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151 Cards in this Set
- Front
- Back
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Threshold Issues
Article III grants power to hear: |
"Cases and controversies"
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Threshold Issues
Standing Elements (3) |
Injury;
Causation; Redressability. |
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Threshold Issues
Injury |
Concrete, personalized.
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Threshold Issues
Causation |
Fairly traceable to defendant.
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Threshold Issues
Redressability |
Redressable by the court.
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Threshold Issues
Associational Standing (2) |
Group member meets normal elements;
Connection between organization purpose and injury. |
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Threshold Issues
Third-Party Standing (2) |
Difficult to assert own rights;
Close relationship between parties. |
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Threshold Issues
Other Standing Means (2) |
Within "zone of interests" Congress sought to protect;
Congress expressly conferred standing. |
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Threshold Issues
Abstention from Deciding Case (2) |
Political question (constitutionally committed to another branch OR inherently incapable of judicial resolution;
Adequate and independent state grounds for decision. |
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Threshold Issues
Mootness |
Real and live controversy must exist throughout lawsuit.
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Threshold Issues
Mootness Exceptions (2) |
Capable of repetition, but evading review;
Class action representative mooted. |
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Threshold Issues
Ripeness (3) |
Existing dispute;
Threatens immediate/substantial hardship to P; Can be resolved by a final/conclusive judgment. |
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Levels of Judicial Review (3)
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Rational Basis;
Intermediate Scrutiny; Strict Scrutiny. |
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Levels of Judicial Review
Rational Basis definition and burden of proof |
Regulation is RATIONALLY related to a LEGITIMATE government interest (anything conceivable).
Burden of Proof: Plaintiff. |
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Levels of Judicial Review
Intermediate Scrutiny definition and burden of proof |
Regulation is SUBSTANTIALLY related to an IMPORTANT government interest (must be actual purpose).
Burden of Proof: Government. |
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Levels of Judicial Review
Strict Scrutiny definition, burden of proof, and caveat |
Regulation is NARROWLY TAILORED to achieving a COMPELLING government interest (must be actual purpose).
Burden of Proof: Government. Caveat: May not be under- or over-broad. |
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Property Rights
Takings Amendments (Federal and State) |
Federal: 5th Amendment.
State: 14th Amendment. |
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Property Rights
Taking definition and level of scrutiny |
A taking of private property for public use (private party may own, so long as public benefits).
Rational basis review. |
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Property Rights
Taking types (2) |
Possessory and regulatory.
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Property Rights
Possessory Taking definition and exceptions (3) |
Actual physical interference with property.
Exceptions: Health, safety, emergency. |
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Property Rights
Regulatory Taking definition |
Government regulation destroys viable economic use.
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Property Rights
Taking Remedies (2) |
Just compensation;
Return property and pay interim damages. |
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Property Rights
Contracts Clause definition |
State and local government regulations cannot substantially interfere with the obligations of existing contracts.
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Property Rights
Contracts Clause limits (2) |
Does not apply to the Federal Government;
Does not apply to judicial decisions. |
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Property Rights
Contracts Clause level of scrutiny (2) |
Public contracts: intermediate scrutiny.
Private contracts: strict scrutiny. |
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Substantive Due Process
Definition and distinguish from Equal Protection. |
Deals with rights denied to everyone.
Equal Protection: Deals with rights denied to some. |
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Substantive Due Process
Levels of scrutiny (2) |
Denial of fundamental rights: strict scrutiny.
Denial of non-fundamental rights: rational basis. |
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Substantive Due Process
Fundamental Rights (3) |
Right of privacy;
Right to interstate travel; Right to vote. |
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Substantive Due Process
Fundamental Rights Right of Privacy (4) |
Abortion;
Marriage; Use of contraceptives; Miscellaneous. |
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Substantive Due Process
Fundamental Rights Abortion - Undue Burden Test |
Before viability: Regulation can't place undue burden on right to abort.
After viability: May prohibit all abortions unless necessary to protect woman's life or health. |
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Substantive Due Process
Fundamental Rights Abortion - Viability Definition |
Fetus capable of living outside the womb with medical assistance.
