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93 Cards in this Set

  • Front
  • Back
When is a class action case moot?
if the issues are DEAD for ALL class members

if the issues remain alive for at least one member of the class then it's not moot
If a case is moot that means it was brought too... ?
late
When a case is not ripe that means it was brought too... ?
soon
An organization (such as a union), has standing to sue for injury to itself, but also injury to its members if: (3)
a. A member or members would have standing AND

b. The members’ injury is related to the purpose of the organization AND

c. There is no reason (such as an award of damages to individual members) that would require participation of the individual members in the suit.
When can there be "citizen standing"?
NO standing as a citizen even under statutes conferring “citizen standing.” Must be personal harm
When can there be "taxpayer standing"?
- Against municipalities

OR

- Taxpayers may sue to challenge their own tax liability. But they have no standing, as taxpayers, to challenge how the govt spends the money it has collected.

Narrow Exception – “taxpayer” can challenge:
i. Laws enacted under Congress’ taxing and spending powers (statute), not executive or administrative action AND
ii. Exceeding a specific constitutional limit on taxing and spending (ONLY one that’s okay is the establishment clause)
SCOTUS can ONLY review decisions of state courts IF THESE 4 ARE TRUE:
1. The case involves a matter of federal law AND

2. It is a final judgment (not preliminary) AND

3. Is from the highest state court authorized to hear the case AND

4. There is no INDEPENDENT AND ADEQUATE STATE GROUND on which the state court decision is based
When does a case rest on an INDEPENDENT AND ADEQUATE STATE GROUND?
1 - so long as state law doesn’t depend on an interpretation of federal law or incorporate a federal standard.

2 - if, no matter how the federal issue in the case is decided, the outcome will still be the same under the resolution of the state law issue
What happens if a state law if it involves a constitutional challenge to the state law, but the meaning of the state law is unclear or unsettled, or the matter is already pending before state judicial or administrative tribunals?
i. Federal court will decline to hear the case (doctrine of abstention)

ii. Rationale - respect to give them first crack; may not even be an issue
What is a political question?
a. Questions which are constitutionally committed to another branch of government to decide OR

b. Are beyond the competence or enforcement capability of the judicial branch
What are 3 examples of political questions?
1. Qs regarding the conduct of foreign relations

2. Qs relating to which group of delegates should be seated at the DNC

3. If a candidate for Congress is eligible to run for office (number of votes, meets age and residency requirements)
Under the 11th amendment, a private party cannot sue a state in federal court, UNLESS:
1. The state expressly consents (must be unmistakably clear) OR

2. Congress clearly says to enforce 14th amendment rights
The following 2 actions CAN be brought against state officers in federal court despite the 11th amendment:
1 - actions to enjoin an officer from future conduct that violates the constitution or federal law, even if this will require prospective payment from the state AND

2 - actions for damage against an officer personally
How can a private party sue a state?
In STATE COURT. 11th amendment only bars it in federal court.

BUT states may raise sovereign immunity against such claims in their own courts (congress can’t intervene)
What are these?

admiralty; citizenship; bankruptcy, federal property; patents and copyright; post offices; coining money; the territories and DC; war; and raising and supporting armies
express / enumerated powers of Congress
What does the necessary and proper clause do?
GIVES A BOOST to the express powers

allows Congress to use all means convenient and useful to carry out express powers (ex: charting federal bank)
What does Congress have the police power to do?
Nothing! Congress DOES NOT have police power!
When can the commerce clause regulate purely local and intrastate activities?
when they, by themselves or repeated by others (“cumulative effects doctrine”), substantially affect interstate commerce
Under the commerce clause, what CAN'T Congress tell states to do? (3)
1. Tell states what law to enact

