Constitutional Law Flashcards
(156 cards)
1
Q
What are the requirements for cases and controversies, aka the four justiciability doctrines?
A
- Standing
- Ripeness
- Mootness
- Political question doctrine
Note: federal courts cannot render advisory opinions. As such, they will not hear collusive actions (interested parties on the same side). State courts, however, can.
2
Q
What are the four requirements of standing?
A
- Injury (has been/imminently will be)
- Causation and redressability (D caused, and favorable court decision could remedy)
- No third party standing (subject to exceptions)
- No generalized grievances (can’t just be taxpayer or citizen)
3
Q
Describe the injury requirement within standing
A
P can only assert injuries they personally have suffered.
4
Q
Describe the injury requirement for plaintiffs seeking injunctive or declaratory relief
A
Must show likelihood of future personal harm
5
Q
In choice between plaintiffs with potential standing, which one will probably have the best standing?
A
If more than one where P personally suffered, look for the one with P suffering economic loss (dollars and cents)
6
Q
What is required to show causation/redressability requirement under standing?
A
P must allege and prove that D caused injury such that favorable court decision could remedy injury
7
Q
What are third party standing exceptions (for standing)
A
Usually, P cannot assert the claims of others.
Exceptions:
1. Sufficiently close relationship between P and 3d party (such that P can be trusted to adequately represent P interests)
Ex. Doctor-patient
Not noncustodial dad
- If injured third party is unlikely to be able to assert their own rights
(can’t come to court) - Associational standing. An organization may sue for its members if:
(a) individual members would have standing,
(b) interests are germane to organizational purpose, AND
(c) neither the claim nor relief requested requires participation of individual members
8
Q
What is the narrow exception to the prohibition against generalized grievances, for purposes of standing?
A
Very narrow exception is that taxpayers have standing to challenge government EXPENDITURES pursuant to federal (or state and local) STATUTES as violating the Establishment Clause of the 1st Amendment.
What won’t fit:
- Government grants of property
- Expenditures from executive action
- Tax credits benefiting religion
9
Q
What does ripeness requirement mean for standing
A
Question of whether federal court may grant pre-enforcement review of the statute or regulation?
If there is a hardship that will be suffered without pre-enforcement review, then ripeness.
Court looks at fitness of the issues and the record for judicial review (would there be a better reason to wait until prosecution?)
Ex. If a new law was passed but won’t go into effect/create harms for two years, probably premature.
10
Q
What is the mootness requirement for standing?
A
If events after the filing of the lawsuit end the plaintiff’s injury, then the case must be dismissed as moot.
Live and ongoing injury.
11
Q
What are the exceptions to the mootness requirement for standing?
A
- Wrong capable of repetition but evading review (Roe)
- Voluntary cessation (D voluntarily halts but is legally free to resume at any time)
- Class action suits (if named plaintiff case becomes moot, OK as long as another member has ongoing interest)
12
Q
What is the political question doctrine, and what are four major areas that are non-justiciable?
A
Allegations of constitutional violations that federal courts will not adjudicate, left to elected branches.
Non-justiciable:
- “Republican form of government clause”
- Challenges to presidential conduct in foreign policy
- Challenges to impeachment and removal process
- Challenges to partisan gerrymandering
13
Q
What is the final judgment rule?
A
SCOTUS generally may only hear cases after there has been a final judgment of the highest state court/US Ct. App., or 3-judge federal district court.
14
Q
What if there are two grounds in an opinion, one state and one federal. OK for SCOTUS to take.
A
Not if there is an independent and adequate state law ground of the decision.
Ex. if the state court holds the law invalid on state, rather than federal, constitutional grounds
Note: SCOTUS will refuse to hear only if the ground is ADEQUATE to support the decision. The court will hear it if review may have an outcome on the case regardless of the state court’s decision on the state constitutional issue.
SCOTUS will refuse
15
Q
What does the 11th Amdt say?
A
Bars suits against states in federal courts
16
Q
What is sovereign immunity?
A
Bars suits against state governments in state courts or federal agencies.
17
Q
What are exceptions to sovereign immunity, such that states may be sued?
A
- Waiver explicit/expressly permitted by state
- If claim is under 14th Amdt, Sec 5 - Congress strips state of its 11th Amdt immunity (Enabling Clause): when it has been found that there is a violation of civil right or fundamental right
- Fed govt is suing state govt
- Bankruptcy proceedings
- Sue a state official
- State sue another state
18
Q
When may a suit be brought against state officers?
A
- For injunctive relief
- For money damages out of state officers’ own pockets (personal liability
Note: state officers may not be sued if state treasury will be paying retroactive damages
19
Q
What is the doctrine of abstention, and how does it affect sovereign immunity?
A
Federal court may not enjoin a pending state court proceeding.
Exception: A federal court will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith, e.g. merely to harass the defendant.
20
Q
What are some exceptions to the general rule that there is no general federal police power?
A
General rule: Congress does not have the power to LEGISLATE for the general welfare; there is no federal police power (they can only spend for the general welfare).
MILD. Military Indian Federal lands and territories DC
21
Q
What does the necessary and proper clause provide
A
Congress may use any means not prohibited by the constitution to carry out the constitution.
Ex. A tax, even though enacted for a regulatory rather than a revenue-raising purpose, can be upheld as a “necessary and proper” exercise of Congress’s power to tax under Article I, Section 8, Clause 1. This will be especially true if the revenues derived from the measure are used to cover the expenses associated with the federal regulatory scheme.
22
Q
What is the taxing/spending power?
A
Congress may tax and spend for the general welfare, by creating a taxing or spending program
23
Q
What is the commerce clause?
A
- Congress may regulate channels of interstate commerce (places where commerce occurs)
- Congress may regulate the instrumentalities of interstate commerce and persons/things in interstate commerce (things that facilitate commerce - internet and trucks)
- Congress may regulate economic activities that have a substantial effect on interstate commerce
Ex. transportation, the internet, transmissions across state lines (gas, electricity)
Note: could be interpreted as extending to commerce with outer space should the occasion arise.
Note: the Commerce power does not override independent constitutional restrictions. It cannot be used to abrogate freedom of speech or discriminate in favor of religious groups. An exercise of the commerce power generally is subject to all limitations placed on government by the Constitution.
Note: Congress also has Admiralty Power, power over all navigable waters.
Note: Congress can delegate its powers to the state (consenting to non-uniform reg by states)
24
Q
What activities will be deemed to have a “substantial effect” on interstate commerce, for the purposes of the commerce clause?
