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99 Cards in this Set
- Front
- Back
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A case is not "ripe" for filing in federal court if __________. |
the plaintiff has not been harmed and there is no immediate threat of harm
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A political question exists when __________. |
an issue is committed to another branch of the federal government |
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The Supreme Court will refuse to hear a case from a state’s highest court if __________. |
Adequate and Independent state grounds support the state court decision
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Article III establishes the Supreme Court’s appellate jurisdiction but also... |
Congress may regulate and make exceptions to this appellate jurisdiction.
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Eleventh Amendment/Soverign Immunity |
A person cannot sue a state for money damages in the state's own court or federal court unless state consents, injunctive relief, against state official personally pays, Congress expressly says so to enforce 14th amendment |
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For a plaintiff to have standing to bring an action in federal court, the following are all required: |
• Injury in Fact |
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Elements of Organizational Standing? |
an organization has standing if: |
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A plaintiff has standing to sue on behalf of third parties if: |
the plaintiff herself has been injured and the plaintiff’s injury adversely affects her relationship with third parties. |
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A plaintiff may sue on behalf of a third party who has difficulty asserting its rights, but only if:
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the plaintiff herself has also been injured. |
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What constitutional provision prevents states from discriminating against nonresident citizens in matters involving fundamental rights? |
Privileges & Immunities Clause of Article IV
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Commercial Speech Regulation: |
A total ban on truthful advertising is unconstitutional, but restrictions on advertising are okay so long as they are reasonable.
4 part test (1) must concern lawful activity & be neither false nor misleading (2) asserted gov't interest must be substantial (3) must advance asserted interest (4) narrowly tailored to serve interest "reasonable fit" between gov't ends and means to accomplish them |
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When a state or municipality discriminates in favor of resident citizens against non-resident (out-of state) citizens on matters of commerce and civil rights, which clause is violated? |
Privileges & Immunities Clause of Article IV. |
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Strict Scrutiny is applied to a state law that discriminates against resident aliens. What is the exception that applies rational basis to state classifications based on alienage?
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Important Governmental Function exception: |
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when you see a state law treating similarly situated people differently what constitutional principle is triggered?
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Equal Protection clause of 14th Amendment.
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What standard applies to state discrim based on National Origin, Race, or Alienage?
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Strict Scrutiny
Least Restrictive Means Narrowly Tailored |
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What standard applies to state discrim based on Sex (gender), Illegitimacy, or Children of undocumented immigrants?
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Intermediate Scrutiny |
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When state law disc rims based on age, wealth, disability, etc what level of scrutiny applies?
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Rational Basis |
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Congress' power to tax and spend is NOT plenary, there must be a __ basis.
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rational
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Bill of attainder |
a legislative punishment of a named individual w/out notice and a hearing violates what? |
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Where an act of Congress conflicts with a treaty, which prevails? |
the most recent prevails. |
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Congress and the President have concurrent control over the armed forces. |
President: |
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Thirteenth Amendment |
outlaw badges of slavery both private and state actor |
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Source of Congressional Power? |
Property Power
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who appoints "all ambassadors, other public ministers and consuls, justices of the supreme court"? |
Executive
*w/ advice and consent of the senate |
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who may vest the appointment of inferior officers in the Pres only, the courts, or heads of departments?
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Congress
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Congress may NOT appoint members of a commission with administrative or __ powers.
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enforcement
*enforcement power = executive act |
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if the president vetoes an act by Congress, the act can still become law if the veto is overridden by __ vote of EACH house. |
2/3
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President can pardon federal offenses but cannot pardon. |
impeachment or civil contempt |
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Congress may regulate or tax state and local gov'ts so long as the law or tax applies to both the public sector and the __ sector. |
Private
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Privileges and immunities clause of Art IV: |
state has a SUBSTANTIAL justification and no less restrictive means.
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a state/local action that does NOT discriminate may still be invalid if---the law burdens interstate commerce and the burden: |
outweighs legitimate local interests
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State taxes that do NOT discriminate against interstate commerce (e.g., taxes out-of-sate business same as in-state business) will be valid if: |
State taxes that do NOT discriminate against interstate commerce (e.g., taxes out-of-sate business same as in-state business) will be valid if:
•substantial nexus, •fair apportionment, •Fair relationship |
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commodities in interstate transit are entirely __ from state taxation. |
exempt
*interstate transit ends when goods reach destination-only then are the goods subject to local tax |
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federal or state gov't denial of a citizen the right to vote on account of race or color is invalid under the __ Amendment. |
15th
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under the broadly construed commerce power, Congress may prohibit __ racial discrimination in activities that might have a substantial effect on interstate commerce. |
PRIVATE |
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Symbolic Speech Regulation permissible if: |
•IMPORTANT government interest, |
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Regulation of truthful and non-misleading commercial speech: |
-Substantial;
-narrowly |
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To be valid, a time, place, and manner regulation of a non public forum must be __________. |
viewpoint neutral & |
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Procedural Due Process: |
Notice & Hearing |
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Procedural Due Process: |
POST-termination hearing
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Laws enacted under the Enabling Clause of the Fourteenth Amendment must be |
Congress can enforce EP & DP rights as defined by SCOTUS but cannot create or expand existing rights only prevent/remedy violation if:
congruent and proportional to preventing or remedying the violation in question.
