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159 Cards in this Set
- Front
- Back
Judicial Power - Article III Powers
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1. INTERPRETATION of Constitution, federal laws, treaties, and admiralty and maritime laws
and 2. DISPUTES between states, states and foreign citizens, and diverse citizens |
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Judicial Power - Judicial Review
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SC may review CONSTITUTIONALITY of acts of other branches and STATE ACTS (Supremacy Clause)
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Judicial Power - Federal Courts - Article III Courts
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Congress may delineate ORIGNAL and APPELLATE jurisdiction but BOUND by Article III standards for SM/PARTY JURISDICTION and CASE OR CONTROVERSY
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Judicial Power - Federal Courts - Article I Courts
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Congress may CREATE courts UNDER ARTICLE I (tax courts)
- NO life TENURE for judges - may NOT assign Article III Jurisdiction |
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Judicial Power - Supreme Court Original Jurisdiction
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All cases affecting AMBASSADORS, PUBLIC MINISTERS, CONSULS, STATE PARTY
*BUT Congress may give CONCURRENT JURISDICTION to lower federal courts EXCEPT BETWEEN STATES |
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Judicial Power - Supreme Court Appellate Jurisdiction
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Over ALL CASES in fed. power.
Cases come to SCOTUS in two ways: 1. WRIT OF CERTIORARI: DISCRETION to hear appeals from state court where constitutionality of law is challenged or all federal court of appeals 2. APPEAL: MUST hear cases appealed by three-judge federal district court panels that grant or deny INJUNCTIVE RELIEF |
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Judicial Power - Justiciability
Advisory Opinions |
NO advisory opinions. Must be a PRESENT HARM or THREAT of specific future harm.
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Judicial Power - Justiciability
Ripeness |
NO REVIEW of law BEFORE ENFORCEMENT unless Plaintiff will suffer HARM or IMMEDIATE THREAT of harm.
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Judicial Power - Justiciability
Mootness |
Controversy must exist at all states EXCEPT when CAPABLE OF REPETITION BUT EVADING REVIEW (e.g.: abortion or D voluntarily stops)
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Judicial Power - Justiciability
Mootness - Class Actions |
CLASS REPRESENTATIVE may continue to pursue action if claims of OTHER MEMBERS are STILL VIABLE
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Judicial Power - Justiciability
Standing - Components |
1. Injury: direct and personal but need not be economic
2. Causation: causal connection between injury and conduct complained of 3. Redressibility: decision in P's favor must be able to eliminate grivance |
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Judicial Power - Justiciability
Standing - Congressional Conferral |
Congress CANNOT GRANT standing when NO INJURY
BUT federal statute can create interests, injury to which may confer standing |
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Judicial Power - Justiciability
Standing - Enforce Government Statutes |
P has standing to enforce if within ZONE OF INTERESTS Congress meant to protect
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Judicial Power - Justiciability
Standing - Rights of Others |
Generally NO THIRD PARTY STANDING
But if P has standing, may assert rights of third party if: 1. Difficult for Third Party to assert own rights; or 2. Special relationship |
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Judicial Power - Justiciability
Standing - Organizations |
Organization has standing if:
1. individual members would have standing; 2. injury is related to org purpose; and 3. individual participation not requires |
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Judicial Power - Justiciability
Standing - Citizenship |
NO STANDING merely as CITIZENS but may have standing under 10th A. if federal action interferes with state powers as long as INJURY
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Judicial Power - Justiciability
Standing - Taxpayer |
NO STANDING to challenge gvt expenditures because interest too remote
**EXCEPT spending under ESTABLISHMENT CLAUSE |
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Judicial Power - Justiciability
Adequate and Independent State Grounds |
SCOTUS will not exercise jurisdiction over state court judgment if based on adequate and independent state law grounds.
