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36 Cards in this Set
- Front
- Back
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When does the Supreme Court have original jurisdiction?
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All cases affecting ambassadors, public ministers, consuls, and those in which a state is a party.
Congress has given concurrent jurisdiction in all cases except those between states. |
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When is a case justiciable?
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If is is:
(i) Ripe: Immediate threat of harm. (ii) Not Moot: matter has not already been resolved (unless short time period precludes ability to litigate in time). (iii) and the person has Standing: A concrete stake in the outcome of a case. (redressability, personal injury, causation) |
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What is the commerce power?
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Congress has the exclusive power to regulate all foreign and interstate commerce. Congress may regulate its CHANNELS, INSTRUMENTALITIES, and any activity that has a SUBSTANTIAL EFFECT on interstate commerce.
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When may Congress use the commerce power to regulate INTRASTATE activities?
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If the intrastate activity is economic: Congress may regulate it if it has a substantial affect on interstate commerce in the aggregate.
If it is not economic: Congress must factually show a substantial economic effect on interstate commerce. |
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When may Congress delegate its legislative power?
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Can be delegated to Judicial or Executive when it sets INTELLIGIBLE STANDARDS for the legislation, and as long as the power is not uniquely confined to congress.
Congress may NOT appoint members of a body with administrative or enforcement powers. |
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When has Congress PREEMPTED a field from state or local regulation?
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If a federal statute EXPRESSLY states that it occupies the entire field.
Court determines that it was the clear and manifest purpose of Congress to preempt the field. |
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What does the PRIVILEGES AND IMMUNITIES clause of article IV do?
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It keeps states from discriminating against non residents regarding their fundamental rights (involving commercial activities pursuit of livelihood and civil liberties)
UNLESS there is no less restrictive means. |
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When will activity be considered STATE ACTION?
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When it is either
(i) PUBLIC FUNCTION - state action (like running a town or conducting an election) or (ii) if there is SIGNIFICANT STATE INVOLVEMENT, the state facilitates, encourages, or authorizes acts of discrimination by its citizens. |
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What is PROCEDURAL DUE PROCESS?
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A fair process is required for a government agency to take a person's LIFE, LIBERTY, OR PROPERTY.
Property is taken if there was a legitimate claim or ENTITLEMENT to the benefit under state or federal law (welfare, public school, government employment). |
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What is SUBSTANTIVE DUE PROCESS?
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If a law limits liberty of ALL persons to engage in some activity, the fifth amendment (federal) or fourteenth amendment (states) require that it pass a test of scrutiny.
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What is EQUAL PROTECTION?
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If a law treats a person or CLASS OF PERSONS differently from others, the fifth amendment (feds) or fourteenth amendment (states) will require it to pass a test of scrutiny.
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When is a law DISCRIMINATORY?
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A law will be deemed discriminatory if discriminatory INTENT can be shown. Show intent through (Facial discrimination, discriminatory enforcement/application, or discriminatory effect plus legislative motive).
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When may the government regulate the fundamental right of ABORTION?
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The government may regulate pre-viability abortions as long as they do not place an undue burden on abortion.
The government may regulate POST-VIABILITY abortions as much as they want, as long as they don't prohibit a woman from obtaining an abortion when her health or safety is in jeopardy. |
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What does the FIRST AMENDMENT protect?
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The first amendment keeps the federal government (and the states through the fourteenth amendment) from
(i) establishing a religion, (ii) interfering with the free exercise of religion, and (iii) abridging the freedoms of speech/press/assembly. |
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What kinds of regulation of speech are okay?
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In a PUBLIC FORUM: regulations that are content neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication are reasonable TIME, PLACE, AND MANNER regulations.
In a LIMITED PUBLIC FORUM: regulations are valid if they are viewpoint neutral and reasonably related to a legitimate government purpose. |
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What if the government wants to regulate the CONTENT of speech?
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It must meet strict scrutiny, be NECESSARY to achieve a COMPELLING government interest.
(inciting imminent lawless action, fighting words, obscenity, defamatory speech, commercial speech) |
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When is speech considered OBSCENE?
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When it (i) appeals the prurient interests, (ii) is patently offensive based on a community standard (iii) and lacks serious value based on a national standard.
May be regulated if meets strict scrutiny. |
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What must the government show to execute a PRIOR RESTRAINT on speech?
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The standard must be narrowly drawn, reasonable, and definite. The injunction must be promptly sought, and there must be prompt and final determination of the validity of the restraint.
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What is the FREEDOM OF ASSOCIATION and BELIEF?
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The government may neither prohibit politically unpopular groups nor unduly burden a person's right to belong to such groups, unless meets SS with least restrictive alternative standard.
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What are the rights of a GOVERNMENT EMPLOYEE concerning free speech?
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If a government employer seeks to fire an employee for speech related conduct:
Public Concern: compare rights of citizen and government. Not public concern: give wide degree of deference to employer to see if speech was disruptive. |
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What is the LEMON TEST and when is it used?
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The lemon test is used to determine if government action is valid under the establishment clause (doesn't establish a religion). Government action will be valid if it:
(i) Has a secular purpose (ii) Has a primary effect that neither inhibits nor advances religion. (iii) Does not produce excessive government entanglement with religion. |
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When will a tax be upheld under Congress' TAXING POWER?
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If the tax bears some REASONABLE relationship to REVENUE PRODUCTION
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What can Congress do with its SPENDING POWER?
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Spend for the general welfare.
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What is Congress' PROPERTY POWER?
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Power to dispose of and make rules for territories and property of US. State can't regulate federal property.
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Who may make APPOINTMENTS?
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Executive appoints with advice and consent from senate. Congress can vest appointments of inferior officers in president alone. Congress cannot itself appoint people with administrative or enforcement powers.
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Who can remove appointees?
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President can remove high level appointees w/o Congress interference
For others Congress can put limits on President (good cause, etc.) Congress can only remove by impeachment |
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Who may president pardon?
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Any federal offenses
Not impeachment Not civil contempt |
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Presidents power over internal affairs.
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Three-part test
Acting w/ Congressional approval - Probably valid Acting and Congress is silent - Valid unless usurping power of another branch Acting and Congress objects - Probably invalid (e.g. President cannot refuse to spend appropriated funds) |
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How does the Constitution prohibit racial discrimination? Whose actions can be controlled?
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13th Am - Enabling clause allows Congress to reach racially discriminatory action by ANYONE
14th Am - State action must be involved Commerce Clause - Can reach private individuals (any activity/behavior that has substantial effect on interstate commerce) |
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Levels of Scrutiny
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Rational Basis - RATIONALLY related to LEGITIMATE purpose
Intermediate - SUBSTANTIALLY related to an IMPORTANT (actual) purpose Strict - NECESSARY to achieve a COMPELLING purpose (least restrictive means) |
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What rights are fundamental
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Interstate Travel
Voting First Amendment Privacy |
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What classes are suspect?
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Race
National Origin Sometimes Alienage |
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What classes are quasi-suspect?
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Gender
Legitimacy |
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What rights are contained under privacy?
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C - Contraceptives
A - Abortion (Undue Burden) M - Marriage P - Procreation E - Education (Private) R - family Relations (family can live together) S - Sexual conduct |
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What test must the government pass to engage in speech (ten commandments on a courthouse)
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Rational bases (but it's a mess, really)
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How is speech-regulating legislation kept reasonable?
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Can't be OVERBROAD - punishes a substantial amount of protected speech in relation to its plainly legitimate sweep
Can't be VAGUE - fails to give a reasonable person notice of what is prohibited Officials can't have UNFETTERED DISCRETION |