A
In areas of non-economic activity, substantial effect cannot be based on cumulative impact. Need a factual finding by Congress (stricter than rational basis)
However, if there is economic impact, can look cumulatively. Then, you only need rational basis.
Five justices have said that Congress cannot regulate inactivity (e.g. individual mandate - those who don’t act to get care).
25
What does the 10th Amdt do to congressional powers?
It's a limit on congressional federal powers. It says that all powers that aren't granted to the US, nor prohibited to the states, are reserved to the states or people. Language like "integral government function." You can't have federal gov't commandeering state powers.
Congress cannot compel state regulatory or legislative activity.
Note: They can put strings on funding, so long as they
(1) are clearly stated,
(2) relate to the purpose of the spending program and
(3) are not unduly coercive
Congress MAY prohibit harmful commercial activity by state governments
Note: 10th Amdt. is NO LONGER USED by the courts as a limit on congressional action that applies to both the public and private sectors. That is now enforced by the political process. It's a very weak limitation.
26
What does the 14th Amdt Sec 5 hold?
Congress may not create new rights or expand the scope of rights. They can only prevent or remedy violations of rights recognized by courts, and those must be "proportionate" and "congruent" to remedying rights.
27
What are the limitations on Congress' ability to delegate legislative power?
Technically under non-delegation clause, but has never been declared unlawful.
28
What are legislative and line-item vetoes, and what are their rules?
Legislative vetoes and line-item vetoes are unconstitutional.
For congress to act, need bicameralism (H/S) and presentment (POTUS to sign or veto). POTUS must then sign or veto a bill in its entirety.
Line item veto - president attempts to veto part of the bill while signing onto the rest of the law
29
What's the deal with congress using executive power?
Congress may not delegate executive power to itself or its officers
30
What is the federal executive power over treaties?
Agreements between the US and foreign country that are negotiated by POTUS are effective when ratified by the senate. Note that POTUS doesn't need congressional approval to terminate a treaty, however.
If a treaty conflicts with a federal statute, last in time controls.
If a treaty conflicts with constitution, it's invalid.
31
What are presidential powers re executive agreements?
An executive agreement is an agreement between US and foreign country that is effective when signed by POTUS and the head of the foreign nation.
No senate approval needed. Can be used for any purpose. ANything that can be done by treaty can be done by executive action.
Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the USC.
32
What is a limit on the federal executive recognition poewr?
Congress cannot statutorily designate the capitol of a foreign country
33
What are federal executive powers w/r/t sending troops abroad?
President has broad power as Commander-in-Chief to use American troops in foreign countries. This is a broad political power. Never has the president been deemed unconstitutional for using troops abroad.
34
What is the appointment power, and who holds it?
POTUS holds appointment and removal power.
POTUS appoints ambassadors, federal judges, officers of the US. President can't make recess appointments during intrasession (within session) recess less than 10 days
Congress
1. Congress may vest the appointment of inferior officers in the president, heads of department, or lower federal courts (inferior if can be fired by a senior officer)
2. Congress cannot give itself or its officers the appointment power.
35
What is the removal power, and who holds it?
Unless removal is limited by statute, president may fire any executive branch official.
For Congress to limit removal, it must be an officer where independence from the president is desirable AND Congress cannot prohibit removal (it can limit removal to good cause)
36
What is impeachment and removal of federal officials?
POTUS, VP, federal judges, officers of US can be impeached and removed from the office for treason, bribery, high crimes and misdemeanors.
Impeachment doesn't remove someone from office. Impeachment by house requires majority, conviction requires 2/3 (that brings removal).
37
What are presidential immunities re civil suits during office?
President has absolute immunity to civil suits for money damages for actions that occurred prior to taking office.
However, the president does not have immunity for actions that occurred prior to taking office.
38
What are the executive privileges re: presidential papers and conversations?
POTUS has that executive privilege, but that privilege yields to other important governmental interests.
39
What is the presidential pardon power (Art. II, Sec. 2)
President has power to pardon those accused of or convicted of federal crimes. This is an exclusive power, not subject to control by Congress, and includes the power to commute a sentence on any condition the president chooses (so long as the conditions do not offend some other constitutional provision).
Exception: can't pardon someone impeached by the House of Reps.
Can never pardon as to state criminal or civil liability.
40
What is preemption, a federalism principle?
Supremacy Clause of Article VI provides that USC, laws and treaties made pursuant to it, are the supreme law of the land. Thus, between federal and state law, state law will be deemed preempted and fed law wins out.
SC prevents state control over the federal govt even if they interfere with integral state gov't functions.
Field preemption occurs when Congress shows an intent to occupy an entire field, thus precluding state regulation (may be express or implied).
Note: if the laws regulate the same subject matter, but have different purposes, there won't necessarily be preemption. And states can pass stricter regulations than the federal scheme.
41
What is express preemption?
If federal statute explicitly says that federal law is exclusive in a field, then there is express preemption.
42
What is implied preemption?
The statute is silent.
Preemption if:
1. Federal and state laws are mutually exclusive (can't comply with both at the same time)
2. State law impedes achievement of federal objective, OR
3. Congress evidences a clear intent to preempt state law
Tip: states can set laws that are stricter than federal law, unless they are prohibited explicitly by Congress
43
What is the doctrine of inter-governmental immunity?
State may not tax or regulate federal gov't activity, unless Congress consents to the regulation. The general principles of intergovernmental immunity also prevent federal interference with state governmental functions (fed and state - keep to your own)
It is unconstitutional to pay a state tax out of the federal treasury.
States cannot regulate the federal government if it imposes a substantial burden on federal activity
44
What is the dormant commerce clause?
The dormant commerce clause (also known as the "negative implications of the commerce clause") = state or local law is unconstitutional if it places an undue burden on interstate commerce.
- The actor will be a local or state government.
45
What is the Privileges and Immunities clause of Article 4?
No state may deny citizens of other states the privileges and immunities its own citizens get.
Anti-discrimination, can't harm out-of-staters (individual citizens)
46
What is the Privilege and Immunities clause of the 14th Amdt?
No state can a deprive a US citizen of their own privileges or immunities (the right to travel, right to interstate migration)
47
What is the correct inquiry regarding the Dormant Commerce Clause?
1. Does the state law discriminate against out-of-staters?
2. If it does NOT discriminate, PI Art 4 doesn't apply. If it burdens interstate commerce, it violates DCC if its burdens on interstate commerce exceed the benefits.