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Judicial Power - Justiciability
Abstention |
1. Unsettled questions of state law: temporarily abstain when constitutional claims rests on unsettled question of state law
2. Pending state proceedings: Federal Courts will not enjoin pending criminal proceedings EXCEPT in PROVEN HARASSMENT or prosecutions in BAD FAITH |
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Judicial Power - Justiciability
Political Questions |
Federal courts will not decide political questions:
1. Constitutionally committed to another branch of government 2. inherently incapable of judicial resolution |
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Judicial Power - Justiciability
Eleventh Amendment Limitations |
Federal Courts may not hear PRIVATE PARTY or FOREIGN GOVERNMENT claim AGAINST STATE GOVERNMENT
**does NOT apply to actions against LOCAL governments, actions by the US or other states, or bankruptcy proceedings |
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Judicial Power - Justiciability
Sovereign Immunity |
Prevents state from being sued in state court, even on federal claims, unless state consents
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Judicial Power - Justiciability
Eleventh Amendment - Exceptions |
1. State Officers:
-actions to ENJOIN conduct that violates Constitution or federal law -actions for DAMAGES PERSONALLY 2. Congress Removes Immunity as to Fourteenth Amendment -must be unmistakably clear |
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Legislative Power - Enumerated and Implied Powers
Necessary and Proper Power |
Make all laws necessary and proper for executing ANY POWER granted to ANY BRANCH of government
*cannot alone support legislation; must be with another federal power |
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Legislative Power - Enumerated and Implied Powers
Taxing Power |
Tax upheld if REASONABLE RELATION TO REVENUE PRODUCTION or Congress has POWER TO REGULATE the activity taxed
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Legislative Power - Enumerated and Implied Powers
Spending Power |
May spend to provide for the COMMON DEFENSE and GENERAL WELFARE -- ANY PUBLIC PURPOSE
*can spend for but not directly regulate any public purpose |
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Legislative Power - Enumerated and Implied Powers
Commerce Power |
EXCLUSIVE power to regulate foreign and interstate commerce.
Covers: 1. CHANNELS of interstate commerce; 2. INSTRUMENTALITIES of interstate commerce; and 3. Activities that have a SUBSTANTIAL EFFECT on interstate commerce (INTRASTATE activities count if IN AGGREGATE substantially affects) |
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Legislative Power - Enumerated and Implied Powers
War Powers |
Declare war, raise and support armies, provide for an maintain navy
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Legislative Power - Enumerated and Implied Powers
War Powers - Military Courts and Tribunals |
- NO general power for JUDICIAL REVIEW of court-martial proceedings
- ENEMY CIVILIANS and SOLIDERS tried; Congress cannot deny HABEAS CORPUS to aliens absent meaningful substitute - jurisdiction over ALL OFFENSES by American soliders at time of offense and when charged - CIVILIANS may be tried only when actual warfare forces federal courts to shut down |
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Legislative Power - Enumerated and Implied Powers
Investigatory Power |
Implied power; investigation must be expressly or impliedly authorized by congressional house
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Legislative Power - Enumerated and Implied Powers
Property Power |
DISPOSE of and MAKE RULES for territories and other properties of US.
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Legislative Power - Enumerated and Implied Powers
No Federal Police Power |
Congress has no general police power.
HOWEVER police-TYPE powers over DC, federal lands, military bases, and Indian reservations |
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Legislative Power - Enumerated and Implied Powers
Bankruptcy Power |
NONEXCLUSIVE power to establish uniform rules for bankruptcy
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Legislative Power - Enumerated and Implied Powers
Postal Power |
EXCLUSIVE power to place reasonable restrictions on use of mail, but may NOT DEPRIVE any citizen or group general mail privilege
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Legislative Power - Enumerated and Implied Powers
Power Over Citizenship |
1. Exclusion of aliens: no right to enter US; but RESIDENT ALIENS must be given notice and hearing before they can be deported
2. Naturalization: EXCLUSIVE power; however, may not take away citizenship without consent |
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Legislative Power - Enumerated and Implied Powers
Admiralty Power |
EXCLUSIVE unless Congress leaves maritime matters to state jurisdiction
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Legislative Power - Enumerated and Implied Powers
Coin Money and Fix Weights and Measurements |
Self - explanatory
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Legislative Power - Enumerated and Implied Powers
Patent/Copyrights |
Control issuance of patents and copyrights
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Legislative Power - Delegation
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May GENERALLY DELEGATE to executive or judicial branch if INTELLIGIBLE STANDARDS and power NOT UNIQUELY confined to Congress
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Legislative Power - Speech and Debate Clause
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Conduct in REGULAR COURSE of FEDERAL LEGISLATIVE PROCESS are immune from prosecution
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Legislative Power - Congressional "Veto"
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Legislative veto is an attempt to overturn executive agency action without bicameralism or presentment and is INVALID.
