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163 Cards in this Set
- Front
- Back
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What is the source and scope of the judicial power? |
Source: Article III Scope: jurisdiction of fed cts is limited to cases or controversies *most important: diversity jurisdiction and federal question jurisdiction (i.e., cases arising under the laws of the United States). |
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What is the major exception to the judicial power? |
The 11th Amendment and the preexisting concept of state sovereign immunity |
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What is the 11th amendment rule re suing states? |
You cannot sue a state for money damages in either that state or federal court unless the state consents or the US Congress expressly says so to enforce 14th Amendment rights. *The rule is you cannot sue the state in its own court but you can sue in a state's sister court (Nevada v. Hall) *No immunity for cities, counties, or towns |
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Can you sue a state officer? |
Yes, you can always get injunctive relief simply by enjoining the appropriate state officer (e.g., sue the state attorney general). *Can also get money damages, but only from the officer personally (b/c damages from the state treasury are barred unless the state consents or Congress expressly says so to enforce individual rights). |
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Over what cases does SOCTUS have original jurisdiction? |
A case may be filed first in the Supreme Court if (e.g., controversies btw states) |
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What is the appellate jurisdiction of SCOTUS? |
*Most of the jurisdiction of SCOTUS is appellate* Certiorari: almost all cases come to the Supreme Court by way of writ of certiorari, which is discretionary w/the Court *SCOTUS is the only fed ct that exercises discretionary jurisdiction *BUT: Congress can make exceptions to the Court's appellate jurisdiction (can effectively control the docket by legislating exceptions to its appellate jurisdiction). |
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When can SCOTUS review a state court judgment? |
Only if it turned on federal grounds. The Court has no jurisdiction if the judgment below rested on an adequate and independent state ground. *Adequate: the state ground must control the decision no matter how a federal issue is decided (i.e., when the federal claimant - party claiming federal right - wins anyway under state law). *Independent: the state law does not depend on an interpretation of federal law. No independent state ground if the state law adopts or follows federal law. |
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What happens when a state court decision is unclear as to whether it rests on federal grounds or state grounds? |
Then, SCOTUS can review the federal issue. |
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What does standing to sue require? |
(1) injury, (2) causation, and (3) redressability |
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What counts as an "injury" re standing? |
Almost anything can be injury, especially if Congress says so (either past or future). Must be concrete (not abstract), but need not be economic (e.g., impairment of freedom of movement or enjoyment of public space counts). *Mere ideological objection is not injury An organization has standing if its members having standing. |
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What counts as "redressability" re standing? |
A court can remedy or redress the injury. *If the injury is in the past --> damages. *If future injury is threatened --> injunction. But past injury does not give automatic standing to seek an injunction for future injury (you must show that it will happen again). |
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What do federal tax payers have standing regarding? |
Always have standing to challenge their own tax liability. Do NOT have standing to challenge government expenditures. *Unless under an Establishment Clause challenge to a specific congressional appropriation, which can be challenged by any taxpayer. *State courts often allow municipal taxpayers to challenge a municipality's expenditures. |
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Is there legislative standing? |
No, legislators do NOT have standing to challenge laws that they voted against. |
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What is "third-party standing"? |
Refers to the question of whether you can raise rights of someone else. Generally --> no. Exception --> parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction. |
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What is ripeness? |
Concerns the prematurity of a case. Ripeness requires that you show actual harm or an immediate threat of harm. |
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What is mootness? |
Caes that are overripe, which are dismissed whenever they become that way. *Cases can become moot during trial or on appeal. Exception: controversies capable of repetition, yet evading review, are not moot even though they look like it. |
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May federal courts provide advisory opinions? |
No, they cannot rule on the constitutionality of proposed legislation (or anything else advisory) *If a question suggests that a federal court's judgment would only be effective if a fed agency/executive officer agreed with it --> unconstitutional advisory opinion. |
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What is a political question? |
A non-justiciable question that courts will not decide because there is no manageable standards for judicial decision-making. Examples include: (1) Guarantee Clause questions (protecting the republican form of government), (2) Foreign affairs, such as opening or breaking off diplomatic relations w/another country, (3) Impeachment procedures, and (4) Political gerrymandering |
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On the MBE, if you are given a federal statute and asked to give the strongest argument in favor of congressional power, what are three wrong answers? |