3. If it DOES discriminate, violates DCC (and PI Art 4 applies) unless it is necessary to achieve an important govt purpose (presumptively violative), and no less discriminatory alternative to accomplish objective.
48
When may a law that would otherwise violate the dormant commerce clause still be OK?
1. Congressional approval
2. Market participant exception (state govt can give better benefits to in-staters for govt programs or in govt owned businesses) - applies only to DCC, not to PI Art 4.
The market participant exception - Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (buying or selling products, hiring labor, giving subsidies, etc.) If a pricing scheme involves the sale of goods, the state can constitutionally charge whatever prices it desires, even if it discriminates against out-of-staters.
49
When will PI Article 4 strike down a local/state law?
If law discriminates against out-of-staters with regards to fundamental rights, or ability to earn livelihood, it violates PI under Art 4 unless it is necessary to achieve an important gov't purpose.
50
Who cannot use the Privileges and Immunities clause?
Only citizens. Only citizens can sue under the PI clause. If corporation or alien, only DCC is available.
51
When may states tax interstate commerce?
1. States cannot use their tax system to help in-state business
2. State may only tax activities if there is a substantial nexus to the state.
3. State taxation of interstate businesses must be fairly apportioned.
52
What is the full faith and credit clause (Art. 4, Sec 1)
Each state shall give full faith and credit t to the judgments of courts in another state, so long as:
1. Court that rendered judgment had PJ over the parties and SMJ
2. Judgment was on the merits
3. Judgment was final
Doesn't apply to federal governments.
53
What is the "government action" requirement for enforcement of constitutional protections of individual liberties?
Private conduct need not comply with USC. Constitution only applies with USC.
Government at all levels, as well as officers. Private conduct doesn't apply.
54
When can constitutional norms be used to regulate private conduct?
Generally they cannot.
Congress by statute may apply constitutional norms to private conduct (e.g. 13th Amdt - no slavery).
Commerce power can be used to apply constitutional norms to private conduct (cumulative impact).
55
When may private conduct be forced to comply with the Constitution (even if it isn't through commerce power or congressional statute)?
1. Public functions exception (private entity performing activity that historically has been done exclusively by state gov't, i.e. own a town, NOT run utility company)
2. Entanglement exception (if gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity, the gov't must either stop or comply with USC).
Ex. state provides books to school, state leases premises to business, private entity regulates interscholastic sports, profit sharing plus other factors
NOT when govt subsidy to school, not when NCAA orders suspension at state university, not when private club with liquor license from state discriminations, not when state contracts w/ private company to run their lottery even though they manage them closely
56
To whom does the Bill of Rights apply?
Only applies directly to the federal government.
It is applied to the state and local governments through its incorporation of the due process clause of the 14th Amdt.
In The Slaughterhouse Cases, the Supreme Court held that rights of national citizenship do not include the Bill of Rights, although rights under the Bill of Rights may be held applicable to the states as incidents of due process.
EXCEPTIONS, NOT INCORPORATED:
3d Amdt right not to have soldier quartered in a person's home
5th Amdt right to grand jury indictment in criminal cases
7th Amdt right to jury trial in civil cases
8th Amdt right against excessive fines (though excessive bail provision applies to states)
57
What are the three levels of scrutiny for analyzing a constitutional claim
Rational basis, intermediate scrutiny, strict scrutiny
58
What is the rational basis test?
TEST: Rationally related to a legitimate, conceivable government purpose
Note:
1. No least restrictive analysis
2. Doesn't need to be actual purpose
3. Burden of proof on challenger
4. Govt usually wins
Types:
1. Alienage classifications re self gov't and democratic process
2. Congressional regulation of aliens
3. Age
4. Disability
5. Wealth and econ regs
6. all others
59
What is the intermediate scrutiny test?
TEST: Narrowly tailored to important actual purpose
Note:
1. No least restrictive analysis
2. Important actual purpose, more than just legitimate; can't sub in conceivable purpose
3. Burden of proof: gov't
Types:
1. Gender
2. Illegitimacy
3. Undocumented kids
60
What is the strict scrutiny test?
TEST: Necessary to achieve a compelling government purpose
Note:
1. Means must be narrowly tailored
2. Least restrictive analysis
3. Compelling actual purpose, more than legitimate or important
4. Burden of proof on gov't
Types:
1. Race
2. National origin
3. Alienage (generally) (when states discriminate)
61
What is procedural due process?
Has there been a deprivation of life, liberty, or property?
Procedural safeguards of notice and hearing are available whenever there is a serious deprivation of any life, liberty, or property interest.
62
What does a "deprivation of liberty" mean for purposes of PDP?
A deprivation of liberty occurs if a person
(i) loses significant freedom of action; or
(ii) is denied a freedom provided by the Constitution or a statute.
NO:
- Damage to one’s reputation generally does not involve a loss of significant freedom of action or of a freedom provided by law. Therefore, it generally does not constitute a deprivation of liberty. (However, it can, if the damage is so severe that employment or associational opportunities are lost.)
- Prisoners rarely have
YES: [someone's constitutional right]
- Government acts that cause denial of the right to engage in gainful employment
- Loss of a freedom provided by the Constitution,
- Denial of the right to vote
- Right to contract
- Need pre-suspension of drivers license hearing, unless prior evidentiary hearing has occurred (note: a prior conviction constitutes sufficient evidence of this)
Ex. Except in emergency, before adult can be institutionalized, need notice and hearing.
BUT When parent institutionalizing child, only need screening by neutral fact-finder
63
What is a "deprivation of property" for purposes of PDP?
An entitlement that is not fulfilled
An entitlement exists if there is a reasonable expectation to continue receipt of benefit - a legitimate claim or entitlement.
Note: The term property is broader here than personal belongings, realty, chattels, and the like. But an abstract need or desire or a unilateral expectation of the benefit is not enough. There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy. For example, a government employee who may be fired only for cause has a legitimate claim to continued employment and thus has a property interest in her job, while an at-will employee has, at best, a unilateral expectancy of continued employment and no property interest.
Note: used to be a rights-privileges distinction; that is old test and now wrong.
64
What standard of care does the gov't owe for purposes of due process claims?
Gov't negligence is generally not sufficient for deprivation of due process. Generally, must be intentional gov't action or at least reckless action for liability to exist. However, in emergency situations, gov't only liable if it "shocks the conscience."
