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242 Cards in this Set

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Requirements of justiciability
Standing, Ripeness, Mootness, Political Question
Allowable injuries for standing
Actual personal injury or future imminent injury
3 Exceptions for allowable third-party standing
Close relationship, unable third party, organizational
Request for Declaratory Judgment...
Goes with ripeness issues
2 Components of Ripeness
Potential hardship, fitness of issues/record
3 Exceptions for mootness
capable of repetition but evading review, voluntary cessation, class actions
4 Types of Political Questions
"Republican form of Government", presidential foreign policy, impeachment/removal, gerrymandering
2 Exceptions to writ of certiorari
Appeal from 3-judge district court, suits between states
Final Judgment Rule
No interlocutory review in Supreme Court
Final judgment by highest state court, COA, or three-judge panel
Independent and Adequate state grounds
Bars SCOUTS review
Sovereign Immunity
No suits against state governments (11th Amendment)
4 Exceptions to Sovereign Immunity
Waiver, §5 of 14th Amendment, Suit from Federal Govt, Bankruptcy
2 Allowable remedies for Officer Suits
Injunctive relief, personal damages
State officers may not be sued if damages are paid put of the state treasurey
Abstention
Cannot enjoin pending state court proceedings
Congressional authority to act comes from...
Express or Implied Congressional power|Necessary and Proper clause
4 areas of federal Police Power
Military, indian reservations, federal lands, D.C.
Necessary and Proper Clause
"Any means not prohibited by Constitution" to carry out its authority
Law for "general welfare"...
Goes with taxing and spending power or area of police power
Congress may tax and spend for the general welfare
Three areas Congress may regulate pursuant to the Commerce Clause
Channels of interstate commerce|Instrumentalities of and People or things within interstate commerce|Economic acitivites that have a substantial effect on interstate commerce
For non-economic activities, the substantial effect cannot be based on cumulative impact
Substantial effects on interstate commerce
Cumulative effect allowed ONLY for economic activities
5 Areas of Congressional Authority
Express or implied, commerce, tax/spending, necessary and proper, §5 of the 14th Amendment
10th Amendment limitation
Congress cannot compel state regulatory or legislative action; Congress may prohibit harmful commercial activity by state governments
Congress can induce state action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program
Congress' power under §5 of 14th Amendment
Congress cannot create new rights or expand the scope of rights
Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be proportional and congruent to remedying constutional violations
Non-delegation Doctrine
No effective limit exists on Congress' ability to delegate legislative power
Always a wrong answer
Legislative Vetos
Not allowed
Line-item Vetos
Not allowed
The President must sign or veto the bill in its entirety
Presidential Vetos
Bill in its entirety
Requirements for Congressional veto
Bicameralism and Presentment
Congressional delegation of Executive Power
Congress may not delegate executive power to itself or its officers
Which trumps the other: Treaties or state law
Treaties
Which trumps the other: Treaties or federal statutes
The one adopted last in time controls
Which trumps the other: Treaties or US Constitution
US Constitution
Requirements for Treaties
Negotiated by President and ratified by Senate
Requirements for Executive Agreement
Signed by the President and the head of the foreign nation
Which trumps the other: Executive agreement or state law
Executive agreement
Which trumps the other: Executive agreement or federal statute
Federal statute
Which trumps the other: Executive agreement or US Constitution
US Constitution
Describe the President's power as Commander-in-Chief
The President has broad powers to use American troops as Commander-in-Chief
Usually a wrong answer
What three positions does the Peesident have appointment power over
Ambassadors, Federal judges, and officers of the United States
What three positions may the President's appointment power be extended to by Congress
Inferior officers, heads of departments, or lower federal courts
An inferior officer is one who can be fired by an officer
Congress appointment power
Congress may not give itself or its officers the appointment power
Congress may only limit the President's removal power under what circumstances
It must be an office where independence from the President is desireable and removal can be limited to where there is good cause
Grounds for impeachment
Treason, bribery, high crimes and misdemeanors
In order to remove a person after impeachment, what must happen
The person must also be convicted by the Senate (2/3 majority vote)
Impeachment in the House requires a majority vote
Presidential Immunity
The President has absolute immunity to civil suits for money damages for actions while in office
The Pesident does not have immunity for actions that occurred prior to taking office
