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84 Cards in this Set
- Front
- Back
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What are the 4 justiceability requirements?
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Standing
Ripeness Mootness Political Question Doctrine |
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How does one have standing?
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Injury
Causation and redressability No 3d party standing No generalized grievances |
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What are the two criteria for determining ripeness?
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1. the hardship that will be suffered without preenforcement review.
2. the fitness of the issues and the record for judicial review. |
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When won't a case be dismissed as moot (exceptions)?
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1. Wrong capable of repetition but evading review
2. Voluntary cessation but can resume later. 3. Class action suits |
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What does the political question doctrine refer to?
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Federal courts will not decide issues which are
1) Constitutionally committed to the final, non-reviewable discretions of other branches or 2) are beyond the competence or enforcement capability of the judicial branch |
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What are the constitutional violations that the federal courts won't adjudicate (political questions)?
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1. "republican form of government" clause
2. challenges to president's conduct of foreign policy 3. challenges to the impeachment and removal process 4. challenges to partisan gerrymandering 5. procedures to amend the constitution |
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What is the principle of sovereign immunity and what grants it?
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the federal courts and state courts may not hear suits against state governments. Granted by the 11th amendment.
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In what instances may a state government be sued?
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1. waiver
2. pursuant to federal laws adopted under sec. 5 of 14th amendment. 3. by the federal government 4. bankruptcy proceedings |
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What is the only area that the federal government has a police power?
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military, indian reservations, federal lands and territories, DC.
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What is the necessary and proper clause?
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Congress may take all actions necessary and proper to carry out some authority, as long as not prohibited by constitution.
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What is the taxing and spending power?
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Congress may tax and spend for the general welfare.
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What is the commerce power?
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Congress may regulate the channels of interstate commerce, the instrumentalities of interstate commerce and persons or things in interstate commerce, and economic activities that have a substantial effect on interstate commerce.
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How does the 10th amendment limit congressional powers?
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All powers not granted to the US, nor prohibited to the states, are reserved to the state or the people.
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Is there any limit on congress' ability to delegate its powers?
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No limit. Legislative vetoes and line-item vetoes are unconstitutional, however. Congress may not delegate executive powers.
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What are treaties and what are their powers?
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Agreements between the US and a foreign country that are negotiated by the president and are effective when ratified by the senate. Prevail over conflicting state laws. If conflict with federal statute, most recent adopted controls. Cannot conflict with the constitution.
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What are executive agreements and what are their powers?
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agreement between the US and a foreign country that is effective when signed by the president and the head of the foreign nation. Prevail over conflicting state laws, but never over conflicting federal laws or the constitution.
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What are two executive powers that the President has that Congress cannot delegate to itself?
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Appointment and removal powers.
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Who can be impeached and for what reasons?
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President, VP, federal judges, and officers of the US. Treason, bribery, high crimes and misdemeanors.
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Who can the president pardon?
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Only those accused or convicted of federal crimes. Cannot pardon as to civil liability, and cannot pardon state criminal liability.
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What does the Supremacy Clause do?
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federal law trumps state law where the two conflict.
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What two types of preemption are there?
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Express preemption and implied preemption.
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Express preemption?
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federal statute explicitly says that federal law is exclusive.
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Implied preemption?
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1. if federal and state laws are mutually exclusive, federal law preempts state law.
2. if state law impedes the achievement of a federal objective, federal law preempts 3. if congress evidences a clear intent to preempt, federal preempts. |
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What is Inter-governmental immunity?
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States may not tax or regulate federal government activity.
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What is the Dormant Commerce Clause?
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principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.
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What does the privileges and immunities clause of article 4 do?
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No state may deny citizens of other states of the privileges and immunities it accords its own citizens.
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What does the privileges or immunities clause of the 14th amendment do?
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No state may deny the privileges and immunities of citizenship to any US citizen. ONLY APPLIES TO RIGHT TO TRAVEL.
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What is the analysis if a state law does not discriminate against out of staters?
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The privileges and immunities clause of art.4 does not apply.
If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits. |
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What is the analysis if a state law does discriminate against out of staters?
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If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. Congressional approval and Market Participant exceptions.
If the law discriminates against out of staters with regard to their ability to earn a livelihood, it violates the privileges and immunities clause of art. 4 unless it is necessary to achieve and important government purpose. |
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What is the Market Participant exception?
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a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.
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Can corporations and aliens sue under the DCC or PI clause?
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Only under the DCC.
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What is full faith and credit?
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Courts in one state must give full faith and credit to judgments of courts in another state, so long as
1. the court that rendered the judgment had PJ and SMJ. 2. the judgment was on the merits 3. the judgment is final. |
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What does the constitution apply to?
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Only government action. Private conduct need not comply.
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How can the constitution be applied to private individuals?
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Congress may use constitutional norms to private conduct through statute.
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In what cases must private conduct comply with the constitution?
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Public function exception and Entanglement exception.
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What is the public function exception?
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the constitution applies if a private entity is performing a task traditionally and exclusively done by the government.
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What is the entanglement exception?
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the constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Race discrimination tends to find entanglement.
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How is the Bill of Rights applied to the states?
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Through its incorporation into the due process clause of the 14th amendment.
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Which amendments do not apply to the states?
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2d amendment right to bear arms
3d amendment right to not have a soldier quarter in a person's home 5th amendment right to a grand jury indictment in criminal cases 7th amendment right to a jury trial in civil cases 8th amendment right against excessive fines |
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What is the rational basis test?
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Rationally related to a legitimate conceivable government purpose. Burden of proof is on the challenger.
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What is the test for intermediate scrutiny?
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Substantially related (narrowly tailored) to achieve an important actual purpose. Burden of proof is on government.
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What is the test for strict scrutiny?
