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157 Cards in this Set

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Article III
- Federal judicial power extends to cases re:

1. Interpretation of Constitution, federal laws, treaties, admiralty, and maritime laws

2. Disputes between states, states and foreign citizens, citizens of different states.
Article III gives jurisdiction to what two categories of cases?
Article III Courts
- Congress's absolute power to delineate original and appellate jx.
- Congress is bound to Art. III standards re: what subject matter jx, and case/controversy reqs
What is Congress's power when it comes to creating courts?
Article I courts
Congress may create issue specific courts.
One is the loneliest number.
Original jx of Supreme Court
All cases affecting ambassadors, public ministers, consuls, and those in which state is a party.

Concurrent jx over these matters to lower fed courts except when state v. state.
Appellate cases
All cases to which federal power extends, subject to congressional exceptions and regulation.
Two ways to get to USSC
1. Writ of certiorari
2. Appeal
Writ of certorari
- Completely discretionary
- Cases from state courts where constitutionality of federal law, treaty, or state law is in issue.
- State statute allegedly violates federal law
Appeal
- Mandatory
- ONLY decisions by 3-judge federal district court panels re: injunctive relief
Justiciability limits on federal jx
1. Case or controversy
2. No advisory ops
3. Ripeness (P will/has suffer(ed) harm/immediate threat of harm
4. Mootness
Remember to ALWAYS go through this list of 4 things on an essay; it's mandatory that a case be justiciable.
Case and controversy reqs
- Real controversy at all stages of review, except where capable of repetition but evading review.
- With class axns, class rep may keep pursuing after his claim is moot if claims of others still viable
What is your problem right now, and how can the courts fix it?
Components of Standing
1) Injury
2) Causation
3) Redressability
It's
Coming
Really soon!
Congressional Conferral of Standing
- Congress can't grant standing to uninjured.
- Can create new interests, injury to which will generate standing.
Can't get something out of nothing...
Standing to enforce gov't statutes
If P is w/in zone of interests statute meant to protect
Think of it as Palsgraff for the people the statute protects.
Third Party Standing
P w/ standing in her own right may assert 3P standing if:
- Difficult for 3P to assert own rights OR
- Special relationship
You can pick your friends and you can pick your nose, but you can't pick your friend's nose.
Organizational standing
- Injury in fact so members would have standing
- Injury related to org's purpose
- Individual participation not req'd
You can support your org and not have to really be part of it...
Taxpayer Standing
- Standing to litigate own tax bill
- No standing to challenge gov't spending unless on establishment clause grounds
It's been ESTABLISHED that most tax payers don't have standing.
No review due to adequate and independent state grounds
- Even if federal issues involved
- Adequate if fully dispositive of the case
- Independent if decision is not based on fed interpretation of an identical fed law
The Federal Courts can't just go around undermining the states.
Abstention
- If disposition of case rests on unsettled Qs of state law, the ct will hear if fed issue remains after settling state law

- Will not enjoin pending state criminal proceeding except when proven harassment or prosecution in bad faith.
Political Questions
- Not heard.
- Issues constitutionally committed to another branch.
- Issues inherently incapable of judicial resolution
For the birds. Or legislators. Whatevs, the supremes don't want to hear it.
Examples of Poli Qs
- Challenges based on "republican form of gov't" clause
- Procedures for ratifying cttnl amendments
- If person elected to congress meets reqs
- President's conduct of foreign policy
11A limits on fed cts
- Prohibits courts from hearing a claim against a state govt.
- Actions where state is named as party or state will have to pay retroactive damages (in fed or state court)
The first 10 are about individual rights; then come the states rights.
What isn't barred by 11A?
- Actions against local govts
- Actions by US/other states
- Federal bankruptcy proceedings
- Civil rights claims
Exceptions to 11A
- Certain actions against state officers
1. To enjoin future conduct that violates cttn or fed law
2. Axns for damages//officer personally.