Presidential Executive Privilege
The President has executive privilege for presidential papers and conversTions, but this privilege must yield to other important government interests
Power of Pardon
The President has the power to pardon those accused or convicted of federal crimes
Does not apply to impeachment and only pardons criminal liability
Supremacy Clause
Constitution, and laws/treaties made pursuant to it, are the supreme law of the land
Express Preemption
Federal statute explicitly states that it wholly occupies a field
What are the three scenarios raising implied preemption
Federal law preempt state law if:|1. Federal and state laws are mutually exclusive|2. State law impedes the advancement of a federal objective|3. Congress evinces a clear intent to preempt state law
Inter-governmental Immunity
States may not tax or regulate federal government activity
It is unconstitutional to pay a state tax out of the federal treasury
Dormant commerce clause
State and local laws are unconstitutional if they place an "undue burden" on interstate commerce
This includes when Congress hasn't acted
Privileges and Immunities -- Article IV
No state may deprive citizens of other states of privileges and immunities given to its own citizens
Anti-discrimination provision
Privileges and Immunities -- 14th Amendment
Always a wrong answer unless it involves the right to travel (which is a fundamnetal right under the 14th Amendment)
If a state or local law does not discriminate against out-of-staters, what is the Dormant Commerce Clause/P & I Clause of Article IV analysis
If the government is burdening interstate commerce, balance the benefit to the state against the burden on interstate commerce (if the benefit to the state exceeds to burden, the lawnis upheld; if the burden exceeds the benefit, the law is struck down)
The Privileges and Immunities Clause of Article IV is inapplicable
If a state or local law discriminates against out-of-staters, what is the Dormant Commerce Clause/P & I Clause of Article IV analysis
If the law places an undue burden on interstate commerce, it violates the Dormant Commerce Clause unless it is necessary to acheive an important government purpose
If the law discriminates against individuals with regard to civil liberties or important ecomonic activities, it violates the Privileges and Immunities Clause of Article IV unless it is necessary to achieve an important goverment purpose
What are the four distinguishing characteristics between the P & I Clause of Article IV and the Dormant Commerce Clause
The Dormant Commerce Clause:|1. Requires discrimination against out-of-staters in order to apply|2. Requires discrimination with regard to civil liberties or important economic activities|3. Corporations and aliens cannot sue under it|4. No exceptions
The P & I Clause of Article IV:|1. Does not require discrimination against out-of-staters in order to apply|2. Requires a burden on interstate commmerce|3. Corporations and aliens can sue under it|4. Exceptions: confessional approval and the market participant exception
Corporation bringing state discrimination
ONLY dormant commerce clause
Describe full faith and credit
Courts in one state must give full faith and credit to the judgments of courts in another state so long as:|1. The court that rendered the judgment had jurisdiction over the parties and the subject matter|2. The judgment was on the merits|3. The judgment is final
What are the limitations on state taxation of interstate commerce
1. States may not use their tax systems to help in-state businesses|2. A state may only tax activities if their is a substantial nexus to the state|3. State taxation of interstate business must be fairly apportioned
Under what circumstances may Congress pass statutes in order to apply constitutional norms to private conduct
1. The 13th Amendmentcan be used to prohibit private race discrimination|2. The commerce power can be used to apply constitutional norms to private conduct
Congress cannot use Sectoon 5 of the 14th Amendment to regulate private conduct; Section 5 can only be used to regulate state and local governments
What are the two situations where private conduct must comply with the Constitution
1. The public function exception: The Constitution applies if a private entity is perorming a task traditionally and exclusively done by the government|2. The entanglement exception: The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity
Four examples of state involvement
1. Court enforcement of racially restrictive covenants|2. Government leases premises to a business that discriminates|3. State provided books to schools that racially discriminate (here government action was to encourage discrimination)|3. Private regulation of interscholastic sports within a state
Three examples of no state involvement
1. Business with a liquor license from the state racially dicriminates|2. NCAA suspension of state university coach|3. Private school that is over 99% government funded fires a teacher because of her speech (government subsidy is insufficient for state action)
Government subsidy
Insufficient for finding state action!
