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95 Cards in this Set

  • Front
  • Back
1 - Threshold issues - justiciability (list)
1. Standing
2. Mootness
3. Ripeness
4. State Action
2 - Standing
P must show an injury that the D caused and then can be redressed by the requested relief.
3 - Mootness
Real and live controversy must exist throughout the lawsuit.
4 - Ripeness
An existing dispute that threatens immediate and substantial hardship to the P can be resolved by a final and conclusive judgement.
5 - State Action
_____ ______ includes official government conduct and private conduct where there is significant governmental involvement with the private party.
6 - Exceptions to Mootness
1. Controversies capable of repetition, but evading review.

2. Class action suits.
7 - Can state action be found in private individuals?
Yes. State action can be found in actions of seemingly private individuals who:
(1) perform exclusive public functions, or
(2) have significant state involvement.
**State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
8 - Examples of State Action
1. Administering a racially-discriminatory private trust.
2. Benefitting economically from racially-discriminating policies of private business located in a public building.
3. Specifically approving a private utility company's entertainment practices after investigatory hearing.
9 - Levels of Judicial Review (list)
1. Rational Basis
2. Intermediate Scrutiny
3. Strict Scrutiny
10 - Rational Basis
Burden on P. The government's law, regulation, or action will be upheld if it is _rationally related_ to a _legitimate_ interest.
11 - Intermediate Scrutiny
Burden on government. The government's law, regulation, or action will be upheld only if it is _substantially related_ to an _important_ governmental interest.
12 - Strict Scrutiny
Burden on government. The government's law, regulation, or action will be upheld only if it is _narrowly tailored_ to achieve a _compelling_ interest.
13 - "Substantially Related"
1. Gov't must have actual purpose.
2. A little overbreadth or underbreadth is okay.
3. Overbroad = regulates _more_ activity than what is needed to serve actual purpose.
4. Underbroad = regulaes _less_ activity than what is needed to serve actual purpose.
14 - Appropriate Levels of Judicial Review (list). 5th and 14th Amendments. Substantive Due Process.
1. Strict Scrutiny
2. Intermediate Scrutiny
3. Rational Basis
15 - Strict Scrutiny (Fundamental rights. MPCC VI)
-Marriage
-Procreation
- Contraceptives
- Custody and control of children
- Voting
- Interstate Travel
16 - Intermediate Scrutiny
Right to abortion. (Undue burden test.)
17 - Rational Basis (Nonfundamental. TEPEF)
- Right to practice trade/profession
- Physician-assisted suicide.
- Freedom from random public school drug tests.
- Economic interests.
18 - Appropriate Levels of Judicial Scrutiny (list). 5th and 14th Amendments. Equal Protection.
1. Strict Scrutiny (fundamental rights)
2. Intermediate Scrutiny
3. Rational Basis
19 - Strict Scrutiny
(Fundamental Rights. RANDVc)
- Race
- National origin
- Alienage (not Fed Regs)
- Voting Classifications
- Domestic Travel
20 - Intermediate Scrutiny
GI
- Gender
- Illegitimacy
21 - Rational Basis
- Alienage related to Democratic Process
- Illegal Aliens
- Federal Regulation of Aliens
- Age
- Handicap
- Wealth
- All other classifications
22 - Appropriate Levels of Judicial Scrutiny (list). 1st and 14th Amendments. Speech, Association, and Religion.
1. Strict Scrutiny (fundamental)
2. Intermediate Scrutiny
3. Rational Basis
23 - Strict Scrutiny
Fundamental
- Content and viewpoint discriminatory regulations of expression
- Prior restraints - prohibitions on association
- Disclosure of group membership -
- Punishment for religious beliefs
- Preference for religious sect
24 - Intermediate Scrutiny
- Commercial Speech
- Aid to Religions (lemon test)
- Content-neutral Reg of Time/Place/Manner of Expression in Public Forums (3-part test)
25 - Rational Basis
- Viewpoint-neutral Reg of Unprotected Expressions (fighting words, obscenity, incitement)
- Nonpublic Forums
- Loyalty Oaths (exception: Vague or Overbroad)
- General Conduct Regs Burdening Religion
26 - Appropriate Levels of Judicial Scrutiny (list) - Dormant Commerce Clause
1. Strict Scrutiny
2. Intermediate Scrutiny
3. Rational Basis
27 - Strict Scrutiny
Discrimination against Interstate Commerce (exception: Market Participant Doctrine)
28 - Intermediate Scrutiny
Non-discriminatory burden on Interstate Commerce (Balancing Test)
29 - Rational Basis
Equivalent Treatment of Domestic and Interstate Commerce
30 - Appropriate Levels of Judicial Scrutiny (list).
Article IV, S2 - Privileges and Immunities
1. Strict Scrutiny
2. Intermediate Scrutiny (none)
3. Rational basis
31 - Appropriate Levels of Judicial Scrutiny - Strict Scrutiny
Discrimination against out-of-state citizens re: Fundamental Civil Liberties or Important Economic Activities
32 - Appropriate Levels of Judicial Scrutiny - Intermediate Scrutiny
?
33 - Appropriate Levels of Judicial Scrutiny - Rational Basis
Discrimination against out-of-state citizens re: Not Fundamental Interests
34 - Property Rights Guarantees (2 of 2)
Article IV, S3
Contract Clause Doctrine - state and local governmental regs cannot substantially interfere with the obligations of existing contracts.
- Does not apply to Federal Gov't or Judician Decisions
- Must go to the heart of the bargain
- Only applies to existing Ks
- Private Ks = Intermediate Scrutiny
- Public Ks = Strict Scrutiny
35 - Property Rights Guarantees (1 of 2) - List
Article IV, S3
Federal Gov (5th Amendment) &
State Gov (14th Amendment)
1. "TAKINGS" CLAUSE DOCTRINES: cannot take private property for public use without just compensation

