Conlaw Flashcards

Question

modern limits on congressional power under the 10th amendment FEDERAL LAWS // FEDERALISM

Answer 1

There are 2 modern limits on congress’ powers under the 10th amendment (or federalism generally) 1. NY v. US 2. PRINTZ v. US

Answer 2

- the 10th Amendment bars Congress from ordering state legislatures to pass or not pass laws AKA Congress may not COMMANDER state legislatures and may not issue “DIRECT ORDERS” to state legislatures - BUT the federal could (a) pass the law itself, assuming it has such authority, which it often will OR (b) encourage the state to pass (or not pass) such laws under its spending power

Answer 3

a federal law prohibiting state legislatures from authorizing sports gambling schemes

Answer 4

10th Amendment bars Congress from compelling state executive officials (e.g., county sheriffs) to enforce federal laws BUT the federal government could (a) enforce the law itself OR (b) encourage state officials to enforce such laws under its spending power

Answer 5

1. NY and PRINTZ are limited to federal mandates that apply only to state governments - In RENO, the Court upheld a law prohibiting states from selling DMV information because unlike the laws in NY and PRINTZ, this law (a) applies to both states AND private companies and (b) did not impose an AFFIRMATIVE burden on the states 2. State courts, unlike state legislatures and executives, are bound to enforce federal law under the supremacy clause - Moreover, state courts must hear cases involving federal claims—they may NOT discriminate against actions brought to enforce federal law

Answer 6

State governments may not be sued for MONEY DAMAGES for federal claims

Answer 7

1. a federal claim may not be brought against a state by (a) citizens of other states (b) citizens of that state (c) foreign citizens 2. the 11th amendment (and state sovereign immunity) bars federal claims brought by these parties against a state in federal court, state court, or federal administrative tribunals (e. g. federal maritime commission)

Answer 8

times when federal claims may be brought against a “state” 1. A suit for PROSPECTIVE injunctive relief against a state official in his or her official capacity including an order to pay—in the future—any money needed to comply with the injunction) 2. Money damages may be sought from a state official personally, but not if such damages would be paid out of the state treasury 3. The state expressly waives its sovereign immunity 4. Suits brought by the U.S. or other states 5. Congressional abrogation of state sovereign immunity 6. Proceeding arising under federal bankruptcy law 7. Counties, cities, etc. are not protected by the 11th Amendment and thus are subject to liability for federal claims

Answer 9

A state may sue another state for money damages in an original action in the Supreme Court

Answer 10

- Congress may authorize private persons to sue state governments for money damages BUT only in some very limited circumstances - These suits may arise only out of congress’ power under section of the 14th amendment and for the UBE are probably limited to suits for racial or gender discrimination or access to courts by disabled individuals - Congress must make a “clear statement” of its intent to abrogate the 11th amendment

Answer 11

adversary proceeding brought by bankruptcy trustee to set aside alleged preferential transfers made to state agencies was not barred 11th Amendment

Answer 12

If a state law is at issue, only one question need be asked | = is there a specific check in the Constitution prohibiting such a law?

Answer 13

There are several checks on state power in the Constitution that apply to BOTH the federal government and the state governments, including the 1. Due Process Clause 2. Equal Protection Clause 3. First Amendment 4. Takings Clause But there are several checks that apply ONLY to the state governments, namely: 1. Supremacy Clause 2. Dormant Commerce Clause 3. Privilege and Immunities Clauses 4. Contracts Clause

Answer 14

AKA preemption issues | federal laws are superior to state laws

Answer 15

1. express preemption | 2. implied preemption

Answer 16

= if a valid federal law expressly preempts state laws | Express preemption clauses are narrowly construed, particularly in areas traditionally regulated by states

Answer 17

= If a valid federal law impliedly preempts state laws because 1. Impossibility preemption 2. Obstacle preemption 3. Field preemption

Answer 18

= It is impossible to comply with both the state and federal laws without violating one

Answer 19

= the state law is an obstacle to the objective of the federal law

Answer 20

Congress has impliedly taken over the entire field with a comprehensive law Example = immigration

Answer 21

1. It is authority for Congress to pass laws regulating interstate commerce and 2. It impliedly limits states’ authority to interfere with interstate commerce

Answer 22

A. does the state law discriminate in purpose or effect against interstate commerce or out-of-staters? - If so = the state law is invalid B. if the law is not discriminatory, the state law is valid unless it imposes an “undue burden” on interstate commerce - Test = a nondiscriminatory state law will be invalidated only if the local benefits are slight and the burden on interstate commerce is significant - Under this test, a court may invalidate a state law if a. There are alternatives that impose less burden on interstate commerce OR b. The law conflicts with the laws of other states (and thus there’s no national uniformity)

Answer 23

Examples = a state discriminates (and is invalid) if it 1. hoards valuable things like jobs or natural resources 2. insulates itself from regional or national problems like garbage, nuclear waste, competition

Answer 24

A state (or local government) may discriminate in 3 instances: 1. Congressional authorization 2. Market participant 3. Public entity

Answer 25

= Congress has authorized states to discriminate against interstate commerce BUT congress may not authorize violations of other constitutional provisions, such as Article IV’s Privileges and Immunities Clause or the Equal Protection Clause

Answer 26

= The state is a “market participant” as opposed to a market regulator - In such cases, a state may discriminate in favor its own residents - These are situations in which the state itself is the seller or provider or goods or services

Answer 27

a state-owned cement plant

Answer 28

the “market participant” exception does NOT authorize 2 things: 1. State discrimination as to “fundamental rights" - EXAMPLES = private employment, practice of law, civil liberties - REASONING = because such discrimination violates Article IV’s Privileges and Immunities Clause 2. States to impose discriminatory regulations in a downstream market - EXAMPLE = Alaska could not require buyers of Alaskan timber to process the timber in Alaska

Answer 29

= the state favors a public entity EXAMPLES = 1. A county ordinance requiring waste haulers collecting trash in that county to bring trash to state-created waste facility 2. A state income tax exemption for income derived from in-state bonds, but not out-of-state bonds

Answer 30

TRICK, THERE'S 2 1. Article IV 2. 14th Amendment

Answer 31

This clause prevents discrimination by states against nonresidents as to “fundamental rights” relating to important commercial activities

Answer 32

A state law discriminating against nonresidents with regard to such a “fundamental right” will be invalidated UNLESS the state shows a substantial justification for the discriminatory treatment and that there are no less discriminatory means to solve the problem

Answer 33

the Article IV Privileges and Immunities Clause has been used to invalidate 1. A state law charging nonresidents substantially more for a commercial fishing license than residents - BUT NOT a state law charging nonresidents substantially more for a recreational hunting license 2. A state law requiring state residency to be a licensed to practice law in the state 3. A state (or local) law requiring private employers to give hiring preference to state residents