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Narrowly tailored and necessary to achieve a compelling actual government purpose. There must be no other less restrictive alternative means and the burden of proof is on the government.
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What does procedural due process refer to?
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the procedures that government must follow when it takes away a person's life, liberty or property.
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What does substantive due process refer to?
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asks whether there's an adequate justification for government taking away a person's life, liberty or property.
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What does equal protection refer to?
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how individuals are treated relative to each other.
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What are the two questions to ask in determining procedural due process?
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1. Has there been a deprivation of life, liberty, or property?
2. What procedures are required? |
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When is there a deprivation of liberty?
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if there is a loss of a significant freedom provided by the constitution or statute.
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When is there a deprivation of property?
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if there is an entitlement and that entitlement is not fulfill.
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What is the test to determine what procedures are required?
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Balance
1. the importance of the interest to the individual. 2. the ability of additional procedures to increase the accuracy of the fact-finding. 3. the government's interests. |
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What test is used for laws affecting economic rights?
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Rational basis test.
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What is the takings clause?
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The government may take private property for public use if it provides just compensation.
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What is a possessory taking?
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government confiscation or physical occupation of property.
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What is a regulatory taking?
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leaves no reasonable economically viable use of the property.
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What is the contracts clause and who does it apply to?
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No STATE shall impair the obligations of EXISTING contracts. Does NOT apply to federal government.
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What must the state government satisfy in order to impair existing contract obligations?
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it must be reasonably and narrowly tailored to promote an important and legitimate public interest.
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What privacy rights receive strict scrutiny analysis?
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marriage
procreation custody of one's children keep the family together control upbringing of kids purchase and use contraceptives right to travel right to vote freedom of speech freedom of association free exercise of religion |
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What privacy rights receive intermediate scrutiny and undue burden analysis?
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Right to abortion
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What privacy rights receive rational basis review?
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right to practice a trade or profession
right to physician-assisted suicide right to education |
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We don't know which standard some privacy rights receive, which are these?
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right to engage in private consensual homosexual activity
right to refuse medical treatments right to possess firearms |
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What is the approach to follow for equal protection questions?
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1. What is the classification (on its face, or facially neutral)?
2. What level of scrutiny should be applied? 3. Does the law meet the level of scrutiny? |
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What classifications receive strict scrutiny?
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Race
National origin Alienage generally Travel (not foreign travel) Voting |
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What classifications receive intermediate scrutiny?
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Gender
Illegitimacy Undocumented alien children |
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What classifications receive rational basis review?
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Alienage classifications related to self government and the democratic process.
Congressional regulation of aliens Age Disability Wealth All other classifications |
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If a law is facially neutral, what must be proven to show that it may violate equal protection
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Discriminatory impact AND discriminatory intent.
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What are content-based restrictions on speech and what level of scrutiny do they receive?
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Subject matter restrictions and viewpoint restrictions. Strict scrutiny.
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What are content-neutral laws and what level of scrutiny do they receive?
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Laws burdening speech. Intermediate scrutiny.
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What is the appropriate scrutiny for prior restraints?
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Generally, strict scrutiny. Government can require licenses under intermediate scrutiny with appropriate procedural safeguards.
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When is a law vague?
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if a reasonable person cannot tell what speech is prohibited and what is allowed.
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What is overbreadth?
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if a law regulates substantially more speech than the constitution allows to be regulated.
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What is symbolic speech and how can it be regulated?
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The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on the communication is no greater than necessary to achieve the government's purpose.
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What speech is unprotected or less protected by the first amendment?
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Incitement of illegal activity
Obscenity and sexually-oriented speech Commercial speech Defamation Privacy (relating to the government) Speech by government employees on the job |
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What is incitement of illegal activity?
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the government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
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What is obscene and sexually-oriented speech?
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1. material that appeals to the prurient interest (local standard)
2. material patently offensive under the law prohibiting obscenity 3. taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (taken by a national standard) |
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Profane and indecent speech is generally protected by the first amendment, except?
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Broadcast over the media.
In schools. |
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What is the liability standard, damages, and burden of proof for a public official or figure?
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Actual malice
Compensatory damages are presumed/punitive Plaintiff has burden to prove falsity of the statement. |
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What is the liability standard, damages, and burden of proof for a private figure, matter of public concern?
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Negligence and actual injury
Compensatory for actual injury; presumed or punitive damages require actual malice. Plaintiff must prove falsity. |
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What is the liability standard, damages, and burden of proof for a private figure, matter of private concern?
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Unclear - but probably negligence.
Compensatory for actual injury; punitive damages don't require actual malice. Burden on defendant to prove truth. |
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What is the standard for restricting speech in public forums?
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Subject matter and viewpoint neutral
time/place/manner regulation. Must be important government interest. |
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What is the standard for restricting speech in limited public forums?
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Subject matter and viewpoint neutral
time/place/manner regulation Important government interest. |
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What is the standard for restricting speech in non-public forums?
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Does not have to be subject matter neutral, just viewpoint neutral.
Reasonable. Legitimate government interest |
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What are examples of non-public forums?
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Military bases
Areas outside prisons and jails Advertising space on city buses Sidewalks on post office property Airports |
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What level of scrutiny must laws that prohibit or punish group membership meet and what must be proven?
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Strict scrutiny.
1. active affiliation with the group 2. knowledge of illegal activities 3. specific intent to further illegal activities |
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What is the Free Exercise clause?
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Government may not deny benefits to individuals who quit their jobs for religious reasons.
Cannot be used to challenge a neutral law of general applicability |
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What is test of the establishment clause?
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1. there must be a secular purpose for the law.
2. the effect must be neither to advance nor inhibit religion. 3. there must not be excessive entanglement with religion. |