- Possessory
- Regulatory
- Public Use
- Just Compensation
36 - Property Rights Guarantees (1 of 2) - Takings" Clause Doctrines -

1a: Possessory
Gov't confiscates, destroys, permanently occupies

Exception: Public Emergency
37 - Property Rights Guarantees (1 of 2) - Takings" Clause Doctrines -

1b: Regulatory
Gov't regulation leaves no economic use for the land
38 - Property Rights Guarantees (1 of 2) - Takings" Clause Doctrines -

2: Public Use
Gov't can only "take" for public use (Rational Basis)
39 - Property Rights Guarantees (1 of 2) - Takings" Clause Doctrines -

3: Just Compensation
Gov't must either:
- Pay FMV at the time of the taking
- Terminate reg and pay owner reasonable damages for use

--> The more drastic the reduction in value, the more likely a taking!
40 - Bill of Attainder
Legislative acts that inflict punishment on individuals without a judicial trial.
41 - Ex Post Facto Laws
A law that retroactively alters _criminal_ offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.
42 - Facial Challenges
and
As-Applied Challenges
FACIAL CHALLENGES
- Regulation in the text does not contain what its supposed to contain

AS-APPLIED CHALLENGES
- Regulation is facially sound, but the text does not constitutionally apply as-applied to the person makin the challenge.
43 - Substantive Due Process

(SDP tests the reasonableness of a statute. Prohibits arbitrariness.)
1. When rights are fundamental, courts generally apply strict scrutiny.
2. When rights are non-fundamental, courts apply rational basis review.
* FUNDAMENTAL RIGHTS: PRIVACY (marriage, procreation, contraception, adult sodomy, parental rights, living with extended family, adult denial of medical treatment), INTERSTATE TRAVEL, VOTING
* NON-FUNDAMENTAL: economic liberties
44 - Procedural Due Process
- Rights associated with the _bare minimum_ rights due.
- Liberty and Property.
- (1) Notice
- (2) Fair Hearing
- (3) Unbiased Decision Maker

2 Main Questions:
- (1) What Property/Liberty rights receive protection?
- (2) What Process is due?
45 - Procedural Due Process Questions (List)

(1) What Property/Liberty rights receive protection?

(2) What Process is due?
1. Property
2. Liberty
3. Process Due
46 - Procedural Due Process Questions - Property
Some already acquired interest is to continue.

