FED CON LAW Flashcards
(41 cards)
Equal Protection
when a statute (aka the gov / gov actor) treats people differently from other people
- singles them out
- creates class of people
Strict Scrutiny - EP
Race, Alienage (non US Citizen), National Origin
- Strict = GOV BURDEN to prove law is NECESSARY to achieve COMPELLING interest
Intermediate Scrutiny - EP
Gender, Illegitimacy
- Interm = GOV BURDEN to prove law SUBSTANTIALLY related to IMPORTANT interest
Rational Basis - EP
Everyone else
- Rational = PLAINTIFF has burden to show law NOT RATIONALLY related to LEGITIMATE interest
Due Process defintion
No personal shall be deprive of Life, Liberty, and Property without due process of law
Types of Due Process
- Substantive
- Procedural
Substantive Due Process
Statute depriving (deprives; take away; regulate) ALL people (citizens) of doing something
- look at what RIGHTS are being deprived:
- if fundamental rights = strict scrutiny
- if other = rational basis
Strict Scrutiny
GOVERNMENT BURDEN to prove law is NECESSARY to achieve COMPELLING interest
Fundamental Rights
- Right to Vote
- Right of Free Speech
- Right to INTERstate Travel
- Right of Privacy
Right to Privacy
- Contraception: obtain & use
- Abortion: current law = abortion is NOT a fundamental right
- Marriage
- Procreation
- Education: Private education
- Raise your family
Procedural Due Process
If a PROPERTY right is taken away, a person shall have a right to NOTICE and right to a HEARING
Property Rights
Job, license, benefits (public)
- government or public employment, licenses, and/or benefit
- have to already had it (earned the benefit)
Free Exercise of Religion
Individual has right to exercise their religion any manner they choose, as long as they do not violate the law.
- look for INTENT
- Gov must be neutral = regulation has nothing to do with religion
- Gov cannot intentionally interfere
- Conduct’s effect affect religion = that’s okay as long as it wasn’t intentional
Establishment Clause
Government making a law may be too closely related to relgiion
- cannot pass a law that establsihed a religion
- cannot show a preference
Test of Neutrality
Based on history and tradition, as long as government is neutral (treating all religions the same) then it’s constitutional
1st Amendment
Government cannot ban speech, but can regulate speech
Types of Regulation of Speech
- Content Based
- Content Neutral
Content Based Speech
Gov regulating the words we are saying
- Apply Strict Scrutiny
- “Deny” “Reject” “Prohibit”
- Goal = stopping message from getting out
Content Neutral Speech
Gov regulating time, place, and manner
- Apply Intermediate Scrutiny: has to further significant & important issue and leave open alternative means/channels of communication (substantial; important; significant)
- Neutral as to content
Branches of Government
- Executive
- Legislative
- Judicial
Executive Powers: President
- Pardons: only federal crimes; unappealable; absolute
- Veto: only president can veto
- Appointment: ambassadors, judges & anyone with exec powers = can make rules, regs, or prosecute
congress & president can jointly appt=if board/committee does NOT have exec powers - Commander in Chief: armed forces-can send them to places & to do things
- Executive Orders: Domestic
- Executive Agreement: International
Legislative Powers: Congress
- Commerce: plenary powers (big & broad) to do what they want if it affect interstate commerce
- Taxing: constitutional when it raises revenue for the general welfare
- Spending: as long as spending is for general welfare
- Coin Money
- Federal Lands: aka property clause (national parks, monuments, undeveloped fed land)
- War: can declare war
Judicial Powers
- Congress shall not enlarge or restrict original jurisdiction
Ex: congress sending case directly to supreme court = unconstitutional - Appellate Cases: Congress can make exceptions & regulations
Ex: Case appealed to supreme court = congress can have some involvement - Lower Federal Cts: Congress has jurisdiction. Can create new ones
- Supreme Court: congress does NOT have jurisdiction
No Conflict Between Fed & State
State law can be stricter
- state law cannot be weaker or less restrictive
