Jvw Conlaw Mbe

Front 1

Supreme Court Jurisdiction

Original Jurisdiction

Back 1

i. cases affecting ambassadors, public ministers, consuls
ii. cases in which a state is a party

Front 2

Supreme Court Jurisdiction

Appellate Jurisdiction

Back 2

i. writ of certiorari
- cases from state court where (a) constitutionality of state or treaty at issue, (b) state court system exhausted
ii. appeal
- decisions by 3 judge district court panel granting or denying injunctive relief

Front 3

Federal Court Jurisdiction

Case of Controversy

Back 3

i. Ripeness (threat of imminent harm)
ii. Mootness (can judge change position of the parties)
iii. Standing (harm or threat of imminent harm relating to the claim)

Front 4

Federal Court Jurisdiction

Standing

Back 4

i. threat of imminent harm
ii. claim related to the harm

Front 5

Federal Court Jurisdiction

Taxpayer Standing

Back 5

- taxpayer may contest individual tax bill
- if injury claimed is misuse of tax dollars, must claim nexus with taxpayer injury

Front 6

Federal Jurisdiction

Establishment Clause and Standing

Back 6

i. Fed may not aid or exempt based on religion
ii. taxpayer may not challenge transfer of federal property to religion
iii. taxpayer MAY challenge transfer of state property

Front 7

Lawsuits Against State Govt

11th Amendment Limitations

Back 7

- person/entity cannot sue state in federal court without state's consent
- Fed CAN sue state in federal court
- another state CAN sue in federal court

Front 8

Lawsuits Against State Govt

Permissible Lawsuits

Back 8

i. against state officials for money damages
ii. against state officials for prospective relief (orders requiring official to follow federal law)

Front 9

Federal Legislative Power

Taxing Power

Back 9

- taxes upheld if bear a reasonable relationship to revenue production or if Congress has power to regulate the taxed activity

Front 10

Federal Legislative Power

Spending Power

Back 10

i. spend for general welfare
ii. must not violate bill of rights

Front 11

Federal Legislative Power

Regulation of Interstate Commerce

Back 11

i. regulate channels and instrumentalities of interstate commerce
ii. regulate activities having substantial effect on interstate commerce

Front 12

Federal Legislative Power

War and Related Power

Back 12

i. declare war
ii. raise and support armies
iii. provide for and maintain navy

Front 13

Executive Power

Pardon Power

Back 13

i. President may grant pardons for federal offenses but not for impeachment or civil contempt
ii. pardon power may not be limited by Congress

Front 14

Executive Power

President/Congress Conflicts

Back 14

- joint resolution of Congress cannot bind President
- anything that will bind must go to President for his signature

Front 15

Executive Power - External Affairs

War

Back 15

i. P may not declare war but may act militarily without congressional declaration if actual hostilities against US
ii. C may limit P under bi-annual military appropriations

Front 16

Executive Power - External Affairs

Foreign Relations

Back 16

- P has paramount power to represent US in day-to-day foreign relations

Front 17

Executive Power - External Affairs

Treaty Power

Back 17

- negotiated by P
- ratified by 2/3 vote of Senate

Front 18

Executive Power - External Affairs

Treaty Conflicts

Back 18

Treaty v. Const - Const
Treaty v. State law - Treaty
Treaty v. Fed law - last in time prevails

Front 19

Federal Taxation/Reg of State/Local G

Tax/Reg Applies to States and Private Entities

Back 19

Valid
- C may subject state and local governments to tax/reg if law applies to both public and private sectors

Front 20

Federal Taxation/Reg of State/Local G

Tax/Reg Applies only to States

Back 20

May be limited by 10th A. EXCEPT:
i. civil rights
ii. spending power conditions/appropriations

Front 21

State Tax/Reg of Fed

Back 21

i. state may not without Congress' consent
ii. but may collect non-discriminatory tax from persons dealing with Fed

Front 22

Fed Court

Is issue justiciable?