Answer 34

This clause prohibits states from denying their citizens the privileges and immunities of national citizenship SUCH AS the right to interstate travel and the right to vote in federal elections

Answer 35

This clause protects the right of newly arrived citizens to enjoy the same privileges and immunities that are enjoyed by long-term citizens of the state EXAMPLE = It was used to invalidate a CA law limiting new residents for their first year of living in CA to welfare benefits they would have received in the state of their prior residence

Answer 36

Corporations and aliens are NOT considered “citizens” for purposes of the privileges and immunities clauses

Answer 37

= no state or local government shall impair the obligations of contracts - The Contracts Clause does NOT apply to the federal government - The Contracts Clause applies only to existing contracts, not future contracts or future profits

Answer 38

If a state law impairs the obligations of a contract between 2 private parties, courts apply the following test: (1) does the law “substantially” impair a party’s rights under an existing contract? (2) if so, is the law a reasonable and appropriate means of promoting a significant and legitimate public purpose? (This test is similar to the rational basis test, which means courts are similarly highly unlikely to invalidate a state law that impairs a private contract)

Answer 39

If a state law impairs a contract in which the state is a party, the law will be upheld only if it is - REASONABLE and - NECESSARY to serve - an IMPORTANT PUBLIC purpose (This test is similar to strict scrutiny)

Answer 40

federal and state

Answer 41

An ex post facto law imposes criminal punishment for an act that occurred before the law became effective

Answer 42

The clause is also violated where the government 1. prescribes greater punishment than was prescribed when the act was committed, 2. reduces the evidence necessary for a conviction 3. increases the statute of limitations for a crime, or 4. retroactively reduces an inmate’s “good time” or “early release” credits

Answer 43

federal and state

Answer 44

= a legislative act that inflicts punishment on named individuals or on easily identifiably members of groups Examples of punishment = imprisonment, punitive confiscation of property, prohibition from employment or vocational opportunities

Answer 45

1. Final judgments on the merits rendered by a state court with jurisdiction MUST be recognized and enforced by other states as a matter of right 2. A second court may not retry ANY matter, factual or legal, properly at issue in the first proceeding 3. In other words, the first judgment serves as a bar to suits brought in other states

Answer 46

By its terms, the Full Faith and Credit Clause applies exclusively to states, but a federal statute requires recognition of judgments between state and federal courts

Answer 47

A state has no power to regulate the activities of the federal government, unless Congress consents

Answer 48

A state may not tax the federal government, including its land or instrumentalities

Answer 49

Test = if the money to pay a state tax comes out of the federal treasury, the state tax is unconstitutional

Answer 50

1. A state may impose non-discriminatory income taxes (i.e. the tax does not discriminate against persons employed by the U.S.) on the salaries of federal employees (paid by the employee) 2. A private contractor working for the federal government can be compelled to pay state sales tax if the contractor is working on a cost-plus basis

Answer 51

The federal government may tax or regulate state government activities AS LONG AS the tax or regulation applies to BOTH the private sector and public sector

Answer 52

AKA a higher rate for interstate commerce than for intrastate commerce = violate the dormant commerce clause (and thus are unconstitutional) UNLESS such discrimination has been approved by congress

Answer 53

1. use tax | 2. income taxes

Answer 54

if a state imposes a use tax, the rate cannot exceed the state’s sales tax and a credit must be given for the sales tax paid in the other state

Answer 55

residents who pay taxes in another state for income earned in that state must be given a credit against state AND local income taxes in their home state to avoid double taxation

Answer 56

= a state may tax interstate commerce and interstate businesses IF 1. There’s a SUBSTANTIAL NEXUS btwn the activity/property taxed and the state 2. The tax must be FAIRLY APPORTIONED 3. The tax must be FAIRLY RELATED to the services or benefits provided by the state

Answer 57

such a nexus is established when the taxpayer avails itself of the privilege of carrying on business in that jurisdiction, including a significant quantity of internet sales

Answer 58

the tax should be based on the extent of the taxable activity or property in the state (otherwise, the taxpayer would be subject to multiple taxation)

Answer 59

1. Executive powers (generally) 2. Foreign affairs 3. Checks on the president’s powers 4. President’s pardon power 5. Speech and debate clause Pro tip = separation of powers questions are usually issue-specific and are modeled after actual SC cases

Answer 60

If the president is legislating (i.e., issuing executive orders affecting a private person’s legal rights), use the following test: 1. if Congress has explicitly or implicitly approved the president’s action, the president has the full power of federal government to make law 2. if Congress has been silent on the issue, the president may be able to make law, depending on history and tradition (i.e., have prior presidents taken such actions without Congressional approval?) 3. if Congress has disapproved the president’s action (e.g., by rejecting a similar statute), the president may rely only on his own constitutional power to make laws; in such cases, the president’s action is probably unconstitutional

Answer 61

If Congress “directs” the president to spend money on a project, the president must spend the money; in other words, the President does not have authority to “impound” funds Congress has ordered spent

Answer 62

1. May congress increase the executive’s power to make law? 2. Legislative vetoes 3. Line-item veto 4. Appointment of executive officials 5. Removal of executive officials

Answer 63

Congress may delegate law-making power to the executive branch as long as it establishes some standard for such decision-making

Answer 64

A legislative veto occurs when Congress delegates law-making authority to the executive branch, but keeps the power to overrule the executive by a one-house or two-house or committee veto

Answer 65

Legislative vetoes are unconstitutional under the Bicameral Clause and/or the Presentment Clause

Answer 66

A federal statutory line-item veto is unconstitutional

Answer 67

Cabinet members

Answer 68

The president nominates and the senate confirms

Answer 69

= positions created by congress | such as the independent counsel

Answer 70

1. Congress may give the appointment power to president alone, a department head, or the courts 2. Although Congress may appoint its own officers to carry on internal legislative tasks, Congress may NOT appoint anyone with administrative, enforcement, regulatory, or executive duties

Answer 71

Congress may require the president to have “good cause” to fire an employee of the executive branch if the position requires some independence from the president (e.g., an independent counsel or a person who has quasi-judicial duties)

Answer 72

Congress may not retain the power to remove an executive official; it only has impeachment power

Answer 73

2 issues 1. Treaties and executive agreements 2. War powers

Answer 74

Treaties are signed by the president and ratified by the senate

Answer 75

If laws are in conflict, the following preeminence governs: 1. U.S. Constitution 2. Federal statutes/treaties (last-in-time controls) 3. Federal executive agreements/order 4. Federal regulations 5. State laws

