Bar-ConLaw Flashcards
Self Executing Treaties
Ca be implicit–effective without any implementation of Congress, or explicit–they say so
Self Executing Treaty has supremacy over conflicting state law
Case and Controversy Requirement
There must be a real, live controversy at all stages of the suit.
Must be harm or imminent threat of harm ( a law that will harm you when it takes effect in 2 years is not imminent enough)
In a class action it is not neccesary for named plaintiffs to have viable case at all stages so long as some members have a live claim.
Right to Vote
Comes under DP and EP
DP:
Fundamental–restrictions subject to strict scrutiny,
very short residency requirements (30 days) have been upheld bug longer ones have not.
EP: Cant have distrcits of different sizes–one person one vote—applies to elections at EVERY level. Not applicable when elections are at large.
Right to Travel
Fundamental plus priv OR imm clause
Art III, section 2
Supreme Court’s Original Jurisdiction: in all cases affecting ambassadors, other public ministers, and consuls, in which states is a party.
In Parens Patriae
act as a rep of its citizens.
SCOTUS lacks jursidiction over cases brought in parens patriae
Right to Education
NOT a fundamental Right
Intergovernmental Immunity
State and local governments cannot tax or regulate the activities of the federal government. (or prosecute)
Congress’s Spending Power
Congress may regulate states through its spending power by imposing conditions on the grant of money–such conditions will not violate the 10th merely because Congress lacked the authority to directly regulate the activity so long as conditions
- are clearly stated 2. relate to the purpose of the prgram and 3. are not unduly coercive.
Equal Protection–Aliens
State classifications based on aliens are subject to strict scrutiny and must serve a compelling state interest.
Cant discriminate against all or a subset of aliens withouth passng SS>
Regulation of Commercial Speech on Government Property (city owned property)
OK as long as viewpoint neutral and reasonably related to legitimate govt interest in avoiding controversy
Sides of Govt buildings/busses do not count as public forums.
Regulations on Commercial Speech in general
Restrictions must be narrowly tailored to serve a substantial government interest directly advanced by the restriction
Equal Protection-Gender
Must pass INTERMEDIATE Scrutiny
Strike down unless government offers an exceedingly persuasive justification that the classification is substantially related to an important govt. interest.
Firing of Employees of Private Companies
private employer can fire employee for any reason not prohibited by state statute.,
Think state action issues.
Obscenity
Depiction of sexual conduct, taken as a whole, by the average person using contemporary community standards: i) appelas to the prurient interest in sex ii) portrays sex in a patently offensive way iii) using a rational, reasonable person standard, does not have serious literary artistic, political, , or scientific value.
Burdens to Foreign Commerce
Read broadly to include state regulations that favor domestic over foreign—
Rational basis standard applies to economic burdens–?
Prior Restraints
Court order prohibiting speech before it occurs
Must meet Strict Scrutiny
One who violates it is barred from later challenging it.
First Amendment-Defamation-Plaintiff is public official
P can recover for defamation by proving falsity of statement and actual malice (knowledge or recklessness)
First A–Defamation–Public Figure–
P can recover for defamation by proving falsity and actual malice
First A–Defamation–P= private figure
Matter of Public Concern–State may allow P to recover for defamation by proving falsity and negligence by the defendant. For punitive damages you need actual malice.
If Matter is NOT of public concern–P can recover presumed or punitive damages without showing actual malice
First A and Privacy
The government may not create liability for truthful reporting information that was lawfully obtained from the government.
First A and the Tort of Invasion of Property
In general it is a tort to public private info about someone, even if true, if reasonable person would object to having the info public. However, if matter is of public interest, its publication is privileged if made without actual malice, especially if info was lawfully obtained.
Due Process and Firing of Public Employees
Where a public employee can only be fired FOR CAUSE, she is entitled to a pretermination opportunity to respond to the charges and a later hearing.
Does congress have police power?
No but it MAY spend for the general welfare–congressional spending for general welfare upheld as long as reasonably related to revenue production or congress has power to regulate the taxed activity.
When is a (state) tax valid under the commerce clause
When it i) does not discriminate against interstate commerce ii) there is a substantial nexus between the activity taxed and the taxing state iii) the tax is fairly apportioned, and iv) the tax fairly relates to the services or benefits provided by the state.
What is a valid consideration as to whether a party can vail himself of a FEC claim
When someone claims they are being punished for religious belief—the court can inquire into the sincerity of their religious beliefs
Cant ask: if traditional, if theistic, if true
Market Participant Exception
Commerce cLause generally prohibits states from discriminating against out of state businesses (in form of a tax) in order to benefit themselves.