Ex. gov't failure to protect people from privately inflicted harms is not a DP violation
65
What procedures are required to satisfy DP?
Test: balance between:
1. Importance of interest to individual
2. Ability of additional procedures to increase the accuracy of the fact-finding
3. Gov't interests (usually efficiency, saving money)
Courts have great discretion.
Ex.
SSDI termination - post-termination hearing
School discipline - notice of charges and opportunity to explain
TPR - notice and hearing
Punitive damage awards require instruction to jury and judicial review to ensure reasonableness
American citizen detained as enemy combatant requires notice of charges, meaningful hearing, representation by lawyer
Except in exigent circumstances, prejudgment attachment or gov't seizure of assets requires notice and hearing. (Exigent - if reason to believe person would get rid of property before. Plus, gov't may seize property used in illegal activity even if it had an innocent owner)
66
What standard of scrutiny are economic liberties subject to?
Rational basis. Minimal proteciton.
Ex. employment regulation, regulation of trades/profession, consumer protection
67
What is the Takings Clause, and how are govt actions under it scrutinized?
5th Amdt.
Govt may take private property for public use if it provides just compensation. No levels of scrutiny, separate test:
1. Is there a taking? (Per se taking or regulatory taking)
2. Is it for public use?
3. If yes, is just compensation paid?
A government regulation that authorizes permanent use of private property by the general public is an example of a taking. A physical appropriation, destruction, or invasion by the government itself are not the only ways to achieve a taking. If the government action results in the property being appropriated or invaded by someone else, a taking has occurred
68
What is a per se taking, for purposes of the Takings Clause?
Govt confiscation or physical occupation of a property is always a taking.
Doesn't matter how much property is involved. Ex. 1 foot of space in people's homes, by regulation, for a cable box; wires inside the walls. De minimis taking is still a taking.
A court should look at all of the circumstances, especially the length of the denial of all economic value and the effect the denial has on the value of the property; however, the denial is not a taking per se when it is not a permanent deprivation of property.
69
What is a regulatory taking, for purposes of the Takings Clause?
Leaves no reasonable economically viable use of the property.
Not a taking just because it decreases value.
If a government regulation denies a landowner all economic use of his land, the regulation generally will constitute a “taking” requiring the payment of “just compensation” under the Fifth Amendment. However, regulations that merely decrease the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property. The court will consider
(i) the social goals sought to be promoted,
(ii) the diminution in value to the owner, and
(iii) whether the regulation substantially interferes with distinct, investment-backed objectives
70
When will government conditions on a property development violate the Takings Clause?
gov't conditions on property development must be justified by a benefit that is roughly proportionate to the burden imposed, otherwise it is a taking.
71
May a property owner bring a takings challenge even to regulations that existed at the time the property was acquired?
Yes.
72
How does SCOTUS define "public use" for purposes of the Takings CLause test?
Broadly defined - "so long as the gov't acts out of a reasonable belief that the taking will benefit the public"
Ex. Eminent domain, sold to developers - created jobs.
73
How is just compensation calculated, for purposes of a government taking for public use?
Measured in terms of loss to the owner. Gain to the taker is irrelevant.
Gov't must pay economic market value of property to owner.
74
What is the Contracts Clause (Art. 1, Sec 10)?
"No state shall impair the obligations of contracts."
This Clause limits the ability of states to enact laws that substantially impair contract rights (i.e. destroy most or all of a party's rights under an existing conrtact). Under the Caluse, SCOTUS will subject STATE actions that impair their own contracts to strict scrutiny. In any case, even if state action substantially impairs rights under an existing contract if it meets SS (important and legitimate public interest + reasonable and narrowly tailored means of promoting that interest)
Applies only to state or local interference with existing contracts. Does not apply to the fed govt because you can sue under DP.
State or local gov't interference with private contracts must meet intermediate scrutiny. SS for state contracts.
75
What is the test for whether state or local govt has substantially interfered with private contracts in violation of the Contracts Clause?
Intermediate scrutiny.
TEST: does the legislation substantially impair a party's rights under an existing contract?
IF yes, is the law reasonably and narrowly tailored means of promoting an important and legitimate public interference?
Note: ex post facto clauses don't apply in civil cases. Retroactive civil liability need only meet rational basis
Ex. simply seeking to reduce contractual financial obligations will be insufficient.
76
What is the standard for state/local interference with govt contracts?
Strict scrutiny.
77
What is the constitutional right to privacy, and where is it located?
Privacy is a fundamental right protected under substantive due process, subject to strict scrutiny. t purpose.
The right of privacy is not specifically mentioned in the Constitution, but the Supreme Court has recognized the right on a number of occasions. When the government restricts a fundamental right, the government must show a compelling interest in the regulation and that the regulation is necessary to achieve that
Includes:
1. Right to marry
2. Right to procreate
3. Right to custody of one's children (though the state can create irrebuttable presumption that wife's husband is father)
4. Right to keep the family together (no bad zoning laws)
5. Right to control the upbringing of one's children (can't order grandparent visitation over parental objection)
6. Right to purchase and use contraceptives
7. Right to abortion (undue burden, not SS)
8. Right to engage in consensual homosexual activity (no clear standard)
9. Right to refuse medical treatment (but not to physician-assisted death)?
78
What is the inquiry re abortion constitutionality?
Pre-viability: state may not prohibit, but may regulate so long as they don't create "undue burden" on ability to obtain abortion
Ex. 24-hour waiting period, licensed physicians, prohibit "partia birth"
Post-viability: may prohibit unless necessary to protect woman's life or health
Gov't has no duty to subsidize abortions or provide abortions in public hospitals.
Spousal consent and notification laws are unconstitutional.
Judicial bypass - may require notice/consent for minor abortion so long as it creates alternative procedure where minor can go before judge to find it would be in minor best interest or can decide for self
79
What is the 2nd Amdt and what has it been ruled to protect?
"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed"
2008: alllowed guns in homes. Gov't can regulate who has guns, type of guns, where can have, but no level of scrutiny clear.
80
What is the right to travel?
14th Amdt PI clause.
Laws that prevent people from moving into a state must meet SS.
Durational residency requirement must meet SS. Usually, only very short ones will be upheld (like 30 days, not like a year). This violates both EP and the right to travel.
Restrictions on foreign travel need only meet rational basis (no fundamental right to intl travel)
Very rarely used on exam as right exam.
81
What is the 15th Amdt right to vote?
