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67 Cards in this Set
- Front
- Back
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Standing (constitution)
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- Injury
* Personally suffers injury * Likelihood of future harm - Causation and redressability * must be caused by D - No 3rd party standing * Close relationship * 3rd party unlikely to sue * organization on behalf of member - Not as citizen or taxpayer other than establishment clause challenging government spending (not grant) |
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Mootness (constitution)
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- Moot if the injury was remedied
- Exception * capable of repetition and avoiding suit * voluntary cessation and may repeat * class action >= 1 member still injured |
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Ripeness (constitution)
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- No advisory opinion
- Preemptive suit allowed only if: * Undue hardship * Issue and record fit for adjudication |
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Political Question
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Not adjudicate if issue concerns:
- republican form of government - President's decision re foreign affairs - partisan gerrymandering - impeachment and removal |
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Cases taken by Supreme Court
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- Through certiorari
* State court cases * Federal circuit court cases - Through direct appeal * Federal 3-judge district court cases - Original and exclusive jurisdiction: state v. state - No interlocutory review |
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US Supreme Court taking state cases
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- Requires no independent state law ground of decision
Not take: - state ground and federal ground - reversing federal ground not changing result |
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Cases against state in federal court
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- Federal court may not take: 11A
- Federal agencies may not take: 11A - State court may not take: immunity Exceptions - Waiver (must be explicit) - under fed laws enacted under S.5 of 14A - federal government sues state Sue state officials: - Injunction - Damages out of official's own pocket - Not if state retroactively pays |
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Federal court abstainsion
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- If state court proceeding is ongoing, not enjoining
- Has jurisdiction - Not exercise |
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Organization's standing on behalf of members
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- member must have standing
- germane to organization's purpose - no involvement of member required for: * litigation * remedy |
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Federal legislative power
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- Express authority in the constitution
- Necessary and proper under Art.1.S.8 - No general police power except: * military * indian reservations * federal land and territory * D.C. - Tax and spending for general welfare - Commerce power * Channels * Instrumentalities * Persons and things * Activities that burdens interstate commerce Cumulative effect for burden: - For economic activities - Not for non-economic activities |
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Delegation of federal legislative power by Congress
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- Generally allowed. May delegate to:
* Federal agencies * Courts - Standard (usually satisfied): * Clear criteria * Intelligent principle - May not delegate executive power to: * Congress * Congressional officers |
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Bicameralism and presentation requirement
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- Must go through both houses
- Must signed to law by President - Line item veto unconstitutional - Legislative veto unconstitutional |
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10A limit on federal legislative power
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- No commandeering: not compel state to act or regulate
- May attach conditions to federal grants to induce the state to act - May prevent harmful commercial activities by state government |
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14A S.5 power to legislate
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- May not create new rights
- May not expand scope of existing rights |
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President's foreign affair powers
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- Executive agreement and treaties
* Treaties requires Senate 2/3 consent * Executive agreement does not * Both prevails against state law * Treaties prevails older federal law * Neither prevails constitution - War: President and Congress shares * President is command in chief * President may use US troops in foreign soil * Congress declare war * Congress raise army and navy |
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President's appointment and removal powers
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- Appointment:
* ambassadors * federal judges * federal officers - Senate consent required for appointments - Congress may vest appoinment power for inferio officers in: * President * Head of department * Federal Court - Removals: if no limit by Congress, President may remove any federal officer - Limits by congress allowed: * If independence from President is preferred * May not prohibit removals * May limit to good cause removals |
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Impeachment and removal
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- House of Rep: 1/2 - impeach
- Senate: 2/3 - remove - Impeach and removal are different - President, VP, federal officers, judges - Treason, Bribery, crimes and misdemeanors - S.Ct. chief justice preside Senate |
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President Pardon
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- May pardon
* federal * crimes - Not impeachments - Not state crimes |
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Executive privilege in communication
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- There is privilege
- But trumped by other important interest such as the interest to produce evidence in criminal cases |
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President immunity
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- Immunity to civil actions for acts in office
- No immunity for acts prior to presidency - Even no adjournment of trial |
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Preemption (federalism)
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Basis: Article III
- Express preemption - Implied preemption * Mutually exclusive * State law impedes federal objective * Congress' evident intent to preempt - State law can have more stringent standard - State law may not burden federal activity - State may not tax federal activity * no tax if coming out of treasury * may tax federal employee's income |
