Con Law Flashcards
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Can Private property lose it’s private nature when you invite the public?
Can Private property lose it’s private nature when you invite the public?
Rule 49: Private property does not lose its private nature just because the public is invited onto it, and any private store can exclude individuals trying to assert their 1st Amendment rights (
(e.g. if a large privately owned and operated shopping mall required that protesters peaceably distributing anti-war leaflets to leave the mall, this is constitutional even if the mall rents a small percentage of their space to the government because there is no implied right of free speech within a private shopping center and there is no state action warranting the application of the 1st and 14th Amendments). [2019]
Can a private property lose its private nature when the public Is invited on to it? May a private store exclude individuals assering their 1st amend rights?
Rule 49: Private property does not lose its private nature just because the public is invited onto it, and any private store can exclude individuals trying to assert their 1st Amendment rights (e.g. if a large privately owned and operated shopping mall required that protesters peaceably distributing anti-war leaflets to leave the mall, this is constitutional even if the mall rents a small percentage of their space to the government because there is no implied right of free speech within a private shopping center and there is no state action warranting the application of the 1st and 14th Amendments). [2019]
The First and Fourteenth Amendments generally apply only to actions by who?
Rule 50: The First and Fourteenth Amendments generally apply only to the actions of governments and government officials, not to the actions of privately owned companies, BUT courts have found state action where the government is significantly involved in the private entity or the private actor has exercised a public function, such as running a privately owned company town (e.g. if a private bank refuses to hire a person solely because he promotes controversial political views on his website, the person has no viable claim based on freedom of speech because a private entity is not subject to the provision of the 1st and 14th Amendments, which generally apply only to state actions, and not to private actions, even if the private entity is heavily regulated or affecting a public interest). [2013]
Does an association regarded as an agency of he state have to comport with the constitution ?
Rule 51: If an association is regarded as an agency of the state, the association must comport with the constitution and cannot discriminate on the basis of race, religion, or sex. [1992]
The Equal Protectio Clause may apply to a private citizen, if that person is __________?
Rule 52: While the Equal Protection Clause forbids only governmental discrimination, not private discrimination, it may apply to a private citizen if that person is an agent of the state and acting in that capacity. [1992]
What does the 13th amendment address?
Rule 54: The 13th Amendment address private acts of racial discrimination. [1991]
What does the 13th amendment prohibit?
Rule 55: The 13th Amendment prohibits public and private discrimination in housing. [1991]
The 14th amenddment does not directly apply to ______ action. It only applies to _____ action.
Rule 56: The 14th Amendment does not directly apply to federal action, only to state action. [1991]
When can the Equal Protection clause apply to a private school?
Rule 57: The Equal Protection clause of the 14th Amendment can apply to a private school if the state is highly involved in school regulation and support. [1991]
Does licensure by a government body make the individual a state actor?
Rule 58: Licensure by a government body does not make an individual a state actor (e.g. displaying a bumper sticker on a vehicle is symbolic political speech, which may not be regulated unless the state shows a compelling need that is closely related to the regulation). [1991]
Revocation of a professional or operating license is a deprivation of liberty or property and requires Due Process. BUT a license may be revoked withou a hearing if WHAT?
Rule 59: Generally, an administrative revocation of a professional or business operating license is a deprivation of Liberty or Property that requires notice and a hearing under the procedural Due Process Clause of the 14th Amendment, BUT a license may be revoked without a hearing upon the holder’s conviction of a crime if the adjudicative facts necessary to revoke the license are determined in the criminal trial (e.g. if a pharmacist is found guilty of the crime of selling narcotics without a prescription, the pharmacist’s license can be revoked without an opportunity for a trial-type hearing before revoking the license). [2019]
When does the due process clause obligates a government agency to provide an indivdual with an opportunity for a hearing?
Rule 60: The due process clause obligates a government agency to provide an individual with an opportunity for a hearing only when the agency makes an adjudicatory decision that deprives the individual of a property or liberty interest that is protected by the clause (e.g. if Congress enacts a statute to provide new agricultural subsidies to eligible farmers on a discretionary basis, if a farmer applies for the subsidy but his application is denied by the federal agency administering the subsidies, the farmer’s demand for a hearing will be denied because the farmer has no due process rights - the new statute gives the farmer no legitimate claim of entitlement to receive a subsidy (i.e. no property or liberty interest in the subsidies) since the statute provides the agency with discretion in selecting subsidy recipients). [2013]
Does a private entity that receives some public funding satisfy the nexus for state action under the 14th amendment?
Rule 61: A private entity that provides a public service or receives some public funding does not sufficiently satisfy the required nexus for state action under the Fourteenth Amendment - there must be something more than mere regulation/ funding for the actions of a private entity to be attributable to the state (e.g. if P is fired by his employer, a private college that receives 30% of its funding from the state, because P uploaded on YouTube a feverish denouncement on the high cost of education, P cannot recover on 1st Amendment grounds because the private employer’s action cannot be imputed to the state for purposes of the 14th Amendment). [2011]
Federal law that requires new security measures in airports only to individuals of one race is unconstitutional UNLESS what?
Rule 62: A federal law that requires new security measures in airports that apply only to individuals of one race is unconstitutional as a violation of the due process clause of the Fifth Amendment, UNLESS the government can prove the racial classification is necessary to serve a compelling public interest (a standard that the government cannot typically meet). [2008]
When a minor seeks to have an abortion, a state law requiring parental notification is constitutional, so long as it contains what?
Rule 63: When a minor seeks to have an abortion, a state law requiring parental notification is constitutional, so long as it contains a judicial bypass where the minor can petition a judge to authorize her physician to perform an abortion without parental notification if the judge finds the minor is mature and capable of giving informed consent. [2006]
A licensing orddinance does not give licensees a property interest in being free of competition from additional licensees and thus they do not have the right to _________?
Rule 64: A licensing ordinance does not give licensees a property interest in being free of competition from additional licensees and, accordingly, they do not have a right to demand a hearing for the purpose of objecting to additional licensees. [1998]
What standard will the court use where a govermental action affects fundamental rights such as marriage, child- bearing, and child-rearing?
Rule 67: Where a governmental action affects fundamental rights such as marriage, child- bearing, and child-rearing, the court will use strict scrutiny and the burden of persuasion is on the state to show the law is necessary to achieve a compelling government purpose and is the least restrictive alternative. [1992]
A statute that permanetly removes children from their parents due to child abuse is subject to what standard?
Rule 68: Since parents have a fundamental right to raise their children, a state statute that permanently removes children from their parents due to child abuse is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest. [1992]
If state law does not require it, do government employees of the state have a right to be rehired after their probationary period expires?
Rule 69: If state law does not require it, government employees of the state do not have a right to be rehired after their probationary period expires, nor is there a requirement for a statement of reasons or an opportunity for a hearing. though procedural due process may require a hearing if the employee relied on an oral promise from the employer. [1992][1992]
A state statute banning contraceptive sales to minors may be unconstitutional because ?
