test2 Flashcards
(179 cards)
1
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[Con Law] Justiciability Doctrines No Advisory Opinions
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A federal court may not issue advisory opinions. For a court to exercise jurisdiction, there must be a specific present harm or threat of specific present harm and the decision must resolve the underlying dispute . The court will not determine the constitutionality of a statute that has never been enforced.
2
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[Con Law] Justiciability Doctrines Standing
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Standing is the question of whether the plaintiff is the proper party to bring the matter to the court for adjudication. There are 3 elements for proper standing: (1) injury in fact , (2) causation , and (3) redressability .
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[Con Law] Justiciability Doctrines Standing (1) Injury
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Look first for a personal injury, then to economic harm. If a plaintiff seeks equitable relief, they must demonstrate a likelihood of future harm .
4
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[Con Law] Justiciability Doctrines Standing (2) Causation
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Causation is the nexus between the injury and the conduct complained of.
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[Con Law] Justiciability Doctrines Standing (3) Redressability
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The courts disposition must redress the complained of injury, as it cannot issue advisory opinions.
6
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[Con Law] Justiciability Doctrines Standing No Third Party Standing
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Generally, a plaintiff cannot assert the claims of others who are not before the court. There are 2 exceptions : (1) where the plaintiff and injured party have a close or special relationship ; or (2) the injured third party cannot assert their own rights without difficulty . To have third party standing, however, the plaintiff must also have standing .
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[Con Law] Justiciability Doctrines Standing Organizational Standing
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An organization has standing to sue on behalf of its members where: (1) its members have standing to sue; (2) the interests are germane to the organizations purpose ; and (3) neither the claim nor relief requires participation of individual members .
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[Con Law] Justiciability Doctrines Standing No Generealized Grievances
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A plaintiff may not sue solely in his capacity as a citizen interested in having the government follow the law or the Constitution.
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[Con Law] Justiciability Doctrines Standing Tax Payer Standing
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Taxpayer standing is generally not allowed, although the Court has recognized such standing where a taxpayer sues to challenge expenditures authorized by the Taxing Power as violating the Establishment Clause.
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[Con Law] Justiciability Doctrines Ripeness
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Ripeness is the issue of whether a federal court may grant pre-enforcement review of a statute or regulation . In assessing ripeness, the court will look to: (1) any hardship that will be suffered without pre-enforcement review (the greater the hardship, the more likely the court is to hear it); and (2) the fitness of the issues and record for judicial review.
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[Con Law] Justiciability Doctrines Mootness
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A case is moot where, after the filing of the lawsuit, events cause the end of plaintiffs injury. For the court to exercise jurisdiction, a live controversy must exist at all stages of litigation.
12
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[Con Law] Justiciability Doctrines Mootness Exceptions
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There are 3 exceptions : (1) injuries capable of repetition but evading review (e.g., pregnancy, abortion; (2) voluntary cessation (if the defendant voluntary ceases his behavior but is free to resume it anytime); and (3) class actions (if the named plaintiffs claim becomes moot, the case is not moot so long as one class member still suffers an injury).
13
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[Con Law] Justiciability Doctrines Political Question
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A political question is something constitutionally committed to another branch of government or inherently incapable of judicial resolution , and a court will not hear it. Examples include litigation pertaining to the guarantee of a republican form of government (legislative branch), challenges to the Presidents conduct of foreign policy (executive branch), challenges to the impeachment or removal process (legislative branch), or challenges to partisan gerrymandering of election districts (legislative branch).
14
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[Con Law] Supreme Court Review Writ of Certiorari
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In most cases, the Supreme Court has discretionary power to review cases from state courts or the United States Court of Appeals.
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[Con Law] Supreme Court Review Appeal
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A right of appeal exists from decisions of a 3-judge federal district court panel , in which case the case goes directly from the trial court to the Supreme Court for mandatory review.
16
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[Con Law] Supreme Court Review Original and Exclusive Jurisdiction
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The Supreme Court has original and exclusive jurisdiction over suits between state governments .
17
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[Con Law] Supreme Court Review Final Judgments
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The Supreme Court can generally only hear a case after final judgment (i.e., no interlocutory review).
18
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[Con Law] Supreme Court Review Review of State Court Decisions
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The Supreme Court will decline to review a state court decision where there are adequate and independent state grounds for the decision. Adequate means fully dispositive , while independent means the decision was not based on federal case interpretations or identical federal provisions . Where state court decision rests on two grounds, one state and one federal, and the Supreme Courts reversal of the federal law ground will not change the result, the Court will not hear the case . Where the state court has not expressly stated that the result rests on state law, though, the court may hear it .
19
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[Con Law] Lower Federal Court Review Sovereign Immunity
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Federal and state courts may not hear suits against state governments absent consent . Sovereign immunity does not apply, however, to (1) suits against local governments , (2) actions by the United States or other states , or (3) federal bankruptcy proceedings.
20
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[Con Law] Lower Federal Court Review Sovereign Immunity Exceptions
A
A state may be sued: (1) if they explicitly waive immunity ; (2) pursuant to federal laws adopted under section 5 of the 14 th Amendment (under which Congress can only enact laws to prevent or remedy violations of already-recognized rightsnot create or expand rights); or (3) where suit is filed against state officers in which case, the plaintiff may only sue for injunctive relief or money damages out of the officers pockets , as money damages are impermissible where the state treasury will pay retroactive damages.