(1) Promoting the general welfare: this is NOT a power of Congress (2) Police power: the federal government does not have such a thing (3) Necessary and proper clause: not a free-standing power of Congress (only works as an add-on to some other legislative power). |
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What is the general rule on the MBE re taxing, spending, and commerce powers? |
Pick the taxing power when the law involves a tax. Pick the spending power whenever federal money is spent or disbursed When in doubt, pick the commerce power. |
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What is the Commerce Power? |
Almost anything can be regulated as interstate commerce. Congress can regulate: (1) the channels of interstate commerce (e.g., highways, seaways, airways); (2) the instrumentalities of interstate commerce (e.g., cars, trucks, ships, railroads, etc.); and (3) Intrastate (and interstate) activity - economic or commercial - that has a substantial effect on interstate commerce. |
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For activities having a substantial effect on interstate commerce, how is "substantial effect" judged? |
In the aggregate: whether the aggregate activity of everyone doing the same thing has a substantial effect on interstate commerce (answer is almost always yes). |
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When can Congress regulate intrastate activity that is non-economic, non-commercial? |
If it can actually demonstrate a substantial effect on interstate commerce |
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What is the taxing power? |
Congress is entitled to tax if it is rationally related to raising revenue. *The Taxing Clause is the right answer whenever Congress imposes a tax, even when the tax is actually used to prohibit the good or activity in question. |
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What is the spending power? |
Congress can spend money including spending for the general welfare. *Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause. |
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What is the anti-commandeering doctrine? |
Means that Congress cannot force states to adopt or enforce regulatory programs. *Congress can bribe states through use of the spending power to enforce a regulatory program. It cannot commandeer state and local officers to carry out federal programs. *Congress can adopt its own regulatory program and enforce it w/federal officers. |
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What are the war and defense powers? |
(1) Congress can declare war and maintain the army and navy (2) Congress can provide for military discipline of US armed forces members (3) Congress can provide for military trial of enemy combatants and enemy civilians. *Congress CANNOT provide for military trial of US civilians. |
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What does the 13th Amendment provide Congress with the power to do? |
Gives Congress broad power to legislate against racial discrimination, whether public or private. *Includes purely private racial discrimination |
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What does the 14th Amendment provide Congress with the power to do? |
Gives Congress the power to remedy violations of individual rights by the gov't, but only as those rights have been defined by the courts. *Does NOT enable Congress to redefine constitutional rights by legislation. |
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To be properly remedial, what must a remedial law enacted by Congress be? |
The legislation must have "congruence" and "proportionality" (i.e., there must be a reasonable fit btw the law and the constitutional right as declared by the Supreme Court). |
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Does Congress have the power to overrule the Supreme Court's decisions or to define new rights? |
NO! |
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What power does the 15th Amendment provide Congress with? |
The power to ensure no racial discrimination in voting. |
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What is the presidential power to enforce the law? |
President has the power to enforce the law (not to make it or break it). The power to enforce is greatest when authorized by statute (generally, the President's powers are subject to control by statute). |
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What are the three powers that are exclusively executive (and therefore not subject to statutory control)? |
(1) Pardon Power (2) Veto Power (3) Appointment and Removal of Executive Officers |
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What is the pardon power? |
President can pardon or commute punishment for all federal offenses *Congress CANNOT limit this power |
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What is the veto power? |
President has 10 days to veto legislation. Can veto for any reason or no reason, but cannot veto specific items in the legislation and accept others *Overriding a veto requires a 2/3 majority vote of each house. |
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What is the power to appoint and remove executive officers? |
Only the President (or her appointees) can hire or fire executive officers. Some senior officers (cabinet officers, ambassadors, federal judges) require the advice and consent of the Senate. *Senate has power to reject but approval power is not the same as power of appointment. |
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What are executive officers? |
Anyone who takes action on behalf of the US. *Just as Congress cannot hire or fire an executive officer, it cannot give executive power to anyone it can hire or fire. |
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What powers does the President have as Commander in Chief? |
President has control over military decisions, although Congress has EXCLUSIVE power to declare war |
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What power does the President have re treaties? |
Treaties are negotiated by the President but require approval by a 2/3 majority vote of the Senate. *Once a treaty is ratified, it has the same authority as a statute. |
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What is an executive agreement? |
Def: presidential negotiations not submitted for approval by the Senate. Can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. *Do not have the binding status of a treaty. |
