Bar Prep Con law

Article III, Section 1 of the United States Constitution

"[t]he judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish."

fundamental right to privacy

"zones of privacy" 1. marriage 2. contraception 3. intimate sexual behavior 4. abortion 5. parental rights-make decisions for children 6. family relations 7. possess obscene material in private home, exception child pornography 8. right to refuse medical treatment -no right to commit suicide 9. avoid disclosure of personal medical information

president power to grand pardon for federal offenses

1. Article II, section 2-power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment 2. only to federal cases 3. any time after commission of offense 4. can have conditions 5. can include groups of people

Means of establishing appellate jurisdiction in the supreme court

1. Certiorari=petition for a writ of cert. discretionary review, only if 4 justices vote to accept 2. Direct appeal-must be heard, injunctive relief issued by three judge district court panel

process for public education

1. academic dismissal-no hearing at public institution of higher learning. 2. disciplinary suspension-student given oral or written notice of charges, if he denies them, an explanation of evidence authorities have an opportunity to present his side. but if presence is disruptive may be immediately removed 3. corporal punishment-not entitled to notice or hearing. if punishment excessive student can seek damages in civil action

suits not barred by the 11th amendment

1. actions against local governments 2. actions by US gov. or other state gov. 3. Bankruptcy proceedings

When can a state statute discriminating against interstate commerce be upheld

1. an important local interest is being served 2. no other nondiscriminatory means are available to achieve that purpose

impermissible regulation of expressive conduct

1. ban against students wearing black armbands 2. prohibition against burning american flag 3. ordinance prohibiting leafleting resulting in littering

restrictions on holding office

1. can't restrict based on holding property 2. may be required to pay filing fee, but exorbitant fees such as entire cots of election, is unconstitutional, plus there must be alternatives for those who can't pay 3. may be required to obtain signatures of voters on petition to appear on ballot but it cannot deny them ballot access if independent 4. can deny access to genearl election if failed to recieve enough votes in primary 5. state can ban write ins 6. state may prohibit state office holders from becoming a candidate for another state office 6. state may permit political party to name replacements for elected official if he dies or resigns

exceptions to 11th amendment sovereign immunity

1. consent 2. Injunctive relief 3. damages to be paid by an individual (as long as state official pays, not state) 4. prospective damages 5. Congressional authorization (enforcing 13,14 or 15th amendment)

When is political question not subject to judicial review

1. constit`ution has assigned decision making on this subject to different branch of gov. 2. matter is inherently not one that the judiciary can decide

Effect of a treaty

1. constitution is suprior to treaty 2. Same authority as act of congress if they conflict, most recent controls 3. if non-self executing, needs an act of congress to give it the same force 4. in absence of implementing legislation, president cannot make non-self executing treaty binding on states 5. Ratified treaty takes precedence over state law

restrictions on speech in public forums (time, place and manner)

1. content-neutral, as to both subject matter and viewpoint 2. narrowly tailored to serve significant gov. interest and 3. leave open ample alternative channels for communication of information restrictions that are not content neutral are subject to strict scrutiny as well as absolute prohibition of particular type of expression

requirement for a judgment to get full faith and credit

1. court that rendered the judgmetn must have had jurisdiction 2. judgmetn must have been on the merits rather than procedural 3. judgment must be final

elements of standing

1. injury in fact 2. causation 3. Resdressability federal courts also have prudential standing-P is the proper party to invoke the judicial resolution of dispute (zone of interests)

State taxing of instrumentalities of commerce

1. instrumentality-taxable situs within or sufficient contacts with, the taxing state 2. tax is fairly apportioned to amoutn of time the instrumentality is in the state

When one's liberty or property interest are adversely affected by gov. action ask:

1. is the threatened interest protected 2. if so, what process applies concerned with fundamental fairness

Due process protected interest

1. liberty-signficant gov. restrain on one's physical freedom, exercise of fundamental rights, or freedome of choice or action, loss of significant employment or associational rights 2. property-legitimate claim to entitlement by virtue of statute, employment contract, or custom, include licenses, welfare and disability benefits

when can gov. restrict on the basis of content

1. obsenity 2. subversive speech 3. fighting words 4. defamation 5. commerical speech

per se takings

1. physical occupation -gov. permanent phsycial occupation of property 2. no economically viable use-permanent total loss of property's eocnomic value, a regulation that has an adverse economic impact is not necessarily a taking

Three factors for determining type of process due if interest is threatened by gov. action

1. private interest affected by gov. action 2. risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards 3. the burden (fiscal and administrative cost) involved in providing the additional process

11th amendment jurisdictional bar

1. prohibits citizens of one state from suing another state in federal court. Immunizes state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by citizen of another state or foreign country. 2. Bars suit in federal court against state officials for violating state law 3. precludes citizens from suing their own state in federal court 4. bars federal law action against state government without the state's consent in its own courts as a vioaltion of sovereign immunity. DOES NOT bar suit by citizen against a state in courts of another state

Federal immunity

1. regulation by states-not power to regulate fed gov. unless congress consents or not inconsistent with federal policy 2. taxation by states-federal gov. and instrumentalities such as national bank are immune from taxation by states. States may impose generally applicable indirect taxes as long as they do not unreasonbly burden fed gov. such as state income tax

not undue burdens for abortion regulation pre viability

1. requirement for only licensed physician 2. requirement that physician must provide woman with truthful information about nature of abortion procedure, associated health risks and probable gestational age of fetus 3. requirement that woman wait 24 hours after giving informed consent 4. minor obtain parents consent or if consent is not required, provide the parents with notice of abortion. BUT this can be judically bypassed 5. ban on uncommon abortion techniques IT IS AN UNDUE BURDEN to require woman to notify her husband

privileges and immunities of national citizenship

1. right to travel interstate, 2. petition congress for redress of grievances 3. vote for national offices 4. enter public lands 5. be protected while in custody ofo US marshals 6. to peaceably assemble does not include bill of rights, in practice only applies to right to travel

Fundamental rights

1. right to travel-strict scrutinty 2. right to vote-depends on degree to which right is restricted 3. right to privacy -strict scrutiny infringement on nonfundamental rights-rational basis

types of takings

1. seizure of property 2. damage or destruction to property 3. re-characterization of property 4. regulatory taking 5. exaction

procedural safeguards for prior restraints

1. standard is narrowly drawn, reasonable, and defininte 2. censoring body must promptly seek an injunction 3. must be a prompt and final determination of the validity of the restraint burden is on gov. to prove material to be censored is not protected speech

other state tax violations

1. tax that discriminates against non-resident individuals-income tax that exempts local residents (comity clause) 2. discriminatory tax on out of state businesses, even if authorized by congress may violate equal protection if no rational basis 3. income based tax imposed on non residents that taxes income earned outside the state -due process of 14th

Congress power to regulate commerce

1. the channels 2. the instrumentalities 3. any activity that substantially affects interstate commerce provided that the regulation does not infringe upon other constitutional rights provided it does not infringe on other constitutional rights Construed broadly

regulation of speech in nonpublic forum

1. viewpoint neutral 2. reasonably related to legitimate gov. interest

right to travel

1. visit from state to state 2. right to be treated equally to native born citizens with respect to state benefits 3. may have reasonable residency restrictions 4. no right to travel internationally-rational basis

Congressional limits on the executive

1.impeachment 2. appropriation 3. Can't legislative veto

Exclusive state power

10th amendment provides that all powers not assigned by the constitution to the federal government are reserved to the states, or to the people. In theory, gives states expansive, exclusive power. however, with broad reach of cosntitutional power, state power is rarely exclusive

Equal protection

14th amendment-no state shall deny any person within its jurisdiction the equal protection of the laws (states and localities)

right to vote

26th amendment-fundamental right to all US citizen who are 18 or older. All federal, state and local elections -strict scrutiny does not always apply. the more signficant the impact of the restriction the greater the degree of scrutiny

Complete auto test

4 part test to determine whether a state tax on interstate commerce comports with commerce clause 1. substantial nexus-activity and state (substantial activity or significant contact with state), physical presence in the state but need not be related to business 2. fair apportionment-burden on tax payer. tax must be fairly apportioned 3. nondiscrimination-cannot favor local business over interstate competitors 4. fair relationship to services provided-must be fairly related to services provided by taxign state

procedural due process

5th amendment which applies against federal gov. provides no person shall be deprived of life liberty or property without due process of law.