Exceptions to Bill of Rights incorporation
Second Amendment right to bear arms|Third Amendmen right to not have a soldie quartered in a person's home|Fifth Amendment right to grand jury indictment in criminal cases|Seventh Amendment right to jury by trial in civil cases|Eighth Amendment right against excessive fines
Rational Basis test
Plaintiff must prove that the law is not rationally related to a legitimate government purpose
Does not have to be the least restrictive alternative
Intermediate scrutiny
Government must prove that the law is substantially related to an important government purpose
Does not have to be the least restrictive alternative
Strict scrutiny
Government must prove that the law is necessary to achieve a compelling government purpose
Does have to be the least restrictive alternative
Rational Basis - burden of proof
Challenger
Intermediate scrutiny - burden of proof
Government
Strict scrutiny - burden of proof
Government
What is procedural due process
What the fovernment must do i order to deprive a person of life, liberty, or property
When does a deprivation of liberty occur
If there is the loss of significant freedom provided by the Constitution or a statute
When institutionalizing an adult, what must be done in order to satisfy procedural due process
Notice and a hearing
When institutionalizing a child, what must be done in order to satisfy due process
Screening by neutral fact-finder
Is harm to one's reputation a loss of liberty
No
Do prisoners have liberty interests
Rarely
Distinction between "rights" and "privileges"
Usually a wrong answer
When does a deprivation of property occur
If there is an entitlement and that entitlement is not fulfilled
An entitlement is a reasonable expectation to continued receipt of a benefit
Government liability under due process
Generally, there must be intentional government action or at least reckless action for liability to exist; however, in emergency situations, the fovernment is liable under due process inly if its conduct shocks the conscience
Government negligence is not sufficient for a deprivation of due process
Government protection against privately inflicted harms
Generally, the government's failure to protect people from privately inflicted harms does not deny due process
If the government deprives a person of life, liberty, or property, what procedures are required
Balance:|1. The importance of the interest to the individual|2. The ability of additional procedures to increase the accuracy of the fact-finding|3. The government's interest
The government need not provide procedural due process when the government has not deprived a person of life, liberty, or property
When terminating welfare benefits, what is required in order to satisfy procedural due process
Notice and a hearing prior to termination
When terminating social security benefits, what is required in order to satisfy procedural due process
Post-termination hearing
When disciplining a student at a public school, what is required in order to satisfy procedural due process
Notice of charges and an opportunity to explain
Corporeal punishment does not require due process
When terminating parental rifhts, what is required in order to satisfy procedural due process
Notice and a hearing
When awarding punitive damages, what is required in order to satisfy procedural due process
Instruction to jury and judicial review for reasonabilty
Due process is violated if a judge receives money from a participant
Grossly excessive punitive damages
Inherently violation of due process
When a US citizen is taken abroad as enemy combatant, what must be done in order to satisfy procedural due process
Notice of the charges, legal counsel, and a meaningful factual hearing
If there is to be pre-judgment attachment or government seizure of assets, what must be done in order to satisfy procedural due process
Except in extreme cases, rhere must be notice and hearing prior to attachment or seizure
2 Exceptions to attachment/seizure DP rules
Property used in illegal activity, exigent circumstances
Substantive due process
Does the government have an adequate reason to take away life, liberty, or property
What two issues are protected by substantive due process
1. Economic liberties|2. Privacy
Level of scrutiny for deprivation of economic liberties
Rational basis test
Takings Clause
Government may take private property for public use if it provides just compensation
Possessory Taking
Government confiscation or physical occupation of property is a taking
Regulatory Taking
Government regulation isa taking if it leaves no reasonable economically viable use of the property
A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
Government conditions on property development
Must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking
Temporary deprivation of property
Temporarily denying an owns us of propery is not a taking so long as thegovernment's action is reasonable
Three part analysis for takings clause
1. Is there a taking|2. Is it for public use|3. Is just compensation paid
Public use is very broadly defined: A reasonable belief that the taking will benefit the public is sufficient|Just compensation is measured I. Terms of loss to the owner: Reasonable market value; gain to the taker is irrelevant