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What is impeachment and who has the power to impeach? |
Def: An accusation against executive officers of high crimes or misdemeanors requiring a majority vote of the House. Trial: After the majority vote in the House, there is trial in the Senate. Conviction requires 2/3 vote of the Senate. Remedy: removal from office (no other penalty applies). |
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What is impoundment? |
If a statute gives the President discretion to spend or withhold funds, he may do so. BUT when a statute unambiguously requires that funds be spent, the President cannot refuse to do so. *I.e., there is no power to impound funds. |
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What is a legislative veto? |
When Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. This is UNCONSTITUTIONAL. *If Congress wants to override future executive actions, it must change the law (so that the President has an opportunity to veto the new legislation). |
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When can Congress delegate its powers? |
Congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power (not a demanding test). *Almost all delegations of legislative powers are upheld |
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What immunities does the President enjoy? |
Official acts: absolute immunity Prior to taking office: no immunity Has executive privilege not to reveal confidential communications w/presidential advisers, but that privilege can be outweighed by a specifically demonstrated need in a criminal prosecution (i.e., Nixon). |
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What immunities do judges enjoy? |
Judges have absolute immunity for all judicial acts, but may be liable for non-judicial activities. |
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What immunities do legislators enjoy? |
US Senators/Reps (not state legislators) are protected by the Speech or Debate Clause: Senators, Congressmen, and their aides cannot be prosecuted or punished in relation to their official acts. *Official acts of a federal legislator cannot be introduced into evidence. |
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When federal and state powers conflict, who wins? |
Federal powers are superior, however, most federal powers are concurrent w/those of the states *On most topics, both Congress and the states have regulatory powers. If there is a conflict, Congress wins. Some powers are exclusively federal, including the power over foreign relations and the power to coin money. |
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What immunities does the federal government enjoy re state law? |
The federal government is generally immune from direct state regulation or taxation. However, states can tax indirectly, such as taxing the income of federal employees |
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Do state governments enjoy immunities from the federal government? |
No, states are NOT immune from direct federal regulation (e.g., pollution regulations, employment laws, etc.) State laws CANNOT shield state officers from federal liability. *Except: states cannot be forced to implement federal programs (anti-commandeering principle) but the feds can always use the spending power to bribe states into compliance. |
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What does the Privileges and Immunities of State Citizenship (Comity Clause) under Article IV provide? |
Forbids serious discrimination against out of state individuals, absent substantial justification. *Does not protect out-of-state corporations. *"Serious discrimination" typically involves employment. "Non-serious discrimination" would include recreational opportunities (e.g., hunting licenses or state park access). |
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What is the rule regarding thePrivileges and Immunities of State Citizenship under Article IV? |
There can be no legal requirement of residency for private employment (states cannot require that you live/reside in the state to work in the state). *However, public employment can require residency requirements. |
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What is the Dormant Commerce Clause? |
In the absence of federal regulation, state regulation of commerce is valid so long as: (1) there is no discrimination against out-of-state interests; (2) the regulation does not unduly burden interstate commerce; and (3) the regulation does not apply to wholly extraterritorial activity. *Called "dormant" b/c describes what the Commerce Clause is when there is no federal regulation on point. |
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What are examples of "discrimination against out of state interests" with regard to the Dormant Commerce Clause? |
Examples of discrimination: taxing out-of-state interests at a higher rate, forbidding sale only of out-of-state products, requiring that manufacturing be performed in-state, limiting privately owned landfills to in-state garbage, etc. |
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What are exceptions to the rule against discrimination against out-of-state interests re the Dormant Commerce Clause? |
(1) State as Market Participant: when a state is buying or selling goods/services, it can choose to deal w/only in-state persons. *e.g., sale of cement produced by state-owned plant only to in-state purchasers; garbage stored in state-owned landfill limited to in-state garbage; law requiring 50% local workforce on state-financed construction projects. (2) Subsidies: a state can always choose to subsidize only its own citizens *e.g., welfare benefits, in-state college tuition. (3) Federal Approval: if Congress authorizes or consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests. |
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What is an "undue burden on interstate commerce" re the Dormant Commerce Clause? |
Only when non-discriminatory state regulation is so outrageously costly relative to the benefits of the regulation is it struck down as an undue burden on interstate commerce. *Balancing test, but almost always upheld. |
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Under the Dormant Commerce Clause, may a state regulate extraterritorial activity? |