2. Commandeer state regulatory agencies and force them to enforce federal law

3. Regulate EXTREMELY local issues
Can Congress make local sheriffs enforce federal gun checks?
No - that would be commandeering state regulatory agencies and force them to enforce federal law. Not permitted under the commerce clause.
Can Congress make a state pass a law making it a crime to burn high sulfur coal in the state?
No - that would be telling states which laws to enact. Not permitted under the commerce clause.
Can Congress regulate states directly?
yes - this is one of the ways they get around the limits of the commerce clause
Can Congress threaten states with preemption?
yes - this is one of the ways they get around the limits of the commerce clause
Can Congress bribe states with money under spending powers?
yes - this is one of the ways they get around the limits of the commerce clause


ex: federal highway funding for drinking age
Can Congress prohibit local cultivation and use of pot?
yes under the cumulative effects doctrine under the commerce clause
Can Congress criminalize loan sharking?
yes under the cumulative effects doctrine under the commerce clause
What is the test for a valid tax under the taxing power?
Tax is valid if it AT LEAST raises SOME revenue (doesn’t matter if other intent)
Can Congress impose a federal tax on the sale of tickets to sporting events?
Yes - they may tax anything for the general welfare.
A court will enforce a condition against a state which has accepted federal funds if: (4)
i. Enacted for the general welfare (not difficult to meet)

ii. Can’t violate individual liberties

iii. Condition must be reasonably related to a legitimate federal interest

iv. Must be clear that this is a quid pro quo (can’t just be a suggestion)
How can Congress enforce the right to vote against gov't racial discrimination? (federal or state)
can enforce this expansively (i.e. provide federal officials to register voters at local elections)
What is the legislative veto rule?
If Congress delegates authority to the executive branch, they may NOT reserve for itself a one-house, two-house, or committee veto over the particular acts taken by the executive branch pursuant to that delegation. It must pass new legislation passed by both houses (bi-cameralism) and signed by the President (presentment).
If there is an emergency and congress has not said no to the particular act - can the President make law?
Yes. Normally he may ONLY carry it out.
What are the two ways that Congress can limit the President's power to appoint?
1. Principle officers (ambassadors, judges, cabinet heads) - President appoints ONLY with the advice and consent of the Senate

2. Inferior officers (those who have to answer to another, independent counsels) - Congress may vest appointment in the President alone, or in department heads, or in the judiciary
How does Congress limit the President's power to appoint ambassadors, judges, and cabinet heads?
President appoints ONLY with the advice and consent of the Senate
How does Congress limit the President's power to appoint inferior officers (those who have to answer to another, independent counsels)?
Congress may vest appointment in the President alone, or in department heads, or in the judiciary
Who alone has the power to declare war?
Congress
Who can do these?

- conducts military operations thereafter,
- repels invasions, and
- take emergency actions to protect USCs
The President
President CAN ACT without Congressional approval to act as the chief foreign policy spokesperson (i.e. receive ambassadors) - True/False?
True
What kind of congressional approval is required for treaties?
must have 2/3rds senate approval
What kind of congressional approval is required for executive agreements?
no specific approval, acquiescence okay but they can disapprove and it’s disapproved
What happens when there's a conflict between treaties and executive agreements?
Later legislation wins
When does the president have absolute immunity?
from civil suits for DAMAGES for any Presidential acts
When does the President have PRESUMPTIVE immunity?
not to disclose presidential communications - balancing test used (think Nixon)
What is the process for impeachment?
articles of Impeachment by the House, trial by the Senate, removal from office
What is the rule from the Privileges and Immunities Clause of Art. IV?
State may NOT discriminate against out of state CITIZENS (not corps or aliens) with respect to commercial activities (employment, dealings in property or contract) or the enjoyment of civil liberties
When can states require in-state residency? (3)
- for THEIR OWN employees
- charge more to out-of-staters for tuition or hunting licenses, and
- may prefer their own citizens in giving state benefits (welfare, subsidies)
When are state laws that discriminate for the purpose of favoring in-state commerce invalid?
ALWAYS - PER SE INVALID

Ex: prohibit the sale of out-of-state milk at a lower price

Ex: impose higher taxes on out-of-state goods,
If a state prefers it's own government entity to perform traditional activities - is this a violation of the commerce clause?
No - as long as it treats all private companies equally unfavorably
When is a state law that discriminates for the purpose of promoting health or safety invalid?
INVALID UNLESS the state can show that it had no reasonable, non-discriminatory means to achieve its police power objective.