Answer 76

- President may use executive agreements as substitutes for treaties - No senate ratification is required, and the president may use these agreements as the basis for issuing executive orders (domestic regulation)

Answer 77

- The power to recognize foreign states lies exclusively the president - The president and his subordinates are the exclusive official representatives of the U.S. in foreign affairs

Answer 78

The war powers are shared between the president and congress - Congress declares war and allocates money for the military - The president alone controls troops and deployment

Answer 79

1. Criminal prosecutions 2. Civil actions 3. Impeachment

Answer 80

The president is probably immune from criminal prosecution while in office

Answer 81

the president’s communications and papers are presumptively privileged BUT the president must comply with subpoenas from criminal courts or grand juries

Answer 82

1. The president has absolute immunity from civil liability for claims (at least those arguably based on official actions) arising while in office 2. President aids and advisors have a qualified immunity from civil damages - Such immunity will not protect them for violations of clearly established constitutional rights 3. The president is subject to civil liability for claims arising prior to taking office

Answer 83

1. The president, vice-president, judges, and “officers” of the U.S. may be impeached 2. The house “impeaches” (i.e., indicts) by a majority vote 3. The senate convicts by a 2/3 vote 4. Impeachment may be for high crimes, misdemeanors or treason, but these terms are defined exclusively by Congress, and such issues are political questions

Answer 84

1. The president has the power to pardon and commute sentences for federal crimes BUT not state crimes or civil liability 2. The president’s pardon power may NOT be limited by Congress 3. The president may not pardon a person for “crimes” for which he or she has been “impeached”

Answer 85

1. The Speech and Debate Clause protects members of the U.S. Congress from criminal or civil liability for all statements (oral or written) they make in the House or Senate 2. The immunity extends to aides who engage in acts that would be immune if performed by the member of Congress 2 EXCEPTIONS 1. The Speech or Debate Clause does not extend to state legislators 2. Speeches and publications made outside of the House or Senate are not protected

Answer 86

the relationship between governments and individuals

Answer 87

- The U.S. Constitution contains numerous provisions designed to protect individual civil liberties - Before examining particular provisions, 2 issues must be resolved 1. Who is bound by these constitutional provisions? (AKA “State action” doctrine) 2. do these provisions apply to all governments—federal, state, and local? (AKA “incorporation”) - U.S. constitution sets a minimum level of protection for individuals (states are usually free to grant broader protections)

Answer 88

a state may require large private shopping centers to permit persons to exercise free speech rights on shopping center property

Answer 89

- The Constitution applies only to government ACTION (AKA doesn’t apply to government inaction) - Also the Constitution generally does not apply to the actions or inactions of private individuals and companies

Answer 90

1. if a private person or company is performing a traditional, EXCLUSIVE government function 2. the government AFFIRMATIVELY authorizes, encourages, or facilitates an unconstitutional activity

Answer 91

operating a company town or conducting a primary election

Answer 92

1. court enforcement (equitable or legal) of a racially restrictive covenant in a deed or lease 2. preemptory challenges (civil and criminal) 3. the government leases space to a business that discriminates 4. a private association that regulates high school athletics with mostly government members and funding

Answer 93

1. The government provides its funding, even 99% of its funding 2. The government has licensed the company 3. The government has approved the company’s name and charter 4. The association has government members 5. The government regulates the company 6. The company is working under a government contract

Answer 94

To whom does the Bill of Rights apply? - By its terms, the Bill of Rights applies only to the federal government. - The Supreme Court, however, has held that all of the Bill of Rights have been incorporated into the 14th Amendment and thus made applicable to state and local governments, except for the: 1. Fifth Amendment’s right to a grand jury in a criminal case 2. Seventh Amendment’s right to a jury in a civil case

Answer 95

1. Due Process Clause 2. Equal Protection Clause 3. First Amendment

Answer 96

1. Rational basis test 2. Intermediate scrutiny 3. Strict scrutiny

Answer 97

- the CHALLENGER must prove that the law - is not RATIONALLY RELATED - to ANY LEGITIMATE (aka permissible) government purpose (actual or conceivable) (this is the default test in due process and equal protection cases)

Answer 98

in due process and equal protection cases

Answer 99

- the GOVERNMENT must prove that the law - is SUBSTANTIALLY RELATED - to an IMPORTANT government interest

Answer 100

- the GOVERNMENT must prove that the law - is NECESSARY (or NARROWLY TAILORED) - to achieve a COMPELLING government interest

Answer 101

1. 5th amendment 2. 14th amendment (the two clauses have been construed identically)

Answer 102

Applies to the federal government | construed identically with 14th amendment DP clause

Answer 103

Applies to state and local governments | construed identically with 5th amendment DP clause

Answer 104

1. Procedural due process | 2. Substantive due process

Answer 105

requires the government to use a fair process and procedures before depriving an individual of life, liberty, or property

Answer 106

designed to ensure that laws are reasonable and not arbitrary

Answer 107

1. Before the government may deprive an individual of liberty or property, the government must give the person NOTICE of termination and some form of a HEARING 2. There is a right to procedural due process only when the government deprives an INDIVIDUAL of liberty of property (there is no such right when the government acts general, like by changing the eligibility requirements for welfare benefits)

Answer 108

Freedom from confinement

Answer 109

1. Government job 2. Government benefits 3. Government license

Answer 110

1. welfare benefits = notice and an evidentiary hearing prior to termination 2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term 3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required) 4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond 5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer 6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard 7. termination of business license = pre-termination notice and some form of fair hearing

Answer 111

1. welfare benefits = notice and an evidentiary hearing prior to termination 2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term 3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required) 4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond 5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer 6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard 7. termination of business license = pre-termination notice and some form of fair hearing

Answer 112

1. welfare benefits = notice and an evidentiary hearing prior to termination 2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term 3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required) 4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond 5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer 6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard 7. termination of business license = pre-termination notice and some form of fair hearing

Answer 113

1. welfare benefits = notice and an evidentiary hearing prior to termination 2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term 3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required) 4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond 5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer 6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard 7. termination of business license = pre-termination notice and some form of fair hearing

Answer 114

1. welfare benefits = notice and an evidentiary hearing prior to termination 2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term 3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required) 4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond 5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer 6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard 7. termination of business license = pre-termination notice and some form of fair hearing

Answer 115

1. welfare benefits = notice and an evidentiary hearing prior to termination 2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term 3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required) 4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond 5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer 6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard 7. termination of business license = pre-termination notice and some form of fair hearing

