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104 Cards in this Set
- Front
- Back
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2 benefits to being a federal judge
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1. lifetime job
2. protected salary |
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scope of Congressional power to est. lower federal courts (2)
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1. confer, remove, limit basis of fed. jurisdiction of Dist. Ct. and COA
2. cannot limit federal question jurisdiction |
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scope of original jurisdiction of SCOTUS
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any case re ambassador, public minister, consul, or where state is a party
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Art. 3 principles (5)
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1. diversity jurisdiction
2. case & controversy req. 3. no advisory opinions for federal cts 4. only one SCOTUS 5. all federal decisions reviewable by other federal courts |
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limit to appellate jurisdiction
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Congress may no preclude an entire class of cases
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appellate jurisdiction of SCOTUS (2)
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1. matter of right: mandatory
2. decisions of 3-judge federal district ct. (injunctive relief) |
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certiorari jurisdiction of SCOTUS (2)
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1. cases from highest state court re federal law
2. all cases from US COA |
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when may SCOTUS refuse to hear a state court appeal
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adequate state grounds clear and independent of the federal constitution
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versions of adequate state ground (2)
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1. substantive strand (winner's rule): act unconst. under state law only
2. procedural strand (loser's rule): state court never decides case because P failed to meet procedural hurdle |
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requirements for standing (2)
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1. injury in fact
2. causation/redressability |
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third party standing:
1. rule 2. exceptions (2) |
1. rule: P may only advance his or her own constitutional rights
2. exceptions -close relationship/nexus between P and third party + special need -abstract or generalized grievance |
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state taxpayer standing
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may only challenge measurable expenditures
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federal taxpayer standing (2)
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1. generally, not standing
2. exception: establishment cl. challenge or expenditure under taxing/spending power |
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ripeness rule:
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case is brought too early b/c no genuine, immediate threat of harm
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mootness rule and exception
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case is brought too late:
1. no controversy at all stages of review 2. exception: injury is capable of repetition, yet evading review |
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political question doctrine
-what is it? -what are std. political questions/are not? (3/1) |
-non-justicible issues of other branches of govt. are off limits to federal courts
-political questions: 1. amendment ratification 2. age/residency/citizenship req for members of congress 3. foreign affairs -is NOT political question: apportionment of legislative districts/one-person-one-vote |
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11th Amendment
1. what is barred (3) 2. what suits are NOT barred (5) |
1. barred:
-citizen v. state govt. -foreign citizen v. state govt. -citizen of another st. v. st. govt 2. permissible -citizen v. municipality -citizen v. local board -citizen v. county -state v. state -citizen v. state official |
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absention: Pullman Doctrine v. Younger absention
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Pullman: federal ct. retains juris for later
Younger: if substantial proceedings have not taken place yet, feds cannot review 1. pending state criminal proceedings 2. criminally related civil proceedings 3. civil contempt |
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what is the police power and what std. is it reviewed under
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state implied right to protect health, safety, welfare, moral, or aesthetic interest
subject to rational basis |
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enumerated power of Congress (13)
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1. borrow $
2. regulate commerce 3. naturalization and bankruptcy 4. coin money 5. punish counterfeiters 6. postal services/roads 7. intellectual property 8. tribunals 9. punish piracy and international law 10. raise army/navy/militia 11. declare war/marque and reprisal 12. repel invasion/insurrection 13. necessary and proper |
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necessary and proper cl. (2)
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1. not an independent source of power
2. must be coupled w/other enumerated power |
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affection doctrine
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congress may regulate any activity that has a substantial link to stream of interstate commerce
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cumulative impact doctrine
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Congress may touch entirely intrastate activities if they have a cumulative impact on interstate commerce
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only thing the 10th amendment is good for?
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preventing Congress from commandeering a state to enact fed. law
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general welfare clause
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typically not a right answer on its own
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taxing and spending power principles (2)
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1. if dominant intent if fiscal, it is always ok, even if effects are regulatory
2. may be used to indirectly compel a state to act |
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delegation of federal power, and limit
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1. may be delegated to anyone
2. limit: Congress cannot delegate and reserve a veto power |
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POTUS appointment/removal power (2)
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1. only POTUS can appoint purely executive officers, SCOTUS justices, and admin officers w/advise and consent of Senate
2. POTUS may remove any executive officer at his discretion, unless official has fixed term (must be for good cause) |
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POTUS veto power (2)
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1. POTUS has ten days to veto
2. veto can be overridden with 2/3 vote of house/senate |
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POTUS pardon power
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1. POTUS may pardon anybody of a FEDERAL, not state, crime
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POTUS absolute privilege (2) and exception
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absolute privileges
1. diplomatic/military secrets 2. civil suits for damages while in office limitation: non-diplomatic/military secrets must be turned over if important to govt. interest (Nixon v. US) |
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POTUS: Commander and Chief power/checks (3/1)
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powers
1. deploy US forces in occupied areas 2. declare an end to a war 3. Control over State Militia (national guard) limits: 1. no power of purse! |
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sources of POTUS power over foreign affairs (3)
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1. Commander and chief
2. Treaty Power 3. Congressional delegation of commerce power |
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hierarchy of laws in conflict (4)
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1. Constitution
2. Treaty/Act of Congress 3. Exec Agrmt/Order 4. State Law |
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what can get you impeached and who impeaches?