The Contracts Clause applies only to
State and local interference with existing contracts
State or local interference with private contracts must meet what level of scrutiny
Intermediate scrutiny
Define "Intermediate Scrutiny" under the Contracts Clause
If the lefislation substantially impairs a party's rights under an existing contract, then law must be a reasonably and narrowly tailored means ofpromoting an important and legitimate public interest
State or local interference with government contracts must meet what level of scrutiny
Strict scrutiny
Must be a necessary means of achieving a compelling government interest
Ex Post Facto Clause
A law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed
Does not apply in civil cases: a law imposing coil liability retroactively need only meet a rational basis test
Ex Post Facto forum
Criminal cases only
Retroactive civil liability
Rational basis test -- favorable to government
Privacy right
Fundamental right protected under substantive due process
Seven examples of fundamental privacy rights
1. Marry|2. Procreate|3. Custody of one's children|4. Keep the family together|5. Control the upbringing of one's children|6. Purchase and use contraceptives|7. Abortion
Generally, what level of scrutiny must be met in order to satisfy substantive eue process when privacy rights are involved
Strict scrutiny
What is the presumption regarding paternity
There is an irrebutable presumption that a married woman's husband is the father of her children
This presumption is OK
What is the standard of review for laws limiting a woman's right to an abortion prior to viability
States may not prohibit abortions prior to viability, but may refulate a ortions so long as they do not create an undue burden on the ability to obtain abortions
Not strict scrutiny
What is the standard of review for laws limiting a woman's right to an abortion after viability
States may prohibit abortions unless necessary to protect the woman's life or health
Not strict scrutiny
Examples of regulations that do not create an undue burden on the ability to obtain abortions
1. 24-hour waiting period|2. Prohibition of partial-birth abortions|3. Must be performed by a licensed physician
Government funding of abortions
Not required
Examples of laws that do place an undue burden on the ability to obtain an abortion
1. Spousal consent|2. Spousal notification
Parental notice and consent laws for unmatched minors
A state mY require parental notice and/or consent for an unmarried minir's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding that it would be in the minir's best interest or that she is mature enough to decide for herself
Right to refuse medical treatment
Competant adults have right to refuse life-saving medical care
No articulated level of scrutiny
Limitations for refusal of medical care
A state may require clear and convincing evidence that a patient wanted treatment terminated before it was ended; a stare may prevent family members from terminating treatment for another
There is nit a constitutional right to physician-assisted suicide
Does the right to privacy protect the right to engage in private consensual homosexual activity
Yes, but no level of scrutiny is articulated; it is just a rule
What is the three-part approach o equal protection questions
1. What is the classification|2. What level of scrutiny should be applied|3. Does the law meet the level of scrutiny
What constitution provisions concerning equal protection apply to which governments
Th equal protection clause of the 14th Amendment applies only to state and local governments
Equal protection is applied to the federal government through the due process clause of 5th Amendment
What classifications must meet strict scrutiny
1. Race|2. National origin|3. Alienage, generally|4. Travel, domestic|5. Voting
Law must be necessary to achieve a compelling government purpose
What are the two ways to determine the existence of a classification
1. The classification is on the face of the law, or|2. The law is racially neutral, however, there is both a discriminatory intent for the law and a discriminatory impact to the law
Then the government must meet the relevant level of scrutiny
How should racial classifications benefiting minorities be treated
Strict scrutiny is applied
What is required for numerical set-asides
Clear proof of past discrimination
May only be used to remedy clearly proven past discrimination
How may educational institutions use race in admissions decisions to help minorities
Only as one factor; cannot add points based solely on race and cannot set aside spots
Schools have a compelling interest in having a diverse student body
What role may race play in assigning students to public schools
Race may only be used as a factor if strict scrutiny is met
What classifications must meet intermediate scrutiny
1. Gender|2. Illegitimacy|3. Undocumented alien children
Law must be substantially related to an important government purpose
How should gender classifications benefiting women be treated
Gender classifications benefiting women that are based on stereotypes will not be allowed
Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed
Benefits based on female race -- allowed?