- OK if state consents

- OK if congress removes immunity w/clear intent to do so
Why you always see the heads of agencies being sued a lot.
Enumerated and Implied Legislative Pwrs
1. Necessary and Proper
2. Taxing and Spend
3. Commerce Power
4. War and related pwrs
5. Investigatory poewr
6. Property Power
7. Bankruptcy
8. Postal
9. Pwr over citizenship
10. Admiralty
11. Coin money and fix weights/measures
12. Patent/copyright
There are twelve. I don't think it's worth your time to memorize it though.................
Necessary and Proper Clause
To make laws n&p to execute any power granted to any branch.

Must work in conjunction w/another fed pwer, never enough on it's own.
It's the legal equivalent of a helping verb.
Tax and Spend Power
- Taxes upheld if bear r/able relationship to revenue production or if Congress has the power to regulate the activity taxed
- May NOT tax exports to foreign countries
- Spending for any public purpose to provide for common defense and general welfare.
Commerce Power
Regulate all foreign and interstate commerce

Law must regulate either channels of or instrumentalities, persons, and things in activities that have a substantial impact on interstate commerce.
Intrastate activity reg
- Will be upheld if the court can conceive of a rational basis to conclude that the activity in aggregate substantially affects interstate commerce.

If the regulated activity is non-economic, factually show a substantial economic effect
When would it ever be reasonable for Congress to get involved in state affairs?
War and Related Powers
Congress declares war, raises and supports army, provides for an maintains navy.

Economic regulation - during and after war to fix wartime disruptions
Remember that the war powers extend beyond just the war.
Military Courts and Tribunals
Congress makes rules for the gov and regulation of armed forces.

Judicial review - other courts may NOT hear military cases.

Enemy and civilian soldiers are subject to military jx.

American soldiers - all offenses by members

American civilians - only if fed courts are shut down bc of war.

Detention of citizen enemy combatants = DP rqs opp to challenge detention
Just think of Guantanamo.
Property Power
To dispose of/regulate territories/properties of US
Police Power
No fed police power, except for in DC, federal land, military bases, and reservations.
Bankruptcy power
non-exclusive.

State rules are OK so long as they don't conflict with fed.
Power over citizenship
Establish uniform rules of naturalization
Exclusion of Aliens
- Exclude non-resident aliens w/o due process
- resident aliens entitled to DP before deported/excluded
Remember the inside/outside distinction.
Naturalization and denaturalization
- Congress's exclusive power.
- May not take away any citizen's citizenship
Denaturalizing is unnatural.
Delegation of legislative power
OK as long as give the other branch intelligible standards and it isn't a power uniquely confined to Congress.
Speech and Debate Clause
Conduct that occurs in the regular course of the federal leg process and motivation behind that conduct is immune from prosecution.

Doesn't cover bribes, republication of a defamatory statement originally made in congress.
What happens in Congress stays in Congress.
Congressional Veto of Executive Actions
Void if it avoids bicameral process.
Domestic powers of the exec
1. Appointment and Removal
2. Pardon
3. Veto
4. Power as chief executive
APVP
Appointment
- Executive appoints all ambassadors, other public ministers and consuls, SC justices, and all other officers of the US.

Congress may vest appointment of inferior officers in the President, the courts, or heads of depts.

Congress itself CANNOT appoint members of a body with administrative or enforcement powers
Those with legislative powers can't get around the exec by appointing those with quasi-legislative or enfocement powers.
Removal by President
High level purely executive officers at will.

Congress can limit power to remove other executive appointees by statute
Removal by Congress
Remove exec officers only by impeachment
Pardon
All federal crimes except impeachment or contempt.

Congress cannot limit this power.
Veto
If Pres vetoes an act of Congress, 2/3 of each house can override.

Pocket veto
- Pres has 10 days to sign or veto.
- If unsigned an congress in session, auto law.
- If not in session, bill auto vetoed.
Power as chief exec to issue executive orders
If acts w/express or implied authority of Congress

If acts where Congress is silent (cannot usurp another branch's pwr, cant prevent othe branch from carrying out tasks)

If acts against the express will of congress, not valid.
Power over External Affairs
- War
- Foreign relations
- Treaty power
- Exec agreements
War
Pres may act militarily in hostilities // US w/o declaration.
Treaty Power
Enter w/ 2/3 approval of Senate

Supreme law of land and state laws may not conflict.