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high crimes and misdemeanors; only House may impeach
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Congressional investigatory power
1. what may they investigate? 2. failure to comply? |
1. Congress may investigate anything for which it has jurisdiction
2. failure to comply = contempt |
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Speech and Debate Clause (2)
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1. absolute immunity 4 Congressmen and their Aides for communication conducted on the floor
2. does not apply to defamatory news letters or press releases |
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State taxation of federal govt. rule
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state may tax federal employee so long as the obligation to pay never touches the federal govt. itself
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federal property power coverage (4)
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1. wild animals roaming on fed. land
2. military property 3. Indiana reservations 4. federal bldgs/enclaves |
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federal taxation of states
1. ok 2. not ok |
1. ok: activities that can be carried on by a citizen for profit
2. no ok: activities necessary for the operation of state govt. |
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dormant commerce cl.: states free to regulate where Congress is silent on commerce if... (2)
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1. regulation is nondiscriminatory
2. poses no undue burden on interstate commerce |
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dormant commerce cl: ex. of discrimination against foreign states
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-discrim:
1. forbidding importation of items 2. regulating out foreign state participation |
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dormant commerce cl: market participation doctrine
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state may discriminate against foreign commerce if it concerns items entirely funded with state funds
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dormant commerce cl.: what generally passes balancing test
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items where police power interest outweigh burden on commerce
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Art. 4 P&I: what is it
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one state cannot discriminate against citizens of another state RE BASIC ECON. RIGHTS AND ACTIVITIES
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Art. 4 P&I: who cannot seek redress (2)
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1. corporations
2. aliens |
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When is state taxation on interstate commerce constitutional (3)
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1. reasonable
2. non discriminatory 3. substantive nexus between the state interest and the activity being taxed |
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when may state tax instrumentalities (cars, planes, boats)?
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if tax is fairly apportioned to the portion of taxpayer use
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limitation on state direct taxes (2)
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1. uniform
2. apportioned |
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preemption v. supersession doctrine
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preemption: Where Congress INTENDS to occupy a given field, conflicting state law is invalid. Congress need not have passed a law yet.
supersession: federal law will not trump if state protection is greater than federal |
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types of discrimination covered under state action
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1. public function
2. significant state involvement 3. facilitation or encouragement |
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state action: what are not public functions (3)
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1. privately owned utility co. under heavy state regulation
2. granting a liquor license 3. private school licensed by state |
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state action: examples of significant state involvement (3)
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1. public school
2. city-built parking authority who leases to discriminator 3. private school buys state textbooks |
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Amendments not selectively incorporated to States via 14th amend. (4)
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1. right to bear arms
2. right to grand jury 3. right to civil trial 4. right against excessive bail |
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14th Amend. P&I:
1. what it protects 2. what it can't do |
protects rights of national citizenship
1. petition Congress 2. travel cannot be used as conduit for BOR rights |
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Contracts Cl.
1. gen. rule 2. exception |
1. rule: States may not impair obligations of private/public K's unless significant (police power) need
2. exception: impairing the rights of bondholder |
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examples of ex-post-facto laws (3)
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1. makes criminal conduct that was not a crime when D committed it
2. increases punishment for a crime already committed 3. decreases the amt. of evidence needed to convict |
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Bill of attainder
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legislative punishment against a group or individual w/o trial
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PDP: balancing test
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severity of harm v. cost of hearing
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PDP: liberty interest (4)
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1. right to contract
2. right to engage in gainful employment 3. right for natural parents to care for children 4. right to refuse unwanted medical services |
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PDP: property interests (5)
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1. welfare benefits
2. disability benefits 3. public education 4. garnishment of wages 5. continued public employment when terminable for cause (tenured teachers/civil employees) |
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what is a taking (2)
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1. permanent confiscation or any occupation of land
2. regulation which leaves the owner no reasonable economically viable use of her land |
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how a taking may occur (3)
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1. eminent domain
2. inverse condemnation 3. police power |
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when does just compensation need not be paid by govt. for a taking (2)
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state govt. taking pursuant to police power
or temporary taking |
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SDP: review for any economic regulation
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rational basis
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SDP: actions protected under right to privacy (6)
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CAMPER
Contraception Abortion Marriage Procreation Education (private) Relations of Family |
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Abortion:
Casey Rule |
1. Casey:
-before viability>not prohibition; regulation may not unduly burden mother -post viability>prohibition allowed unless mother's health at risk |
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Abortion:
What is not an undue burden (3) |
1. requiring informed consent of woman
2. detailed recordkeeping by abortion facility 3. consent of one parent for unemancipated woman under 18 |
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Abortion: Roe Rule
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1. 1st trimester: no prohibition
2. 2nd trimester: only regulation allowed is to protect mom 3. 3rd trimester: no abortion unless to protect mom |
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right to travel: durational residency requirements
1. when ok 2. when not |
1. ok:
-voting rights (50 day) -discounts on tuition -divorce 2. not ok: -medical services -library services |
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right to travel: when strict scrutiny v. rational basis
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1. ss: domestic travel
2. rational basis: foreign travel |
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what protects the right to vote?
