Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
134 Cards in this Set
- Front
- Back
Requirements for Case and Controversies (justiciability doctrines)
|
1. Standing
2. Ripeness 3. Mootness 4. Not a political question |
|
Standing: Plaintiff must allege and prove
|
1. Personally has been or imminently will be injured by government action
2. A favorable decision will likely redress the injury |
|
No third party standing unless
|
1. Certain close relationships (dr./patient)
2. Injured party unlikely able to assert their own rights (D can raise rights of potential jurors) 3. An organization may sue for its members |
|
An organization may sue for its members if
|
1. The members would have standing to sue
2. The interests are germane to the organization's purpose AND 3. Neither the claim nor relief requires participation of individual members |
|
No generalized grievances (b/c no standing)
|
Plaintiff may not sue solely as a citizen or as a taxpayer to force government to follow the law
|
|
Exception to no generalized grievances
|
Taxpayers have standing to challenge government expenditures as violating the Establishment clause (very narrow - limited to money, not land)
|
|
Exceptions to mootness
|
1. Wrong capable of repetition but evading review
2. Voluntary cessation by defendant that could start again at any time 3. Class action suits (at least one member of the class must have an on-going injury) |
|
Political Questions
|
1. "Republican form of government clause"
2. Challenges to the President's conduct of foreign policy 3. Challenges to the impeachment and removal process 4. Challenges to partisan gerrymandering |
|
Supreme Court accepts cases from state courts and US courts of appeals by
|
Writ of Certiorari
|
|
The Supreme Court has original and exclusive jurisdiction for
|
Suits between state governments
|
|
Review of three-judge federal district courts
|
Immediately appealable to Supreme Court, skips court of appeals
|
|
Supreme Court can hear a case under its appellate jurisdiction when
|
there has been a final judgment from the highest state court, US court of appeals
no interlocutory review |
|
For the Supreme Court to review a state court decision there cannot be
|
Adequate and Independent state law ground of decision (reversal of the federal rule will not change the result)
|
|
mootness
|
If events after the filing of a lawsuit end the plaintiff's injury,
the case must be dismissed as moot. P must present a LIVE CONTROVERSY at all stages of the proceeding. |
|
Eleventh Amendment bars
|
Suits against states in federal courts
|
|
Principle of sovereign immunity
|
States cannot be named as a Defendant in state courts or federal agencies
|
|
Exceptions to sovereign immunity
|
- Consent (waiver must be explicit)
- Congress has permitted a suit pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment - Federal government may sue state governments |
|
state officers may be sued for
|
- For injunctive relief
- For money damages paid personally (but not if the state treasury would be paying retroactive damages) |
|
Define Abstention
|
Federal courts may not enjoin pending state court proceedings unless the suit was brought merely to harass
|
|
Commerce Power allows Congress to act through
|
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce 3. To regulate economic activities that have a Substantial Impact on interstate commerce |
|
Tenth Amendment
|
Limit on Congressional powers; cannot compel state regulatory or legislative action
|
|
Legislative action requires
|
Passage by both the House and Senate and presentation to the President (to sign or veto)
|
|
Ability of Congress to delegate powers
|
No limits to delegate legislative powers
Cannot delegate executive power to itself or officers |
|
Treaty creation
|
Negotiated by the President and effective when ratified by Senate
|
|
Treaty vs. state laws
|
Treaty prevails
|
|
Treaty vs. federal statute
|
More recent one controls
|
|
Treaty vs. US Constitution
|
A treaty in conflict with the Constitution is invalid
|
|
Executive agreements effective when
|
When signed by the President and head of the foreign nation (no Senate approval required)
|
|
President has the power to appoint
|
1. Ambassadors
2. Federal Judges 3. Officers of the US Needs consent of senate |
|
appointment of inferior officers
|
Congress can vest power in the President, heads of departments, or lower federal courts
May not give itself or its officers the appointment power |
|
President's removal power of any executive branch office
|
is absolute unless limited by statute
|
|
How do you distinguish Substantive Due Process from Equal Protection?
