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114 Cards in this Set

  • Front
  • Back
What are the justicability issues?
Standing,

Ripeness,

Mootness,

Political Question
Requirements for Standing
Proper plaintiff requires:

i. injury (or imminent injury),

ii. causation

iii. redressability,

(no third party standing, no generalized grievances)
Best standing
personal injury such as economic loss
Injury required for Standing
personal injury;

injunctive or declaratory relief must show a likelihood of future harm
Exceptions to prohibition against third party standing
i. close relationship (e.g. doctor/patient);

ii. Injured party unlikely to be able to assert his own rights;

iii. Organizations may sue for members
Requirements for Organizations to Sue on Behalf of Members
i. members would have standing;

ii. interests are germane to organization's purpose;

iii. neither claim nor relief requires participation of individual members
General grievances
Plaintiff must not be suing solely as citizen or taxpayer
Exceptions to prohibition of general grievances
Taxpayers may challenge govt. expenditures pursuant to federal statutes as violating the Establishment Clause (but not for equipment)
Ripeness
Federal court may grant pre-enforcement review of statute only if:

i. Hardship will be suffered without review;

ii. The issue and record are fit for review
Mootness
If events after filing of a lawsuit end plaintiff’s injury, the case must be dismissed as moot
Exceptions to Mootness
i. wrong capable of repetition but evading review (e.g. abortion)

ii. voluntary cessation (where activity could resume at any time)

iii. class action suits (so long as one member of class is still injured)
Political Questions which federal courts will not adjudicate
1. Republican form of govt. clause

2. Challenges to President’s conduct of foreign policy

3. Challenges to the impeachment/removal process

4. Challenges to partisan gerrymandering
Methods of Supreme Court review
1. Writ of certiorari (final judgment by highest state court or US Court of Appeals)

2. Appeals for decisions of three-judge federal district courts

3. Original jurisdiction for suits between states
When Supreme Court will not hear a state case
i. If there is an adequate state law ground of the decision.

ii. If a state court decision rests on two grounds, one on federal law and one on state law, and the SC’s reversal of the federal law ground will not change the result.
Sovereign Immunity
Federal courts, state courts, and federal agencies may not hear suits against state governments (11th Amendment)
Exceptions to Sovereign Immunity
i. Waiver (or consent)

ii. States may be sued pursuant to federal laws if adopted under the 14th Amendment

iii. Federal govt. may sue state governments

iv. Bankruptcy proceedings
Suits against state officers
Allowed for:

i. injunctive relief

ii. money damages to be paid out of their own pockets

iii. may not be sued if state treasury would be paying retroactive damages.
Abstention
Federal courts may not enjoin pending state court proceedings
Express or implied source of Congressional Power
1. Necessary and proper clause

2. Taxing/Spending power

3. Commerce power

4. Only M.I.L.D. police power (Military bases, Indian reservations, federal Land or territory, D.C.)
Necessary and proper clause
Congress may use any means reasonably designed to carry out its policy
Taxing & Spending power
Congress may enact any taxing and spending for the general welfare
Commerce Power
i. Congress may regulate the CHANNELS of interstate commerce

ii. Congress may regulate the INSTRUMENTALITIES of interstate commerce and persons or things in interstate commerce

iii. Congress may regulate ECONOMIC ACTIVITIES that have a SUBSTANTIAL EFFECT on interstate commerce (but non-economic activity cannot be aggregated)
Tenth Amendment effect on Congressional power
All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people

Congress cannot compel state regulatory or legislative action (but can incentivize it)

Congress may prohibit harmful commercial activity by state govts.
Congress’s power under section 5 of the 14th Amendment
Congress may not create new rights or expand the scope of rights.

Congress may act only to prevent or remedy violations of rights recognized by the courts; such laws must be proportionate and congruent to remedying constitutional violations.
Congress’s ability to delegate power
No practical limitation exists

May not delegate executive power to itself or its officers
Legislative vetos and line item vetos
Legislative vetos and line item vetos are unconstitutional.

All Congressional action requires bicameralism and presentment to the President.
Treaties
Agreements negotiated by the President, ratified by the Senate
Conflict with Treaties
a. Treaties prevail over conflicting state law

b. If treaty conflicts with federal statute, the one adopted last in time controls

c. If treaty conflicts with US Constitution, treaty is invalid
Executive agreements
Agreements between US and foreign country effective when signed by President and the head of a foreign nation
Conflict with Executive agreements
a. Executive agreements prevail over conflicting state laws

b. Executive agreements never prevail over conflicting federal laws or the US Constitution
President’s power as Commander in Chief
This is a non-justicable political question.