Rule 70: A state statute banning contraceptive sales to minors may be unconstitutional because it denies minors one of their fundamental rights without due process. [1992]
What procedures are required for the required for the institutionalization of adults, welfare benefits, disability benefits, public employment, public education discipline, termination of child custody, and civil forfeitures of real property
Rule 73: Notice and a pre-termination hearing or opportunity to explain/ respond to the charges are required for the institutionalization of adults, welfare benefits, disability benefits, public employment, public education discipline, termination of child custody, and civil forfeitures of real property. [1991]
What standard of review will education be granted (wealthy district vs poor)
Rule 74: There is no fundamental right to education guaranteed in the Constitution, and the Equal Protection Clause does not require exact equality or precisely equal advantages among school districts. Thus, if a wealthy school district raises substantially more tax revenue for education than a poor school district, no fundamental right is involved and the claim will be subject to rational basis review. In such a case, no suspect class is involved (nor is any quasi-suspect class) because the poor are not considered to be a suspect class. Since a fundamental right is not involved, the claim will be subject to rational basis and the plaintiffs must show the action is not rationally related to a legitimate state interest. Under this test, the plaintiff’s claim will fail because the government has a legitimate state interest in giving control over education to local communities and the property tax system is rationally related to that interest. [2019]
The right to travel (under the Privileges and Immunities Clause of the 14th Amendment) includes the rights of _______ to enjoy the same privilages an immunites as are enjoyed by other citizens of the state BUT _________ requirements are valid for obtaining a divorce/reduced tuitio
Rule 75: The right to travel (under the Privileges and Immunities Clause of the 14th Amendment) includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state and durational residency requirements for dispensing govt benefits are subject to strict scrutiny (e.g. a state cannot give reduced benefits to new residents who have lived in the state for less than 2 months versus full benefits it provides to other residents), BUT reasonable residency requirements are valid for obtaining a divorce or reduced tuition at state universities. [2019]
Economic regulations and wealth discrimination need only satisfy what standard of review?
Rule 76: Economic regulations and wealth discrimination need only satisfy the rational- basis standard (e.g. poverty is not a suspect class)- thus, in cases of economic discrimination, the 14th Amendment does not apply (e.g. a zoning ordinance that prohibits the construction of low- income housing need only be rationally related to a legitimate state interest UNLESS it can be shown that low-income residents would not be able to afford any housing due to the ordinance). [2019]
The Contracts Clause prohibits state or local interference with existing contracts, The court exaines 3 factors to determine if the law is constitutional?
Rule 77: The Contracts Clause prohibits state or local interference with existing contracts. This prohibition is only applicable to contracts already in force - it does not apply to future contracts. If a state passes a law which impairs the obligations of an existing contract, the court examines 3 factors to determine if the law is constitutional:
(1) has the law substantially impaired an obligation of an existing contract;
(2) does the government have a significant and legitimate reason for the impairment; and
(3) is the law based on reasonable conditions and is it appropriate to the public purpose underlying the law. [2019]
A state’s interest in protecting children must be balanced against a parent’s interest in being able to raise their children in an environment free from government interference, what standard would be used?
Rule 78: A state’s interest in protecting children must be balanced against a parent’s interest in being able to raise their children in an environment free from government interference - this fundamental right to family integrity requires that a state’s termination of parental rights be subject to strict scrutiny. As such, a state can only terminate parental rights if the child is subjected to real physical or emotional harm and allowing the parent-child relationship to continue is more severe than the consequences of termination. [2019]
The imposition by a state of minimum durational residency requirements as a basis for receipt of state benefits generally violates the Equal Protection Clause (e.g. a state CANNOT impose a 1 year residency requirement for children to attend public schools in the state), BUT states can burden the right of ___________ if these interests do not ______ and are not considered _________?
Rule 79: The imposition by a state of minimum durational residency requirements as a basis for receipt of state benefits generally violates the Equal Protection Clause (e.g. a state CANNOT impose a 1 year residency requirement for children to attend public schools in the state), BUT states can burden the right of interstate travel and violate equal protection if these interests do not involve the necessities of life, and are not considered fundamental rights (e.g. states can impose a 1 year residency requirement for lower tuition at state universities or charge higher fees to non-residents to obtain a hunting license because these interests do not involve the necessities of life). [2017]
A school dress code or uniform policy is constitutional if it: [4 requirments]
Rule 80: A school dress code or uniform policy is constitutional if it:
(1) is authorized under state law;
(2) advances an important government interest;
(3) is not related to the suppression of free expression; and
(4) only incidentally restricts free expression in a minimal fashion (e.g. if a public high school, in order to promote an educational environment, enacts a dress code prohibiting its students from wearing V-neck shirts because they are a distraction, if the female students stop wearing V-neck shirts but the male students continue to wear them because they are in style, if the male students sue the school on the ground that the code violates the equal protection of the laws, the court will uphold the dress code because it is rationally related to a legitimate state interest and there is no evidence showing a discriminatory purpose). [2013]
Why is the exclusion of aliens from service on grand ant petit jury pannels not a denial of equal protection?
Rule 81: The exclusion of aliens from service on grand and petit jury panels in state and federal courts does not deny resident aliens equal protection - the state has a legitimate interest in the restriction of jury service to those who will be loyal to, interested in, and familiar with, the customs of this country (e.g. if a lawful resident alien sues a state when he was dismissed from jury duty solely due to a state law requiring U.S. citizenship for jury service, the court will rule for the state since a state may exclude aliens from functions that are a fundamental part of the self- government process since such a classification only need to be rationally related to the state’s legitimate interest in ensuring only U.S. citizens partake in fundamental political functions such as voting or running for office). [2013]
What standard of review will a person’s right to marry be granted?
Rule 82: A perso’s decision to marry is a fundamental right requiring strict scrutiny and any state regulation that unduly burdens such a right without a compelling state interest fails this stringent test. [2011]
Will a statute that requires mandatory attendance of a public school be constitutional?
Rule 83: Parents have a fundamental right to control the upbringing and education of their children (e.g. a statute that requires mandatory attendance of a public school for children is unconstitutional because it fails strict scrutiny by unreasonably infringing with the liberty of parents to direct the education of their children through private school or homeschooling). [2011]
When is the rational basis test triggered?
Rule 84: The rational basis test is triggered when legislation or gov’t action discriminates against a non-suspect class, with the exceptio of sex/ gender discrimination (which requires intermediate scrutiny), BUT if the intent of the classification is not found to be based on sex/ gender, then only a rational basis review is necessary (e.g. an ordinance that requires baby- sitters to obtain a license must be rationally related to a legitimate gov’t objective, and does not trigger heightened scrutiny even though the ordinance will disproportionally affect women more than men b/ c there is no evidence of sex discrimination). [2008]
A statute tha requires medical diagnostic centers to be affiliated with hospitals is constitutional because it is _______? The statutute does not trigger heightend judicial scrutiny because ____?
Rule 85: A statute that requires medical diagnostic centers to be affiliated with hospitals is constitutional b/ c it is rationally related to a legitimate gov’t interest (the legislature could rationally believe that diagnostic centers not affiliated with hospitals are less reliable than hospitals, regardless of whether it is, in fact, correct) - the statute does not trigger heightened judicial scrutiny because it neither classifies regulatory subjects on a constitutionally suspect basis nor unduly burdens the exercise of a fundamental right. [2008]
A panel selection process that permits gender based classifications warrants WHAT type of scrutiny? What objectives must be met to have it be constitional?
