively alter criminal offenses or punishments.)
Specifically, laws creating a new crime, increasing punishment, or reducing required evidence are not valid, but procedural changes not affecting substantive elements are not ex post facto.
~ Note that the Due Process Clauses of the Fifth and Fourteenth Amendments similarly prohibit courts from retroactively interpreting criminal laws in an unexpected and indefensible way.
What are Bills of Attainder?
Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial.
~ Both federal and state governments are prohibited from passing bills of attainder.
What is the Basic Principle of Procedural Due Process?
A fair process (e.g., notice and a hearing) is required for a government agency to individually take a person's "life, liberty, or property."
~ Only intentional - not negeligent - deprivation of these rights violates the Due Process Clause.
~ Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge).
When does a deprivation of liberty occur?
A deprivation of liberty occurs if a person:
a. Loses significant freedom of action; or
b. Is denied a freedom provided by the Constitution or a statute.
What is considered "property" under Procedural Due Process?
"Property" includes more than personal belongings and realty, but an abstract need or desire for (or a unilateral expectation of) a benefit is not enough.
~ There must be a legitimate claim or "entitlement" to the benefit under state or federal law.
~ Examples of property interests include continued attendance at public school, welfare benefits, and government employment.
What is balancing test used to determine the type and extent of required due process procedures?
(i) The importance of the interest to the individual;
(ii) The value of specific procedural safeguards to that interest; and
(iii) The government interest in fiscal and administrative efficiency.
What is the "Taking" Clause?
The Fifth Amendment provides that private property may not be taken for public use without just compensation.
~ This rule is applicable to the states via the Fourteenth Amendment.
~ The Taking Clause is not a source of power for taking, but rather is a limitation.
~ "Taking" includes not only physical appropriations but also some government action that damages property or impairs its use.
What is the standard for the "Public Use" Limitation?
If the government's action is rationally related to a legitimate public purpose (e.g., for health, welfare, safety, economic, or aesthetic reasons), the public use requirement is satisfied.
~ Authorized takings by private enterprises are included if they redound to the public advantage (e.g., railroads and public utilities).
Why is the "Taking" vs. "Regulation" distinction important?
The crucial issue is whether governmental action is a taking (requiring payment of just compensation) or merely a regulation (not requiring compensation).
There is no clear-cut formula for making this determination.
What is the rule as to Regulations that merely decrease the value of property?
Regulations that merely decrease the value of property (e.g., prohibit the most beneficial use) do not amount to a taking if they leave an economically viable use for the property.
The Court uses a balancing test and will consider:
(i) The social goals sought to be promoted;
(ii) The diminution in value to the owner; and
(iii) The owner's reasonable expectations regarding the property.
If the regulation amounts to a taking, what must the government do?
a. Pay the property owner just compensation for the property (i.e., fair market value); or
b. Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (i.e., temporary taking damages).
What does Substantive Due Process deal with, generally?
Where the law limits the liberty of all persons engaged in some activity, it is usually a due process question.
What does an Equal Protection issue deal with, generally?
Where the law treats a person or class of persons differently from others, it will usually be an Equal Protection problem.
What does the Strict Scrutiny (Maximum Scrutiny) deal with?
Regulations affecting fundamental rights (i.e., Interstate Travel, Privacy, Voting, and First Amendment rights) or involving suspect classifications (i.e., race, national origin, and alienage) are reviewed under the strict scrutiny standard.
What is the strict scrutiny standard?
The law is upheld if it is necessary to achieve a compelling government purpose.
When is the Intermediate Scrutiny Standard invoked?
Regulations involving quasi-suspect classifications (i.e., gender and legitimacy) are reviewed under the intermediate scrutiny standard
What is the intermediate scrutiny standard?
The law is upheld if it is substantially related to an important government purpose.
When is the Rational Basis Standard invoked?
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard
What is the Rational Basis Standard?
The law is upheld if it is rationally related to a legitimate government purpose.
~ This is a very easy standard to meet; therefore the law is usually valid - unless it is arbitrary or irrational.
~ The person challenging the law has the burden of proof.
What are the Constitutional Source for Substantive Due Process?
The Due Process Clause of the Fifth Amendment applies to the federal government.
The Due Process Clause of the Fourteenth Amendment applies to state and local governments. The same tests are applied under each clause.
What standards are used in Substantive Due Process cases?
Where a fundamental right (Interstate Travel, Privacy, Voting, and First Amendment) is limited, the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard is applied.
What are the sources of the Equal Protection Clause?
The Equal Protection Clause of the Fourteenth Amendment is limited to state action. However, grossly unreasonable discrimination by the federal government violates the Due Process Clause of the Fifth Amendment. The court applies the same standard under each constitutional provision.