- If there is a conflict with federal laws, then last in time prevails.
Executive Agreements
No senate consent req'd

Trumps inconsistent state law

Federal law trumps inconsistent EA
Executive privilege/immunity
To keep certain communications secret, except if necessary in criminal prosecution, can give to DA

Absolute immunity from civil damages arising from an action he took w/in official responsibilities
Why GW will never be taken down.........
Impeachment
President, VP, all civil officers subject.

Procedure is for majority vote in house to invoke charge, and then 2/3 vote in senate to convict and remove.
Exclusive Federal Powers
Cttn limits/prohibits the use of the power by states (treaties, money, etc.)

Inherent federal powers are those which the nature of the power is such that only fed can exercise (declare war, citizenship, etc.)
Exclusive state powers
All not delegated to feds delegated to states.
Concurrent fed and state power - the effect of the supremacy clause
- State law held invalid if there's a conflict between state and fed law, or if state prevents achievement of federal objective.
Federal law always trumps, but with reason. Can you imagine if state law trumped federal law? 50 different compteting sets of laws? Nightmare.
Federal Pre-emption
Federal expressly or impliedly occupies an entire field --> state/local reg is precluded even if not conflicting.

Field factors - comprehensiveness of federal scheme, and creation of an agency to administer the law
Full Faith and Credit Clause
Sister states to recognize each other's judments if:
- Court rendering judgment had Pjx over the parties and SMJx
- Judment was on the merits
- Judgment is final
Intersovereign Litigation
- Not state consent req'd by US//State
- State v. US - US must consent
- Federal officer as D: against US if judgment satisfied out of govt $ or interfere w/ gov.

State v. State: USSC has original jx, no consent req'd
Taxation or Regulation applying to both state and private sectors
Valid
Tax or regulation applying only to states
May be regulated by the 10A.

Exceptions are:
- Congress can restrict state acts that violate civil rights
- Can condition receipt of funding
Think about the legal drinking age.
State taxation and regulation of fed gov
- can't directly tax w/o consent
- Nondiscriminatory, indirect taxes are ok if no unr/able burden on fed gov (state income tax of fed ees)
- States may not regulate federal functions
Article IV - Privileges of State Citizenship
- State cannot discrim against non-res. No protection for corps and nonresident aliens.
- Only fundamental rights protected.
Substantial justification exception
Nonresidents cause/are part of the problem state trying to solve and no less restrictive means to solve.
14th A - privileges of national citizenship
States may not deny their citizens the Ps or Is of national citizenship.

Corps not protected
Regulation of Commerce by Congress
- Preempts conflicting state laws and non-conflicting if takes field
- C may permit state regs that otherwise violate Comm Clause.
- C may ban state regs that otherwise valid under Comm Clause
Discriminatory regulations by states to protect local econ interests
- Almost always invalid.

Exceptions:
Important state interest
- Furthers important, non-econ interests and no r/able alternative.

State as Market Participant

Favoring local gov't, but not discriminating against interstate comm bc not favoring private biz
Non-discrim laws by state
- Valid unless burden on interstate commerce outweighs the promotion of a legitimate local interest.
State control of corps
States create corps --> heavy impact on interstate commerce may be upheld in this context.
21A
- Intrastate regs = broad state power re: sale, import, use
- Interstate re = subject to com clause
- Federal power = can regulate by conditioning grants of $$ or though commerce clause
Whoo hoo! The 21st!
Power of States to Tax Interstate Commerce
- Congress has complete power to authorize or forbid.
- Discriminatory taxes against interstate commerce are invalid unless C authorizes.
- Nondiscrim taxes valid if:
1) Activity taxed has substantial nexus to state
2) Tax fairly apportioned according to a rational formula
3) Tax fairly related to the services or benefits provided by the state.
Use Taxes
- permissible in buyer's state. Imposed on goods purchased outside, but used inside state.
- State may force seller to collect - if seller has a sufficient nexus w/taxing state
Ad Valorem Prop Taxes
- Based on assessed value of prop
- No state tax on commodaties in interstate transit
Transit
- transit begins when cargo is delivered to interstate carrier OR actually starts its interstate journey.
- Interstate transit ends when cargo reaches its destination. Subject to local tax at this point.
Tax on Instrumentalities Used to Transport Goods Interstate
- Validity depends on whether instrumentality has taxable situs in the taxing state and whether the tax was properly apportioned according to the amount of contacts w/each taxing state
Think about a train. How many times can it be taxed?
Taxable situs (es)
Sufficient contacts w/taxing state

