Help
Options
Didn't know it?
click below
click below
Knew it?
click below
click below
Don't Know
Remaining cards (0)
Know
retry
shuffle
restart
0:00
Embed Code - If you would like this activity on your web page, copy the script below and paste it into your web page.
Normal Size Small Size show me how
Normal Size Small Size show me how
Helix: ConLaw BP
| Question | Answer |
|---|---|
| judical review | For a federal court to review a case, there must be a case or controversy and subject-matter jurisdiction. See Civil Procedure Helix Core Concepts |
| Case or controversy | Exists if (1) the plaintiff has standing, (2) the claim is ripe when the lawsuit is filed, (3) the claim is not mooted, and (4) the lawsuit does not seek an advisory opinion. |
| Standing | An injury in fact (i.e., must be concrete and not hypothetical); (2) Causation (i.e., must be fairly traceable to the conduct of the defendant); and (3) Redressability (i.e., the injury is likely to be rectified by a favorable court decision) |
| Citizenship Standing | Individuals cannot challenge conduct merely because they are citizens. |
| Taxpayer Standing | no standing. But exceptions: (1) challenging the collection of a specific tax assessment or (2) challenging congressional spending on the grounds that it violates the First Amendment’s prohibition on the establishment of religion |
| Third-Party Standing | third party cannot bring an action unless is (1) a hindrance to the injured party bringing the action herself and (2) a close relationship between parties such that the third party will adequately advocate for the injured party. |
| Organizational Standing | can show (1) one or more of its members would have standing to bring the case, (2) the claims are related to the organization’s purpose, and (3) the litigation of the case will not involve the participation of those members who have been injured. |
| Class-Action Standing | must have standing to bring the case as an initial matter. But if a class member’s injury is redressed during the pendency of the case, that will not destroy standing for the remaining class members |
| Ripeness | case is not ripe when the harm has not yet occurred and is not imminent. Two factors used to determine ripeness are (1) the fitness of the issues for current adjudication and (2) the hardship to the parties if the claim is not heard. |
| Mootness | case is moot if a court ruling would no longer remedy the problem or make the plaintiff whole. |
| Mootness exception | not moot if- The defendant voluntarily ceases the challenged event/action and it is likely to recur; or (2) The action is (a) so short in duration and (b) there is a reasonable probability the same plaintiff will suffer the same injury in the futur |
| Advisory Opinions | not adjudicate a legal dispute but merely give advice to another branch of government on the constitutionality of a law or action. Federal courts do not give advisory opinions, although some state courts are authorized by their state constitutions to do |
| Political Questions | This topic is rarely tested) courts may not decide political questions; a matter qualifies as a political question if: |
| Political questions requirements | cons commitment of the issue2lack of judicially discoverable and standards to resolve3requires policy determination4impossible to decide the matter without disrespecting a political 5 unusual need adherence to a previouslyor 6potential embarrassment |
| AbstentionAbstention | ederal court may decline to hear a case over which it has jurisdiction when there is a potential for conflict with state courts over interpretations of state law and polic |
| Relationship Between Federal and State Courts | certain exceptions, the U.S. Supreme Court may review the decisions of states’ highest courts on matters of federal law to ensure (1) uniform application of federal constitutional law and (2) the finality of litigated federal law issues. |
| Limits on the U.S. Supreme Court’s Jurisdiction: | Highest State Court and No Adequate and Independent State Law Ground: |
| Highest State Court | appeal must be from a final judgment by the highest state court. |
| No Adequate and Independent State Law Ground | decision cannot rest on an adequate and independent state law ground. |
| Congressional Power to Define and Limit the Federal Courts | onstitution vests in Congress the powers to create inferior courts and to make exceptions to the appellate jurisdiction of federal courts; this congressional power is plenary but it cannot violate another part of the Constitution |
| Legislative powers | |
| Necessary and Proper Clause: | Congress has the power to make laws that are (1) necessary (i.e., convenient or useful) and (2) proper to executing its other powers (i.e., legitimately related to another existing power). |
| Taxing power | Congress can enact taxing measures that (1) raise revenue for the general welfare and (2) are not a penalty (i.e., unduly coercive or enacted to discourage certain private behavior). |