Laws that deny some citizens the right to vote must meet STRICT SCRUTINY but regulations of the electoral process to prevent fraud need only be on balance desirable.
Ex. poll taxes, fee to vote, property ownership - unconstitutional
Ex. requirement of photo ID is OK.
82
What limitations does the 15th Amdt place on voting procedures?
- One-person-one-vote must be met for all state and local elections (the number of people in each district must be more or less the same size, otherwise there is malapportionment which is unconstitutional)
- All districts must be more or less the same size
- At-large elections (i.e. not by district) are constitutional unless proof of discriminatory purpose (EP violation otherwise)
- Use of race in drawing election district lines must meet SS
- Counting uncounted votes without a pre-set standard in a presidential election violates EP.
83
What is the constitutional right to education?
No fundamental right to education, so it is OK to fund public schools based on property taxes.
84
What is equal protection?
14th Amdt. Applies only in state and local governments, never to the federal government. Applied to federal government through DP clause of 5th Amdt.
THINK ABOUT THIS ALL THE TIME. Use Due Process of 5th Amdt if actor is federal government!!
85
What is the equal protection analysis for classifications based on race and national origin?
Strict scrutiny.
Note: doesn't just need to be de jure. De facto discrimination will violate EP.
86
How is the existence of racial classification proven, for EP purposes?
1. Is classification facially racial? (Law on its very terms draws distinction based on race)
2. If law is facially neutral, must prove both discriminatory impact and intent/purpose (ex. discriminatory peremptory challenges) (i.e. applied in a purposefully discriminatory manner, maintained for a discriminatory purpose)
87
How are racial classifications benefiting minorities treated under EP analysis?
SS is applied, doesn't matter whether it is invidious or helpful to minorities.
Numerical set-asides require clear proof of past discrimination.
Educational institutions may only use race as one factor in admissions decision. They must show that there is no race-neutral alternative which could achieve diversity. Can't add points based on race.
Public schools can't use race as factor in assigning students to schools unless SS is met.
88
How are gender classifications treated under EP analysis?
Intermediate scrutiny - "exceedingly persuasive justification" (important governmental objective + narrowly tailored)
can be either
(1) facial
(2) neutral (but discriminatory impact + intent)
89
How are gender classifications benefiting women treated under EP analysis?
Gender classifications benefiting women that are based on role stereotypes are not allowed. Those that are meant to remedy past discrimination or differences in opportunity are allowed.
90
How are alienage classifications dealt with under EP?
Generally strict scrutiny (state)
Ex. only US citizens can get civil service jobs, only US citizens admitted to bar, only citizens get public benefits, only citizens can teach at public university (all unconstitutional under SS)
Rational basis test used for alienage classifications that concern self-government and democratic process:
1. Voting
2. Serving on jury
3. Being police officer, elementary or secondary school teacher, probation officer.
Rational basis also for congressional (FEDERAL) discrimination.
Intermediate scrutiny for discrimination against undocumented alien children.
Note also the 10th Amdt dimension - 10th Amdt reserves to the states power not granted to federal government. Constitution vests the power to regulate aliens in Congress; thus, states do not have power to control aliens under 10th Amdt.
91
What is the EP treatment of discrimination against non-marital children (legitimacy classifications)?
Intermediate scrutiny.
Laws that deny a benefit to all non-marital children but grant it to all marital children will be unconstitutional.
92
What types of other discrimination gets rational basis?
```
Age discrimination
Disability discrimination
Wealth discrimination
Economic regulations (welfare regulations included - must be particularly important right)
Sex orientation discrimination
```
93
What is the general methodology for determining the types of speech-based restrictions?
1. Content based (subject matter or viewpoint restriction) (STRICT SCRUTINY)
2. Content neutral (all conduct) (intermediate scrutiny):
94
What requirements are there on content based speech restrictions?
There are two types of content-based laws, and both are subject to strict scrutiny.
1. Subject matter restriction (application of law depends on type of speech - political signs i.e.)
2. Viewpoint restriction (application of law depends on ideology of message, e.g. pro war but not anti war messages)
95
What requirements are there on content-neutral laws?
Need only meet intermediate scrutiny. This applies to all content.
Ex. no parades in this park
96
What are the constitutional requirements re prior restraints?
Prior restraints include court orders and licensing systems that stop speech before it occurs. Must meet SS.
Procedurally proper orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it.
Gov't can require a license for speech only if there an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Must contain procedural safeguards (prompt determination of requests and judicial review, e.g.)
97
When will a law regulating speech be deemed unconstitutionally vague?
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. Vague laws violate due process.
Ex. "books corrupting the morals of youth" - void for vagueness
98
When will a law regulating speech be deemed unconstitutionally overbroad?
A law is unconstitutionally overbroad if it regulates substantially more speech than the USC allowed to be regulated
Ex. all live performance, when you meant to exclude nude dancers
Ex. fighting words laws (speech directed at another that are likely to provoke a violent response)
99
When can/can't the gov't regulate symbolic speech?
Gov't can regulate conduct that communicates symbolic message if it has an important interest unrelated to suppression of the message and if the impact on the communication is no greater than necessary to achieve the gov't purpose.
Ex. flag burning constitutionally protected, but draft card burning is not (gov't interest unrelated to message - in identifying drafted individuals)
Ex. burning a cross is protected unless with intent to threaten
Ex. contribution limits in campaigns is OK, but expenditure limits unconstitutional. Ex. Government may not limit the contributions to a political committee that supports or opposes a ballot referendum (even though it can limit individuals' donations to specific candidates).
100
What are the protections on anonymous speech?
They are there and they exist.
101
Can speech by the government be challenged as violating the First Amdt?
No
Ex. TX license plates with confederate flags, DMV said no. SCOTUS said good, DMV. License plates are gov't-issued ID, since they are speaker it cannot be challenged
Ex. school curricular guide
Ex. city museum display
102
What types of speech are unprotected by the first Amendment
- Incitement of illegal activity (clear and present danger)
- Defamation (must show malice)
- Obscenity (prurient, patently offensive, lack seriously redeeming LAPS value)
- Child pornography
- Fighting words (arouse ordinary person - but hard to draft, must be viewpoint neutral)
- Commercial speech
103
What are the constitutional protections for obscenity and sexually-oriented speech?