Not if a role stereotype
Gender remedies -- allowed?
Only if designed to combat past discrimination and differences in opportunities
What classifications must meet the rational basis test
1. Alienate classifications related to self government and the democratic process|2. Congressional regulation of aliens|3. Age|4. Disability|5. Wealth|6. All other classifications
Law must be rationally related to a legitimate government interest
Alienage -- self-gov't and democratic process test
Rational basis test -- favorable to government
Alienage -- Congressional discrimination test
Rational basis test -- favorable to government
Alienage -- undocumented alien children test
Intermediate scrutiny
Non-marital Children -- test
Intermediate scrutiny
Lass that deny a benefit to all non-marital children, but grant it to all marital children are
Unconstitutional
Age -- test
Rational basis test -- favorable to government
Physical Disability -- test
Rational basis test -- favorable to government
Wealth -- test
Rational basis test -- favorable to government
Economic regulations -- test
Rational basis test -- favorable to government
Sexual orientation -- test
Rational basis test -- favorable to government
What are the two fundamental rights under equal protection
1. Right to travel|2. Right to vote
Travel -- prevention of interstate travel
Strict scrutiny
Travel -- residency requirements
Strict scrutiny (50 day maximum)
Travel -- foreign travel restrictions
Rational basis test -- favorable to government
Vote -- test
Strict scrutiny
Vote -- state and local elections
one person -- one vote
Vote -- at-large elections
Constitutional unless proof of discriminatory purpose
Vote -- gerrymandering by race
Strict scrutiny
Vote -- Presidential uncounted votes
Uniform Standard of some sort required
Education -- test
NOT fundamental right!
Content-based restrictions on speech generally must meet what level of scrutiny?
Strict scrutiny
What are the two types of content-based laws?
1. Subject matter restrictions: application if the law depends on the topic of the message|2. Viewpoint restrictions: application of the law depends on the ideology of the message
Content-neutral laws burdening speech generally must meet what level of scrutiny?
Intermediate scrutiny
Viewpoint restriction
application of law depends on IDEOLOGY of the message
Content-neutral laws -- test
Intermediate scrutiny
What are the two types of prior restraint?
1. Court orders|2. Licensing schemes
Court orders restricting speech m meet what level of scrutiny?
Strict scrutiny
What is the proper method of challenging a court order?
Procedurally proper court orders must be complied with until they are vacated or overturned; a person who violates a court order is barred from later challenging it
What are the requirements for government licencing schemes?
The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost nondisfretion to the licensing authority
Licensing schemes must contain procedural safeguards such ad prompt determination of a request for licenses and judicial review
Person violating court gag order...
Barred from later challenging the order
When is a law unconstitutionally vague?
If a reasonable person cannot tell what speech is prohibited and what is allowed
When is a law unconstitutionally overbroad?
If it regulates substantially more speech than the constitution allows to be regulated
What type of laws are unconstitutionally vague and overbroad?
Fighting words laws
Fighting words definition
Words directed at another that are likely to provoke a violent response
Under what circumstances may the government regulate symbolic speech?
The government can regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose
Is anonymous speech protected?
Yes
What speech is unprotected or less protected by the First Amendment?
1. Incitement to illegal activity|2. Obscenity and sexually-oriented speech|3. Commercial speech|4. Defamation
What qualifies speech as incitement?
The speech creates a substantial likelihood of imminent lawless activity and is directed at causing imminent illegality
2 Req's for "Incitement of illegal activity"
Substantial likelihood of imminent illegal activity, speech directed to causing imminent illegality
What is the test for obscenity?
1. The material must appeal to the prurient interest (community standard)|2. The material must be patently offensive (statutory standard)|3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national standard)
The government may seize te assets of businesses convicted of violating obscenity laws
Prurient interest
A shameful or morbid interest in sex
May the government use zoning ordinances to regulate to location of adult bookstores and movie theaters?
Yes
Describe the extent to which the government may regulate child pornography
It can be completely banned, even if not obscene, as long as children were actually used in the production of the material
Describe the extent to which the government may regulate the private possession of obscene materials
The government may not punish private possession of obscene materials unless it is child pornography
What exceptions are there to the general rule that profane and indecent speech is protected by the First Amendmet?