Back 22

RAMPS
Ripe
Advisory opinions
Moot
Political questions
Standing

Front 23

Supreme Court

Adequate State Grounds

Back 23

even if state court decision involves fed question, if state court judgment can be supported on adequate state grounds, SC won't hear

Front 24

Executive Powers

Appointment

Back 24

i. exclusive power to nominate high-level officials (e.g. cabinet)
ii. Senate has power to confirm or reject
iii. C may delegate power to P to appoint inferior officers, judiciary, department heads

Front 25

Executive Powers

Removal

Back 25

i. P may remove any executive appointee without cause
ii. P must have good cause to remove fixed term officers and judicial/quasi judicial officers

Front 26

Executive Powers

Veto Power

Back 26

- once passed by C, P has 10 days to veto or it becomes law
- pocket veto allows P to just not sign in last 10 days of term
- C may override with 2/3 vote of both houses

Front 27

Executive Powers

Executive Agreements

Back 27

- compacts with foreign nations
- need not be ratified by C
- only trump state law/const

Front 28

Hierarchy of Laws

Back 28

1. US Const
2. Treaties and Fed Statutes
3. Executive Orders/Agreements
4. State Const
5. State Laws and Ordinances

Front 29

Impeachment Power

Back 29

- House has power to impeach P, VP and civil officers for conviction of treason, bribery or high crimes
- Senate tries impeachment
- 2/3 vote of Senate to convict

Front 30

Fed / State

10th Amendment

Back 30

- powers not delegated to the US in the Const, nor prohibited by it to the States, are reserved to the States

Front 31

Fed / State

Supremacy Clause

Back 31

Where C enacts legislation with intent to preempt state law, Fed reg controls

Front 32

Fed / State

Police power

Back 32

- state may regulate health, safety, welfare, morals or aesthetics

- no Fed police power (only enumerated powers)

Front 33

Fed / State

State Law Discriminates on Face Against out-of-staters

Back 33

State must show that law:
i. serves a COMPELLING state interest
ii. reg narrowly tailored to serve

Front 34

Fed / State

State Law Incidentally Burdens Interstate Commerce (but not facially discrim)

Back 34

State must show that law:
i. serves IMPORTANT state interest
ii. burden not excessive relative to interest served

Front 35

Fed / State

Discriminatory Law OK as Market Participant

Back 35

May then discriminate between in-state and out-of-state businesses

Front 36

State Power of Taxation

Interstate Commerce OK if

Back 36

i. substantial nexus between activity taxed and taxing state
ii. tax fairly apportioned
iii. tax not discriminatory against out-of-state biz
iv. tax fairly related to service provided

Front 37

State Power of Taxation

Sales Tax

Back 37

OK if sale consumated in state

Front 38

State Power of Taxation

Use Tax

Back 38

OK if sufficient nexus btwn seller and taxing state (e.g. maintains office in the state)

Front 39

State Power of Taxation

Doing Business Tax

Back 39

e.g. license, occupation

OK if relate to benefits conferred by state

Front 40

State Power of Taxation

Net Income

Back 40

OK if:
i. fairly apportioned
ii. significant nexus
iii. not discriminatory

Front 41

Civil Rights

State Action

Back 41

14th and 15th A prohibit government conduct

Private may be State Action if:
i. performing typically govt function
ii. significant state involvement, encouragement (close relationship)

Front 42

Civil Rights

13th A

Back 42

Prohibits slavery and involuntary servitude

May proscribe purely private acts of forced labor

Front 43

Fed / State

Supremacy Clause

Back 43

i. Fed law will supersede directly conflicting state law
ii. if Fed establishes minimum standard, State may enact more stringent standards

Front 44

Civil Rights

14th A Due Process Clause - amendments applicable to states

Back 44

i. 1st A - (speech, assembly, religion)
ii. 4th A - (search seizure)
iii. 5th A - (jeopardy, incrimination, takings)
iv. 6th A - (speedy trial, counsel, jury)
v. 8th A - (cruel unusual punishment)

Front 45

Civil Rights

Scope of Due Process and Equal Protection Clauses

Back 45

- protects people and corps
- includes aliens

Front 46

Civil Rights

Procedural Due Process

Back 46

if depriving of life, liberty or property, requires notice/hearing
BUT - balance private interest v govt interest to determine HOW MUCH

Front 47

Civil Rights

Substantive Due Process
Fundamental Rights

Back 47

Contraception, Abortion, Marriage, Pregnancy, Private Education, Family Relations, Travel, Vote

APPLY STRICT SCRUTINY

Front 48

Civil Rights

Substantive Due Process
Suspect Class

Back 48

Race, national origin, alienage

APPLY STRICT SCRUTINY

Front 49

Civil Rights

Substantive Due Process
Quasi-Suspect Class

Back 49

Gender, legitimacy

APPLY INTERMEDIATE SCRUTINY

Front 50

Civil Rights

Substantive Due Process
Everything Else

Back 50

Age, handicap, sexual orientation

APPLY INTERMEDIATE SCRUTINY

Front 51

Civil Rights

Strict Scrutiny

Back 51

- necessary to achieve compelling govt interest
- burden on govt
- challenger usually wins
- suspect class
**must show discriminatory intent to trigger (facially or motive, impact not enough)