gag orders

A gag order is a judicial order prohibiting the press from publishing information about court proceedings. Such orders are subject to prior-restraint analysis. Gag orders are almost always struck down because they are rarely the least restrictive means of protecting the defendant's right to a fair trial. The trial judge has other alternatives available, such as change of venue, postponement of the trial, careful voir dire, or restricting the statements of lawyers and witnesses

protection of sources

A journalist has no First Amendment right to refuse to testify before a grand jury regarding the content and source of information relevant to the criminal inquiry

Unfettered discretion

A law or regulation that permits a governmental official to restrict speech (e.g., requires an official to issue a permit before a rally can be held) must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application. Such a law or regulation must be related to an important governmental interest and contain the procedural safeguards mentioned above. A statute that gives officials unfettered discretion is void on its face; speakers need not apply for a permit and may not be punished for violating the licensing statute

discriminatory application

A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated

discriminatory motive

A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof o`f discriminatory motive or intent is required to show a violation of the Equal Protection Clause.

write in vote

A person's right to vote does not extend to the right to vote for any possible candidate. A state may ban all write-in candidates in both primary and general elections, at least when the state provides reasonable means by which a candidate can get on the ballot.

fighting words

A speaker may be criminally punished for using "fighting words," which are words that by their very nature are likely to incite an immediate breach of the peace-genuine likelihood of imminent violence

blanket primary

A state may adopt a blanket primary system (i.e., a primary in which all voters regardless of party affiliation or lack thereof vote) that is nonpartisan. Under a nonpartisan primary system, the voters choose candidates for the general election without regard for their party affiliation. A nonpartisan blanket primary system in which a candidate identifies his own party preference or his status as an independent and that identification appears on the ballot has withstood a facial challenge, despite assertions that this self-designation violates the party's First Amendment rights as compelled speech and forced association. By contrast, a partisan blanket primary system in which a party's nominees are chosen violates the party's First Amendment rights of free speech and association.

fusion candidate

A state may prohibit a fusion candidate (i.e., a candidate who is nominated by more than one political party) from appearing on the general-election ballot as a candidate of multiple parties. This limitation on the associational rights of political parties is justified by the state's interests in ballot integrity and political stability

ballot access general election

A state may refuse to grant a political party's candidate access to the general-election ballot unless the party demonstrates public support through voter signatures on a petition, voter registrations, or previous electoral success

Voter ID

A state may require that a citizen who votes in person present a government-issued photo ID. With regard to this neutral, nondiscriminatory requirement, the Supreme Court declined to apply a strict scrutiny stan

compelled financial support

Although one can be compelled to join or financially support a group with respect to one's employment, one cannot be forced to fund political speech by that group, A student, however, can be required to pay a university activity fee even though the fee may support groups that espouse messages with which the student disagrees, at least when the fee is allocated in accord with a viewpoint-neutral scheme

Bar membership

Although the state can inquire into the character of a candidate for bar admission, such admission cannot be denied on the basis of political association unless the candidate knowingly belongs to a subversive organization with specific intent to further its illegal ends. The state may, however, deny bar membership to a candidate who refuses to answer questions about political affiliations if that refusal obstructs the investigation of the candidate's qualification

Other powers of congress

Article 1 powers: Bankruptcy, maritime matters, coining of money, fixing of weights and measures, and patents and copyrights

Power of congress

Article 1 section 1 vests congress with all legislative powers of the federal gov. -may amend or repeal law, and direct that the changes be applied in pending actions

Elections clause

Article 1, Section 4-the times, places and manner of holding elections for senators and representatives shall be prescribed by each state legislature, but congress may make or altre such regulations-override state laws concerning federal elections

origination clause

Article 1, Section 7 Clause 1-all bills for raising revenue shall originate in teh house of representatives; but the senate may propose or concur with amendments as on other bills. -limited to bills that level taxes, not bills which incidentally create revenue

Congress tax power

Article 1, Section 8 "congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general wellfare of the US; but all duties, imposts and excises shall be uniform throughout the Us =TEST: reasonable relationship to revenue production plenary power exclusive to congress and can tax for any public purpose

Power over DC

Article 1, Section 8, clause 17-congress has the power to exercise exclusive legislation in all cases whatsoever, over such disctrict (10 miles) as may, by cessation by particular states, and the acceptance of congress, become the seat of the government of the US. (enclave clause_=congress has supreme authority over DC

obligation to contracts

Article 1, section 10 prohibits states from passing laws impairing the obligation of contracts-applies only to state legislation not state court decisions and not federal legislation that retroactively impairs contractual rights. does not apply to contracts not yet entered into

Direct tax

Article 1, section 2 representatives and direct taxes shall be apportioned among the several states Article 1, section 9-no direct tax shall be laid unless, in proportion to the census. Exception 16th amendment gave right to collect income taxes without apportionment These taxes are rarely used

Commerce clause

Article 1, section 8 Clause 3-commerce Clause-empowers congress to "regulate commerce with foreign nations, and among the several states, and with the Indian Tribes. Commerce=all activity involving or affecting two or more states

Power to declare war

Article 1, section 8 gives congress the power to declare war, raise support armies, provide and maintain a navy, make rules for governing and regulating the land and naval forces, and provide for the organizaing of a militia

Congress-military courts and tribunals

Article 1, section 8, clause 14, congress has power to establsih military courts and tribunals, and necessary and proper clause. May try 1. enemy soldiers, 2. enemy civilians 3 current members of armed forces DO NO have jurisdiction over US civilians, BUT US citizens held as enemy combatants are entitled to contest facutal basis of detention from neutral magistrate (due process)

Congress and naturalization

Article 1, section 8, clause 4-congress has exclusive authority over naturalizatoin -establish uniform rules for naturalization. HOWEVER under 14th amendment congress cannot take away citizenship without consent unless citizenship was obtained by fraud or bad faith

Postal power

Article 1, section 8, clause 7-congress has exclusive power to establish post offices and post roads. Congress may impose reaosnable restrictions on the use of the mail, but the postal power may not be used to abridge any right guaranteed by constitution

enclave clause

Article I, section 8, Clause 17, congress has the general police and regulatory power over the district of columbia that a state enjoys over persons and things within its boundaries. Among those is the power to tax or not to tax income earned in its boundaries

President's veto power

Article I, sectoni 7-power to veto any bill presented to him by congress. upon presentment, president has 10 days to act on proposed legislation, if he signs it is law, 2. may also veto by sending it back with objectsion to house of origination. Congress may override by 2/3 vote 3. P does nothing, if congress is still in session at end of 10 days bill becomes law without signature, if congress adjourned it will not become law-pocket veto Can't exercise a line item veto of a bill

Appointment of officials

Article II, Section 2-president with advice and consetn of the senate to appoint all officers of the US, including ambassadors and SC justices. congress may delegate the appointment of inferior officials-answer to senate

Impeachment

Article II, Section 4 states: "The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." House may impeach by majority vote, senate then tries and impeaches with 2/3 vote

power of president

Article II, section 1-executive power to preseident-no power to make laws, but does have power to enforce them; this includes prosecutorial discretion Authority is broader in the area of foreign affairs

Supreme court appellate jurisdiction

Article III section 2 "in all other cases before mentioned, the SC shall have appellate jurisdiction..with such exceptions, and under such regulations as the congress shall make"

Standing

Article III, section 2=federal judicial power over cases and controversies. P needs a concrete interest in the outcome to bring a case. Congress cannot eliminate standing requirements by allowing a citizen to bring a case, but can create new interests, which injury may create standing

Full faith and credit

Article IV Section 1-full faith and credit shall be given in each state the the public acts, records, and judicial proceedings of every other state. requirements 1. court rendered the judgment must have had jurisdiction over the parties and subject matter 2. judgment must have been on the merits rather than on procedural issue 3. judgment must be final

Comity clause

Article IV section 2-the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states

broadcast

Because the broadcast spectrum is a limited resource, radio and television broadcasters are said to have a greater responsibility to the public, and they therefore can be more closely regulated than print and other media. Broadcasters may be sanctioned, therefore, for airing "patently offensive sexual and excretory speech," even if such speech does not qualify as obscene under the Miller test, in the interest of protecting children likely to be listening.