What are the Applicable Standards applied to Equal Protection cases?
Where a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation.
~ If a quasi-suspect classification is involved, intermediate scrutiny is the applicable standard.
~ If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, the rational basis standard applies.
What is necessary for a strict or intermediate scrutiny standard to be invoked?
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate.
How is intent to discriminate by the government shown?
(i) A law that is discriminatory on its face;
(ii) A discriminatory application of a facially neutral law; or
(iii) A discriminatory motive behind the law.
Note: The third way to show intentional discrimination is the most difficult to prove. A discriminatory effect alone is not enough. The legislature's discriminatory motive must be shown (e.g., by evidence of a history of discrimination).
What are Suspect Classifications?
Classifications are suspect if based on Race, National Origin, or Alienage* (RAN)
Are Federal Alienage Classifications subject to strict scrutiny?
Because of Congress's plenary power over aliens, federal alienage classifications are not subject to strict scrutiny. Such classifications are valid if they are not arbitrary and unreasonable.
Are state/local laws on alienage suspect classifications?
Generally, state/local laws on alienage are suspect classifications subject to strict scrutiny.
Example: It is unconstitutional for United States citizenship to be required for welfare, civil service jobs, or to become a lawyer.
What are the Quasi-Suspect Classifications?
Legitimacy and Gender
What is the intermediate scrutiny standard used for Gender Classifications and Legitimacy Classifications?
Gender Classifications must be substantially related to an important government purpose or interest (this is closer to strict scrutiny than it is to rational basis).
~ The government bears the burden of showing an "exceedingly persuasive justification" for the discrimination.
What is the Exception for Participation in Self-Government Process as it relates to aliens?
If a law discriminates against alien participation in state government (e.g., voting, jury service, elective office), the rational basis standard is applied.
Also, the rational basis standard is used for state and local laws limiting certain non-elective offices involving important public policy (e.g., police officers, probation officers, and teachers).
What are the Fundamental Rights?
Privacy Rights, Right to Vote, Right to Travel, and First Amendment Rights
What is the standard used under Fundamental Rights problems?
Strict Scrutiny - government action must be necessary to proetct a compelling government interest.
(Remember that there must be no less restrictive means to achieve this goal.)
What are the Right to Privacy areas?
Contraceptives, Abortion, Marriage, Procreation, Education, Family Relations (i.e., the right to keep the extended family together)
What is the Pre-viablity abortion rule?
Before viability (i.e., a realistic possibility that the fetus could survive outside the womb), a state may adopt a regulation protecting the mother's health and the life of the fetus if the regulation does not place an "undue burden" on or substantial obstacle to the woman's right to obtain an abortion.
What is the post-viability abortion rule?
Once the fetus is viable, the state's interest in the fetus's life can override the woman's right to choose an abortion, but the state cannot prohibit the woman from obtaining an abortion if necessary to protect the woman's health or safety.
What is the Right to Travel?
An individual has a fundamental right to migrate from state to state and to be treated equally after moving into a new state.
What are Content and Conduct regulations as they relate to Speech and Assembly regulations?
Speech and assembly regulations can generally be categorized as either content regulations (regulations forbidding communication of specific ideas) or conduct regulations (regulations of the conduct associated with speaking, such as the time of the speech, sound level, etc.).
What is the standard used for content-based regulations?
It is presumptively unconstitutional to place burdens on speech because of its content except for certain categories of speech (obscenity, defamation, etc.).
~ Content-neutral speech regulations generally are subject to intermediate scrutiny:
The regulation must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests.
What is the general standard for conduct based regulations?
Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions.
When is a regulation of speech and assembly void on its face?
A regulation of speech or assembly is void "on its face" if it is explicitly vague or overbroad.
What is the status of a void regulation?
A void regulation is totally invalid; i.e., it is incapable of any application, and thus a person cannot be punished for failure to follow the regulation - even if his speech or assembly could otherwise be regulated.
When is a regulation overbroad?
A regulation is overbroad, i.e., it regulates substantially more speech than is necessary (e.g., outlawing all First Amendment activity within an airport terminal).
When is a regulation void for vagueness?
A regulation is vague, when it does not give reasonable notice of what is prohibited (e.g., a prohibition against lewd speech)
Does Congress have more leeway when funding speech than when regulating it?
Yes - Congress has more leeway when funding speech that it does when it is regulating speech. Congress may selectively fund programs that it believes to be in the public interest while denying funding to alternative programs.
~ However, viewpoint restrictions generally are not allowed when the government funds private speech.
What does the regulation of conduct related to speech depend on?
the breadth of this power depends on the forum in which the speech or assembly is to ocur.
What is the standard for when the Government Regulation of Public Forums is permissible?
