Mbe Con Law

Front 1

Justiciability A SPERM

Back 1

1. Abstention: fed ct can't enjoin pending state court proceeding

2. Standing: personal & direct injury; causation; redressibility

3. Political Question: cannot adjudicate

4. Eleventh A/Sovereign Immunity: States can't be sued in federal court unless fed gov't sues, express waiver, or congress removes immunity

5. Ripeness: violation of law

6. Mootness: live controversy

Front 2

Standing: Plaintiff must allege and prove (Pickled Donuts Cause Reflux)

Back 2

1. Personal & Direct INjury

2. Causation

3. Redressibility

Front 3

No third party standing unless

Back 3

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

Front 4

An organization may sue for its members if

Back 4

1. The members 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

Front 5

No generalized grievances (b/c no standing)

Back 5

Plaintiff may not sue solely as a citizen or as a taxpayer to force government to follow the law

Front 6

Exception to no generalized grievances

Back 6

Taxpayers have standing to challenge government expenditures as violating the Establishment clause (very narrow - limited to money, not land)

Front 7

Exceptions to mootness

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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)

Front 8

Political Questions

Back 8

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

Front 9

Supreme Court accepts cases from state courts and US courts of appeals by

Back 9

Writ of Certiorari

Front 10

The Supreme Court has original and exclusive jurisdiction for

Back 10

Suits between state governments

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Review of three-judge federal district courts

Back 11

Immediately appealable to Supreme Court, skips court of appeals

Front 12

Supreme Court can hear a case under its appellate jurisdiction when

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there has been a final judgment from the highest state court, US court of appeals
no interlocutory review

Front 13

For the Supreme Court to review a state court decision there cannot be

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Adequate and Independent state law ground of decision (reversal of the federal rule will not change the result)

Lower decision must rest on federal and state law grounds

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mootness

Back 14

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.

Front 15

Eleventh Amendment bars

Back 15

Suits against states in federal courts

Front 16

Principle of sovereign immunity

Back 16

States cannot be named as a Defendant in state courts or federal agencies

Front 17

Exceptions to sovereign immunity

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- 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

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state officers may be sued for

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- For injunctive relief
- For money damages paid personally (but not if the state treasury would be paying retroactive damages)

Front 19

Define Abstention

Back 19

Federal courts may not enjoin pending state court proceedings

Front 20

Commerce Power allows Congress to act through

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1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
3. To regulate economic activities that have a Substantial Impact on interstate commerce

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Tenth Amendment

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Limit on Congressional powers; cannot compel state regulatory or legislative action

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Legislative action requires

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Passage by both the House and Senate and presentation to the President (to sign or veto)

Front 23

Ability of Congress to delegate powers

Back 23

No limits to delegate legislative powers

Cannot delegate executive power to itself or officers

Front 24

Treaty creation

Back 24

Negotiated by the President and effective when ratified by Senate

Front 25

Treaty vs. state laws

Back 25

Treaty prevails

Front 26

Treaty vs. federal statute

Back 26

More recent one controls

Front 27

Treaty vs. US Constitution

Back 27

A treaty in conflict with the Constitution is invalid

Front 28

Executive agreements effective when

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When signed by the President and head of the foreign nation (no Senate approval required)

Front 29

President has the power to appoint

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1. Ambassadors
2. Federal Judges
3. Officers of the US

Needs consent of senate

Front 30

appointment of inferior officers

Back 30

Congress can vest power in the President, heads of departments, or lower federal courts

May not give itself or its officers the appointment power

Front 31

President's removal power of any executive branch office

Back 31

is absolute unless limited by statute

Front 32

How do you distinguish Substantive Due Process from Equal Protection?

Back 32

• SDP - limits liberty of all persons to engage in some activity
• EP - law treats a person or class of persons differently

Front 33

For Congress to limit President's removal power

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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

Front 34

President's immunity from suit

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- Absolute immunity to civil suits for money damages for actions while in office

- No immunity for actions that occurred prior to taking office

Front 35

Executive privilege

Back 35

Covers papers and conversations but must yield to other important government interests

Front 36

President's power to pardon extends to

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Those accused or convicted of federal crimes

Does not extend to state crimes or civil liability

Front 37

Implied preemption: Federal law preempts state law where

Back 37

1. Federal and state laws are mutually exclusive
2. State law frustrates a federal objective
3. Congress evidences a clear intent to preempt