21
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[Con Law] Lower Federal Court Review Abstention
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Federal courts may not enjoin pending state court proceedings (usually criminal) except in cases of proven harassment or bad faith prosecution . A federal court will temporarily abstain from resolving a constitutional claim when disposition rests on an unsettled question of state law.
22
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[Con Law] Congressional Authority to Act
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As the federal government is a government of enumerated powers, Congress must have express or implied authority in order to regulate.
23
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[Con Law] Congressional Authority to Act No Federal Police Power
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There is no federal police power except in the case of the military , Indian reservations , federal land and territories and the District of Columbia ( MILD ).
24
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[Con Law] Congressional Authority to Act Necessary and Proper Clause
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Under the Necessary and Proper Clause, Congress may choose any means not prohibited by the Constitution to carry out its authority.
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[Con Law] Congressional Authority to Act Taxing and Spending Taxing Power
Congress may use its Taxing Power to levy any tax (1) reasonably related to raising revenue , or (2) where Congress has the power to regulate the activity taxed.
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[Con Law] Congressional Authority to Act Taxing and Spending Spending Power
Congress may use its Spending Power to spend for the general welfare .
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[Con Law] Congressional Authority to Act Commerce (Lopez)
Congress may use its Commerce Power to regulate: (1) the channels of interstate commerce, (2) the instrumentalities and persons and things in interstate commerce; and (3) economic activities that have a substantial effect on interstate commerce the effect can be cumulative, but where the regulated activity is non-economic, the substantial effect may not be based on the cumulative effect on interstate commerce.
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[Con Law] Congressional Authority to Act 10th Amendment
The 10 th Amendment limits congressional powers, and reserves to the states or people all powers not granted to the United States or prohibited by it.
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[Con Law] Congressional Authority to Act 10th Amendment Commandeering
Congress cannot compel state regulatory or legislative action, but may induce state action by conditioning spending so long as the conditions are expressly stated and relate to the purpose of the spending program .
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[Con Law] Congressional Authority to Act 10th Amendment Harmful Commercial Activity
Congress may prohibit harmful commercial activity by the states.
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[Con Law] Congressional Authority to Act Section 5 of the 14th Amendment
Section 5 of the 14 th Amendment is Congress power to enforce the provisions of the 14 th Amendment. Congress may not create new rights or expand the scope of existing rights, but can act to prevent or remedy violations of rights recognized by the courts. Congress means, though, must be congruent and proportional to remedying proven constitutional violations.
32
[Con Law] Delegation of Powers
Congress has broad power to delegate its legislative power to the executive or legislative branches, so long as intelligible standards are set. It cannot, however, delegate powers uniquely defined to Congress (as set forth in the Constitution), nor can it delegate executive power to itself or its officers.
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[Con Law] Delegation of Powers Legislative and Line-Item Voting
Legislative and line-item vetoes are unconstitutional because they violate the requirements of bicameralism and presentment . Rather, the President must sign or veto a bill in its entirety .
34
[Con Law] Executive Power Foreign Policy Treaties
Treaties are agreements between the United States and a foreign country that are negotiated by the President and effective when ratified by the Senate . They prevail over conflicting state laws , due to the Supremacy Clause. Where a treaty conflicts with a federal statute , the one adopted last in time controls . A treaty can never conflict with the Constitution .
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[Con Law] Executive Power Foreign Policy Executive Agreements
Executive agreements are agreements between the United States and a foreign country that are effective when signed by the President and the head of a foreign nation . They can be used for any purpose, and prevail over any conflicting state laws . Any conflicting federal law or the Constitution , however, prevail over an executive agreement.
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[Con Law] Executive Power Foreign Policy War
The President has no power to declare war , but has broad power as commander-in-chief to use American troops in foreign countries (which is a political question).
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[Con Law] Executive Power Domestic Affairs Chief Executive (Youngstown)
The Presidents power as chief executive depends on whether he acts with the express or implied authority of Congress, where Congress is silent, or against Congress express will.
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[Con Law] Executive Power Domestic Affairs Chief Executive (Youngstown) Congressional Authority - Express or Implied
The Presidents authority is at its zenith and his actions are likely valid
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[Con Law] Executive Power Domestic Affairs Chief Executive (Youngstown) Congressional Silence
The Presidents actions will be upheld unless they usurp the power of another governmental branch or prevent another branch from carrying out its tasks
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[Con Law] Executive Power Domestic Affairs Chief Executive (Youngstown) Against Congressional Will
The President has little authority, and his action is likely invalid
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[Con Law] Executive Power Domestic Affairs Appointment Power
The President alone appoints: (1) ambassadors , (2) federal judges , and (3) officers of the United States with the advice and consent of the Senate . Congress may vest appointments of inferior officersi.e., those that can be fired by officers of the United Statesin the President, the heads of departments or the lower courts. Congress may not , however, give itself or its officers the appointment power.
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[Con Law] Executive Power Domestic Affairs Removal Power
Unless removal is limited by statute, the President may fire any executive branch officer. Congress may limit removal if it is an office where independence from the President is desirable (e.g., independent counsel). Congress cannot limit removal of the Presidents cabinet , and cannot prohibit removal, but can limit it to where good cause exists.
43
[Con Law] Executive Power Domestic Affairs Impeachment and Removal
The President, Vice President, federal judges and officers of the United States can be impeached and removed from office for treason, bribery or high crimes and misdemeanors . The House has the sole power to impeach (by majority vote), but the Senate has the power to conduct a trial to convict (by two-thirds vote) and remove.