| Spending power | Congress can spend federal money for the general welfare, but it can only impose conditions on federal grants to states if the condition is: |
| Sending power: conditions | 1) Clear and unambiguous (i.e., states understand the consequences of accepting/not accepting); (2) Related to a legitimate federal interest; (3) Not unduly coercive and (4) Constitutional |
| Commerce Clause | Congress can regulate commerce with foreign nations, among several states, and with the Indian tribes. The commerce power cannot be used to compel participation in commercial activity. |
| CC: Regulation | channels, instumentalites and person/things, and activties having a substail effect on interstae commerce |
| Channels | Areas in which interstate commerce moves |
| Instrumentalities and Persons/Things | Items and ways in which items are carried across state lines |
| Activities Having a Substantial Effect on Interstate Commerce | Private activities regulated if the cumulative impact of the individuals and entities engaging in the activities has a substantial effect on interstate commerce. Economic activities are more likely |
| Dormant Commerce Clause | states cannot discriminate against interstate comemrce unless compelling intrest and no less restrcitive means or places an undue burden on state law- undue burden test |
| Discriminatory: | A law is discriminatory on its face if it (1) treats out-of-staters different from in-staters or (2) clearly gives economic protection to in-state residents. |
| Neutral: | If a law is neutral (i.e., the disproportionate impact is purely accidental and only affects some out-of-state businesses), then the undue burden test above is used |
| Exceptions: | market participant exception, publicly owned enetrpirse, express congresisonal authorization |
| Market Participant Exception | A state may discriminate against out-of-state interests if the state is acting as a participant (i.e., a buyer or seller) rather than a regulator. |
| Publicly Owned Enterprise | ven where the state is acting as a regulator, it may discriminate against out-of-state interests in favor of a publicly owned enterprise if the regulation is an exercise of a traditional government function |
| Express Congressional Authorization | Congress may enact a statute that expressly authorizes states to discriminate against nonresidents regarding interstate commerce |
| State Taxation | state tax on a business will generally be upheld if: activity being taxed has a substantial nexus t (2) The tax is fairly apportioned (3) The tax does not discriminate (4) The tax is fairly related to the services the state provide |
| War and Foreign Powers: | Congress can (1) declare war, (2) fund and maintain the armed forces, (3) confirm high-ranking executive branch officials by majority votes, (4) ratify treaties by a vote of at least two thirds of its members, and (5) address post-war problems |
| Nondelegation Doctrine | Congress cannot abdicate or transfer its essential legislative functions, but it can make delegations to agencies if there is an intelligible principle on which to base the regulations |
| Power to Enforce Amendments | The 13th, 14th, and 15th Amendments empower Congress to enforce their respective guarantees through appropriate legislation. |
| Executive Powers | |
| Article II Powers: | presdeint can - Sign or veto legislative bills, Enforce laws (i. (3) Appoint and remove officers of the U.S. ; (4) Grant reprieves and pardons for offenses against the U.S., except in cases of impeachment; and (5) Command the U.S. armed forces. |
| Treaty and Foreign Affairs Powers | president- Recognize/not recognize foreign nations; (2) Meet with foreign leaders; (3) Withdraw from treaties without the advice or consent of Congress; and (4) Make international agreements in areas such as trade or troop deployment. |
| Relationship to Congressional Powers | presdient- express/implied, zones of twilight, no authorization |
| Express/implied | Presidential authority is at its maximum if the president acts with express or implied congressional authorization |
| Zone of twilight | Presidential authority is less certain in the face of congressional inaction |
| No Authorization | Presidential authority is at its minimum if the president acts contrary to congressional authorization and only under the president’s own constitutional (e.g., Article II) power |
| Congressional Limits on the Executive | four congressional limits on the executive branch |
| Creation and Funding: | Congress establishes the cabinet and other offices in the executive branch that the president may fill, and it may abolish those offices as well. |
| kawmaking | Once a law is made, the president and the executive branch must enforce it. The president also must spend the funds Congress allocates for a particular purpose or program |
| impeachment | he House of Representatives has the power to impeach an official if a majority of those present vote in favor of it. I:Treason |
