Constitutional--other Flashcards
what does the ban on ex post facto laws ban?
Constitution bans ex post facto laws in both state and federal gov
Prohibit enactment of retroactive criminal laws that:
- criminalize previously legal conduct
- increase punishment
- eliminate defenses
- decrease P’s burden of proof
How to decide if a CIVIL ex post facto law is allowable
Ex post facto ban generally does not apply to civil laws.
However, a civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.
factors:
- imposes an affirmative disability or restraint (e.g., imprisonment) (not seen here)
- has historically been regarded as punishment (e.g., public shaming)
- promotes the traditional aims of punishment (e.g., retribution)
* *4. is rationally related to its nonpunitive purpose** (this is the most important)
can you sue a judge if they screw up during your case?
generally no.
Judges possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—
UNLESS the court clearly lacked subject-matter jurisdiction at the time the action was taken.
This ensures that judges are free to issue decisions during judicial proceedings without fear that they will later be personally liable for them.
field preemption
when Congress intended to completely occupy a particular field by legislating so thoroughly that it left no room for supplementary state regulations
tenth amendement
reserves to the states all powers that the Constitution does not expressly grant to the federal government—including the police power to enact and enforce laws that protect the public’s health, safety, and welfare.
4 types of preemption of state law (1 and 3)
Express preemption: C or federal law explicitly bars state regulation.
Implied preemption:
Field: when there is no room for state regulation because the fed gov intended to occupy the whole field with its scheme
Direct Conflict: it is nearly impossible to comply with both laws, OR
Frustrationo of Purpose: the state law frustrates the federal law’s purpose
deprivation of public employment: due process requirements
applies if there was a property right to job: contract, tenure, NOT nonrenewable of K or at will employment
termination:
notice of allegations,
pre-termination opportunity to respond to allegations
post-termination evidentiary hearing
suspension without pay:
notice of allegations of misconduct
prompt post-suspension evidentiary hearing
2 things must consider when reviewing under strict scrutiny
- is there a compelling government interest?
- are there less restrictive means of achieving that interest?
Can the government ban press coverage of a jury trial?
It must pass strict scrutiny, as this is a content regulation on free speech (from the press) about a matter of public significance.
The 6th Amendment makes trials public, so again, must pass the 2 part test under strict scrutiny
when has a regulatory taking occurred?
when the government
(1) substantially restricts the use of private property (based on totality of circumstances) OR
(2) deprives an owner of all economically beneficial use of the property but the owner retains possession of it.
can a civil law be applied retroactively?
So long as it does not affect fundamental right, but instead an ordinary right (like raising S0L as a defense to a civil suit),
it only need pass the rational basis test–rationally related to a legitimate government interest.
can the President send the National Guard into a state without permission from the state’s governor?
If Congress authorizes it! (think Ruby going to school)
Under the militia clauses, Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.
4 part test for commercial speech
(1) the speech must be lawful and not misleading, to get protection from 1A
(2) the statute must serve a substantial governmental interest,
(3) the statute must directly advance that interest, and
(4) the statute must be narrowly tailored.
TPM restrictions on speech must be:
traditional or designated public forum (but not public schools students)
- -content neutral
- -narrowly tailored to service an important government interest (basically strict scrutiny)
- -leave open alternative channels of communication
in nonpublic forum (airports, gov workplaces)
- “rational basis scrutiny plus viewpoint neutrality”
- -viewpoint neutral
- -reasonably related to legitimate govt interest (rational basis scrutiny)
free speech rights in public schools
students do have free speech rights BUT
may be regulated so long as reasonably related to legitimate educational concerns
“rational basis with education”
What happens to a law deemed a prior restraint on speech
prior restraint is stopping speech before it occurs
presumption against such laws
vague or overbroad laws are unC
free speech rights of the press
press has no greater free speech rights than a person.
Maybe publish info that is lawfully obtained and is matter of public concern.
11A says… and how to get around it
State A’s (or foreign) citizens cannot sue State B’s government for $ damages or equitable relief in federal court UNLESS state waives immunity
CAN sue a state official in their job capacity to get an injunction against breaking a federal law (like by enforcing a state law that breaks fed law)
what if gov does something with property that is not a physical occupation OR a total economic loss from a regulation?