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The Contract Clause applies only to __________. |
STATE legislation |
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The idea that laws be reasonable and not arbitrary is the province of the |
Due Process (substantive)
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The constitutional provision that states may not discriminate against residents of other states is within the province of the ____________. |
14th Amend. Privileges and Immunities Clause
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A ____ law which denies government benefits to an individual based on alienage is subject to strict scrutiny. |
STATE
compare: -federal classifications based on alienage generally are tested under the "rational basis" test |
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which standard is used to determine constitutionality in age-based equal protection cases? |
Rational basis
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A law or government program that contains a preference for one or some religious groups over others will be invalid unless __________.
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narrowly tailored to serve a compelling government interest |
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When must an agreement between states be approved by congress? |
when it's a COMPACT |
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States may impose nondiscriminatory, indirect taxes on the federal government or its property as long as they do not ______________ the federal government. |
unreasonably burden
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May a state require federal employees to have a valid driver’s license to drive within the state while performing job duties? |
NO.
-states may NOT regulate the federal government without the federal government’s consent. |
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Under the “substantial economic effect” test, may Congress regulate local economic or commercial local activities? |
Yes, if the court can CONCIEVE of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. |
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when will Congress’s regulation of noncommercial, noneconomic intrastate activities be upheld?
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if Congress can factually show a substantial economic effect on interstate commerce
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a content based speech restriction of a public forum is subject to __________, but a content neutral restriction is subject to ________. |
•Strict Scrutiny |
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Content based OR Content neutral restriction in a nonpublic forum is subject to ______. |
reasonable in light of nature of forum. |
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Strict Scrutiny |
Least Restrictive Means Narrowly Tailored |
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Viewpoint based restrictions in a nonpublic forum are subject to |
Strict Scrutiny |
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Mootness |
Must be a live controversy at evey stage unless (1) continuously capable of repitition but evading review (2) D voluntarily ceases illegal/wronglful behavior - until court satisfied wrong won't repeat (3) Named P claim in class action is resolved |
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Advisory Opinion |
No unless live case or controversy |
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Declaratory Judgment |
must be real or immediate danger |
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Commerce Power |
Congress can regulate (1) channels of IC (2) instrumentalities of IC (3) any activity substantially affect IC |
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Tax & Spending Power |
Tax: Reasonable Relationship to revenue production or if Congress can regulate activity being taxed. Congress has plenary power to tax & raise revenue (or any public purpose through the General Welfare Clause)
Spending: Congress can spend for the General Welfare (any public purpose) including conditional federal funding |
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Necessary & Proper Clause |
Power to enact any legislation necessary & proper to execute federal authority but clause is not an independent source of power. need another enumerated clause with it |
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Delegation |
Congress can delegate if it specificies intelligible principles to guide |
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10th Amendment |
Congress cannot commandeer state to regulate or act but can induce with federal money if expressly state & related to purpose |
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Legislative Immunity |
No civil or criminal liablity for legislature and aids for statement or conduct made in regular course of legislative procedure |
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Treaties
Executive Agreements |
Treaties: Pres has exclusive power to negotiate & ratified by Senate
Executive Agreements: Pres can do w/o advice or consent of Senate |
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President - Impeachment |
Can be removed for treason, bribery, or high crimes and misdemeanors.
Req's House majority to impeach and 2/3 Senate to convict |
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Presidential liability
Executive Privilege
Impoundment of funds |
Liability: No civil liablity for performance of official duties
Executive Privilege: of non-disclosure of confidential information execpt when really needed and no other way to get it
Impoundment of funds: Pres cannot impound funds that Congress explicitly mandates expenditure of |
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Judicial Liablity |
Absolute Immunity from civil liablity for damage from judicial acts |
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DCC |
Generally if Congress has not regulated, then States can regulate IC so long as doesn't (1) discriminate against out-of-state competitors (2) Unduly burden IC (3) Regulate wholly out-of-state activity |
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State Taxation of Commerce |
NEVER OK IF Discriminatory
No Dicrimination ok it: (1) Substantial nexus between activity and taxing state (2) Fair tax apportion - IC didn't pay more than any 1 state (3) Fair Relationship - between tax & services provided by taxing state (4) No local direct commercial advantage over IC competitors (even if neutral on face) |
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State Regulation of Commerce |
Discrimination: Violation unless necessary to achieve an important gov't interest & no less discriminatory than necessary to achieve that purpose EXCEPTION: (1) Congress approval (2) Market Participant (3) Traditional gov't function
NO Discrimination = Balancing Test = violation if the burdens exceeds benefits (less restrictive alternative) |
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Preemption |
Implied: Congress intented federal law to occupy field or state law directly or indirectly conflicts with federal law
Absence: State can set more stringent standards or recognize greater individual rights than federal law |
