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94 Cards in this Set
- Front
- Back
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Justiciability criteria (6)
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Abstention
Standing Political Question Eleventh Amendment (fed cts canNOT hear private party's or foreign govt's claims against state gov't) Ripeness Mootness |
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What are the basic elements of standing? (3)
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Injury in fact
Causation Redressability |
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Can Ps assert others' claims with 3rd party standing? Rule + exceptions (3)
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Generally no EXCEPT
-Close relationship -If 3rd party cannot assert his own rts -Organization standing |
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What are the elements of organizational standing? (3)
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Members have standing to sue
Interests are germane to org's purpose Neither claim nor relief requires participation of individual members |
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Do taxpayers have standing? Rule + exception
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No EXCEPT where taxpayers challenge gov't expenditures as pursuant to fed statutes as violating Establishment Clause
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Ripeness: can a court grant pre-enforcement review of a law or regulation? Two factors.
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Hardship suffered w/o preenforcement review
Fitness of issues and record for judicial review |
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What are the exceptions to mootness? (3)
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Wrong capable of repetition but evading review
Voluntary cessation + ability to renew activity Class action suits and losing the named P |
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What is meant by "adequate and independent state grounds"?
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SCOTUS will NOT exercise jurisdiction if state court judgment is based on adequate and independent state law grounds
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When should federal cts abstain from intervening in state ct proceedings? (2) What is the exception?
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Unsettled question of state law
Pending state criminal proceedings EXCEPT where there is a case of proven harassment or prosecutions in bad faith |
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What are the four certain political questions?
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"Republican form of gov't" clause
Foreign policy and executive branch Impeachment/removal process Partisan gerrymandering |
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The 11th Amendment: What does it bar? What does it not bar? (3) What is the exception?
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Bars federal courts from hearing a private party's or foreign state's claims against a state gov't
Does NOT bar: 1 Actions against local gov't 2 Actions by U.S. or other states 3 Bankruptcy cts Exception: Actions against state officers |
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What is the only circumstance when SCOTUS has automatic appellate jurisdiction?
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Appeals from 3-judge federal district ct panels
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When can state officers be sued? (2) Exception?
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For injunctive relief
Money damages from their own pockets But NOT if state treasury must pay retroactive damages |
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What are the exceptions to the rule that the federal gov't has no general police power? (4)
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M Military
I Indian reservations L Land and territory that is federal D District of Columbia |
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To what does the Commerce Clause extend? (3)
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Channels of interstate comm
Instrumentalities of interstate comm Activities that have a substantial effect on interstate comm |
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The substantial effect test for interstate comm can consider aggregate effects UNLESS...
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Law is non-economic in nature (e.g., domestic abuse law); then must show a substantial economic effect
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What does the 10th Amendment do generally?
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Limits Congressional powers, states that all powers not granted to U.S. are reserved to the states
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How can Congress control state activity, despite 10th Amendment limitations? (2)
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Induce by putting strings on grants
Prohibit harmful commercial activity |
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What is the property power of Congress?
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To dispose of federal property however it wants SO LONG AS it considers taking requirements
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What is the postal power of Congress?
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Exclusive power; gov't monopoly
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What is required to delegate legislative power?
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Intelligible standards
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What kinds of veto are not constitutional? (2)
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Line item
Legislative |
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What are the main areas of executive power over external affairs? (4)
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War
Foreign relations Treaties Exec agreements |
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What is the main differences btw treaties and executive agreements? (2)
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Senate must ratify treaties, NOT agreements
Treaties trump all conflicting state laws and conflicting preceding federal laws; executive agreements ONLY trump conflicting state laws * When a treaty trumps state law, that state law is both invalid AND UNconstitutional |
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What are the main areas of executive power over domestic affairs? (4)
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Pardons
Appointment/removal Veto power General power as Chief Executive |
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Where it is not enumerated, what is the test for legitimacy of executive domestic action? (3)
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If President acts with authority of Congress, President's authority is at its maximum
If President acts where Congress is silent, President's authority is somewhat questionable If President acts against Congress, President's authority is at its minimum |
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Whom does the President appoint? (3)
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Ambassadors
Federal judges Officers of the U.S. |
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What must Congress satisfy to limit President's removal power? (2)
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Must be an office where independence from President is desirable
AND Can only limit removal to good cause |
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What level of votes are required by Congress for impeachment? (2)
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Majority in House
2/3 in Senate |
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What does and doesn't executive immunity apply to?
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Absolute immunity from civil damages based on acts in office
NO immunity from acts before taking office |
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What are the forms of implied preemption w/re to the Supremacy Clause? (3)
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If federal and state laws are mutually exclusive
If state law impedes achievement of federal objective If Congress occupied the field |
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What is inter-governmental immunity?