No, a state may not regulate conduct occurring wholly beyond its borders. |
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What are the requirements for state taxation of interstate commerce? |
Generally, the requirements are the same as for any other state regulation of commerce: (1) discriminatory taxation will be struck down unless Congress consents, and (2) non-discriminatory taxation will be upheld unless it is unduly burdensome. |
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When is non-discriminatory state taxation valid? |
When it meets two requirements: (1) must be a substantial nexus between the taxing state and the property or activity to be taxed, and (2) must be a fair apportionment of tax liability among states. |
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What are Ad Valorem Property Taxes? |
Value-based property taxes levied on personal property. Distinguish btw two kinds of personal property b/c they are taxed diff: (1) commodities: goods that move from state to state, and (2) instrumentalities: transportation equipment that moves commodities (e.g., railroads, trucks, airplanes, etc.) |
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How are commodities taxed? |
States tax all commodities w/in their borders on a specific date (called tax day), but not goods that are merely in transit - only those that have come to rest in the state. Rule: pay the full tax to every state where goods are stopped for a business purpose on tax day (no taxes are due where they are merely passing through). |
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How are instrumentalities taxed? |
Each state in which an instrumentality is used can tax the value of that instrumentality. |
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When does federal law preempt state law? |
When state law is inconsistent. *State law is NOT preempted simply b/c it addresses the same subject matter/topic as a federal statute. There must be incompatibility or conflict. |
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What is preempting the field? |
When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent w/the federal statute and is preempted *This is rare. |
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What are interstate compacts? |
Agreements among states. Allowed but if the compact affects federal rights, Congress must approve. |
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What does the Full Faith and Credit Clause require of states? |
States must give full faith and credit to judgments rendered by other states' courts, so long as the rendering court had jurisdiction to render a final judgment on the merits. *States do NOT have to follow other states' laws. |
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What is the state action requirement? |
Other than the 13th Amendment, when enforcing individual rights under the 14th Amendment, there must be state action (cannot be private action). State action: government action, whether state or local (e.g., a city firing a sheriff is state action; a county denying a permit is state action). |
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When can the government be liable for private discrimination? |
If it is significantly involved in the private discrimination. Significant star involvement includes: (1) facilitating private discrimination, (2) profiting from private discrimination, or (3) enforcing a private agreement to discriminate. *BUT government is NOT required to PREVENT private discrimination |
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When is state action required? |
Only when making a claim on the Constitution. State action is irrelevant if there is anti-discrimination legislation |
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What are the two questions to ask re a potential procedural due process violation? |
(1) Is life, liberty, or property being taken? (2) If so, what process is due? |
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When is there loss of life? |
Death penalty requires procedural due process |
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When is there loss of liberty? |
Physical confinement, probation and parole, physical injury (spanking at school), any restrictions on legal rights (including being punished for free speech). *Injury to reputation is NOT a loss of liberty. |
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What is loss of property? |
Property interest in government job or benefits whenever there is a legitimate entitlement to continued enjoyment of the job or benefit *mere expectation of continued employment or benefit does not suffice *most government benefits are entitlements, and hence property |
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How can you tell whether you have an entitlement to a government job vs mere expectation of government employment? |
Government jobs are entitlements only when the government says so - such as by providing a contractual term or discharge only "for cause." |
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What counts as loss/deprivation? |
No due process entitlement if there is an accident; requires the intentional taking away of life, library or property *Random negligence by a state employee does not constitution deprivation. |
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What factors to courts balance to determine what procedural due process is due? |
(1) the individual interest at stake (i.e., life, liberty, property); (2) the value of the procedure in protecting that interest; and (3) the government's interest in efficiency and cost. |
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When is a pre-deprivation hearing required? |
(1) When terminating welfare benefits, and (2) Non-emergency revocations of driver's licenses |
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When can a hearing occur post-deprivation? |
Only if the hearing is prompt and fair. Examples include: terminating disability benefits and dismissing students for academic reasons |
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Government employees who are entitled to their jobs (i.e., can only be fired "for cause") are provided which type of hearing? |