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15th Amendment exclusively
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SPD: std. for right to be a candidate?
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rational basis
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when EPC v. SDPC
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EPC: law affects some
SDPC: affects all |
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areas covered under Strict Scrutiny (4)
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1. suspect class: RAN
2. fundamental rights CAMPER VOTE DOM. TRAVEL 3. 1st Amendment Rights 4. internet regulations |
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areas covered under middle-tier scrutiny (5)
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1. gender discrimination
2. illegitimacy 3. illegal alien access 2 public schools 4. content neutral regulation of speech 5. regulation of cable TV |
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areas covered under rational basis (6)
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1. poverty
2. wealth 3. age 4. mental retardation 5. necessity of life 6. social/economic welfare measures |
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when can discrimination get EPC analysis
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1. state action
2. purposeful, intentional act (de jure) |
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when is busing allowed?
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to remedy prior discrimination
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when are race-based quotas allowed?
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virtually never, even remedying past discrimination or furthering govt. interest
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Establishment Clause test (3)
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Lemon Test: state action valid if
1. primary purpose is secular 2. primary effect is secular 3. NO ENTANGLEMENT IN RELIGION |
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What automatically fails the Lemon test?
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1. govt. sponsored religious activities
2. govt. aide 2 religious ELEMENTARY AND SECONDARY schools for const. and salary (ok for college) 3. opening prayer in state court 4. religious, non-seasonal displays |
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what religious displays pass the Lemon test?
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Santa Clause: must pass reasonable person test (nativity scene must have secular Christmas items around it-like Santa Cl.)
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Free Exercise Cl.: what may/may not be inquired into
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1. ok: sincerity of one's belief
2. NOT ok: belief itself |
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Free Exercise Cl.: when 2 apply SS v. Rational basis
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1. SS: purposeful interference
2. rational basis: generally applicable law w/ incidental burden |
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when is a prior restraint permissible (2)
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1. national security
2. obscenity |
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analysis for content specific speech (2)
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If protected speech> SS
If unprotected > no SS |
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analysis for content-neutral speech or conduct (3)
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regulation ok if
1. furthers significant govt. interest 2. is narrowly tailored 3. leave open alt. methods of communication |
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clear and present danger test (2)
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speech unprotected if
1. likely to produce imminent, unlawful conduct 2. speech likely to produce said conduct |
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when may govt. punish you for you association (3)
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1. group advocates unlawful conduct
2. you know and are active member 3. you have intent to further unlawful object |
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when may govt. obtain membership lists?
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if govt. has the power to attack membership under freedom of association
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when are loyalty oaths permissible for public membership (2)
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1. to uphold const.
2. oppose takeover of govt |
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Freedom of Press: when defamation for opinion actionable?
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if sufficiently factual to be susceptible of being proved true/false by other facts or evidence
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Freedom of Press: when malice required in defamation
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if Pl. is public figure
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Freedom of Press: general rule
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press enjoys no special protections beyond the ordinary citizen
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when may criminal trials be closed to press?
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if compelling, narrowly tailored state interest at play
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what may/may not be banned on Cable TV
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1. banned: any indecent programming on channels leased to third parties
2. cannot ban public access channels (CSPAN) |
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Miller Test: requirement to regulate obscene (non-child related) communication (4)
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1. apply contemporary comm. std.
2. appeals to prurient interest 3. patently offensive (local std) 4. lacks LAPS (literary, artistic, political, social value) |
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child porn
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absolutely unprotected
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rules for possession of obscene materials (4)
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1. ok to possess in your own home
2. purchase/receipt in mail may be regulated 3. ok to advertise 4. ratings system is ok |
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is it ok to ban strip clubs?
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yes
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commercial speech: what is unprotected (2)
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1. false or deceptive advertising
2. harmful/illegal products |
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when is regulation of unprotected commercial speech permitted (2)
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1. must directly advance govt. interest; and be
2. narrowly tailored to further interest |
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when is ban on solicitations ok/not ok?
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1. ok: ban on commercial solicitation barring consent
2. not ok: ban on all door to door solicitation barring consent |
