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45 Cards in this Set

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Intergovernmental Immunities
TAX, PROP, SUE

TAX=FG can't be taxed, but its contractors can so long as nondiscriminatory. FG may tax state.

PROP=Congress/FG may reg if involves rules and regulations regarding territory of the US (indian res, animals)

SUE=FG can sue state
Dormant Commerce Clause
NICC---State's Right (2-prong test)[No SF + NO UB][LRA Test]
Dormant CC--Exception
MPD--if fully *created & funded w/ state tax dollars
MPD v Art IV Privileges & Immunities
Test: funding-source & extent
State Tax of Interstate Commerce
Two-part Test: (1) R & ND (2) SN btwn state interest and activity taxed
Transit Doctrine for State Taxation of Interstate Commerce
(1) Goods or (2) commodities=no tax if in "stream" of IC BUT
a) beginning of T
b) end of T
c) any break in T
(2) Instrumentalities of commerce (trucks) to extent used by taxpayer
Supremacy Clause Test
Did Congress intend to occupy the field? If so-->SL UNCON
Suppression
SL in ACTUAL conflict w/ FEDL-->UNCON

Exception: FEDL is about minimum standards only.
Bill of Rights Provisions NOT applicable to the states
2, 5, and 7
Arms
Grand Jury
Right to Civil Jury
Retroactive Legislation:
Contracts
NO WAY--no retroactive impairment of public or private contracts by NY or FL (but FED GOVT CAN)
Ex Post Facto Laws
To be UNCON, must retroactiely alter CRIMINAL (NOT civil)
Bill of Attainder
legislative punishment of named group or individual w/o trial; applies to state and fed
State Action--Definition
threshold req of gov't conduct that must be shown bf private discrimination can be restricted under 14th or 15th. **13th can punish private**
State Action--(1) Public Function
(1) private entity performing activities that were (a) traditionally and exclusively carried on by the state
State Action--(2) Significant State Involvement
(2) ex: state-owned textbooks in public school; state facilitates disrimination
Procedural Due Process
NOTICE + HEARING procedural safeguards IF **Serious Deprivation Test met.
Serious Deprivation Test
Prong 1--Severity of the harm
(v)
Prong 2--Administrative costs of the government
Protected *Liberty Interests for PDP Test
1. Commitment to a mental institution.
2. Right to contract
3. Right to Engage in Gainful Employment.
4. Right to Refuse Unwanted Medical Care
5. Right of Natural Parents in the Care and Custody of their Children
6. Injury to Reputation
Property Interests
1. Right to Public Education.
2. Right to Welfare Benefits
3. Liability Benefits
4. Continued Public Employment where termination can be only "for cause"
5. Revocation of a Driver's License.
Takings
1. Property CAN be taken by eminent domain, inverse condemnation, or state police power "regulation."
2. If you take private property for public use, you must provide *just compensation.
Substantive Due Process
Economic Regulation
Rational Basis Test
Substantive Due Process
Fundamental Rights
Strict Scrutiny
Fundamental Rights
VTP

V=Vote
T=Travel
P=Privacy
Right to Privacy Mnemonic
CAMPER--my camper is private! You strict scrutiny me now --you'll have to meet the court's strict scrutiny later

C=Contraception
A=Abortion
M=Marriage
P=Procreation
E=Education
R=Relations (rights of related persons to live together); no anti-group ordinances
Standards of Review
Plaintiff's Burden
Rational Basis
Standards of Review
When Plaintiff's
Burden Kicks In
Regulation classifies according to: MAPEN

Plaintiff must bring the map into court (wow that's really dumb but whatever)and show its not rationally drawn

M=mental retardation
A=age
P=poverty
E=economic & social welfare measures
N=necessities of life (food, medical care, clothing)
Standard of Review
When State's Burden Kicks In
Any time its not rational
basis:

1) First Amendment
2) Suspect Class
3) Fundamental Rights
Suspect Class--Who and
What are They?
RAN. The suspect class ran to court and demanded that their rights be protected.