- In addition to land and personal belongings, includes any existing entitlement to a specific benefit under federal or state law for which there is a legitimate expectation that the benefit continue.
47 - Procedural Due Process Questions - Liberty
In addition to freedom from bodily injury or physical restraint, includes the freedom to exercise fundamental rights that have been impaired by intentional governmental action
48 - Procedural Due Process Questions - Process Due
Type and Extent determined by a 3-part balancing test that weights:
1. Importance of the interest to the individual.
2. Value of specific procedural safeguards to that interest.
3. Gov't interest in fiscal and administrative efficiency (Mathews Test)
49 - Equal Protection - Suggested Analytical Approach

Remember: EP applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., Classifies People)
1. What trait or basis does the law use to classify? (1a: Suspect, quasi-suspect, or fundamental right?)

2. What level of judicial review must be applied? (2a: what is necessary to prove an intentional discriminatory classification under the appropriate level of judicial review?)

3. Does the gov'ts law or action meet the appropriate level of scrutiny?
50 - Equal Protection -
Suspect Classifications

(RAN)
- Race, Alienage, National Origin (RAN)

- Strict Scrutiny

- P has the burden of showing the govt's intent
51 - Equal Protection -

How can a P show intent by the gov't?
1. Facially discriminatory

2. Patently discriminatory Application of a Facially Neutral Law

3. Discriminatory Motive Behind the Law/Action

-->Once P can prove intent,
BURDEN SHIFTS TO GOV'T
52 - Affirmative Action
(Racial/Ethnic)
--Any gov't action favoring racial or ethnic minorities must also meet Strict Srutiny. Gov't has a compelling interest to:
(1) Remedy persistent discrimination affecting readily identifiable individuals, and
(2) Achieve diversity within a poblic school body

--Narrowly tailed remedies required:
(1) Proportionate
(2) Flexible
(3) No burden on Innocent 3rd Party
53 - Equal Protection -
Alienage
- When Fed Gov't intentionally discriminates = R.B.

- When state/local gov't intentionally discriminates against Resident Aliens = S.S.

- When state/local gov't intentionally discriminates against Undocumented Aliens = R.B.
54 - Equal Protection -
Quasi-Suspect Classifications
1. GENDER = Intermediate Scrutiny
- Assumes Inferiority
- Based on Stereotypes
- Assumes financial dependence of women on men
-->Affirmative Action favoring women must meet Intermediate Scrutiny.

2. ILLEGITIMACY = Intermediate Scrutiny
55 - Equal Protection -
Non-Suspect or Non-Fundamental Rights
Rational Basis:
- Wealth
- Age
- Sexual Orientation
- International Travel
- Public Education

**HOWEVER, even under R.B., if P can prove hatred or intentional discrimination, he/she can still prevail.
56 - 1st Amendment -
Freedom of Speech (list)
1. Content-based regs
2. Content-neutral laws
3. Prior Restraint
57 - 1st Amendment -
Freedom of Speech
(Content-based regs)
Content-based regs on SUBJECT MATTER or VIEWPOINT of speech must meet STRICT SCRUTINY
58 - 1st Amendment -
Freedom of Speech (Content-neutral laws)
Content-neutral laws burdening expressive conduct generally only need to meet INTERMEDIATE SCRUTINY:
- Time
- Place
- Manner

**Exceptions: unprotected, less protected, and gov't-funded speech may be regulated using Subject Matter, as long as they are VIEWPOINT NEUTRAL.
59 - 1st Amendment -
Freedom of Speech
(Prior Restraint)
Strict Scrutiny. BUT: as long as it occurs under procedurally-proper order - must be followed until vacated.

PROCEDURAL SAFEGUARDS:
(1) Prompt judicial review
(2) No Admin Discretion
(3) Clear and Narrow Standards
60 - When dealing with 1st Amendment Freedom of Speech, which analysis should ALMOST ALWAYS be done?
1. VAGUENESS: a regulation is void for vagueness if a reasonable person cannot tell from the terms of the law what is prohibited and what is permitted.

2. OVERBREADTH: a regulation is overbroad if it affects _substantially_ more speech than is necessary to serve the govt's legitimate purposes.