Rule 86: A panel selection process that permits gender based classifications warrants intermediate scrutiny and must therefore serve an important government objective and must be substantially related to that objective. [1998]
A complex state system that limits access to the ballot to effectively preclude a new political party violates what?
“Rule 87: A complex state system that limits access to the ballot to effectively preclude a new political party violates the equal protection clause of the Fourteenth Amendment. [1998]”
A state statute that requires a certain percentage of state contracts to be awarded to minorities is unconstitutional and violates the _______ unless it what?
Rule 88: A state statute that requires a certain percentage of state contracts to be awarded to minorities is unconstitutional as violative of the Equal Protection Clause unless it is to vindicate a compelling government interest to redress past discrimination. [1998]
State statutory presumptions that students are not residents, making them ineligible to vote, are uunconstitional because ?
Rule 89: State statutory presumptions that students are not residents, making them ineligible to vote, are unconstitutional because there are less restrictive means by which the state could be assured that only actual residents of a community vote in its elections. [1992]
In a challenge of a state statute that prevents resident aliens from being employed by the state, the state has the burden of demonstrating _________
Rule 91: In a challenge of a state statute that prevents resident aliens from being employed by the state, the state has the burden of demonstrating that the citizenship requirement is necessary to advance an important state interest. [1992]
The distribution by the state of free textbooks to schools that promote racial segregation may be unconstitutional because ________?
Rule 92: The distribution by the state of free textbooks to schools that promote racial segregation may be unconstitutional as violative of the Equal Protection rights against discrimination. [1992]
The distribution by the state of free textbooks to schools that promote racial segregation may be unconstitutional because it violates the ________?
Rule 93: The distribution by the state of free textbooks to schools that promote racial segregation may violate the equal protection clause of the Fourteenth Amendment. [1992]
The strongest ground to challenge a state requirement that people seeking work licenses must have been residents of the state for at least two years is the ____________?
Rule 94: The strongest ground to challenge a state requirement that people seeking work licenses must have been residents of the state for at least two years is the equal protection clause of the Fourteenth Amendment (when the other options are: P&I of the 14th Amendment, DP clause of 14th Amendment, or the Obligations of Contracts Clause). [1992]
A state having to enforce a deed restriction that bars the sale of the property to anyone under 21 violates the _______?
Rule 95: A state having to enforce a deed restriction that bars the sale of the property to anyone under 21 violates the equal protection clause of the 14th Amendment. [1992]
A state requirement that residents must be literate in order to vote violates the _______
Rule 96: A state requirement that residents must be literate in order to vote violates the equal protection clause of the Fourteenth Amendment. [1992]
A state statute allowing only landowners to vote in a referendum concerning the establishment of a watershed improvement district ____________
Rule 97: A state statute allowing only landowners to vote in a referendum concerning the establishment of a watershed improvement district does not violate the Equal Protection Clause. [1992]
A state statute that distinguishes between common carriers and private individuals in economic related legislation is constitutional so long as __________
Rule 98: A state statute that distinguishes between common carriers and private individuals in economic related legislation is constitutional so long as there is a rational basis for the differentiation. [1992]
“A restriction of state tuition assistance to only U.S. citizens or resident aliens seeking citizenship is invalid because the justifications for this restriction are insufficient to overcome the burden imposed on a state when it uses such an alienage classification. [1992]”””
Rule 99: A restriction of state tuition assistance to only U.S. citizens or resident aliens seeking citizenship is invalid because the justifications for this restriction are insufficient to overcome the burden imposed on a state when it uses such an alienage classification. [1992]
The strongest argument against a state law that disinherits illegitimate unacknowledged children is that _______________
Rule 100: The strongest argument against a state law that disinherits illegitimate unacknowledged children is that the law violates the equal protection clause because it is not substantially related to an important governmental objective. [1992]
A statute that discriminates based on age may be in violation of the ______
Rule 101: A statute that discriminates based on age may be in violation of the Fifth Amendment equal protection clause if there is no relationship between age and the requirements of the statute. [1992]
A state giving grants to citizens but not aliens must meet which review standard?
Rule 102: A state giving grants to citizens but not aliens must meet strict scrutiny and must be necessary to advance a compelling state interest. [1991]
What is eminent domain?
“Rule 103: Eminent domain is the power of the government to take privately owned land for public use. Public use is defined broadly as ““public benefit”” or ““public welfare”” and so long as the taking is rationally related to a legitimate public purpose, the public use requirement will be satisfied. Thus, under the takings clause, a state can take land from a private party and transfer it to a private developer if the proposed development benefits the public. [2019]”
When will a governmental land-use be considered a taking requiring compensation ?
Rule 104: A governmental land-use regulation must deny substantially all practical uses of a property in order to be considered a taking requiring compensation (e.g. if a company, by claiming that a new statute effects a taking of its property by making its planned mining operations economically infeasible, sues an agency to recover its lost profits and the cost of mining equipment, the court will rule that the company should NOT recover the cost of the mining equipment or its lost profits since the new statute did not prevent all economic use of the land - the company can sell the land for farming, use the mining equipment on other land and expected profits do not constitute a property interest that is subject to government taking). [2013]
Under the Takings Clause of the Fifth Amendment, if the gov’t makes or authorizes a permanent physical occupation of private property, this action automatically results in a ______?
Rule 105: Under the Takings Clause of the Fifth Amendment, if the gov’t makes or authorizes a permanent physical occupation of private property, this action automatically results in a taking no matter how minor the interference with the owner’s use and no matter how important the government interest (e.g. if the gov’t wanted to construct surveillance facilities on a very small, unused portion of privately owned land that did not affect any of the owner’s uses, it is still a taking for which just compensation must be paid). [2008]
A local government regulation such as a zoning change that eliminates a property owner’s investment-backed expectation and economic value of the property would be considered a ________ under the _______ ?
Rule 106: A local government regulation such as a zoning change that eliminates a property owner’s investment-backed expectation and economic value of the property is a taking under the Fifth Amendment. [2006]
Zoning ordinances are a legitimate exercise of the police power If WHAT?
Rule 107: Zoning ordinances are a legitimate exercise of the police power if rationally related to a legitimate state interest such as health or safety, and the denial of a permit merely triggers rational basis scrutiny so long as the denial did not discriminate against a suspect or quasi-suspect class or unduly burden the exercise of a fundamental right. [2006]
The power of eminent domain can be delegated to a private entity so long as WHAT?
Rule 108: The power of eminent domain can be delegated to a private entity so long as the property is taken for public use and just compensation is paid. [1991]
What type of bill of attainder is unconstitional?