Must be given opportunity to be heard prior to discharge, unless there is a significant reason not to keep the employee on the job. *If there is a significant reason not to keep the person the job, then the discharge can come first w/a subsequence hearing that is prompt and provides reinstatement w/back pay (fair) |
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What is strict scrutiny? |
Test: Is the law necessary for ac impelling government interest? *Requires the least restrictive means Burden: government must show the interest is compelling and law is necessary to that interest Application: suspect classifications or fundamental rights |
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What is intermediate scrutiny? |
Test: Is the law substantially related to an important government interest? *Only ever used for equal protection (NOT substantive due process) Application: legitimacy, gender |
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What is rational basis? |
Test: is the law rationally related to a legitimate interest? Burden: challenger bears burden of proof Application: all other cases (residual test) |
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What scrutiny do fundamental rights trigger? |
Strict scrutiny (for either equal protection or due process) |
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What is the difference between Due Process and Equal Protection? |
Due Process: If a law denies a fundamental right to everyone. Equal Protection: If a law denies a fundamental right to only some. |
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What is the fundamental right to travel? |
Right of interstate travel and settlement. States can impose residence requirements for: (1) political participation and (2) government benefits. *Typically 30-90 days; 1 year is too long for everything exception in-state tuition and jurisdiction to issue a divorce. *State cannot have a tax scheme that favors long-term residents over recently arrived residents |
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Is voting a fundamental right? |
Yes, to all citizens age 18 and over Poll taxes are unconstitutional but short-term residency requirements are permitted. *Congress controls the residence requirements for presidential elections. States control for all other elections. |
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What restrictions may be placed on ballot access? |
States can impose requirements for candidates to be listed on a ballot, such as longer residency, filing fees, and nomination petitions, so long as serious candidates can reasonably comply. *If the requirements becomes so onerous that they effectively bar access to the ballot, they they are unconstitutional. |
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What does the right to privacy entail? |
Marriage: substantial interference w/the marriage - including same-sex marriage - is unconstitutional. Contraception: a fundamental right for everyone, whether married or not, to purchase contraceptives. Sexual Intimacy: lesser; but gov't has no legit interest in regulating non-commercial sexual intimacy btw consenting adults, including same-sex. Abortion Parental Rights Family Relations Obscene Material Refusal of medical treatment |
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What is the right to an abortion? |
A woman has a right to terminate her pregnancy until viability of the fetus. After that stage, restrictions can apply so long as there are exceptions to preserve the health and the life of the mother. *States CANNOT impose an undue burden on a woman's right to terminate pregnancy |
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What counts as undue burden? |
Allowed: informed-consent, 24-hr waiting periods, parental notification requirements (for minors) Not Allowed: parental consent requirements (unless option to have judge give consent), spousal consent *Gov't financing of abortion is not required |
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What are parental rights? |
Parents have a fundamental right to raise their children as they see fit, including the choice of religious or private schools *Can lose their rights through abandonment, abuse, or neglect. |
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What do family relations have a right to? |
The right to live together w/close relations. |
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What is the fundamental right related to obscene material? |
Fundamental right to read obscene material in the privacy of one's own home. *However, NO fundamental right to purchase, sell, import, or distribute such material Does NOT apply to child porn |
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Are there rights for refusal of medical treatment? |
Unclear whether this is a fundamental right, but there is a liberty interest in refusing medical treatment No right to commit suicide |
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What is ALWAYS a wrong answer on the MBE? |
Privileges or Immunities of National Citizenship under the 14th Amendment (means nothing today) |
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What are some examples of rational basis review "with teeth"? |
Recently, SCOTUS re sexual orientation has applied rational basis but been more strict than usual: (1) Lawrence (2003): struck down laws criminalizing homosexual sodomy (2) Windsor (2013): struck down the federal DOMA Point: laws against sexual orientation might be struck down as irrational b/c they are not supported by reason other than mere prejudice. |
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What triggers strict scrutiny under Equal Protection? |
Race, ethnicity, or national origin |
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Is disparate impact enough for strict scrutiny? |
No, a discriminatory purpose must be proved. May be explicit on the face of the statute or may be proved by a history of discriminatory application, or by extrinsic evidence about the purposes of those who passed the law. |
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Is segregation (school or residential housing patterns) unconstitutional? |
De jure (by law) segregation is unconstitutional De facto segregation is not |
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Does affirmative action as a remedy for past discrimination violate the Equal Protection Clause? |
