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62 Cards in this Set
- Front
- Back
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What are the four limits on a justiciable case or controversy? |
1. Standing 2. Ripeness 3. Mootness 4. Political questions |
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How must a plaintiff show a justiciable injury? |
Plaintiff may only assert injury personally suffered; OR Plaintiff seeking injunction must show likelihood of future harm [Sierra Club; Lyons] |
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What are the four criteria for standing? |
1. Injury 2. Causation and redressability 3. No third party standing 4. No generalized grievances |
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When does an organization have standing to sue for its members? |
1. Members have standing to sue; 2. The interests are germane to the organization's purpose 3. Neither the claim nor relief requires participation of individual members |
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What are the two criteria that determine a case's ripeness? |
1. Hardship that will be suffered without reinforcement review 2. Fitness of issues and the record for judicial review [FDA] |
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What are the nonjusticiable political questions? |
Cases under "republican form of government clause" Challenges to the President's conduct of foreign policy Challenges to the impeachment and removal process Challenges to partisan gerrymandering |
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When may the Supreme Court review a state court decision? |
Only if there is no independent and adequate state law ground of decision |
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What is the principle of sovereign immunity? |
1. Eleventh Amendment bars suits against states in federal court 2. Sovereign immunity bars suits against states in state courts or federal agencies |
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How may an individual sue a state? |
Can't sue a state due to 11th Amd/ sovereign immunity. Must sue a state official for injunctive relief. State officials can be sues for money damages to be paid out of own pocket. State officials cannot be sued if state treasury would be paying damages. |
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What are the three items of interstate commerce that Congress may regulate? |
1. Channels of interstate commerce 2. Instrumentality of interstate commerce [Mann Act] 3. Economic activities that have a substantial effect on interstate commerce [Wickard; Morrison says you can't look at cumulative effect] |
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What are the Tenth Amendment limits on Congressional powers? |
1. Congress cannot compel state regulatory or legislative action [can't require Brady backround checks; Sebellius] 2. Congress may prohibit harmful commercial activity by state governments [selling DMV info] |
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What are the two nondelegation requirements? |
Bicameralism and presentment |
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If a treaty conflicts with a federal statute, which controls? |
The one adopted last in time. |
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What is the definition of an executive agreement? |
Agreement between United States and a foreign country that is effective when signed by the President and the head of a foreign nation |
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What is the difference between an executive agreement and a treaty? |
An executive agreement doesn't prevail over conflicting federal laws; but a treaty can (if last in time). Both prevail over state laws. |
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When may the President use American troops in foreign countries? |
Pretty much every time, either under the political question doctrine or executive power as Commander-in-Chief |
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Who must be appointed by the President? |
Ambassadors, federal judges, and officers of the United States |
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In whom may Congress vest appointment power in inferior officers? |
The President, the heads of departments, or lower federal courts (NOT ITSELF) |
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What is a limit on the removal power? |
When limited by statute. 1) Must be office where independence from President is desirable 2) Cannot prohibit removal; can limit removal to where good cause is shown. |
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What are the three crimes for which the President, Vice President, judges, and officers of the US can be impeached? |
1. Treason 2. Bribery 3. High crimes and misdemeanors |
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When does the President have absolute immunity to civil suits for money damages? |
For actions in office; not for actions prior to office [Clinton v. Jones] |
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What is the scope of the President's pardon power? |
Only federal criminal liability |
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What is the Supremacy Clause? |
Preemption. When laws or treaties conflict with state laws, federal laws win. |
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What is express preemption? |
If a federal says federal law is exclusive law in an area, federal law preempts state law [meat labeling] |
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What is implied preemption? |
If state law impedes the achievement of federal objective, federal law preempts state law -If mutually exclusive [maple syrup] -If state impedes federal objective [unemployment benefits] -If evidenced by clear intent [immigration] |
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What is the dormant commerce clause (negative implications of the commerce clause)? |
State or local law is unconstitutional if it places an undue burden on interstate commerce (compare to active commerce clause - Congress's authority to act) |
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How does one analyze the dormant commerce clause if the law does not discriminate against out-of-staters (and merely burdens interstate commerce)? |
If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits. Because IV privileges and immunities doesn't apply |
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How does one analyze the dormant commerce clause if the law does discriminate against out-of-staters (and merely burdens interstate commerce)? |
1. If the law burdens interstate commerce, it violates the commerce clause unless it is necessary to achieve an important government purpose [OK: Maine baitfish] 2. If law discriminates and burdens ability to earn livelihood, it violates privileges and immunities unless it is necessary to achieve an important government purpose [not OK: in-state Bar admission] |
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What are the two exceptions to the dormant commerce clause? |
1. Congressional approval 2. Market participation exception |
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What is the state action doctrine? |
The Constitution applies only to government action. Private conduct need not comply. But Congress may adopt statutes to regulate private behavior. |
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When can Congress prohibit racial discrimination in private actions? |
13th Amendment Sec. 2, Commerce Clause, NOT 14th Amendment Sec. 5 |
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What are exceptions to the state action doctrine? |
