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42 Cards in this Set
- Front
- Back
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Bill of attainder
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Any form of legislative punishment of an named group or individual w/o judicial trial. Art. I, Sect 9, 10 prohibits federal and state governments from enacting bills of attainder.
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What are Congress's powers under the Commerce Clause?
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Congress may regulate CIA:
-Channels of interstate commerce -Instrumentalities of interstate commerce -Activities that substantially affect interstate commerce TEST: Whether Congress can rationally conclude |
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What are the principles of the justiciability doctrines?
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-Standing
-Ripeness -Mootness -Political questions |
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What is standing?
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The issue of whether the P is the proper party to bring the lawsuit. Based on:
-Injury: P must allege this -Causation and redressability -No third party standing -No generalized grievance |
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Are there any exceptions to the prohibition against third-party standing?
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Yes, if
-Close relationship -Injured party is unlikely to be able to assert his/her own rights -Associational standing |
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What is associational standing?
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An organization may sue for its members if:
-the members would have standing to sue -the interests are germane to the organization's purpose -neither the claim or relief requires participation of individual members |
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What is a generalized grievance?
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P must not be suing solely on the basis of his status as a taxpayer.
EXCEPT: Taxpayers have standing to challenge government expenditures related to federal statutes violating the Establishment Clause. |
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What is ripeness?
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Whether a federal court may grant pre-enforcement review of a statute or regulation
The court looks at: -The hardship that will be suffered if court does not step in -Fitness of the issues and the record for judicial review |
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What is the doctrine of mootness?
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Whether P has presented a live controversy
EXCEPTIONS: -Wrong capable of repetition but evading review -Voluntary cessation of the act -Class action suits |
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What is a political question?
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The federal courts will decline to adjudicate certain cases that violate the Constitution because other branches should decide these issues
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What types of cases involve political questions?
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-Cases that involve the republican form of government
-Challenges to the President's conduct of foreign policy -Challenges to the impeachment and removal process -Challenges to partisan gerrymandering |
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What are the limits to federal court jurisdiction?
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-Sovereign immunity bars suits against states in federal court
EXCEPTIONS: -Waiver (state govt. waives sovereign immunity) -Federal laws under 14th Amend. -Federal govt. may sue state govt. -Bankruptcy |
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From where is Congress's power derived?
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Express/implied congressional power via :
-Necessary/proper clause -Taxing/spending for general welfare -Commerce power |
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Are there any limits on Congressional power?
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-Tenth Amend.: Congress can't compel state regulatory or legislative action but may prohibit harmful commercial activity by state
-14th Amend.: Congress cannot create new rights or expand the scope of rights. -Legislative and line-item vetos are unconstitutional. -Congress can't delegate executive power to itself or its officers. |
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The executive has power over what areas?
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-Foreign policy
-Domestic affairs |
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What power does the executive have over foreign policy?
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The power to make treaties and enter into executive agreements
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Does congress have oversight with regards to treaties?
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Yes. Senate must ratify all treaties.
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Does Congress have oversight with regards to executive agreements?
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No. Executive agreements are entered into by the president and the head of the foreign government and do not require Congressional approval.
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For what types of crimes may the president exercise its pardon power?
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Federal criminality only
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Are residency requirements constitutional?
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Relatively short residency requirements have been upheld as being necessary to promote the compelling interest of insuring that only bona fide residents vote.
30 days= ok |
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Over what cases does the Supreme Court have original jurisdiction?
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Cases affecting:
-Ambassadors -Public ministers -Consul -State is a party |
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What are the levels of scrutiny that the court uses when determining whether a law is constitutional?
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-Rational basis
-Intermediate scrutiny -Strict scrutiny |
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How do you articulate the standard for rational basis?
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Law must be "rationally related" to a legitimate governmental purpose
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Over what cases does the Supreme Court have appellate jurisdiction?
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-Writ of certiorari
-Appeals from federal district courts |
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What protection does the Contracts Clause provide?
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States can't retroactively and substantially impair contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest.
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Can states regulate local aspects of interstate commerce?
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Yes, as long as the local regulation does not conflict with or is not preempted by federal regulation and the regulation meets the following tests:
(1) regulation does not discriminate against out of staters (2) the incidental burden on interstate commerce does not outweigh the local benefits of teh regulation |
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What are the fundamental rights and what is the standard of review to be applied?
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Right to travel
Privacy Voting rights First Amend. speech/assembly SoR: Strict scrutiny |
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What are the suspect classifications and what is the standard of review to be applied?
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NoRA:
National origin Race Alienage SoR: Strict scrutiny |
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How do you articulate the intermediate standard of review?
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Substantially related to an important governmental interest
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How do you articulate the strict scrutiny standard of review?
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Narrowly tailored to achieve a compelling governmental interest with no less intrusive means for doing so
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What areas are protected under the fundamental right to privacy?
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Family autonomy
Reproductive autonomy Medical Care Consenting Adults to engage in consensual sex |
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What are the quasi-suspect classes that are subject to the intermediate scrutiny standard of review?
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SIC
Sex, gender Illegitimate children Children of aliens |
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What are the methods for proving that a law is discriminatory?
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-Facially discriminatory
-Discriminatory application of a facially neutral law -Discriminatory motive behind the law |
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What is the test for determining whether there has been a violation of the 1st Amendment Establishment clause?
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Lemon (PIE) test:
-Purpose must be secular -Inhibits nor advances religion -Entanglement can't be excessive |
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Can government regulate speech on public forums?
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Government can not totally ban speech on public forums but it can regulate the time, place and manner of the speech as long as the restrictions serve important governmental interests
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Can government regulate speech on designated/limited public forums?
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Yes so long as the regulate is content-neutral.
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Can government regulate non-public forums?
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Government can regulate places that are not open for public speech, e.g. schools, military bases, prisons, as long as the regulation is viewpoint neutral and there is a rational basis for the regulation.
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When can US Supreme Court review state law decisions?
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When decision is based on adequate and independent state ground
-Final judgment of the state court -Highest state court which would have been able to hear the case -Case presents a substantial federal question -Decision by state court does not rest on adequate and independent state grounds If US Supreme Court reverses the state court's decision on the federal question, would the result change? § If no, then would be advisory opinion. §If yes, then Supreme Court may review the decision. |
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What is required before the government can take property under the Takings Clause?
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§ Taking must be for legitimate public use/purpose
§ Gov't must pay just compensation (FMV at the time of taking) NOTE: Any legislation that denies economic use of property is a taking however, if it diminishes the land use it is not a taking. |
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What is the test for determining whether there has been a procedural due process violation?
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3 prong balancing test: IRA test
-Importance of interest affect; nature of what the government is taking More important, more likely should have hearing -Risk of error by government if no additional procedures are required High risk -Administrative burden on the government More burden |
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What are the 5 exceptions that make aliens a quasi-suspect class?
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-Voting
-Jury duty -Police officer -Probation officer -Teacher Use rational basis scrutiny when dealing with alienage restriction with regards to these areas. |
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What is the exception that makes gender a quasi-suspect class?
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If the restriction is used to remedy past gender discrimination.
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