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154 Cards in this Set
- Front
- Back
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Power of Judicial Review
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Not in the Constitution. Established by Marshall in Marbury v Madison when the court struck down a provision granting the court original jurisdiction outside of what is given in the constitution
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Supreme Court's Original Jurisdiction
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In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.
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Supreme Court's Appellate Jurisdiction
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All other cases that fall under federal jurisdiction
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Cases outside of the Court's jurisdiction after the 11th Amendment
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Cases commenced or prosecuted against a State by Citizens of another State, or by Citizens or Subjects of any Foreign State
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Congressional power of the Supreme Court's jurisdiction
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Limited to modifications of appellate jurisdiction
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Reasons for appellate jurisdiction that can override a state court
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State attachments, prejudices, jealousies, interests.
Uniformity of decisions. Elimination of forum shopping by Ps |
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Martin v Hunter's Lessee
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Supreme Court decisions are binding on all state courts
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Cooper v Aaron
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Supreme Court decisions are binding on all state governments and officials, regardless of whether or not the state was a party to the case
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Congressional ability to restrain the court
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Selection of justices
Impeachment of justices Court-packing Court-stripping (removal of appellate jurisdiction) Constitutional Amendments |
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Requirements for Standing in a Supreme Court Case
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Injury in Fact
Causal Connection Redressability |
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"Injury in Fact" as it relates to standing
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Invasion of a legally protected interest which is (a) concrete and particularized, (b) "actual or imminent". The right must be the concrete right of a private individual
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Extent of redressability necessary for standing
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Any reduction in injury, no matter how slight, is sufficient
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Four Prudential Limits on Standing
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Third Party Standing
Generalized Grievances Suits outside a law's zone of interest Legislator Standing |
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Exceptions to third party standing
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A party who is highly involved or represents an organization related to the injured party may file suit if the injured party cannot
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Mootness
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Requires that an actual controversy be in existence at all times of the review, not merely at the time the complaint is filed
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Exceptions to Mootness
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Cases that are capable of repetition yet evading review.
Cases where a part of the grievance has been settled (behavior stopped), but could easily be restarted, or where another part of the grievance remains |
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Ripeness
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Damage must typically be real, not simply anticipated.
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Nonjusticiable Questions
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Foreign relations
Validity of Enactments Political Questions Congressional Qualifications Breaking of Treaties |
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Equal Protection and Justiciability of Political Questions
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Where a political issue such as vote dilution is raised under Equal Protection, the court will hear it
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When the court will hear cases regarding Congressional Qualifications or Impeachment Proceedings
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Qualifications: If attempts are made to add or abuse congressional qualifications, the court will hear the case
Impeachments: If Congress acts contrary to the Constitution, the court will step in |
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Article I Section 8
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"Necessary and Proper Clause" means Congress has the power to do the means that are necessary, helpful, or useful to achieve a proper Constitutional end
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McCulloch v Maryland
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Necessary and Proper clause gives Congress the power to establish a federal bank.
States cannot tax a federal bank any differently than they tax all banks |
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Tenth Amendment
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All powers not delegated to Congress are retained by the States. States do not gain those rights they did not posses prior to ratification of the Constitution
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Commerce Clause
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Congress may "regulate commerce with foreign nations, and among the several states, and with the indian tribes"
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What Congress may regulate under the commerce clause (modern approach)
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1. Use of the channels of interstate commerce
2. The instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may only come from intrastate economic activities 3. Economic activities with a substantial relation to interstate commerce |
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Can the Civil Rights Act be used to regulate private parties?
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Yes. Congress used the commerce clause to enforce the Civil Rights Act against private businesses
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Can the Commerce Clause be used to regulate Criminal Activity?
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Yes, insofar as the activity is either economic in nature, or crosses interstate lines.
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Can the Commerce Clause be used to abridge State Autonomy with reference to employees wages?
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Yes, so long as a law is generally applicable to state and private employees, Congress can enact wage regulations
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Can Congress regulate an intrastate activity that is not economic in nature if it finds evidence of an effect upon interstate commerce?