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State Action |
Significant state involvement: significant mutual contacts between state and private party - state must act affirmatively
Insignificant state involvement: need a substantial burden on a right to have a claim (1) intentional discrimination & (2) motive + disparate impact |
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Fundamental rights |
(1)Travel (2) Voting/Ballot Access (3) Privacy (CAMPER) - Contraception Abortion Marriage Procreation Education(private) Relationship |
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Amount of Due Process Req'd (procedural) |
(1) importance of individual interest (2) Value of additional safeguards (2) Burden of additional process (gov't interest in fiscal & administrative efficiency)
Liberty = significant gov't restraint on phsyical freedom Property = legit claim or entitlement |
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Abortion |
Previability = no undue burden
Post-viabilty = may prohibit unless health or safety of mom |
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Gender Discrimination |
Need exceedingly persuasive jusitification for classification & separate facilities must be substantially equivalent
Need discriminatory intent not just disparate impact - disc on face - disc on application (neutral on face) - disc motive |
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Race Discrimination |
No set asides/quotas unless clear proof of past disc and congruent remedy
Compelling interest for diversity in college |
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Ex Post Facto not ok |
no retroactive criminal punishment |
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Takings |
Government takes private property for public purpose ok = apply rational basis
Have to pay just compensation = FMV
Types (1) physical (2) regulatory (3) Condition = balance government interest + extent of invasion + investment backed expectations |
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Marsh Test/Historic Precedent Test |
When things are historic tradition or because of unique tradition of US, then not a violation of Establishment Clause |
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Establishment Clause |
Government Action benefiting religion may be valid if (lemon test): (1) Secular Purpose (2) Primary Effect neither advances nor prohibits religion and (3) No Excessive Entanglement with religion |
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Financial Aid to religiously affiliated institution |
Indirect aid to schoolchildren: Valid if widely available to class of persons (not defined by religion)
Direct aid to college/hospitals: Upheld if aid used for non-religious purposes
Tax Exemptions: Valid if equivalent to extemptions to other charitable institutions - can't be available only to religious institutions |
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Invalid as clearly Promoting Religion at School |
Prayer/Bible reading period of silence for meditation voluntary prayer prayer at graudation posting of 10 comm prohibting Darwinism teachings |
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Religious displays |
10 comm not ok if primary purpose is religious
gov't holiday displays ok unless observer conclusion is that they endorse religion |
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Free Exercise: Religious Belief Religious Conduct |
Religious Belief: Absolutely protected and cannot be restricted by law and gov't cannot dey benfit or impose burdens based on religious belief - court can determine sincerity of belief but not reasonableness of belief
Religious Conduct: not absolutely protected -state law intentionally target = SS -neutral state laws of general applicability that have an impact on religious conduct only RB
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Symoblic Speech |
Upheld if: (1) withing gov't power to enact (2) furthers an important government interest (3) Interest is unrelated to the suppression of ideas (4) burden on speech is no greater than necessary |
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Overbroad/Vague |
Overbroad: Void if burdens substantially more speech than necessary to protect a compelling gov't interst - may be challenged as facially invalid to prevent chilling effect on protected speech
Vague: fails to provide a person of ordinary intellligence with fair notice of what is prohibited |
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Prior Restraint (regulation of speech in advance of its expression) |
Invalid unless there is a particular harm to be avoided and certain procedural safeguards are provided to speaker i.e narrowly drawn, reasonable, definite standards |
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Government Speech |
Need to not be viewpoint neutral but subject to Establishment Clause |
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Time/Place/Manner of expression Public forum and limited public forum |
Restriction must be content neutral as to subject matter & viewpoint; narrowly tailored to serve a significant gov't interest; and leave open alternative channels of communication
Content neutral = IS Content-based = SS |
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Regulation of Content SS except |
(1) obscenity & child pornography (2) Incitement to violence (3) Fighting Words (4) Defamation (5) Commercial Speech |
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Freedom of Association |
protect right to form or participate in any group, gathering, club but right not aboslute - ok if compelling state interest - deprivation of public employement based on political association ok if: (1) person is an active member of subversive organization (2) has knowledge of group's illegal activities (3) has specific intent to further illegal activities
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Obscenity Test |
Average person, applying contemporary community standards, must find materal taken a a whole: Appeals to prurient interest Depicts sexual conduct in patently offensive way and Lack serious literary artisitc value (national standard) |
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Incitement to Violence |
State may forbid speech advocating use of force or unlawful action if: (1) speech is directed to inciting or producing imminent lawless action (2) it is likely to incite or produce such action (clear and present danger) |
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Fighting Words |
Words that by their very nature are likely to incite an immediate breach of peace -annoying or offensice words not enough -must be genuine likelihood if imminent violence by hostile audience |
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Defamation |
If P is a public figure, or statement invloves matter of public concern, P must prove fault and falsity in addition to prima facie case |
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Regulation of Media |
Regulation of right to publish matter of public concern = SS
Gag Order = prior restraint & rarely upheld
Attending trials = right to attend might be outweighed by overriding interest that can't be accomplished by LRM
Broadcast = greater responsibilty to public so more closely regulated than print or other media
Internet = any reglation = SS
Cable = content-based = SS |