*Triggers strict scrutiny b/c its a racial classification* Valid when it specifically corrects past discrimination by the specific department or agency no engaged in it (but general societal discrimination does not justify affirmative action) |
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Is affirmative action allowed in admissions to colleges and universities? |
Yes, in the context of preferential admissions to colleges and universities (if necessary to achieve a diverse student body and diversity is essential to the education). Must be a strong showing that racial preferences are essential to achieving a diverse class. Must be "holistic" (can be built into an evaluation if every student is evaluated individually in a holistic way) and flexible |
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When is affirmative action in schools not allowed? |
In college/universities: through quotas or through separate tracks/procedures for minority applications In secondary schools (though schools may be located and attendance zones created to maximize diversity). |
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What are the two exceptions to alienage as a suspect class triggering strict scrutiny? |
(1) Fed Gov't: Congress has plenary power over citizenship and naturalization so fed classification based on US citizenship does NOT trigger strict scrutiny. *Fed classifications are valid unless arbitrary and unreasonable. (2) State and Local Participation in Gov't Functions: States and localities may require US citizenship for participation in government functions, including voting, serving on a jury, and work in any kind of gov't law enforcement position (including probation and parole officers), or as a public school teacher. *These are jobs that have a particular relevance to the role of gov't |
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Can states and localities require US citizenship for access to private employment or for gov't benefits? |
NOPE! |
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Do undocumented immigrants have constitutional rights? |
Undocumented immigrants are not a suspect class but states cannot deny their children public education (Plyler v. Doe) |
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What are examples of unconstitutional and constitutional gender classifications? |
*Gender classifications are almost always invalid.* Unconstitutional: permitting women to legally drink alcohol at younger age than men. Constitutional: statutory rape can be gender specific, the draft |
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What about legitimacy? |
Legitimacy laws (i.e., something depends on whether parents were married at time of birth) are almost always invalid, especially if punitive in nature. *applies intermediate scrutiny |
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What are non-suspect classifications? |
Age: discrimination in employment is barred only by statute, but only triggers rational basis under EPC Wealth: not suspect but the gov't has to waive filing fees for indigent individuals when charging fees would deny a fundamental right *E.g., divorce, transcript for appeal of criminal conviction, transcript for appeal of termination of parental rights. |
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What does the right to vote require under EPC? |
Requires districts of approximately equal size (i.e., approximately the same number of voters in each) Applies whenever you elect representatives by district *Except: special purpose gov'ts where a highly specialized gov't (e.g., for distribution of water rights) are allowed to have a franchise based on that special purpose (e.g., acreage of water entitlements) |
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What is racial gerrymandering? |
Vote dilution: drawing districts to scatter minorities so that they are not crucial in any one district. If done w/a discriminatory purpose, unconstitutional *a bizarrely-shaped district may be evidence of a predominate racial purpose |
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What is the Voting Rights Act? |
Requires racial gerrymandering to ensure minority success by creation majority-minority districts. Rule: race may be a factor in drawing district lines, but not the predominate or only factor. |
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What is political gerrymandering? |
Drawing districts to hurt one party. Can, in theory, violate EPC but has never been struck down in practice b/c SCOTUS doesn't have any judicially manageable standards for implementing the guarantee (non-justiciable political question). |
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What are takings and what does the constitution say about them? |
Private property shall not be taken for public use w/o just compensation Public use: basically anything the gov't wants to do w/the property (need only be rationally related to a conceivable public purpose) *includes taking private property to resell to another private owner for purposes of economic development Just compensation: fair market value at the time of the taking |
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What is a regulation (vs a taking)? |
If there is a taking of property, compensation is required but if there is a mere regulation on property, compensation is not required even if the regulation reduces the value of the property. |
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What counts as a taking? |
If the gov't physically occupies a private owner's property, then a taking has occurred and just compensation is owed. Even if the gov't physically occupies only a tiny portion of your property, it is still a taking. *if there is no physical occupation that generally indicates no taking |
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What is a regulatory taking? |
A zoning regulation can be considered a taking when it leaves NO economically viable use for the property. *Zoning is usually not a taking so long as the zoning advances legitimate interests and does not extinguish a fundamental attribute of ownership. |
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What is a concession and is it constitutional? |
Development permits are often conditioned on "concessions" by the developer, such as building an access road or donating land to a park. Such extractions are valid so long as they can be seen as offsetting the adverse impact of the development. |