Answer 116

1. welfare benefits = notice and an evidentiary hearing prior to termination 2. Jobs = pre-termination opportunity to respond; post-termination evidentiary hearing, unless the job was probationary or short-term 3. suspension from school for more than 10 days = notice and opportunity to explain (no evidentiary hearing required) 4. prejudgment attachment = preferably pre-attachment hearing, but post-attachment hearing will suffice in emergencies with a bond 5. driver’s license suspension = pre-suspension hearing, except for refusal to take a Breathalyzer 6. termination of parental rights = pre-termination notice and hearing with a clear and convincing evidence standard 7. termination of business license = pre-termination notice and some form of fair hearing

Answer 117

- If a law directly and substantially impairs a “fundamental right,” the court will apply Strict Scrutiny and the law will probably be invalidated - Fundamental rights are those rooted in the history and traditions of America - They include not only those rights enumerated in the Bill of Rights, but also certain implied privacy rights

Answer 118

1. the right to control the education and upbringing of one’s children 2. the right to acquire and use contraceptives (regardless of age) 3. the right to marry (including same-sex marriages) 4. the right to procreate (i.e., thus, no forced sterilization) 5. the right to custody of one’s children (e.g., a grandparent visitation law has been found to violate this right) 6. the right of family members to live together (includes extended family, but not unrelated persons) 7. the right of a competent adult to refuse life sustaining medical treatment, hydration, and food 8. right to engage in adult, consensual, non-commercial sex in one’s home BONUS FACTS - a state may require clear and convincing evidence of the patient’s intent to refuse life sustaining medical treatment, hydration, and food - there is no right to commit suicide or for assistance to commit suicide - a state may force parents to obtain medical care for children

Answer 119

Although a woman has a constitutional right to decide to terminate a pregnancy, that right is subject to its own form of scrutiny: 1. Test for PRE-viability regulations = does the regulation impose an UNDUE BURDEN (AKA a substantial obstacle) on the woman’s right 2. Test for POST-viability abortions = a state may ban such abortions, as long as there are exceptions for abortions NECESSARY TO PROTECT THE LIFE/HEALTH of the mother NOTE: there is no right to government-subsidized abortions, and there is no requirement that public hospitals perform abortions

Answer 120

1. a spousal consent or notification requirement 2. requirement that doctor have “admitting privileges” at nearby hospital 3. requirement that clinics have hospital-grade facilities

Answer 121

1. 24-hour waiting period 2. requirement that abortions be performed by a licensed physician 3. parental notice/consent for a minor’s abortion, if the law contains a judicial bypass

Answer 122

If the government regulation does not interfere with a fundamental right (or abortion), the regulation will be subject to the RATIONAL BASIS test (thus will probably be upheld) Exception = “Grossly excessive” punitive damage awards violate the Due Process Clause

Answer 123

- Punitive damages that exceed compensatory damages by a ratio of more than 9:1 are probably “grossly excessive” - Punitive damages are less likely to be found excessive if the defendant committed an intentional or reckless tort causing serious personal injuries

Answer 124

1. Right to vote | 2. Right to travel

Answer 125

- There is a fundamental right to vote in national, state, and local elections - restrictions on voting, other than those based on age (18), residency, and citizenship, are generally invalid

Answer 126

1. a requirement that voters have children in order to vote in a school board election 2. poll taxes or educational requirements 3. property ownership (except for “water district” elections)

Answer 127

1. presentation of government-issued photo I.D. | 2. proof of residency for a short period (e.g., 30 days)

Answer 128

(e. g., the seats in both houses of a state legislature must be apportioned on a population basis) - appointments of officials and at-large elections are valid as long as not used to suppress minority voting power - racial gerrymandering must meet strict scrutiny if race was a “predominant factor” in drawing the district’s lines - states may measure districts by counting “total population” instead of eligible voters

Answer 129

- Ballot fees and restrictions are subject to strict scrutiny - Filing fees—even if reasonable in amount—must be waived for indigent candidates

Answer 130

- Racial restrictions on voting are invalid under the 15th Amendment - The 15th Amendment requires proof of “purposeful intent” to discriminate on the basis of race

Answer 131

- There is a fundamental right to travel interstate and to be treated like a long-term resident once becoming a permanent resident of a state - Laws that prohibit entering or leaving a state must meet strict scrutiny - Benefits that distinguish between long-term and short-term residents are subject to strict scrutiny (and probably also violate the 14th Amendment’s Privileges and Immunities Clause)

Answer 132

Durational residency requirements are subject to strict scrutiny, but some have been upheld: 1. one year for welfare benefits = invalid 2. one year for subsidized medical care = invalid 3. one year to vote = invalid 4. one year for a divorce = valid 5. one year for reduced tuition at public universities = valid

Answer 133

Subject only to rational basis test

Answer 134

- Laws denying indigents access to the courts where some fundamental liberty interest is at stake have been invalidated - But courts have upheld fees where no fundamental liberty interest was at stake

Answer 135

1. the fee for a trial transcript, which was necessary for a convicted criminal to appeal 2. the filing fee required to initiate divorce proceedings 3. the fee charged for blood tests in paternity proceedings 4. the fee to prepare the appellate record in a termination of parental rights action

Answer 136

1. the fee for filing a bankruptcy petition | 2. the fee to secure review of eligibility for welfare benefits

Answer 137

- The Equal Protection Clause guarantees that similarly situated persons will be treated alike. - If a law purposely discriminates against a group, the law will be subject to the equal protection clause of the 14th Amendment or the due process clause of the 5th Amendment for the federal government (i.e., reverse incorporation). - If the law does not “purposely” discriminate, it will be subject to the rational basis test. - The level of scrutiny to apply will depend on what group is being singled out

Answer 138

1. suspect classes 2. quasi-suspect classes 3. all other classifications

Answer 139

- Discrimination in favor of or against suspect classes is subject to strict scrutiny and will rarely be upheld. - There are three suspect classes: 1. Race 2. National origin (ancestry) 3. Alienage (sometimes)

Answer 140

laws that treat documented residents (legal residents who are not U.S. citizens) differently than U.S. citizens are sometimes subject to strict scrutiny

Answer 141

Rational Basis Test only

Answer 142

get strict scrutiny EXCEPTIONS = state laws concerning self-government and the democratic process are subject to the Rational Basis Test

Answer 143

state laws requiring U.S. citizenship to practice law, become an engineer, receive welfare benefits, qualify for civil service jobs, or receive a notary public license

Answer 144

- Laws concerning voting, jury duty, elective office, police officers - Laws concerning public school teachers, probation officers

Answer 145

- Discrimination in favor of or against quasi-suspect classes is subject to intermediate scrutiny and will rarely be upheld - there are two quasi-suspect classes: 1. gender 2. non-marital children