Subject to 3-factor balancing test:
- impact of regulation on property owner
- extent reg interferes with reasanable, investment-backed expectations re: use of property, AND
- the character of the regulation: benefits to society, fairness of burdens/benefits to different property owners, or violation of essential attributes property ownership (like right to exclude others)
when may a local government force a developer to submit to conditions in exchange for development permits?
When there is:
- when the conditions substantially advance a legitimate state interest, i.e. essential nexus between legitimate state interests and the conditions imposed on the property owner, AND
- rough proportionality between burden/impact (the burden imposed by the conditions on property owner and the impact of the proposed development).
when gov may constitutionally punish you for associating with a “terrorist” organization (despite freedom of association)
can punish (i.e., deny public employment to or criminally prosecute) persons who:
- are active members of a subversive organization
- know of the organization’s illegal objectives AND
- specifically intend to further those objectives.
3 requirements for standing
injury in fact
causation
redressability
when may a U.S. taxpayer get standing based only on their status as a taxpayer?
- generally no taxpayer standing UNLESS:
- challenging legislation enacted under taxing & spending power AND
- legislation exceeds limits imposed by establishment clause
- (or challenging the amount owed on your own personal taxes)
the political question doctrine prohibits federal courts from hearing a case if…
it presents issues that
(1) are reserved for the executive or legislative branch or
(2) lack judicially manageable standards for resolution.
the court must determine if the plaintiff has standing before addressing the substance of her claim.
when may a federal court decline to hear a dispute? (abstention doctrine)
- unsettled issue of state law in the case that may make fed issue moot
- avoid complex state reg scheme or important state matter
- to keep away from enjoying sate action on:
(1) individual punishment for criminal activity or contempt of court or
(2) imposition of civil fine - To make sure that substantially similar state and fed proceedings are uniform and don’t needlessly duplicate.
what is the ministerial exception?
The Free Exercise Clause protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.
This exception applies to any employee whose primary function is to advance the organization’s religious mission (e.g., pastor, parochial school teacher).
what does the 11thA ban and what are the exceptions?
11A: private parties and foreign governments from suing a state gov in fed court without state’s consent, even for a federal law violation.
• Includes immunity for state officials who violate state law
EXCEPTIONS:
- state’s consent to suit
- 13,14,15A waived immunity (=P, voting violations)
- state official sued for injunctive or declaratory relief
- if damages to be paid personally by state officer
- state official to be sued for prospective (not retroactive) damages that state treas. will pay
NOT IMMUNE: US. state or other state can sue state, can sue local gov, bankruptcy
what might require that a federal curt abstain from hearing a case involving an injunction or declaratory judgment?
The Younger abstention doctrine: if doing so would interfere with a pending state criminal, or particular civil, proceeding that
(1) involves an important state interest (including prosecution of criminals) and
(2) provides an adequate opportunity to litigate federal issues.
“particular” civil” akin to a prosecution (e.g., termination of parental rights) AND
help state court judicial functions (e.g., contempt)
can a state government regulate foreign commerce?
The commerce clause gives Congress plenary (i.e., exclusive) authority to regulate foreign commerce
can courts charge a mandatory fee for appealing one’s criminal conviction?
Not likely. A right to appeal is a fundamental right, and taking that away based on ability to pay is a wealth-based restriction to access that right. It is therefore subject to strict scrutiny. (doesn’t pay for atty though)
“State laws that discriminate against individuals based on wealth are generally subject to rational basis scrutiny. But strict scrutiny will be used when a state law prohibits the exercise of a fundamental right based on an individual’s wealth.”
when must a judge recuse themselves from a case, and what part of the constitution guarantees the right to the recusal?
14A due process (on states) -procedural due process
requires that the government provide a meaningful opportunity to be heard before a neutral decision-maker when depriving persons of life, liberty, or property.
A judge must recuse when
(1) the judge has a direct, personal, substantial, pecuniary interest in it or
(2) a serious, objective risk of actual bias exists.
A failure to recuse under these circumstances violates due process.