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Executive Power - Domestic Powers
Appointment |
Appoints AMBASSADORS, other PUBLIC MINISTERS AND CONSULS, JUSTICES of SUPREME COURT, and all OTHER OFFICERS OF US with advice and consent of Senate.
Congress may vest appointment of INFERIOR OFFICERS in President, courts, or head of department. Congress itself may NOT appoint members with administrative or enforcement powers. |
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Executive Power - Domestic Powers
Removal by President |
President can remove high level, purely executive officers at will. HOWEVER, Congress may provide STATUTORY LIMITATIONS.
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Executive Power - Domestic Powers
Removal by Congress |
Congress may remove executive officers ONLY by IMPEACHMENT.
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Executive Power - Domestic Powers
Pardons |
President may pardon FEDERAL OFFENSES except for IMPEACHMENT or CIVIL CONTEMPT.
*Power cannot be limited by Congress |
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Executive Power - Domestic Powers
Veto |
- May veto an act; but overridden by 2/3 vote of each house
- 10 days to exercise; if not, vetoed if Congress not in sessions and law if Congress is in session - LINE ITEM VETOES are UNCONSTITUTIONAL; must approve or reject total |
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Executive Power - Domestic Powers
Chief Executive |
Power over internal affairs:
- if with express or implied AUTHORITY OF CONGRESS, authority at maximum and actions likely valid; - if CONGRESS SILENT, action UPHELD UNLESS USURPS POWER of another branch - if AGAINST EXPRESS WILL OF CONGRESS, little authority and action LIKELY INVALID |
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Executive Power - External Affairs Powers
War |
NO power to DECLARE WAR but may act militarily in actual hostilities against US without Congress declaration
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Executive Power - External Affairs Powers
Treaties |
President has power to enter into treaties; effective upon ratification of 2/3 vote of Senate
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Executive Power - External Affairs Powers
Treaties - Supremacy |
- conflicting STATE LAWS are invalid
- conflicting FEDERAL LAWS -- last in time prevails - conflicting CONSTITUTION - treaty is invalid |
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Executive Power - External Affairs Powers
Executive Agreements |
Signed by the POTUS and head of foreign country; same purposes as treaties.
Do NOT require Senate consent. |
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Executive Power - External Affairs Powers
Executive Agreements - Supremacy |
- preempt State laws
- Federal laws preempt |
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Executive Power - Executive Privilege
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POTUS privilege to keep certain communications secret, esp. national security secrets.
EXCEPTION for PROSECUTION of CRIMINAL PROCEEDINGS where demonstrated need |
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Executive Power - Executive Immunity
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POTUS is ABSOLUTELY IMMUNE from civil damages based on action within official responsibilities.
NO IMMUNITY for acts before taking office. AIDES may share immunity if DISCRETIONARY AUTHORITY. |
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Executive Power - Impeachment
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POTUS, VP, and all civil officers subject to impeachment for TREASON, BRIBERY, HIGH CRIMES, AND MISDEMEANORS.
MAJORITY vote by HOUSE to INVOKE charges. TWO-THIRDS vote by SENATE to CONVICT and REMOVE |
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Federal/State Powers - Exclusive Federal Powers
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1. Expressly limited by Constitution
2. Inherent: power can only be exercised by federal government |
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Federal/State Powers - Exclusive State Powers
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Powers not delegated to federal government are reserved to the states.
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Federal/State Powers - Concurrent Powers
Supremacy Clause |
1. If CONFLICT, state law is INVALIDATED.
2. If PREVENTS FEDERAL OBJECTIVE, state law is INVALIDATED. 3. If Federal law OCCUPIES FIELD, state law is preempted even if non-conflicting |
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Federal/State Powers - Full Faith and Credit
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Judgment must be recognized in sister states if:
1. Court had JURISDICTION over parties and subject matter; 2. Judgment on the MERITS; and 3. FINAL judgment |
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Intersovereign Litigation
US v. State |
US can sue state without consent
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Intersovereign Litigation
State v. US |
Public policy forbids suing US without its consent. Congress can permit US to be sued.
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Intersovereign Litigation
Federal Officer |
- suit against officer deemed against US if judgment would be satisfied out of US Treasury
- specific relief granted if officer acted ULTRA VIRES |
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Intersovereign Litigation
State v. State |
May sue without consent. SCOTUS has exclusive original jurisdiction.