Answer 146

- the government must show an “exceedingly persuasive justification” for laws that intentionally discriminate based on traditional stereotypes - But laws designed to remedy past discrimination against women (e.g., different methods used to calculate social security benefits or different periods for military promotions) are valid

Answer 147

A law that treats non-marital children (i.e., those born out of wedlock) differently than marital children is subject to intermediate scrutiny

Answer 148

a law that requires non-marital children to prove paternity before inheriting from their father is valid, because it treats some non-marital children (i.e., those that can prove paternity) the same as marital children

Answer 149

a law that prohibits all non-marital children from inheriting from their fathers, but allows all marital children to so inherit

Answer 150

- Except for classifications based on suspect or quasi-suspect classes, all other classifications are subject to the Rational Basis Test, and thus will generally be upheld - This includes classifications based on age, wealth, education, disabilities, etc. - Such classifications, however, must be based on “LEGITIMATE” government interests

Answer 151

The Court has held that irrational prejudice, societal fear, or the desire to harm a politically unpopular group is not a “legitimate” government interest. Examples = gay men, mentally retarded adults, children of illegal aliens, hippies

Answer 152

- Federal, state, and local governments usually have eminent domain power. - Governments may take private property for public use, but the private landowner is entitled to just compensation.

Answer 153

Real property, personal property, and intangibles may be the subject of a “taking.”

Answer 154

The Second Amendment guarantees the right to purchase, carry, and use typical weapons (e.g., handguns) for the purpose of self-defense

Answer 155

The Second Amendment does not guaranty the right to carry “dangerous or unusual weapons.”

Answer 156

Gun control laws are subject to at least intermediate scrutiny.

Answer 157

The Second Amendment’s right to keep and bear arms applies to state and local governments via the 14th Amendment.

Answer 158

1. Making any law abridging the freedom of speech or the press 2. Making any law abridging the freedom of religion (Free Exercise Clause) 3. Establishing a religion (Establishment Clause)

Answer 159

The restrictions apply to state and local governments via the 14th Amendment

Answer 160

- Key inquiry = does the law regulate the “content” of the speech or is it “content-neutral”? - If the law regulates the content of the speech, the law must satisfy STRICT scrutiny. - By contrast, content-neutral regulations are subject only to INTERMEDIATE scrutiny (i.e., narrowly tailored to a significant government interest)

Answer 161

no amplified music after 10:00 p.m. or no loud speakers

Answer 162

1. those that discriminate on the basis of subject matter (example = “all picketing is banned except for labor picketing”) 2. those that discriminate on the basis of viewpoint (example = “all picketing is banned except for pro-labor picketing”)

Answer 163

1. Clear and present danger 2. Threats and fighting words 3. Obscenity, pornography, and profanity 4. Defamation 5. Commercial speech = may be regulated or banned based on content (other than these categories, all other content-based regulations are subject to strict scrutiny)

Answer 164

speech may be banned where it 1. is directed (i.e., INTENDED) to produce or incite 2. IMMINENT lawless action, and 3. is LIKELY to produce or incite such action (however, most statutes attempting to ban such unprotected speech are unconstitutionally overbroad and/or vague)

Answer 165

statements meant to communicate an intent to place an individual or group in fear of bodily harm

Answer 166

speech that willfully threatens the life of the president or cross burning with the intent to intimidate

Answer 167

TRUE threats not protected by the First Amendment

Answer 168

speech personally directed to a specific listener or group that is likely to incite a physical retaliation

Answer 169

a direct personal insult or an invitation to exchange fisticuffs

Answer 170

- speech personally directed to a specific listener or group that is likely to incite a physical retaliation may be banned. - but for the past 50 years, all fighting words laws have been found to be either unconstitutionally vague (e.g., laws prohibiting “offensive, annoying, or abusive” language) OR not view-point neutral (laws prohibiting various types of hate speech)

Answer 171

Obscenity is defined as a depiction of sexual conduct that, taken as a whole, by an average adult, applying contemporary community (state or local) standards: 1. appeals to the prurient (i.e., shameful or morbid) interest in sex; 2. portrays sex in a patently offensive way that is specifically defined by state (or federal) law; AND 3. does not, taken as a whole, have serious literary, artistic, political, or scientific value, using a national reasonable person standard

Answer 172

- obscenity is not protected by the First Amendment - BUT the government may not ban material suitable for adults solely to protect children (e.g., banning “indecent” speech on the Internet to protect minors is invalid because it amounts to a total ban for adults) - private possession of obscenity is protected by the First Amendment (but private possession of child pornography is not)

Answer 173

- child pornography (even private possession) is not protected = material depicting sexual conduct involving actual minors may be completely banned, even if not “obscene” - adult pornography—as opposed to obscenity—is protected speech

Answer 174

- Adult book stores, adult theaters, and strip joints may be limited to a particular part of the city by zoning ordinances if - the law is designed to promote a legitimate local interest (e.g., protect residential character of neighborhood, avoid crime or parking problems) and - the law does not prohibit all such entertainment in the community (a zoning law may limit it to a very small part of the city)

Answer 175

Profane and indecent language is generally protected by the First Amendment. EXCEPTIONS = broadcast media (but not cable or the Internet) and public schools (K-12)

Answer 176

- Defamatory speech is not protected by the First Amendment - Laws punishing false statements that do not constitute defamation or commercial speech (e.g., wearing unauthorized military medals) are subject to strict scrutiny (because they are content-based) and will rarely be upheld

Answer 177

The media may not be subject to criminal OR civil liability for publishing truthful information about a public matter (e.g., rape victim’s name) that was either a. lawfully obtained (e.g., from court records) OR b. illegally obtained by someone other than the media

Answer 178

TRICK. NO ONE. Neither the public nor the press has a constitutional right a. to government information OR b. to attend federal government meetings, etc., EXCEPT for criminal trials (all important parts of a criminal trial must be open to the public and the press)

Answer 179

- False, misleading, and deceptive commercial speech, as well as the advertisement of illegal activities, may be banned - All other commercial speech is protected by the First Amendment and may be regulated only if the government satisfies a test similar to Intermediate Scrutiny = AKA the government shows that the law directly advances a SUBSTANTIAL INTEREST and is no more extensive than NECESSARY

Answer 180

1. total or near total bans on the advertisement of legal products or services, such as abortions, contraceptives, prescription drug prices, alcohol prices, alcohol content 2. laws banning news racks for “commercial” publications, but allowing news racks for newspapers 3. laws banning tobacco ads within 1000 feet of schools 4. laws banning “for sale” signs on real estate 5. laws banning in-person solicitation by accountants

Answer 181

Under this rule, a state may ban attorney in-person solicitation of fee-paying clients and contact with accident victims within 30 days of an accident.