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States canNOT tax or regulate federal gov't activity
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What does full faith and credit require? (3)
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Court that rendered judgment had jurisdiction over parties and subject matter
Judgment was on merits Judgment is final |
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What is the trigger for the Art IV Privileges and Immunities Clause?
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STATE law that discriminates against nonresidents
NO APPLICATION TO FED LAW |
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Who is not covered by Art IV Privileges and Immunities Clause? (2)
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Aliens
Corporations |
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Which rights are covered by Art IV Privileges and Immunities Clause?
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Fundamental rts involving commercial activities and civil liberties
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What is the test states law must meet to get around Art IV Privileges and Immunities Clause?
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Substantial justification + least restrictive means
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How can a state avoid a violation of the Dormant Commerce Clause? (3)
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The law is necessary to achieve an important gov't purpose
Congressional approval Market participant exception |
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Nondiscriminatory state taxes on interstate commerce will be valid IF... (2)
Nondiscriminatory state law that does NOT burden interst comm may still be invalid IF...test |
Substantial nexus to taxing state
Fair apportionment ** IF law's benefits are outweighed by burdens the law places on interst comm |
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What is the only area where Congress can directly regulate private conduct?
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13th Amendment and racial discrimination
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For protections of individual liberties, what is the threshold requirement?
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State action
Non-university educ generally NOT a gov't function; mere licensure and subsidies for private school NOT enough |
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When must private conduct comply with the Constitution, other than the 13th Amendment? (2)
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Public function where private entity takes over a previously gov't role
Entanglement where the gov't affirmatively authorizes, encourages, facilitates unconstitutional activity |
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Which of the Bill of Rights is NOT incorporated into the 14th Amendment due process clause?
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Right to bear arms
Right to grand jury indictment Right to jury trial in civil cases Right against excessive fines |
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What does the Contract clause do?
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Prohibits states from enacting any law that retroactively impairs K rts
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What are the different levels of scrutiny for Contract clause issues?
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Intermediate scrutiny for PRIVATE Ks
Strict scrutiny for PUBLIC Ks |
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What are the aspects of the levels of scrutiny? (3)
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Rational basis:
Rationally related to a legitimate conceivable purpose with burden on challenger Intermediate scrutiny: Substantially related to important actual purpose with burden on gov't Strict scrutiny: Necessary to achieve a compelling gov't purpose by least restrictive means with burden on gov't. |
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What is the threshold question to ask for procedural due process?
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Has there been a deprivation of life, liberty or property?
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What kind of connection to property is needed to trigger due process?
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Entitlement, NOT mere need for
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What is the balancing test for procedural due process? (3)
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Important of interest to the individual
Ability of additional procedures to increase accuracy of fact-finding AND Gov't interests |
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What does 5th Amendment do?
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Provides that private property may not be taken for public use without compensation?
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What is the public use standard (level of scrutiny) for takings?
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Rational basis
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What are the fundamental rts triggering strict scrutiny for purposes of substantive due process? (11)
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Marry
Procreate Custody of kids Keep family together Child-rearing Contraceptives Travel Vote Speech Association Religion |
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What is the only fundamental rt to trigger the undue burden test for purposes of substantive due process?
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Abortion
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What are the rights for which the level of scrutiny is not known for purposes of substantive due process? (3)
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Private consensual gay acts
Refuse medical treatment Possess firearms |
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What are the domestic/foreign distinctions of right to travel?
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Foreign travel need only meet rational basis
Domestic travel, strict scrutiny |
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What is the three step approach for equal protection analysis?
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What is the classification?
What level of scrutiny? Does the law meet the level of scrutiny? ONLY APPLIES TO STATE LAWS; FOR FED LAWS, APPLY 5TH AMEND SUBST DUE PROC |
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How to determine existence of a classification for equal protection? (2)
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Facial classification
If facially neutral, BOTH discriminatory intent AND discriminatory effect |
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For equal protection, what deserves strict scrutiny? (5)
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--Race
--Nat'l origin --Alienage UNLESS it's about participation in gov't or illegal alien adults --Domestic travel --Voting |
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For equal protection, what deserves intermediate scrutiny? (3)
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Gender
Illegitimate kids Undocumented alien kids |
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For equal protection, what deserves rational basis? (6)
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Alienage IF related to self-gov't and democratic process
Congressional regulation of aliens and immigration Age Disability Wealth All else |
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What is the main issue with interstate travel rts?
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Minimum durational residency requirements
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Content-based vs content-neutral and levels of scrutiny?