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No Commandeering
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Congress may not require state executive officials to enforce federal laws.
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State Taxation of Federal Instrumentalities
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May not DIRECTLY tax without Congress consent.
NONDISCRIMINATORY, INDIRECT taxes ok if do not unreasonably burden. |
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Privileges and Immunities
Article VI - General |
Article VI prohibits discrimination by state against NONRESIDENTS.
*does NOT apply to CORPORATIONS or ALIENS |
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Privileges and Immunities
Article VI - Rights Protected |
Fundamental rights: commercial activities and civil liberties
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Privileges and Immunities
Article VI - Exception |
State law may be valid if SUBSTANTIAL JUSTIFICATION for different treatment.
NO LESS RESTRICTIVE MEANS. |
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Privileges and Immunities
Article VI and Commerce Clause |
Consider together
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Privileges and Immunities
Fourteenth Amendment |
States may not deny citizens privileges or immunities of national citizenship
*NOT apply to CORPORATIONS |
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Federal/State Regulation - Interstate Commerce
Congress Powers |
1. SUPERSEDE conflicting STATE LAW
2. May PERMIT state law that would otherwise violate or PROHIBIT state law that would otherwise be upheld |
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Federal/State Regulation - Interstate Commerce
Dormant Commerce Clause - General |
Even where Congress has not acted, Commerce Clause restricts state regulation of interstate commerce.
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Federal/State Regulation - Interstate Commerce
Dormant Commerce Clause - Discriminatory Regulations |
Almost always invalid
EXCEPT: 1. important, noneconomic STATE INTEREST and NO REASONABLY NONDISCRIMINATORY ALTERNATIVES 2. State is a MARKET PARTICIPANT 3. Performance of a TRADITIONAL GOVERNMENT FUNCTION |
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Federal/State Regulation - Interstate Commerce
Dormant Commerce Clause - Nondiscriminatory Laws |
If burdens interstate commerce, valid UNLESS BURDEN OUTWEIGHS a legitimate LOCAL INTEREST
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Federal/State Regulation - Liquor
Intrastate Interstate Federal Power |
INTRASTATE: STATE governments have WIDE LATITUDE over importations and conditions under which SOLD or USED
INTERSTATE: subject to Commerce Clause FEDERAL POWER: may regulate through Commerce power or conditioning grants of money |
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State Taxation
Discriminatory Taxes |
State taxes that DISCRIMINATE AGAINST INTERSTATE COMMERCE VIOLATE COMMERCE CLAUSE unless AUTHORIZED.
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State Taxation
Nondiscriminatory Taxes |
Valid if:
1. SUBSTANTIAL NEXUS to taxing state; 2. FAIR APPORTIONMENT according to rational formula; and 3. FAIR RELATIONSHIP to services provided by state |
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State Taxation
Use Taxes |
VALID
Imposed on goods purchased out of state but used in state |
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State Taxation
Ad Valorem Property Taxes - General |
Based on assessed value of property
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State Taxation
Ad Valorem Property Taxes - Commodities in Interstate Commerce |
Entirely exempt from state taxation
- begins when DELIVERED to INTERSTATE CARRIER or STARTS interstate JOURNEY - BREAK does NOT destroy INTERSTATE CHARACTER unless intended to end - ENDS when reaches destination -- THEN subject to tax |
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State Taxation
Ad Valorem Property Taxes - Instrumentalities |
Validity depends on:
1. whether TAXABLE SITUS to taxing state; and 2. whether value has been PROPERLY APPORTIONED to amount of contact with taxing state |
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State Taxation
"Doing Business" Taxes: Privilege, License, Franchise, or Occupational |
Generally valid if:
1. activity taxed has a SUBSTANTIAL NEXUS to taxing state; 2. FAIRLY APPORTIONED; and 3. FAIRLY RELATE TO SERVICES PROVIDED |
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Limitations on Government Power
Bill of Rights |
First 10 Constitutional amendements limit FEDERAL power; but 14th A. DUE PROCESS applied almost all to state EXCEPT:
- 5th A. right to GRAND JURY indictment - 7th A. right to JURY TRIAL in CIVIL case |
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Limitations on Government Power
Thirteenth Amended |
Prohibits SLAVERY and INVOLUNTARY SERVITUDE.