|
• SDP - limits liberty of all persons to engage in some activity
• EP - law treats a person or class of persons differently |
|
For Congress to limit President's removal power
|
1. Must be an office where independence from the President is desirable
AND 2. Cannot prohibit removal, only authorized to limit removal for good cause |
|
President's immunity from suit
|
- Absolute immunity to civil suits for money damages for actions while in office
- No immunity for actions that occurred prior to taking office |
|
Executive privilege
|
Covers papers and conversations but must yield to other important government interests
|
|
President's power to pardon extends to
|
Those accused or convicted of federal crimes
Does not extend to state crimes or civil liability |
|
Implied preemption: Federal law preempts state law where
|
1. Federal and state laws are mutually exclusive
2. State law frustrates a federal objective 3. Congress evidences a clear intent to preempt |
|
Ability of states to tax and regulate federal government activity
|
States prohibited
|
|
state law that discriminates against out-of-staters
|
it violates the DCC unless it is necessary to achieve an important gov’t purpose.
Violates P&I of article IV if it applies to citizens ability to earn living, unless necessary for important goverment purpose |
|
Analysis of a state law that discriminates against out-of-staters
|
- Does it burden interstate commerce?
- Yes: Is it necessary to achieve an important government purpose? - Yes: valid (must show there is no less discriminatory way) - No: Violates DCC |
|
Market Participant Exception
|
A state/local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses
|
|
Two exceptions to a law that discriminates against out of staters not necessary to achieve an important government purpose
|
1. Congressional approval
2. Market participant exception |
|
Laws that discriminate against out-of-staters ability to earn their livelihood violate
|
Violates the Article IV Privileges and Immunities clause UNLESS necessary to achieve an important government objective
|
|
Privileges and Immunities clause prohibited from use by
|
1. Corporations
2. Aliens |
|
Full faith and credit so long as
|
1. Court rendering judgment had jurisdiction
2. Judgment was on the merits 3. Judgment is final |
|
State tax systems may not be used to
|
Help in state business
|
|
Can the Gov require a license for speech?
|
• Yes - ONLY IF there is an important reason for licensing and clear criteria leaving ALMOST NO discretion to the licensing authority.
• Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses AND judicial review. |
|
States may only tax activities that have
|
A substantial nexus to the state
|
|
State taxation of interstate business must be (3)
|
Fairly apportioned
Have a substantial nexus to the state Not used to help in-state businesses |
|
Can the Gov regulate conduct that = symbolic speech?
|
= can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
|
|
Prohibitions on private race discrimination valid under
|
Thirteenth Amendment
|
|
Situations where private conduct must comply with the Constitution
|
1. Public function exception
2. Entanglement exception 3. If ordered by congress (e.g. commerce clause, 13th amendment) |
|
Public Function exception
|
Private entity is performing a task traditionally, exclusively done by the government
|
|
Entanglement exception
|
Government affirmatively authorizes, encourages, or facilitates unconstitutional activity
|
|
What is the 3 part test for determining whether something qualifies as obscene?
|
MUST meet ALL of these requirements:
(1) The material must appeal to the prurient interest (= shameful or morbid interest in sex) (2) Material must be patently offensive under the law prohibiting obscenity (ANY law must delineate which depictions would qualify as patently offensive) (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (= value determined by a NATIONAL standard & NOT a local value) |
|
Levels of scrutiny
|
- Rational Basis test
- Intermediate scrutiny - Strict scrutiny |
|
Rational Basis Test
|
Rationally related to a legitimate government purpose
|
|
Intermediate Scrutiny
|
Substantially related to an important government purpose
|
|
Strict Scrutiny
|
Necessary to achieve a compelling government purpose
government must show no other less restrictive alternative is available |
|
Burden of Proof:
- Rational Basis - Intermediate Scrutiny - Strict Scrutiny |
- Rational Basis: challenger
- Intermediate Scrutiny: government - Strict Scrutiny: government |
|
Deprivation of liberty occurs if
|
There is the loss of a significant freedom provided by the Constitution
Loss of reputation is not a loss of liberty |
|
Deprivation of property occurs where
|
There is an entitlement and it is not fulfilled
|
|
In emergency situations the government is liable under due process only if its conduct
|
Shocks the conscience- intent to cause harm
|
|
What are the 2 Exceptions to the Gov's ability to regulate/limit profane or indecent speech?
|
i) over the broadcast media
ii) in schools |
|
Standard of conduct for government liability for a deprivation of due process
|
Governmental action must be intentional or at least reckless; negligence will not suffice for due process claim
|
|
Balancing test for procedures required to satisfy due process
|
- Importance of individual's interest
- Government's interest - Ability of additional procedures to increase the fact-finding |
|
Level of protection for economic liberties
|
Minimal; only apply rational basis test for laws affecting economic rights
|
|
What level of scrutiny for commercial speech?