President’s military actions have never been declared unconstitutional.
President’s appointment power
i. President appoints ambassadors, federal judges, and officers of the U.S.

ii. Congress may vest appointment of inferior officers in President, the heads of departments, or lower federal courts

iii. Congress may not give itself the appointment power.
President’s removal power
President may fire any executive branch office unless limited by statute.

Congress can only limit removal to where there is a) good cause, and b) independence is desirable.
Reasons for Impeachment
President, VP, and federal judges and officers can be impeached and removed for:

i. treason

ii. bribery

ii. high crimes and misdemeanors
Procedure of impeachment
i. Majority vote of House of Representatives

ii. conviction in Senate by 2/3 vote
Presidential immunity
President has immunity for civil suits for money damages for actions while in office (not prior to taking office.

Executive privilege for presidential papers (but privilege must yield to other important govt. interests

President can pardon those accused or convicted of federal crimes.
Preemption
Supremacy Clause of Article VI provides that federal law outranks state law
Forms of preemption
1. Express preemption

2. Implied preemption
Forms of implied preemption
a. if federal and state laws are mutually exclusive, federal law preempts

b. if state law impedes the achievement of a federal objective

c. if Congress evidences a clear intent to preempt state law (i.e. federal law occupies the whole field)
Dormant Commerce Clause
State/local law is unconstitutional if it places an undue burden on interstate commerce.
Privileges and Immunities Clause of Article IV
A state can’t deny citizens of other states the same privileges and immunities that it provides its own citizens.

Includes civil liberties and economic activities.

Doesn’t apply to corporations or aliens
Privileges and Immunities Clause of Fourteenth Amendment
Provides the right to travel.
If state law does not discriminate against out-of-staters…
a. Privileges and Immunities Clause of Article IV doesn’t apply.

b. If law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed benefits
If state law does discriminate against out-of-staters…
a. it violates the dormant commerce clause unless necessary to achieve an important govt. purpose

b. if it discriminates against their ability to earn a living, it violates the privileges and immunities clause of the Article IV unless necessary to achieve an important govt. purpose
Exceptions to Dormant Commerce Clause
i. Congressional approval

ii. Market Participant exception
State taxation of interstate commerce
1. States cannot use tax system to help in-state businesses

2. State may only tax activities if there is a substantial nexus to the state

3. State taxation of interstate business must be fairly apportioned
Full Faith and Credit
Courts must give FF&C to judgments of courts in another state so long as:

1. the rendering court had proper jurisdiction

2. the judgment was on the merits

3. the judgment was final
Thirteenth Amendment
Can be used to prohibit private racial discrimination

Authorizes Congress to create anti-racial discrimination statutes
Ways Congress can apply constitutional norms to private conduct
13th Amendment

Commerce power

NOT section 5 of the Fourteenth Amendment (which applies only to state and local govt. actions)
Situations where private conduct must comply with the Constitution
Public function exception

Entanglement exception (doesn’t include mere subsidies)
Bill of Rights Amendments not applicable to states
Third Amendment (soldier quartering)

Fifth Amendment (grand jury indictment)

Seventh Amendment (jury trial in civil cases)

Eighth Amendment (excessive fines)
Levels of scrutiny
1. Rational Basis test

2. Intermediate Scrutiny

3. Strict Scrutiny
Rational Basis scrutiny
Law will be upheld if RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT PURPOSE.

Challenger has burden of proof.

Govt. usually wins
Intermediate Scrutiny
Law will be upheld if SUBSTANTIALLY RELATED to an IMPORTANT GOVERNMENT PURPOSE.

Must be narrowly tailored.

Govt. has burden of proof.
Strict Scrutiny
Law will be upheld if NECESSARY to achieve a COMPELLING GOVERNMENT INTEREST.

Must be no less restrictive alternative available.

Govt. has burden of proof.

Challenger usually wins.
Procedural due process questions
1. Has there been a deprivation of life, liberty, or property?