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What is a bill of attainder? |
A legislative punishment imposed w/o judicial trial. IT IS UNCONSTITUTIONAL |
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What are ex post facto laws? |
Laws that expand criminal liability retroactively either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct IT IS UNCONSTITUTIONAL |
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What does the contract clause do? |
Bars states from legislative impairment of existing contracts, unless there is an overriding need (e.g., emergency). |
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What is the three-party Lemon test re Establishment Clause? |
(1) Does the law have a secular purpose? (2) Does the law have a primary effect that neither advances no inhibits religion? (3) Does the law avoid excessive government entablement with religion? |
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What are the issues with the Lemon test? |
Difficult to apply |
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What kind of aid is allowed for religious primary/secondary schools? |
Neutral aid that goes to everyone, including religious schools, is allowed *E.g., Gov't gives aid to parents and the parents are allowed to send their children to the schools of their choice. B/c the parents are making the decision as to whether a religious school gets the money, not the gov't. |
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Are endorsements of religion allowed under the Establishment Clause? |
No, it is unconstitutional for the gov't to endorse one religion over another and also to endorse religion over non-religion. *but some endorsements are upheld (see, e.g., "In God We Trust") SCOTUS wants to prevent coercive endorsement of religion (one that might override individual choice) |
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When is gov't endorsement of religion coercive and therefore violative of the Establishment Clause? |
In context that might prove coercive on an individual's conscience: -officially sponsored school prayer -officially sponsored graduation prayer Allowed: -Bible reading ok but cannot be inspirational -Displaying 10 commandments is sometimes ok (for secular/historical/promoting morals) but not to inspire religious belief *CAN teach in school as example of early legal code. *CANNOT post in classroom everyday *CANNOT post in a courthouse if the context makes it plain that the purpose is to endorse religious belief |
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Are laws prohibiting teaching evolution constitutional? |
No, those have been struck down. |
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Is legislative prayer constitutional? |
Yes for historical practices |
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Are nativity scenes on gov't/public property allowed? |
Yes, so long as there is something to dilute the religious message (e.g., menorah, Rudolph) |
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What does the Free Exercise Clause protect? |
(1) Religious belief: protected absolutely (entitled to hold any belief) (2) Religious conduct: protected qualifiedly |
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What type of conduct is protected under the Free Exercise Clause? |
Laws regulating conduct b/c of its religious significance are unconstitutional (i.e., laws aimed at religion). Neutral regulation of conduct: neutral, generally applicable laws can be enforced despite religious objections. *No right to accommodation |
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What is the ministerial exception? |
The fed. gov't cannot regulate employment relations btw a religious institution and its ministers (minister construed broadly) |
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If a University allows student groups to meet on campus, must it allow student religious groups equal access? |
YES! |
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May the gov't regulate the content of expression? |
No, content based regulations trigger strict scrutiny and are usually struck down. |
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When may the gov't regulate expressive conduct/symbolic speech? |
Laws regulating expressive conduct are upheld if: (1) they further an important interest; (2) that interest is unrelated to the suppression of the expression; and (3) the burden on expression is no greater than necessary *Key: if gov't is trying to suppress a message, then the law will be struck down; if the gov't is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld. |
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What is a vague law? |
Ones that give no clear notice of what is prohibited and thus violate due process |
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What is an over broad law? |
Ones that go too far in regulating speech. These laws burden substantially more speech than is necessary to protect a compelling interest and thus violate the 1st amendment. |
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What are prior restraints? |
An attempt to stop speech from happening/being published beforehand. *Especially disfavored and will be struck down even when other forms of regulation might be upheld. Pretty much impossible to get. |
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What is content-neutral regulation of speech? |
Regulations of the time, place, or manner of expression |
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What is a public forum? |
A place traditionally reserved for speech activities (including streets, parks, and public sidewalks) |
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When may gov't regulate speech in a public forum? |
*Only time, place and manner may be regulated in a public forum* Three requirements: (1) Content neutral: must be content neutral on its face and as applied (also must not allow executive discretion); (2) Alternative channels of communication must be left open: must be a guideline for speech, not a flat prohibition of speech; and (3) Must narrowly serve a significant state interest (NO compelling interest) *Under this test, most content-neutral time, place, and manner regulations are upheld |