Citizenship standing

Citizens do noth ave standing to assert a claim to enforce a constitutional provision merely because they are citizens, although they may bring an action against the gov. to compel adherence to a specific federal statute. P must have directly suffered an injury in fact

Limitation on SC jurisdiction

Congress can set amounts in controversies, and diversity requirements, but cannot outright deny the SC jurisdiction over certain types of cases. That woudl undermine the checks and balances

Congress power over aliens

Congress has plenary power over aliens. aliens have no right to enter the US and may be refused entry for reasons such as political beliefs. Subject to restraints of 5th amendment due process for alien within the US. Alien may only be removed from US after notice and a removal hearing

Thirteenth amendment

Congress has power to adopt legislation rationally related to eliminating racial discrimination among the badges or incidents of slavery. BROAD POWER-eliminate involutnary servitude, regulate private conduct

Spending power

Congress has the power to spend for the "general welfare"-any public purpose, can use spending power to accomplish indirect regulation by conditioning federal funds as long as pressure is not turned into compulsion. Congress cannot comandeer a state legislature. conditions must be unambigous

Judicial limitation on congressional power-separation of powers

Congress may not reinstate the right to bring a legal action after the judgment in the action has become final, congress cannot proscribe rules of decision to federal courts in cases pending, but when they change the underlying law, that relief is no longer enfoceable to the extent it is inconsistent with the new law

Younger Abstention

Court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patnetly invalid state statute. abstention may also be appropriate with regard to civil enforcement proceeding or a civil proceeding involving an order uniquely in furtherance of the state courts ability to perform their judicial functions such as contempt

Advisory opinions

Federal courts may not render advisory opinions on the basis of an abstract or a hypothetical dispute. there must be an actual case or controversy

Freedom of religion

First amendment -congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. both establishment and free exercise have been incorporated into the due process clause of 14th and incorporated to the states

regulation of association

Freedom of association protects the right to form or participate in any group, gathering, club, or organization virtually without restriction, although the right is not absolute. An infringement upon this right may be justified by a compelling state interest.

private property

Governmental regulation of speech on a person's own private property will rarely be upheld, particularly content-based regulations. While the government has some limited powers to regulate speech on private property, outright bans on certain types of speech, such as signs in a person's yard or window, are impermissible.

access to public facilities by religious groups

If a public school allows student groups or organizations to use its facilities when classes are not in session, allowing a religious organization to use those facilities does not violate the Establishment Clause. Furthermore, to prohibit such a group from using those facilities because religious topics would be discussed would violate the First Amendment guarantee of free speech

public concern

If the plaintiff is a private figure but the defamatory statement involves a matter of public concern, then the standard is lower, but the plaintiff still must establish negligence with respect to the falsity of the statement

public contracts

Impairment by the state of a public contract (one to which the state or local government is a party) is subject to essentially the same "reasonable and necessary" test as private contracts, but with a somewhat stricter application. The state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances

political speakers

In addition to individuals, corporations (both nonprofit and for-profit) enjoy First Amendment protection with regard to political speech. Similarly, a candidate for a judgeship has a First Amendment right to express his views on disputed legal or political issues. A state law banning judicial candidates from personally soliciting campaign funds, however, does not necessarily violate the First Amendment

political campaign expenditures

In contrast to campaign contributions, restrictions on expenditures by individuals and entities (including corporations and unions) on communications during an election campaign regarding a candidate are subject to strict scrutiny. So long as the source of the funding is disclosed, there is no legal limit to the amount that corporations and unions may spend on "electioneering communications

minors obscene material

Material that appeals to the prurient interests of minors may be regulated as to minors, even if it would not be considered obscene to an adult audience. Ginsberg v. New York, 390 U.S. 629 (1968). The government may not, however, block adults' access to indecent materials in order to prevent them from reaching children

land use restrictions obscenity

Narrowly drawn zoning ordinances may be used to restrict the location of certain adult entertainment businesses (e.g., adult theaters, adult bookstores, strip clubs) if the purpose of the regulation is to reduce the impact on the neighborhood of such establishments, but they may not be used to ban such establishments entirely.

Removal of officials

President may remove any executive appointee without cause (and without senate approval). Congress may not shielf appointees from removal by president by imposing a multi-tiered system in which persons at each level can only be removed for good cause. exception: federal judges hold officers during periods of good behavior

loyalty oaths

Public employees may be required to take loyalty oaths promising that they will support the Constitution and oppose the forceful, violent, or otherwise illegal or unconstitutional overthrow of the government. However, oaths that forbid or require action in terms so vague that a person of common intelligence must guess at the oath's meaning and differ as to its application are often found to be so vague or overbroad as to deprive an individual of liberty or property without due process.

prohibit felon from voting

Pursuant to Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison

Fourteenth amendment Equal protection and Due process

Section 5 enabling clause-congress can pass legislation to enforce the equal protection and due process rights gauranteed by the amendment, but not to expand those rights or creat new ones. Separation of powers puts that right on SC. In enforcing rights there must be congruence and proportionality between injury to be prevented and remedied and means adopted-can override states but not regulate wholly private conduct

publication of lawfully obtained private fact

Similarly, the First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern. See

specialty license plates

Specialty license plates, even if designed by private individuals, are government speech and, as such, the state may refuse proposed designs based on the content of those designs

political campaign contributions

Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be "closely drawn" to correspond with a sufficiently important interest

tax deduction and aid for parochial schools

Tax deductions given to reimburse tuition expenses only for parents of students in religious schools are invalid. If such a deduction is available to all parents for actual educational expenses of attending any public or private school (including parochial schools), it is valid. In addition, giving parents tuition vouchers to assist them in paying religious-school tuition does not violate the Establishment Clause if the choice of whether to use the vouchers for religious or non-religious private school tuition lies with the parents

illegally obtained information

The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did

funding of private messages

The government may fund private messages. However, it must generally do so on a viewpoint-neutral basis. The exception to this is when the government decides to fund artists; the decision of which artist to fund is necessarily based on the content of the artist's work.

contributions to political parties

The government may limit contributions to a political party that are used to expressly advocate for the election or defeat of a particular candidate (also known as "hard money") as well as contributions that are used for other purposes, such as promoting the party itself (also known as "soft money"). gov. may require disclosures of contributors

contributions to candidates

The government may limit contributions to individual candidates because excessive contributions to candidates create a danger of corruption and the appearance of corruption, but aggregate limits on amount a donor may contribute is invalid under first amendment, limtis ranging from 275 to 1,000 have been upheld, can't penalize a candidate for financing own campaign

attending trials

The public and the press both have the right to attend criminal trials, but this right is not absolute. It may be outweighed if the trial judge finds an overriding interest that cannot be accommodated by less restrictive means. Supreme Court has held that the defendant's right to a public trial extended to voir dire, and the trial court must consider reasonable alternatives to closing the voir dire to the public in addressing the trial court's concerns.

Test for abortion restrictions

The undue burden test 1. substantial obstacles in the way of women seeking rights to abortion before fetus attains viability

public office and ballot access

There is no fundamental right to hold office through election or appointment, but all persons do have a constitutional right to be considered for office without the burden of invidious discrimination

residential areas

There is no right to focus picketing on a particular single residence. However, a person may solicit charitable funds in a residential area. Door-to-door solicitation does not require a permit, as long as the solicitation is for noncommercial or nonfundraising purposes.

Suits between state and US

US must consent, US does not need to obtain consent to sue a state, betwen states no consent is need for one to sue another

replacement candidate

When a state gives a political party the right to select an interim replacement for an elected state official who was a member of that party, the party may select the replacement through an election at which only party members may vote

Pullman doctrine

a court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts.

1983 claims

a damage claim that can be brought againast a state official personally for violation of constitutional rights. SC has recognized similar claim can be brought against federal officials

abstention

a federal court may abstain from deciding a claim when a strong state interest is at stake

Adequate and independent state grounds

a final state judgment that rests on adequate and independant state grounds may not be reviewed by the US SC. state grounds must fully resolve the matter (adquate) and not incorporate federal standard by reference (independent). if it is unclear if the decision rest on federal or state, then the SC may hear the case, decide the federal issue and remand to the states for resolution

Facial discrimination

a law, that by its very langauge, creates distinctions between classes of persons

Legislator standing

a legislator who voted against a bill does not have standing to challenge the resulting statute

Third party standing

a ligitant generally has no standing to bring a lawsuit based on legal claims of a third person except: 1. difficulty or are unable to assert their own claims 2. special relationship between plaintiff and third party 3. p's injury adversely affect's P's relationship with third party

parental standing

a parent has standing to bring an actoin on behalf of the parent's minor child. However, could be limited to custodial parent.

standing for 10th amendment violation

a party has standing to challenge the constitutionality of a federal statute on the grounds that it exceeds Congress's enumerated powers and intrudes on the powers reserved to the states by the tenth amendment

length of residency for voting

a person may be required to be a resident of a governmental unit for a short period prior to an election in order to vote in that election (3 month to 1 year struck down)

post adoption acquisition

a person who acquires proeprty rights after the adoption of a regulation that affects those rights may challenge the regulation as a taking

public use challenge

a public purpose can encompass aesthetic and environmental concerns. inappropriate fofr a court to examine whether regulation substnatially advances a legitimate gov. interest. -arbitrary and irrational may vioate due process

DCC market participant exception

a state may behave in a discriminatory fashion if it is acting as a martet particpant as opposed to a market regulator. then it may favor local commerce or discriminate against a nonresident as a private business

DCC subsidy exception

a state may favor its own citizens when providng a subsidy ex. in state tuition

DCC discrimination against out of state commerce

a state or local regulation discriminates against out of state commerce if it protects local economic interests at the expense of out of state competitors.