The USCT can review this action from a state court judge
abstention doctrines (4)
Abstention doctrines are when a federal court will abstain from hearing a state claim
Pullman: Resolution of unsettled state law in state court would moot federal constitutional issue
Burford: Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy & provides timely & adequate judicial review
Colorado River: Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources
Younger: Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims
Examples: Pullman abstention does not apply here since the state law is settled. Burford abstention does not apply because there is no indication that the state’s health insurance scheme is complex. And Colorado River and Younger abstention do not apply since there is no pending state proceeding.
when does mere status as a taxpayer give a person standing to challenge how the government is getting/spending tax money?
A plaintiff-taxpayer has standing to challenge government taxing and spending only under the First Amendment establishment clause
What about laws involving DC?
The enclave clause gives Congress plenary (i.e., exclusive) legislative power over the District of Columbia.
As a result, a federal statute that prohibits the District of Columbia from imposing an income tax on persons who work there but reside elsewhere is likely to be found constitutional.
what is the export clause?
- the C forbids Congress from taxing exports:
- exported goods, which are goods leaving the U.S. and shipped to foreign countries and
- services and activities closely related to the export process.
Can Congress impose a higher income tax on people from State A than state B? How about higher sales taxes or tariffs in certain states?
No, Congress must apportion or apply its tax and spend power mostly equally between states.
It must also show that the tax/tariff etc. is reasonably related to raising revenue
affirmative action analysis
Affirmative action is always subject to strict scrutiny. It may pass when:
- minority set-asides for gov Ks TO remedy that specific gov’s history of discrimination
- race-based school bussing TO remedy past intentional segregation in pub schools
- policies that consider race among several factors for college admissions TO promote diversity in student body for benefit of all
civil forfeiture–what is it? what does PDP require?
gov seizes property allegedly used in political activity
PDP usually requires that gov provide: reas notice of seizure and meaningful opportunity to be heard in front of neutral decisionmaker
EXCPETION: personal property may be seized w/o notice and hearing when:
- serves a significant government interest
- which would be frustrated by advance notice of seizure and
- t performed by the government.
Civil forfeiture: to determine whether real property may be seized by the government prior to providing notice and a hearing, the court must balance three factors
- private interest affected by deprivation (homeowner no place to stay)
- the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards and
- the government’s interest, including the fiscal and administrative burdens that other safeguards would entail
what kind of property must be “taken” to trigger takings considerations?
A taking occurs when the government destroys private property or property rights—including possessory and nonpossessory interests in land and stuff (e.g., easements, liens).
If gov decides to “take” property, what does it have to do?
Under the Fifth Amendment,
a taking must be for a public use (e.g., fighting forest fires), and
the government must justly compensate the owner for the property’s fair market value.
list of powers C grants president exclusively
- nominate principal officers
- veto bills
- prosecute/pardon federal offenses
- communicate/negotiation with foreign governments
- recognize foreign governments (congress cannot override)
- enter executive agreements
does the 10thA grant plenary power to the states to construct their tax systems?
no. It just reserves powers to the states that are not given to the federal government in the Constitution.
“plenary” means “absolute,” and states don’t have plenary power over there tax systems because they still must comply with the Consistution
when is the press shielded from civil liability for publishing unlawfully obtained documents?
1A shields the media from liability for publishing information that was unlawfully obtained by a third party if:
- truthful
- the information involves a matter of public concern and
- the publisher neither obtained it unlawfully nor knows who did.
what are the restrictions on congressional conditions on spending fed funds
Conditions must meet all the following criteria:
- clearly stated & unambiguous
- reasonably related to federal interest in funded program
- do not require states to engage in unconstitutional activity
- do not unduly coerce states into accepting
Can a state imposes sales tax on purchases made by a federal government agency?
Under the supremacy clause, the federal government is immune (i.e., exempt) from any direct taxation by the states—including taxes on its commercial activities. As a result, states may not impose taxes on the federal government, or any of its agencies or instrumentalities, without the express consent of Congress.
what gives states express authority to regulate alcohol in their borders
and C limitations on that power
The Twenty-first Amendment grants states broad authority to regulate the use of alcohol within their borders. This authority permits a state to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).
HOWEVER, these must still comply with
DCC, no law saying only in-state bowery can ship in state
Establishemnt, no allowing church to veto bar within radius
=P, no allowing lower drinking age for women
free speech, no banning prices in alcohol ads
Can Congress overrule state law managing the practicalities of elections?