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No, unless the activity is economic in nature or crosses state lines, Congress cannot regulate it
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Can Congress offer monetary incentives for compliance with a regulation?
Can Congress impose sanctions on states for failure to comply with a regulation? |
Yes.
No. The federal government may not compel the states to administer a federal regulatory program |
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When can Congress ban the state from selling certain information?
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When the state is acting as a commercial vendor and the law applies equally to private vendors
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Can Congress require state police to conduct background checks on all handgun buyers?
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No. State courts can be ordered to apply federal law, but state executive branches cannot be ordered to act.
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Exception to the "Per se" invalidity of State laws that discriminate economically on their face.
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Quarantine laws designed to keep "stuff" out that isn't already "in" for the protection of the state
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Exceptions to the dormant commerce clause
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The State is engaging in a traditional state function.
The goods make it through interstate commerce uninhibited. The state is acting as a private entity. |
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Gibbons v Ogden
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Established the power of Congress over states in all economic issues
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Can Congress delegate regulation of interstate commerce to a state?
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Yes. In areas where laws are best enacted by local governments who had knowledge of local conditions, Congress has delegated regulatory power to the state.
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When can a state tax all milk distributors and then give rebates to all in state milk distributors?
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When the rebate is derived entirely from the "general budget"
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How can a state protect it's natural resources without violating the dormant commerce clause?
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By limiting all sales of the resource both in state and out of state.
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Can Chicago require that all pot growers process out the bad leaves within 10 miles of the city?
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No. This places an undue burden on interstate commerce. Chicago could require that all other processing meet certain requirements, so long as they are not discriminatory nor an undue burden.
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Can Chicago require that all pot ash from bud smoked within city limits be processed in a private ash filtering plant within city limits?
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No, this is a hoarding of goods for a private city business.
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Does it matter of Chicago placed the same burden on Chicago pot ash exporters as it did on out of city pot ash processors?
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No. Hurting business equally does not satisfy the dormant commerce clause. It is still a burden to interstate commerce.
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Can Chicago require that all Chicago smoked pot ash be brought to Chicago's public pot ash processing plant?
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Yes. In areas of traditional government activity (pot processing), laws may favor the government while treating in/out of city businesses the same
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When will a state's interest outweigh a law that burdens interstate commerce?
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When the non-economic interest of the state is both important and substantially furthered by the legislation, it will outweigh lesser burdens on interstate commerce
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Three Forms of Federal Preemption over state law
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Express
Field Conflict |
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Field Preemption
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Congress entirely dominates a field of legislation and evidence exists that Congress intends for its legislation to be all inclusive
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Jackson's Three Tiers of Presidential Power
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1.) Actions pursuant to an express or implied authorization of Congress - Max
2.) Actions without Congressional grant or denial of authority - Norm 3. Actions incompatible with the express or implied will of congress - Min |
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What Presidential action has the same power as a treaty and can override state policy and citizen suits?
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Executive Agreements
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When can the President introduce troops into combat?
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1. When war is declared
2. Congress gives specific statutory authorization. 3. An attack upon the U.S. creates a national emergency |
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Following a suspension of the writ, when can a noncombatant be tried by a military court?
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When civilian courts are closed.
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When are illegal Combatants on enemy soil entitled to a trial by jury?
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NEVER
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Why were the legal combatants in Johnson v Eisentrager not entitled to a write of habeas corpus?
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Prisoners who committed their acts of war outside of the U.S. and who spend all of their detention outside of the U.S. are not entitled to the writ.
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Hamdi v Rumsfeld established that U.S. citizens at Gitmo must have an opportunity to hear and rebut charges... But -
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The same trial protections given to normal criminal defendants need not be given. There is no need for a jury, the government may rely on hearsay and the prisoner has the burden of proof.
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Military trials intended to try Guantanamo detainees were unconstitutional because...
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The president acted without authority. Congress, the constitution, history all denied President's authority to do this.
Plurality believed the tribunals were an inadequate substitute for habeas corpus. |
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If the writ of habeas corpus is not suspended by Congress, what can be used to get around typical habeas corpus requirements?