Front 38

Ability of states to tax and regulate federal government activity

Back 38

States prohibited

Front 39

state law that discriminates against out-of-staters

Back 39

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

Front 40

Analysis of a state law that discriminates against out-of-staters

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- 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

Front 41

Market Participant Exception

Back 41

A state/local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses

Front 42

Two exceptions to a law that discriminates against out of staters not necessary to achieve an important government purpose

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1. Congressional approval
2. Market participant exception

Front 43

Laws that discriminate against out-of-staters ability to earn their livelihood violate

Back 43

Violates the Article IV Privileges and Immunities clause UNLESS substantially related to an important government interest (Itm. Scrutiny)

Front 44

Privileges and Immunities clause prohibited from use by

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1. Corporations
2. Aliens

Front 45

Full faith and credit so long as

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1. Court rendering judgment had jurisdiction
2. Judgment was on the merits
3. Judgment is final

Front 46

State tax systems may not be used to

Back 46

Help in state business

Front 47

Can the Gov require a license for speech?

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• 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.

Front 48

States may only tax activities that have

Back 48

A substantial nexus to the state

Front 49

State taxation of interstate business must be (3)

Back 49

Fairly apportioned
Have a substantial nexus to the state
Not used to help in-state businesses

Front 50

Can the Gov regulate conduct that = symbolic speech?

Back 50

= can regulate conduct that communicates if:

1. it has an important interest unrelated to suppression of the message; and

2. if the impact on communication is no greater than necessary to achieve the government's purpose

(Int. Scrutiny)

Front 51

Prohibitions on private race discrimination valid under

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Thirteenth Amendment

Front 52

Situations where private conduct must comply with the Constitution

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1. Public function exception
2. Entanglement exception
3. If ordered by congress (e.g. commerce clause, 13th amendment)

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Public Function exception

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Private entity is performing a task traditionally, exclusively done by the government

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Entanglement exception

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Government affirmatively authorizes, encourages, or facilitates unconstitutional activity

Front 55

What is the 3 part test for determining whether something qualifies as obscene? (PIPS)

Back 55

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
(local test)
(3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (national test)

Front 56

Levels of scrutiny

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- Rational Basis test
- Intermediate scrutiny
- Strict scrutiny

Front 57

Rational Basis Test

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Rationally related to a legitimate government purpose

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Intermediate Scrutiny

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Substantially related to an important government purpose

Front 59

Strict Scrutiny

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Necessary to achieve a compelling government purpose

government must show no other less restrictive alternative is available

Front 60

Burden of Proof:
- Rational Basis
- Intermediate Scrutiny
- Strict Scrutiny

Back 60

- Rational Basis: challenger
- Intermediate Scrutiny: government
- Strict Scrutiny: government

Front 61

Deprivation of liberty occurs if

Back 61

There is the loss of a significant freedom provided by the Constitution

Loss of reputation is not a loss of liberty

Front 62

Deprivation of property occurs where

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There is an entitlement and it is not fulfilled

Front 63

In emergency situations the government is liable under due process only if its conduct

Back 63

Shocks the conscience- intent to cause harm

Front 64

What are the 2 Exceptions to the Gov's ability to regulate/limit profane or indecent speech?

Back 64

profane speech is generally protected, except:

i)over the broadcast media (bc of intrusiveness into home and accessibility by kids)
ii) in schools (responsibility of teaching civilized discourse)

Front 65

Standard of conduct for government liability for a deprivation of due process

Back 65

Governmental action must be intentional or at least reckless; negligence will not suffice for due process claim

Front 66

Balancing test for procedures required to satisfy due process

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- Importance of individual's interest
- Government's interest
- Ability of additional procedures to increase the fact-finding

Front 67

Level of protection for economic liberties

Back 67

Minimal; only apply rational basis test for laws affecting economic rights

Front 68

What level of scrutiny for commercial speech?