BUT–exception sas that Commerce clause does NOT prevent a state from preferring its own citizens when the state is acting as a market participant (buying or selling goods, hiring labor, giving subsidies)
Federal Postal Monopoly
No private or postal mail service without consent of Congress-and they delegated their power to the Postal Service.
Exception for extremely urgent messages.
What are president’s powers after a treaty that was and had to be ratified by senate?
Very broad—not much control.
Pres can prob void a treaty where the other party stopped complying
Thirteenth Amendment
13th prohibits slavery—has an enabling clause that gives Congress power to proscribe any private racially discriminatory action that can be characterized as a badge or incident of slavery
Who selects ambassadors and diplomats?
President–Senate can advise and give consent, cannot force an ambassador on the president.
Limited Public Forums
Govt can regulate speech based on subject matter of the speech, as long as regulation is rationally related to the purpose served by the property and does not discriminate on view point.
A courthouse may be a limited public forum. A school class used after hours?
Regulation of ForeignCommerce
Exclusively a federal power
–even a legitimate state interest will not justify.
Standing Reqs
Injury–P must prove that he or she has been injured, or if injunctive relief show a likelihood of future harm
Causation
Redressability
*no 3d party standing unless close relationship between P and injured party, and if 3d party could adequately rep interest, or if injured party unlikely to assert own rights; or
an org may sue for its members if members would have standing, interests are germane to org’s purpose, neither the claim nor relief requires participation of individual members
Standing and Tax
Being a tax payer does not give you standing—but
taxpayers have standing to challenge govt expenditures pursuant to federal, state, or local statues as violating th Establishment Clause. –not tax credits, property, or general expenditures of revenue
ripeness
Q of whether a federal court may grant pre-enforcement review of a statute or regulation
consider the hardship suffered w/o review
fitness of the issue and record for judicial review (does fed court have enough info or it is better to wait)
Mootness
need an ongoing injury so if events after filing of a lawsuit end the P’s injury–case dismissed as moot
exceptions: wrong capable of repetition (e.g. roe v. wade)
exception: class action suit–is OK as long as at least one member has an ongoing injury
Political Questions
Courts wont adjudicate following:
republic form of govt clause:
challenges to P’s foreign policy
challenges to impeachment and removal process
challenges to partisan gerrymandering
Supreme Court Review
with cert from State Supreme Court or US ct of Appeals
or: from three judge federal dist courts
and between state governments
what cases CANT lower federal and state courts hear?
cant hear:
suits against state governments
bc of sovereign immunity (11th A bars suits against states in fed govt, Soverign immunity bars suits against states in state courts)
SEE EXCEPTIONS
Under what (4) circumstances can a state be sued?
waiver
pursuant to federal laws adopted under section 5 of the 14th amendment
fed govt may sue state gov
bankruptcy
When are suits against stated officers allowed
for injunctive relief
money damages paid out of their pockets
if state treasury is paying retroactive damages
What is the principle of Abstention?
Federal courts may not enjoin pending state court proceeding?
Legislative Power–general power
- no general federal police power (except DC, military, indians, federal land/territories
Necessary and proper tax and spend for general welfare commerce section 5 of 14th (limit--10th, barely)
Commerce Clause
Congress may regulate channels of interstate commerce, instrumentalities of interstate commerce, and economic activities that have a substantial effect on interstate commerce
**where non-economic activity–cant use substantial effect/cumulative impact, and you cant regulate inactivity
10th amendment
rarely the answer, not much of a limit any more
says that all powers not granted to he US or prohibited to the states, are reserved to states or people
Can congress make states do things?
No.
May condition grants on stuff, if not too coercive.
may prohibit harmful commercial activity by states
Congress’s Section 5 Power under 14th
Congress cannot create new rights, or expand scope of rights.May only act to prevent or remedy violations of right recognized by courts and such laws must be proportionate and congruent to remedying constitutional violations.
Veto
Legislative Veto Not OK. you need bicameralism and presentment.
Pres. line item veto–vetoing only some parts of a bill.
Federal Executive Power
Exec has power over
foreign policy–treaties (negotiated by pres, ratified by senate)
executive agreements–no senate approval required–never unconstitutional.
Treaties, Exec Agreements, State law, Federal Law–what is supreme?
If treaty conflicts with US const–invalid.
If treaty conflicts with federal statute–last to be adopted control.
Treaty prevails over state law.