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Adequate substitutes included judicial oversight, appeals, knowledge of evidence, counsel, ability to rebut evidence.
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What is wrong with a one house veto?
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1. It gives power that is executive in nature to the legislature.
2. It removes the bicameral legislative process from decisions. |
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What is wrong with an across the board line item veto?
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A line item veto gives the President the ability to unilateraly change the text & effect of statutes that have already been duly enacted.
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When are Line Item Vetoes acceptable?
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Line item vetoes may be written into individual bills
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Who can appoint superior officers?
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The President with the advice and consent of congress
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Who can appoint inferior officers?
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The President, superior officers, or the "courts of law" as chosen by Congress.
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Can Congress delegate the authority to appoint FEC members to the Pres Pro Tem and the Speaker of the House?
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No. Congress may only delegate appointment by those persons named in the appointman
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Before Morrison, the President's removal power of executive officers was -
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Complete and not limitable by congress.
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Why couldn't Congress remove the comptroller general?
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Congress cannot execute laws, and therefore cannot give itself the power to remove an officer whose powers are primarily executive in nature.
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The President's control over removal of officers who are quasi-executive and quasi-legislative is -
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Limitable by Congress
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The President's control over removal of officers whose function is primarily judicial is -
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none whatsoever.
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Morrison v Olson & Executive Removal Power
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Congress may limit the executive's power of independent counsel to "good cause" removal and may also give oversight to the independent counsel.
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U.S. v Nixon
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The President's executive privilege only extends to issues of national security or threats to national interests.
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President and Civil Suits stemming from Official Acts
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The president is absolutely immune from all civil damages for harm caused by his official acts so long as there is not explicit affirmative action by congress that states otherwise.
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President and Civil Suits stemming from attempted affairs
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The president is not immune from and cannot temporarily suspend civil sutis for harm done outside the scope of his official duties.
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Guidelines of Strict Scrutiny Test:
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The means must be necessary to achieve a very compelling state end
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Guidelines of Intermediate Scrutiny:
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The means must be substantially related to a very important state goal
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Guidelines of the Rational Basis Test
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The means must be rationally related to a legitimate state goal
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Use of Strict Scrutiny:
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Facially discriminatory race or ethnicity laws. State laws dealing with aliens
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Use of Intermediate Scrutiny:
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Gender laws
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Use of Rational Basis:
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Federal laws regarding aliens, wealth laws, sexuality laws, mental retardation laws, economic or social laws
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Three Tiers of Rational Basis
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Deferential: Court pretends to give an analysis
Rational: Court examines the state's justification and finds it rational Bite: Court applies the test in a manner closer to intermediate scrutiny |
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Use of the Privileges and Immunities Clause
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Bars the unequal treatment of newcomers and oldtimers in a state. Generally no longer used - Equal Protection is used instead.
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Three rights that a state cannot condition of length of residency (under equal protection)
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Welfare Benefits
Voting Emergency Medical Care |
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Right that a state can condition on the length of residency
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Divorce.
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Rights Not Incorporated to the States under the 14th Amendment
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Right to Keep and Bear Arms
Freedom from Quartering of Soldiers Right to indictment by a Grand Jury Right to jury trial in civil cases Protection Against Excessive Bail |
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Why is Lochner bad?
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Use of Substantive Due Process to strike down legislation that was Economic in nature
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Carolene Products Footnote Four:
Three categories where judicial activism is warranted: |
1. Where a particular constitutional right is being interfered with by the government
2. Where there is a blockage of the use of the political process 3. Where there is a discreet and insular minority that cannot get access to the political process, cannot be heard in general elections, cannot lobby successfully, etc |
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What is the one area in modern decisions where economic substantive due process has been utilized?
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Placing limitations on punitive damages.
General Rule: Plaintiff can only recover for what was done inside of the state. Plaintiff can only recover for actions similar to what was done the P. P cannot recover more than 9x their compensatory damages. |
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What concept did the court use to invalidate a law forcing the sterilization of habitual criminals?