Receives benefits or protections from the state
Apportionment
Fairly approximates the average physical presence of the instrumentality in taxing state
Privilege, license, franchise, or occupational taxes
"Doing business taxes" generally permitted.
- Activity taxed has to have substantial nexus to taxing state
- Tax is fairly apportioned
- Tax does not discriminate against interstate commerce
- Tax fairly relates to services provided by the state
Cttnl restrictions on power over individuals
1. Bill of Rights
2. 13A
3. 14/15A
4. Commerce clause
Bill of rights
Applies to states via 14th A, except for 5ths prohibition of criminal trial w/o grand jury indictment and 7ths right to jury trial in civil cases.)
13A
Prohibits slavery and involuntary servitude

Allows C to prohibit racial discrim by anyone
14A
Prevents states from depriving any person of life, liberty, or prop w/o due process lof law and equal protection.
Section 5 of 14A
Gives C power to adopt appropriate legislation to enforce the rights/guarantees provided by the 14th .

May not expand/create new rights

May only enact laws to prevent/remedy violations of rights already recognized.
15A
Prevents denying citizen right to vote based on race
Commerce Clause
Congress may prohibit private racial discrimination in activities w/substantial effect on interstate commerce.
State action req
- Exclusive public function: Activities so traditionally the exclusive prerogative of the state
- Sig state involvement: affirmatively facilitating, encouraging, or authorizing
Contract Clause limits on retroactive laws
- Prohibits states from enacting law that impairs existing K rights.

Private Ks -Laws that substantially impair an existing private contract invalid unless serves imp and leg public interest AND r/abl and narrowly tailored means of promoting.

Public Ks - State party to K, same test as private Ks, but more strict scrutiny
Ex post facto laws
Retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a past activity
Bill Of Attainder
Legislative act that punishes an individual w/o trial
No singling out, no picking on one person.
Procedural Due Process
Fair PROCESS required for intentional deprivations of life, liberty, property.
Liberty
Loss of significant freedom of action OR

Denial of freedom provided by Cttn or statute
Property
A legit claim/entitlement to the benefit under law
What type of Process is Required?
Three part balancing test:

1. Importance of interest to the person AND
2. Value of procedural safeguards AGAINST
3. Gov interest in fiscal/administrative efficiency
Access to courts for indigent Ps
Fees must be waived when imposition would deny a FR to the indigent
Takings Clause
5th A for federal, 14th to apply to states.

Government may not take priv property for public use w/o just compensation
Like basically everything in Con law, it comes down to a question of fairness.
Public Use liberally construed
If govs action is rationally related to a leg. public interest.

Takings by private parties OK if redound to the public advantage.
Taking v. Regulation
- Taking is an actual appropriation or physical invasion (unless emergency)

Use restrictions:
- Denial of all economic use of land taking unless use unlawful
- Temporary denials of all economic use not a per se taking. Examine and weigh all circs to determine if JC required
What if it decreases the property?
Not a taking if economically viable use.

Consider:
- Social goals sought to be promoted
- Diminution in value to owner
- Owner's r/able expectations re: prop
Remedy for Takings
Just compensation.
- Pay owner FMV or terminate the regulation and pay damages.

NO JC if property worth nothing to private owner
Relationship between SDP and EP
SDP:
- Law limits liberty of ALL persons to engage in activity.
- DP clause 5th A if fed, 14th if State

EP:
- Law treats a person/class of persons differently from others.
- Classifications and FR's
Ask yourself:
- Is it treating a person or group of people differently than another?

-Or, is it taking away the ability to participate or own something without enough of a say?
Strict Scrutiny
- Laws that involve FR or suspect classification.

Must be:
1) Necessary to achieve
2) a COMPELLING government interest

- Burden of proof on GOV
Intermediate Scrutiny
- Laws involving quasi-suspect class.
- SUBSTANTIALLY related to an IMPORTANT gov interest

Burden of proof on government
Rational Review
- Law does not impact FR, suspect, or quasi-suspect class.
- RATIONALLY related to a LEGITIMATE government interest.