44
[Con Law] Executive Power Domestic Affairs Immunity
The President has absolute immunity in civil suits for money damages for any actions taken while in office, but no immunity for actions that occurred prior to taking office .
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[Con Law] Executive Power Domestic Affairs Privilege
The President may invoke executive privilege for presidential papers and conversations, but this privilege will yield when necessary to other important government interests .
46
[Con Law] Executive Power Domestic Affairs Pardon
The President has the power to pardon those accused or convicted of federal crimes (but not state crimes or civil liability), except the President cannot pardon someone for offenses that resulted in impeachment by the House.
47
[Con Law] Preemption - The Supremacy Clause Express Preemption
Federal law expressly preempts state regulation where a federal statute states expressly that federal law is exclusive .
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[Con Law] Preemption - The Supremacy Clause Implied Preemption
Federal law may also impliedly preempt state regulation, even though its technically silent on the subject.
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[Con Law] Preemption - The Supremacy Clause Implied Preemption Field Preemption
Congress preempts an entire field where: (1) it has intent to occupy the field , as evidenced by regulation that is significantly comprehensive in scope, or (2) where Congress creates an agency to administer the field.
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[Con Law] Preemption - The Supremacy Clause Implied Preemption Conflict
If federal and state laws are mutually exclusive (i.e., one cannot simultaneously comply with both), federal law preempts, except where the federal law simply expresses a minimum or floor (e.g., environmental regulations). Further, federal law preempts state regulation where the latter interferes with a federal objective .
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[Con Law] Preemption - The Supremacy Clause Implied Preemption Clear Intent
If Congress evidences a clear intent to preempt state law, federal law preempts.
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[Con Law] Preemption - The Supremacy Clause State Taxation and Regulation
A state may not tax or regulate federal government activitythere is inter-governmental immunity . It is unconstitutional to compel payment of a state tax out of the federal treasury . Note that the federal government never needs to comply with state pollution control laws.
53
[Con Law] Federal Taxation
Congress may subject state and local government activities to regulation or taxation if the law or tax applies to both the public and private sectors a tax applicable to only the state government may be limited by the 10 th Amendment . Congress may not coerce or commandeer state governments, but may indirectly regulate states using its Spending Power by imposing conditions on the grant of federal funds.
54
[Con Law] Federal Taxation No Coercion
The federal government may not coerce states to act in a certain way by over-penalizing their failure to do so.
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[Con Law] Federal Taxation No Commandeering
The federal government may not require states to regulate their own citizens by commandeering them to perform acts in aid of federal law without funding such activities.
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[Con Law] State Taxation of Federal Government
A state may not directly tax federal instrumentalities without the consent of Congress. However, nondiscriminatory taxes are permissible if they do not unreasonably burden the federal government. States may not regulate the federal government or its agents while performing their federal functions.
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[Con Law] Dormant Commerce Clause
The Dormant Commerce Clause is the negative implication of the Commerce Clause. A state law violates the dormant commerce clause if it either: (1) discriminates against out-of-state competition to benefit local economic interests, or (2) is unduly burdensome (i.e., the legitimate local benefits do not outweigh the incidental burden on interstate commerce).
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[Con Law] Dormant Commerce Clause Exceptions
There are 3 exceptions : (1) Congress approves ; (2) the law furthers an important non-economic state interest and there are no reasonably nondiscriminatory alternatives ; or (3) the state or local body is a market participant , in which case it can charge higher fees to out-of-staters but cannot institute an outright ban (e.g., UC schools can charge less in tuition to its own residents, or a state-owned cement factory can charge less to in-state purchasers) . Congress, however, can consent to state regulation of commerce even if it constitutes an undue burden.
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[Con Law] Privileges AND Immunities of Article IV - State Citizenship
The Privileges and Immunities Clause of Article IV prohibits discrimination by a state against non-citizens (of the state) corporations and aliens are not protectedas to fundamental rights (civil liberties and important commercial activities). A state law discriminating against non-citizens in the exercise of fundamental rights may only be valid if the state has a substantial justification for the different treatment and there are no less restrictive means to solve the problem.
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[Con Law] Privileges OR Immunities of 14thAmendment - National Citizenship
The Privileges or Immunities Clause of the 14 th Amendment prohibits states from denying their citizens the privileges or immunities of national citizenship . Courts have recognized a fundamental right to travel , thus: (1) laws preventing people from moving into a state, and (2) durational residency requirements for voting, a 50-day period is the maximum allowedmust meet strict scrutiny . Restrictions on foreign travel , however, need only meet the rational basis test .
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[Con Law] State Taxation of Interstate Commerce
States may not use their tax systems to help in-state business, and may only tax activities if there is a substantial nexus to the state. Further, state taxation of interstate business must be fairly apportioned (i.e., tax only the apportionment of activity that transpires within the taxing jurisdiction).
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[Con Law] Full Faith & Credit
Courts in one state must give full faith and credit to judgments of courts in another state so long as: (1) the court that rendered judgment had personal and subject matter jurisdiction , (2) the judgment was on the merits , and (3) the judgment was final .
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[Con Law] Individual Liberties Government Action
The Constitution applies only to government action private conduct need not comply with the Constitution. However, Congress, by statute, may apply constitutional norms to private conductit may (1) use the 13 th Amendment to prohibit race discrimination, and (2) use its commerce power . Congress may not use section 5 , though, because it regulates only state and local governments.