Judicial immunity

absolutely immune from civil liability for damages resulting from judicial acts, including procedural errors and malicious acts or in excess of authority unless there is clear absence of all jurisdiciton. BUT not immune regarding nonjudicial activities such as hiring and firing

State legislator immunity

absolutely immune from suit for damages and for declaratory and injunctive relief within the legitimate sphere of legislative activity

commercial speech

advertising etc. is entitled to intermediate protection restrictions are viewed under 4 part test: 1. commercial speech must concern lawful activity and be neither false nor misleading 2. asserted governmental interest must be substantial 3. regulation must directly advance the asserted interest 4. must be narrowly tailored to serve that interest. -not least restrictive but if there is a reasonable fit between gov. ends and means chosen

Assignee standing

an assignee of a claim has standing to enforce the rights of the assignor, even when the assignee is contractually obligated to return any litigation proceeds to the assignor, provided assignment was made for orindary business purpose and in good faith

aggregation

an intrastate activity that does not have a direct economic impact on interestate commerce may be aggreated if there is a rational basis for concluding that the total incidences of the activity in aggregate substantially affet interestate commerce

scope of power to investigate

any matter within a "legitimate legislative sphere"

due process of 14th amendment

applies against the states. no state shall make or enforce any law which shall deprive any person of life, liberty or property without due process of the law, make most provisions of bill of rights applicable to the states (1, 2, 4, 5, 6, 8 amendments with some exceptions_

Religious freedom restoration act

applies only to federal gov. may strike down neutral laws if they substantially burden the free exercise of religion

targeting religious conduct

apply strict scrutiny. state law that is designed to suppress activity becuase it is religiously motivated is valid only if necessary to achieve compelling gov. interest

import export clause

article 1, section 10-prohibits states from imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods. Commerce clause gives congress the sole power to regulate foreign commerce

Speech and Debate clause

article 1, section 6-members of congress cannot be questioned in regard to activities such as speech or debate taking place during a sessoin in either house of congress in relation to the business before it (provides absolute immunity from judicial interference)-only extend to in congress activities

Suspension clause

article 1, section 9, clause 2-all persons hled in a territory over which the US has sovereign control are entitled to habeas corpus (or similar) review of the basis for their detention, unless the privilege of seeking habeas has been suspended

Federal courts created by congress are done so under ...

article III

Supreme court original jurisdiction

article III section 2 "all cases affecting ambassadors, other public ministers and consults and those in which a state shall be a party" -may not be limited or expanded by congress-but congress may grant concurrent jurisdiction unless it is between states

full faith and credit

article IV section 1 full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state

Congressional action towards states

as long as congress is using one of its enumerated powers, may generally regulate the states. ex. minimum wage, restriction on disclosure of diver license info, limit on state activities that violate civil liberties

ad valorem property tax

based on value of real or personal property and is often assesed at a particular time. on full value of proeprty is valid, but imposed on goods in transit is not valid. once goods are stoppped then they may be taxed

legitimacy

basis of status as a nonmarital child. subject to intermediate scrutiny. court will not uphold legislation tht is to punish. STates may not prohibit children of unmarried parents from recieving welfare, worker's comp, or death benefits, or inheritance. Cannot require paternity action to be commenced within limited time after birth to secure support

Dcc Congressionally permitted discrimination exception

because congress has exclusive authority over interstate commerce it may explicity permit a state to act in ways that woudl otherwise violate the DCC. Must be express

substantive due process

both due process clauses fundamental rights to all persons. rights not explicitly set forth elsewhere in constitution

insignificant state involvement state action

busineses that the government substantially regulates or which it grants a monopoly such as a utility company do not exercise state action. also excludes: nrusing homes that accept medicaid, schoos recieving gov. funds and congressional grants

Court fees indigents

cannot deny access to courts because of inability to pay required fees, such imposition of fees act to deny a fundamental right to indigent. Due process requires such fees be waived, if matter does not involve fundamental right, no waiver is required

privilege state secrets

claims of privilege based on national security are generally accorded enhanced deference.

alienage

classfication based on status as a lawful resident of the US are subject to a variety of different standards depending on the level of gov. and nature of classification

Exclusive federal powers

coin money, enter treaties, declare war, power over citizenship

PI prohibition on discrimination against non residents

comity clause-probitis one state from discriminating against the citizens of another state. citizen does not mean corporations or aliens

Power to enforce 13, 14 and 15amendments

congress can pass appropriate legislation to enforce the civil rights guaranteed by those amendments

presidential elections

congress can supersede state residency requirements with respect to presidential elections

Commandeering limitation

congress cannot commandeer a state legislature by commanding them to enact specific legislation or administer a federal regulatory program, may not circumvent restriction by conscripting a state executive offiver, but can encourage through tax and spending power

nondelegation doctrine

congress cannot delegate legislative powers to another branch of government. BUT some delegation to executive branch is constitution as long as it specifies an intelligible principle to guide the delegate BUT can't delegate impeachment or power to declare war

Federal classifications of aliens

congress has plenary power, so alienage classification is likely valid unless arbitrary and unreasonable

substantial economic effect

congress has the power to regulate any activity, intra or inter that in and of itself or in combination with other activities has a substantial economic effect upon or effect on movement in interstate commerce

Coercion limitation

congress through the use of its taxing and spending powers, can encourage state to act in way it cannot directly compel. but it may not excee the point at which pressure turns to compulsion

Supremacy clause

constitution and the laws of the US are the supreme law of the land. Any state constitutional provisoin or law that direclty or indireclty conflicts with federal law, including fed. regs. is void under this clause. however, SC has stated there is a presumption agaisnt preemption, especially in area in which states have traditionally exercised police power

regulation of content

content based on its face, or if content based on application or intent subject to strict scrutiny. gov. must identify an actual problem and the regulation of speech must be necessary to solve that problem

Declaratory judgments

courts are not prohibited from issuing declaratory judgments, that determine the legal effect of proposed conduct without awarding damages or injunctive relief. must pose a real and immediate danger to a party's interest for there to be an actual dispute.

damage or destruction of property

damage or destruction by federal, state or local government can also result in taking. need not directly benefit the gov. can extend to non-possessory property rights such as an easement or lien

executive privilege civil

decision to withhold production of information in civil proceedings will be given greater deference than in a criminal trial because the need for information is "weightier" in the latter case. In a civil case, the court may be required to consider the issue of separation of powers without first requiring the executive branch to assert executive privilege.

injunctions in public forum

depends on whether the injunction is content-neutral or content-based. If an injunction is content-neutral, then the test is whether it burdens no more speech than is necessary to achieve an important governmental interest. On the other hand, if the injunction is content-based, it must be necessary for the government to achieve a compelling governmental interest.

commercial v. recreational license

discrimination against out of state for commercial violates PI, no violation if for a recreational license if there is a rational basis

School integration

discrimination must be intentional to violate the constitution, only intentional de jure segreation in schools violates EPC. courts cannot impose remedies across school disctrics unless each district intentionally discriminated. IF school board takes steps to eliminate racial segregation of schools, courts can order the disctrict to implement measures such as busing to remedy the discrimination but it must be terminated once vestigages of past discrimination have been eliminated

monuments on public property

disply of monuments on public property even if the monument has been donated by private person constitutes governmetn speech.