1. Public functions [company towns; but not utilities] 2. Entanglement: Gov't authorizes, encourages, or facilitates unconstitutional activity [enforcing racially discriminatory covenants; public restaurant leases] 3. |
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Which clauses in the Bill of Rights have not been incorporated to the states? |
1. Third Amendment quartering troops 2. Fifth Amendment grand jury indictment in criminal cases 3. Seventh Amendment right to jury trial in civil cases 4. Eighth Amendment right against excessive fines |
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What is the rational basis test? |
Law is upheld if it is rationally related to a legitimate government interest. Challenger has burden of proof. |
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What is the intermediate scrutiny test? |
Law is upheld if substantially related to important government purpose. Objective must be actual objective. Means must be narrowly tailored, but not necessarily the best. Government has burden of proof. |
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What is the strict scrutiny test? |
Law is upheld if necessary to achieve a compelling government interest. Look to actual interest. Means must be necessary and least-restrictive. Government has burden of proof. |
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What is procedural due process? |
Has government provided adequate due process when it takes life, liberty, or property? |
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What is substantive due process? |
Does the government have an adequate reason when taking life, liberty, or property? |
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What is equal protection? |
Are treatments of different people adequately justified? |
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What are the three factors a court looks to when evaluating what procedures are required in procedural due process? |
1. Importance of interest to individual 2. Ability of additional procedures to increase accuracy of fact-finding 3. Government's interest |
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What are the two types of takings? |
1. Possessory taking - government confiscates or physically occupies property 2. Government regulation - government leaves no reasonable economically viable use of the property |
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What is the contracts clause? |
No state shall impair the obligations of existing contracts. Only states, not federal gov't. Intermediate scrutiny for private contracts, strict scrutiny for public contracts |
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What are fundamental rights under the right to privacy? |
Right to marry Right to procreate Right to custody of one's children Right to keep family together Right to control upbringing of one's children Right to purchase and use contraceptives Right to abortion Right to homosexual activity Right to refuse medical care Not a constitutional right to physician-assisted death All strict scrutiny exception abortion, homosexual activity, medical treatment |
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How may one prove the existence of racial discrimination? |
1. Facially discriminatory law 2. Facially neutral law with discriminatory intent and impact [Watts] |
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When may racial quotas be used? |
To remedy clear proof of past discrimination [Croson public contracting] |
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How does a court evaluate gender classifications that benefit women? |
Classifications benefiting women based on role stereotypes will not be allowed Classifications that are designed to remedy past discrimination are allowed |
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What are the several levels of scrutiny used for discrimination based on alienage? |
1. Generally, strict scrutiny 2. Self-government and democratic process (voting, teachers, probation officers, jury service): rational basis 3. Congressional discrimination: rational basis 4. Undocumented alien children: intermediate scrutiny |
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What is a content-based restriction on free speech? |
1. Subject matter restrictions (application of the law depends on the topic of the message) 2. Viewpoint restrictions (application of the law depends on the ideology of the message) |
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When can the government require a license for speech? |
When there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority |
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What is the standard for reviewing restrictions on symbolic speech? |
Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose |
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What speech is unprotected (or less protected) by the First Amendment? |
1. Incitement of illegal activity (substantial likelihood of imminent illegal activity if speech is causal) 2. Obscenity and sexually-oriented speech (appeal to prurient interest, patently offensive, lacking serious redeeming value) 3. |
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What are the two exceptions to the prohibition on punishing profane and indecent speech? |
1. Over the broadcast media 2. In schools |
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What are the two standards for evaluating commercial speech? |
1. Illegal activity, false and deceptive speech: not protected 2. Other commercial speech: intermediate scrutiny |
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What is the standard for a public figure prevailing on a defamation suit? |
Proving falsity of the statement and actual malice |
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What is the standard for a private figure prevailing on a defamation suit for a matter of public concern? |
Proving falsity and negligence by the defendant. Punitives require actual malice. |
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How may the government regulate speech in public forums? |
1. Must be subject matter and viewpoint neutral (if not, gets strict scrutiny) 2. Regulations must be a time/place/manner regulation that serves an important government purposes and leaves open adequate alternative places for communication 3. Use intermediate scrutiny Same for designated and non-designated |
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How may the government regulate speech in a limited public forum? |
Regulation must be reasonable and viewpoint neutral |
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What are four examples of nonpublic forums? |
Army bases, prisons, sidewalks in front of post offices, and airports |
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What is the standard of review for laws punishing group membership? |
Strict scrutiny. It must be proven that the person 1. actively affiliated with the group 2. Knows of its illegal activities 3. With the specific intent of furthering those illegal activities |
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May a law prohibit a private group from discriminating? |
Yes, unless it interferes with intimate associate (dinner party) or expressive activity (Klan). |
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When may the government burden the free exercise of religion? |
Under a neutral law of general applicability [peyote] |
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When does a law violate the establishment clause? |
If it 1. does not have a secular purpose for the law; OR 2. does not have an effect that is neither to advance nor inhibit a religion [menorah and Christmas tree]; OR 3. is excessive entanglement with religion |