(polling places, hours, etc)
YES
The Article I, section 4 elections clause grants state legislatures the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites).
But the clause also grants Congress the power to override those state lawsby supplanting them with federal law.
because… states are conducting federal elections
what are the Constitutional limits and tests for states making practical elections laws
(like requiring X# signatures to get on ballot)
States have power to set electoral regulations. But must abide by 1A, 14A, etc: right to access the ballot.
Level of scrutiny if that right burdened depends on severity and discrimination of burden on that. So:
rational basis review – applies to reasonable, nondiscriminatory burdens and requires the challenger to prove that the regulation is not rationally related to a legitimate state interest or
strict scrutiny – applies to severe or discriminatory burdens and requires the state to prove that its regulation is the least restrictive means of achieving a compelling state interest.
can a state ban write-in candidates?
Yes. Right to vote does not mean to vote for literally anyone.
which officers the Prez appoints need Senate approval?
The Article II appointments clause grants the President the power to appoint principal federal officers with the Senate’s advice and consent (i.e., approval).
Senate approval not required for the President’s appointment of inferior federal officers—i.e., federal officers who are supervised by principal federal officers.
Congress may delegate the appointment of inferior federal officers to the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.
what regulations can a state make on homeschooling
states may impose reasonable educational standards on public and private schools—including homeschooling—that:
- require children to “attend school”—# of hours/year of instruction
- minimum competency requirements for instructors—e.g., by requiring them to possess at least a high school diploma AND
- define academic curriculum and content—e.g., by specifying the academic subjects that must be taught.
examples of “ordinary’ restrictions on voting subject to RB review (so long as not discriminatory)
- Voter registration
- Photo-ID requirement
- Disallowing write-in voting
examples of “severe” restrictions on voting subject to strict scrutiny
- Poll tax
- Disallowing third-party candidacies
- Property-ownership requirement
which part of the C may impose limits on state regulations of voting? it’s a weird one.
State electoral regulations must comply with the First Amendment freedom of association (applicable through the Fourteenth Amendment). The standard for reviewing such regulations depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny).
3 things Congress may regulate to regulate interstate commerce
- channels
- instrumentalities
- anything that has an aggregate substantial effect
how to determine if Congress can regulate something based on it having substantial effects on interstate commerce
When determining if activities have a substantial effect on interstate commerce that warrants regulation by Congress, courts consider whether:
- the activities are economic in nature (if so, a substantial effect is presumed)
- the regulation has a jurisdictional element that limits its reach to activities with a direct connection to or effect on interstate commerce. (like saying “this affects nail polish that has been transported across state lines”
- there are express congressional findings concerning the activities’ effect on interstate commerce AND
- there is a strong link between the regulated activities and that effect.
dormant commerce clause: simple sentence
generally bars states (not the federal government) from discriminating against or otherwise unduly burdening interstate commerce.
what are the C’s 2 procedural requirements for federal legislation
Legislative action, absent narrow exceptions, must be:
- approved by both houses of Congress (i.e., bicameralism) and
- presented to the President for approval or disapproval (i.e., presentment).
can Congress set up a system where it delegates its power to a federal agency but expressly retains the power to approve the individual decisions of the agency pursuant to the legislation?
Nope. That’s a legislative veto and it’s unC.
If Congress explicitly allows state to regulate food sales even if they burden interstate commerce, can CA pass a tax on sales of out of state food?
NO, because
1. this is discriminatory against non-CA businesses and those who want to buy etc
so it invokes the =P clause. Rational basis bc no fundamental right or protected class
HOWEVER:
promoting in-state business by discroimating against other sates is not a legitimate state interest, so it will not even pass RBR
Encouraging the growth of an industry within the state is a legitimate government interest.
However, promoting domestic business (i.e., in-state business) by discriminating against nonresident competitors is not a legitimate government interest. Therefore, the statute is unconstitutional because it violates the equal protection clause.
when may a state discriminate against out of state commerce?
A discriminatory state law—i.e., one that favors in-state over out-of-state interests—will be deemed unconstitutional unless the state proves that:
- the law furthers an important or legitimate noneconomic state interest (e.g., health, safety) and
- there is no reasonable, nondiscriminatory alternative to achieve that interest.
what does the P&I Clause of Art iV do?