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Equal Protection
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What concept did the court use in Griswold v Connecticut to invalidate a law banning the use of contraceptives?
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The court found a penumbra creating a "zone of privacy" that related to marriage, family, & home. This penumbra grew out of the 1st, 3rd, 4th, 5th amendments
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What concept was used by the court to strike down abortion laws in Roe v Wade?
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Substantive Due Process that protects privacy as it relates to family and reproduction
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The Abortion law as put forth by Roe:
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1. States cannot regulate prior to the 2nd trimester
2. During the 2nd trimester states can only regulate in the interest of the mother's health 3. During the 3rd trimester, states can ban abortions except where they are necessary for a mother's health |
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Changes to state regulation of abortion in Casey
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States have an interest in future life beginning at conception. They may therefore place requirements upon any stage of an abortion, so long as it does not place an "undue burden" on the mother.
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Roe's Rules as amended by Casey
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1. States can impose slight burdens during the first trimester
2. States can regulate in the interest of the mothers health in the 2nd trimester 3. States can require a fetus be checked for viability before an abortion anytime near the beginning of the 3rd trimester |
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Permissible State Abortion Requirements
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Requiring a minor to have parental consent (so long as there is a judicial bypass). Requiring a woman to consult with a doctor and then wait 24 hours before her abortion. Requiring a doctor to inform of a woman of the gestational age of the fetus.
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Impermissible State Abortion Requirements
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The consent of a woman's husband.
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Do partial birth abortion bans need to have exceptions for a mother's health?
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No.
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Four Fundamental Rights
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the right to privacy
the right to marriage the right to procreation the right to interstate travel |
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How did the court establish a right to do it in the butt?
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Substantive due process and a right to privacy, love, expression of intimacy. The court used a rational basis test with bite.
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What evidence may a state require before permitting a patient in a permanent vegetative state be taken off life support?
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Clear and Convincing evidence of the patient's desire to be taken off life support in such a situation.
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Under what circumstances might the court strike down a ban on physician assisted suicide?
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Where patients did not have access to sufficient pain medication to either relieve their pain or kill themselves if they so chose.
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When is a Rational Basis Test used to examine laws based on Race?
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Facially Neutral laws with an arguably discriminatory effect.
Government attempts to remedy past government discrimination. |
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What did Brown v Board I require of the Federal Government?
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That the government stop all segregation and take steps to remove the government's involvement in areas where the government had been involved in creating segregation (through statutes or administrative action)
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What did Brown v Board II require of the Federal Government?
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That the desegregation process hurry the fuck up. Gave federal courts supervisory responsibility to desegregate schools that had not proceeded in an adequate manner.
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If part of a school district was not segregated but another part was segregated, did the entire district have to desegregate?
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Nope.
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When did federal involvement in desegregation end?
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When schools were declared desegregated. Courts were then barred from enforcing the desegregation plan or taking further action.
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Could a district ban public schools and go to strictly private schools?
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No
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What is wrong with a court granting a child's custody based upon the interracial marriage of one of the divorced parents?
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Courts may not decide based upon societal prejudices, even where that prejudice could have a negative effect on a child's life
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What does the court look for when examining a racially neutral law that has disproportionate results?
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Intent to discriminate.
No rational basis for the law other than to discriminate. |
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When can Government contractors utilize affirmative action to remedy societal racial discrimination in hiring?
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Never.
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What could a Government entity with a desire to increase minority contracts utilize?
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Training and financial aid based on social economic status
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Why can universities consider race as a factor?
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Educational institutions have an interest in diversity of the student body in order to promote the "robust exchange of ideas"
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What type of considerations can a university give race in admissions?
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A university can consider race as one plus factor among many other factors that are considered to enhance diversity. So long as all candidates are treated individually, and not solely based on class, the court finds the factor is narrowly tailored to meet the interest in diversity.
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What methods can a public school utilize to increase racial (or other) diversity in the school?
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Locations of new schools.
Class offerings. After school activities (rap club?) |
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When is race an unconstitutional factor in districting?
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When race dominates the process of deciding how to draw district voting lines, it is subjected to strict scrutiny and will be found unconstitutional.