EPC rational basis applies to

distinctions based on age, wealth, weight, most other classifications as well as business or economic reasons, but some classification have recieved heightened scrutiny-sexual orientation, developmental disability, or if gov. acts out of animus toward a group (DOMA)

diversity in public elementary and high schools

district may not assign students to schools on basis of race unelss necessary to accomplish compelling interest but may use facially neutral critera that have the same effect such as site selection or drawing attendance zones. EP applies only to gov. action so private persons are not restricted

sexual orientation

division among federal courts as to level of scrutinty. SC has struck down bans on same sex marriage as violation of fundamental right both on due process and equal protection grounds but and not listed a level of scrutiny. cannot impose a burden or deny a benefit on a group based on animosity that it affects

retroactive legislation

does not in and of itself violate substantive due process, must meet rational basis, BUT extention of a criminal statute of limitations may violate the prohibition on expost facto laws

child pornography

does not protect child pornography, which is sexually explicit visual portrayals that feature children. Because of the state's compelling interest in protecting minor children from exploitation, the sale, distribution, and even private possession of child pornography may be prohibited, even if the material would not be obscene if it involved adults. simulated child porn no banned, but may be if actual children are used in which the simulation

age

does not provoke heightened scrutiny, there are statutes to deal with this, laws are reviewed under rational basis

Due process neutral decision maker

due process entitles someone to a fair decision maker. A judge must recuse herself when she has a direct, personal substantial, pecuniary interest in a case (actual bias) or there is serious objective risk of bias.

majority minority districts

election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. This restriction applies even when the district is drawn to favor historically disenfranchised groups. The state can use traditional factors—such as compactness, contiguity, or honoring political subdivisions—as the bases for the district, and it may only consider race if it does not predominate over other considerations. must be strong basis in evidence in support of race based choice

speech by gov. employees

employee must show that she was speaking as a citizen on a matter of public concern. when gov. employee is speaking pusuant to offical duties, generally is not speaking as a citizen and free speech does not protect employee from discipline. Question is whether the speech at issue is itself ordinarily within the scoppe of the employee's duties, not whether it merely concerns those duties, if speaking as citizen, then first amendment rights must be balanced agaisnt the interest of the state as an employer in effective and efficient management of internal affairs

Separation of powers

ensure that the executive, legislative and judicial branches of government remain separate and distinct in order to provide a system of checks and balances

Executive agreements

enter executive agreements with foreign nations that do not require 2/3d of senate. may be made without congressional authorization. Treaties and statutes take precedence, but executive agreement takes precedence over conflicting state laws

freedom not to speak

ex. child's right not to recite the pledge of allegiance private organizers cannot be compelled by the gov. to include in a parade a group that espouses a message which the organizers disagree. nor can gov. mandate as a condition of federal fudning that recipients explicitly agree with gov. policy to oppose prostitution and sex trafficking . State can compel private entty to permit individuals to exercise their own free speech rights when open to public

ministerial exception to discrimination laws

exception to employment discrimination laws in decision to hire or fire a minister. purpose-safegaurd religious decision to discharge and ensure that authority to select and control who will serve is an ecclesiastical matter solely in the church affirmative defense, but not jurisdictional bar

void for vagueness

fails to provide a person of ordinary intelligence with fair notice of what is prohibited. impermissible for fear that constitutionally protected speech will be chilled. -due process requirement for notice. must give notice of conduct that is forbidden or required

just compensation

fair market value-reasonable value of the proerpty at the time of the taking. measured in terms of the loss to the owner, not the benefit to the government

political questions

federal courts will not rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two branches of government.

supremacy clause and taxation

federal gov may tax a state, the state is not protected. ex. tax on sale of mineral water from state owned property, federal licensing tax on alcohol sellers, tax on payments made by a state to private person not directly imposed on state ex. tax on interest recieved by holders of state bonds

10th amendment

federal gov. may exercise only those powers specificlaly enumerated by the constitution. state gov and people retain any power not mentioned in the federal charter. Any action by federal gov. must have a source originating power in the constitution

Federal regulation

federal government has virtually unlimited power to regulate the states.

judicial action remedying constitutional violation

federal judiciary has broad equitable powers in fashioning remedy for constitutional violations. ex. order local gov. with taxing authority to levy a tax

Judicial review of state actions

federal judiciary has power under the supremacy clause to review state actoins (decisions, statutes and executive orders) to ensure conformity with the constitution, laws and treaties of the US

express preemption

federal law expressly preempts state law in cases in which constitution makes the federal power exclusive or when congress enacts legislation that prohibits state regulation in the same area, must be narrowly construed

savings clause

federal law may also contain a clause that explicitly preserves or allows state laws that regulate in the same area.

types of interests that can be taken

fee simple, easement, leasehold, or a lien. may also involve rights of property owner such as the right to control access to the property

freedom of expression and association

first amendment-congress shall make no laws abriding the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the government for a redress of grievances-applicable to the states through 14th amendment

property interest takings

for a person to challenge a gov. action as an unconstitutioonal taking the person must have a property interest. When person does not have an interest in property the gov. takes, the takings clause does not apply

religious belief

freedom to believe in any religion or none at all is protected and cannot be restricted by law. gov. cannot deny benefits or impose burdens based on religious belief, may not require affirmation of a belief and may not determine the reasonableness of a belief, though it may determine the sincerity of the person asserting belief. if thers is a property dispute, court will apply neutral principals of law

public employment based on membership in political org.

generally cannot be denied. a person may only be punished or deprived of public employment based on political association if individual: 1. is an active member of a subversive organization 2. has knowledge of the organizations illegal activity and 3. has specific intent to further those illegal objectives

discrimination against men

generally struck down however some instances where it is upheld 1. Draf registration of males but not females 2. statutory rape law that held only men criminally liable

public school religious activities

generally violate the establsihement clause. The following are all invalid: 1. designated period of silence for meditation or voluntary prayer 2. nondenominational prayer led at graduation 3. prayer and bible reading 4. posting ten commandments on public class walls 5. prohibiting the teaching of darwinism or mandating teaching of creationism

Export tax

goods exported to foreign countries may not be taxed by congress. Article 1, section 9. A tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited

taking public peril

gov. destruction of private property to respond to a public peril does not trigger the right to compensation

holiday displays

gov. holiday displays will be upheld unless a reasonable observer would conclude that hte display is an endorsement of religion. must be neutral and incorporate other attributes of the holidays other than religion

regulatory taking

gov. regulation that adversely affects a person's property interest is not a taking but it can rise to that level. must consider: 1. economic impact of the regulation on the property owner 2. exten to which regulation interferes with the owner's reaosnable investment-back expectations regarding use of property 3. character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner's essential attributes of proeprty ownership, such as right to exclude others

Lemon test

government action that benefits religion is valid if: 1. it has a secular purpose 2. it principal or primary effect neither advances nor inhibits religion 3. it does not result in excessive government entanglement with religion

2nd amendment

guarantees an individual's right to possess a firearm unconnected with service in a militia and to use for traditionally lawful purposes such as self defense within the home. -not unlimited, may restrict conditions of sale, concealed weapons, possession by felons and mentally ill and carrying guns in schools, building etc.

process for public employee

if can be discharged only for cause: notice of termination and pretermination opportunity to respond, formal hearing is not required as long as pretermination notice, pretermination opportunity to respond to decision maker and post termination evidentiary hearing. prompt suspension hearing with reinstatemetn and back pay if employee prevails may suffice if signficant reason for removing immediately

Dormant commerce clause

if congress has not enacted legislation in a particular are of interstate commerce, then the states are free to regulate so long as the state or local action does not 1. discrimiante against out of state commerce 2. unduly burden interstate commerce 3. regulate extraterritorial activity does not exclude corporations and aliens

president and appropriation of funds

if congress mandates an allocation, distribution, or expenditure of funds, the president has no power to impound funds (refuse to spend or delay the funds) BUT pres is permitted to exercise discretion if the legislature authorizes him to

Mootness

if further legal proceedings would have no effect, or if there is no longer a controversy. A live controversy must exist at each state of review, not merely when the complaint is filed, for the case to be viable. Exception: capable of repetition yet evading review, voluntary cessation (no reasonable expectation wrong will be repeated), class actions

Witness who refuses to testify before congress

if subpoenaed may be cited for contempt. Witness is entitled to procedural due process (presence of counsel_ and privilage against self incrimination

regulation of speech in public forum

impose reasonable restrictions on time, place or manner of protected speech provided the restrictions are content-neutral, narrowly tailored to serve a significant government interest and leave oppen alternative channels for communication

residency restrictions on right to participate in political process of governmental unit

imposed on those who reside in boards is upheld under rational basis, nonresidents may be prohibited from voting, must be given opportunity to prove residency before being denied right to vote

apportionment of house members

in apportioning members of the house among the states pursuant to Article 1, section 2 is not held to a mathematical equality standard. judicial deference and is assumed in good faith

Immunity federal officials

in performing discretionary acts, is entitled to qualified immunity from liability for civil damages when the official's conduct does not violate clearly established statutory and constitutional rights of which a reasonable person would have known. objective standard

right to counsel

indigent D has constitutional right to have counsel appoointed in any crime, including a non summary criminal contempt proceeding in which D is sentenced to incarceration, no similar right for civil contempt

Due process types of conduct

injury that results from intentional governmental acts. Mere negligence by gov. employee does not trigger due process rights

discrimination against women

intentional discrimination against gender will be struck down.