R=Race
A=Alienage (except OK if gov't
is part of or
reason for reg)
N=National Origin

And the state was subject to strict scrutiny
Intermediate Scrutiny
(Middle-Tier)
SR II. Not senior but the second.

S=substantially
R=related
I=important
I=interest
Intermediate Scrutiny
(When triggered)
GI. Your GI tract is in the middle of your body.

G=Gender
I=Illegitimacy
Free Exercise Clause
BELIEFS=permitted

PRACTICES IN FURTHERANCE=may be *regulated.
Establishment Clause
Gov't can't aid religion.

SEX. SEX and religion don't mix that well.

1) Secular purpose
2) Effect is Neutral (Primary effect)on Religion
3) Entanglement (none)
How the Supreme Court has
Deferred to Religion Despite
Establishment Clause
1) **Property** tax exemptions for religious property upheld.

2) Religious displays have been held OK so long as its Jewish, Catholic, and Whatever else as one happy family in the display or just present in same building. (remember little school)
FREEDOM OF SPEECH
4 Types of Facial Attacks
OV PR UD. Don't talk OVER my VAGUE PRIOR REMARK, even if it was a PRIOR RESTRAINT of UNFETTERED DISCRETION!

OVERBREATH=statute punishes both protected and unprotected speech.

VAGUENESS=people of ordinary intelligence must guess at meaning.

PRIOR RESTRAINT=gov't action restricting free speech in advance of publication (gag order) (obscene books ok if safeguards are afforded).

UNFETTERED DISCRETION= licensing official has UNFETTERED discretion to confer or deny permit
ESSAY APPROACH
Freedom of Speech
Does it regulate the MESSAGE or is it a TIME/PLACE/MANNER that has no bearing on the message?

MESSAGE-->Is speech (a) protected or (b) not protected?

(a) protected-->SS test [gov must now show N& C reason for reg]
(b) unprotected

TIME PLACE MANNER-->Does the regulation still let you have FON?

FURTHER=a significant gov't interest.

OPEN=leave open alternative channels of communication

NARROW=narrowly tailored and no more restrictive than it has to be.
FREEDOM OF ASSOCIATION
(What does it include?)
Ex: Accepting Gov't Benefits,
Public Employment,
Seeking membership in
various organizations
EXCEPTIONS FOR MEMBERSHIP
IN WACKY SUBVERSIVE GROUPS
3 Part Test for Membership if You are Trying to Bar them from the (1) Bar or (2) Public Employment.

1) ACTIVE. Do they pay dues and/or are active?

2) KNOWING. Are they a knowing member of that group (do they know of subversive activity)?

3) SPECIFIC INTENT to further group's unlawful objective
LOYALTY OATHS
No good if precondition to public employment.
DISCLOSURE REQUIREMENTS
Generally not required.
FREEDOM OF THE PRESS
1) Right of Access--criminal trial (unless gov't interest outweighs)

2) Newspaper Privileges--(see NY distinction on evidence)

3) Broadcasting--may be regulated more closely due to limited # of frequencies available. (unequal rebuttal time ok for newspapers to do) (but not for public broadcasting)
FREEDOM OF SPEECH
6 FORMS THAT CAN BE
REGULATED
OFF DOCC

O=Obscenity (See test)
F=fighting words
F=fraudulent commercial speech

D=defamation
O=other areas (symbolic speech) (freedom not to speak)
C=Child pornography
C=Clear and Present Danger
OBSCENITY TEST
ADL=APPEAL, DEPICT, LACK VALUE

lads on video are obscene
Time,Place and Manner
Restrictions
Public v. Private Forums
PUBLIC=3 part test

PRIVATE=jails, airport terminals)

regulations-->(1) viewpoint neutral (content may be reg; but presenting 1 view is impermissible; (2)RR to a LGI
Licensing Statutes
Validity Test
1) Relate to important government objective;
2) clearly written & narrowly drawn;
3) reasonably regulated T, P, M of speech
VALID STATUTE
(What Speaker Must Do)
________________________________
VOID STATUTE (void on face)
Get Permit-->seek judicial relief b/f speaking or waive 1st.
________________________________
Ignore the Statute and Speak and defend him or herself