1. Over the broadcast media|2. In schools
2 exceptions to protection of profane speech
Broadcast media, schools
What types of commercial speech are not protected by the First Amendment?
Advertising for illegal activity, and false and deceptive ads
Government regulation of other commercial speech (i.e., speech that does not advertise illegal activity, is not false and deceptive, and does not inherently risk deception) must meet what level of scrutiny?
Intermediate scrutiny
Additionally, government regulation of commercial speech must be narrowly tailored, but it does not have to be the least restrictive alternative
What are some examples of true commercial speech that may be limited because it inherently risks deception
strict scrutiny, narrowly tailored, but not necessarily least restrictive
Defamation Req's -- Public Official
Must prove 1) falsity of statement, and 2) actual malice
Defamation Req's -- Public Figure
Must prove 1) falsity of statement, and 2) actual malice
Defamation -- Actual Malice defined
Knew statement was false or acted with reckless disregard for the truth
Defamation Req's -- Private Figure (Public Concern)
Must prove 1) Falsity of statement, 2) negligence of the defendant
Defamation Req's -- Private Figure (Private Concern)
Unclear -- maybe negligence. Burden of proof is on the defendant
Defamation -- private figure -- proof of malice
Only necessary if of public concern and for presumed/punitive damages
What limits does the First Amendment place on liability regarding privacy issues?
1. Liability may not be imposed for the truthful reporting of information lawfully obtained from the government|2. Liability may not be imposed onthe media broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality and it involves a matter of public importance
The government may limit its dissemination of information to protect privacy
Privacy -- illegally intercepted call
Broadcast media has no liability 1) it did not participae in illegality and 2) issue is of public importance
Is speech by government employees on the job in performance of their duties protected by the First Amendment?
No
Other government restrictions based on the conten of speech must meet what level of scrutiny?
Strict scrutiny
What is a public forum
Government properties that the government is constitutionally required to make available for speech
Classic examples of public forums
Sidewalks, parks
What are the rules regarding government regulation of public forums?
1) regulations must be subject matter and viewpoint neutral, |2) regulations must be time, place, or manner restrictions that serve an important government purpose and leaves open adequate alternative places for communication,|3) regulations need not be the least-restrictive alternative,|4) city officials cannot have discretion to set permit fees for public demonstrations
What is a limited public forum
Government properties that the government could close to speech, but chooses to open to speech
The same rules apply as for public forums
What is a non-public forum
Government properties that the government constitutionally can and doesnclose to speech The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral
The interest required here is legitimate
Examples of non-public forums
Airports, military bases, areas outside prisons/jails, city bus advertising, sidewalksin frin of post-offices
Laws that prohibit or punish group activity or that require disclosure of group membership (where such disclosure would chill association) must meet what level of scrutiny?
Strict scrutiny
To punish membership in a group, what must be proven?
That the person:|1. Actively affiliated with the group;|2. Knowing of it's illegal activities; and|3. With the specific intent of furthering those illegal activities
When can the free exercise clause not be used?
To challenge a neutral law of general applicability
However, the government may not deny benefits to individuals who wit their jobs for religious reasons
What is the test for analyzing the constitutionality of a law under the establishment clause?
1) there must be a secular purpose for the law|Must have secular purpose,|2) the effect must neither advance nor inhibit religion,|3) there must not beexcessive entanglement with religion
In order to discriminate against religious speech or among religions the government must meet what level of scrutiny?
Strict scrutiny
Local regulation/restriction of adult businesses
SCOTUS: okay to pacify neighbors/community if 1) substantial governmental interest and 2) not total prohibition (no need to find business actually OBSCENE)
Congressional Use of taxing/spending Power
May do any taxing/spending for "common defense and general welfare"
Congressional postal power
Exclusive power
Congressional Police Power
ONLY for District of Columbia
Requirements for passage of federal law
Congressional majority vote, either signed by President or 2/3 override of veto
State requirements for political candidates
Filing fees okay unless indigent, and the requirement to file a financial statement is okay
MA Sale of Liquor -- how regulated?