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[Con Law] Individual Liberties Government Action Exceptions
There are several situations in which private conduct must comply with the Constitution: (1) where a private entity performs a traditionally public function (e.g., company town, elections for public office), or (2) where there is entanglement or significant state involvement (i.e., the government affirmatively authorizes, encourages or facilitates unconstitutional activity)this seems to apply only in the case of race .
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[Con Law] Individual Liberties Government Action Exceptions Racially Restrictive Covenants
Courts cannot enforce racially restrictive covenants.
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[Con Law] Individual Liberties Government Action Exceptions State Action
There is state action where (1) the government leases premises to a restaurant that racially discriminates, (2) the state provides free books to schools that racially discriminate, or (3) a private entity regulates interscholastic sport within a state.
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[Con Law] Individual Liberties Government Action Exceptions No State Action
There is no state action where (1) a private school that is over 99% government funded fires a teacher because of her speech, (2) the NCAA orders the suspension of a basketball coach at a state university, or (3) a private club with a liquor license from the state engages in racial discrimination.
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[Con Law] Individual Liberties Bill of Rights
The Bill of Rights applies only to the federal government (directly), but has generally been incorporated through the Due Process Clause of the 14 th Amendment to apply to state and local governments as well.
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[Con Law] Individual Liberties Bill of Rights Not Incorporated
The following rights have not been incorporated against the states: (1) the 3 rd Amendment right to not have a soldier quartered in ones home, (2) the 5 th Amendment right to grand jury indictment in criminal cases, (3) the 7 th Amendment right to a jury trial in civil cases , and (4) the 8 th Amendment right against excessive fines .
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[Con Law] Individual Liberties Levels of Scrutiny Rational Basis Test
Government action is upheld if it is rationally related to a legitimate government purpose. The burden is on the challenger , who needs to prove only some conceivable legitimate purpose. This test is highly deferential to the government, and the action is usually valid unless it is arbitrary or irrational.
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[Con Law] Individual Liberties Levels of Scrutiny Intermediate Scrutiny
Government action is upheld if it is substantially related to an important government purpose. The burden is on the government , and the court will look only to the governments actual purpose. The means used must be very good but not the best or least restrictive possible. The court often uses narrowly tailored language here (as it does in strict scrutiny).
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[Con Law] Individual Liberties Levels of Scrutiny Strict Scrutiny
Government action is upheld if it is necessary to achieve a compelling government purpose. The burden is on the government , and the court will look only to the governments actual purpose. The means must be narrowly tailored and the least restrictive alternative .
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[Con Law] Individual Liberties Government Action The 13th Amendment and Discrimination
Discrimination never violates the 13th Amendment -- only slavery itself does. But discrimination can violate a federal law adopted by Congress under the 13th Amendment (Section 2).
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[Con Law] Economic Liberties
Economic liberties are only minimally protected, and thus laws affecting them are subject only to the rational basis test .
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[Con Law] Takings
The federal government may take private property for public use if it provides just compensation .
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[Con Law] Takings Takings PossessoryTaking
Government confiscation or physical occupation of property constitutes a possessory taking, except in the case of emergency .
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[Con Law] Takings Takings RegulatoryTaking
Government regulation constitutes a taking if it leaves no reasonable economically viable use of the property, but is not a taking where it merely deceases the value of the property. A court will assess whether the regulation interferes with distinct, investment-backed expectations .
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[Con Law] Takings Takings RegulatoryTaking Government Conditions on Development
Government conditions on the development of property must be justified by a benefit that is roughly proportionate to the burden imposedotherwise, its a taking.
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[Con Law] Takings Takings RegulatoryTaking Existing Regulations
A property owner may bring a takings challenge to regulations that existed at the time he acquired the property.
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[Con Law] Takings Takings RegulatoryTaking Temporary Denial of Use
Where the government temporarily denies an owner of the use of property, it is not taking so long as the governments action is reasonable . A court will examine and weigh all the relevant circumstances to determine if fairness and justice require just compensation: (1) the planners good faith, (2) the reasonable expectations of owners, (3) the length of delay, (4) the delays actual effect on the value of the property.
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[Con Law] Takings Public Use
Property is taken for public use so long as the government acts out of a reasonable belief the taking will benefit the public this is defined very broadly.
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[Con Law] Takings Just Compensation
Just compensation is measured in relation to the loss of the owner in reasonable market value terms.
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[Con Law] Contracts Clause
The Contracts Clause prohibits state and local governments from impairing the obligations of existing contracts, but does not apply to the federal government.
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[Con Law] Contracts Clause Private Contracts Intermediate Scrutiny
State legislation that substantially impairs an existing private contract is invalid unless the legislation: (1) serves an important and legitimate purpose , and (2) is a reasonable and narrowly tailored means of promoting that interest.
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[Con Law] Contracts Clause Public Contracts Strict Scrutiny
State legislation that impairs a contract to which the state is a party is subject to strict scrutiny .
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[Con Law] Ex Post Facto Laws
An ex post facto law is a law that: (1) criminally punishes conduct that was lawful when it was done , (2) increases punishment for a crime after it was committed , or (3) reduces the evidence required to convict a person of a crime from what was required when the act was committed. This prohibition does not apply in civil cases, as retroactive civil liability need only meet the rational basis test .