Government can PROHIBIT racially discriminatory action by anyone, even PRIVATE CITIZEN. |
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Limitations of Government Power
Fourteenth and Fifteenth Amendments- General |
14th: Prohibits STATES from depriving LIFE, LIBERTY, or PROPERTY without DUE PROCESS and EQUAL PROTECTION.
15th: prohibits FEDERAL and STATE from DENYING right to VOTE because of race or color. Requires STATE ACTION. |
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Limitations on Government Power
Fourteenth Amendment - Section 5 |
Gives Congress power to adopt APPROPRIATE LEGISLATION to enforce.
CANNOT create NEW RIGHTS, only prevent violation of EXISTING RIGHTS. Must identify PATTERN OF VIOLATION and adopt legislation that is CONGRUENT AND PROPORTIONAL. |
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Limitations on Government Power - Rights Over Individuals
Commerce Clause |
Congress may PROHIBIT PRIVATE RACIAL DISCRIMINATION in activities that have SUBSTANTIAL EFFECT on interstate COMMERCE.
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State Action Requirement
Two Ways |
1. Exclusive PUBLIC FUNCTION: activities traditionally the exclusive prerogative of the state
2. Significant STATE INVOLVEMENT: state affirmatively facilitates, encourages or authorizes acts of discrimination |
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Retroactive Legislation
Contract Clause - Private and Public Contracts |
Prohibits STATES from enacting laws that RETROACTIVELY IMPAIR contracts:
1) PRIVATE CONTRACTS -- INTERMEDIATE SCRUTINY Invalid unless: i) important and legitimate public purpose; and ii) reasonably and narrowly tailors 2) PUBLIC CONTRACTS -- STRICT SCRUTINY Stricter scrutiny, esp. if reduces contractual burdens on the state **DOES NOT APPLY TO FEDERAL GOVERNMENT |
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Retroactive Legislation
Ex Post Facto Laws |
STATE/FEDERAL may not crate law that RETROACTIVELY alters CRIMINAL OFFENSES or PUNISHMENTS:
- makes criminal an act that was INNOCENT WHEN DONE - GREATER PUNISHMENT than when act was done - REDUCES EVIDENCE required to convict |
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Retroactive Legislation
Bills of Attainder |
STATE/FEDERAL may not pass LEGISLATIVE ACT that inflict PUNISHMENT WITHOUT judicial TRIAL.
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Retroactive Legislation
Due Process |
Retroactive laws must also pass due process.
If NOT FUNDAMENTAL right, only needs to pass RATIONAL BASIS. |
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Procedural Due Process
General |
Intentional government taking of LIFE, LIBERTY, OR PROPERTY requires a FAIR PROCESS
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Procedural Due Process
Meaning of "Liberty" |
1. Loss of SIGNIFICANT FREEDOM of action
2. Denied FREEDOM provided by CONSTITUTION or STATUTE |
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Procedural Due Process
Meaning of "Property" |
Must have LEGITIMATE CLAIM or ENTITLEMENT (includes public school, welfare, and sometimes government employment)
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Procedural Due Process
Type of Process Required |
3-part Balancing Test:
1. IMPORTANCE of INTEREST 2. Value of PROCEDURAL SAFEGUARDS 3. GOVERNMENT INTEREST in fiscal/administrative efficiency |
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Procedural Due Process
Access to Courts - Indigent Plaintiffs |
FEES must be WAIVED when fee would DENY FUNDAMENTAL RIGHT
ex: marriage/divorce *fees ok for nonfundamental rights |
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Taking Clause - General
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Fifth Amendment prohibits PRIVATE PROPERTY to be taken for PUBLIC USE without JUST COMPENSATION
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Taking Clause
Public Use |
Public use requires the government action be RATIONALLY RELATED to a LEGITIMATE PUBLIC PURPOSE
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Taking Clause - Taking vs. Regulation
Actual Appropriation/Physical Invasion |
Almost always taking
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Taking Clause - Taking vs. Regulation
Use Restrictions |
1. TAKING if regulation leaves NO ECONOMIC USE
(but TEMPORARY NOT per se takin; Court considers relevant circumstances to determine whether fairness and justice require compensation) 2. Regulations that DECREASE VALUE are NOT TAKINGS if leave ANY ECONOMICALLY VIABLE USE |
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Taking Clause
Just Compensation |
CONDEMNATION:
- Government pays land owner FAIR MARKET VALUE REGULATION: - Landowner can bring action for INVERSE CONDEMNATION; if TAKING, government can: -- pay FMV; or -- TERMINATE REGULATION and pay DAMAGES |
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Substantive Due Process and Equal Protection - Which to Use
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SDP: limits ALL PERSONS to engage in activity
EP: treats PERSON or CLASS differently |
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Substantive Due Process and Equal Protection - Standard
Strict Scrutiny (definition and when to use) |
Government must prove law is NECESSARY to achieve a COMPELLING government purpose.