|
intermediate scrutiny
= Gov regulation must be narrowly tailored, but it does not need to be the least restrictive alternative. |
|
Takings clause
|
Governemnt may take private property for public use if it provides just compensation
|
|
Two kinds of governmental takings
|
1. Possessory - no matter how minimal
2. Regulatory - a regulation leaves no reasonable economically viable use of the property |
|
Just compensation measured by
|
FMV of property at time of the taking
Loss to the owner; not gain to the taker |
|
the contracts clause applies to
|
only to state or local interference with existing contracts
|
|
Level of scrutiny where state or local government interferes with private contracts
|
Intermediate scrutiny
Does it substantially impair rights under the existing K? Is the law a reasonably and narrowly tailored means of promoting an important public interest |
|
Level of scrutiny where state or local government interferes with government contracts
|
Strict Scrutiny
|
|
Standard of Review - Privacy
|
Strict scrutiny
|
|
Fundamental right of privacy found in
|
- Right to marry
- Right to procreate - Right to custody of one's children - Right to keep the family together - Right to control the upbringing of one's children - Right to purchase and use contraceptives/ abortion |
|
Right to Abortion: Prior to Viability
|
- State may not prohibit
- May regulate so long as the regulation does not create an undue burden on obtaining an abortion |
|
Right to Abortion: After Viability
|
State may prohibit UNLESS necessary to protect the woman's life/health
|
|
Spousal consent and notification laws for abortion
|
Unconstitutional
|
|
Privacy rights not afforded strict scrutiny
|
- Right to engage in homosexual activity
- Right to refuse medical treatment -Abortion (undue burden test) |
|
Classifications based on Race and National Origin
|
Strict scrutiny
|
|
Classifications benefiting minorities
|
Strict scrutiny
|
|
What is the extent of the federal police power?
|
No general police power.
Congress IS acting under police power if it is legislating for: 1. the MILITARY, 2. INDIAN RESERVATOINS, 3. FEDERAL LANDS and TERRITORIES, or 4. the DISTRICT of COLUMBIA Exam tip: “MILD” – congress doesn’t have a strong police power – just a MILD one. |
|
Classifications based on Gender
|
Intermediate scrutiny
|
|
How is the existence of a law classification proven
|
- Discrimination exists on the face of the law
- Law is facially neutral, but there is both a discriminatory intent and impact |
|
Classifications based on Alienage
|
Strict scrutiny
|
|
Standard of review for alienage classifications that concern self-government and the democratic process
|
Rational Basis test
|
|
Government may discriminate against non-citizens for
|
- Voting
- Juries - Probation officer - Teacher - Police officer |
|
Classifications based on undocumented alien children
|
Intermediate scrutiny
|
|
Classifications against non-marital children
|
Intermediate scrutiny
(Generally, uphold if it discriminates between different types of nonmarital kids; strike if it discriminates between marital and nonmarital kids) |
|
Can Congress induce state regulatory action? Explain.
|
Yes. Congress can induce state government action by putting strings on grants, so long as:
1. conditions are expressly stated and 2. those conditions relate to the purpose of the spending program Exam tip: inducement is OK, but compelling is not. |
|
Rational basis used for
|
- Age
- Disability - Wealth - Economic Regs - Sexual orientation discrimination |
|
Standard of review for fundamental rights
|
Strict scrutiny
|
|
Fundamental rights protected under Equal Protection
|
- Right to travel
- Right to vote - Right to privacy |
|
Two types of content-based restrictions on speech
|
1. Subject matter restriction
2. Viewpoint restriction |
|
Standard of review for content based restrictions
|
Strict scrutiny
|
|
Standard of review for content neutral laws burdening speech generally
|
Intermediate scrutiny
|
|
Unprotected/less protected speech
|
- Incitement of illegal activity
- Obsencity and sexually-oriented speech |
|
Incitement of illegal activity test
|
1. The speech is directed to causing imminent illegal activity
AND 2. Substantial likelihood of imminent illegal activity |
|
Commercial speech for illegal activity or false and deceptive ads
|
Not protected by the First amendment
|
|
Government regulation of commercial speech
|
- Must be narrowly tailored
- Need NOT be the least restrictive alternative |
|
Regarding privacy, no liability for (1A context)
|
- Truthful reporting of lawfully obtained material, OR
- Matters of public importance |
|
Speech for Government employees on the job or in the performance of duties
|
Not protected
|
|
Regulations on Public forums and designated public forums
|
- Limited to time, place, manner restrictions
- That serve an important government purpose- intermediate scrutiny AND - Leaves open adequate alternatives for communication -Must be view point and subject matter neutral |
|
Regulations on limited Public Forums
|
1. rational basis
2. viewpoint neutral |
|
Regulations for non-Public forums
|
Government can regulate so long as the regulation is
1. rational basis 2. viewpoint neutral |
|
Standard of review for laws that prohibit or punish freedom of association
|
Strict scrutiny
|
|
To punish membership in a group must prove (3)
|
1. Actively affiliated with the group
2. Knowing of its illegal activities AND 3. Has the specific intent of furthering those illegal activities |
|
What is the Privileges & Immunities clause of Article IV?