| I:Treason | A person can be convicted of treason (“levying war” against the United States, “adhering to their enemies, [or] giving them aid and comfort”) only upon the testimony of two witnesses to the same overt act or upon the accused’s confession in open court |
| Restrictions on removal | Congress may place restrictions or conditions on a president’s power to remove quasi-legislative and quasi-judicial officials. However, Congress may not restrict the president’s removal of purely executive officers. |
| Inferior officers | Inferior Officers: Congress created the civil service and enacted restrictions on how civil servants may be discharged. Congress also has created positions (e.g., special counsel) and limited their remova |
| Legislative veto | invalid- (1) allowing a single chamber to veto executive action violates the bicameral representation and (2) even when a legislative veto requires action by both chambers, it will likely violate the presentment clause because it denies the president |
| Intergovernemntal immunites and relations | |
| Federsl Immunity | States cannot regulate or tax the federal government or its instrumentalities. |
| State Immunity and the 10th Amendment | no immunity from federal regulation, but the 10th Amendment grants states local police power and state autonomy from federal overreaching. There are two anti-commandeering principles: (1) legislative commandeering and (2) executive commandeeri |
| Legislative Commandeering | The federal government cannot require states to enact any particular legislation, but it can make conditional appropriations. See Spending Power |
| ) Executive Commandeering | federal government cannot require states to perform executive functions, but there is no commandeering when a law regulates state governments in a manner similar to private entities who perform the same types of functions. |
| 11th Amendment | Bars states from being sued for damages in federal court unles |
| 11TH A exceptions | he state consents to being sued 2) Congress has passed a law that clearly and unambiguously abrogates the states’ sovereign immunity;3states implicitly consented4lawsuit is against the official from committing a violation of federal law or money damages |
| Judical immunity | Judges are absolutely immune from civil suits for damages when they are performing their official judicial duties, but only have qualified immunity for other administrative functions, such as disciplining an emp |
| Legislative immunity | Congressional members performing their official duties are absolutely protected from punitive or judicial sanctions |
| Executive Immunity | residents are immune from civil lawsuits based on their official conduct, but are not immune from civil lawsuits based on pre-presidential conduct |
| Federal Prosecutors and Other Executive Branch Officials: | Have absolute or qualified immunity, depending on their offices and functions. Federal prosecutors have absolute immunity from criminal prosecution based on their official prosecutorial conduct or for actions within the scope of their prosecutorial dut |
| Impeachment: | he president, vice president, and all civil officers of the U.S. shall be removed from office for treason, bribery, or other high crimes and misdemeanors |
| Prosecution: | nclear whether the president may be criminally prosecuted while in office, although may not claim absolute immunity from the issuance of a state criminal subpoena in office. A former president has absolute immunity from criminal prosecution for actions |
| Full Faith and Credit Clause | Requires a state to respect the laws, public records, and judicial judgments of every other state. See Conflicts of Law Helix Core Concepts. |
| Preemption | |
| Supremacy Clause: | Requires states to recognize the Constitution and federal laws as the supreme law of the land and mandates that the federal government will prevail if there is any conflict between a valid federal law or action and a state law or action |
| Express Preemption: | Occurs when a federal law explicitly declares it is preempting contrary or conflicting state laws. |
| implied preemption | Arises when a state and federal law conflict- 1impossible to comply with both2state law interferes with or is an obstacle to the purposes of the federal law; or 3state law seeks to regulate a field that is already fully regulated by the federal government |
| Stronger State Protections | Federal law protections, in the form of either the Constitution or federal statutes, provide the floor below which states may never go. |
| State action | |
| incorporation Doctrine | Nearly all the rights in the Bill of Rights are applicable to the states because they have been incorporated by the 14th Amendment’s due process clause. |
| Reverse Incorporation | 14th Amendment due process and equal protection protections apply to the federal government through the due process clause of the Fifth Amendment. |
| state action | Constitutional rights claims under the Fifth Amendment (federal) or 14th Amendment (state) can only be brought against a defendant who is a government actor. |
