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