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?