Rule 109: A bill of attainder is a legislative act that inflicts punishment on named individuals or on easily identifiable members of groups - if a law punishes named or easily identifiable persons, it is an unconstitutional bill of attainder - if the law punishes a type of conduct when engaged in by anyone, it is not a bill of attainder. [2011]
The Constitution prohibits ex post facto laws which are laws that operate retroactively to (4 requirments)
Rule 110: The Constitution prohibits ex post facto laws which are laws that operate retroactively to: (1) make criminal an act that when done was not criminal; (2) aggravate a crime or increase the punishment; (3) change the rules of evidence to the detriment of criminal defendants as a class; or (4) alter the law of criminal procedure to deprive criminal defendants of a substantive right (e.g. a new state criminal law that prohibits school employees from knowingly providing educational services to illegal aliens violates the ex post facto clause if a teacher is charged under the law for providing such services to aliens even though the services were provided prior to the adoption of the new law). [2011]
A statute enacted by Congress that names specific individuals and provides that they cannot hold any position of employment within the fed gov’t (whether or not currently employed by the gov’t) because they are suspected terrorists is an unconstitutional bill of attainder BECAUSE WHY?
Rule 111: A statute enacted by Congress that names specific individuals and provides that they cannot hold any position of employment within the fed gov’t (whether or not currently employed by the gov’t) because they are suspected terrorists is an unconstitutional bill of attainder b/ c it singles out particular individuals for punishment w/o a trial. [2008]
State legislation intended to deprive a state employee of a salary because of his objectionable conduct is an what?
Rule 112: State legislation intended to deprive a state employee of a salary because of his objectionable conduct is an unconstitutional bill of attainder (a legislative act that inflicts punishment on a person without a trial). [2006]
The privileges and immunities clause only applies to actions by _____ and does NOT apply to actions where ______?
Rule 113: The privileges and immunities clause only applies to actions by a state that discriminate against citizens of other states - it does not apply to actions where a state discriminates against its own residents. [2006]
A state statute that discriminates against nonresidents violates the __________ unless the statute is __________?
Rule 114: A state statute that discriminates against nonresidents violates the Privileges and Immunities clause of Article IV unless the statute is specifically aimed to address a problem caused by nonresidents. [1998]
What does the free exercise clause prohibit?
Rule 131: The Free Exercise Clause prohibits the government from imposing restrictions on someone on the basis of the perso’s religious beliefs and such restrictions may only be imposed if they are necessary to achieve a compelling state interest. However, the Free Exercise Clause cannot be used to challenge a neutral law of general applicability (i.e. no matter how much a law burdens religious practices, it is constitutional if it does not single out religious behavior for punishment and is not motivated by a desire to interfere with religion). Thus, as long as the government has a rational basis for a neutral law of general applicability, and the law isn’t specifically directed towards a religion, it is constitutional. [2019]
The three-prong test articulated in Lemon v. Kurtzman is what?
Rule 132: If a state passes a law to sell property to a church significantly below fair market value, it is a violation of the establishment clause because it violates the second prong of the three-prong test articulated in Lemon v. Kurtzman which requires that government actions: (1) have a secular legislative purpose, (2) have a principal or primary effect that neither advances nor inhibits religion, and (3) does not foster excessive government entanglement with religion. [2019]
To establish a violation of the free exercise clause, the challenger must show what?
Rule 133: To establish a violation of the free exercise clause, the challenger must show that the government action specifically targeted the religious practice in question (e.g. if a gov’t entity issues a permit to develop public lands sacred to a religious group specifically to suppress the religious practices of that group). [2008]
Sponsoring or including prayer in public school events or ceremonies violates the establishment clause of the _________, even when the prayer is _______
Rule 134: Sponsoring or including prayer in public school events or ceremonies violates the establishment clause of the First Amendment, even when the prayer is nondenominational and participation is voluntary. [2006]
To be regarded as obscene (and fall outside of the protections offered by the First and Fourteenth Amendment), the material must
Rule 143: To be regarded as obscene (and fall outside of the protections offered by the First and Fourteenth Amendment), the material must: (1) have as its dominant theme the appeal to prurient sexual interests; (2) be patently offensive to local community standards; and (3) lack serious literary, artistic, political or scientific merit. Mere portrayals of nudity are insufficient to justify a finding that a magazine or film is obscene as a matter of constitutional law (e.g. while graphic sex may be regarded as obscene, nudity alone is not obscene, BUT child pornography is per se obscene b/ c of the state’s interest in protecting children). [2019]
he government may not prohibit or punish group membership unless the law meets strict scrutiny, BUT the government may punish an individual for membership in an organization engaged in unlawful activity if the person is What? (3 requirments)
Rule 144: The government may not prohibit or punish group membership unless the law meets strict scrutiny, BUT the government may punish an individual for membership in an organization engaged in unlawful activity if the person is actively affiliated with the group, knows of its illegal activities, and has specific intent of furthering those illegal activities. [2019]
Commercial advertising concerning a lawful activity that is not misleading or fraudulent is entitled to a limited form of 1st Amendment protection. Generally, a restriction on commercial speech will be considered valid as long as it meets three criteria
Rule 145: Commercial advertising concerning a lawful activity that is not misleading or fraudulent is entitled to a limited form of 1st Amendment protection. Generally, a restriction on commercial speech will be considered valid as long as it meets three criteria: (1) it must seek to implement a substantial government interest, (2) it must directly advance that interest, and (3) it must go no further than necessary to accomplish its objective (e.g. if the state has an interest in protecting minors, the state cannot prohibit ALL commercial advertising for cigarettes, but it can more narrowly prohibit cigarette advertisements from being placed in media targeted at minors). [2019]
statute may be regarded as unconstitutionally vague and overbroad if the statute omits
“Rule 146: A statute may be regarded as unconstitutionally vague and overbroad if the statute omits a mens rea requirement and leaves too much discretion to the government in enforcing the statute (e.g. if a state law imposes penalties for ““any public statement containing false or misleading information about a service or product,”” it is unconstitutional under the overbreadth doctrine because lawful conduct could be made criminal under the terms of the statute). [2019]”
The public sidewalk in front of a government building (such as the capitol building) is traditionally regarded as a public forum, BUT even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech. Such restrictions will be upheld so long as they (4 requirments)
Rule 147: The public sidewalk in front of a government building (such as the capitol building) is traditionally regarded as a public forum, BUT even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech. Such restrictions will be upheld so long as they: (1) are content- neutral; (2) serve an important/ significant/ substantial government interest; (3) are narrowly tailored; and (4) they leave open ample alternative channels for communication of the information.Time/ place/ manner restrictions must be narrowly tailored, but not necessarily the least restrictive option. [2019]
Without a compelling interest, states may not bar or punish the publication of lawfully obtained truthful information about a matter of public importance unless what?
Rule 148: Without a compelling interest, states may not bar or punish the publication of lawfully obtained truthful information about a matter of public importance unless the statute is narrowly tailored to a state interest of the highest order (e.g. if a newspaper lawfully obtains truthful information about a matter of public significance such as a rape victim or juvenile defendant, state officials may not constitutionally punish publication of this information absent a compelling state interest). [2019]
Laws prohibiting the distribution of campaign literature that involves core political speech are subject to what standard of review?