Exec agreements prevail over conflicting state law but never federal law or constituion
power over troops and war
Pres has broad power as commander in cheif to use troops in foreign nature
congress declares war
even without declaration of war pres will still be able to direct troops
Appointment Power
president appoints ambassadors, federal judges, officers,
congress my vest appointment of inferior offivers (who can be fired by officers) in pres, head of dept, lower courts (CANT give itself that power)
pres may not make recess appointments during INTRAsesson recesses of less than 10 days
Removal Power
Unless limited by statute, pres may fire any executive branch officer (think Nixon/Cox)
If congress wants to limit removal power—must be an office where independence from president is desirable and;
Congress can NOT prohibit removal–just limit to good cause.
Impeachment
who: pres, VP, federal judges and officers
how: treason, bribery, high crimes and misdeamenors
what: does not remove from office–house impeaches, senate tries (house majority, senate 2/3)
Presidential priv and immunity
Immunity to civil suits for money for actions taken during offie, not for before
privilege for papers and convos–but will yield to other important governmental interests
Presidential Pardon Power
Pres can pardon those convicted of FEDERAL crimes (NOT STATE)
Federal Preemption
Express
Implied—where laws are mutually exclusive, where state law impedes purpose of fed law, or where congress evidences a clear intent to occupy the field.
Intergovernmental Immunity
State may not tax or regulate federal governmental acitity
Dormant Commerce Clause
the negative implications of the commerce clause:
a STATE law will be unconstitutional under the commerce clause if it places an undue burden on commerce (even if congress has not acted)
Priv. AND immunities clause of the Article IV
No state may deny citz of other states of the rights it gives its own citz
Priv OR immunity clause of 14th
ALWAYS WRONG–only right to travel
how to analyze a possible dormant commerce, priv/imminity Q?
- does it discriminate against out of staters?
NO:
a. priv and immunity does not apply
b. undue burden on interstate commerce–dormant commerce clause violation.
YES
a. if law burdens interstate commerce–>violation of commerce unless neccessary to achieve important government purpose. unless:
- ->congressional approval
- ->MARKET participant exception: state/gov may prefer its own citizens in receiving benefits from governmental programs or in dealing with govt. owned businesses.
b. if law discriminate against out of staters w/r/t their ability to earn a living–this will violate priv. and immunity clause unless neccessary to achieve important govt. purpose.
State taxation of interestate commerce
states may not use tax system to help in state businesses
may only tax activities where there is substantial nexus to the state.
taxation of interstate bus must be FAIRLY apportioned.
Full faith and credit
where court had jurisdiction over parties and SMJ, j was on the merits, and j was final
State action
–generally, priv. conduct need not comply with constitute.
except: congres may apply const norms to private conduct via statute.
13th A can be used to prohibit private race disrcrim.
commerce power can be used to apply const normsl tp private conduct. (civil rights act!)
CANNOT use SECTION 5 of the 14th to regulate private behavior.
- ->where private entity performs govt functions (marsh)
- ->where govt entangled with/facilitates discrimination (racial covenants) (leasing premises to restaurants that racially discriminate)
Entanglement Exception to State Action
IS state action where
- courts enforce racially restrictive covenants
- govt. lease premises to restaurant that race disrim.
- state provides book to schools that racially discrim
- NO state action when priv school funded by govt fires teacher bc of speech
- NO state action when NCAA orders suspension of bball coach of state uni.
- YES where private entityt regulates interscholasitc sports
- NO when private club with a liquor licence from state and racially discriminates
What BOR have NOT incorporated?
Third.
5th–GJ
7th–jury in civil cases
8th–against excessive fines.
Rational Basis Test
If rationally related to legit government purpose
- challenger has burden of proof
- actual motivation irrelevent
- very deferential
Intermediate Scrutiny
Substantially related to important government purpose
- look at actual objective
- need not be least restrictive means
- government has burden of proof
Strict Scrutiny
Neccessary to achieve a compelling government purpose
*burden on govt.
least restrictive means test.
Due Process–defined
Procedural asks if sufficient procedures provided when depriving life liberty property
Substantive asks if adequate reason for doing so.
When is there a liberty deprivation?
loss of significant freedom provided by constitute or statute.
i.e. institutionalization
when is there a property deprivation?
if there is a entitlement and it is not fulfilled.q
What process is required?
Balance–
importance of interest to individual
ability of additional procedure to increase accuracy of fact finding
government’s inteerest
What process due before welfare benefits terminated?
notice and hearing BEFORE termination
What process due when SSI benefits terminated?
POST termination hearing
What process due before school disciplines child?
notice of charges and opp to explain
What process due before parent’s rights terminated?
pre termination notice and hearing
What process due before punitive damages
instructions to jury, judicial review of reasonableness
What process due before american citizen can be deemed enemy combatant?
due process!
What process due before pre judgement attachment of assets?
notice and hearing unless exigent circumstances