Burden of proof on P
Constitutional Source of EP
EP clause of 14th A limited to state action

Grossly unr/able discrim by federal govt violates 5th A DP
Proving Discriminatory Classification
For strict or intermediate scrutiny, there must be a gov't intent,

1. Law discriminatory on its face
2. Discriminatory application of a facially neutral law
3. Discriminatory motive behind law.
Always remember the hippie hater law that made it so grandma couldn't eat.
Suspect Classification
Race and National Origin
Alienage (sometimes)
Alienage
- Federal classifications get RR bc of plenary power immigration
- State and local classifications get SS except for participation in state govt, state jobs

Undocumented aliens are not a suspect class, RR.
- Okay if we make visas
- Strict scrutiny for anti-imm state laws
- if you have no status, not so much.
Quasi suspect classes
Gender and legitimacy.

Gov must show exceedingly persuasive justification for gender. If it's a classification benefiting women for past discrim, generally valid.
Intermediate scrutiny with bite.
Fundamental Rights
1. Privacy
2. Voting
3. Travel
Three broad categories.
Privacy
- Contraception
- Abortion
- Marriage
- Parenting
- Obscenity
- Family Unity
- Intimate sexual conduct
- Collection and distribution of personal data
Voting
- SS unless restriction based on age, citizenship, or residence
Restriction on Rt to vote
- Residency reqs if r/able time
- Property ownership only if special purpose election
- Primary election - early registration reqs ok, can't ban open primaries
Dilution of right to vote
One person One vote. Applies to popular election by district.

Congressional elections - need almost exact equality in districts

State and Local - no more than a few % point variace. Exception for at large and appointees, special purpose elections
No gerrymandering.
Gerrymandering
NO race based districts unless pass SS. Race-based if race is predominant factor
Candidates Qualifications
Fee must not preclude indigents

Restrictions on ability to run must be r/able, nondiscriminatory means of promoting important state interests.
Campaign Funding
OK for gov to give more funding to major parties
Travel
From state to state and be treated equally after moving into a new state.

- International not a FR.
Regulation of Speech
Look at the following:
1. Content v. Conduct
2. Reasonableness of Reg
3. Scope of Speech
Content
Communication of specific ideas.

Generally not valid, unless it's unprotected speech.
What level of scrutiny for content-neutral laws?
Intermediate.

Must advance important state interests unrelated to suppressing speech and must not burden substantially more speech than is necessary.
Conduct
Associated w/speaking.

Regulate w/ Content-neutral TPM restrictions
R/ableness of Reg
- Overbroad law is invalid
- Void for vagueness
- No unfettered discretion to apply the law
Scope of Speech
- Includes freedom not to speak

- Can extend to symbolic acts meant to convey an idea. Can regulate if Content neutral and pass IS.

- Mandatory financial support is OK by Govt, but you can't be compelled to subsidize private messages, except university activity fees.
TPM Restrictions on Conduct in public forums
- Content-neutral
- narrowly tailored to serve significant gov't interest
- Leave open alternative channels of communication
What is a public forum?
A place historically open to speech activities, or public property that the gov has opened up for such activities.
Injunctions
If it's content based, it must pass SS.

If it's content neutral, it must burden no more speech than necessary to achieve a significant gov't interest
TPM restrictions on non-public forums
Can broadly regulate speech if:
1. Viewpoint neutral
2. R/ably related to legitimate govt interest
Unprotected speech - based on content
- Inciting imminent lawless action
- Fighting words
- Obscenity
- Defamatory Speech
- Some commercial speech
Inciting imminent lawless action
Creates clear and present danger of imminent lawless action.