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Substantive Due Process
Fundamental Rights Abortion - Undue Burdens (2) |
Spousal notification;
Ban all partial birth abortions. |
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Substantive Due Process
Fundamental Rights Abortion - Not Undue Burdens (3) |
24-hour waiting period;
Only MD can perform; Parental notification. |
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Substantive Due Process
Fundamental Rights Marriage |
Right of one male and one female to enter a marital relationship.
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Substantive Due Process
Fundamental Rights Use of Contraceptives |
State cannot prohibit distribution of non-medical contraceptives to adults.
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Substantive Due Process
Fundamental Rights Miscellaneous (4) |
Read obscene material in home;
Keep extended family together (zoning); Right of parents to make decisions regarding care/custody/control of children; Intimate sexual conduct (if not commercial). |
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Substantive Due Process
Fundamental Rights Right to Interstate Travel (2) |
Long periods and life necessities: strict scrutiny.
Short periods for non-fundamental rights: constitutional. |
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Substantive Due Process
Fundamental Rights Right to Vote - Federal Elections |
One person, one vote.
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Substantive Due Process
Fundamental Rights Right to Vote - State/Local Elections |
No unjustifiably large disparities in voters per district.
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Substantive Due Process
Fundamental Rights Right to Vote - Invalid Restrictions (3) |
Cannot condition right on:
Property ownership; Poll tax payment; or Literacy. |
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Substantive Due Process
Fundamental Rights Right to Vote - Residency Requirements |
Reasonable residency requirements (e.g., 30 days) constitutional.
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Substantive Due Process
Fundamental Rights Economic Regulations - Level of Scrutiny |
Rational basis.
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Procedural Due Process
Property Rights espouse (3) |
Land;
Personal property; Any existing entitlement where there is a specific benefit (federal or state government) and a legitimate expectation it will continue. |
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Procedural Due Process
Liberty Rights espouse (2) |
Freedom from bodily injury and restraint;
Freedom to exercise fundamental rights impaired by intentional government action. |
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Procedural Due Process
Process Due before Deprivation (2 steps) |
Notice;
Fair hearing before an unbiased decisionmaker. |
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Equal Protection Analysis (3 steps)
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Trait or basis of classification?
Level of review? What required to prove intentional discrimination? |
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Equal Protection
Suspect Classifications (3) |
Race, national origin, alienage (sometimes)
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Equal Protection
Suspect Classification Standard of Review |
Strict scrutiny.
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Equal Protection
Quasi-Suspect Classifications (2) |
Gender and legitimacy.
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Equal Protection
Quasi-Suspect Classification Standard of Review |
Intermediate scrutiny.
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Equal Protection
Proving Intentional Discrimination (3 ways) |
Law discriminatory on its face;
Law discriminatory in application; Discriminatory motive behind law or action. |
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Equal Protection
Affirmative Action level of scrutiny |
Strict scrutiny.
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Equal Protection
Affirmative Action: Compelling Interests (2) |
Remedy persistent discrimination affecting identifiable individuals;
Achieve diversity within public school body (race as a factor) |
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Equal Protection
Alienage Classifications - Federal Action - Level of Review |
Rational review.
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Equal Protection
Alienage Classifications - State/Local Action - Level of Review depends on alien's status (2) |
Resident alien: strict scrutiny.
Undocumented alien: rational review. |
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Equal Protection
Gender Classifications (Quasi-Suspect) level of review and areas of discrimination (2) |
Review: intermediate scrutiny.
Areas of discrimination: Law based on gender stereotypes; Prefers one gender over another for jobs. |
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Equal Protection
Illegitimacy (Quasi-Suspect) level of review |
Intermediate scrutiny.
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Equal Protection
Fundamental Rights level of review |
If government restricts exercise of fundamental rights: strict scrutiny.
Note: if restriction affects everyone, analyze under SDP. |
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Equal Protection
Non-Suspect Classifications level of review |
Rational basis.