SDP -- FUNDAMENTAL RIGHTS: interstate travel, privacy, voting, and First Amendment EP -- SUSPECT CLASS: race, national origin, alienage |
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Substantive Due Process and Equal Protection - Standard
Intermediate Scrutiny (definition and when to use) |
SUBSTANTIALLY related to an IMPORTANT government purpose
EP -- QUASI-SUSPECT CLASS: gender, legitimacy |
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Substantive Due Process and Equal Protection - Standard
Rational Bases (definition and when to use) |
Challenger must show it is not RATIONALLY related to a LEGITIMATE government purpose
SDP -- NON-FUNDAMENTAL right EP -- NOT suspect or quasi-suspect class (age, disability, property) *upheld unless arbitrary or irrational |
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Substantive Due Process
Irrebuttable Presumptions |
May be IVALID if FACTS are PRESUMED against a person so that they are NOT QUALIFIED for an IMPORTANT BENEFIT
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Equal Protection
Proving Discriminatory Classification |
Three ways:
1. discriminatory ON ITS FACE; 2. DISCRIMINATORY APPLICATION of facially neutral law; and 3. DISCRIMINATORY MOTIVE behind law (ex: history of discrimination) |
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Equal Protection
Suspect Classifications - Race and National Origin Benign Discrimination/Affirmative Action - Standard? |
Subject to STRICT SCRUTINY
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Equal Protection
Suspect Classifications - Race and National Origin Affirmative Action - Past Discrimination |
Compelling government interest in remedying PERSISTENT and IDENTIFIABLE past discrimination, not general past societal discrimination
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Equal Protection
Suspect Classifications - Race and National Origin Affirmative Action - No Past Discrimination |
MAY have compelling interest in affirmative action but must be NARROWLY TAILORED
ex: may consider race in college admissions, but can't be defining factor |
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Equal Protection
Suspect Classifications - Alienage Federal Classifications |
NOT subject to STRICT SCRUTINY because of plenary power over aliens
VALID UNLESS ARBITRARY or UNREASONABLE |
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Equal Protection
Suspect Classifications - Alienage State/Local Classifications |
STRICT SCRUTINY UNLESS participation in STATE GOVERNMENT (voting, jury service, police officers, public school teachers), then RATIONAL BASIS
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Equal Protection
Suspect Classifications - Alienage Undocumented Aliens |
NOT SUSPECT classification, apply RATIONAL BASIS EXCEPT public education to undocumented children
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Equal Protection
Quasi-Suspect Classifications - Gender Women |
INTENTIONAL discrimination AGAINST women generally INVALID.
Classifications BENEFITTING women generally VALID when REMEDYING PAST DISCRIMINATION. |
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Equal Protection
Quasi-Suspect Classifications - Gender Men |
INTENTIONAL discrimination AGAINST men generally INVALID
*SOME laws pass intermediate scrutiny (statutory rape, draft) |
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Equal Protection
Quasi-Suspect Classifications - Legitimacy |
INTERMEDIATE SCRUTINY
Discrimination to PUNISH illegitimate children is INVALID *but may require that parenthood be established |
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Fundamental Rights - Privacy
List the 7 Fundamental Rights |
1. Marriage
2. Contraceptives 3. Abortion* 4. Obscene Reading Material 5. Family (extended family together) 6. Rights of Parents (care, custody, and control of children) 7. Intimate Sexual Conduct |
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Fundamental Rights - Privacy
Abortion - Pre-Viability |
State cannot regulation if it creates an UNDUE BURDEN on right to obtain an abortion.