Gender discrimination

intermediate scrutiny, must be a discriminatory intent by gov. disparate impacti s not enough. burden is on state to show substantial relation to important governmental interest -need to show exeedingly persuasive justification, if it involves separate facilities need to show substantially equivalent

Statutes limiting campaign contributions

intermediate scrutiny. They must be closely drawn to correspond with a sufficiently important interest. Laws may limit contributions to individual candidates but not to ballot measures

forfeiture

involuntary relinquishment of property that the gov. alleges is connected to criminal activity. gov. does not need to provide notice prior to seizure of personal property. generally gov. is required to provide owner with notice and hearing prior to seizure of real property

government speech

it is not constrained by Free speech clause of first amendment. Gov. speech need not be viewpoint neutral. subject to requirements of establishment clause

legislative veto

it is unconstitutional for Congress to attempt a legislative veto of an executive action, or retain direct control ove the actions of an executive agency, rather than going through the proper channels of passing a bill

Authority of President's powers

jackson concurrence 1. express or implied authorization of congress-highest power and action is presumed valid 2. When congress has not spoken, presidential authority is diminished and actoin is invalid if it interferes with operations or power of another branch 3. when congress has spoken contrary to president.-lowest ebb of authority and action is likely invalid

overbroad

law that burdens substantial amount of speech or other conduct constitutionally protected by first is can be void if overbroad. overbreadth must be substnatial both in absolute sense and relative to statute's legimate reach. does not apply to commercial speech. in order to prevent a chilling effect on protected speech, overbroad statues may be challenged as facially invalid even by those who are validly regullated on behalf of those who are not -challenger bears burden

rational basis burden of proof

laws are presumed valid, burden is on challenger to overcome presumption by showing law is arbitrary or irrational

Substantive due process standard of review

laws should be reasonable and not arbitrary 1. a gov. actoin that infringes on a fundamental right is generally subject to strict scrutiny 2. if interest infringed is not fundamental there only need to be a rational basis for regulation

Strict scrutiny equal protection

least restrictive means for compelling gov. interest. applies to fundamental rights or a suspect classification (race, ethnicity, national origin, and if classification is by state law, alienage)

Bill of attainder

legislative act that declares a perosn or group of persons guilty of some crime and punishes them without a trial. -article 1, section 9 and 19 forbid the federal gov. and states from enacting such legislative trials. applies only to criminal or penal measures. ex. barring individual from gov. employment is punishment under bill of attainder

property interest in public employment

legitimate interest only if there is an employment contract or clear understanding that employee may be fired only for cause. An at will gov. employee has no right to continued employment, however, they may have if there have been assurances. To be entitled to a hearing: employee must make a prima facie claim she is being discharged for reasons that violate specific constitutional guarantees. dismissal upheld if gov. can prove employee would have been discharged in any event for reasons unrelated to constitutionally protected activities

Suits against federal officers

limited and generally prohibited, because they are considered brought against US. BUT if federal officer acted outside the scope of his professional capacity suit may instituted against officer individually

Congress power to regulate non-economic activity under commerce clause

limited by federalism. power to regulate intrastate activity that is non economic must have a substantial economic effect on interestate commerce

Article III Section 2 jurisdiction of the federal courts

limted to cases and controversies 1. arising under Const., laws and treaties of the US 2. affecting foreign countries, ambassadors, public ministers and consuls 3. involving admiralty and maritime 4. when the US is a paryt 5. Between two or more states, or between a state and citizens of another state 6. between citizens of different states, or between citizens of hte same state claiming lands under grants of different states 7. between a state, or its citizens and a foreign states, citizens or subjects

When does a taxpayer have standing

litigate whether or how much she owes on tax bill and standing to challenge governemental expeditures as violating the establishment clause-does not apply to transfer of property under the property clause nor from funds of president's discretionary fund, nor to student tuition organizations can also challenge tax revenues in a municipal gov in federal court

exaction as taking

local gov. may exact promises from a developer such as setting aside portions of land for a park in exchange for issueing the necessary construction permits. Exactions are not a violation if: 1. essential nexus between legitimate state interests and the condition imposed on the proeprty and 2. a rough proportionalaity between the burden imposed by the conditions on property owner and the impact of the proposed development-must be related in both nature and extent to the impact, also applies when seeking money instead of exaction

public forum

may be traditional or designated. Traditional-historically associates with expression such as streets, sidewalks and parks designated (limited public) one that has not been historically been used for speech related activities, but with gov. has opened for such use-civic auds, public theaters or school classrooms gov. can change a limited desgination to a nonpublic forum, but not traditional

Race in public universities

may be used as a plus factor in determing whether a student should be admitted. use of race quotes is unconstitutional. race may not be considered unless the admissions process used to achieve diverse student body can withstand strict scrutiny. demonstrate that is purpose is both constitutionally permissible and substantial, and that its use of classification is necessary to accomplish its purpose

organizational standing

may bring a suit when it has suffered injury. may bring an action on behalf of its members if: 1. members would have standing to sue in their own right 2. interests at stake are germane to the organization's purpose

DCC Traditional government function exception

may favor state and local governmetn entities though not local private entitles when thos entities are performing a traditional governmental function such as waste disposal. ex. can require trash haulers to deliver to public waste treatment, but not to local private facility, raising funding for local projects

congressional districts

must achieve nearly precise mathematical equaltiy between districts. An unexplained deviation of less than one percent may invalidate the statewide congressional plan. variation may be justified on basis of consistently applied, legitimate state objectives such as respecting subdivisions, also those that predict population shift

Injury in fact

must be both concrete and particularized. generalized grievance is not enough. Need not be physical or economic. could be a harm that affects recreation or esthetic interests. Threat of future injury can suffice IF actual and imminent-can only get an injunction

Redress ability

must be likely (as opposed to speculative) that a favorable court decision will redress a discrete injury suffered by the plaintiff

Indirect tax

must be uniform throughout the US-->geographical uniformity only, product or activity at issue must be identically taxed in every state it is found

state tax on foreign commerce

must meet auto test and must not 1. create a substantial risk of international multiple taxation or 2. prevent the federal government form speaking with one voice regarding international trade

generally applicable laws

neutral state laws of general applilcability that have the incidental effect of interfering with one's ability to engage in religious practices are subject only to rational basis

Commander in chief

no ability to declare way but may take military action without war declaration in case of actual hostilities against the US. Congress may limit these actions through funding power. No settled opinion on whether president can deploy troops

regulation of media

no greater protection than general public. Right to public information about matters of public concern, and the viewers have a right to recieve it. right may be restricted only by regulation that is narrowly tailored to further compelling gov. interest (strict scrutiny)

14th amendment national citizenship

no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the US. -protects citizens not corporations and aliens from infringement by the states upon the privileges or immunities of national citizenship

rights protected under PI

non resident citizens are protected against discrimination with respect to fundamental rights or essential activities. ex. pursuit of employment, transfer of property, access to state courts, engaging in political process

undocumented aliens

not a suspect class but states may not deny primary or secondary public education benefits

right to vote property ownership

not a valid ground to restric the right to vote. limited exception for elections involving special purpose entities such as water storage

religious conduct

not aboslutely protected. only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of genearlly applicability that have an impact on religious conduct are subject only to rational basis, laws struck down-compulsory school attendance for amish, denial of unemployment based on faith

immunity for presidential advisor

not automatically entitled to immunity. can have protection if performing special functions that are vital to national security.