3. UNDULY DISCRETIONARY: if it gives officials inadequate standards for applying the law's requirements.
-->Administrator must have VERY LITTLE discretion.
61 - Scope of Speech -
Freedoms included
1. Freedom not to speak

2. Symbolic Speech: gov't may regulate _only_ if it has:
(a) an important purpose
(b) unrelated to suppression of the message, and
(c) burden on communication no greater than necessary to achieve that purpose.

3. Anonymous Speech: forcing disclosure could have a chilling effect.
62 - Unprotected or Less Protected Speech (list)
1. Incitement of illegal conduct

2. Fighting Words

3. True Threat

4. Obscenity and sexually-oriented speech

5. Commercial speech
63 - Unprotected Speech -
Incitement of Illegal Conduct
- For speech to be punished as "incitement," the illegal conduct must be likely and imminent and intended by the speaker.

- Look to the FACE of the statute.
64 - Unprotected Speech
True Threat
A ____ ______ is a statement that a reasonable person would interpret, under the circumstances, as the D's serious declaration of intent to murder or inflict bodily harm.
65 - Unprotected Speech -
Fighting Words
- _____ ____ are abusive words, directed personally to the hearer, that are likely to produce immediate and physically violent reactions in the average person.

- Regulation of hate speech laws will not be upheld if it picks out certain disfavored viewpoint speech.

- Look at the ISSUE TRIO - most fail at the overbreadth requirement.
66 - Unprotected Speech -
Obscenity and Sexually-Oriented Speech
- The material must describe or depict sexual conduct that, taken as a whole by the average person:
(1) Appeals to the prurient interest in sex ("does it make you hot?"), using community standards.
(The material must describe or depict sexual conduct that, taken as a whole by the average person), CON'T:
(2) is patently offensive, using community standards, AND
(3) lacks serious value at a literary, artistic, political, or scientific nature, using a _rational reasonable person_ standard.

- Zoning Regs: cannot intentionally zone all activity out. Nude dancing can be zoned out ONLY if viewpoint neutral. If not--3-part test.
68 - Obscenity

(SLAPS)
- To be obscene, must lack-->SLAPS

Serious
Literary
Artistic
Political, or
Scientific content.
69 - Less Protected Speech -
Commercial Speech
________ ______ is:
(!) Commercial advertising that solicits for an illegal activity or that is false or misleading is _unprotected_ speech that can be prohibited.
(2) Truthful advertising with an inherent risk of deceiving or misleading the public can be forbidden.
(3) Otherwise, gov't regulation of truthful commercial advertising for lawful products or services will be upheld only if it meets Intermediate Scrutiny.
70 - Protected Speech Categories -
Level of Review
With the exception of gov't restrictions on speech activities that it finds (which must be VIEWPOINT NEUTRAL), all other content-based regulations of speech must meet STRICT SCRUTINY review.
71 - Time/Place/Manner Regulations in Public Forums
Gov't regulation of the time, place, or manner of speech and assembly in traditional public forums (streets, sidewalks), or in limited public forums (public auditoriums), is only permitted if the regulation is:
(1) Content-Neutral both as to Subject Matter and Viewpoint,
(2) Is Narrowly Tailored to serve an important governmental interest, and
(3) Leaves open alternative avenues of communication.
72 - Time/Place/Manner Regulations in Non-Public Forums
- Non-public forums (post offices, schools, airport terminals).

- Permissible if:
(1) Viewpoint Neutral
(2) Meets Rational Basis Review

- Also applies to public places not specifically noted
73 - Time/Place/Manner Regulations for Private Property
Gov't may adopt reasonable regulations to limit access to private property
74 - Freedom of the Press
- Explicitly protected
- General regs/taxes imposed on businesses apply to media too
- Special regs of taxes targeting media specifically must meet Strict Scrutiny
->Always ask-General or Specific?
- Media may publish info originally obtained unlawfully if:
(1) The intro is truthful and
a matter of public concern
(2) Media didn't obtain it unlawfully or know who did
(3) Original speaker of truthful info had reduced expectations of privacy
-->Ex: Radio receives anonymously-sent tapes of cell phone conversations discussing terrorist stuff. Broadcast upheld.
76 - Standards of Review for Media
1. Content-Based Regulations = Strict Scrutiny