Answer 182

If a question involves a person or group wishing to use government property for speech, one must determine what type of property is at issue, as that will determine the test to apply.

Answer 183

These include major sidewalks, streets, and parks

Answer 184

For the government to regulate speech in such public forums, the regulation must be 1. content-neutral, 2. a reasonable time, place and manner restriction, 3. narrowly tailored to serve a significant (or substantial) government interest, AND 4. must leave open alternative channels of communication (The government is NOT required to use the least restrictive means of accomplishing its goals)

Answer 185

In a public forum, content-based restrictions on speech must survive strict scrutiny

Answer 186

These are non-public forums that the government has opened by policy or practice to speech

Answer 187

Designated public forums are subject to the same rules as public forums BUT the government may close the property entirely at any point

Answer 188

if a high school opens its classroom after hours to community groups, it must allow access to all groups, including religious groups (i.e., it must be content-neutral)

Answer 189

- All other government property is non-public. - The government may regulate speech in non-public forums if the regulation is 1. viewpoint neutral, AND 2. reasonably related to a legitimate government purpose

Answer 190

1. military bases 2. schools 3. government workplaces 4. courthouses (and grounds) 5. prisons and jails (and grounds) 6. post office sidewalks 7. street signs, etc. (no right to post signs) 8. airport terminals 9. political debates on public television 10. ad space on city buses 11. government radio stations 12. polling places on election day

Answer 191

A limited public forum arises when the government opens a non-public forum but limits the expressive activity to certain groups or to certain subjects

Answer 192

state university meeting facilities available for student groups or open school board meetings

Answer 193

Limited public forums are subject to the same test as non-public forums

Answer 194

1. Public schools (K-12) 2. Government workplace 3. Prisons

Answer 195

- Public school students do not lose all free-speech rights at school - However, school officials may ban student speech that they reasonably forecast will cause a substantial disruption to school activities - School officials must have a specific, articulable reason for forecasting the disruption; they cannot rely on undifferentiated fear or apprehension of disturbance

Answer 196

- School officials may also ban speech that is vulgar or lewd or speech that promotes (explicitly or implicitly) the illegal use of drugs. - School officials may also control school-sponsored speech (e.g., school newspaper) if the control reasonably relates to a legitimate pedagogical concern

Answer 197

If the speech is made pursuant to an employee’s official duties, a government employer may punish the employee for such speech, even if it involves a matter of public concern

Answer 198

If the speech is not made pursuant to the employee’s official duties, the following tests apply: 1. If the speech does not involve a matter of public concern, the government may punish the employee if the speech was disruptive to the work environment. 2. If the speech involves a matter of public concern, the court will balance the employee’s right as a citizen to comment on a matter of public concern against the government’s interest in efficient performance of public service.

Answer 199

petition circulated intra-office regarding the employer’s transfer policies

Answer 200

letter to the media attacking superintendent’s proposals to raise revenue

Answer 201

- Speech may be regulated in prisons if reasonably related to legitimate penological interests - A restriction on incoming mail will be upheld if it is rational; a restriction on outgoing mail must be narrowly tailored.

Answer 202

The government may regulate symbolic speech if 1. the regulation furthers an important government interest 2. that is unrelated to the suppression of speech, and 3. the burden on speech is no greater than necessary

Answer 203

Under this test, the Supreme Court has upheld regulation of the following conduct: - draft-card burning, - public nudity, - nude dancing, - littering, - overnight sleeping in public parks

Answer 204

However, the Court has invalidated regulation of inherently expressive conduct, such as flag burning, cross burning (unless done with the intent to intimidate others), swastika painting, and the wearing of black armbands by students

Answer 205

- Prior restraints on speech are presumptively void - 3 types of prior restraints 1. Judicial orders prohibiting speech 2. Licensing and permit schemes 3. Physical seizure or prohibition

Answer 206

For a court to enter an injunction or other order prohibiting speech, such as a gag order on the press, the court must satisfy Strict Scrutiny, which it will rarely be able to do

Answer 207

According to the Collateral Bar Rule, a person must comply with a court injunction even if it is unconstitutional. Failure to do so will result in contempt

Answer 208

A prior restraint is permissible when 1. the parties have contractually agreed to the restraint (EXAMPLE = court enforced agent’s agreement to give CIA prepublication review of any proposed publications) or 2. in case of national security (EXAMPLE = First Amendment would not bar injunction against publishing the date of sailing for troop ships in time of war)

Answer 209

If there is an ordinance or other law requiring a person to obtain a permit or license to speak, march, etc., such system must provide 1. definite standards for the granting of the license or permit; 2. no discretion in the granting official (including discretion to charge different amounts); 3. prompt issuance; and 4. prompt judicial review

Answer 210

If a licensing scheme is procedurally improper, the speaker may ignore the scheme and raise a First Amendment challenge in later proceedings

Answer 211

If the scheme is facially proper, the speaker must follow these procedures or he or she will be barred from raising First Amendment issues in a later prosecution

Answer 212

The government physically seizes the means of speech (e.g., printing press, film, computer) or prohibits certain types of speech from using the postal system

Answer 213

1. Taxing and regulating the press 2. Freedom of association 3. Political contributions 4. Loyalty oaths 5. Group membership 6. Government funding of speech 7. Overbroad and vague 8. Right not to speak 9. Intellectual property

Answer 214

The press (and other media) are subject to general business regulations and taxes, but may not be singled out for special regulations or taxes

Answer 215

There is no “reporter’s privilege” under federal law; thus, reporters may be forced to divulge their sources at grand jury proceedings and trials

Answer 216

- There is an implied freedom of association in the First Amendment, which prohibits regulation (including anti-discrimination laws) of intimate, private groups and clubs, but not large clubs with unselective membership or that are used for business contacts - Also, expressive groups (Boy Scouts) can have exclusive membership, even if the group was not formed for the sole purpose of propagating a particular message

Answer 217

- The government may limit the amount a person may give to a particular candidate, but may not limit the amount a person or group may spend on an election or referendum - The government also may not limit the amount a person spends on his or her own campaign - But the government may ban personal solicitation of funds by judicial candidates

Answer 218

- The government may require a person to swear to support the constitutions (state and federal) or swear to oppose unlawful attempts to overthrow the government to obtain government employment or become a member of the bar - Persons may not be required to “support the flag” or swear not to “advocate” an overthrow of the government as an abstract idea

Answer 219

- A person may not be punished or precluded from public employment, etc. because of membership in an organization (e.g., the communist party), unless that person was a knowing and active member with the specific intent to further the organization’s unlawful aims - Laws that require groups to disclose membership are subject to strict scrutiny.