Internet based

not composed of scarce frequencies as are the broadcast media, and because of the reduced risk of an unexpected invasion of privacy over the Internet, any regulation of Internet content is subject to strict scrutiny

Congress power to investigate

not express power, but can do it under the Necessary and Propr clause to investigate incident to its power to legislate

violence

not included in definition of obscenity. but state may forbid speech that advocates use of force of unlawful action if: 1. speech is directed to inciting or prudcing imminent lawless action and 2. is likely to incite or produce such action must be a strong call to violence, not just teaching of necessity to resort to violence

obscenity test

not protected by first amendment. under the Miller test, the average person, applying contemporary community standards must find the material taken as a whole: 1. appeals to the prurient interest 2. depicts sexual conduct in a patently offenisve way 3. lacks serious literary, artistic, political or scientific value (national standard)

General process a person is entitle to

notice of the gov action by an unbiased decision maker opportunity to be heared

display of 10 commandments

on public property is impermissible as violation of the establishment clause if the display has predominantly religous pupose, may display if it is a secular moral message or historical meaning

Strict scrutiny burden of proof

on the gov. to prove the law is necessary to achieve a compelling gov. interest

actual threats of violence

outside protection of 1st amendment given need to protect individuals from 1. fear of violence, 2. disruption that fear engenders and 3. possibility that the threatened violence will occur

compensation for a portion of property

owner may recieve compensation for any diminution in value of the remaining portion that is attributable to the taking but must reduce any compensation by the value of any special and direct benefits conferred

public figure or official

p must prove actual malice (knowledge or recklessness)

Causation

p must show that the injury was fairly traceable to the challenged action-D's conduct caused the injury

political discrimination

partisan gerrymandering may violate the EP if challenger can show "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group"

poll taxes

payment of a fee in order to vote in an electoin for federal office is prohibited by 24th amendment, imposition of poll tax in order to vote in any election violates equal protection clause as poll tax is unrelated to voter qualifications

public schools as limited public forum

permits the public to use its facilities, it cannot discriminate against organizations based on its beliefs. Similarly, a public school may provide funding and other benefits (e.g., free use of facilities) to student groups, but it must do so on a viewpoint-neutral basis.

financial aid to religious institutions

permitted if aid is secular in nature, used only for secular purposes and when aid is distirubted among secular and religious institutions, the distribution criteria must be religiously neutral. may give aid in form of textbooks, computers, lunches, tests, and busses etc.

defamation

plaintiff must prove both fault and falsity of the statement, limits may apply if p is a public official or figure, or when matter is of public concern

takings clause

power of gov. to take private proeprty for public purposes -eminent domain-5th amendment -may not take private property for publice use without just compensation 14th amendment makes takings clause applicable to the states

Necessary and Proper clause

power to enact legislative that is necessary and proper to execute any authority granted to any branch of the federal government-not an independent source of power, but permits congress otherwise designated authority to be executed. permits congress to enact legislation to execute a treaty

executive immunity

president may not be sued for civil damages with regard to any acts performed as part of the president's official responsibilities. P has no immunitiy from civil action based on conduct occuring before president took office or completely unrelated to carrying his job. May be subject to suit even while in office

Executive privilege criminal trials

presidental communications must be made available in a criminal case, prosecution demonstrates a need for info. Judge may exame the communications in camera to determine whether they meet the privilege

Executive privilege

privilege with respect to disclosure of confidential information by executive branch to judiciary or congress. survives individual president's tenure but it is not absolute

fifteenth amendment

prohibits state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude, also the right to hae that vote meaningfuly counted

Property power

property clause Article IV, Section 2 -congress has power to dispose of an make all needful rules and regulations respecting the territory or other property belonging to the US-no limit to dispose of property. Under 5th amendment, congress may only take private property with just compensation and in order effectuate an enumerated power

types of property subject to takings

property may be subject to takings clause including not only land and other real property but also tangible personal property as well as intangible property such as a contract, patent right or trade secret

right to public education

property right. SC has not determined whether there is a right in higher education.

tax exemptions for religious organizations

property tax exemptions are valid as being equivalent to exemptions for other charitable organizations and therefore neither advance nor inhibit religion. tax exemptions that are available only to religious activities violation the establishment clause as an endorsement

worthless property

property that is worthless to the owner but has value to the gov. may be taken without compensation

expressive conduct regulation

protected speech can include not only written, oral and visual communication but also activities suchas as picketing and leafleting. Expressive conduct may be protected speech but is subject to lesser degree of protection. Gov. regulation of expressive conduct is upheld if: 1. regulation is within gov. power to enact 2. regulation futhers an important gov. interest 3. gov. interest is unrelated to the suppression of ideas and 4. burden on speech is no greater than necessary

cable television

protection provided to cable television falls somewhere between the extensive protection given to print media and the more limited protection for broadcasting. As such, a law requiring cable operators to carry local television stations is subject to intermediate scrutiny. Content-based regulations of cable broadcasts are subject to strict scrutiny

Speech and debate clause

protects members of congress from civil or criminal liability for statements and conduct made in the regular course of legislative process, including speech given on the floor of congress, committee hearings and reports. applies to legislative aids performing same acts

Nonpublic forum

public property that is not traditional or designated public forum. EX. gov. offices, schools, jails, military bases, sidewalks on postal service, airport terminal.

racial Gerrymandering

race may not be a predominant factor in determining the boundary lines of legislative districts

suspect classifications

race, ethnicity, national origin in some cases alienage, must comply with strict scrutiny

Rational basis

rationally related to a legitimate state interest. Minimal scrutiny and generally results in the law being upheld

ripeness

readiness of a case for litigation. Federal courts will not hear a claim before it fully develops, that would be premature and potential injury speculative. for case to be ripe, P must experience a real injury (or imminent threat of injury) if a law has not been enforced for a long time a challenge may lack ripeness

regulation of speech in nonpublic forum (gov. offices)

regulate speech activities as long as reuglation is 1. viewpoint neutral 2. reasonably related to a legitimate governmental interest.

prior restrains

regulation of speech that occurs in advance of its expression generally presumed unconstitutional exception: 1. particular harm to be avoided 2. procedural safegaurds are provided to the speaker

Twenty first amendment

repealed prohibition and gave states the authority to prohibit the transportatoin or importation of alcoholic beverages into the state for delivery or use within the state. subject to restrictions of DCC as well as first and 14th amendment, does not prevent congress from exercising control over economic transactions that involve alcohol under CC or spending power

President's power in international affairs

represents US in day too day international affairs, appointing and recieving ambassadors, Pres has exclusive power to recognize a foreign government

voting rights act

requires racial gerrymandering to ensure minority success in elections by creating majority-minority districts (i.e., affirmative gerrymandering). Until recently, the Act required federal pre-clearance for changes in voting rules, including redistricting, for specific southern states and a few other local governmental units. However, the formula used as a basis for subjecting jurisdictions to preclearance has been declared unconstitutional because it no longer reflects current conditions; therefore, it can no longer be used. Receiving federal pre-clearance for a redistricting plan does not ensure that plan will avoid conflicting with the Equal Protection Clause.-requires jurisdiction maintain a minority's ability to elect a preferred candidate

Valid acts under commerce clause

restrict persons, products and services into stream of commerce regulate interstate movement of kidnap victims, stolen vehicles and phone transmissions CAN"T mandate people engage in commerce

Ex post facto laws

retroactive change to a criminal or penal law. law that is civil in purpose is treated as a criminal law only if its punitive effece clearly overrides its civil purpose. Federal and state statute will be struct down if: 1. criminalizes act that was not a crime when it was originally comitted 2. authorizes, after an act was committed, the imposition of more severe penalty on the act 3. deprives the defendant of a defense available at the time the act was committed 4. decreases the prosecutions burden of proof required for conviction to a level below that which was required when the alleged offense was committed

due process safe guards

right to notice and a hearing

seizure of property

seizure of private proeprty for governmental use. property owner's primary challenge is just compensation. may also seize private property to transfer to another private party if rationally related to a conceiveable public purpose-burden is on challenger

Qualification of members of congress

set in Article 1, and cannot be altered by congress or the states (term limits cannot be mandated by the states) a person who meets the criteria cannot be denied a seat

Prosecutor immunity

similar to judicial immunity. court officers who perform ministerial duties such as court reporters are entitled only to qualified immunity

Interstate compacts

similar to treaty or contract. states can enter into agreements but only with the consent of congress. only qualify as compacts if they either affect the power delegated to federal gov. or alter the political balance within the federal system

state and local districts

size of electoral districts may vary more in the states, variation of less than 10 % is rebuttably presumed to be a minro deviation that does not constitute a prima facie case for discrimination, if more than 10 then state must show the deviation from equality between the districts is reasonable and designed to promote legitimate interest

compelling gov. interest

something that is necessary or crucial, such as national security or preserving public health or safety