| State action: court consider | The private entity performed a public function (2) significant state involvement or entwinement (3) judicially enforced; and (4)subject to a federal or state statute that applied constitutional standards t |
| 14th A | |
| General due process | |
| Vagueness: | A law is void if (1) it does not give an average person fair notice of the conduct proscribed, or (2) it is so lacking in standards that it is ripe for discriminatory enforcement. |
| Access to Courts and Impartial Decisionmaker: | Legal proceedings must be available, fair, unbiased, and impartial (e.g., there must be a mechanism by which an indigent person can have fees waive |
| Substantive Due Process: | a law or government action impinges a fundamental right, it must pass strict scrutiny. When no fundamental right is involved, the level of scrutiny is rational basis. |
| Fundamental Rights: | Parent rights, right to family life, contraseption, marry, procreate, consensual, make mdeical, vote, interstaet travel, acces the courts |
| FR: SS | 1) The government interest must be compelling, and (2) the means chosen must be narrowly tailored (i.e., necessary and least restrictive). |
| FR:RB | 1) The government interest must be legitimate, and (2) the means chosen must be reasonably related. Rational basis review applies to economic, social, and educational interests. |
| FR:Medical Intrests | o Other Medical Interests: There is no fundamental right to die with dignity or die by assisted suicide; rational basis review applies. |
| Aboration | Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overturned Roe v. Wade (1973), which found a right to an abortion in certain circumstances |
| Procedural Due Process | If the government deprives someone of a protected life, liberty, or property interest, courts consider three factors to determine the process required: |
| PDR: Factors | interests in retaining his property or liberty (2) The risk of error through the procedures used and probable value, (3) The government’s interest in efficient adjudication and the administrative burden and cost of the additional process. |
| Liberty intresst | nclude termination of parental rights, proof of paternity, and freedom from confinement (including mental health confinement, enemy combatant imprisonment, and parole revocation). |
| Property Interests: | nclude entitlement to public benefits (welfare/disability), public employees with a reasonable expectation in continuing employment, public education, property that is subject to forfeiture, wages that are subject to garnishment, lic |
| process | minimum process due is notice and an opportunity to be heard and the maximum process is a full trial with an avenue for appeal |
| Equal Protection Clause | he level of scrutiny depends on the classification. To find a suspect or quasi-suspect classification, there must be a (1) disparate impact and (2) government intent. |
| Strict Scrutiny: | his test requires that (1) the government interest must be compelling, and (2) the means chosen must be narrowly tailored race, ethnicty, natioanl origin, fundemental rights, ste cictzne discrimantion |
| SS: compeling intrests | emedying past discrimination if it was intentional, a specific actor, and not remote in time; enforcement of the Voting Rights Act; and national security during wartim |
| Intermediate Scrutiny | Applies if the claim concerns a quasi-suspect class -sex/gender, illegitimacy), and access to education for undocumented children. requires that (1) the government interest must be important, and (2) the means chosen must be substantially related |
| IS:Examples of Important Interests: | Remedying past discrimination; laws and actions based on physical differences and legal status differences |
| Rational Basis | (e.g., age, wealth, disability status, federal discrimination based on citizenship status, sexual orientation, right travel t (1) the government interest must be legitimate, and (2) the means chosen must be reasonably related |
| Budren of proof | burden is on the government when strict or intermediate scrutiny applies. If rational basis applies, the burden is on the challenger. |
| Government Animus | the government interest is based on animus (i.e., ill will based on prejudice or spite), then the action is unconstitutional, no matter what the level of scrutiny. |
| Privileges and immunites | |
| Article IV | Protects the rights of state citizenship (e.g., right to travel between states) and is limited to fundamental rights and important economic activities |
| Substantial Justification Standard | States can enact laws that discriminate against citizens of another state if (1) the nonresidents are the peculiar source of evil to be remedied, and (2) there are no less restrictive means to solve the problem |
| 14th Amendment: | Protects rights of national citizenship (e.g., right to travel between states, access to government, right to demand protection of the federal government on the high seas or abroad, right of assembly, the privilege |