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[Con Law] Bills of Attainder
A bill of attainder is a law that directs punishment of a specific person or persons without trial
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[Con Law] Second Amendment - Right to Bear Arms
The 2 nd Amendment right to bear arms protects militia services and the right of individuals to have funs in the home for security purposes. The right is not absolute, and may be regulated, and the level of scrutiny is not yet known.
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[Con Law] Voting
Voting is a fundamental right under the Equal Protection Clause and the 15 th Amendment. 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 desirable on balance. Poll taxes are unconstitutional, and voting requirements involving property ownership are almost always unconstitutional.
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[Con Law] One-Person, One-Vote
One-person, one-vote must be met for all state and local elections, and all districts must be approximately equal in population.
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[Con Law] At-Large Elections
At-large elections, in which all voters vote for all office holders, are unconstitutional unless there is proof of a discriminatory purpose .
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[Con Law] Race
Use of race in drawing election district lines must meet strict scrutiny .
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[Con Law] Vote Counting Standards
Counting uncounted votes without standards in a presidential election violates Equal Protection.
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[Con Law] Procedural Due Process
Procedural Due Process guarantees that when one is deprived of life, liberty or property , one is entitled to notice and an opportunity to be heard before a neutral magistrate (unless knowingly and voluntarily waived).
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[Con Law] Procedural Due Process Deprivation of Life, Liberty, or Property Deprivation of Liberty
A deprivation of liberty occurs where there is a loss of a significant freedom provided by the Constitution or a statute. Harm to reputation is not, itself, a loss of a liberty. Examples : Before an adult or child is institutionalized, certain procedures are required (see below). Prisoners rarely have liberty interests.
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[Con Law] Procedural Due Process Deprivation of Life, Liberty, or Property Deprivation of Property
A deprivation of property occurs where there is an entitled a reasonable expectation of continuing receipt of a benefitand that entitled is not fulfilled. There is no distinction between rights and privileges. Examples : Continued attendance at public school, welfare benefits and sometimes government employment.
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[Con Law] Procedural Due Process Deprivation of Life, Liberty, or Property Intentional Government Action
Only intentional or reckless deprivation, but not mere negligence, of life, liberty or property violates the Due Process Clause. In an emergency, the government is liable only if its actions shock the conscience .
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[Con Law] Procedural Due Process Deprivation of Life, Liberty, or Property Failure to Protect
Generally, the governments failure to protect people from privately inflicted harms does not deny procedural due processthe government has a duty to prevent harm only where it creates the danger or the person is in government custody .
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[Con Law] Procedural Due Process Procedures Required
The type and extent of procedures are determined by a balancing test that weighs: (1) the importance of the interest to the individual (the larger the interest, the more procedures); (2) the ability of additional procedures to increase the accuracy of fact-finding (whether increased procedures will lead to fewer erroneous deprivations); and (3) the governments interest .
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[Con Law] Procedural Due Process Procedures Required Commitment to Mental Institution
Before institutionalizing an adult , there must be prior notice and a hearing , unless in an emergency. Children require only a screening by a neutral fact finder.
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[Con Law] Procedural Due Process Procedures Required Welfare Benefits
Notice and a hearing before termination.
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[Con Law] Procedural Due Process Procedures Required Social Security Disability
Post-termination hearing.
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[Con Law] Procedural Due Process Procedures Required Public Employment - Tenured or Termination Only "For Cause"
Prior notice and opportunity to respond, and subsequent hearing.
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[Con Law] Procedural Due Process Procedures Required Public Education - Disciplnary Suspension or Academic Dismissal
Notice of charges and an opportunity to explain.
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[Con Law] Procedural Due Process Procedures Required Corporal Punishment in Schools
No due process required.
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[Con Law] Procedural Due Process Procedures Required Driver's License Suspension
Prior evidentiary hearing except for breathalyzer test suspension statutes.
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[Con Law] Procedural Due Process Procedures Required Terminatoin of Parent's Custodial Rights
Notice and a hearing before termination.
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[Con Law] Procedural Due Process Procedures Required Civil Forfeitures
Prior notice and hearing for real property, subsequent notice and hearing for personal property.
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[Con Law] Procedural Due Process Procedures Required Punitive Damages
Instructions to the jury and judicial reviewnothing grossly excessive.
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[Con Law] Procedural Due Process Procedures Required Detention of Citizen Enemy Combatants
Subsequent notice and a meaningful opportunity to contest factual basis for detention before a neutral decision maker.
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[Con Law] Procedural Due Process Procedures Required Pre-Judgment Attachment and Government Seizures
Pre-deprivation due process is required except in exigent circumstances. Government may seize property used in illegal activity, even from an innocent party.
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[Con Law] Substantive Due Process
Substantive Due Process guarantees that when one is deprived of life, liberty or property , one is entitled to an adequate reason . Substantive Due Process now also protects various privacy interests .
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[Con Law] Substantive Due Process Fundamental Rights (Strict Scrutiny)
Regulation of fundamental rights is subject to strict scrutiny, which includes: (1) the right to marry ; (2) the right to procreate ; (3) the right to custody of ones children (although the state may create a rebuttable presumption a married womans husband is the father of her child; (4) the right to keep a family together (including extended family); (5) the right to control the upbringing of ones children (government cannot order grandparent visitation or choose a childs school); (6) the right to purchase and use contraceptives ; (7) the right to abortion ; (8) the right to engage in private consensual homosexual activity ; (9) the right to refuse medical treatment ; and (10) the right to read obscene material in ones home (except for child pornography).
