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52 Cards in this Set
- Front
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Article III Judicial Power |
Limited to cases & controversies Power to review: another branch's act & declare it unconstitutional; the constitutionality of a decision by state's highest court; and state actions under the Supremacy Clause to ensure conformity w/constitution. |
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11th Amendment |
Prohibits citizens of one state from suing another state (not local gov) in federal court. Immunizes states from suits for $ damages or equitable relief. Bars suits against state officials for violating state law Exceptions: consent, injunctive/declaratory relief, damages pay by state officer, congressional enforcement of 14th amend rights |
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Supreme Court Jurisdiction |
Original JDX: all cases affecting ambassadors & other public ministers/consuls; and when state is a party Appellate JDX: through certiorari & direct appeal. Final state-court judgment resting upon adequate/independent state grounds NOT reviewable by S.C. |
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Standing |
Plaintiff must establish injury in fact (concrete/particularized - future must be imminent/actual), causation, redressability (relief likely to prevent/redress injury) Prudential Standing: established by federal judiciary, reqs P is proper party to invoke judicial resolution of dispute |
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3rd Party Standing |
Generally no standing to bring suit based on 3rd P claims EXCEPT: when 3rd P unable to assert own rights; special relationship b/t P & 3rd P; or P's injury adversely affects P's relationship w/3rd P. |
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Timeliness |
Ripeness: P must have experience a real injury (cannot be brought too soon - "unripe") Mootness: Must be a live controversy @ each stage of review. Not moot if: capable of repetition but is "evading review" (won't last long enough to work through system - pregnancy); D voluntarily ceases illegal/wrongful action upon suit is ct. assure it won't repeat; or P's claim in class action suit is resolved. |
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Justiciability |
Advisory Opinions: not allowed unless actual case/controversy exists Declaratory Judgments: challenged action must pose "real & immediate danger" to P's interests Political Questions: to be resolved by another branch of gov - not subject to judicial review |
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Commerce (Power of Congress) |
Interstate Commerce: power to regulate channels & instrumentalities of IC & any activity that substantially affects it Aggregation: even if no direct economic impact, congress can regulate as long as (rational basis for concluding the total incidence of activity in the aggregate substantially affects commerce. Non-Eco Activity: if regulation involves non-eco activity of traditional state concern, congress must establish connection between activity and eco effect in order to regulate. |
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Taxation and Spending (Power of Congress) |
Taxing: Tax upheld if reasonable relationship to revenue production (congress has plenary power to impose taxes to raise revenue (or any public purpose) through Gen. Welfare Clause Spending: Power to spend for gen welfare (any public purpose) including conditional fed funding |
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War and Defense (Powers of Congress) |
Congress has power to declare war, raise and support army/navy, govern land/naval forces, organize a militia & whatever action necessary to provide for national defense |
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Property (Power of Congress) |
No express power, but may take private property ONLY for public use w/just compensation and to effectuate an enumerated power |
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Aliens and Citizenship (Power of Congress) |
Plenary power over aliens (subject to due process) and exclusive authority over naturalization |
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Necessary & Proper Clause |
Power to enact any legislation necessary/proper to execute federal gov authority (not independent source of power - must carry into effect other enumerated power) |
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Enabling Clause of 14th Amend |
Enables Congress to enforce equal protection and due process rights (as defined by S.C.) Enforcement must have congruence & proportionality between injury to be prevented and means adopted to achieve that end |
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President's Domestic Power |
Power to pardon federal offenses, veto power, appoint officers of U.S. w/advice/consent of Senate & remove executive appointees w/o cause or Senate approval |
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President's Foreign Affair Powers |
commander in chief (can take military action against actual hostilities against U.S.) - only congress can declare war Exclusive power to negotiate treaties (ratified by 2/3 Senate) & power to enter into exe. agreements w/foreign nations (w/o Senate approval) |
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Congressional Limits on Executive Branch |
Impeachment, if congress explicitly mandates expenditure of fund (pres cannot impound funds), and unconstitutional for congress to attempt legislative veto of executive action |
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Immunities & Privileges (all 3 branches of gov) |
Judicial: absolute immunity from civil liability for damages from judicial acts Legislative: no civil/criminal liability for stmts & conduct made in regular course of leg process Executive: No civil liability for performance of official duties; executive privilege regarding non-disclosure of confidential information |
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Dormant Commerce Clause |
If congress has not, States can regulate interstate commerce so long as regulation does not discriminate against out of state commerce, unduly burden IC or regulate wholly out of state activity. Discriminate: may be upheld if important gov interest (no other means to serve purpose), state is market participant, its a traditional gov function or its permitted by congress. Undue B: balancing test (purpose of law against burden on IC & if less restrictive means) - benefits grossly outweighed may be struck down |
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State Taxation of Interstate Commerce |
