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| Question | Answer |
|---|---|
| Overview | 1. Fed Judicial Power 2. Fed. Leg. Power 3. Fed. Executive Power 4. Federalism 5. Protection of Individual Liberties 6. Individual Liberties 7. EP 8. First Amend |
| Requirements for Cases and Controversies | Standing, Ripeness, No Mootness, No Political Question |
| Standing | The issue of whether the P is the proper party to bring a matter to the ct for adjudication. |
| Four requirements of Standing. | Injury, Causation and Redressability, No Third-Party Standing, No Generalized Grievances |
| Injury | P must allege and prove that he has been injured/imminently will be injured. |
| What must a P assert and show in re Injury for Standing? | Ps only may assert injuries that they PERSONALLY have suffered. Ps seeking INJUNCTIVE or DECLARATORY relief must show a LIKELIHOOD OF FUTURE HARM. |
| Causation and Redressability | P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the injury (no Advisory Opinions). |
| No Third-Party Standing | A P cannot assert claims of others, of Third-arties, who are not before the ct. |
| Exceptions to No Third-Party Standing | 1) Close relationship between P and injured TP. 2) Injured TP is unlikely to be able to assert own rts. 3) Org may sue for members, IF members would have standing, interests germane to Org's purpose, participation of individual members not required. |
| No Generalized Grievances | Plaintiff must not be suing solely as a CITIZEN or as a TAXPAYER interest in having the gvt follow the law. |
| Exception to No Generalized Grievances | Taxpayers have standing to challenge gvt expenditures pursuant to fed statues as violating the ESTABLISHMENT CLAUSE (applies to money, not property). |
| Ripeness | Question of whether a fed ct may grant pre-enforcement review of a statute or regulation. |
| Considerations for Ripeness | Hardship that will be suffered w/o pre-enforcement review. Fitness of the issues and the record for judicial review. |
| Mootness | If events after the filing of a lawsuit end the P's injury, the case must be dismissed as moot. |
| Exceptions to Mootness | Wrong capable of repetition but evading review. Voluntary cessation. Class action suits. |
| Voluntary Cessation | If D voluntarily halts offending conduct, but is free to resume it at any time, the case will not be dismissed as moot. |
| Political Question Doctrine | Constitutional violations that the Fed Cts will NOT adjudicate. |
| Four types of Political Questions that will be dismissed as non-justiciable. | 1) Republic Form of Gvt Clause. 2) Challenges to President's conduct of foreign policy. 3) Challenges to the Impeachment and Removal process. 4) Challenges to PARTISAN Gerrymandering. |
| Supreme Court Review | All cases fr St Cts and US Cts of App come to S.Ct. by writ of certiorari. Appeals exist for decisions of 3-J Fed Dis Cts. S.Ct. has ORIGINAL and EXCLUSIVE jur for suits between St Gvts. |
| General Rule in re Supreme Court Review | Generally, S Ct may hear cases ONLY a/f there has been a FINAL JUDGMENT of the highest St Ct, of a US Ct of App, or of a 3-J Fed Dis Ct. |
| For the Supreme Court to review a State Court decision. | There must NOT be an INDEPENDENT and ADEQUATE State law ground of decision. |
| Lower Federal Court Review | Federal Cts may NOT hear suits against St Gvts. Fed Cts may NOT enjoin pending St Ct proceedings. |
| Principle of Sovereign Immunity | 1) 11th Amend bars suits against Sts in Fed Ct. 2) Sovereign Immunity bars suits against States in St Cts or Fed Agencies. |
| Exceptions to Principle of Sovereign Immunity | 1) Waiver (must be explicit) 2) Sts may be sued pursuant to fed laws adopted under section 5 of 14th Amend. 3) Fed Gvt may sue St gvts 4) Bankruptcy proceedings |
| Suits against State Officers | May be sued for injunctive relief and for money dmgs to be paid out of their own pockets. May NOT be sued if it is the St treasury that will be paying retroactive dmgs. |
| Abstention | Fed cts may NOT enjoin pending st ct proceedings. (e.g. Fed has jur, but does not exercise it) |
| Congress' Authority to Act | Must be Express or Implied Congressional Power (no general federal police power). |
| Exceptions to No General Federal Police Power | 1) Military 2) Indian Reservations 3) Federal Territories or Land 4) District of Columbia |
| Taxing/Spending Power | Congress may tax and spend for the general welfare. |
| Commerce Power | Congress may regulate 1) the CHANNELS of interstate commerce, 3) the INSTRUMENTALITIES of interstate commerce and persons/things in interstate commerce, 3) economic activities that have a SUBSTANTIAL EFFECT on interstate commerce. |