Imminent illegal conduct is likely and speaker intended to cause.
Fighting Words
True threats
Speech likely to incite immediate physical reaction in RP
---Law must be viewpoint neutral
Obscenity
Describes/depicts sexual conduct that
1. Appeals to the prurient interest in sex (community standard)
2. Is patently offensive (community standard)
3. Lacks serious literary, artistic, political or scientific value (national standard)

PPL
Obscenity standard for minors
- minor specific def is ok.
- Govt may ban the sale/distro of visual depictions of sexual conduct involving minors
Land use regs
May limit the location/size of adult entertainment establishments if reg designed to reduce secondary effects.
alcohol regs
May regulate alcohol in adult entertainment establishments under 21st A
Is any obscene material ok?
If it's in private possession and is not kiddie porn
Regulation of Commercial Speech
- Protected if truthful
- Unprotected if re: unlawful acts, misleading, or fraudulent.
Regulation of Truthful Commercial Speech
Upheld if it
1) serves substantial govt interest
2) Directly advances that interest
3) narrowly tailored to serve the interest (doesn't require least restrictive means, only r/able fit)
just r/able fit! not narrowly tailored.
Prior restraints
- Gov must show special societal harm will result.

- Must have safeguards
1. Standards are narrowly drawn, r/able, and definite
2. Injunction must be promptly sought
3. Prompt and final determination of the validity of the restraint.
Think about the KKK in Harlem. Is it okay to stop it??
Freedom of the Press
- Right to publish truthful info re: matter of public interest.
- Regulation must pass SS
- Right to attend trials unless judge finds other interests outweigh
- Can require press to testify before grand jury
- Radio and TV regulated more
- Can target press for special regs/taxes.
- If content-based reg or tax, need compelling interest.
Fairness Doctrine
Can require radio to give free time to opponents of candidates endorsed by station or people personally. attacked in broadcast
Fair time.
Cable TV regs
Content based = SS
Others, IS
Regulation of Truthful Commercial Speech
Upheld if it
1) serves substantial govt interest
2) Directly advances that interest
3) narrowly tailored to serve the interest (doesn't require least restrictive means, only r/able fit)
Prior restraints
- Gov must show special societal harm will result.

- Must have safeguards"
1. Standards are narrowly drawn, r/able, and definite
2. Injunction must be promptly sought
3. Prompt and final determination of the validity of the restraint.
Freedom of the Press
- Right to publish truthful info re: matter of public interest.
- Regulation must pass SS
- Right to attend trials unless judge finds other interests outweigh
- Can require press to testify before grand jury
- Radio and TV regulated more
- Can target press for special regs/taxes.
- If content-based reg or tax, need compelling interest.
Fairness Doctrine
Can require radio to give free time to opponents of candidates endorsed by station or people personally. attacked in broadcast
Cable TV regs
Content based = SS
Others, IS
Internet Regs
SS
Freedom of Association and Belief
- Association is an implied right. The govt may not prohibit unpopular groups or unduly the right to belong to one.

Infringements justified if it passes SS.
Electoral process
- Severe restriction = SS
- R/able, non discrim restrictions = upheld. Use a balancing test.
- Limits on contributions OK if reasonable. Not okay for ballot initiatives.
- Limits on expenditures NOT ok.
Restrictions on speech related conduct by public ees
- If it's a matter of public ocncern, balance the ee's rights to comment against gov interest as er in efficient performance of public service.

If it's not a matter of public concern, give wide deference to er's judgment re: whether speech disruptive.
if you work for the gov, they don't want you working against them in the media.
Official Duty Exception
Govt er may punish speech made pursuant to ee's official duties, even if re: public concern.
Public ee's participatoin in political campaign
- OK to bar federal exec. branch ees from actively participating in political campaign.
Bans on public ee's receiving honoraria
NOT OK for rank and file ees
Patronage
NO employment based on party unless relevant.
Loyalty oaths
OK as long as not vague or overbroad.
Disclosure of associations
Can require disclosure of only those relevant to employment.
Free Exercise of Religion
No punishment of beliefs.

General conduct regulation:
- Bans regulations specifically designed to interfere with religion.
- No reqs to include religious expemtions in regs that apply to all and happen to burden religious conduct.

EXCEPTIONS:
- Cannot deny unemployment benefits if quit for religious reasons.
- Amish exempt from req to school kids through 12th grade
Establishment Clause
- Sect preference invalid unless passes SS
- Valid IF:
Has secular purpose

Primary effect neither advances nor prohibits religion AND

It does not produce excessive gov't entanglement with religion
3 things.