Permitted only if Congress has not already regulated a particular activity & tax does not discriminate against/unduly burden IC 4 part test: substantial nexus b/t activity being taxed & taxing state; fair tax apportionment b/t IC & local commerce; no local direct comm. advantage over interstate competitors; and tax must be fairly related to services provided by taxing state |
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State Taxation of Foreign Commerce |
States must have congressional consent to impose import/export taxes |
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Preemption |
Express: when constitution makes federal power exclusive or congress enacted leg explicitly prohibiting state regulation in same area (must be narrowly construed) Implied: congress intended for federal law to occupy the field; state law directly conflicts w/fed; or state law indirectly conflicts by created obstacle to law's purpose Absence of preemption: state law can set more stringent standards or recognize greater individual rights (fed sets floor, states set ceiling) |
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Full Faith and Credit Clause |
Out of state judgments must be given in-state effect if court rendering had JDX over parties/subject matter, judgment was on the merits and it was a final judgment |
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State Action (prerequisite to constitutional protections) |
Traditional Gov Function: private person carries on activities traditionally performed exclusively by the state Significant State Involvement: Sufficient mutual contacts b/t conduct of private P and gov and state must act affirmatively to facilitate, encourage or authorize activity (licensing/reg of private P not enough) Insignificant Involvement: Business that gov substantially regulates to which it grants a monopoly (utility co., nursing homes accepting medicad or schools receiving gov funds but operated by private corp.) |
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Due Process (5th amend fed)(14th states) |
Necessary procedures before depriving individuals and other "persons" (corps - boo hobby lobby) of "life, liberty or property" 14th amend - most provisions of the Bill of Rights applicable against the states |
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Procedural Due Process |
Fundamental Fairness: includes right to be notified of charges/proceedings & opportunity to be heard Protected Interest: (liberty - significant governmental restraint on one's physical freedom, fundamental rights or freedom of choice/action) (property - legitimate claim of entitlement) Notice & Hearing: amount of process due determined by: private interest affected, value of add'tl safeguards and burden/cost of add'tl process Ct Access: court fees waived for indigent person if denies FR |
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Substantive Due Process |
Strict Scrutiny: BoP on gov - if gov action infringes on FR. Law must be least restrictive means to achieve compelling gov interest (necessary/crucial) Rational Basis: BoP on challenger - in cases when strict/intermediate N/A. Law must be rationally related to legitimate state interest (applies to law related to lifestyle, taxation, zoning & punitive damages) |
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Fundamental Rights (4) |
Travel: from state to state or become permanent resident Voting/Ballot Access: more significant the gov restriction, the greater the scrutiny Privacy: marriage, contraception, sexual behavior, abortion, parental rights, family relations, obscene materials, right to refuse medical treatment, and right to avoid disclosure of personal medical info Second Amendment: right to possess a firearm |
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Standards of Review |
Strict Scrutiny: least restrictive means to achieve a compelling gov interest (applies if FR or suspect classification involved) Intermediate Scrutiny: substantially related to important gov interest (applies if gender/legitimacy involved - gender reqs "exceedingly persuasive justification" for classification) Rational Basis: rationally related to legitimate gov interest (applies to age, wealth, weight, business reasons) |
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Proving Discriminatory Intent |
Discriminatory intent on gov's part necessary to trigger intermediate scrutiny (not just impact) On its face: law that creates distinction b/t persons by its very language Application: neutral on its face, but applied in discriminatory fashion Motive: disparate impact coupled w/proof of discriminatory motive/intent |
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Suspect Classifications (Strict Scrutiny) |
Race/ethnicity/national origin: school integration violates EP clause - affirmative action subject to SS Alienage: fed classifications valid unless arbitrary & unreasonable; SS applies to state laws that discriminate against aliens (exception for restrictions on participating in gov functions (RB)) |
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Quasi-Suspect Classifications (Intermediate Scrutiny) |
Gender: need discriminatory intent by gov (not impact), gov must show "exceedingly persuasive justification), separate must be equal, benign discrimination (aff. action) permissible as remedy for past gender based discrimination Legitimacy: legislation designed to punish non marital children NOT UPHELD |
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Non-Suspect Classifications (Rational Basis) |
Age Poverty Sexual Orientation: S.C. not resolved whether this should be a heightened scrutiny |
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Comity Clause |
Applies only to citizens (not corps or aliens) Prohibits one state from discriminating against citizens of another state w/respect to FR or essential activities (political process, employment, transferring property, access to state cts) Substantial Justification Exception: applies if non-residents are cause/part of problem states trying to solve & no less restrictive means |
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National Citizenship (14th Amend) |
Applies only to citizens (not corps or aliens) Protects against infringement on privileges and immunities of national citizenship: right to travel intrastate, vote for national offices, enter public lands & peaceably assemble Seldom invoked b/c rights redundant to those elsewhere protected in Constitution & in practice only applies to travel |
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Takings Clause (check on eminent domain power) |
Challenger must have property interest & government must give fair market value at time of taking (just compensation) - measured by what O lost, not what gov gained |
