Con Law Flashcards
(47 cards)
What article of the constitution grants judicial power
Article III
A major exception to the judicial power is created by the 11th Amendment and by the preexisting concept of state sovereign immunity. what is that rule?
Prohibits a citizen of one state from suing another (or his own per Supreme Court) state in federal court. It immunizes the state from suits in federal court for money damages or equitable relief when the state is a def and in an action brought by a citizen of another state or foreign country.
also the 11th Am bars suits in federal court against state officials for violating STATE law
When does Adequate and Independent State grounds apply?
What is the rule: The supreme court ___ review a ___ court judgment only if _______
AISG applies only in the US Supreme Court and only when the Sup Court reviews a state court judgement.
Rule: The supreme court can review a state court judgment only if it turned on a federal grounds.
The court has NO jurisdiction if the judgement below rested on an adequate and independent state ground.
Adequate - when the federal claimant wins anyway under state law
Independent - state law does NOT depend on an interpretation of fed law (NO AISG if state law adopts or follows federal law)
Standing to sue in federal court requires
injury
causation
and redressability
Congress has 3 big powers
spending,
taxing
and commerce
13 amendment provides that Congress has broad power to legislate against what?
Congress has broad power to legislate against racial discrimination whether public or private
14th amendment provides that Congress has the power to _____ violations of individual rights by the ______ but only as those _______ have been defined by _____.
To be properly remedial the legislation must have what?
In other words, there must be a ______ fit
Congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by courts.
To be properly remedial the legislation must have congruence and proportionality. In other words, there must be a reasonable fit between the remedial law enacted by Congress and the constitutional right as declared by the supreme court.
Treaties are negotiated by whom?
And does it require approval?
negotiated by president
require 2/3 senate approval
Executive agreements are negotiated by whom?
Is approval required?
Does it have binding status?
What can a statute do to an exec agreement?
negotiated by president but not submitted for approval
do not have the binding status of a treaty
may be authorized precluded or overridden by statute but does take precedence over conflicting state law
Anti-commandeering principle says that states cannot be forced to implement what?
States cannot be forced to implement federal programs.
What does the Comity Clause (aka Privileges and Immunities of State Citizenship under Article IV) forbid ?
Can there be a legal residency requirement for private employment? What about public?
Forbids serious discrimination against out of state individuals. There can be no legal requirement of residency for private employment. However, public employment may require residency requirements.
States can discriminate with regard to recreational opportunities, such as hunting licenses.
Dormant Commerce Clause
May states regulate commerce?
So long as these 3 things are met, states may regulate commerce
What are the exceptions to the no discrimination against out of state interests?
Dormant describes what the commerce clause means in the absence of federal regulation (when the federal commerce power is unexercised)
In the absence of federal regulation, state regulation of commerce is valid so long as
1) there is no discrimination against out of state interests;
2) the regulation does not unduly burden interstate commerce and
3) the regulation does not apply to wholly extraterritorial activity.
The exceptions include
State as Market participant (when state is selling or buying goods or services);
Subsidies (welfare);
Federal Approval (if Congress authorizes or consents, state may discriminate against out of state interests)
Will discriminatory state regulation of interstate commerce be struck down?
Unless ____ consents
will be struck down unless Congress consents
Non discriminatory state regulation of interstate commerce is almost ____ upheld.
Will be upheld unless it is struck down as an undue burden on interestate.
Preemption means that?
Fed law preempts inconsistent state law
State action i s required to trigger what?
What are the exceptions
traditional _____ function
Significant _____ involvement
constitutional protections
Exception: A private person’s conduct must constitute state action in order for these protections to apply (private person carrying out a “traditional government function”
Exception: Significant state involvement. Mere licensing or regulation of a private party does not constitute state action; the state must act affirmatively.
Businesses that the govt substantially regulates or grants a monopoly do not exercise state action including nursing homes accepting medicare and schools receiving govt funds
Due Process Clause of the 5th Amendment applies to ?
Federal government
Due Process Clause of the 14th Amendment applies to ?`
against the states
Procedural Due Process
What are the the 3 protected interests?
Right to be ____ of charges
and ____ to be heard
What are the 3 factors the court considers when determining the amount of process due?
life, Liberty, property
Right to be to notified of charges or proceedings against him and
Opportunity to be heard at those proceedings
In determining the amount of process that is due, the court considers three factors:
1) the private interest affected by the govt. action
2) the risk of erroneous deprivation of that interest using current procedures and probable value of additional or substitute safeguards;
3) the burden (fiscal or admin cost) involved in providing the additional process
welfare= prior notice and PRE- termination hearing
disability benefits or public employment= prior notice but only a post termination evidentiary hearing
public employee who may be discharged ONLY FOR CAUSE = notice of termination and a pre-termination opportunity to respond and post-termination hearing
Liberty
An impingement of liberty generally is construed to mean significant govt restraint on one’s physical freedom, exercise of fundamental rights, or freedom of choice of action
Property
A cognizable property interest involves more than an abstract need or desire. There must be a legitimate claim of entitlement by virtue of statute, employment contract, or custom.
There is a property right to a public education.
Substantive Due Process
What is the standard of review
What are the 3 fundamental rights?
Right to privacy includes 5:
The standard of review in substantive due process cases is generally twofold: a govt action that infringes upon a fundamental right is generally subject to strict scrutiny.
Under strict scrutiny a law interfering with the fundamental rights of travel and privacy will generally be upheld only if it is necessary to achieve a compelling govt. interest. With regard to voting, the level of scrutiny can depend on the degree to which this right is restricted.
If the interest infringed upon is not a fundamental right, then there need only be a rational basis for regulation.
Some rights are so deeply rooted in our nation’s tradition and history they are considered fundamental.
Right to travel;
Right to vote;
Right to privacy (including marriage, sexual relations, contraceptions, abortion, parental rights, right to possess obscene material, right to refuse medical treatment, right to avoid disclosure of personal medical info, and the right of related persons to live together);
Standard of Review: Strict Scrutiny
The law must be the least restrictive means to achieve a compelling govt interest. Applies to a ** Fundamental right ** Or a Suspect Classification. A suspect classification is race, ethnicity, national origin, and, if the classification is by state law, alienage.
Standard of Review: Rational Basis
The law must be rationally related to a legitimate govt interest. This is a test of minimal scrutiny.
It is not required that there is a link between the means selected and the legitimate objective. However the legislature must reasonably believe there is a link.
Burden of proof is on the challenger of the law to establish that the law is ARBITRARY AND IRRATIONAL.
Applies to all cases in which one of the higher standards does not apply.
Retroaction application of a statute does not in of itself violate substantive due process. A law that is applied retroactively must merely meet the rational basis test. As well as statutory change that is remedial in nature.
However, the extension of a criminal statute of limitations or other criminal law may violate the prohibition on an ex post facto law.