Not protected under the 1st Amendment if obscenity test is met (and gov't doesn't need to have compelling reason to ban it)
TEST for obscenity: A description of sexual activity that taken as a whole:
1. Material must appeal to the prurient (abnormal sexual lust) interest.
2. Material must be patently offensive under the law prohibiting obscenity (in determining "patently offensive" may be local or statewide community)
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national standard)
104
Can the government use zoning ordinances to regulate the location of adult bookstores and movies?
Yes, erogenous zoning is permissible, if the purpose is to combat the secondary effects of those businesses, such as lower property value etc.
They cannot outright prohibit erotic stores. This is marginally protected speech, is symbolic speech. It can be regulated to serve government interests unrelated to the protection of speech.
105
When can the gov't punish private possession of obscene materials?
Child porn can be completely banned, even if it isn't obscene (to be child porn, children must be used in production).
Gov't may not punish private possession of obscene materials.
Gov't may seize the assets of businesses convicted of violating obscenity laws.
106
When is profane or indecent speech protected by the 1st Amdt?
It is generally protected, with the exception of over broadcast media, in schools.
107
When is commercial speech protected/unprotected by 1st Amdt?
Generally, commercial speech is protected and subject to intermediate scrutiny.
If the speech regulated concerns a lawful activity (even if harmful, like cigarettes) and is not misleading or fraudulent, the regulation will be valid if it:
(i) serves a substantial/important government interest,
(ii) directly advances the interest, and
(iii) is narrowly tailored to serve the substantial interest.
While this test does not require that the least restrictive means be used, there must be a reasonable fit between the legislation’s end and the means chosen. The greater the restriction on speech, the less likely it will be deemed to be reasonable. A complete ban on truthful advertising is very unlikely to be upheld.
Not protected:
1. Advertising for illegal activity
2. False/deceptive ads
3. True commercial speech that inherently risks deception can be prohibited.
4. May prohibit attorney's in-person solicitation of clients for profits (but not accountants)
Other commercial speech can be regulated if intermediate scrutiny is met (important + narrowly tailored, not least restrictive).
108
Talk about damages with regard to defamation
1. If public official or running for public office = must prove falsity of statement + actual malice
2. If private figure and matter is of public concern = presumed/punitive damages without showing actual malice
3. Private figure and not of public concern, can recover presumed/punitive damage w/o showing actual malice.
4. Liability for IIED for defamatory speech must meet defamation standard and can't exist for speech otherwise protected by 1st Amdt (Westboro Baptist)
109
When may the government regulate journalistic reporting?
1. Gov't can't create liability for truthful reporting of information that was lawfully obtained by gov't (rape victim identity)
2. No liability if media broadcasts a tape of illegally intercepted call, if media did not participate in illegality + public importance.
3. Gov't may limit its own dissemination of information to protect privacy (except in criminal trials, where press and public have 1st Amdt. right)
110
Is speech by gov't employees on the job in performance of their duties protected by 1st Amdt?
No it is not.
111
What gov't regulations are allowed over speech in public forums?
Public forums (gov't properties, gov't must make available for speech) - parks, sideways.
Regulations must be
1. subject matter and viewpoint neutral, or if not SS must be met,
2. time/place/manner restriction that serves important gov't purpose and leaves open adequate alternative places for communication
3. no need for least restrictive alternative, just narrowly tailored
City officials cannot have discretion to set permit fees for public demonstrations.
112
What gov't regulations are allowed over a designated public forum?
These are govt properties that govt COULD close to speech, but chooses to open. Same rules as public forum (neutral, t/p/m - serves important gov't purpose, leaving open adequate alternative places)
Ex. public schools on the weekend
113
What gov't regulations are allowed in limited public forums?
Gov't properties limited to certain groups or dedicated to the discussion of some subjects only. AKA a commercial forum.
Time/place/manner = Gov't can regulate speech in limited public forum so long as
(1) reg is reasonably related to a legitimate gov't purpose and
(2) viewpoint neutral
Ex. commercial ads on city bus, allowing ads on the side of gov't buildings
114
What gov't regulations are allowed in non-public forums?
Govt properties that the govt constitutionally can and does close to speech.
Govt can regulate speech in non-public forum so long as reg is reasonable and viewpoint neutral (not designed merely to suppress a particular point of view).
Ex. military bases, areas outside of prisons and jails, sidewalks on post office property, airports, courthouses and their grounds (but not the sidewalks around them).
There is no right of access to private property for speech purposes under 1st Amdt.
115
What does freedom of association dictate re laws that prohibit or punish group members?
Subject to strict scrutiny. To punish membership in a group, must prove that the person:
1. Actively affiliated with the group
2. Knowing of its illegal activities, and
3. With the specific intent of furthering those illegal activities.
116
What about freedom of association's requirements for laws that require disclosure of group membership?
If such disclosure would chill association, must meet SS.
Ex. AL law re NAACP membership.
117
What about freedom of association's requirements for laws that prohibit a group from discriminating?
Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity.
Ex. if discrimination is integral to expression, they can't prohibit (nazis can exclude jews, KKK can exclude blacks, boy scouts can exclude gays)
118
What is the free exercise clause?
The Free Exercise Clause prohibits government from punishing conduct just because it is religious. If the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid. The Court has found this Clause to provide almost absolute protection for religious belief (either absolute ban or subject to SS [necessary to achieve compelling])
TEST: if it purposefully interferes, apply SS.
If it does not purposefully interfere, rational basis (incidental burden test)
Free exercise clause cannot be used to challenge a neutral law of general applicability (even if it had disparate impact e.g. peyote Native Americans)
Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions with two historic exceptions:
1. the Amish must be exempted from mandatory schooling beyond eighth grade, and
2. workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.
119
What is the establishment clause?
Can't pass a religious law.
Test: (SEX - Lemon test) (when the question is whether legislation creates improper governmental involvement with religion):
1. Must be a secular purpose for the law (if primary purpose is to enhance religion, unconstitutional)
2. Effect must be neither to enhance nor inhibit religion, AND
3. Must not be excessive entanglement with religion.
When the question is whether a law or government program DISCRIMINATES AMONG religions (sect preference), must meet strict scrutiny ("compelling government interest" test).
Ex. cannot discriminate against religious groups based on membership size
120
What are the freedom of religion rules that dictate gov't interaction with religious schools?
1. Gov't sponsored religious activity in public schools unconstitutional
2. Religious groups and community groups must have same access to school facilities as non-religious groups
3. Gov't may give assistance to parochial schools, so long as it isn't actually used for religious instruction.
121
What happens if a statute is deemed overbroad, but judged in relation to its plainly legitimate sweep does not prohibit a substantial amount of protected speech? Can it be enforced?