NOTE: This is VERY hard to overcome because there’s almost always another way to do it non-discriminatorily
If a state bans all out of state garbage from being dumped in state landfills - valid?
invalid because no alternate attempts
If a state bans the sale of milk unless processed and bottled locally - valid?
invalid because alternatively they could test the milk
State reg banning importation of live bait fish which may carry parasites not present in in-state waters - valid?
Valid because state says environmental issues because NO TEST for that type
Even if a state law is non-discriminatory (it applies evenly in-state and out-of-state), it may STILL BE INVALID IF:
a. It imposes an UNREASONABLE BURDEN on interstate commerce

b. This is a balancing test: see if burden is disproportionately high
- Court will weigh effects of the law on the free flow of commerce against the state’s interests served by the law.
- Thus, laws which MARGINALLY benefit and which MATERIALLY OBSTRUCT the movement of goods across state lines will be invalid

(ex: size of train car regs from Arizona)
State violates dormant commerce clause while acting as a buyer or seller of commodities or services - valid?
Yes they can do this.

Be careful because state can change from being market participant to a regulator
State violates dormant commerce clause by preferring its own citizens or companies with subsidies - valid?
Yes

Ex: state may pay money to corporations to retain their officers within its borders
What is the current effect of the 21st amendment?
gives states the power to regulate possession, sale, and transportation of alcohol within their borders

however - they cannot discriminate against out-of-state alcohol
If a state law is not discriminatory - what do you still need to check?
If it's unreasonably burdensome on interstate commerce (ex: train cars)
What are the 3 requirements for a tax on interstate commerce to be valid?
i. It must be non-discriminatory

ii. The activity, person, or thing taxed must have a substantial nexus (connection) to the state. There must be an ACUTAL PRESENCE in the state (CA cannot tax those in MA if there’s no substantial connection)

iii. The tax must NOT be a flat tax – must be proportioned to the company’s business done in the state or benefits received
What does the Contract Clause say?
States and local govts may NOT by legislation (not by exec) substantially impair pre-existing contracts, UNLESS:
- the law serves an overriding public need, AND
- the law is a reasonable AND
- it's narrowly tailored means of meeting that need
What is an ex post facto law?
This is any legislation that (any of these):
i. Makes criminal today what you did yesterday
ii. Increase punishment after crime committed
iii. Reduce evidence for conviction after crime committed

Neither Congress NOR the states can pass these in the CRIMINAL context
What is the ban on bills of attainder?
Prohibits any federal or state legislation that inflicts punishment, civil or criminal, on named individuals or group members without a trial.

ONLY COURTS CAN INFLICT.

AKA legislative punishment of a named individual without notice and a hearing.
When can the government deprive someone of procedural due process and ask questions later?
if govt can show a significant need to do so

Ex: immediate removal of cop charged with felony (public safety at issue)
When are waivers for filing fees for indigents okay?
ONLY if charging the fee would result in denial of a fundamental right (ex: not bankruptcy, yes to divorce)
Privileges and Immunities of National Citizenship - what does it protect?
ONLY protects your right to be a citizen of any state and once a resident, to enjoy same rights as other residents

Ex: CA can’t limit new residents’ welfare benefits to the amount paid by their old state
What two things do affirmative actions plans need to show they have a compelling interest in specifically correcting prior discrimination?
- factual evidence