Back 68

intermediate scrutiny

Gov regulation must:

1. serve a substantial gov't interest,

2. directly advance that interest,

3. be narrowly tailored (does not need to be the least restrictive)

Front 69

Takings clause

Back 69

Governemnt may take private property for public use if it provides just compensation

Front 70

Two kinds of governmental takings

Back 70

1. Possessory - no matter how minimal
2. Regulatory - a regulation leaves no reasonable economically viable use of the property

Front 71

Just compensation measured by

Back 71

FMV of property at time of the taking

Loss to the owner; not gain to the taker

Front 72

the contracts clause applies to

Back 72

only to state or local interference with existing contracts

Front 73

Level of scrutiny where state or local government interferes with private contracts

Back 73

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

Front 74

Level of scrutiny where state or local government interferes with government contracts

Back 74

Strict Scrutiny

Front 75

Standard of Review - Privacy

Back 75

Strict scrutiny

Front 76

Fundamental right of privacy found in

(CARP SPERM)

Back 76

Contraception

Abortion

Right to Privacy

Procreation

************

Speech

Parenting/Custody

Extended family together

Right under 1st A

Marriage

Front 77

Right to Abortion: Prior to Viability

Back 77

- State may not prohibit
- May regulate so long as the regulation does not create an undue burden on obtaining an abortion

Front 78

Right to Abortion: After Viability

Back 78

State may prohibit UNLESS necessary to protect the woman's life/health

Front 79

Spousal consent and notification laws for abortion

Back 79

Unconstitutional

Front 80

Privacy rights not afforded strict scrutiny

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- Right to engage in homosexual activity
- Right to refuse medical treatment
-Abortion (undue burden test)

Front 81

Classifications based on Race and National Origin

Back 81

Strict scrutiny

Front 82

Classifications benefiting minorities

Back 82

Strict scrutiny

Front 83

What is the extent of the federal police power? (MILD)

Back 83

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.

Front 84

Classifications based on Gender

Back 84

Intermediate scrutiny

Front 85

How is the existence of a law classification proven

Back 85

- Discrimination exists on the face of the law
- Law is facially neutral, but there is both a discriminatory intent and impact

Front 86

Classifications based on Alienage

Back 86

Strict scrutiny

Front 87

Standard of review for alienage classifications that concern self-government and the democratic process

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Rational Basis test

Front 88

Government may discriminate against non-citizens for

Back 88

- Voting
- Juries
- Probation officer
- Teacher
- Police officer

Front 89

Classifications based on undocumented alien children

Back 89

Intermediate scrutiny

Front 90

Classifications against non-marital children

Back 90

Intermediate scrutiny

(Generally, uphold if it discriminates between different types of nonmarital kids; strike if it discriminates between marital and nonmarital kids)

Front 91

Can Congress induce state regulatory action? Explain.

Back 91

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.

Front 92

Rational basis used for

Back 92

- Age
- Disability
- Wealth
- Economic Regs
- Sexual orientation discrimination

Front 93

Standard of review for fundamental rights

Back 93

Strict scrutiny

Front 94

Fundamental rights protected under Equal Protection

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- Right to travel
- Right to vote
- Right to privacy

Front 95

Two types of content-based restrictions on speech

Back 95

1. Subject matter restriction
2. Viewpoint restriction

Front 96

Standard of review for content based restrictions

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Strict scrutiny

Front 97

Standard of review for content neutral laws burdening speech generally

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Intermediate scrutiny

Front 98

Unprotected/less protected speech

Back 98

- Incitement of illegal activity
- Obsencity and sexually-oriented speech

Front 99

Incitement of illegal activity test

Back 99

punishable if:

1. substantial likelihood of imminent illegal activity
AND
2. speech directed to causing imminent illegal activity

Front 100

Commercial speech for illegal activity or false and deceptive ads

Back 100

Not protected by the First amendment

Front 101

Government regulation of commercial speech

Back 101

- Must be narrowly tailored
- Need NOT be the least restrictive alternative

Front 102

Regarding privacy, no liability for (1A context)

Back 102

- Truthful reporting of lawfully obtained material, OR
- Matters of public importance

Front 103

Speech for Government employees on the job or in the performance of duties

Back 103

Not protected

Front 104

Regulations on Public forums and designated public forums

Back 104

- 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

Front 105

Regulations on limited Public Forums

Back 105

1. rational basis
2. viewpoint neutral

Front 106

Regulations for non-Public forums

Back 106

Government can regulate so long as the regulation is
1. rational basis
2. viewpoint neutral

Front 107

Standard of review for laws that prohibit or punish freedom of association

Back 107

Strict scrutiny

Front 108

To punish membership in a group must prove (3 AAA)

Back 108

1. Actively affiliated with the group
2. Knowing of its illegal Activities
AND
3. Has the specific intent of furthering those illegal Activities

(knowing + specific intent)

Front 109

What is the Privileges & Immunities clause of Article IV?