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Prohibited Legislation (3) |
Bill of Attainder: leg act declares person guilty of crime & punishes w/o trial Ex post facto law: criminalizes act that was not crime when committed, more severe penalty after act committed, deprives D of defense available when committed or decreases prosecutions BoP below what req'd when committed Impairment Ks: applies only to state leg & retroactively impairs contractual rights |
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Establishment Clause (Freedom of Religion) |
Lemon Test: gov action bene religion valid if secular purpose, effect neither advances/prohibits religion & no excessive gov entanglement Financial Aid: indirect aid to parochial school (valid if available to persons not defined by religion), aid to college/hospital (upheld if used for nonreligious), tax exempt (valid if = to other charitable institutions) INVALID @ school: prayer/bible reading, silence for prayer, nondenominational prayer by cleric @ grad, posting 10 commandment & no teaching Darwinism. |
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Free Exercise of Religion |
Religious Belief: absolutely protected & cannot be restricted by law. Gov cannot deny benes/give burdens based on religion Religious Conduct: not absolutely protected, state laws that intentionally target subject to SS, neutral state laws subject to RB. |
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Expressive Conduct (Regulation of Speech) |
Symbolic speech regulation upheld if: it is w/in gov's power to enact, furthers important gov interest that is unrelated to suppression of ideas & burden on speech no greater than necessary |
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Overbreadth & Vagueness (Regulation of Speech) |
Overbreadth: void if burdens substantially more speech than necessary to protect compelling gov interest (few possible impermissible applications not sufficient) - may be challenged as "facially invalid" to prevent chilling effect on protected speech Vagueness: void if fails to provide a person of ordinary intelligence w/fair notice of what is prohibited |
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Prior Restraints (Regulation of Speech) |
Regulation in advance of expression Invalid unless particular harm to be avoided & certain procedural safeguards are proved to the speaker (narrowly drawn/prompt injunction sought/final decision of validity of restraint) BoP on gov to show not protected speech |
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Unfettered Discretion |
statute giving officials unfettered discretion is void on its face statute must provide definite standards for officials on how to apply the law to restrict speech and be related to important gov interest & contain procedural safeguards |
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Campaign Related Speech |
Statues limiting campaign contributions subject to intermediate scrutiny restrictions on campaign expenditures on communications during election campaign regarding a candidate subject to SS |
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Public Forum (time/place/manner of expression) |
Traditional (sidewalks, streets, parks) Designated (auditoriums, theaters, school class) Restrictions must be: content-neutral as to both sub matter & viewpoint; narrowly tailored to serve significant gov interest; and leave open ample alt channels for communication (SS if not content-neutral) Injunction in public forum: (content neutral) must not burden more speech than necessary to achieve important gov interest (content based) must be necessary to achieve compelling gov interest |
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Nonpublic Forum (time/place/manner of expression) |
All public property that is not traditional or designated forums Regulation must be viewpoint-neutral & reasonably related to legitimate gov interest (if on own private prop - regs rarely upheld) Viewpoint neutral - gov may prohibit speech on certain issues but can't only allow one side presented. Reasonable (RB test) |
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Obscenity & Child Porn |
NOT protected by 1st amendment Obscenity test: average person, applying contemporary community standards, must find that material as a whole appeals to a prurient interest, depicts sexual conduct in patently offensive way, and lacks serious literary, artistic, political or scientific value (national std) |
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Incitement to Violence/Fighting Words |
Incitement: state may forbid speech advocating use of force/unlawful action if speech is directed to inciting/producing imminent lawless action and its likely to incite/produce such action (clear & present danger) Fighting Words: words by their very nature are likely to incite immediate breach of the peach (annoying/offensive not sufficient) must be genuine likelihood of imminent violence by hostile audience |
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Defamation |
If P is public figure (or stmt involves matter of public concern), P must prove fault & falsity in addition to prima facie case figure: know to public/voluntarily injects into public eye (must show actual malice) concern: P private fig but stmt public concern, need only prove negligence w/respect to falsity |
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Commercial Speech (4 part restriction test) |
1. Comm. speech must concern lawful activity & be neither false nor misleading 2. Asserted governmental interest must be substantial 3. Regulation must directly advance asserted interest 4. Regulation must be narrowly tailored to serve interest ("reasonable fit" b/t gov's end & means chosen to accomplish them) |
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Regulation of Media |
Right to publish matters of public concern subject to SS (no constitutional right to protect source) Broadcast: greater responsibility to public, more closely regulated than print/other media Cable TV: content based regulations subject to SS Internet: any regulation of content subject to SS Gag Orders: subject to prior restraint & rarely upheld |
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Regulation of Association |
Freedom of association protects right to form/participate any group gathering, club or organization w/o virtually any restriction (not absolute right) Infringement may be justified by compelling state interest Deprivation of public employment based on political ass'n OK if: person is active member of subversive org, has knowledge of illegal activiy & specific intent to further those objective |