Answer 220

- Government funding may be content-based, as long as it is view-point neutral (e.g., the government may choose artists, etc. to which to give grants) - But if a college gives financial support to student groups, it may not exclude religious groups - The First Amendment is violated when money is taken from nonconsenting government employees for a public-sector union; employees must choose to support the union before anything is taken from them

Answer 221

- Laws that are vague or overbroad are not enforceable, and may be facially challenged (even by those whose speech would not be protected) - A vague or overbroad state statute may be saved if the courts of that state have limited its application to unprotected speech

Answer 222

A law is overbroad if it prohibits substantially more speech than required (e.g., “all live entertainment”)

Answer 223

A law is vague if a reasonable person would not know what speech is prohibited (e.g., “all First Amendment activities”).

Answer 224

The First Amendment protects a person’s right not to speak

Answer 225

1. a person may tape over the statement “Live Free or Die” on license plates 2. a person may not be forced to salute or pledge to the flag 3. a clinic may not be forced to give patients a government-drafted notice about the availability of abortion and contraception); moreover, a person has the right to speak anonymously

Answer 226

- The First Amendment does not protect the publication of a. a private performance (without the consent of the performer) or b. the republication of copyrighted material (without the consent of the author) - In addition, the government’s denial of a trademark application on grounds that the trademark is “derogatory” is an unconstitutional suppression of free speech

Answer 227

- The First Amendment prohibits Congress from passing any law abridging the freedom of religion - The 14th Amendment incorporates this clause, thus making it applicable to state and local governments - “Religion” includes any sincerely held religious-like beliefs.

Answer 228

- The free exercise clause may not be used to challenge a neutrally applied law of general applicability (e.g., criminal laws or tax laws). - If, however, the purpose of a law is to single out religion for adverse treatment or to hinder or discriminate against a particular religion, that law will be subject to strict scrutiny (e.g., the Court invalidated a law banning animal sacrifice that was motivated to exclude a religious sect from the city).

Answer 229

1. A person who quits a job or fails to take a job because of sincerely held religious beliefs may not be denied unemployment benefits (e.g., refusing to work on Sabbath, refusing to produce armaments); a person can, however, be denied such benefits if he or she is fired for a violation of the criminal laws (e.g., peyote use). 2. Religious oaths may not be required for government employment. 3. Amish children are exempt from mandatory secondary education. 4. Religious organizations are exempt from employment discrimination suits brought by ministers and other ministerial employees. 5. A state may not ban religious groups from receiving government benefits (e.g., a state program to provide free playground materials must provide such materials to eligible religious and nonreligious organizations).

Answer 230

Congress shall make no law respecting the establishment of religion

Answer 231

The 14th Amendment incorporates this clause, thus making it applicable to state and local governments

Answer 232

AKA the lemon test to be valid: 1. The law’s primary purpose must be secular 2. The effect of the law must not be to advance or inhibit religion (in other words, the government must not symbolically endorse religion) 3. There must not be excessive government entanglement with religion

Answer 233

Government sponsored religious activities in public schools (elementary, middle, and high school) are unconstitutional 1. all school prayer (including voluntary, silent, and student-run) during school, at graduation, or at sporting events is unconstitutional 2. bible reading and the teaching of creationism (or the prohibition of teaching evolution) is unconstitutional, but the academic study of religion is constitutional 3. posting the Ten Commandments in public schools is unconstitutional 4. but schools may allow students to leave early to attend religious instruction off-campus

Answer 234

as a general rule, government programs providing assistance to all elementary and secondary school students—including students at religious schools—is constitutional, but there are a few exceptions

Answer 235

1. free secular textbooks 2. reimbursement for transportation to and from school; public health services 3. reimbursement for diagnostic and state-prepared tests 4. sign-language interpreters 5. remedial education, guidance counseling

Answer 236

1. transportation for field trips 2. payment of teachers’ salaries 3. reimbursement for teacher-prepared tests

Answer 237

- Direct subsidies to religious schools are impermissible, but vouchers to parents, which may be used for religious and non-religious schools, are constitutional - In addition, tax deductions and credits for tuition, school supplies, etc. are valid if they are available to the parents of all students

Answer 238

1. Holiday scenes are permissible if they include both religious and non-religious symbols (e.g., a snowman) 2. The 10 Commandments may not be displayed on government property, unless they are displayed with other historical documents (e.g., Magna Carta, Declaration of Independence) in an appropriate context 3. Government action that prefers one religious sect over another violates the Establishment Clause (e.g., a law creating a public school for Jewish students is unconstitutional) 4. State legislatures and town councils may have a chaplain for historical reasons

Answer 239

``` #1 = Has there been a “taking” of property? #2 = If there has been a taking, was it for a “public use”? #3 = If there has been a “taking” for a “public use,” the government must pay “just compensation.” ```

Answer 240

A. Has there been a permanent, physical invasion of property (per se taking)? - - Gov invades, condemns, destroys (floods) or confiscates private property; or - - Gov orders private landowner to permit public or third-party access B. If not, has a gov regulation diminished the use and/or value of private property? - - All economically viable use = per se taking (unless the regulation was designed to suppress a common law nuisance) - - Otherwise, Ad Hoc Balancing Test a. character of the gov action b. protection of reasonable, investment-backed expectations c. economic impact of the regulation on the particular owner C. If not, has the government conditioned a building or construction permit or zoning variance or petition on the owner’s agreement to grant an easement to the government or the public or to set aside land for public or third party use or to make a monetary exaction? -- Test: Is there an a. ESSENTIAL NEXUS btwn the condition and a LEGIT GOV INTEREST and b. is the condition “ROUGHLY PROPORTIONAL” to the projected impact of the owner’s development? (If not, it is a taking.)

Answer 241

``` #2. If there has been a taking, was it for a “public use”? - Answer: Yes ```

Answer 242

#3. If there has been a “taking” for a “public use,” the government must pay “just compensation.” - The government must pay FMV = the loss to the owner, not the gain to the taker - The landowner is not entitled to damages for loss of business or “good will” or for moving expenses

Answer 243

QUESTION ONE = At what point in time is the speech being regulated? QUESTION TWO = What is being regulated? QUESTION THREE = What property does the speaker intend to use for speech?

Answer 244

Q1 = At what point in time is the speech being regulated? A. The government is trying to prevent the speech from occurring (e.g., a license to speak or gag order on the press). If so, see the Prior Restraint materials. B. The regulation punishes speech after it occurs. If so, move to Q2.