Back 109

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

Front 110

Standard of review for laws that require disclosure of group membership

Back 110

Strict scrutiny

Front 111

Laws that prohibit a group from discriminating are constitutional UNLESS (2)

Back 111

- They interfere with intimate associations
OR
- Expressive activity

Front 112

If a law does not discriminate against out of staters, is the P&I clause involved? Dormant commerce clause?

Back 112

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)

Front 113

The free exercise clause cannot be used to challenge

Back 113

A neutral law of general applicability

Front 114

The Establishment clause test (3 SEX)

Back 114

prohibits govt from making laws that favor one religion over another, or non-religion over religion, etc.

1. Secular purpose
2. Effect neither advances nor inhibits religion
3. No eXcessive entanglement with religion

Front 115

Standard of review for discrimination against religious speech

Back 115

Strict scrutiny

Front 116

plaintiff's seeking injunctive or declaratory relief must show

Back 116

a likelihood of future harm

Front 117

best standing for MBE

Back 117

1. actual injury, and
2. economic loss

Front 118

What are the 3 main rules about State Taxation of Interstate Commerce that we need to know?

Back 118

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.

Front 119

Does the federal government have to comply with state & local laws? What is this principle called?

Back 119

NO
intergovernmental immunity

Front 120

what is ripeness

Back 120

whether a federal court can grant pre-enforcement review of a statute or regulation

Front 121

considerations for ripeness

Back 121

1. the hardship that will be suffered without a pre-enforcement review

2. the fitness of the issues and the record for judicial review

Front 122

rule regarding the ability of congress to tax and spend

Back 122

for the general welfare

Front 123

Executive agreement vs. state law

Back 123

executive agreement controls

Front 124

Executive agreement vs. federal statute

Back 124

federal statute controls

Front 125

executive agreement can be used for

Back 125

any purpose

Front 126

what does entitlement mean for deprivation of property purposes

Back 126

a reasonable expectation to continued receipt of a benefit

Front 127

Government liability failure to protect from privately inflicted harm

Back 127

- Not a violation of due process

- Only a duty to protect when the government creates the danger or a person is in government custody

Front 128

parental notice and consent of an unmarried minors abortion

Back 128

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

Front 129

numerical set-asides benefiting minorities require

Back 129

clear proof of past discrimination

Front 130

gender classifications that benefit women

Back 130

based on role stereotypes- not allowed

remedy past discrimination or differences in employment opportunity- are allowed

Front 131

federal enumerated powers

Back 131

1. commerce clause
2. taxing power
3. spending power

Front 132

first amendment vagueness

Back 132

- the law lacks clarification on what speech is prohibited
- fighting words laws are always void for vagueness

Front 133

first amendment overbreadth

Back 133

the law prohibits too much speech in order to achieve the objective

Front 134

prior restraint on free speech

Back 134

Judicial order stopping speeach before it occurs

strict scrutiny

1. definite and certain criteria
2. injunction promptly sought

3. prompt and final determination

Front 135

if preliminary injunction granted (prior restraint) and person speaks anyway in violation

Back 135

cannot challenge it later (cannot be overturned)

Front 136

Defamation

Back 136

libel and slander are not protected

Front 137

For Defamation P must prove:

1. public official

2. public figure

3. private figure/public concern

4. private figure/not a public concern

Back 137

1. falsity and actual malice

2. falsity and actual malice

3. falsity and negligence

4. no malice necessary

Front 138

public forum

Back 138

gov't property that is historically open for speech: streets, sidewalks, public parks

Test: narrowly tailored to serve important gov't interest and leave open alternative channels of communication.

Subject and viewpoint neutral

Front 139

Designated public forum

Back 139

gov't property that could be closed to speech, but which gov't has chosen to open

Test: narrowly tailored to serve important gov't interst and leaves open alternative channels of communication.

Subject and viewpoint neutral

Front 140

Limited public forum

Back 140

Gov't property limited to certain groups or dedicated to discussion of limited topics

Test: reasonably related to legitimate purpose

Viewpoint neutral

Front 141

Non-public forums

Back 141

Gov't property that gov't can and does close to speech (mil bases, outside prisons, sidewalks on post office prop, ad space on city buses, airports)

Test: reasonably related to a legitimate gov't purpose

Viewpoint neutral

Front 142

Subject matter restrictions

Back 142

restict topics of speech

Front 143

viewpoint restrictions

Back 143

restrict ideologies