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Dormant commerce clause
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- Burdens interstate commerce
- Individuals and corporations may sue - No need of facial discrimination - Burdens out-staters - If neutral & burden: benefit > cost - If facial discrimination: * Important government purpose * Least restrictive means - Exception: market participant - Exception: Congress authorizes |
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Privileges and immunities (PI) re liberty and ability to earn living
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- Requires facial discrimination
- Against out-staters - Only individuals may use PI - Only for liberty/ability to earn living - Ability to enjoy (hobby) not included - Standard: * Important govermnet purpose * Necessity (last restrictive means) |
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State taxation on interstate commerce
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Must be:
- substantially connected to state - proportional to in-state activity - May not use tax to help in-state business |
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Rational basis review standard
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The challenger must prove:
- There is no legitimate interest; or - Law is not rationally related - Any conceivable interest counts - No need to be good or best |
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Intermediate scrutiny review standard
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Government must prove:
- Important governmental interest - Substantially related - No need to be least restrictve means - Must be narrowly tailored - Must be good means - May consider actual purpose |
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Strict scrutiny
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Government must prove:
- Compelling government interest - Necessary to achieve - Must be least restrictive means - Must be the best - Only consider actual purpose |
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Bill of rights applicable to states
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Through 14A due process
Exceptions: - 2A gun rights - 3A soldiers quartering - 8A excessive fines - 5A Grand Jury - 7A Jury |
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State Actor (for protection of individual rights)
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Only government actions are within:
- Due process - Equal protection - Fundamental rights - Freedom of speech Exceptions: Congress may enact laws under Constitutional authority to apply to private actors: - 14A, S.5 - 13A, S.2 - Commerce Clause (Civil Rights Act) Exception: - Traditionally exclusive government functions (company town) - Government entanglement (may request government to cease or private actor to conform): * Gov. authorization * Gov. leases to private business that discriminates - Mere gov. grant is not entanglement |
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Procedural due process
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- life, freedom, property
- goverment intentional/reckless act - balancing test * Importance of interest * Ability to improve accuracy * Administrative efficiency Insufficient: - government negligence - goverment inaction without duty |
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Substantive due process (types)
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- Takings
Article I/substantive due process: - Not affecting existing contract - No bill of attainder - No ex post facto (criminal) law |
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Fundamental rights
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Substantive due process (privacy)
- marry - procreation - use contraceptives - keep family together - custodian of child - upbringing child - abortion - private homosexual activity - right to refuse treatment - no right to education - no right to physician assisted suicide Equal protection: - right to travel (not foreign travel) - right to vote |
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Abortion
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Protected under substantive due process privacy
Standard: - Not viable: * cannot prohibit * can regulate for women's health * cannot affect ability to obtain abortion - Viable * may prohibit * except to protect women's health - No right to gov. subsidy of abortion Notice and consent: - Spouse: not pass scrutiny - Parent for unmarried minor: * Allowed * With judicial determination exception |
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Equal Protection (Discrimination)
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- Facial discrimination
- Facially neutral but with both: * discriminatory intent * discriminatory effect - Standard determined by type |
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Discrimination based on race
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Standard: strict Scrutiny
- affirmative action: * No numerical set-off * may take into account (a factor) * may not numerical add points Redrawing district based on race: strict scrutiny Disrupting seniority system: not pass |
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Discrimination based on gender
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Standard: intermediate scrutiny
Affirmative Action: - allowed to remedy: * different opportunities * past discrimination - not allowed if based on stereotype |
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Discrimination based on national origin
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Standard: strict scrutiny
Rational basis: - Congress' immigration law - Self-regulated professions - Democratic process Intermediate scrutiny: - Undocumented aliens |
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Discrimination of non-marital children
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Standard: intermediate scrutiny
- not pass if no non-marital children is benefited - pass if some non-marital children are benefited and some are denied benefit |
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Discrimination based on age
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Rational basis standard
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Discrimination based on disability
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Rational basis standard
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Discrimination based on wealth
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Rational basis standard
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Discrimination in economic regulations
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rational basis standard
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Discrimination based on sexual orientation
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Rational basis
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Fundamental right to travel
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- Not pass strict scrutiny if refusing entry of out-staters