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Expressive Freedoms (4)
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Speech;
Press; Association; Religion. |
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Expressive Freedoms
Analysis depends on whether the restriction is (2) |
Content-based;
Content-neutral. |
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Expressive Freedoms
Content-Based Analysis (3) |
Categorize speech;
Apply scrutiny; Apply issue trio and prior restraint analysis. |
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Expressive Freedoms
Speech Categories (4) |
Unprotected;
Less protected; Government funded; Protected. |
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Expressive Freedoms
Issue Trio |
Vague;
Overbroad; Unduly Discretionary. |
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Expressive Freedoms
Content-Neutral Analysis (6) |
Type of forum;
Facial or as-applied challenge; Time, place, manner issues; Viewpoint based; Apply scrutiny; Apply issue trio and prior restraint analysis. |
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Expressive Freedoms
Content-Based Restrictions (2) level of review |
Subject matter;
Viewpoint. Strict Scrutiny. |
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Expressive Freedoms
Content-Neutral level of review |
Intermediate scrutiny.
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Expressive Freedoms
Regulation of unprotected, less protected, and government funded speech. |
May regulate by subject matter if viewpoint-neutral.
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Expressive Freedoms
Prior Restraints elements and level of review |
Must have:
Clear, narrow standards; No discretion; Opportunity for prompt judicial review. Strict scrutiny. |
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Expressive Freedoms
Prior Restraints Examples (3) |
Gag order;
Injunction; Permit. |
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Expressive Freedoms
Vague - Definition |
Reasonable person cannot tell what is prohibited and what is not.
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Expressive Freedoms
Overbroad - Definition |
Affects substantially more speech than necessary.
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Expressive Freedoms
Unduly Discretionary - Definition |
Gives officials inadequate standards for application.
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Expressive Freedoms
Speech Freedom Scope (2) |
Freedom to speak;
Freedom not to speak (e.g., not salute flag) |
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Expressive Freedoms
Symbolic Speech Regulation |
Constitutional if:
Important purpose; Unrelated to suppression of message; Burden on communication no greater than necessary. |
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Expressive Freedoms
Anonymous Speech - Disclosure of Speaker |
Forcing disclosure unconstitutional - chilling effect on discourse.
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Expressive Freedoms
Press Freedoms (3) level of scrutiny |
Publish truthful information;
Access trials (can be outweighed) Internet. Strict scrutiny. |
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Unprotected/Less Protected Speech
Categories (6) |
Incitement of illegal conduct;
Fighting words; True threat; Obscenity and sex-oriented speech; Defamation; Commercial speech. |
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Unprotected/Less Protected Speech
Incitement of Illegal Conduct elements to punish as incitement (3) |
Illegal conduct must be:
Likely; Imminent; Intended by speaker. |
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Unprotected/Less Protected Speech
Fighting Words elements (3) |
Words that are:
Abusive; Directed personally to hearer; Likely to product violent reaction in average person. |
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Unprotected/Less Protected Speech
True Threat elements (3) |
A statement that:
Reasonable person would interpret; As D's intent to; Murder or inflict bodily harm. |
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Unprotected/Less Protected Speech
Obscenity/Sex Speech elements (3) |
Speech that:
Appeals to the prurient interests; Is patently offensive; Lacks serious literary value. |
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Unprotected/Less Protected Speech
Child Pornography (2) |
Actual minors: illegal.
Virtual minors: normal obscenity test. |
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Unprotected/Less Protected Speech
Zoning Adult Business |
Can't zone out of community.
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Unprotected/Less Protected Speech
Commercial Speech prohibited types (3) |
Soliciting illegal activity;
False or misleading advertising; Truthful advertising with inherent risk of deceiving/misleading the public. |
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Unprotected/Less Protected Speech
Commercial Speech - Truthful Advertising of Lawful Products level of scrutiny |
Intermediate scrutiny.
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Freedom of Speech: Time, Place, Manner
Public or Limited Forums (3 elements) |
Time, place, manner restrictions permitted if:
Regulation is content-neutral; Narrowly tailored to important interest; Leaves open alternative avenues of communication. |
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Freedom of Speech: Time, Place, Manner
Nonpublic Forums (2 elements) |
Regulations permissible if:
Viewpoint neutral; Meet rational basis review. |
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Freedom of Speech: Time, Place, Manner
Private Property |
Government may adopt reasonable regulations to limit access.
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Freedom of the Press
Special Regulations or Tax Targeting level of review |
Strict scrutiny.
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Freedom of the Press
Ability to Publish Illegally-Obtained Material (4 elements) |
Information truthful;
Matter of public concern; Media did not obtain unlawfully or know who did; Original speaker had reduced expectation of privacy (e.g., on phone). |
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Freedom of the Press
Content-Based Regulations level of scrutiny |
Strict scrutiny.