A regulation of speech that restricts substantially more speech than necessary is unenforceable, even if the speech in question could have been properly restricted by a narrower statute.
Generally, if a regulation is not too overbroad, the Court allows it to be enforced against people whose speech or speech activities are not protected by the Constitution.
On the other hand, if the regulation prohibits a substantial amount of protected speech when judged in relation to its plainly legitimate sweep, it is facially invalid and cannot be enforced against anyone. But it cannot be enforced against persons engaged in protected speech or speech activities.
122
What are some forms of unprotected speech?
1. Obscenity
2. Fighting words
3. Speech creating a clear and present danger of imminent unlawful action
123
Hello. What is the clear and present danger test?
Speech may be punished or banned under the clear and present danger test ONLY when it is:
(1) directed to producing or inciting imminent lawless action and
(2) is likely to produce such action
124
What is the correct standard of review when a fundamental right is involved?
Strict scrutiny.
By contrast, if government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved, the law will be upheld unless it is arbitrary or irrational.
125
Discuss Congress' Spending Power limits?
Congress can indirectly regulate under the spending power, even where it cannot directly tax.
- Congress may spend to achieve any public purpose that does not violate the Constitution.
- The Constitution allows Congress to spend for the general welfare. However, federal spending cannot be done in a way that violates other provisions of the Constitution.
- Congressional spending need NOT be apportioned among the several states. The apportionment limitation is on Congress’s power to tax.
- Spending measures can impose requirements that essentially regulate by attaching strings to federal money (e.g., require the recipient to act in a certain way) even if Congress cannot otherwise regulate the subject. Congress can impose conditions, so long as the conditions:
1. Are clearly stated
2. Relate to the purpose of the program and
3. Are not unduly coercive.
126
Discuss Congress' Taxing power limits?
Congress has the power to lay taxes under Article I, Section 8, and a tax measure will usually be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity.
- Federal taxes must be uniform among the states. This means that a federal tax on an item or activity must be the same from state to state (BUT imposing $25 tax to popular vacation destinations, i.e. will not be considered grossly unreasonable discrimination, b/c rationally related to legitimate gov't interest of revenue production)
- By its terms, the federal power to tax is NOT exclusive. The tax provisions do not prohibit the states from taxing, and thus the states have the power to tax as well as the federal government.
- The federal taxing power does NOT allow Congress to tax exports. Neither Congress nor the state can tax exports to foreign countries.
- It is not true that a federal tax is permitted only if Congress otherwise has the power to regulate the subject of the tax.
- Congress may also tax to raise revenue
127
What is the Youngstown standard for the President's ability to regulate internal affairs under the Take Care clause?
The Take Care Clause is in Article II, Section 3. It provides that the President shall take care that the laws be faithfully executed.
The Youngstown framework:
(i) Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
(ii) Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and
(iii) Where the President acts against the express will of Congress, he has little authority and his action likely is invalid, at least if Congress has acted constitutionally.
128
Who can declare war?
the President lacks the power to declare war but may unilaterally commit troops in actual hostilities. President needs Congressional approval to declare war.
129
When may the Free Exercise clause allow a court to look into a litigant's religious beliefs?
In determining the sincerity of those beliefs, but not in determining the veracity of those beliefs. Can't force someone to swear an oath on the Bible.
130
When a federal gov't acts within a state, what may/may not the state do?
Instrumentalities and agents of the federal government are immune from state regulations relating to performance of their federal functions.
- States MAY impose an income tax on persons who receive a salary from the federal government, as long as the tax is nondiscriminatory and does not burden the federal government.
- States may NOT directly tax federal property and instrumentalities within the state.
- States may NOT charge a sales tax on items purchased by contractors acting as purchasing agents for the federal government. This would be a prohibited direct tax.
- But states MAY charge a sales tax to a contractor who is working on a federal project on a cost-plus profit basis, even though the tax ultimately will be borne by the federal government, because, in such a case, the tax is indirect.
- States may NOT require federal employees to have a valid driver’s license to drive within the state while performing job duties.
- The states may NOTE regulate the federal government without the federal government’s consent.
131
Under DP, when may a government employee be fired . for their speech?
Under the Due Process Clause of the Fifth Amendment, a person has a LIBERTY interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding PUBLIC issues, but can be fired for speech that disrupts the employer’s policies or undermines the employer’s authority.
If a government employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, the courts must carefully balance the employee's rights as a citizen to comment on a matter of public concern against the government's interest as an employer in the efficient performance of public service. This means that the employee is probably entitled to a hearing.
The court has an expansive definition of what qualifies a a public interest.
132
When will a statute with a disparate impact on racial minorities trigger strict scrutiny?
The e mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny. There must be intent to discriminate on the part of the government, which can be shown by the discriminatory application of a law or regulation that appears neutral on its face.
The classification will be subject to strict scrutiny only if an intent to discriminate is established, which can be shown by
(i) facial discrimination,
(ii) discriminatory application, or
(iii) discriminatory motive.
133
What is the 13th Amdt?
The Thirteenth Amendment provides that neither slavery nor involuntary servitude shall exist within the United States and gives Congress the power to adopt appropriate legislation to enforce the proscription.
Since the amendment is not limited to proscribing state action, Congress may adopt legislation regulating private parties. Under the amendment, the Supreme Court has allowed Congress to prohibit any private conduct that Congress deems to be a “badge” or “incident” of slavery, and has upheld statutes regulating private contracts.
Enabling Clause: confers on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery
134
Can the president decline to spend funds specifically set out in congressional appropriations?
Nope. The President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress’s reason for making the appropriation.
The President has no “legislative” power in internal affairs, and has a duty under Article II to “see that the laws are faithfully executed.” In contrast, Congress clearly has the power to spend to “provide for the common defense and general welfare.” [U.S. Const. art. I, §8] Hence, the Supreme Court has ruled that there is no constitutional basis for the President to “impound” (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated.
135
What is a bill of attainder?
It is a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct. Both the federal and state governments are prohibited from passing bills of attainder.
The assertion by Congress of the right to determine who should be convicted under a statute would amount to an attempt to pass a bill of attainder, because conviction would be imposed without a judicial trial.
136
What is the Import-Export Clause (Art. 1, Sec. 10, Cl. 2)
"No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."