3 elements
Government regulation of public forums (e.g., streets, sidewalks, and parks) or other public property held open for expressive activity (i.e., designated public forums) is permissible if it is:
(i) Content neutral;
(ii) Narrowly tailored to serve a significant (important) government interest; and
(iii) Leaves open alternative channels of communication.
Note: Almost every legitimate governmental interest satisfies the significant/important standard.
What is the standard for a content-based injunction against speech in a public forum?
If content based, the regulation must be necessary to achieve a compelling interest (Strict scrutiny)
What is the standard for a content neutral injunction against speech in a public forum?
If the injunction is content neutral, the injunction must burden no more speech than is necessary to achieve a significant government interest.
What is the Standard for the Regulation of Speech and Assembly in a Non-Public Forum?
Speech and assembly can be more broadly regulated in nonpublic forums (i.e. government-owned forums not historically linked with speech and assembly, such as military bases, schools, government workplaces, etc.).
~ In such locations, regulations will be valid if they are:
a. Viewpoint neutral; and
b. Reasonably related to a legitimate government purpose.
What is the Standard for regulation of speech in a Private Forum?
The government may adopt reasonable regulations to limit access to homes and other private forums (e.g., to protect privacy, government may require obtaining homeowner's permission before soliciting; to facilitate mail delivery, government can prohibit placing unstamped items in mailboxes).
What is the Standard for Content-based regulations of speech?
To be valid, restrictions on the content of speech must be narrowly tailored to achieve a compelling government interest.
What are the Categories of Speech under the First Amendment?
1. Inciting Imminent Lawless Action
2. Fighting Words
3. Obscenity
4. Defamatory Speech
5. Some Commercial Speech
What is the Standard for burdened speech under "Inciting Lawless Action"?
Speech can be budened 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.
When can speech be burdened as "Fighting Words"?
Speech can be burdened if it constitutes fighting words (personally abusive words that are likely to incite immediate physical retaliation in an average person).
What are the elements for Obscene Speech?
Speech is obscene if, to the average person it:
1) Appeals to the prurient interest in sex, using a community standard;
2) Is patently offensive and an affront to contemporary community standards; and
3) Lacks serious value (literary, artistic, political, or scientific), using a national reasonable person standard.
What is the Standard for the Regulation of Commercial Speech?
3 elements
regulation of commercial speech will be upheld only if it:
a. Serves a substantial government interest;
b. Directly advances that interest; and
c. Is narrowly tailored to serve that interest. (does not require the least restrictive means)
What are Prior Restraints?
Prior restraints prevent speech before it occurs, rather than punish it afterwards.

~ They are rarely allowed.
~ The government has a heavy burden in justifying a prior restraint; it must show that some special societal harm will otherwise result.
What are the Procedural Safeguards for a Prior Restraint?
3 elements
(i) The standards must be narrowly drawn, reasonable, and definite;
(ii) Injunction must promptly be sought; and
(iii) There must be a prompt and final determination of the validity of the restraint.
What is the Standard for the Regulation of Freedom of Association and Belief?
Infringements of the Right of Association and Belief must be justified by a compelling state interest, unrelated to the suppression of ideas, and must be the least restrictive means of protecting the government interest involved.

~ Laws regulating elections might impact on the First Amendment freedoms of speech, assembly, and association.
~ The Court uses a balancing test to determine whether a regulation of the electoral process is valid: If the restriction on First Amendment activity is severe, strict scrutiny is applied, but if the restriction is reasonable and nondiscriminatory, it generally will be upheld.
What does the Freedom of Religion Encompass?
The Free Exercise Clause - The Free Exercise Clause prohibits government from punishing someone on the basis of her religious beliefs.
Establishment Clause - The Establishment Clause prohibits laws respecting the establishment of religion.
What is the Free Exercise Clause?
The Free Exercise Clause prohibits government from punishing someone on the basis of her religious beliefs.
the Free Excercise Clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct;

The Free Excercie Clause cannot be used to challenge government regulation unless the regulation was specifically designed to interfere with religion.
(e.g., a law that prohibits the precise type of animal slaughter used in a ritual by a particular religious sect is unconstitutional).
~ Moreover, the Free Excercise Clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct;
What is the Establishment Clause?
The Establishment Clause prohibits laws respecting the establishment of religion.
What is the standard if a government regulation includes a preference for one sect over another?
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.
If a government regulation or action contains no sect preference (is neutral), what is the standard under the Establishment Clause?
If a government regulation or action contains no sect preference (is neutral), it is valid under the Establishment Clause if it:
(i) Has a secular purpose;
(ii) Has a primary effect that neither advances nor inhibits religion; and
(iii) Does not produce excessive government entanglement with religion.