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Freedom of the Press
Content-Neutral Regulation of Print, Internet, or Cable TV. level of scrutiny |
Strict scrutiny.
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Freedom of the Press
Content-Neutral Regulation of Radio and Public TV. level of scrutiny |
Intermediate scrutiny.
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Freedom of Association
Constitutional Basis |
Implied in 1st Amendment.
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Freedom of Association
Political Activity Association level of scrutiny |
Strict scrutiny.
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Freedom of Association
Association for Illegal Activities - Prohibited If (3 elements) |
D actually participated in group;
Knew of illegal activities; Intended to further illegal activities. |
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Freedom of Association
Discriminatory Membership Laws - Validity |
Invalid if they interfere with group's expressive activity.
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Freedom of Religion
Pertinent Clauses (2) |
Freedom Exercise Clause
Establishment Clause |
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Freedom of Religion
Free Exercise Clause |
Government cannot punish/interfere with religious beliefs.
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Freedom of Religion
Free Exercise Clause - Permissible Interference |
Government can incidentally burden religions practice by neutral laws of general applicability.
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Freedom of Religion
Establishment Clause - Discrimination Among or Against Religions level of review |
Strict scrutiny.
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Freedom of Religion
Establishment Clause - Non-Discriminatory Regulation Test (3 elements) |
Valid if:
Serves a secular purpose; Primary effects do not advance or inhibit religion; Must not crease excessive governmental entanglement. |
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Freedom of Religion
Establishment Clause - Money to Religious Schools - Validity (2 elements) |
Valid if:
Flows through private choices; Government plan remains neutral on choice made by parents. |
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Freedom of Religion
Establishment Clause - Religious Activity in Public Schools |
If government lets secular groups use school grounds (after school), must let religious group do so.
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Federal Executive Powers
Conflict of Laws Hierarchy (5) |
US Constitution
Federal Law vs. Treaty (last in time wins) Executive Agreement State Constitution State Law |
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Federal Executive Powers
Power Over Internal Affairs - Acting With Express/Implied Congressional Authority |
Action likely valid.
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Federal Executive Powers
Power Over Internal Affairs - Acting Where Congress is Silent |
Valid unless taking power from another branch.
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Federal Executive Powers
Power Over Internal Affairs - Acting Against Express Will of Congress |
Likely invalid.
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Federal Executive Powers
War-Making Power |
Broad discretion to introduce troops into foreign hostilities.
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Federal Executive Powers
Appointment Powers - Executive and Congress |
Executive: May appoint all high officers.
Congress: May appoint inferior officers. |
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Federal Executive Powers
Removal Powers - High-Level Officers |
May fire them.
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Federal Executive Powers
Removal Powers - Other Officers |
May fire them, subject to limitation by federal statute.
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Federal Executive Powers
Impeachable Officers (4) |
President;
Vice President; Executive Officers; Federal Judges. |
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Federal Executive Powers
Grounds for Impeachment (3) |
Treason;
Bribery; High Crimes and Misdemeanors. |
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Federal Executive Powers
Impeachment/Conviction Procedure |
House: Impeach by majority vote.
Senate: Convict by 2/3rds vote. |
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Federal Executive Powers
Executive Immunity |
Immune from civil suit for money damages for actions take while in power.
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Federal Executive Powers
Executive Privilege |
All communications confidential BUT must yield to more important government interests.
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Federal Executive Powers
Treaty Creation Process (2) |
President negotiates treaty with foreign head of state;
Senate ratifies by 2/3rds vote. |
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Federal Executive Powers
Veto Power |
If President vetoes a bill, Congress may override by 2/3rds vote of each house.
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Federal Executive Powers
Veto - Time Limit |
President has 10 days to exercise veto power.
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Federal Executive Powers
Pocket Veto (i.e., President ignores bill) |
If President ignores bill, after 10 days:
If Congress in session: Becomes law. If Congress not in session: Vetoed. |
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Federal Executive Powers
Pardon Power |
May pardon those accused or convicted of a FEDERAL crime (not civil).
Congress cannot limit power. |
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Federal Legislative Powers
Necessary & Proper Clause |
Allows Congress to make any law appropriate to further any power granted to any branch by the Constitution.