| In the the area of non-economic activity (in re commerce power) | A substantial effect cannot be based on cumulative impact. |
| Tenth Amendment as a limit on Congressional Powers. | All powers NOT granted to the US, nor prohibited to the Sts, are reserved to the Sts or the people. |
| Congress' power under section 5 of the Fourteenth Amendment. | Congress may NOT create new rts or expand the scope of rts, Congress may act only to PREVENT or REMEDY violations of rts recognized by the cts and such laws must be "proportionate" nad "congruent" to remedying con'al violations. |
| Delegation of Powers | NO LIMIT exists on Congress' ability to delegate leg power. Congress may NOT delegate executive power to itself or its officers. |
| Legislative Vetos and Line-Item Vetos. | Unconstitutional. For Congress to act, there ALWAYS must be BICAMERALISM and PRESENTMENT. The PResident must sign or veto the bill in its ENTIRETY. |
| Treaties | Agreements between US and a foreign country that are negotiated by the President and are effective when ratified by the Senate. |
| Conflicts with Treaties | T v St = T wins. T v Fed = last in time. T v Con = invalid. |
| Executive Agreement | An agreement between the US and a foreign country that is effective when signed by the PResident and the head of the foreign nation. (no ratification by the Senate) |
| Distinguish Executive Agreement from Treaties. | Unlike Treaties, Executive Agreements do not ever prevail over Fed statutes. |
| Commander-in-Chief | President has broad powers to use American troops in foreign countries (challenges usually dismissed, or President wins). |
| The Appointment Power | President appoints AMBASSADORS, FED Js, and OFFICERS of the US. Congress may vest the appointment of inferior officers in the president, the heads of dep'ts or lower fed cts. |
| Inferior Officer | One who can be fired by an officer of the US. |
| Removal Power | President may fire any executive branch officer, UNLESS removal is limited by statute. |
| Congress in re Removal Power | For Congress to limit removal, it must be an officer where independence fr the President is desirable AND, Congress cannot prohibit removal, it can limit removal to where there is good cause. |
| Impeachment and Removal | President, Vice President, Fed Js, and Officers of the US can be impeached and removed fr the office for TREASON, BRIBERY, or for HIGH CRIMES and misdemenaors. |
| What votes are required for Impeachment? | Majority in House of Rep. 2/3 in Senate. (Impeachment does NOT remove from office). |
| President's Absolute Immunity | To civil suits for money dmgs for any actions WHILE IN office. |
| Executive Privilege | (not absolute) For presidential papers and conversations, but such privilege must yield to other important gvt interests. |
| Power to Pardon | Only for Federal Crimes. Exception for Impeachment. |
| Preemption | Supremacy Clause of Article VI provides that the Con, and laws and treaties made pursuant to it, are the supreme law of the land. |
| Express preemption | Fed statute explicitly says exclusive in a field. |
| Implied preemption | If fed and st laws are MUTUALLY EXCLUSIVE, Fed law preempts St law. If St law IMPEDES the achievement of a FED OBJECTIVE, Fed law preempts St law. If Congress evidences a CLR INTENT TO PREEMPT ST LAW, FEd law preempts St law. |
| Inter-Governmental Immunity (St Tax and Reg of Fed Gvt) | States may NOT tax or regulate Fed Gvt activity. States cannot regulate Federal Government if places a significant burden of federal activity. It is unconstitutional to pay state tax out of Fed treasury. |
| Dormant Commerce Clause | State or Local Law is unconstitutional if places excessive burden on interstate commerce (negative implications of the commerce clause). |
| Privileges and Immunities Clause of Article IV | No St may deny citizens of other Sts of P&I it affords its own citizens (anti-discriminatory). |
| Privileges and Immunities Clause of Fourteenth Amendment | Right to Travel, protects people fr own St. |
| If St law does not discriminate⦠| a) P&I of Art IV does NOT apply. b) If law burdens interstate commerce, it violates dormant commerce clause if its burdens exceed its benefits (balancing test). |
| If St law discriminates… (dormant commerce clause) | If law burdens interstate commerce, it violates dormant commerce clause UNLESS it is necessary to achieve an important gvt purpose. |
| If St law discriminates… (P&I Clause of Art IV) | If law discriminates against out-of-staters w/ regard to their ability to earn a living, it violates this clause UNLESS it is necessary to achieve an important gvt purpose. |
| Exceptions to Dormant Commerce Clause violations. | 1) Congressional Approval. 2) Market Participant Exception. |