2. Content-Neutral Regulations of Print, Internet, and Cable Television = Strict Scrutiny

3. Content-Neutral Regulations of Radio and Television are reviewed under Intermediate Scrutiny
77 - Freedom of Association
(list)
1. Political Activities

2. Ilegal Activities

3. Anonymous Ass'n

4. Discriminatory Membership
78 - Freedom of Association -
Political Activities
Association for political speech purposes is a fundamental right = strict scrutiny on any gov't restrictions
79 - Freedom of Association -
Illegal Activities
May be prohibited and membership punished if gov't can prove that the person:
(a) actively participated in group,
(b) knows of illegal activities, and
(c) specifically intends to further the illegal activities-->MUST BE ON FACE OF REG.
80 - Freedom of Association -
Anonymous Ass'n
Laws requiring disclosure of group membership that may chill association = Strict Scrutiny
81 - Freedom of Association -
Discriminatory Membership
Laws forbidding a group to discriminate are invalid if interfere with group's expressive activity. Exclusion must further expressive purposes of group.
82 - Freedom of Association -
Gov't Employees and Loyalty Oaths
- A public employee or independent gov't contractor cannot be fired or disciplined for expressing opinions in public as a citizen on matters of public interest unless it undermines employer's authority or disrupts employer's authority or disrupts employer's policies. 1st Amendment. DOES NOT PROTECT STATEMENTS UNDER OFFICIAL CAPACITY IN THE WORKPLACE.
- Govts may require employees to take loyalty oaths that are not vague or overbroad.
84 - Freedom of Religion -
Free Exercise Clause, Establishment Clause, and Lemon Test
1. Free Exercise Clause: gov't cannot specifically punish or interfere with religious practices by general regulatios of conduct.
- Exception: (1) religiously-based denials of unemployment compensation benefits, and (2) religious education outside public school system (i.e., Amish)
2. Establishment Clause: govt discrimination against or among religions must meet Strict Scrutiny. Non-discriminatoryreg must meet Lemon 3-part test:
(a) Must serve a secular purpose, (b) primary effect must not advance or inhibit religion, (c) must not create an excessive governmental entaglement with religious admin or beaurocracy.

*$$ from govt direct = Violates Establishment Clause
*$$ from govt THROUGH parent's choice = NO VIOLATION
86 - Conflict of Laws Pyramid
US Constitution >

Federal Law or Treaty (Last in Time Rule applies if conflict) >

Executive Agreement >

State Constitution >

State Laws (Statutes, Regs, Judicial Orders)
87 - Congress' Enumerated Powers - Commerce
Congress may regulate:
(1) channels of interstate commerce,
(2) persons and instrumentalities in interstate commerce,
(3) activities having a substantial effect on interstate commerce.

TIP: If congressional regulation of economic activity, ask: LOCAL (cumulative effect) or NATIONAL?
88 - Congress' Enumerated Powers -
Taxing and Spending
Federal Tax is valid under Article I, S8, if the tax is a reasonable means to produce revenue, or if Congress has the power to regulate taxed activity.
- A federal spending program may serve any legitimate public purpose, and conditional "grants-in-aid" may indirectly regulate those activities that Congress may NOT directly regulate otherwise under its enumerated powers.
89 - Necessary and Proper Clause
- Enables Congress to make all laws appropriate to further any power that the Constitution grant any branch of the Federal Gov't.

- SUPPLEMENTAL POWER

- MUST ATTACH TO AN ENUMERATED POWER

- An answer will NEVER be only the Necessary and Proper Clause!
90 - Congress' Power to Enforce
14th and 15th Amendments
Congress may pass remedial legislation ONLY, and the remedies must be proportional to the scope of the constitutional violations.
91 - Power of Impeachment,
Convictional, and Removal
1. Impeachment and Conviction for:
- Treason
- Bribery