2. If yes, what procedures must the govt. supply? (e.g. notice + hearing)
Test to determine whether govt. due process procedures are sufficient:
Balance the following:

i) importance of the interest to the individual

ii) ability of additional procedures to increase accuracy of fact-finding

iii) the government’s interests
Test for laws affecting economic rights
Rational basis test
Takings clause
Government may

a. take private property

b. for public use

c. if it provides just compensation
Types of government takings
1. possessory taking (confiscation or physical occupation)

2. regulatory taking (regulation leaves NO reasonable economically viable use)
Contracts Clause
No state or local govt. shall impair the obligations of contracts (doesn’t apply to federal law).

Apply intermediate scrutiny
Intermediate scrutiny for private contracts
Does legislation substantially impair a party’s rights under an existing contract?

If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
Level of scrutiny for government contracts
Strict scrutiny
Ex post facto clause applies to…
Criminal cases only (not civil cases).

Retroactive civil liability only need meet a rational basis test.
Fundamental Privacy Rights
1. right to marry

2. right to procreate

3. right to custody of one’s kids

4. right to keep family together

5. right to raise kids

6. right to contraceptives

7. right to abortion

8. right to homosexual activity

9. right to refuse medical treatment
Right to abortion
Prior to viability, states may regulate but not prohibit abortions

No duty to subsidize abortions

Spousal consent laws are unconstitutional

Parental notice for unmarried minors ok if there’s an alternative procedure

Levels of scrutiny for laws on right to travel
1. Laws preventing people from moving into a state: strict scrutiny

2. Durational residency requirements: strict scrutiny

3. Restrictions on foreign travel: rational basis
Right to vote
i. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud need only be on balance desirable.

ii. one person/one-vote for all state/local elections

iii. at large elections are constitutional unless there is proof of discriminatory purpose
Approach to Equal Protection questions
1. What is the classification?

2. What level of scrutiny should be applied?

3. Does this law meet the level of scrutiny?
Equal Protection clause of the 14th Amendment applies to…
Only state and local governments
Equal protection applies to the federal government through…
The due process clause of the 5th Amendment
Scrutiny level of classifications based on RACE and NATIONAL ORIGIN
Strict scrutiny
How is the existence of racial classification proven?
a. the classification exists on the face of the law; or

b. discriminatory impact AND discriminatory intent (or else only rational basis scrutiny is used)
How may racial classifications be applied?
a. strict scrutiny

b. numerical set-asides require clear proof of past discrimination

c. Educational institutions may use race as one factor in admissions decisions to help minorities

d. Public schools may not use race in assigning students to schools (unless strict scrutiny is met)
Scrutiny level of classifications based on GENDER
Intermediate Scrutiny

+

"exceedingly persuasive justification"
How is gender classification proven?
a. the classification exists on the face of the law; or

b. discriminatory impact AND discriminatory intent (or else only rational basis scrutiny is used)
How may gender classifications be applied?
a. gender classifications benefiting women that are based on stereotypes are not allowed.

b. gender classifications designed to remedy past discrimination and differences in opportunity are allowed.
Scrutiny level of classifications based on ALIENAGE
Strict Scrutiny (generally)
Exceptions to general scrutiny level of classifications based on alienage
i. Rational basis test for classifications that concern self-government and the democratic process (voting, jury duty, police officer, public teacher, probation officer)

ii. Rational basis test for Congressional discrimination against aliens

iii. Intermediate scrutiny for discrimination against undocumented alien children
Scrutiny level of classifications based on LEGITIMACY
Intermediate Scrutiny
Unconstitutional discrimination against non-marital children
Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional
Types of discrimination receiving RATIONAL BASIS review
Age

Disability

Wealth

Economic Regulations

Sexual Orientation

Alienage classifications related to self-govt and democratic process

Congressional regulation of aliens
Types of discrimination receiving INTERMEDIATE SCRUTINY
Gender

Illegitimacy

Undocumented alien children
Types of discrimination receiving STRICT SCRUTINY review
Race

National Origin

Alienage (generally)

Travel (but not foreign travel

Voting
Types of content-based restrictions on speech
1. subject matter restrictions (topic)

2. viewpoint restrictions (ideology)
Level of scrutiny for content-neutral restrictions on speech
Intermediate Scrutiny
Level of scrutiny for court orders suppressing speech
Strict Scrutiny
What is necessary in order for the government to require license for speech?
1. Important reason for licensing