| First Amendemnt | |
| Freedom of Religion | Religion is not limited to a particular set of religious beliefs, such as belief in a supreme being. Courts are not permitted to inquire into the truth or falsity of a religious belief. |
| Establishment Clause | Prohibits the government from “establishing” a religion. In Kennedy v. Bremerton School District (2022), the Supreme Court abandoned the long-standing establishment clause test from Lemon v. Kurtzman (1971) and its endorsement test offshoot. |
| Free Exercise Clause: | Protects religious beliefs and practices. If a law or government action targets a religion or exhibits hostility to a religion, then the law or action is subject to strict scrutiny |
| FEC: TESTS | Strict Scrutiny: (1) The government interest must be compelling, and (2) the means chosen must be narrowly tailored. o Rational Basis: (1) The government interest must be legitimate, and (2) the means chosen must be reasonably/rationally related. |
| freedom of speech | Protects spoken or written word, music, art, films, parades, symbolic speech (i.e., an act committed with the intent to convey a particular message), and government-compelled speech. |
| Content-Based Regulations: | When the government regulates expression based on its content, the government action is subject to strict scrutiny |
| CBR:Categories | Categories of Content-Based Regulations: (1) Subject-matter regulations that restrict speech related to particular topics. (2) Viewpoint regulations that restrict speech on a particular perspective on a topics fighting words |
| Content-Neutral Regulations | imed at the time, place, or manner of the expression. Time, place, and manner restrictions in a traditional public forum and its functional equivalents are constitutional if they satisfy intermediate scrutiny: |
| CNR: Categories | The government has a significant/substantial interest unrelated to the suppression of speech; (2) The means chosen are narrowly tailored (but not necessarily the least restrictive means); and (3) There are ample alternative channels of communication |
| Forum Doctrine | traditional, limited, designated, non public |
| Traditional Public Forums | nclude places that have traditionally been held for public use - subject to strcit scutirny |
| Limited public forum | Are created when the government opens property for expressive activity but limits it to certain groups or the discussion of certain topics |
| Designated Public Forums | reated when the government opens up a nontraditional forum for public discourse. Content-based restrictions placed on speech in designated public forums are subject to strict scrutiny. |
| Nonpublic/Closed Public Forum | clude government-owned property that is not open for speech (e.g., airports, polling places). If the regulation is not viewpoint neutral, then it will be subject to strict scrutiny. If it is viewpoint neutral, then the regulation is reasonable |
| Non-Forums: | nclude private property and other government-owned property that is not a public forum. The forum analysis will not apply, and First Amendment claims will fail. |
| Unproteced Speech | Receives no First Amendment protection. |
| Government Speech | ncludes when the government is speaking for itself. |
| Obscenity: | (1) appeals to the prurient interest, (2) is patently offensive, and (3) lacks any serious literary, artistic, political, or scientific value, as judged by a national standard. |
| 3) Child Pornography: | a wide range of sexual depictions of children; does not include adults who look like children or virtual images of children. |
| Threats: | (1) are directed at a person or group of persons; (2) are not satire, purely hypothetical, or political hyperbole; (3) involve imminence; and (4) are uttered by the speaker in conscious disregard of a substantial risk that the statement would be viewed |
| Incitement to Illegal Activity: | 1) offers or incitement to engage in illegal action (2) that involve imminence and (3) are likely to incite or produce such action. |
| Fighting Words | nclude words that by their very utterance inflict injury or tend to incite an immediate breach of the peace |
| Commercial Speech | IS- The government interest must be substantial; (2) The restriction must directly advance the state interest; and (3) If the state interest could be served by a more limited restriction, then excess restrictions cannot surviv |
| special capacity | he government’s actions are treated differently in some situations where it is acting in a special capacity rather than as a sovereig |
| SC:SCHOOLs | May infringe on the expression of students if the expression would materially and substantially interfere with appropriate discipline in the operation of the school or impinge on other students’ rights |
| Public empolyees | Expressing themselves as citizens on a matter of public concern receive First Amendment protection. Courts balance the employee’s interest against the government’s |