Rule 149: Laws prohibiting the distribution of campaign literature that involves core political speech are subject to strict scrutiny and are generally stricken down unless they are narrowly tailored to a compelling state interest (e.g. a state law prohibiting gun stores from displaying political posters is unconstitutional, but a law that prohibits the distribution of campaign literature within 100 feet of a polling place during an election is constitutional). [2017]
The advertising of professional services is commercial speech, and the regulation of it is subject to only intermediate, rather than strict scrutiny. Commercial speech that is unlawful or misleading may be regulated freely, but commercial speech that is neither unlawful nor misleading may only be regulated if the government satisfies a three-prong test:
Rule 150: The advertising of professional services is commercial speech, and the regulation of it is subject to only intermediate, rather than strict scrutiny. Commercial speech that is unlawful or misleading may be regulated freely, but commercial speech that is neither unlawful nor misleading may only be regulated if the government satisfies a three-prong test: (1) the government must assert a substantial interest in support of its regulation; (2) the government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and (3) the regulation must be narrowly drawn. Intermediate scrutiny requires only that a challenged regulation be narrowly tailored, such that it promotes a substantial government interest that would be achieved less effectively absent the regulation - the regulation need not be the least speech-restrictive means of advancing the government’s interests, so long as it does not burden substantially more speech than necessary to achieve the intended goal (e.g. if a state enacts a statute that prohibits psychologists from mailing counseling ads to parents who lost their children within 30 days of the child’s death, the statute is a constitutional regulation of commercial speech under intermediate scrutiny because the regulation directly advances an important state interest of protecting the privacy of parents and reputation of counselors, without being substantially more restrictive than necessary). [2013]
A public employee who has joined a disfavored or subversive organization cannot be dismissed from public employment unless
Rule 151: A public employee who has joined a disfavored or subversive organization cannot be dismissed from public employment unless the employer can prove that the employee would have been dismissed, even if the employee had not exercised the right of freedom of association by joining the organization (e.g. if a mayor terminates a city gardener after learning that the gardener was running fundraisers outside of work for his sister who was running against the mayor in the upcoming mayoral election, the mayor’s action violates the employee’s constitutional right to freedom of expression and association, since political views or affiliations of a government employee cannot be a basis for termination unless certain views or affiliations are required to perform his duty effectively, such as with cabinet members or high policy makers). [2013]
content-based restriction on speech is subject to what standard of review?
Rule 152: A content-based restriction on speech is subject to a strict scrutiny standard of review, requiring the statute to be narrowly tailored to promote a compelling government interest and be the least restrictive means of furthering that interest (e.g. if Congress, in order to protect U.S. intellectual property from foreign companies, enacts a statute that makes it illegal for an employee to publish information on the internet about their employer without the employer’s permission, this statute is unconstitutional because a statute that restricts speech on the basis of content must pass strict scrutiny where it must be narrowly tailored to further a compelling state interest and there must be no less-restrictive means of achieving a compelling state interest). [2013]
Although states have a compelling interest in stopping discrimination, a private organization may refuse a member based on that organization’s message, because ?
Rule 153: Although states have a compelling interest in stopping discrimination, a private organization may refuse a member based on that organization’s message, because the forced inclusion of an unwanted person in a group infringes on the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints (e.g. if an environmental organization opposes a planned hotel construction in a forest to protect rare tree frogs, and denies membership to construction company employees when they seek to join the organization to weaken its opposition to the planned construction, the employees’ suit against the club (based on a local ordinance that prohibits any organization from discriminating on the basis of a perso’s political views) will fail, because the organization has the right to refuse membership to those who do not share its stated mission since forcing the organization to accept such applicants significantly affects its ability to express its views in violation of the 1st Amendment right to freedom of association). [2013]
False or deceptive commercial speech is ______ constitutionally protected by the 1st Amendment, even if ______?
Rule 154: False or deceptive commercial speech is NOT constitutionally protected by the 1st Amendment, even if the speaker did not know that the speech was false or misleading (e.g. if a state law makes drug companies strictly liable in tort for false factual claims about prescription drugs, a drug company will be found strictly liable if they make a claim about a prescription drug that is supported by available medical studies, but the claim is later found to be false in later medical studies). [2011]
If the government regulates speech in the public forum, any regulation of speech based on its content is subject to what standard of review?
Rule 155: If the government regulates speech in the public forum, any regulation of speech based on its content is subject to strict scrutiny - to be constitutional, the regulation must be necessary to serve a compelling state interest that is narrowly drawn to achieve that end (e.g. if a city ordinance prohibits all protests in residential areas except protests relating to a zoning law, the ordinance is an unconstitutional content-based regulation of speech that fails the strict scrutiny test since the city has no compelling government interest in allowing only zoning-related protests). [2011]
Freedom of association is guaranteed by the 1st and 14th Amendments and compelled disclosure of an associatio’s membership is unconstitutional because what?
Rule 156: Freedom of association is guaranteed by the 1st and 14th Amendments and compelled disclosure of an associatio’s membership is unconstitutional because the revelation of an individual’s membership identity could result in economic reprisal, loss of employment, threats of physical coercion, and other manifestations of public hostility, adversely impacting his right of free association (e.g. a state denial of a bar membership solely on the basis of an applicant’s refusal to disclose her past membership to a subversive group violates the applicant’s 1st Amendment freedom of association since it cannot inquire about a perso’s associations to determine his beliefs before withholding a benefit or right and must instead use a less restrictive means of furthering legitimate state interests (i.e. determining a bar applicant’s character and fitness) - in addition, the state cannot punish an individual for a mere membership in a subversive organization where he has no specific intent to further its illegal objective). [2011]
Expressive conduct might be classified as speech and given 1st Amm. protections if it: (2 req)
Rule 157: Expressive conduct might be classified as speech and given 1st Amm. protections if it: (1) intends to convey a particularized message; and (2) the audience was likely to understand the communication, BUT a state may prohibit certain expressive conduct and incidentally burden speech if it has a substantial interest in regulating the secondary effects of the conduct (e.g. even though a protester’s act of burning a U.S. flag is an exercise of free speech, if the protester burns the flag in the lobby of Congress, he can still be punished under a state law that prohibits the igniting of fires in public buildings). [2011]
A law that regulates commercial speech is _________?
Rule 158: A law that regulates commercial speech is unconstitutional unless it is narrowly tailored to serve a substantial gov’t interest
(e.g. a state law barring the solicitation of accident victims within a limited time period following an accident is constitutional b/ c it achieves the legitimate state interest of protecting the privacy of accident victims). [2008]
Article I, Section 8 of the Constitution gives Congress the plenary (exclusive) power to raise revenue through taxes for any _________?
Rule 159: Article I, Section 8 of the Constitution gives Congress the plenary (exclusive) power to raise revenue through taxes for any public purpose (e.g. a federal statute imposing a 10% national retail sales tax that negatively impacts the retail sale of newspapers is constitutional b/ c the tax is generally applicable and does not target press operations in violation of the 1st Amendment freedom of the press protections). [2008]
if a public municipality permits advertising on certain public forums (e.g. buses), strict scrutiny applies, and a public official may not refuse to permit the dissemination of a message in the public forum wholly on the basis of its content, unless
Rule 160: If a public municipality permits advertising on certain public forums (e.g. buses), strict scrutiny applies, and a public official may not refuse to permit the dissemination of a message in the public forum wholly on the basis of its content, unless that denial is necessary to serve a compelling government interest (if local churches are permitted to advertise on city buses, satanists who wish to advertise on the same buses cannot be refused). [2008]
In content-based regulation of speech, who bears the burden of proof?