2. clear criteria for license

3. almost no discretion to licensing authority

4. procedural safeguards such as prompt determination of requests and judicial review
Vague
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
When can the government regulate symbolic speech?
1. If govt has an important interest unrelated to suppression of the message; and

2. If impact on communication is no greater than necessary to achieve govt’s purpose.
Speech that is unprotected (or less protected) by First Amendment
1. Incitement of illegal activity

2. Obscenity / sexually-oriented speech

3. Commercial speech

4. Defamation

5. Speech by govt. employees on the job
Test for Obscenity
i. material must appeal to the prurient interest (local standard)

ii. material must be patently offensive under the law prohibiting obscenity; and

iii. take as a whole, material must lack serious redeeming artistic , literary, political, or scientific value (national standard)
Prurient interest
A shameful or morbid interest in sex
Permissible government activity regarding obscene materials
1. may use zoning to regulate location of adult bookstores and movie theaters

2. may ban child porn

3. may not punish private possession of obscene materials (other than child porn)

4. may seize all assets of businesses convicted of violating obscenity laws

5. may not ban profane speech (other than over broadcast media and in schools)
Govt regulation of commercial speech
a. Advertising that is false, deceptive, or for illegal activity may be banned

b. May prevent professionals from using a trade name

c. may prohibit attorneys from in-person solicitation of clients for profit

d. may regulate other commercial speech if intermediate scrutiny can be met

e. regulation must be narrowly tailored, but doesn’t need to be least restrictive alternative
Defamation standard for public official (or one running for public office)
Falsity
+
Actual malice
Defamation standard for public figure (Kobe Bryant, Tom Hanks, Lady Gaga, etc.)
Falsity
+
Actual malice
Defamation standard for private person if matter is of public concern
Falsity
+
Neligence
+
Actual malice (if π wants punitive damages)
Defamation standard for private person if matter is NOT of public concern
Negligence (no actual malice required)
Private information
Truthful reporting of info lawfully obtained from govt. is okay

Media may broadcast tape of illegally intercepted call if the media didn’t participate in the illegality and it involves a matter of public importance

Govt. may limit dissemination of info to protect privacy
Places for speech
1. public forums (sidewalks and parks)

2. designated public forums (school facilities)

3. limited public forums

4. non-public forums (airports, military bases, outside prisons, sidewalks on post office property)
Regulation of public forums
a. must be subject matter and viewpoint neutral (or meet strict scrutiny)

b. must be a time, place, or manner regulation

c. must serve an important govt interest

d. must leave open adequate alternative place for communication

e. need not be least restrictive (just narrowly tailored)
Regulation of designated public forums
a. must be subject matter and viewpoint neutral (or meet strict scrutiny)

b. must be a time, place, or manner regulation

c. must serve an important govt interest

d. must leave open adequate alternative place for communication

e. need not be least restrictive (just narrowly tailored)
Regulation of limited public forums
a. must be reasonable

b. must be viewpoint neutral
Regulation of non-public forums
a. must be reasonable

b. must be viewpoint neutral
What must be proven to punish membership in a group?
a. actively affiliated with group

b. knowing of group’s illegal activities; and

c. with specific intent of furthering those illegal activities
Laws requiring disclosure of group membership where disclosure would chill association
Must meet strict scrutiny
Laws prohibiting a group from discriminating are constitutional unless
Unlesshe law intereferes with

1. intimate association (e.g. dinner party)

2. expressive activity (e.g. Nazis, KKK)
Free exercise clause
a. free exercise clause cannot be used to challenge a neutral law of general applicability

b. government may not deny benefits to individuals who quit their jobs for religious reasons
Establishment Clause test to determine if laws are constitutional
i. must be a secular purpose

ii. effect must neither advance or inhibit religion; and (no symbolic endorsement or religion or a particular religion)

iii. must not be excessive entanglement with religion
Govt. regulation of speech under the Establishment Clause
Govt. may not discriminate against religious speech or among religions unless strict scrutiny is met
Govt. support of parochial schools
Govt. may give assistance to parochial schools, so long as it is not used for religious instruction

Govt. may provide vouchers which parents use for parochial schools
Effect of Establishment Clause on public schools
Govt sponsored religious activity (like school prayer) is unconstitutional

Religious student and community groups must have same access to school facilities as non-religious groups