- No fundamental right to foreign travel - Durational residency requirement for voting no more than 50 days |
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Fundamental right to vote
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- One person one vote
- Redrawing district re population: strict scrutiny - Partisan gerrymandering: political question - At large election: allowed, unless with discriminatory intent - Counting uncounted vote without standard: not pass |
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First amendment approach
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- Content-based/content-neutral
* Viewpoint based * Subject matter based - Strict scrutiny for prior restraints - Time, manner, place regulations * Public forum * Limited public forum * Private forum - Low value speech * Inciting illegal activities * Obscenity * Commercial speech * Defamation * Privacy |
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First amendment - Prior restraints
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Standard: strict scrutiny
- Procedurally proper court order: * Must obey * Lost right to challenge if disobey - Court order to restrain media coverage to prevent prejudicial effect in the community: not pass SS - Licensing requirement: * Important reasons for licensing * Criteria is so clear - no room of discretion - Fees for public demonstration: not pass SS - Vagueness and overbroad regulation: not pass * E.g. fighting words |
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Symbolic speech
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- need independent gov. interest to regulate
- impact must be no greater than necessary - Pass SS to prohibit: * Draftcard burning * Cross burning to intimidate * Nude dancing - Not pass SS to prohibit: * Flag burning (i.e. allowed) * Cross burning (i.e. allowed) |
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Forum of speech
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Public and limited public forum:
- Strict scrutiny for content-based - Intermediate scrutiny for content-neutral * Time, manner, place regulation * Important gov. interest * Narrowly tailored * Leaving sufficient alternative forum Private forum: rational basis; reasonable and viewpoint neutral - Military base - Prison front gate - USPS sidewalk No 1A right to access private property |
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Inciting illegal activity 1A
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- Substantial likelihood of illegal activity
- Directed to cause illegal activity |
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Obscenity
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Critera:
- Prurient interest - Patently offensive - Lack serious redeeming value Child porn: - prohibited if actual child - May punish possession - May not punish possession of adult porn Zoning for adult bookstore/theatre: allowed Gov. may seize assets of business that violate obscenity. Profane words: allowed except - Broadcasting - School |
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Commercial speech
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Prohibited if:
- False or deceptive - Ad. of illegal activity Truthful, nondeceptive: - intermediate scrutiny - complete ban: not pass Prohibit misleading prof. ads.: allowed - in-person solicitation: * laywers * accountants - Trade name for professionals |
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Privacy interest in 1st amendment
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- Not prohibit media report using information acquired from government source (publish id of criminal from trial record?)
- Media's use of tape illegally acquired: * Public concern * Media not participating in illegal activity - Public has right to attend crim trial - No right to attend for other trials |
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requirements for punishing associations
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- Must be active member
- Must know the illegal purpose - Must intend to further illegal purpose |
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Anti-discrimination for associations
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- May require the associations not to discriminate against members
- Requiring to disclose members if chill association: strict scrutiny - Not: * Intimate relationship * Expressive associations |
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Exercising clause (1A)
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- General application, facially neutral:
* allowed * if not general/neutral: strict scrutiny - May not withdraw welfare for people who quit job due to religious reasons |
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Establishment clause (1A)
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- Not discriminate one religion among many religions
Law involving religion pass if: - Secular purpose of law - Not advocating or prohibit - No excessive government entanglement - Grant to parochial school allowed if not for religious instructions - Sponsored religious acitivty in public schoo: not pass - No school prayer even if voluntary - But religious students/groups must have access to school facility |
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Termination of social security disability benefit
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Post-termination notice
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Termination of welfare benefit
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Notice and hearing
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School discipline (due process)
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Notice and opportunity to explain
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Institutionalize child by parents (due process)
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Neutral fact finder to determine relevant facts
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Termination of custody (due process)
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Notice and hearing
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Civil conviction (due process)
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Notice and hearing
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Prejudgment goverment attachment or seizure (due process)
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notice and hearing
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Punitive damages (due process)
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- Must give jury instructions
- Must have judicial reviews - Excessive punitive damages: not due process |
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Local or state regulation impairs existing contract
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- Private contract: intermediate scrutiny
* Substantially burdens existing K * Important gov. interest * Narrowly tailored regulations - Government contract: strict scrutiny |
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Presumption that marital husband has custody of non-biological child
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- Valid for fundamental right privacy
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