Front 52

Civil Rights

Intermediate Scrutiny

Back 52

- substantially related to important govt interest
- burden on govt
- when in doubt, challenger wins
- quasi-suspect class
**must show discriminatory intent to trigger (facially or motive, impact not enough)

Front 53

Civil Rights

Rational Basis Test

Back 53

- rationally related to legitimate govt interest
- burden on challenger

Front 54

Civil Rights

Affirmative Action Measures (race)

Back 54

- subject to strict scrutiny
- only upheld to (i) remedy effects of past or present discrim in that school or (ii) achieve student body diversity in institute of higher ed

Front 55

Civil Rights

Fundamental Rights - Privacy

Back 55

i. Family rights (parents override grandparents)
ii. Abortion
iii. Reproductive rights

Front 56

Civil Rights

Abortion Rights

Back 56

PRE-VIABILITY
- Govt may regulate if not undue burden on woman's right to choose
POST-VIABILITY
- Govt may regulate or ban if protect life of mother

Front 57

Civil Rights

Right to Vote

Back 57

- restrictions subject to strict scrutiny

DOES NOT APPLY TO AGE, RESIDENCY RESTRICTIONS FOR CANDIDATES

Front 58

Civil Rights

Right to Interstate Travel

Back 58

Good faith residency requirement without waiting period OK under rational basis

Durational requirement apply strict scrutiny and invalidate if > 6 months

Front 59

Retroactive Legislation

Contract Clause

Back 59

No state shall pass a law impairing obligation of contract

exception if narrowly tailored to serve important public interest

Front 60

Retroactive Legislation

Ex Post Facto Laws

Back 60

No retroactive criminal laws

i. makes criminal an act not a crime when committed
ii. prescribes greater punishment after commission
iii. decreases evidentiary standard
iv. extends statute of limitations when it has already expired

Front 61

Retroactive Legislation

Bill of Attainder

Back 61

no legislative acts that inflict punishment upon named individuals or easily discernable group for past conduct

Front 62

First Amendment

Establishment Clause

Back 62

If govt program prefers one religion over others, strict scrutiny applies

If no preference, apply Lemon test

Front 63

First Amendment

Lemon Test

Back 63

i. statute must have secular purpose
ii. effect or purpose must not be to advance or inhibit religion
iii. statute must not foster excessive govt entanglement

Front 64

First Amendment

Free Exercise Clause

Back 64

Person may not be denied benefits or punished based on religious belief
Regulations OK if generally applicable and not to purposely interfere

Front 65

First Amendment

Speech Restrictions - Time Place Manner

Back 65

OK if:
i. content neutral (subject and viewpoint)
ii narrowly tailored to serve significant govt interest
iii. leave open alternative channels of communication

Front 66

First Amendment

Speech in Non-Public Forums (e.g. military base, school , govt office)

Back 66

May regulate if
i. viewpoint neutral and
ii. reasonably related to legitimate govt purpose

Front 67

First Amendment

Regulation of Content - OK if unprotected speech

Back 67

i. inciting lawless action
ii. fighting words
iii. obscenity
iv. child pornography
v. certain commercial speech
vi. defamatory

Front 68

First Amendment

Obscenity (Miller Test)

Back 68

i. prurient interest to average person in community
ii. patently offensive
iii. no serious value as a whole (reasonable person standard)

Front 69

First Amendment

Commercial Speech Protected If

Back 69

i. not false or deceptive
ii. doesn't relate to unlawful activity

Front 70

First Amendment

Commercial Speech - Regulate OK if

Back 70

no more extensive than necessary to advance a substantial govt interest

Front 71

First Amendment

Defamation of Private Person

Back 71

if matter of public concern, P must prove negligence about truth or falsity of statement

Front 72

First Amendment

Defamation of Public Person

Back 72

P must prove malice
- knowledge of falsity or
- reckless disregard

Front 73

First Amendment

Denial of Public Employment Based on Political Membership

Back 73

- unless a highlevel policymaking position, only deny if active member in subversive group

Front 74

First Amendment

Pre-emptive Restraints on Speech

Back 74

Government cannot suppress or restrain speech in advance of the publication or utterance