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[Con Law] Substantive Due Process Fundamental Rights (Strict Scrutiny) Abortion (Casey) Pre-Viability
Prior to viability, states may not prohibit abortions, but may regulate them so long as the regulation does not create an undue burden on the ability to obtain abortions . Valid regulations include: (1) 24-hour waiting periods; (2) requiring performance by licensed physicians; (3) banning partial birth abortions; and (4) requiring distribution of information to ensure informed consent.
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[Con Law] Substantive Due Process Fundamental Rights (Strict Scrutiny) Abortion (Casey) Post-Viability
After viability, states may prohibit abortions, unless necessary to protect the womans life or health .
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[Con Law] Substantive Due Process Fundamental Rights (Strict Scrutiny) Abortion (Casey) Additional Rules
The government does not have a duty to subsidize abortions or provide them in public hospitals. Spousal notification laws are unconstitutional, as the right belongs to a woman alone. A state may require parental notice and/or consent for an unmarried minors abortion, so long as it creates a judicial bypass to determine if its in the minors best interest or they are sufficiently mature.
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[Con Law] Substantive Due Process Fundamental Rights (Strict Scrutiny) Right to Refuse Medical Treatment
Competent adults have a right to refuse medical treatment, even life-saving treatment like food and water. A state may require clear and convincing evidence that a person wanted treatment terminated or prevent family members from terminating anothers treatment.
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[Con Law] Substantive Due Process No Fundamental Right
There is no fundamental right to education or physician-assisted suicide .
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[Con Law] Equal Protection
Equal Protection ensures the governments differential treatment of people is adequately justified.
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[Con Law] Equal Protection GovernmentAction
The Equal Protection Clause is limited to state and local government action under the 14 th Amendment, but applies to the federal government as well through the 5 th Amendment Due Process Clause.
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[Con Law] Equal Protection Classifications
If a fundamental right or suspect classification is involved, strict scrutiny is used to evaluate the regulation. If a quasi-suspect classification is involved, intermediate scrutiny is used. For all other classifications, the rational basis standard applies.
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[Con Law] Equal Protection Classifications Race or National Origin
Classifications involving race or national origin are subject to strict scrutiny . If a law is facially neutral , though, one must demonstrate both discriminatory impact and discriminatory intent .
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[Con Law] Equal Protection Classifications Race or National Origin Affirmative Action
Affirmative action legislation is subject to strict scrutiny as well. The court has found that: (1) numerical set-asides require clear proof of past discrimination ; (2) educational institutions may use race as one factor in admission decisions, but may not use a point-based admissions system using race; and (3) public school systems may not use race as a factor in assigning students to schools unless it meets strict scrutiny thus far, racial diversity is only a compelling interest in college.
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[Con Law] Equal Protection Classifications Gender and Legitimacy
Classifications involving gender and legitimacy are subject to intermediate scrutiny and require an exceedingly persuasive justification . If a law is facially neutral , one must demonstrate both discriminatory impact and discriminatory intent .
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[Con Law] Equal Protection Classifications Gender and Legitimacy Benefitting Women
Laws benefitting women are subject to intermediate scrutiny . Courts have found that: (1) classifications based on role stereotypes are not permitted; but (2) classifications intended to remedy past discrimination and disparity in opportunity are okay.
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[Con Law] Equal Protection Classifications Alienage
Classifications involving alienage are generally subject to strict scrutiny , except in the following cases
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[Con Law] Equal Protection Classifications Alienage Self-Government and Democratic Process
Classifications involving alienage that concern self-government and the democratic processvoting; serving on a jury; becoming a police officer, teacher or probation officer, but not notary publicare subject to rational basis scrutiny.
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[Con Law] Equal Protection Classifications Alienage Congressional Discrimination
Classifications involving congressional discrimination against aliens are subject to rational basis scrutiny, and are impermissible only where the discrimination is arbitrary and unreasonable (as Congress has plenary power over immigration).
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[Con Law] Equal Protection Classifications Alienage Undocumented Aliens
Classifications involving undocumented aliens are subject to rational basis scrutiny.
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[Con Law] Equal Protection Classifications Alienage Undocumented Alien Children
Classifications involving undocumented alien children are subject to intermediate scrutiny .
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[Con Law] Equal Protection Classifications Everything Else
Classifications involving age , disability , wealth , economic regulations , sexual orientation , and anything else are subject to rational basis scrutiny.
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[Con Law] First Amendment - Free Speech
The 1 st Amendment prohibits Congress from abridging the freedom of speech, and is applicable to the states through the 14 th Amendment.
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[Con Law] First Amendment - Free Speech Content-Based Restrictions
Content-based restrictions are those that relate to the subject matter (topic) or viewpoint (ideology) of speech are subject to strict scrutiny .
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[Con Law] First Amendment - Free Speech Content-Neutral Restrictions
Content-neutral restrictions that burden speech are subject to intermediate scrutiny , and must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests.
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[Con Law] First Amendment - Free Speech Prior Restraints
Prior restraints are judicial orders or administrative systems (not legislative) that stop speech before it occurs, and are presumptively invalid unless the government can show some special societal harm justifying restraint (e.g., national security, preserving a fair trial, contractual agreement, military circumstances, obscenity). For such a prior restraint to be procedurally valid: (1) the standards must be narrowly drawn, reasonable and definite ; (2) the restraining body must promptly seek an injunction ; and (3) there must be prompt and final determination of the validity of the restraint.