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When is race a permissible consideration in districting?
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When a district is created based on the typical considerations of districting (compactness, political subdivisions, etc) and race is considered as a side thought, it is permissible.
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If a voting district is drawn on lines that makes the district 95% black despite a large white population nearby, is it unconstitutional?
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Not necessarily. Where there is a political explanation for racial districting, it may be understood that race is a proxy for politics and politics was the consideration (not race).
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Shaw v Reno
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Where gerrymandering creates fucking rorschach test like districts, and the only explanation is based upon racial districting, it is unconstitutional
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Suspect Classes
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Race, National Origin, Alienage (if a state passed the law)
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Quasi-Suspect Classes
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Sex, Legitimacy
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Non Suspect Classes
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Wealth, Disability, Political Affiliation, Sexual Preference, Cross dressing tendencies, etc
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What was the requirement for facial sex discrimination established in U.S. v Virginia
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Intermediate scrutiny with a requirement of a justification for discrimination that was "exceedingly persuasive"
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When are sex stereotypes permissible justification for sex discrimination?
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Never.
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Does the father of an illegitimate child always have the right to ban an adoption for the child?
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Yes
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What are three situations where facially discriminatory sex laws are permissible because of real differences?
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1. Statutory rape laws
2. Draft registration laws 3. Citizenship laws based on parentage |
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What is the test for a facially neutral law that has an unequal effect based on sex?
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Rational basis test. If a rational purpose other than sex discrimination exists, the law is upheld.
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When is sex affirmative action permitted?
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When the remedy is not based on stereotypes it may seek to amend actual discrimination by the government, or (as of now) societal discrimination
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When will a state law based on alienage be given a rational basis test?
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When the law deals with higher level state position or any position that deals with civic values (teachers, five-o)
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Deferential Rational Basis Test is applied to:
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Economic discrimination
Social group discrimination |
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Rational Basis Test is applied to:
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Poverty, Age, General non-suspect classes
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Heightened Rational Basis is applied to:
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Mental Retardation
Sexuality |
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Under what circumstances will the government strike down even that legislation which is economic or social in nature?
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No rational basis.
The legislation was designed for no purpose other than an animus toward a specific group. |
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When could a city place a burden on group homes for the C.I. that it did not place on other group homes?
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When the city had a legitimate and strong concern that justified placing unequal burdens on the group home.
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If a state Constitutional Amendment barred any future statute giving protection to gays but no current similar statutes were in place at the time, would it be upheld?
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No. Even though it did not change anti-discrimination laws, it would require steps beyond that required of any other group in order to change the law and permit protective statutes.
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Why can't a state place a poll tax on state elections?
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Where the right to vote in a state election has been granted, it cannot be made contingent on wealth. There is no fundamental right to vote in a state election, but once granted, it must be granted equally.
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Can non-landowners be barred from voting in an election that decides an issue which only affects landowners?
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Yes. Court used a rational basis test to uphold landowner voting for leaders of a local agency with limited power that only effected landowners
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When can political redistricting be found unconstitutional?
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WHen districts were intentional drawn to maximize party strength without regard for population AND a significant effect of discrimination is shown over a period of time.
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What areas of criminal proceedings cannot be impinged upon by financial burdens?
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1. Transcripts from trial must be provided for any appeal granted as a right.
2. Counsel must be provided for any appeal granted as a right (regardless of the plea at trial) 3. Counsel must be provided at criminal trials |
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What areas of criminal proceedings can be affected by poverty?
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There is no right to transcripts or counsel for discretionary appeals
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As a matter of due process, what areas of civil/family suits cannot be impinged upon by financial burdens?
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Divorce fees must be waived when they cannot be payed.
Appeals to a permanent termination of parental rights must not be hindered by financial burdens. |
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Equal Protection and the deprivation of food or shelter
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There is no violation of equal protection when legislation unequally allocates food or shelter. Neither are fundamental interests.
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Is education a fundamental interest?
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No, at least insofar as cases where education is "relatively" deprived. In cases where deprivation of education is complete, the court seems to place a more fundamental interest spin on education.