Immunity for state legislators

speech and debate clause does not apply but under federalism, state legislators are immune from liability for actions iwthin the sphere of legiimate legislative activity. Does not protect from criminal activity such as bribery

private person state action

state action is found when a private person carries on activities that are traditionally a gov. function. merely providing a product or service that gov. could offer is not enough. use of peremptory challenges is state action because juror selectoin is a state function

voters in primary elections

state cannot require a local political party to select presidential electors in an open primary (i.e., a primary in which any voter, including members of another party, may vote) when the national party prohibits nonparty members from voting. A state can require a semi-closed primary system, in which only registered party members and independents can vote in the party's primary, even if the party wants to permit anyone to vote. On other hand, state may not prohibit political party from allowing independents to vote in its primary

private contracts

state legislation that substantially impairs a contract between private parties is invalid, unless the government can demonstrate that the interference was reasonable and necessary to serve an important governmental interest, generally requries destroying rights under a contract

extraterritoriality

state may not regulate conduct that occurs wholly beyond their borders.Exceptions for regulation of internal affairs of corporations

absence of preemption

state may set more stringent standards and recognize individual rights that exceed those granted by federal constitution

termination of parental rights

state must use clear and convincing evidence to support allegations of neglect. When mother or child is intiating paternity suit, due process requires proof only by preponderance of the evidence.

overcoming a claim under DCC of discrimination against out of state commerce

state or local gov. must establish 1. an important local interest is being served; and 2. no other non discriminatory means are available to achieve that purpose

Undue burden on interstate commerce

state regulation that is not discriminatory may be struck down as unconstitutional if it imposes an undue burden on interstate commerce. Balance case by case the objective and purpoose of the state law against the burden on interstate commerce and evaluate whether there is less restrictive alternatives. not a cost benefit analysis or form of close scrutiny of state regulation

post fetus viability

states may prohibit or regulate abortion as long as there is exception for health or life of the mother. State interet in protecting fetal life may supersede woman's right to choose

State taxation of commerce

states may tax interstate commerce only if congress has not already acted in the particular area and if tax does not discriminate against or unduly burden interstate commerce

state alienage classification

strict scrutiny and strike down laws that discrminate against aliens such as prohibiting owning land, obtaining commercial fishing liscenses or being eligible for welfare benefits or civil service jobs. Exception: prohibit from participation in gov. functions. those only need rational basis. includes: jury, voting, police officers, probation officer, public school teacher

poverty

subject to rational basis. exception when gov. action prohibits poor from exercising a fundamental right because of gov. imposed fee then apply strict scrutiny. ex. aviailability of appeal in criminal case cannot hing on ability to pay for transcript, or poll taxes

affirmative action

subject to strict scrutiny=programs that favor racial or ethnic minorities. must show more than history of society discrimination, gov entity must show the remedy is narrowly tailored to end past discrimination and eliminate effects. it is a compelling state interest. Can't be a general societal injustice

restriction of voting to a class of persons EP

subjects restrictions of particular class to strict scrutiny, state may draw districts on basis of total population rather than eligible or registered voters

exception to discrimination of out of state under PI

substantial justification discrimination agianst out of state citizens may be valid of state can show a substantial reason for the difference in treatement 1. nonresidents either cause or are part of the problem the state is attempting to solve 2. there are no less restrictive means to solve the problem

Intermediate scrutiny

substantially related to an important governmental interest

significant state involvement state action

sufficient mutual contacts between the conduct of the private party and the government to find that the government is so pervasively entwined with the private entity that constitutional standdards should apply to the private actor, or if so intertwined that there is a mutual benefit, when gov. creates a corproation by special law for furtherance of gov. ogbjective and retains authority, state must act affirmatively to encourage the activity, not requried to make discrimination illegal but they can't facilitate or authorize it

Congress and national defense

take whatever action is deemed necessary to provide for the national defense in both wartime and peacetime. Upheld-draft and selective service; wage, price and rent control, and exclusion of civilians from restricted areas

re-characterization of property

takings clause prevents the gov. from re-characterizing private property as public property

State sales tax

tax imposed on the seller of godos is valid as long as sales take place within the state. generally does not discriminate agianst interstate commerce as long as there is substnatial nexus between taxpayer and state, and tax os properly apportioned

Use tax

tax on goods purchased out of state but used within the taxing state is valud so long as the use tax is not higher than the sales tax on the same item.

doing business tax

taxes levied on companies for the privilege of doing busienss in a state are valid as long as they pass the complete auto test. burden is on taxpayer

may the Department of defense have to pay state sales tax

the federal government and its instrumentalities such as a national bank are immune from taxation by the states.

viewpoint neutral

the government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented. For example, while a restriction on all public speeches related to abortion on military bases would likely be upheld, a restriction only on pro-life speeches would not

Strict scrutiny

the law must be the least restrictive means to achieve a compelling government interest Generally applicable to fundamental rights

prohibited activities obscenity

the sale, distribution and exhibition of obscene material may be prohibited, however right to privacy precludes criminalization of possession of obsenity in one's own home

Least restrictive means

there cannot be a way to achieve the same interest that is less restrictive of the right at issue. A law will not fail simply because there are other methods of achieving the goal that are equally or more restrictive. Under strict scrutiny, the law should be neither over-inclusive (reaching more people or conduct than is necessary) nor under-inclusive (not reaching all of the people or conduct intended).

conflict first amendment right to publicity

there is an intellectual property right into one's publicity which can create a tort right, media may be civily liable when they act without consent

government funding for abortion

there is no constitutiona lright to have the government provide indigent women with funding for abortions or for medical care related to an abortion, even if gov. does provide funds for childbirth. state may prohibit use of all public facilities and public employees in performing abortions

how to trigger strict or intermediate scrutiny in EPC

there must be a discriminatory intent on the party of the government. Disparate effect is insufficient.

Fundamental rights unique to EP

those for substnative due process are protected here as well also includes 1. one person, one vote-vote must be euqal to any other vote-equal voting districts 2. Gerrymandering

equal protection federal action

though no federal equal protection SC has held 5th amenddment due process includes the rights guaranteed by EPC thereby making discrimination by federal gov. subject to review under same standards

burden of proof intermediate scrutiny

though not stated burden generally is on the gov. to prove law in question passes. gov. must defend the interest it state when law was enacted, not just a legitimate interest

Judicial review of congressional actions

to review acts of another branch of the federal gov. and to declare that act uncosntitutional, as well as the constitutionality of the decision of the state's highest court The constitution is paramount law and SC has the final say in interpreting the constitution

Treaties

treaty clause-the president has the exclusive power to negotiate treaties, although a treaty may only ratified with the concurrence of 2/3ds of the senate

Free exercise clause

two freedoms 1. freedom to believe 2. freedom to act degree of protection depends on whether religious belief or conduct is involved

national guard

under control of federal and state governments. Militia clause article 1, section 8, cluase 15, 16. Congress has the power to authorize the president to call National Guard units to execute federal laws, suppress insurrections and repeal invasions. Can also use in domestic and non=emergency situations not subject to approval of state governor.

implied preemption

under the following circumstances: 1. congress intended federal law to occupy the field. 2. state law directly conflicts federal law 3. state law indirectly conflicts

Gender affirmative action

upheld regulations granting beneficial treatment to women over men because providing remedy for passed gender discrimination is an important gov. interest

applicability of strict scrutiny

used when classification is based on gender or status as a nonmarital child. gender requires-exceedingly persuasive justification for the classification which may bring standard closer to strict scrutiny

one person one vote

vote must be equal, applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature

Welfare v. disability benefits

welfare-notice and hearing prior to termination disability -must give notice, but only post termination evidentiary hearing

Establishment

when a governmental program shows preference to one religion over another, or to religion over nonreligion, strict scrutiny applies. not every act is unconstitutional. course use the lemon test

return of property

when action is a taking, gov. cannot escape all liability by returning the proeprty to its owner, but instead must pay owner compensation for period that gov. possessed property

occupy the field

when congress leaves no room for states to supplement it or when there is a federal interest so dominant that federal system will be assumed to preclude enforcement of state law on same subject. even complementary state laws are impermissible. forecloses any state regulation

at large elections EP

when members of gov are elected by voters within a unit (at large) does not violate the one person one vote but may conflict with EP, federal law bans these elections for congressional representatives

manner of taking

when property owner objects to seizure of proeprty by gov. gov. will institute condemnation proceedings, and property owner can raise takings clause as a defense. When gov. action is a statute, regulation or ordinance, the proeprty owner may institute a suit seeking injunction or declaratory judgment -inverse condemnation

Supremacy clause

when state and federal government legislate in the area, federal law supersedes conflicting state law

vote dilution

when states draw election districts for the purpose of scattering a racial or ethnice minority among several districts to prevetn the minority from exercising its voting strength-violation of EP