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[Con Law] First Amendment - Free Speech Prior Restraints Chemerinsky (Summary)
Court orders suppressing speech must meet strict scrutiny , although a procedurally proper court order must be complied with until vacated or overturned. One violating a court order is collaterally barred from later challenging it. Gag orders on the press to prevent prejudicial pre-trial publicity are typically unconstitutional.
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[Con Law] First Amendment - Free Speech Prior Restraints Licensing Speech
The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion on the licensing authority. Licensing schemes must contain procedural safeguards such as: (1) prompt determination of requirements for licenses, and (2) judicial review .
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[Con Law] First Amendment - Free Speech Vagueness
A law is unconstitutionally vague and violative of Due Process if a reasonable person cannot tell what speech is prohibited and what is allowed.
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[Con Law] First Amendment - Free Speech Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated. Such a regulation is facially invalid and unenforceable against anyone.
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[Con Law] First Amendment - Free Speech Symbolic Speech
The government can regulate symbolic speech (i.e., conduct undertaken to communicate an idea) if: (1) the regulation is within its constitutional power ; (2) it has an important interest unrelated to suppression of the message, and (3) the impact on communication is no greater than necessary to achieve the governments purpose. Examples : Protected symbolic speech includes: (1) flag burning, and (2) cross burning (unless done with intent to threaten). Unprotected symbolic speech includes: (1) burning draft cards, and (2) nude dancing. Contribution limits in election campaigns are constitutional, but expenditure limits are not.
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[Con Law] First Amendment - Free Speech Anonymous Speech
Anonymous speech is protected .
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[Con Law] First Amendment - Free Speech Government Speech
Government speech cannot be challenged under the 1 st Amendmentthus, one cannot challenge the governments decision to install a monument in a park.
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[Con Law] First Amendment - Free Speech Unprotected Speech
The government has a compelling interest in some unprotected categories of speech.
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[Con Law] First Amendment - Free Speech Unprotected Speech Incitement of Illegal Activity
The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed at causing imminent illegality.
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[Con Law] First Amendment - Free Speech Unprotected Speech Fighting Words
Fighting words (true threats) is unprotected speech, but the Supreme Court has always found statutes regulating fighting words to be unconstitutionally vague and overbroad .
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[Con Law] First Amendment - Free Speech Unprotected Speech Obscenity and Sexually-Oriented Speech
Obscenity and sexually oriented speech are obscene where it describes or depicts sexual content that, taken as a whole by the average person : (1) appeals to the prurient interest (shameful or morbid interests in sex) using a community standard ; (2) is patently offensive to community standards ; and (3) lacks serious artistic, literary, political or scientific value using a national standard .
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[Con Law] First Amendment - Free Speech Unprotected Speech Obscenity and Sexually-Oriented Speech Zoning Ordinances
The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters for the purpose of reducing secondary effects .
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[Con Law] First Amendment - Free Speech Unprotected Speech Obscenity and Sexually-Oriented Speech Child Porn
Child pornography may be completely banned even if not obscene, but not pornography involving computer-generated images or young-looking actors.
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[Con Law] First Amendment - Free Speech Unprotected Speech Obscenity and Sexually-Oriented Speech Private Possession
The government may not punish private possession of obscene materials, except for child pornography.
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[Con Law] First Amendment - Free Speech Unprotected Speech Obscenity and Sexually-Oriented Speech Asset Seizure
The government may seize the assets of a business convicted of violating obscenity laws.
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[Con Law] First Amendment - Free Speech Unprotected Speech Obscenity and Sexually-Oriented Speech Profane and Indecent Speech
Profane and indecent speech is generally protected, except over the broadcast media and in schools (where the government can regulate more heavily).
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[Con Law] First Amendment - Free Speech Commercial Speech
Advertising for illegal activity and false and deceptive advertisements are unprotected . Commercial speech that inherently risks deception can also be prohibited (e.g., the government ma prohibit professionals from practicing under a trade name, or attorneys from in-person solicitation of clients for profit). Truthful commercial speech, however, is protected .
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[Con Law] First Amendment - Free Speech Commercial Speech Burdening Lawful, Non-Misleading, Non-Fraudulent Speech
Speech that proposes lawful activity that is not misleading or fraudulent may be burdened if the regulation: (1) serves a substantial government interest , (2) directly advances that interest, and (3) is narrowly tailored to serve that interestthis is a form of intermediate scrutiny .
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[Con Law] First Amendment - Free Speech Defamation Public Official
A public official may recover only by proving falsity of the statement and actual malice (i.e., knowledge of falsity or reckless disregard of the truth).
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[Con Law] First Amendment - Free Speech Defamation Public Figure
A public figure may recover only by proving falsity of the statement and actual malice .
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[Con Law] First Amendment - Free Speech Defamation Private Figure and Matter of Public Concern
A private figure, regarding a matter of public concern, may recover only by proving falsity of the statement and at least negligence by the defendant. By showing actual malice , he may also recover presumed or punitive damages .
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[Con Law] First Amendment - Free Speech Defamation Private Figure and No Matter of Public Concern
A private figure, regarding a matter not of public concern, is entitled to recover presumed or punitive damages without showing actual malice .