This prohibits states from imposing any tax on imported goods AS SUCH or on commercial activity connected with imported goods AS SUCH, except with congressional consent (even if the state's interest is compelling)
Ex. taxes discriminating against imports
137
What is substantive due process?
Prohibits arbitrary governmental action.
Under substantive due process, when gov't action limits a fundamental right, the gov't must prove that the action is necessary to promote a compelling interest (SS - burden on gov't)
If a fundamental right is NOT involved, challenging party must prove that the act is not rationally related to any legitimate gov't interest (RB - BOP on party)
(almost any law can be justified under this basis)
138
When might a local tax violate the Commerce Clause?
Generally, if Congress has not adopted laws regarding a subject, local govt's are free to tax or regulate local aspects of the subject area as long as the tax/reg does not discriminate against interstate commerce or unduly burden it.
A local tax will held to unduly burden interstate commerce if the locality's need for the revenue does not outweigh the burden on interstate commerce. Factors:
- substantial nexus between activity/property taxed and taxing state
- Whether tax is fairly apportioned
- Whether there is a fair relationship between the tax and the benefit the taxed party receives from the state.
139
What are some proper and improper things to include in a governmental oath?
- Can require government employees to oppose the violent overthrow of the government
- Can require to support Constitution
Cannot be required to show respect for the flag, as a person might refuse to salute on religious grounds.
140
When might a state unconstitutionally burden foreign commerce?
Since regulating foreign commerce lies exclusively with commerce, if a state passes a regulation that interferes with foreign commerce, it may be held unconstitutional.
Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating relations with foreign governments.
141
What is the scope of the Supreme Court's original jurisdiction?
Under Article III, sec. 2, SCOTUS has original jurisdiction in all cases affecting:
(a) ambassadors
(b) public ministers
(c) consuls and
(d) in which the state is a party (if two states are party, it's original and exclusive jdn)
Congress has given the lower federal courts concurrent
jurisdiction over all cases in which the Supreme Court has original jurisdiction EXCEPT those between states. This is a case between the United States and a state. Therefore, the Supreme Court’s jurisdiction is not exclusive and the case can be heard in a lower federal court.
Note: original jurisdiction is not EXCLUSIVE jurisdiction!
142
Under DP, when may a government official be fired, and what procedures are they entitled to?
A public employee who is subject to removal only for “cause” has a PROPERTY interest in his job and must be given notice of the charges against him that are to be the basis for his job termination, and a pretermination opportunity to respond to those charges. An at-will employee does not have the same rights.
1. Notice and explanation of bases
2. Pretermination hearing
3. Subsequent evidentiary hearing (with reinstatement if EE prevails)
It need not be a full, formal hearing.
Look also for a LIBERTY interest, based on the speech, e.g., (if for public reasons).
143
When may press and broadcasting companies be subject to a tax?
They can be subject to general business taxes, but can't be subject to taxes specific only to the press, or taxes based on the publication of specific content. This is a violation of 1st and 14th Amdt. right to freedom of the press.
144
Limitations on Congressional power to investigate?
Limited to matters on which it can legislate!
145
When and how can Congress impose limits on SCOTUS jdn?
Article III Sec. 2 provides that SCOTUS shall have appellate jdn under such regs as the Congress shall make. Although Congress has broad power to regulate SCOTUS' appellate jdn, it may not eliminate all avenues for SCOTUS review of issues vested within the federal judicial power.
Thus, Congress can eliminate from the Supreme Court review the determination fo certain cases involving constitutional issues, as long as jdn remains in some lower federal courts.
146
What is "speech" for purposes of the 1st Amdt?
Includes not only verbal communication, but also conduct that is undertaken to communicate an idea.
147
When may trials and pretrial proceedings be closed to the press?
In context of criminal cases, may be closed only if closure is necessary "to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest."
No set standard, but civil probably the same.
The closure will still amount to a prior restraint (court order that keeps speech from occurring), it is justified b/c it meets SS.
148
What is the Fairness Doctrine?
It was a rule of the FCC that required that the media give political candidates an opportunity to oppose candidates/views endorsed by the media.
149
What is the Property Clause (Art. IV, Sec. 3)
Gives Congress the power to "make all needful rules and regulations respecting the territory or other property belonging to the United States."
It permits Congress to acquire and dispose of property, and to protect its property.
Ex. federal lands like National Parks
150
When may states regulate local aspects of interstate commerce (distinguish taxes, a flash card above)?
The state may regulate local aspects of interstate commerce as long as Congress has not adopted regulations concerning the subject matter or preempting the entire area of regulation.
Even absent federal legislation though, under the negative implications of the Commerce Clause (DCC), the state regulation must not 1. discriminate against interstate commerce or 2. unduly burden interstate commerce (balance state interest versus burden to others)
151
What is the federal postal monopoly?
Article I, Sec 8, Clause 7 grants Congress the power to establish post offices and post roads. It grants Congress a monopoly over the delivery of mail. No other system for delivering mail (public or private) can be established absent Congressional consent. Congress has delegated to the Postal Service the power to decide whether others may compete with it, and the Postal Service has carved out an exception to its monopoly for extremely urgent letters.
152
What are the standards for burdens of persuasion First Amendment?
Strict scrutiny
- Internet regulations
- Newspapers/other publications
Intermediate (substantially related to important gov't interest)
- Time place manner, content-neutral regulations (similar)
- Cable TV
- Commercial speech
- Regulation of symbolic speech (medium itself is the message)
Rational basis
153
What is sufficient government act?
Nexus
NOT sufficient: state land grant to private entity
154
What is the test for whether speech constitutes incitement of illegal activity, such that it is not protected under the 1st Amdt?
Incitement of illegal activity is unprotected.
Test: gov't may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing the imminent illegality
155
When can congress limit the jurisdiction of the Supreme Court?
Congress has extensive power to regulate and limit cases in which SCOTUS only has appellate jurisdiction (ex. maritime disputes).
SCOTUS has original jdn in all cases affecting ambassadors, other public ministers and consuls, and those in which a state is a party.
Congress may neither restrict nor enlarge the Supreme Court's original jurisdiction.
156
What is an ad valorem tax, and can a state impose it?
An ad valorem property tax is based on a percentage of the assessed value of the property in question. Although such a tax is generally valid, potential Commerce Clause problems arise when the property taxed moves in interstate commerce. Goods in transit are totally exempt from taxation. Interstate shipment usually ends when goods reach their destination; thereafter, the goods are subject to local tax.