|
no state may deprive citizens of other states of the P & Is that it affords its own citizens.
An anti-discrimination provision - limits ability of a state to discriminate against out-of-staters |
|
Standard of review for laws that require disclosure of group membership
|
Strict scrutiny
|
|
Laws that prohibit a group from discriminating are constitutional UNLESS (2)
|
- They interfere with intimate associations
OR - Expressive activity |
|
If a law does not discriminate against out of staters, is the P&I clause involved? Dormant commerce clause?
|
If the law doesn’t discriminate against out-of-staters, the P&I clause of Article IV does NOT apply!
But if the law burdens interstate commerce, it DOES violate the dormant commerce clause IF its burdens exceed its benefits (Balancing test of burdens and benefits) |
|
The free exercise clause cannot be used to challenge
|
A neutral law of general applicability
|
|
The Establishment clause test (3)
|
1. Secular purpose
2. Effect neither advances nor inhibits religion 3. No excessive entanglement with religion |
|
Standard of review for discrimination against religious speech
|
Strict scrutiny
|
|
plaintiff's seeking injunctive or declaratory relief must show
|
a likelihood of future harm
|
|
best standing for MBE
|
1. actual injury, and
2. economic loss |
|
What are the 3 main rules about State Taxation of Interstate Commerce that we need to know?
|
1. States may not use their tax systems to help in-state businesses
2. A state may only tax activities if there is a substantial nexus to the state 3. State taxation of interstate businesses must be fairly apportioned. |
|
Does the federal government have to comply with state & local laws? What is this principle called?
|
NO
intergovernmental immunity |
|
what is ripeness
|
whether a federal court can grant pre-enforcement review of a statute or regulation
|
|
considerations for ripeness
|
1. the hardship that will be suffered without a pre-enforcement review
2. the fitness of the issues and the record for judicial review |
|
rule regarding the ability of congress to tax and spend
|
for the general welfare
|
|
Executive agreement vs. state law
|
executive agreement controls
|
|
Executive agreement vs. federal statute
|
federal statute controls
|
|
executive agreement can be used for
|
any purpose
|
|
what does entitlement mean for deprivation of property purposes
|
a reasonable expectation to continued receipt of a benefit
|
|
Government liability failure to protect from privately inflicted harm
|
- Not a violation of due process
- Only a duty to protect when the government creates the danger or a person is in government custody |
|
parental notice and consent of an unmarried minors abortion
|
may require notice and consent if as an alternative can go before a judge who can approve the abortion if
1. it was in the minor's best interest, or 2. the minor was mature enough to decide for herself |
|
numerical set-asides benefiting minorities require
|
clear proof of past discrimination
|
|
gender classifications that benefit women
|
based on role stereotypes- not allowed
remedy past discrimination or differences in employment opportunity- are allowed |
|
federal enumerated powers
|
1. commerce clause
2. taxing power 3. spending power |
|
first amendment vagueness
|
- the law lacks clarification on what speech is prohibited
- fighting words laws are always void for vagueness |
|
first amendment overbreadth
|
the law prohibits too much speech in order to achieve the objective
|
|
prior restraint on free speech
|
strict scrutiny
1. definite and certain criteria 2. no absolute power in government officer to determine 3. must be an appeal option |