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What is a non-public forum? |
Gov't property that is not a public forum (e.g., gov't offices, jails, power plants, military bases, etc.). *Here, gov't has more power |
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When can speech be regulated in a non-public forum? |
Essentially, any reasonable regulation of speech will be upheld. *Especially if the speech is disrupting the functions of gov't What is NOT allowed: -viewpoint discrimination (e.g., btw members of diff. political parties) |
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What is a limited public forum? |
A place that is not a traditional public forum, but that the gov't chooses to open to all comers (e.g., a municipal theater that anyone can rent). In these areas, only time, place, or manner regulations are allowed (narrow category). |
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What are the categories of speech that gov't CAN regulate re content? |
(1) Obscenity (2) Incitement (3) Fighting words (4) Defamation (5) Commercial Speech |
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What is obscenity? |
Defined by the four S's: (1) Sexy: must be erotic, appeal to the prurient interest (gore/violence are not legally obscene), (2) Society Sick: must be patently offensive to the average person in the society (may be country as whole, particular state, or major metropolitan area), (3) Standards: must be defined by the proper standards for determining what is obscene, not vague and/or over broad. (4) Serious value: must lack serious value (artistic, scientific, educational, or political) *Determination made by the court, not the jury, and it must be based on a national standard, not a local one. |
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What about minors and obscenity? |
A lesser standard can be applied to minors, but the gov't cannot ban adult speech simply b/c it would be inappropriate for minors |
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What about child pornography? |
Can be prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home. |
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What about land use restrictions and obscenity? |
Narrowly drawn ordinances can regulate the zoning of adult theaters, but cannot ban them entirely. |
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What is incitement? |
Speech is not protected if it is an incitement to immediate violence |
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What are fighting words? |
Words likely to provoke an immediate breach of the peace. *Must be aimed/targeted at someone, and that person might hit back *General vulgarity is not enough Remember: all fighting word statutes on the bar exam are unconstitutionally vague and/or overboard (e.g., laws against "hate speech") |
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What is defamation? |
False statements of fact (not opinion) damaging to a person's reputation (can be prohibited) Public officials/figures: can recover only on proof of knowing or reckless falsity Private ppl: can recover on proof of negligent falsity |
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What is commercial speech? |
Test: regulation of commercial speech must directly advance a substantial gov't interest and be narrowly tailored to that interest (intermediate scrutiny) *Most regulations of commercial speech are struck down --> so long as the advertising is truthful and informational, it is allowed. *Note: misleading commercial speech (unlike political speech) may be prohibited |
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May the gov't as a speaker express a point of view? |
Yes, the 1A restrictions basically don't apply to the gov't as a speaker (e.g., can advertise the military) Random Rules: -Gov't does NOT have to accept all monuments donated by a private person simply b/c it accepts one -Speciality license plates bearing messages requested by purchasers are still gov't speech, so the gov't CAN refuse to issue plates that would be offensive to other citizens |
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Do corporations have 1A rights? |
Yes, corporations have the same 1A rights to speak as individuals |
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Do the press/media have special privileges? |
No, they have the same rights as everyone else. |
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What is the broadcaster exception? |
Traditionally, b/c of early limits on the broadcast spectrum, gov't had greater regulatory authority over broadcasters than over print media or the internet |
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What is freedom of association? |
Cannot be punished b/c of political associations Examples: -Public employees can be required to take a loyalty oath to the Constitution, but most loyalty oaths are struck down as vague and/or over broad -States can investigate good character, but they cannot deny bar admission based on political affiliations -States CANNOT require open primaries |
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What is the general rule re speech by gov't employees? |
Gov't employees cannot be hired or fired based on political party, political philosophy, or any act of expression Except: does not apply to confidential advisors or policy-making employees (e.g., the President's cabinet officers) |
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Is the use of money to support a political campaign speech? |
Yes, in fact, it is political speech |
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What can be regulated re campaign finance? |
Contributions: CAN be regulated, provided that the limits are not unreasonably low. Direct Expenditures: in support of a candidate, campaign, or political issue CANNOT be regulated |
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What's the diff btw independent and coordinate expenditures? |
Independent expenditures: CANNOT be regulated *includes donors who are corporations, nonprofits, and unions Coordinated expenditures: disguised contribution (the campaign is in control) CAN be regulated as contributions can. |
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Is equalization of campaign resources a valid rationale for restricting campaign expenditures? |
SCOTUS says no |