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Fundamental Rights - Privacy
Abortion - Post-Viability |
May regulate but cannot prohibit if necessary to protect health or safety
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Fundamental Rights - Vote
Residency Requirements |
State MAY impose REASONABLE residency requirements
*Congress may override for Presidential elections with own requirements. |
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Fundamental Rights - Vote
Dilution - One Person, One Vote |
Congress: must use ALMOST EXACT MATHEMATICAL EQUALITY for state districts
State/Local: must not be off by a few percentage points |
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Fundamental Rights - Vote
Gerrymandering |
CANNOT use RACE as PREDOMINANT FACTOR in drawing boundaries
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Fundamental Rights - Travel
Interstate Travel |
FUNDAMENTAL right to MIGRATE state to state and be TREATED EQUALLY, though some residency requirements are ok
(ex: 30 day to vote; one year to divorce) |
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Fundamental Rights - Vote
International Travel |
NOT a fundamental right; RATIONAL BASIS applies
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Freedom of Speech - Government Speech
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First Amendment restricts regulation of private speech; government can express its views and aid private views
Funding of speech generally upheld if meets rational basis. |
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Freedom of Speech - Content vs. Conduct
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CONTENT: restrictions based on content must meet INTERMEDIATE SCRUTINY; presumptively unconstitutional
CONDUCT: restrictions on conduct ok if content-neutral TIME, PLACE AND MANNER restrictions |
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Freedom of Speech - Reasonableness of Regulation
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Regulation is UNCONSTITUTIONAL if:
1. OVERBROAD: punishes SUBSTANTIAL AMOUNT of PROTECTED SPEECH 2. VAGUE: fails to give reasonable notice of what is prohibited 3. UNFETTERED DISCRETION: gives officials UNBRIDLED DISCRETION without DEFINITE STANDARDS |
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Freedom of Speech - Symbolic Speech
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SYMBOLIC ACTS intended to COMMUNICATE an idea are protected; ALTHOUGH the government MAY REGULATE if IMPORTANT interest INDEPENDENT OF SPEECH
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Freedom of Speech - Public Forums and Designated Public Forums
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Government MAY REGULATE speech on public property OPEN to speech activities and which the government DESIGNATES for SPEECH ACTIVITIES AS LONG AS:
1. content neutral 2. narrowly tailored to important government interest 3. alternative channels of communications |
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Freedom of Speech - Limited Public Forums and Nonpublic Forums
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MAY REGULATE to reserve forum for intended use if:
1. viewpoint neutral; and 2. reasonably related to a legitimate government purpose |
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Freedom of Speech - Content Regulations
Standard |
STRICT SCRUTINY -- necessary to achieve a compelling government action
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Freedom of Speech - Content Regulations
Incitement |
Speech can be burdened if it creates a CLEAR AND PRESENT DANGER of IMMINENT LAWLESS ACTION.
*lawless action must be likely and speaker must have intended |
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Freedom of Speech - Content Regulations
Fighting Words |
May burden TRUE THREATS or ABUSIVE WORDS likely to INCITE IMMEDIATE PHYSICAL RETALIATION
**ok in theory, but usually vague or overbroad |
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Freedom of Speech - Content Regulations
Obscenity - Protected? and Define |
NOT PROTECTED
1. Appelas to PRURIENT INTEREST (by community standard) 2. PATENTLY OFFENSIVE (by community standard); and 3. LACKS SERIOUS VALUE (by national standard) |
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Freedom of Speech - Content Regulations
Defamatory Speech - Public Official or Public Concern |
Plaintiff must prove defamation plus FALSITY and MALICE
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Freedom of Speech - Content Regulations
Commercial Speech |
Generally protected if TRUTHFUL, not relating to UNLAWFUL ACTIVITY or FALSE OR MISLEADING
Regulate if: 1. serves a SUBSTANTIAL GOVERNMENT INTEREST; 2. DIRECTLY ADVANCES interest; and 3. NARROWLY TAILORED to serve interest (reasonably fit) |
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Freedom of Speech - Prior Restraints
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Government must show SPECIAL SOCIETAL HARM:
1. Standards NARROWLY DRAWN, REASONABLE AND DEFINITE; 2. Injunction must be PROMPTLY SOUGHT; and 3. PROMPT AND FINAL DETERMINATION of validity |
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Freedom of Press - Access to Trials
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First Amended guarantees right, including voir dire and pretrial unless judge rules otherwise.
May be OUTWEIGHED by OVERRIDING INTEREST |
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Freedom of Association
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Freedom to associate with ideological groups; implied from explicit rights.