2. House of Reps conducts proceedings - MAJORITY VOTE

3. Removal only after trial by SENATE - 2/3 vote
92 - 10th Amendment Limits
on Congressional Powers
All powers not granted to the Fed Gov't.
1. Congress cannot compel state/local legislatures to pass laws that serve Federal regulatory purposes.
2. Congress cannot commandeer state/local executive or administrative officers to regulate citizens according to Federal Requirements.
3. Congress cannot subject the public sector alone to taxes or regulations that do not apply evenhandedly to similar activities in the private sector.
4. EXCEPTIONS
(a) Congress can create federal regs attached to a grant of money to state and local govs (carrot instead of stick).
(b) Appropriate remedial legislation under the 14th Amendment S5 is NOT SUBJECT TO 10th Amendment restrictions.
94 - 11th Amendment Limits on Congressional Powers
(Sovereign Immunity Doctrine)
- State govts cannot be sued by a a private P in federal court or federal administrative agencies. DOES NOT APPLY TO PRIVATE SUITS AGAINST LOCAL/FED GOVT.
- EXCEPTIONS-->STATES CAN BE SUED WHEN:
(1) Express and Unequivocal consent to be sued given by state
(2) Suit for future injunctive relief against state officers acting in their official capacity. -->If Treasury will pay the bill--11th Amendment applies.
(3) Suit against a state under a federal statute enacted under 14th Amendment S5.
95 - Legislative Veto and
Line Item Veto
- Congress may not give itself a veto to overturn executive or administrative agency action (this would be lawmaking withot bicameralism and presentment).

- Nor may Congress give the President the Power to veto only some parts of a bill (instead of rejecting a bill in its entirety)
96 - Executive Powers -
Executive Immunity/Executive Privilege/Foreign Relations
- Tremendous amount of discretion.
(1) IMMUNITY: absolute immunity to civil suits for money damages for any actions undertaken while in office.
(2) PRIVILEGE: a presumptive privilege for presidential papers and conversations. MUST yield to other more important claims.
(3) FOREIGN RELATIONS: Treaties and Executive Agreements.
(a) TREATY - effective when ratified by 2/3 of Senator (-->trumps Executive Agreements if conflict).
(b) EXECUTIVE AGREEMENT - effective upon signing.
4. FOREIGN RELATIONS - war powers - president may introduce US armed forces into foreign hostilities in 2 situations:
(1) when Congress explicitly/implicitly authorizes, or
(2) when the national interest requires, provided Congress hasn't explicitly disapproved.
99 - Executive Powers -
Domestic Affairs and
Pardon Power
- Appointment and removal of officials

- President appoints Ambassadors, Judges, and officers

- Congress can place appointment powers where it wants for Inferior Officers
(CANNOT give the power to itself)
- REMOVAL: President has absolute authority to fire high-level executive officers. President may fire other executive officers at his discretion unless removal is explicitly limited by federal statute.
- PARDONS: President may pardon those those who are accused or convicted of federal crimes, except impeachment. Pardon power cannot be limited by Congress. Federal Courts retain power of judicial review.
101 - Pre-Emption Doctrine

(Derived from the Supremacy Clause)
1. Express pre-emption - Federal law explicitly forbids the challenged state/local regulation.

2. Conflicting Regs - Federal & state/local regs are mutually exclusive
3. Frustration of Federal Purposes - state/local law disrupts the purposes for a federal law

4. Occupation of the Field - Congress reserves a regulatory area for exclusive federal control
-->More comprehensive the scheme-->more likely Congress intended to occupy the field
103 - Dormant Commerce Clause
- When Congress is silent & there is no regulation, a state or local gov't may regulate interstate commercial activities, provided the reg does not discriminate or UNDULY BURDEN interstate commerce

- State or local reg discriminating against out-of-state economic actors or activities must meet STRICT SCRUTINY (CHALLENGER must first meet burden)
- Non-discriminatory reg will be invalid if burdens on I.C. outweigh the benefits in furthering a legitimate gov't interest.
- State taxes discriminating against out-of-state businesses will be subject to Strict Scrutiny
- Non-discrminatory taxes on out-of-state businesses valid ONLY IF (1) taxed activity has substantial nexus to the state, and (2) tax is fairly apportioned to apply only to the taxpayer's business activities within the state.
105 - Con Law questions
1. COMMERCE CLAUSE ANALYSIS

2. TIME/PLACE/MANNER ANALYSIS

3. EQUAL PROTECTION ANALYSIS