| Market Participant Exception | A St or local gvt may prefer its own citizens in receiving benefits fr gvt programs or in dealing w/ gvt-owned businesses. |
| State Taxation of Interstate Commerce | 1) Sts may NOT use their tax systems to help in-state businesses. 2) A St may ONLY tax activities if there is a SUBSTANTIAL NEXUS to the St. 3) St taxation of interstate businesses MUST be fairly apportioned. |
| Full Faith and Credit | Cts in one st must give full faith and credit to judgments of cts in another st, so long as: 1) ct that rendered judgment HAD JUR over the parties and subj matter, 2) judgment was ON THE MERITS, and 3) judgment was FINAL. |
| Thirteenth Amendment | Applies ONLY to slavery violations. Discrimination can violate the 13th Amend, if violates Fed St adopted by Congress under the 13th Amend. |
| Situations where private conduct must comply with the Constitution. | Public Function, and Entanglement. |
| Public Function | Con applies if a private entity is performing a task traditionally, exclusively done by the gvt. |
| Entanglement | Con applies if the gvt affirmatively AUTHORIZES, ENCOURAGES, or FACILITATES uncon activity. |
| Key examples of Entanglement | 1) cts cannot ENFORCE racially restrictive covenants. 2) Gvt leases premises to restaurant. 3) St provides books to schools. 4) Private entity regulates interscholastic sports w/in st. (Gvt subsidy is INSUFFICIENT to find St action) |
| Bill of Rights | Applies directly ONLY to the Fed Gvt. Applies to St/Local Gvts through its INCORPORATION into the due process clause of the Fourteenth Amend. |
| Rights not Incorporated. | 1) Third Amend rt not to have a soldier quartered in a person's home. 2) Fifth Amend rt to grand jury indictment in criminal cases. 3) Seventh Amend rt to jury tr in civil cases. 4) Eighth Amend rt against excessive fines. |
| Rational Basis Test | Rationally related to a Legitimate gvt Purpose. (burden on challenger) |
| Intermediate Scrutiny | Substantially related to an important Gvt Purpose. (burden on Gvt) |
| Strict Scrutiny | Necessary to achieve a compelling Gvt Purpose. (burden on Gvt) |
| Procedural Due Process | Procedures Gvt must follow when taking away life, liberty, or property. |
| Substantive Due Process | Adequate reason for Gvt to take away life, liberty, or property. |
| Equal Protection | Whether Gvt's distinctions its drawn on how it treats people is adequately justified. |
| Deprivation of Liberty | Occurs if there is the loss of a significant freedom provided by the Con or a statute. |
| Procedural Due Process for Deprivation of Liberty | Except emergencies, must be NOTICE and HEARING to institutionalize and adult. Only need SCREENING by NEUTRAL fact-finder for child. |
| Entitlement | Reasonable expectation to continued receipt of a benefit. |
| Deprivation of Property | Occurs if there is an ENTITLEMENT and that entitlement is not fulfilled. (no distinction in re rights and privileges) |
| Mental State of Gvt in re Deprivation of Due Process | Generally, must be INTENTIONAL gvt action or at least RECKLESS action for liability to exist. However, in EMERGENCY situations, gvt is liable under due process only if its conduct SHOCKS THE CONSCIENCE. |
| Privately Inflicted Harms in re denial of Due Process | Generally, gvt's failure to protect people fr privately inflicted harms does NOT deny due process. Only if in Gvt CUSTODY or Gvt literally CREATES DANGER, does it have such a duty. |
| Test for when Gvt has deprived a person of life, liberty, or property. | Balance Test: 1) importance of interest to the individual, 2) ability of additional procedures to increase the accuracy of the fact-finding, 3) gvt's interests. |
| Before Welfare Benefits can be terminated… | Must be NOTICE and HEARING. |
| For Social Security Disability Benefits to be terminated… | Only needs POST-TERMINATION HEARING. |
| Student Disciplined by Public School | Must be NOTICE OF CHARGES and OPPORTUNITY TO EXPLAIN (corporal punishment does not require any due process). |
| Parental Rights Permanently Terminated | NOTICE and HEARING first. |
| Punitive Damages require… | INSTRUCTION to Jury and JUDICIAL REVIEW (grossly excessive punitive damages violate due process). |
| American Citizen held as Enemy Combatant… | Must be given due process. |
| Except Exigent Circ, Pre-Judgment Attachment or Gvt seizure of assets… | Must be preceded by NOTICE and HEARING (exigent circ = reason to believe person would get rid of property b/f hearing) (Gvt can seize property in re illegal activity, even if innocent owner). |
| Laws affecting economic rights. | Only a Rational Basis Test. Con provides only min protection for economic liberties. |
| Taking Clause | Gvt may take private property for public use if it provides just compensation. |
