Rules Flashcards
(20 cards)
11th Amendment
Jurisdictional bar prohibiting citizens of one state from suing another state unless:
consent; injunctive or declaratory relief; damages paid by state officer; or Congressional enforcement of 14th Amendment rights.
Standing
P must establish:
Injury in fact: concrete and particularized harm
Causation: D caused P’s injury
Redressability: relief requested is likely to remedy injury
—–ALSO NEED—-
Timeliness: ripeness/mootness
Justicability: for declaratory judgment (real and immediate danger)
Political Q: to be resolved by another branch of gov.
May abstain from ruling on unsettled state law
Interstate Commerce Power
Power to regulate: channels and instrumentalities of interstate commerce and any activity that substantially affects it.
Rational basis for concluding that the total incident of activity in the aggregate substantially affects interstate commerce.
If non-economic activity of traditional state concern, Congress must est. connection between the activity and substantial economic effect in order to regulate it.
Enabling clause of the 14th Amendment
Enables Congress to enforce equal protection and due process rights as defined by Supreme Court.
Enforcement must have “congruence and proportionality” between injury to be prevented and means adopted to achieve that end.
Dormant Commerce Clause
If Congress has not, States can regulate interstate commerce so long as regulation does not:
Discriminate against out of state commerce (can be upheld for important gov. interest, market participant, traditional gov. function, or Congressionally permitted discrimination.
Unduly burden interstate commerce (balancing test, less restrictive alternatives?), or
Regulate wholly out of state activity
State taxation
Permitted if Congress hasn’t regulated a particular activity.
- Substantial nexus between activity being taxed and taxing state;
- Fair tax apportionment such that interstate commerce doesn’t pay total taxes more than local commerce;
- No local direct commercial advantage over interstate competitors, and
- Tax must be fairly related to services provided by taxing state.
To trigger constitutional protections there must be
State action —- Traditional, Significant, insignificant.
Due process generally
Necessary procedures before depriving individuals of life, liberty, or property.
14th: most provisions of Bill of Rights applicable to the states
Substantive DP guarantees fundamental rights to all persons.
Procedural Due Process
Fundamental fairness: right to be notified of charges/proceedings and opportunity to be heard.
Is threatened interest protected (Liberty/Property)? What process is due? Neutral decision maker, intentional gov. act.
Test: Private interest affected, value of additional safeguards, burden of additional process.
Substantive Due Process
If action infringes upon a fundamental right: strict scrutiny: Must be the least restrictive means to achieve a compelling state interest (burden on gov.)
If not, rational basis test: law must be rationally related to legitimate state interest (burden on challenger)
Fundamental rights
Travel
Voting and ballot access
Privacy
Second amendment
Equal protection
14th states
5th federal
Prove discriminatory intent, necessary to trigger strict scrutiny. On its face, application, or motive.
Strict scrutiny: fundamental rights, suspect class –race, ethnicity, national origin. Alienage may be subject to SS. Federal classifications valid unless arbitrary and unreasonable. SS applied to state laws that discriminate against aliens unless related to participation in gov. functions, then rational basis applied.
Intermediate scrutiny (substantially related to important gov. interest): gender, illegitimacy
Rational basis: everything else. Age, wealth, weight, distinctions for business reasons. Quasi suspect classes (age, poverty, sexual orientation).
One person, one vote and gerrymandering are unique to equal protection, no overlap with substantive due process.
Establishment Clause
Government action benefiting religion may be valid if:
SEX: (Lemon test) Secular purpose; primary effect neither advances nor prohibits religion, and does not result in excessive gov. entanglement.
Religious displays: not allowed if primary purpose is religious purpose; holiday displays permissible unless reasonable observer’s conclusion is that they endorse religion.
Free Exercise
Religious belief is absolutely protected
Gov. can’t deny benefits or impose burdens based on religious beliefs.
Religious conduct: not absolutely privileged; subject to strict scrutiny; neutral laws of general applicability that have an impact on religious conduct only subject to rational basis test.
Expressive conduct
Regulation upheld if:
It is w/in the gov. power to enact;
It furthers an important gov. interest;
Interest is unrelated to suppression of ideas;
Burden on speech no greater than necessary
PISB
Overbreadth: void if burdens substantially more speech than necessary to protect a compelling gov. interest.
Vagueness: fails to provide a person of ordinary intelligence w/ fair notice of what is prohibited.
Prior restraints: invalid unless particular harm to be avoided and certain procedural safeguards are provided.
Campaign related speech: statutes limiting campaign contributions subject to intermediate scrutiny; restrictions on campaign expenditures subject to strict scrutiny.
Public forum restrictions on speech
Content neutral as to subject matter and viewpoint
Narroly tailored to serve a significant gov. interest, and leave open ample alternative channels for communication.
If NOT content neutral: strict scrutiny
Non-public forum
Must be viewpoint neutral and reasonably related to a legitimate gov. interest. Rational basis test.
Obscenity and child pornography
Not protected by 1st Amendment
Obscenity test: average person, applying contemporary community standards, must find material taken as a whole: appeals to prurient interest; depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.
Commercial speech
Must concern lawful activity and be neither false or misleading;
Asserted gov. interest must be substantial;
Regulation must directly advance the asserted interest;
Regulation must be narrowly tailored to serve interest
Freedom of Association: deprivation of public employment
Person is active member in subversive organization; has knowledge of organizations illegal activity, and has specific intent to further those illegal objectives.