Never grounds for new law itself. |
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Federal Legislative Powers
Commerce Power - Congress May Regulate (3) |
Channels of interstate commerce;
Persons and instrumentalities of interstate commerce; Activities substantially affecting interstate commerce. |
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Federal Legislative Powers
Commerce Power - Substantially Affecting Interstate Commerce (2) |
Local economic activity: cumulative effect.
Non-economic/non-commercial activity: no power to regulate. |
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Federal Legislative Powers
Taxation Power - Valid If (2) |
Reasonable means to produce revenue;
Congress has power to regulate taxed activity. |
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Federal Legislative Powers
Spending Power |
Spending must serve a legitimate purpose.
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Federal Legislative Powers
Conditional Grants |
Aid grants may indirectly regulate commerce that Congress cannot otherwise regulate (e.g., "Get money for roads if you implement speed limits").
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Federal Legislative Powers
Civil Rights Enforcement (14th Amd., Sec. 5) - Scope of Power (2) |
May pass remedial legislation;
Remedies must be congruent and proportional to constitutional violations. |
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Federal Legislative Powers
War and Related Powers (2) |
Can regulate economy during/after war to remedy disruptions;
May create rules for military tribunals. |
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Federal Legislative Powers
Federal Police Power Scope (4) |
Power over:
Military; Tribal land; Federal land; District of Columbia. |
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Federal Legislative Powers
Tenth Amendment |
Reserves unenumerated powers to states.
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Federal Legislative Powers
Tenth Amendment - Effect on Congress (3) |
Congress cannot:
Compel state/local legislatures to pass laws serving federal regulatory purposes; "Commandeer" state/local officers to regulate citizens in accordance with federal requirements; Subject public sector to taxes that do not affect private sector equally. |
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Federal Legislative Powers
Eleventh Amendment |
Immunizes states from civil suits for money damages or injunctive relief.
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Federal Legislative Powers
Eleventh Amendment - Exceptions (3) |
Waiver by state;
Suit against state under federal statute created pursuant to 14th Amd., sec. 5.; Damages suit against state officer acting in personal capacity. |
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Federal Legislative Powers
Legislative Veto |
Unconstitutional.
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Federal Legislative Powers
Line-Item Veto |
Unconstitutional.
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Federal Legislative Powers
Ability of Congress to Overturn Executive Action - Requirements (2) |
Bicameralism;
Presentment. |
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Preemption (Supremacy Clause)
Kinds of Preemption (Federal vs. State law) (2) |
Express preemption;
Implied preemption. |
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Preemption (Supremacy Clause)
Implied Preemption (3) |
Conflicting regulations;
Frustration of federal purpose; Occupation of the field by federal law. |
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Dormant Commerce Clause
Ability of State to Regulate Interstate Commerce (Absent Federal Action) |
Regulation cannot discriminate against or unduly burden interstate commerce.
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Dormant Commerce Clause
Intentionally Discriminatory State Action level of review |
Strict scrutiny.
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Dormant Commerce Clause
Invalidity of Non-Discriminatory Regulation |
Invalid if:
Burdens on interstate commerce outweigh benefits in furthering legitimate government interest. |
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Dormant Commerce Clause
State Taxes - Discrimination Against Out-of-State Business level of review |
Strict scrutiny.
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Dormant Commerce Clause
State Taxes - No Discrimination Against Out-of-State Business - Validity (2) |
Taxed activity has substantial nexus with state;
Tax fairly apportioned to apply only to business activities. |
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Dormant Commerce Clause
Exceptions (2) |
Congress authorized local discrimination;
State/local government is a market participant (but cannot regulate downstream, only business involved in). |
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Privileges & Immunities Clause
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State/Local governments cannot expressly discriminate against out-of-state citizens as to fundamental rights.
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Privileges & Immunities Clause - Analysis (3 steps)
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Is there a law textually discriminating?
Is there a fundamental right? Apply strict scrutiny. |
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Full Faith and Credit Clause
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Forces all states to recognize a judgment in one state.
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Full Faith and Credit Clause - Application (3)
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Court rendering judgment had personal and subject matter jurisdiction;
Judgment was on the merits; Judgment was final. |