| Possessory Taking | Gvt confiscation or physical occupation of property is a taking. |
| Regulatory Taking | Gvt regulation is a taking if it leaves no reasonable economically viable use of the property. |
| Public Use | Gvt acts out of reasonable belief that taking will benefit public. |
| Just Compensation | Measure loss to owner in reasonable market value terms. (gain to taker is irrelevant) |
| Contract Clause | No state shall impair the obligations of contracts. (applies only to state/local interference with EXISTING contracts) |
| Intermediate Scrutiny in re St/local interference w/ private Ks | 1) Does legislation substantially impair a party's rts under an existing K? 2) If so, is law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? |
| St/Local interference w/ GVT Ks must meet… | Strict Scrutiny. |
| Privacy | Fundamental Right protected under substantive due process. |
| Rights under Privacy | Marriage, Procreation, Custody, Keep Family Together, Control Upbringing of One's Children, Purchase and Use Contraceptives, Abortion, Private Consensual Homosexual Activity, Refuse Medical Treatment |
| Right to Refuse Medical Treatment | 1) Competent adults have rt to refuse med treatment, even life-saving med treatment. 2) St may req clr and convincing evid that a person wanted treatment terminated b/f it is ended. 3) St may prevent family members fr terminating treatment for another. |
| Physician-asissted death | No Con rt. |
| Second Amendment Right to Bear Arms | Rt to have guns at least in home, for sake of security. Not absolute (who, where, type). |
| Right to Travel | Fundamental Right (EP and S&I of 14th Amend): 1) laws preventing people fr moving into a st must meet strict scrutiny, 2) Durational residency reqs must meet strict scrutiny, 3) Restrictions on foreign travel not fundamental rt. |
| Right to Vote | (Fundamental Rt) Denying citizens rt to vote must meet strict scrutiny, BUT regs of electoral process to prevent fraud only need be on balance desirable. |
| At-Large Elections | Constitutional UNLESS proof of a discriminatory purpose. |
| Counting uncounted votes w/o standards in presidential election. | Violates EP. |
| Education | Not a fundamental right. |
| Approach to EP Qs | 1) Classification? 2) Lv of Scrutiny? 3) Does law meet that lv? |
| EP clause of 14th Amend | Applies only to st/local gvts. |
| Due Process clause of 5th Amend. (in re EP) | Applies to Fed Gvt. |
| Race and National Origin (classification) | Strict Scrutiny (applies to laws benefiting minorities) |
| How is the existence of racial or gender classification proven? | 1) Classification on face of the law. 2) If facially neutral, proving a racial classification reqs demonstrating both discriminatory IMPACT and discriminatory INTENT. |
| Affirmative Action | 1) set-asides NOT allowed. 2) Colleges have compelling interest in diversity. 3) May use race as one fact among many, only if no race neutral alt. 4) pub school system may NOT use race as factor in assigning students to schools UNLESS meet strict scrutiny |
| Gender (classification) | Intermediate Scrutiny (+ exceedingly persuasive Justification) |
| How should gender classifications benefiting women be treated? | 1) Gender classifications benefiting women that are based on role stereotypes will NOT be allowed. 2) Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed. |
| Alienage (classification) | Generally, Strict Scrutiny |
| Exceptions to Alienage (classification) review | 1) alienage classification that concern self-gvt and democratic process (e.g. voting, jury duty, teachers, police and probation officers). 2) Congressional discrimination against aliens (plenary power to reg immigration). |
| Non-marital Children (classification) | Intermediate Scrutiny (laws denying benefit to all non-marital children, but granting to all marital children are uncon'al). |
| Other Types of Discrimination | (rational basis review) Age, Disability, Wealth, Economic, Sexual Orientation |
| Content-based Restrictions on speech | Generally, must meet Strict Scrutiny. 1) subj matter restrictions (application of law depends on topic of message) 2) viewpoint restrictions (application of law depends on ideology of message). |
| Content-Neutral Laws burdening speech | Generally need only meet intermediate scrutiny |
| Prior Restraints | Judicial order or Administration decision that stops speech b/f it occurs. |
| Collateral Bar Rule | If person violates ct order, which is procedurally proper, he is barred fr bringing claim. |
| License for Speech | Only if there is an important reason for licensing and clr criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review. |