Answer 245

Q2 = What is being regulated? A. Pure Speech (e.g., oral or written language). If so, move to Q3. B. Conduct/Symbolic Speech (e.g., burning draft cards or burning flags). If so, go to Regulating Conduct materials.

Answer 246

Q3 = What property does the speaker intend to use for speech? A. His or her own private property (or other private property with permission). If so, go to Content-based v. Content-neutral materials. B. The government’s property. If so, go to Government Property materials. C. Private property belonging to someone other than the speaker who objects to such use. There is no right to use another’s private property (including his or her mailbox) for speech.

Answer 247

the constitution

Answer 248

to interpret the constitution

Answer 249

= final and binding a. of the U.S. Constitution b. of federal law c. not of state constitutions

Answer 250

1. Original jurisdiction | 2. Appellate jurisdiction

Answer 251

= a case that is heard by the SC before it’s been decided by any other ct

Answer 252

constitution says SC has original jurisdiction in all cases 1. Affecting ambassadors, other public ministers and consuls 2. Those in which a state shall be a party

Answer 253

Congress can’t expand or reduce SC’s original jurisdiction BUT can grant concurrent jurisdiction to lower federal courts to hear such cases EXCEPTION = in suits btwn 2+ states, SC’s original jurisdiction is exclusive

Answer 254

in suits btwn 2+ states

Answer 255

``` = jurisdiction to review a lower court’s decision AKA another (state or fed) tribunal has already ruled on this controversy ```

Answer 256

almost entirely discretionary (but mandatory for injunctive relief by federal 4 judge-panel or something)

Answer 257

= writ of cert may be granted upon approval of 4 justices

Answer 258

= fed cts should avoid deciding constitutional issues needlessly

Answer 259

= even if a case involves an issue within the jurisdiction of fed cts, a fed ct won’t hear the dispute unless it’s in the appropriate posture

Answer 260

justiciability determinations are made at each level in fed cts

Answer 261

1. Advisory opinions 2. Standing 3. Ripeness 4. Mootness 5. Political questions 6. Adequate and independent state grounds

Answer 262

Article III limits the jurisdiction of federal courts to “cases” or “controversies”

Answer 263

1. Classic advisory opinions | 2. Non-final opinions

Answer 264

``` = situations in which someone (often member of exec or legis branch) is seeking opinion about the validity/constitutionality of a law or gov action before it’s enacted or enforced ```

Answer 265

= opinions by fed cts that may be reversed or modified by the exec or legis branch (or really anyone other than a higher ct)

Answer 266

1. Injury in fact 2. Causation 3. Redressability

Answer 267

= P has suffered a 1. CONCRETE, PARTICULARIZED injury 2. that has ACTUALLY OCCURRED or is IMMINENT

Answer 268

ideally P can show either • physical injury or • property damage or • economic loss

Answer 269

= injury must be FAIRLY TRACEABLE to D

Answer 270

= a favorable decision on the merits to P will fix the injury

Answer 271

1. Citizen standing 2. Taxpayer standing 3. 3P standing 4. Legislators’ standing

Answer 272

= Citizenship alone is insufficient to confer standing

Answer 273

1. Federal taxpayers don’t have standing to challenge federal spending measure UNLESS - congress confers such standing OR - the measure was enacted under congress's taxing and spending power AND exceeds a specific limitation on that power (so far only establishment clause) 2. State taxpayers don’t have standing in federal court to challenge state expenditures 3. Municipal taxpayers probably have standing in fed ct to challenge municipal expenditures

Answer 274

generally = P may assert only injuries that she suffered and not injuries suffered by others 4 exceptions 1. Associational standing 2. Jus tertii standing 3. Special relationship 4. First amendment challenge

Answer 275

= associations may assert claims on behalf of their members AS LONG AS 1. at least 1 MEMBER has Article III STANDING AND 2. claim is RELATED to association’s MISSION

Answer 276

= P has standing to assert 3P’s if there is 1. an IMPEDIMENT to the real P brining suit on her own behalf AND 2. a NEXUS btwn the real P and the 3P

Answer 277

- doctors asserting rights of patients | - litigants asserting rights or jurors

Answer 278

rule = there is a SPECIAL RELATIONSHIP btwn P and 3P key example = parent-child

Answer 279

P has standing to assert a First Amendment “facial challenge” to an overbroad law

Answer 280

= legislators don’t have standing to challenge legislation with which they disagree solely based on an INSTITUTIONAL injury to all members of congress equally (obviously unless they have sufficient personal stake and concrete injury)

Answer 281

= case is brought TOO EARLY | P doesn’t have standing yet

Answer 282

In cases where P is challenging a criminal statute or admin regulation before it’s been enforced or imminently threatened to be enforced against her

Answer 283

= case is brought TOO EARLY (P had standing but lost it)

Answer 284

If D voluntarily ceases whatever action’s at issue, case will ONLY be moot if there’s NO REASONABLE EXPECTATION that alleged violation will recur

Answer 285

1. Capable of repetition in this P yet evading review 2. Collateral consequences 3. Class actions

Answer 286

= issues with such inherently short durations that they would never receive full judicial review before becoming moot will not make a case moot

Answer 287

- Issues involving pregnancy (like abortion) | - Ballot restriction measures in elections

Answer 288

Discrimination against a law school in which P was admitted to (and was schedule to graduate from) the law school while the case was pending

Answer 289

collateral consequences (like damages) that have yet to be determined will not make a case moot

Answer 290

after a class has been certified, the named plaintiff’s claim being moot will not make a case moot AS LONG AS the other members’ claims are still viable

Answer 291

1. Those textually committed to another branch by the constitution 2. Those for which there are no judicially manageable standards

Answer 292

1. Impeachment process 2. Congress’ power to judge the age/residency/citizenship qualifications of its members 3. Congress’ power to expel a member

Answer 293

1. Constitutional amendment process 2. Partisan gerrymander 3. Disputes within political parties 4. Guaranty clause cases (EX = what is a republican form of gov?) 5. Administration of foreign affairs (EX = prez’s pwr to unilaterally terminate treaty) 6. President’s authority to deploy military forces w/o congressional declaration of war

Answer 294

SC won’t exercise appellate jurisdiction over case arising out of highest state court if the state ct’s EXPRESSLY stated its decision rests on an ADEQUATE and INDEPENDENT state ground

Answer 295

To determine if adequate and independent state grounds exist, ask: Can the US SC change the result of the case by reversing on the federal issue? - YES = justiciable, SC can hear the appeal - NO = nonjusticiable, SC can’t hear the appeal

Conlaw Flashcards

(319 cards)