Rule 161: A content-based regulation of speech is presumed to be unconstitutional so the gov’t, rather than the party challenging the ordinance, bears the burden of proof and must affirmatively justify the regulation (e.g. a city ordinance requiring all signs to be black and white, even political banners, is a content-neutral restriction of expression and must therefore satisfy intermediate scrutiny, which requires the city to prove that the ordinance is narrowly tailored to an important government interest and that it leaves open alternative channels of communications). [2008]
A state cannot prohibit the use of a meeting room available to the public unless
Rule 162: A state cannot prohibit the use of a meeting room available to the public unless it is necessary to vindicate a compelling state interest (morale or concerns about friction between students is insufficient). [2006]
A state law that makes it a crime to threaten violence against another person with the intent to cause that person to fear for his life or safety is constitutional as the First Amendment does not protect ______ or ______
Rule 163: A state law that makes it a crime to threaten violence against another person with the intent to cause that person to fear for his life or safety is constitutional as the First Amendment does not protect true threats, or statements meant to communicate an intent to place an individual or group in fear of bodily harm. [2006]
Under the substantial effects test, Congressional regulation falls within the Commerce power so long as what?
Rule 179: Under the substantial effects test, Congressional regulation falls within the Commerce power so long as the activities being regulated have a substantial effect upon interstate commerce - this test expands the commerce power because there no longer needs to be a direct effect, but only a substantial effect on interstate commerce. Thus, if the buying and selling of some local good or service has a substantial impact on interstate commerce, it is within the reach of the Commerce Clause, BUT Congress may not regulate the price of every good and service in the U.S., since the buying and selling of goods and services does not necessarily constitute interstate commerce because some buying and selling can take place purely intrastate and have no substantial impact on interstate commerce (e.g. if Congress finds that when combined, wages received by dry cleaning workers have a substantial impact on the national economy and on the flow of goods and services in interstate commerce, Congress can regulate wages paid by dry cleaners even if one dry cleaning store operates solely in a locality within a state). [2019]
Congressional legislation that directs the federal courts to reopen cases on which the courts have passed final judgment unconstitutionally violates the separation of powers, BUT if the judgment is not final what can result?
Rule 180: Congressional legislation that directs the federal courts to reopen cases on which the courts have passed final judgment unconstitutionally violates the separation of powers, BUT if the judgment is not final, Congress has the power to alter federal statutes and can direct federal courts to apply such new laws to all pending actions (e.g. if a defendant is found guilty of violating a fed statute, resulting in an injunction against D, if D appeals the decision and then Congress repeals the statute with retroactive effect before D’s appeal is decided on, the district court must vacate the injunction against D). [2013]
Under the Commerce clause of Article I, Section 8, Congress can prohibit discrimination in the rental of privately owned residential property because such discriminations can do what?
Rule 182: Under the Commerce clause of Article I, Section 8, Congress can prohibit discrimination in the rental of privately owned residential property because such discriminations, when combined, have a substantial effect on interstate commerce (e.g. it is constitutional for Congress to enact a statute prohibiting discrimination in the rental of public or private residential property on the basis of sexual orientation or preference). [2011]
When Congress delegates power to an agency through law, how can it undo the delegaion?
Rule 183: When Congress delegates power to an agency through law, it can only undo such delegation through law - a legislative veto that gives one house or committee of Congress the power to invalidate or review an agency action is an unconstitutional exercise of power because Congress cannot revise the law without going through the Constitutional lawmaking procedure of bicameralism and presentment (e.g. if a federal statute allows a Congressional committee to overturn a federal agency’s designation of certain federal lands as biodiversity sanctuaries requiring special protection, the statute is an unconstitutional legislative veto since Congress must enact a new statute to overturn an executive agency’s decision). [2011]
ederal statute that requires any individual or entity (even cities and states) owning more than 100 cars to ensure that at least 10 percent of those cars are electric-powered is valid under the ______ and does not ______ because ______
Rule 184: A federal statute that requires any individual or entity (even cities and states) owning more than 100 cars to ensure that at least 10 percent of those cars are electric-powered is valid under the commerce clause and does not violate the 10th amendment because it regulates a commercial activity (i.e. the purchase of cars) that, when aggregated, has a substantial effect on interstate commerce. [2008]
When is Congress permitted to enact a statute that overrules a Supreme Court decision?
Rule 185: Congress is permitted to enact a statute that overrules a Supreme Court decision if the statute is intended to regulate interstate commerce. [2008]
Section 5 of the Fourteenth Amendment gives Congress the power to enact legislation to prevent or remedy actions by state or local governments that violate provisions of the 14th Amendment, provided the legislation IS WHAT
Rule 186: Section 5 of the Fourteenth Amendment gives Congress the power to enact legislation to prevent or remedy actions by state or local governments that violate provisions of the 14th Amendment, provided the legislation is congruent with and proportional to the 14th Amendment violations it addresses (e.g. if a state vocational licensing board unfairly revokes licenses to prevent competition, Congress may enact a statute prescribing detailed procedural requirements for the disciplinary proceedings of all state vocational licensing boards). [2008]
A federal excise tax on products sold in the U.S. that is used to benefit U.S. residents is _____ UNDER the power of _________
“Rule 187: A federal excise tax on products sold in the U.S. that is used to benefit U.S. residents is constitutional under the power of Congress to tax and spend for the general welfare. [2006]”
A federal agency may issue regulations and assess penalties for violations, as Congress can grant legislative power to an agency, as long as what?
“Rule 188: A federal agency may issue regulations and assess penalties for violations, as Congress can grant legislative power to an agency, as long as Congress lays down an intelligible principle that the agency must conform to in the exercise of that authority. [2006]”
The President, as the chief executive officer of the U.S. government, has authority to direct the actions of federal executive agencies, provided the President’s directives are what?
Rule 210: The President, as the chief executive officer of the U.S. government, has authority to direct the actions of federal executive agencies, provided the President’s directives are not prohibited by a federal statute (e.g. the President has direct control of the agenda of federal executive agencies and can withhold or reallocate funds, provided it is not inconsistent with an act of Congress). [2019]
The President is empowered to make treaties with foreign nations with approval of a supermajority of the Senate. Like other federal law, treaties are the supreme law of the land if they are self-executing BUT a treaty may not be what?
Rule 211: The President is empowered to make treaties with foreign nations with approval of a supermajority of the Senate. Like other federal law, treaties are the supreme law of the land if they are self-executing (i.e. the treaty becomes judicially enforceable upon ratification), BUT a treaty may not be inconsistent with the Constitution. If a treaty is a valid one, state laws that conflict with a treaty are invalid and Congress has the power to enact legislation that is a necessary and proper means to enforce the treaty. [2019]
The Constitution gives the President broad authority with respect to foreign affairs and it is the President, not Congress, who is considered responsible for conducting U.S. foreign affairs
Rule 212: The Constitution gives the President broad authority with respect to foreign affairs and it is the President, not Congress, who is considered responsible for conducting U.S. foreign affairs (e.g. although Congress has the power to declare war and regulate trade with foreign countries, if Congress enacts a statute that directs US ambassadors to register official protests with their host countries for any human rights violations, the President can direct the ambassadors to ignore the statute since Congress has unconstitutionally intruded on the President’s exclusive power to represent the U.S. in foreign affairs). [2013]
The President has both the power and the obligation to faithfully execute the laws - where Congress appropriates a certain dollar amount for a certain purpose, the President must approve this, and cannot cut back or refuse the appropriation
Rule 213: The President has both the power and the obligation to faithfully execute the laws - where Congress appropriates a certain dollar amount for a certain purpose, the President must approve this, and cannot cut back or refuse the appropriation (e.g. if Congress enacts a statute establishing a memorial park for a minority group victimized by a foreign country during WWII and appropriates $5 million for this park, if the President later refuses to construct the park because the foreign country has become an important U.S. ally, this refusal is unconstitutional since the President has the duty under Article II to faithfully execute laws, including appropriation bills by Congress). [2013]
What is the appointment clause?