Article IV privileges and immunities clause prohibits states from discriminating against citizens of other states by denying them a right of state citizenship. Prohibits states from discriminating against citizens of other states
[does not apply to corporations]
which branch of government has control over immigration and naturalization?
Congress plenary (i.e., exclusive) authority to enact laws that regulate naturalization—i.e., the process through which any noncitizen may obtain U.S. citizenship (Choice C). But Congress must comply with other constitutional provisions when exercising this authority. This includes the Fourteenth Amendment, which prohibits Congress from revoking the U.S. citizenshipof any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.
Can the government revoke US Citizenship?
14A prohibits Congress from revoking the U.S. citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.
Can Congress pass legislation giving itself the power to appoint federal officers in a regulatory agency?
NO
All federal officers must be appointed by the President or in a manner otherwise consistent with the Article II appointments clause. Under this clause, Congress cannot appoint federal officers because Congress’s participation in this executive function would violate the separation of powers doctrine.
what 2 factors define a federal officer whom only th PRez can appoint?
A federal officer is someone who
(1) holds a continuing public office and
(2) has significant discretionary authority to administer or enforce laws (i.e., executive powers).
Is teh 2A applicable to state government restriction of firarms?
The Second Amendment—applicable to states and municipalities through the Fourteenth Amendment due process clause
What does the 2A do?
—generally prohibits government interference with an individual’s right to possess and use firearms for a traditionally lawful purpose (e.g., self-defense in one’s home). However, this right is not absolute
. SCOTUS has stated that certain government restrictions on firearms are permissible, including:
- banning unusually dangerous firearms (e.g., grenades)
- imposing conditions and qualifications on commercial sales of firearms
- forbidding the possession of firearms by felons and mentally ill individuals and
- prohibiting the open carry of firearms in certain areas (e.g., schools) or concealed carry of firearms in public.
What C rights have not been incorporated to apply to the states’s actions?
Every constitutional right applies to states and municipalities except
(1) the Third Amendment ban on quartering soldiers in homes,
(2) the Fifth Amendment requirement of a grand jury indictment for capital charges, AND
(3) the Seventh Amendment guarantee of a civil jury trial.
What is Congress’ power to control private land that affects public lands
The Article IV, section 3 property clause gives Congress complete power to dispose of and regulate federally owned land and territories.
This clause includes the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands—e.g., by prohibiting the erection of structures that completely enclose federally owned land.
Can Congress limit the JDX of federal courts?
Yes, the C gives them that power, but with limitations:
- the separation-of-powers doctrine (e.g., usurping judicial power to decide cases) or
- other constitutional provisions (e.g., the Article I suspension clause).
what is the Article I suspension clause?
A person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court
UNLESS Congress has explicitly suspended the writ of habeas corpus.
This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control (like Puerto Rico)
Article 1, Section 9 does generally prohibit the suspension of the writ of habeas corpus (presumably with exceptions, cause wtf)
What can Congress do to mess with USCT’s JDX, and what gives Congress that power?
The Article III exceptions clause gives Congress power to expand, regulate, or make exceptions to USCR’s appellate jurisdiction.
What is USCT’s appellate power?
The U.S. Supreme Court (SCOTUS) has appellate jurisdiction to review
a final judgment of lower federal courts
and the highest state courts
when the judgment turns on federal law.
who bears the burden of establishing standing when asking for an injunction?
The P, regardless of what law she is challenging
can a state tax a federal contractor, meaning fed gov has to pay the tax eventually?
YES. can tax fed’s affiliates (like ppl employed by or doing business with fed gov)
UNLESS
- Congress granted the affiliate tax immunity
- the tax discriminated against the fed gov or affiliate (no taxing only fed contractors)
- tax substantially interferes with the affiliate’s federal purpose of duties. When high tax burden make sit impossible to accomplish fed task
what is the constitution’s tax uniformity requirement?
uniformity requirement of the taxing and spending clause requires that indirect taxes (e.g., sales taxes) imposed by the federal government on goods be uniformly applied in every state where the taxed goods are found.