| Political Expression | Government employees do not have a First Amendment right to actively campaign for political candidates |
| Public-Employee Unions: | public-employee union’s compelled subsidy is subject to exacting scrutiny; there must be a compelling government interest that cannot be achieved through means significantly less restrictive of associational freedoms |
| Bar Associations | overnment attorneys can be compelled to pay dues to a required bar association, but those dues can be used only to support regulation of the legal profession; the fees cannot be used to support activities that are political or ideological in nature. |
| Campaign Finance | Regulations are valid if there is a sufficiently important interest and the regulations are closely drawn |
| Corporate Expenditures: | A limitation on independent corporate and organization expenditures (not coordinated with a candidate), SS TEST |
| Judical elections | government may restrict a judicial candidate’s speech only if the restriction is narrowly tailored to serve a compelling interest |
| Expressive conduct | ntermediate scrutiny test: (1) the government action must further an important/substantial government interest that is unrelated to the suppression of speech, and (2)must prohibit no more speech than is necessary to further that interest. |
| Prior restraints | hese regulations are subject to strict scrutiny. The regulation must serve a compelling governmental interest that is achieved by narrowly tailored means. |
| Vaugeness | if (1) it does not give an average person fair notice of what conduct is being proscribed, or (2) it is so lacking in standards that it is ripe for discriminatory enforcement. |
| overbreadth | aw is facially invalid as overbroad if it prohibits a substantial amount of protected speech in comparison with the unprotected speech |
| freedom of the press | First Amendment protections are the same. Several torts, such as defamation, intentional infliction of emotional distress, invasion of privacy, and false-light publicity, are subject to the same First Amendment constrain |
| freedom of Association | Infringements on the right to associate are subject to strict scrutiny. The regulation must serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of association |
| Takings | r the Fifth Amendment, (1) private property cannot be taken (2) by the government (3) for public use (4) without just compensation. |
| Private property | ncludes rights in real and personal property, including intangibles and economic use. |
| Government Taking | Includes physical and regulatory takings. |
| GT: Physical | Involves the physical occupation or damage of property, even a small portion of it. |
| GT: Regulatory | Occurs when a government destroys someone’s property rights or denies economically beneficial or productive use of property through regulation. |
| GT: R- total regulatory taking | Occurs if the regulation completely eliminates economic use, unless the landowner’s expectation of use is unreasonable |
| GT:R- Partial regulatory | The economic impact of a regulation on a property owner; (2) The extent the regulation interferes with distinct investment-backed expectations; and (3) The character of the government action |
| GT:R- LAND USE EXACTION | unconstitutional-conditions doctrine applies in takings cases where the government demands that the owner of property relinquish a portion of it, without just compensation, in return for receiving a land-use approval. |
| Public USE | The property is taken for public use if the action is reasonably related to a public or community purpose. |
| Just Compensation | e fair market value at the time of the taking, which means the highest amount the owner would receive in a voluntary exchange. |
| Second Amendements | Guarantees the right to keep an ordinary firearm at home for self-defense |
| 13th amendemnt | rohibits slavery in the United States, including private and government actions; it abolishes involuntary servitude except when someone has been “duly convicted” of a crime. |
| Contracts clause | preexisting contract; (2) The state government enacted the challenged law/regulation; (3) The law/regulation substantially impairs the contractual relationship and (4) Th does not serve a significant and legitimate purpose |
| Ex post facto laws | unconstitutional - e government action is legislative or regulatory; (2) The law/regulation is criminal in nature; and (3) The law/regulation retroactively imposes punishment |
| Bill of Attainder | unconstitutional - government action is legislative or regulatory; (2) The law/regulation singles out specific individuals for punishment; and (3) The law/regulation inflicts punishment without a trial. |
| unconstitutional conditions | This principle vindicates constitutional rights by preventing the government from conditioning receipt of a benefit on the abandonment of a constitutional right. To prevail on such a claim, an individual must show that the government could not h |
Created by:
Vanderhoof_