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Content-based: strict scrutiny
Content-neutral: intermediate scrutiny |
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What are the categories of content-based restrictions? (2)
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Subject matter
Viewpoint |
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Conduct vs content regulations of speech
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Content: must meet either intermediate or strict scrutiny depending on what kind
Conduct related to speech can be regulated by: --Content-neutral AND --Time, place and manner restrictions |
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What are the standards for measuring reasonableness of speech regulation? (3)
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Overbreadth
Vague Unfettered discretion by state official |
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What kinds of speech or less or not protected by 1st Amendment? (5)
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Incitement of illegal activity
Obscenity/sex Commercial Defamation Speech by gov't workers on the job in performance of their duties |
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Obscenity/sex three part test
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Material must:
Appeal to prurient interest (local scope) Be patently offensive Lack serious redeeming value (nat'l scope) |
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What categories of places are available for speech? (3)
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Public and designated public fora
Non-public fora Private property |
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For public and designated public fora, gov't speech regulations must meet time, place, manner restrictions that meet this three part test?
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Content neutral
Narrowly tailored to serve important gov't interest AND Leave open alternative channels of communication |
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For non-public fora, gov't speech regulations must meet this two part test?
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Viewpoint neutral
AND Rational basis |
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What are four kinds of non-public fora?
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Military bases
Gov't workplace Schools Courts |
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Contribution limits
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Laws may limit amount of money that a person can contribute to a candidate, but NOT to support/oppose a ballot referendum
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What are the two clauses of freedom of religion?
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Freedom of exercise
Establishment clause |
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To what does the freedom of exercise NOT apply?
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Neutral law of general applicability
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For establishment clause, laws that prefer one sect over another must meet what level of scrutiny?
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Strict
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For establishment clause, laws that do NOT prefer a sect are valid IF... (3)
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S Secular purpose
E Effect canNOT advance or inhibit religion X Excessive entanglement with religion |
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What kind of voting problem does equal protection protect against?
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State dilution of the rt to vote by malapportionment of electoral districts
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Absent fed law, when may a state regulate local aspects of interest comm?
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1 NO discrim against out-of-st competition
AND 2 NOT unduly burdensome |
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What must state law satisfy in order to be able to prefer state residents over out-of-state residents for employment? W/re Art IV Priv/Imm
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Nonresidents are causing the problem in the state
AND Least restrictive means |
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Tests for burdening lawful and unlawful commercial speech
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Unlawful comm speech: rational basis
Lawful comm speech; burden MUST: 1 Serve substantial gov't interest 2 Directly advance that interest AND 3 Be narrowly tailored CanNOT COMPLETELY ban lawful comm speech b/c it's never going to meet narrow tailoring test |
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What are the two main 1st Amend rts?
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Freedom of speech/assembly
Rt to attend crim trials for public and press |
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What is required to restrict 1st Amend rt to attend crim trials?
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Overriding interest articulated by judge
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What is prior restraint? When is it okay?
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Prior restraint is when anyone says up front that no speech is allowed
Okay ONLY IF it meets strict scrutiny |
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Over what does SCOTUS have original jurisdiction?
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Consuls
Ambassadors Public ministers AND CASES WHERE STATE IS A PARTY |
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What sort of residency requirement will likely survive constitutional challenge?
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Bona find residency requirement that does NOT mess with suspect class or fundamental rts
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What is required for state action?
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A LOT
MORE than even heavily regulating a business and financing it. Private firm MUST be playing a public function, OR state involvement must be very very high |
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To defeat obscenity challenge by saying the speech has artistic value, social value, how much value is required?
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A LOT
Proven artistic merit; serious (not just some) social value; etc. |
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What role do the states have in foreign comm?
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NONE
CanNOT burden foreign comm |
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How can prior restraints on in-court speech/press be okay?
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Overriding interest
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What kind of activities does the General Welfare clause NOT apply to?
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NON-economic activities, like air bag regulation e.g.
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What is the proper essay approach to issue of whether a state law is invalid w/re to interst comm?
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FIRST, does fed law preempt?
SECOND, does the law: --EITHER discriminate against out-of-state comm to promote local interests? --OR unduly burden interst comm in a way that outweighs law's interests? THIRD, is it nonetheless valid IF: --EITHER it furthers important, noneconomic state interest --OR state is market participant --AND there is no better alternative |
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What are public fora?
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Parks, streets, sidewalks, and designated public fora
OTW, assume it's non-public fora |
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When is bicameralism needed?
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Legislative veto!! One house of Congress can't invalidate an admin/exec decision
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When looking at 1st amendment speech issues, go through the following issues...
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--State action
--Prior restraint ----Strict scrutiny IF content-based (if content-neutral, can be reasonable time/place/manner restriction) ----Must have reasonable procedural safeguards --Overbreadth --Vagueness --Unfettered discretion to officials 2-step process: 1 Is speech unprotected? (e.g. incitement, obscenity, commercial) 2 IF protected, then strict scrutiny |