MA grants cities and towns broad control -- town can request that state legislature forbit sales in their borders
MA additions to strict scrutiny
Besides race, alienage, and national origin, MA also includes sex, religion, ethnic, and handicap, BUT NOT AGE
MA rational basis test
Classification survives if any facts reasonable justify the harm to the disadvantaged class
MA freedom of religion violation claims
State must prove that requirement is "unusually important governmental goal" and that an excemption would "substantially hinder the fulfillment of the goal"
MA Chapter 151B: Protected Classes
Age (over 40), Handicap (accomodations that wouldn't impose undue financial or administrative burdens), Sex, sexual harassment, sexual orientation, religion
MA Chapter 151B: Procedures
File complaint with MASS Commission Against Discrimination within 6 months, file in superior court if approved by MCAD or if no action within 90 days of submitting to MCAD, right to jury trial
MA Chapter 151B: Remedies
Injunctive relief and compensatory damages (lost wages, future lost wages, emotional distress)
Mass Equal Rights Act
All person have same rights as white males to 1) make and enforce contracts, 2) purchase,lease, and sell real and personal property, 3) equal benefit of laws
MERA: Remedies
Injunctive relief, compensatory, exemplary damages, mandatory attorneys fees
Massachusetts Civil Rights Act (MCRA)
Forbids all persons (public or private) from interfering or attempting to interfere with rights secured by MASS, US Constitution, or laws, through threats, intimidation, or coercion
MCRA: Remedies
Injunctive relief, monetary damages, mandatory award of attorney's fees
Equal Pay Act
1) if substantive content of job is comparable, 2) requiring comparable skills, efforts, responsibilities, 3) maternity leave is mandatory
Mass Public Accommodation law
no discrimination in public places, also no discrimination in membership for organizations that have a regular "space" for meetings (unless membership is HIGHLY SELECTIVE)
Mass Abortion clinic protections
Protestors at least 18 feet from entrance
Freedom of Association -- oaths?
Can ask individuals to take oath swearing no knowing membership with specific intent to further unlawful aims -- but NOT mere membership alone!
3 exceptions to state discrimination of interstate commerce
1) Important state interest and no reasonable non-discriminatory alternatives, 2) State is "Market Participant", 3) performance of traditional government function (taking away of trash)
Federal Property Clause Power
Power "to make all needful rules and regulations respecting territory or other properties belonging to United States" (military bases)
What is the exception to P & I clause of Article IV's prohibition on discrimination against residents of other states
If there is substantial justification for the discrimination and discrimination is least restrictive means of combating the problem
What is an Ad Valorem Tax
Tax based on percentage of assessed value of property after it is no longer in stream of commerce
SCOTUS Original Jurisdiction
Where state is a party, suit involving ambassadors, consuls
Congress Power to Investigate
Limited to areas where Congress has power to legislate
True Threats and 1st Amendment
Content-based restrictions on speech are allowed when "true threats" that create clera and present danger of imminent lawless action
Privileges and Immunities -- who covered?
Only citizens!! Not aliens
Describe the President's removal power
Unless removal is limited bt statute, the President may fire any executive branch officer
To whom does the Bill of Rights directly apply to
Only the federal government
The Bill of Rights is applied to state and local governments through its incorporation into the due process clause o the 14th Amendment
The right to travel
Laws that prevent people from moving into a state must meet strict scrutiny; this includes durational residency requirements
Restrictions on foreign travel need meet only the rational basis test
At-large elections are constitutional unless
There is proof of a discriminatory purpose
Discriminatory impact is not enough
Laws that deny some citizens the right to vote must meet what level if scrutiny
Strict scrutiny
But regulations of the electoral process to prevent fraud only need be on balance desireable
The use of race in drawing election district lines must meet what level of scrutiny
Strict scrutiny
Is there a fundamental right to education
No
May the government fund parochial schools?
Yes, so long as the funds are not used for religious instruction
The government may provide parents vouchers which they may use in parochial schools
May the government sponsor religious activity in public schools?
No, but religious student and community groups must have the same access to school facilities as non-religious groups