Government may inhibit if COMPELLING government interest unrelated to suppression of ideas and uses LEAST RESTRICTIVE MEANS. |
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Freedom of Association - Electoral Process
Election Laws Affecting Speech - Standard |
BALANCING TEST:
If restriction on First Amendment is SEVERE, apply STRICT SCRUTINY. If restriction is reasonable and nondiscriminatory, usually upheld. |
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Freedom of Association - Electoral Process
Limits on Contributions - Standard and Acceptable Limits |
INTERMEDIATE SCRUTINY.
MAY LIMIT contribution amount to a CANDIDATE; may NOT LIMIT amount to support to oppose BALLOT REFERENDUM *except for groups formed to participate in the political debate |
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Freedom of Association - Electoral Process
Limits on Expenditures |
MAY NOT limit amount a candidate can spend or amount a person can expend to get a candidate elected (provided not directly to candidate)
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Freedom of Association - Electoral Process
Core Political Speech |
Only upheld if STRICT SCRUTINY.
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Freedom of Association - Public Employment
Restraints on Conduct |
IF Government first employee for speech:
-Matter of PUBLIC CONCERN: balance rights as citizen with interest in efficient performance of public service -NOT PUBLIC CONCERN: defer to employer's judgment concerning whether speech was disruptive **EXCEPTION: MAY PUNISH speech when PURSUANT TO OFFICIAL DUTIES |
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Freedom of Association - Public Employment
Participation in Political Campaigns |
Government MAY PROHIBIT EXECUTIVE branch employees from taking active part in political campaigns
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Freedom of Association - Public Employment
Honoraria |
BAN on honoraria VIOLATES when applied to RANK AND FILE employees
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Freedom of Association - Public Employment
Employment Actions and Party Affiliation |
NO employment actions based on party affiliation EXCEPT POLICYMAKING positions where affiliation is relevant
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Freedom of Association - Public Employment
Loyalty Oaths |
Acceptable, as long as NOT OVERBROAD OR VAGUE
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Freedom of Association - Public Employment
Disclosure of Associations |
May not force disclosure of organizational membership in exchange for employment or benefit
May inquire into activities relevant to employment |
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First Amendment - School Sponsorship of Extracurricular Clubs
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NOT STRICT SCRUTINY.
Regulation must be VIEWPOINT NEUTRAL and REASONABLY RELATED TO A LEGITIMATE PUBLIC INTEREST. |
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Freedom of Religion - Free Exercise Clause
No Punishment of Beliefs |
Prevents:
- requiring RELIGIOUS OATH for government employees - EXCLUDING CLERICS from holding public office - declaring RELIGIOUS BELIEF FALSE |
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Freedom of Religion - Free Exercise Clause
General Conduct Regulations |
Free Exercise Clause PROHIBITS INTERFERENCE with BELIEFS but does NOT prohibit general regulation of CONDUCT.
EXCEPTIONS: 1. UNEMPLOYMENT BENEFITS for people who quit for religious reasons 2. AMISH exempted from law requiring children to attend school until 16 |
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Freedom of Religion - Establishment Clause
Sect Preference |
Laws showing PREFERENCE for one religion over another are INVALID UNLESS NARROWLY TAILORED to COMPELLING INTEREST
*existence of any compelling interest unlikely |
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Freedom of Religion - Establishment Clause
No Sect Preference - Lemon Test |
Law is valid if:
1. SECULAR PURPOSE; 2. PRIMARY EFFECT neither advances nor inhibits religion; and 3. does not produce EXCESSIVE GOVERNMENT ENTANGLEMENT |
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Freedom of Religion - Establishment Clause
Lemon Test Application Financial Benefit -- Recipient-Based Aid |
May aid defined class if defined without reference to religion.
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Freedom of Religion - Establishment Clause
Lemon Test Application Financial Benefit -- Colleges and Hospitals |
Upheld if program REQUIRES aid be used for NONRELIGIOUS PURPOSES and RECIPIENT AGREES
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Freedom of Religion - Establishment Clause
Lemon Test Application Financial Benefit -- Grade and High Schools |
Usually pass secular purpose, but may fail for other reasons
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Freedom of Religion - Establishment Clause
Lemon Test Application Religious Activities in Public Schools |
School SPONSORED religious activity is INVALID; but school ACCOMMODATION is VALID
*If allows public to use space, cannot deny to religious groups simply because of religion. |