Rule 214: Under Article II’s Appointment Clause, the President alone has the power to appoint principal officers of the U.S. (such as ambassadors, judges of the Supreme Court and other high level superior officers) with the advice and consent of the Senate (e.g. a law requiring the President to appoint an ambassador from a list of candidates approved by the senate is unconstitutional because it violates the President’s power of appointment over high officers - in addition, a law that provides that Senate confirmation of a Presidential appointment of an ambassador is deemed to occur automatically if the appointment is from a Senate approved list is unconstitutional because it violates the requirement that the Senate consent to the appointment of a principal officer). [2011]
Legislative action is not legitimate unless there is
Rule 228: Legislative action is not legitimate unless there is bicameral approval and presentment to the President - Congress cannot retain a legislative veto of administrative adjudication or rulemaking (e.g. if a statute is passed that appropriates funds but provides that the funds may not be expended until both houses of Congress have adopted a concurrent resolution, this is unconstitutional because Congress must abide by the presentment clause and present the subsequent resolution to the President for approval or veto). [2019]
What does the The Speech and Debate Clause do
Rule 229: The Speech and Debate Clause immunizes members of Congress/ Senate (and aides acting on their behalf) from criminal and civil litigation (including slander and civil suits under the federal Civil Rights Act) for any statements on the House/ Senate floor while they are engaged in legislative acts (e.g. if a senator makes a false statement about a federal employee during a speech on the floor of the Senate, the senator is immune from a defamation claim because the Speech and Debate clause wholly insulates all members of Congress from tort liability for statements made on the floor of Congress). [2019]
The executive branch can direct the actions of federal executive agencies, provided the actions are not _______ with an act of Congress, but the executive branch generally cannot ______?
Rule 230: The executive branch can direct the actions of federal executive agencies, provided the actions are not inconsistent with an act of Congress, but the executive branch generally cannot direct the actions of persons outside the executive branch unless authorized by an act of Congress. [2006]
Can state courts discriminate against federal claims?
Rule 237: State courts cannot discriminate against federal claims and refuse to hear cases arising under federal law. Furthermore, state courts must hear federal law cases when Congress so requires (e.g. state courts cannot decline to hear cases under the Federal Employers Liability Act). [2019]
What does the 11th amendment bar?
Rule 238: The 11th Amendment bars suits against states in federal courts brought by citizens of another state or brought by citizens of the state involved. Thus, federal courts do NOT have the authority to entertain a suit brought by private parties against a state without the state’s consent. However, the 11th Amendment does not bar a suit by the United States against a state, since the amendment applies to actions brought against a state by citizens of another state or by its own citizens. Thus, the United States can sue a state in federal court for injunctive relief regarding a state’s administration of a federal program, and states can intervene as parties in suits brought by the United States in federal courts. [2019]
the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction. As such, Congress has the power to do what?
Rule 239: Although the Supreme Court derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction. As such, Congress has the power to take away the Supreme Court’s appellate jurisdiction and strip the Supreme Court of power over specific subject matters (e.g. if Congress passes a new statute that explicitly denies the Supreme Court appellate jurisdiction over all future cases that challenge the federal voting rights statute, this is constitutional). [2019]
Congress has the power under Article III of the Constitution to make exceptions to the appellate jurisdiction of the Supreme Court, although the exceptions must not be
Rule 240: Congress has the power under Article III of the Constitution to make exceptions to the appellate jurisdiction of the Supreme Court, although the exceptions must not be such as to destroy the essential role of the Supreme Court in the constitutional plan (e.g. if Congress passes a statute that makes it no longer possible for a criminal defendant to seek a Supreme Court review of a final judgment by a state’s highest court, this is likely constitutional under the Article III Exceptions Clause). [2011]
If a state judgment rests on two grounds, one federal law and one state law, when would be there NO federal appellate jurisdiction ?
Rule 241: If a state judgment rests on two grounds, one federal law and one state law, there is no federal appellate jurisdiction if the state law is adequate and independent (e.g. if a state supreme court strikes down a state law prohibiting gay marriage on the basis that it violates both the state due process clause and the federal U.S. Constitution, the U.S. Supreme Court does not have appellate jurisdiction over the state court ruling since the state supreme court ruling rests on an adequate state law that is independent of federal law). [2011]
If a COA arises under a treaty between the U.S. president and a foreign country, a federal court has jux over the COA b/ c
Rule 242: If a COA arises under a treaty between the U.S. president and a foreign country, a federal court has jux over the COA b/ c it is a federal question (e.g. a conflict of laws in torts damages). [2008]
When do federal courts lack jurisidction to review the state court judgment?
Rule 243: When a state court judgment is supported entirely by state law and is wholly independent of the interpretation and application of federal law, federal courts lack jurisdiction to review the questions of federal law, no matter how erroneous the state court’s handling of the federal law. [2006]
What is required for the supreme court to review a state court’s decision?
Rule 262: For the Supreme Court to review a state court’s decision, there must not be an independent and adequate State law ground of decision - if a state court decision rests on two grounds, one state law and the other federal law, if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it (e.g. if the state court finds a law violates both the state and federal constitutions, the Supreme Court will not review the case because even if the Supreme Court overturned the interpretation of Federal law, the holding would still stand on State law grounds). [2019]
When is a claim ripe for review?
“Rule 263: A court will only hear cases that are ripe for review. A claim is ““ripe”” when the facts of the case have matured into an existing substantial controversy warranting judicial intervention. A suit is not ripe where the injury has not yet occurred or where the harm is speculative in nature or where the issues for the record are not fully developed or fit for adjudication (e.g. in a suit for a declaratory judgment or a pre-enforcement injunction against a regulation or law, there must be a ripe threat of injury and not just a generalized grievance based on speculative harm, or else the issue is premature and not ripe for review). [2019]”
Under the political question doctrine, the federal courts will not adjudicate any allegations of constitutional violations with respect to: (3) items
Rule 264: Under the political question doctrine, the federal courts will not adjudicate any allegations of constitutional violations with respect to: (1) the President’s conduct of foreign policy; (2) the impeachment and removal process; or (3) partisan gerrymandering (e.g. if an ambassador of a foreign country facing civil war sues the U.S. President to overturn the President’s executive order recognizing a rebel force as the official government of the foreign country, and another order commanding the ambassador to immediately leave the US, although the ambassador has standing and the suit is ripe, a federal court will dismiss the ambassador’s action as a nonjusticiable political question since the court has no judicially manageable standards to apply to the President’s foreign policy decisions as the President has broad foreign policy powers including his exclusive power to recognize foreign governments). [2013]
What is the ripeness doctrine intened to prevent?