| Vagueness | A law is uncon'ly vague if a reasonable person cannot tell what speech is prohibited and what is allowed. |
| Over-breadth | Law is uncon'ly over-broad if it regulates substantially more speech than con allows to be reg'd. |
| Fighting Words | Uncon'ly vague and overbroad. |
| Symbolic Speech | Gvt can reg conduct that communicates if it has an important interest unrelated to suppression of the message and if impact on communication is no greater than necessary to achieve the gvt's purpose. |
| Symbolic Speech that is con'ly protected. | Flag burning, burning cross, unless w/ intent to threaten. Expenditures for election campaigns (but not contributions). |
| Symbolic Speech not con'ly protected | Draft card burning and nude dancing. |
| Unprotected or Less Protected Speech | 1) Incitement of illegal activity. 2) Obscenity and Sexually-Oriented Speech. 3) Commercial Speech. 4) Defamation. |
| Incitement of Illegal Activity | Gvt may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality. |
| Test for Obscenity | (all must be met) 1) material must app to prurient interest (local standard). 2) material must be patently offensive under law prohibiting obscenity. 3) material must lack serious redeeming social value (national standard). |
| Adult Bookstores and Movie Theaters | Gvt may use zoning ordinances to reg their location. |
| Profane and Indecent Sppech | Generally, protected by First Amend. EXCEPTIONS: 1) over the broadcast media, 2) in schools. |
| Commercial Speech | Advertising for illegal activity and false and deceptive ads are not protected. |
| True commercial speech that inherently risks deception can be prohibited. | 1) gvt may prevent professionals fr advertising/practicing under trade name. 2) gvt may prohibit attn, in-person solicitation of clients for profit. 3) gvt may NOT prohibit accountants fr in-person solicitation of clients for profit. |
| Other commercial speech | intermediate speech |
| Gvt reg of commercial speech. | Must be narrowly tailored, but it does not need to be the least restrictive alternative. |
| Defamation (public official) | If P is public official or running public office, the P can recover for defamation by proving by clr and convincing evid of falsity of the statement and actual malice. |
| Actual Malice | Knew false, OR acted w/ reckless disregard to Truth. |
| Defamation (public figure) | P can recover for defamation by proving falsity of the statement and actual malice. |
| Defamation (private figure and public concern) | St may allow P to recover for defamation by proving falsity and neg by the D. HOWEVER, P MAY RECOVER PRESUMED OR PUNITIVE DMGS ONLY BY SHOWING ACTUAL MALICE. |
| Defamation (private figure) | P can recover presumed or punitive dmgs w/o showing actual malice. |
| Liability for intentional infliction of emotional distress for defamatory speech. | Must meet defamation standards and cannot exist for speech otherwise protected by First Amend. |
| Public Forms | Gvt properties that the Gvt is con'ly req'd to make available for speech (sidewalks and parks). |
| Regulations of Speech in re Public Forms | Must be subj matter and viewpt neutral. Must be a TIME, PLACE, or MANNER reg that serves an important gvt purpose and leaves open adequate alt places for communication. |
| Designated Public Forums | Gvt properties that gvt could close to speech, but chooses to open to speech. (same rules apply as for public forums) |
| Limited Public Forums | Gvt properties that are limited to certain groups or dedicated to the discussion of only some subjs. The gvt can regulate speech in limited pub forums so long as the reg is reasonable and viewpt neutral. |
| Non-public Forums | Gvt properties that gvt con'ly can and does close to speech. The gvt can reg speech in non-public forums so long as the reg is reasonable and viewpt neutral. |
| Examples of Non-Public Forums | Military bases, areas outside prisons/jails, airports, sidewalks on post-office property. |
| Freedom of Association | Laws that prohibit/punish group membership must meet strict scrutiny. To punish membership in a group, person: a) actively affiliated w/ the group, b) knowing of its illegal activities, AND c) w/ the specific intent of furthering those illegal activities. |
| Free Exercise Clause | 1) cannot challenge neutral law of general applicability. 2) gvt may not deny benefits to individuals who quit their jobs for religious reasons. 3) gvt may not hold a religious institution liable for the choices it makes as to who will be its ministers. |
| Establishment Clause (TEST) | 1) Secular Purpose. 2) Effect neither advances nor inhibits religion, AND 3) No Excessive entanglement w/ religion. |
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