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[Con Law] First Amendment - Free Speech Privacy and Reporting
The government may not create liability for truthfully reporting information that was lawfully obtained from the government (e.g., press received a rape victims identity from government records). Where the media broadcasts a tape of an illegally intercepted call , the media is not liable so long as they (1) did not participate in the illegality and (2) it is a matter of public importance . The government may limit its dissemination of information to protect privacy , though, except that the press and public have a right to attend criminal trials and pre-trial proceedings.
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[Con Law] First Amendment - Free Speech Speech by Government Employees
Speech by government employees on the job, in the performance of their duties, is not protected.
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[Con Law] First Amendment - Free Speech Public Forums
Public forums are government properties that the government is constitutionally required to make available for speech and include areas that are historically open to speech, such as sidewalks and parks.
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[Con Law] First Amendment - Free Speech Public Forums Content-Based Speech in Public Forums
Content-based restrictions are subject to strict scrutiny .
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[Con Law] First Amendment - Free Speech Public Forums Time, Place, and Manner
The government can regulate using reasonable time, place and manner restrictions so long as they are: (1) content-neutral , (2) narrowly tailored to serve an important government interest , and (3) leave open alternative channels of communication. This is a form of intermediate scrutiny , in which the government must use the least restrictive alternative .
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[Con Law] First Amendment - Free Speech Public Forums Licenses
City officials cannot have discretion in setting permit fees for public demonstrations.
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[Con Law] First Amendment - Free Speech Designated Public Forums
Designated public forums are government properties the government could close to speech, but chooses to open to speech on a permanent or limited basis these are not places that are historically open to speech (e.g., public schools). The rules for public forums apply similarly here.
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[Con Law] First Amendment - Free Speech Limited Public Forums
Limited public forums are government properties that are limited to certain groups or dedicated to the discussion of only some subjects (e.g., ads on the side of a bus). The government can regulate in limited public forums so long as: (1) it is viewpoint-neutral and (2) satisfies rational basis scrutiny.
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[Con Law] First Amendment - Free Speech Non-Public Forums
Non-public forums are government properties that the government constitutionally can and does close to speech . Examples include military bases, areas outside prisons and jails, sidewalks on post office property and airports. The government can regulate in limited public forums so long as: (1) it is viewpoint-neutral and (2) satisfies rational basis scrutiny.
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[Con Law] First Amendment - Free Speech Private Property
There is no 1 st Amendment right of access to private property for speech purposes.
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[Con Law] First Amendment - Freedom of the Press
Generally, the press has no greater 1 st Amendment freedom that a private citizen . The public and press are guaranteed the right to attend a criminal trial , but the right may be outweighed by an overriding interest stated in the trial judges findings.
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[Con Law] Broadcasting
Viewers and listeners have a right to receive information of public concern , but the government may prohibit indecent speech over the airwaves. Regulations of broadcast media are subject to something less than strict scrutiny , and regulations of cable are subject to intermediate scrutiny .
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[Con Law] First Amendment - Freedom of the Press
Under the 1 st Amendment, one has a right to freedom of association. Laws that prohibit or punish group membership must meet strict scrutiny . To punish membership in a group it must be proven that the person actively affiliated with the group knowing of its illegal activities and with the specific intent of furthering those illegal activities .
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[Con Law] First Amendment - Freedom of the Press Disclosure of Membership
Laws that require disclosure of group membership, where such disclosure would chill association , must meet strict scrutiny although one may inquire into these activities that are relevant to the employment or benefit sought.
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[Con Law] First Amendment - Freedom of the Press Laws Prohibiting Group Discrimination
Laws that prohibit a group from discriminating are constitutional, unless they interfere with intimate association (small group) or expressive activity (e.g., the KKK can exclude blacks).
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[Con Law] First Amendment - Freedom of the Press Electoral Process
A statute limiting election campaign contributions is subject to intermediate scrutiny . The government may not, however, limit the amount of money spent by a candidate.
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[Con Law] First Amendment - Religion Free Exercise Clause
The 1 st Amendment Free Exercise Clause prohibits the government from punishing someone on the basis of her religious beliefs . A court can inquire into the genuineness of ones belief in the religion, but will not declare a religious belief to be false. Where a law is a neutral law of general applicability , it is subject only to the rational basis test the free exercise clause may not be used to challenge such a law. Where the law is not neutral or generally applicable, though, it is subject to strict scrutiny .
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[Con Law] First Amendment - Religion Free Exercise Clause Government Benefits
The government may not deny benefits to individuals who quit their jobs for religions reasons.
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[Con Law] First Amendment - Religion Establishment Clause
The 1 st Amendment Establishment Clause prohibits laws respecting the establishment of religion . If a law contains a sect preference or discriminates against religious speech , it is subject to strict scrutiny . If there is no sect preference, a court will use the Lemon test.
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[Con Law] First Amendment - Religion Establishment Clause Lemon Test
A law is unconstitutional if it fails any of the following prongs: (1) the law must have a secular purpose ; (2) the primary effect must be neither to advance nor inhibit religion ; and (3) there cannot be excessive government entanglement with religion.
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[Con Law] First Amendment - Religion Establishment Clause Public Schools
Government-sponsored religious activity in public schools is unconstitutionalincluding voluntary school prayer and moments of silent prayer but religious student and community groups must have the same access to school facilities as non-religious groups.
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[Con Law] First Amendment - Religion Establishment Clause Parochial Schools
The government may provide assistance to parochial schools so long as the assistance is not used for religious instruction. Further, the government may provide parents with vouchers that they use in parochial schools.