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Que es the difference between San Antonio v. Rodriguez y Plyler v. Doe?
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En San Antonio v Rodgriguez, relative district wealth led to unequal funding of schools by district. The court upheld this because there is no violation of equal protection for unequal funding of education.
In Plyler v. Doe the children of illegal aliens were prevented from attending public school without payment of tuition costs. The court found that no state justification outweighed a complete deprivation of education of children. |
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Can civil rights violations by private individuals be prosecuted?
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Yes. Enslavement or involuntary servitude by any private citizen punishable through the 13th amendment.
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Can a private individual violate civil rights under the 14th amendment?
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Maybe. A private corporation is more likely to violate the 14th amendment through taking on a public function or working sufficiently close with the state government. A private individual could potential do the same, with some serious effort.
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A corporation builds a 40 acre community for its employees complete with utilities and a police force. Can it be held accountable under the 14th amendment?
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Yes, the corporation has taken on a public function and is therefore held the standard of a government entity under the 14th amendment.
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Why was a California repeal of the ban on discrimination in housing considered a violation of the 14th amendment?
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Because state courts would have to enforce the right to discriminate in housing, there was state action. Had the people repealed a ban on wealth discrimination in housing it would have been constitutional.
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Are the actions of an entity that is state regulated and reviewed considered state action?
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No. Unless a state has specifically reviewed and approved a practice that violates due process, there is no state action.
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How much money can an private entity receive from the state before its actions are considered state actions?
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As much as it fucking wants. Funding of a private entity does not make the actions of that entity state actions.
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Was the Voting Rights Act upheld under Congresses 14th or 15th amendment powers?
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Both.
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How was the 15th Amendment used to uphold Congresses power to pass the VRA?
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In a ban on literacy tests in states with a history of discrimination (within past 5 years) the court held the ban as a proper remedial measure under the 15th amendment
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How was the 14th Amendment used to uphold Congresses power to pass the VRA?
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The ban on literacy tests for certain Puerto Ricans was upheld under a broad understanding of Congress necessary and proper powers under the 14th amendment. The court believed there was a rational reason for the court to use the act as a quasi-remedial measure to eliminate possible equal protection violations.
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Criticisms of the use of the 14th Amendment to uphold the VRA as it pertained to Puerto Ricans?
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When the class in question is not based on race or gender, there should be no power under the 14th and 15th amendment without sufficient proof of actual discrimination of the class in question.
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Why was a Federal voting age for state elections found to be unconstitutional?
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There was no federal power to regulate state elections under Article I.
Congress cannot use remedial powers from 13th, 14th, or 15th amendment without proof of actual discrimination. |
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In the Modern Era, what must Congress prove in order to use its 14th amendment powers?
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Congress must prove that it is remedying a violation or preventing a violation that can be proved. As the level of protection for the classification decreases, the evidence required to show violations increases.
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Why was the Religious Freedom Bullshit Act unconstitutional?
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The Court had decided religious freedom did not include immunity from generally applicable laws. Shooting back, Congress attempted to make religious freedom outside the realm of state interference. This is an attempt by Congress to change the substantive meaning of the constitution and is invalid as such.
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Congressional Substantive Power
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Congress may not interpret the substance of the constitution outside of what is stated, nor may it change the meaning of the constitution as interpreted by the court.
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Can Congress abridge a state's 11th Amendment immunity?
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Yes, if there is substantial evidence of a violation of the 14th amendment. The violation must be one in which a classification failed the applicable scrutiny test. To abridge state immunity for age discrimination, Congress must show state laws based on age that failed to pass a rational basis test.
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What was wrong with Title I of the ADA?
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The Congressional prohibition of State hiring discrimination based on disability was not based on sufficient evidence of state discrimination of disabled persons that would fail a rationale basis test.
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Why was Title II of the ADA upheld as applied to the states?
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The court found that TItle II went beyond discrimination based on disability and into discrimination that caused due process violations. Violations of due process are sufficient justifications for congressional action under the 14th amendment
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