- tailored plan
federal discrimination against aliens is judges under what standard?
rational basis
state local government discrimination against aliens is judges under what standard?
strict scrutiny
strict scrutiny standard?
i. Govt must prove that the law is NECESSARY to achieve a COMPELLING interest

ii. No presumption of constitutionality
intermediate scrutiny standard?
i. Govt must prove that the law SUBSTANTIALLY SERVES an IMPORTANT GOVT interest

ii. No presumption of constitutionality
rational basis test?
i. The plaintiff must prove that the law lacks a rational basis and is UNRELATED to ANY legitimate goals

ii. The law IS PRESUMED to be constitutional
May states require US citizenship for government policy making or policy implementing positions?
Yes


1. Includes law enforcement personnel and public school teachers (not notary public)

2. Non-USCs can also be barred from participating in governmental process – voting, holding office
May states require US citizenship for private employment, rights to own property, or govt benefits?
No - strict scrutiny
Is there a fundamental right to refuse medical treatment? (3 notes about this)
Yes.


i. Competent adult has this right
ii. HOWEVER court may weigh the state’s interest (ex: can require vaccinations)
iii. State may require clear and convincing evidence that unconscious patient wanted to pull the plug
Can there be a deviation for federal elections in the one person, one vote standard?
No - ANY deviation is invalid
How do you get political gerrymandering to be deemed unconstitutional?
test hard to satisfy to call it unconstitutional. must have been intentionally drawn on that basis and will lock out other party OVER TIME
Is racial gerrymandering okay?
Yes but CANNOT be the ONLY purpose
In all state and local election, voting by districts must be apportioned to one-person, one vote - are any deviations allowed?
Yes - deviations of up to 16% have been permitted

State has the BURDEN to prove the need for deviation to maintain political subdivisions and relatively compact districts
A one year waiting period for indigent medical care in another state violates what?
Fundamental right to travel
Fixed or permanent distinctions among residents violates what?
Fundamental right to travel

INVALID on face (ie Alaska giving long time residents more oil money)
What is the new 2nd amendment right?
protects the right of an individual to have a handgun in the home for self-defense
What is the doctrine of prior restraints?
enjoining any public speech before it is uttered: govt BEARS HEAVY BURDEN to show it’s necessary to prevent direct, immediate, and irreparable harm
What is content control and what is the standard?
strict or exacting scrutiny aka compelling state interest

Govt CANNOT restrict a person’s opinion, message or ideas
Telling a guy he has to carry the message on his license plate in NH saying, "life free or die" - valid?
Not okay - it's a violation of content control
Requiring Southie parade to include gays and lesbians - valid?
Not okay - it's a violation of content control
What are the 3 requirements for time, place, and manner restrictions?
a. MUST BE Content Neutral

b. MUST BE Substantial Alternative Opportunities for the Speech to Take Place

c. MUST BE a law that narrowly serves a significant state interest
A generalized ban on all residential picketing - valid?
Invalid, overbroad under 1st amendment
A law prohibiting targeted picketing focused on a single residence - valid?
Valid because it's tailored and limited
What is speech inciting lawless behavior?
Must be:

- directed at inciting AND

- which in fact is likely to incite imminent lawlessness (doesn’t have to happen though)

thus prohibited even under 1st amendment
What re fighting words or hate speech?
words that “By their very utterance inflict injury or tend to incite an immediate breach of the peace”

thus prohibited even under 1st amendment
What are true threats?
Statements where the speaker means to communicate a serious expression of intent to commit an unlawful act of violence

thus prohibited even under 1st amendment
What is obscenity? 3 Factors
MUST BE ALL 3 THINGS:

1. Sickening - The average person applying community standards would find the work, taken as a whole, appeals to shameful or morbid sexual interest

2. Law that has specific standards - Work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable law

3. No Value - work taken as a whole, lacks serious literary, artistic, political, or scientific value
Government can prohibit and regulate ANY type of advertising that: (2)
1 - is false, misleading, or deceitful OR

2 - proposes an unlawful transaction
Aside from the illegal or false ads, what's the standard for government limiting advertising?
govt must prove that its regulation DIRECTLY ADVANCES a substantial governmental interest, and is narrowly-tailored. (mid-level scrutiny)