Rule 265: The ripeness doctrine is intended to prevent the courts from entangling themselves in abstract disagreements over administrative policies, and to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties (e.g. if town residents sue a state agency because the agency might select the town as the future location of a toxic landfill, the suit will be dismissed because the case is not ripe for a decision on the merits - the town can only sue once it is certain that it will be selected). [2008]
Can state courts afford greater protections than the Constitution?
Rule 266: State courts can afford greater protection than the U.S. Constitution for individual rights by establishing a higher state constitutional standard, and when a state court decision is clearly based on state law that is both adequate and independent, federal courts will not review the decision. [2006]
A lawsuit in federal court to stop a federal agency’s proposed adoption of rules is what?
Rule 267: A lawsuit in federal court to stop a federal agency’s proposed adoption of rules (such as proposed minimum beer quality standards) is not ripe for adjudication and must be dismissed since it is not yet a case or controversy. [2006]
May congree commandeer the state legislatures?
Rule 287: Congress cannot commandeer the state legislatures into federal service or require states to govern according to federal government instructions - as such, the Fed Gov’t may not compel the states to enact or administer, by legislation or executive action, a federal regulatory program (e.g. while Congress can encourage the states to provide for the disposal of radioactive waste generated within their borders, the federal government cannot command a state government to pass a particular law). [2019]
May a sate tax the federal government?
Rule 288: A state may not impose a tax on the federal government, its property, its agencies, or on any federal instrumentality that is so closely tied to the federal government that the two cannot realistically be viewed as separate entities (e.g. if a state levies a general tax on the gross receipts from all lottery operations within the state, a federal lottery outlet administered by a federal agency within the state is NOT subject to the state tax). [2019]
Congress cannot enact a statute that requires a state legislature to enact a state law, even if the law is necessary, because
Rule 289: Congress cannot enact a statute that requires a state legislature to enact a state law, even if the law is necessary, because the Tenth Amendment prevents Congress from requiring states to enact laws or to administer federal law. [2008]
A private vendor to a federal agency is obligated to pay state sales tax on items the vendor purchases in state to sell to the agency, so long as what?
Rule 290: A private vendor to a federal agency is obligated to pay state sales tax on items the vendor purchases in state to sell to the agency, so long as the vendor is independent from the agency and the agency does not require the sales price to be discounted by the tax. [2006]
What is the Supremacy Clause preemption doctrine?
Rule 302: Under the Supremacy Clause preemption doctrine, if the federal government through Congress enacts legislation on a subject matter seeking to fully occupy that field of law, the federal legislation is controlling over state laws and it precludes a state from enacting laws on the same subject that may conflict with the federal law. Preemption applies regardless of whether the conflicting laws come from legislatures, courts, administrative agencies, or constitutions. However, if Congress has not clearly claimed preemption, a federal or state court may decide the issue on the basis of the history of the legislation (e.g. debate in Congress) and practice. In such cases, the state law will not be preempted if the purpose of the law is consistent with the purpose of the federal statute, enforcement of the law would not interfere with the full execution of the statute, and there is no evidence that Congress intended to preclude the state from enacting supplemental laws on this subject (e.g. fed standards of meat labeling have preempted state laws, BUT federal and state legislation on narcotics control may parallel each other). [2019]
The negative implications of the Dormant Commerce Clause do NOT apply when?
Rule 303: The negative implications of the Dormant Commerce Clause do NOT apply when the state acts as a market participant - the market participant doctrine applies when states operate as if they are private entities and allows a state to favor its own residents in the course of its own dealings when acting as market participant rather than in a regulatory capacity (e.g. a state law that requires state-run electric plants to sell only to purchasers residing in states that accept spent fuel from the plant for storage/ disposal is constitutional because even though this law discriminates on its face, the state is not acting as a market regulator, so the market-participant exception to the dormant commerce clause applies). [2019]
What is the Dormant Commerce Cluase?
Rule 304: Under the Negative Commerce Clause or Dormant Commerce Clause, states may not use their police power to pass laws that discriminate against interstate (or out of state) commerce or unduly burden interstate commerce (e.g. if a state enacts a statute that imposes a fifty- cent fee on every pig raised and sold in the state to pay for a new vaccination program created in response to a swine virus that is killing pigs and infecting humans, and then a national pork processing company sues the state over the fee, the court will rule for the state since the fee applies only to intra-state activities, and it does not unduly burden interstate commerce - the dormant commerce clause does not prohibit a state regulation unless it unjustifiably discriminates against interstate commerce or its burden on interstate commerce clearly outweighs its local benefits). [2013]
What does it mean for an original judgment to be entitlted to full faith and credit
Rule 305: If the issues of jurisdiction and choice of law were fully and fairly litigated in the court that rendered the original judgment, those determinations are entitled to full faith and credit by the recognizing court, even if the determinations were wrong (e.g. after being injured in State B, if a plaintiff brings a successful personal injury claim in State A, his state of residence, under its long-arm statute against a defendant corporation headquartered in State B, a court in State B must enforce the State A judgment if the defendant fully litigated the issues of jurisdiction and choice of law in State A and the plaintiff still obtained a judgment). [2013]
When does the Dormant Clause not apply?
Rule 306: When a state acts as a market participant and not a regulator (i.e. state becomes a seller of its own property or resources such as concrete, timber, etc., instead of regulating private sellers), the Dormant Commerce Clause does not apply and the state, as a market participant, may discriminate in favor of its own citizens and businesses (e.g. if a state awards extraction rights on a state-owned natural gas field to a local company even though it was’t the highest bidder, the highest bidding out-of-state company has no dormant commerce clause claim because the state, by acting as a market participant in selling the rights to a natural gas field that it owns, can discriminate against interstate commerce in favor of its own residents). [2011]
In exercising its plenary powers, Congress may authorize the state to regulate even where the state law would otherwise violate the negative implications of the Dormant Commerce Clause, provided
Rule 307: In exercising its plenary powers, Congress may authorize the state to regulate even where the state law would otherwise violate the negative implications of the Dormant Commerce Clause, provided Congress expressly and unambiguously manifests such an intent (e.g. if Congress enacts a law that permitting a state to limit the sale of its natural resources to in-state customers only, an out-of-state customer cannot enjoin the state on the basis of the negative implication of the commerce clause since Congress has broad power over interstate state commerce and has explicitly given consent to the state’s economic discrimination). [2011]
A state law that has a purely discriminatory effect against out-of-state manufacturers is an unconstitutional burden on interstate commerce
Rule 308: A state law that has a purely discriminatory effect against out-of-state manufacturers is an unconstitutional burden on interstate commerce if the state has less discriminatory alternatives available to protect the legitimate interests cited in the law. [2006]
When may a state discriminate or excessively burden interestate commerce
Rule 309: Although a state generally cannot discriminate or excessively burden interstate commerce under the negative commerce clause, a state may do so if Congress allows it through congressional authorization or permission. [2006]