Does not apply to indirect taxes imposed by a state government.
when may the government destroy private property without providing just compensation? (No crime involved)
just compensation is not required when the government destroys private property in response to a public peril
Like a crop parasite or making an urban fire break during a fire
Can the federal government impose a tax directly on the states? What says so or not so?
Tenth Amendment, the federal government cannot impose federal taxes directly on states that unduly interfere with their essential functions. But the Tenth Amendment does not prohibit the federal government from imposing federal taxes on states indirectly through their affiliates—i.e., persons doing business with state governments—so long as the taxes are nondiscriminatory
default test for challenges based on the Establishment Clause
Lemon test:
- the law has a secular purpose
- its primary effect does not advance or inhibit religion and
- there is no excessive government entanglement with religion.
BUT strict scrutiny can be used instead when a law expressly impacts a religion (like by exempting churches, not just all nonprofits, from sales tax).
what does the 1A Free Exercise clause forbid the government to do for wacky religions?
prohibits the government from questioning whether an individual’s or organization’s religious beliefs are reasonable or true in order to get 1A protection
what are the limits on Congress’ power to impose indirect (like sales) taxes?
This allows Congress to impose an indirect tax (e.g., sales tax) so long as the tax is:
- imposed identically in every state where the taxed goods are found (i.e., geographically uniform) and
- reasonably related to revenue production (i.e., no provision extraneous to tax purposes).
Can the Executive branch, acting alone, impose taxes?
NO. Article I, Section 8 taxing and spending clause gives Congress plenary (i.e., exclusive) power to raise federal revenue by imposing and collecting taxes.
When must a tax be apportioned evenly between states (as opposed to just imposed uniformly on certain activities everywhere, regardless of disparate impact)
When it is a direct tax on persons or property
(not an indirect tax on sales etc.)
What is the necessary and proper clause?
What does it NOT do re: Congressional power to regulate?
The necessary and proper clause allows Congress to enact legislation reasonably necessary to carry out its enumerated powers—e.g., the power to regulate and dispose of federally owned lands (i.e., the property power).
But this power does not permit Congress to regulate state or personal property. And the taxing and spending clause only allows Congress to tax and spend (not pass other regulations) for the general welfare.
What process is due to a student being dismissed from school?
Disciplinary dismissal: notification of reasons, evidence presented and opportunity to be heard before dismissal.
HOWEVER if dismissed for academic reasons, a public college or university may do so without providing him/her a meaningful opportunity to be heard.
(think of it like disciplinary is a criminal-esque proceeding, so you get more rights) Because decisions based on a student’s academic performance are not adversarial in nature and therefore do not require the tools of judicial decision-making (e.g., presentation of evidence)
Can the President refuse to spend funds that Congress has appropriated?
NO. Congress has exclusive tax and spend power. President cannot refuse to spend funds as directed even when they involve the military and he’s trying to invoke his Commander in Chief power. Congress still wins.
explain AISD
Adequate and independent state grounds
USCT will not hear an appeal from a state decision if the state decision rested on Adequate and Independent state grounds.
adequate: law can be fully decided by state law, federal interp would not change the outcome
independent: decision did not depend on an interp of federal law
In addition to 3P standing for minors, organizations/members, and close relationship (where actual party repented from suit, like doc/pt), what is a 4th way to get standing?
Business assignee!
An assignee can get standing via the assignor–assumes all of their contractual rights. Can sue to enforce assignor’s rights SO LONG AS:
the assignment was made for ordinary business purposes (e.g., debt collection) AND
in good faith.
when is an ordinance that discriminates against interstate commerce allowed?
a state or local action (e.g., county ordinance) that discriminates against interstate commerce—i.e., an action that protects in-state over out-of-state economic interests—is invalid unless:
- it furthers a legitimate, noneconomic state or local interest (e.g., protecting natural resources) and
- no nondiscriminatory alternative is available to achieve this interest.
what the actual fuck does the contracts clause even do
The contracts clause of Article I restricts the ability of state legislatures to impair existing contracts.
But this clause does not apply to Congress or federal statutes that spend federal revenue
intro sentence for takings clause
The takings clause of the Fifth Amendment prohibits the government from taking private property for public use without just compensation.
what is another name for the comity clause and what does it do?
The Article IV P&I clause which prevents states from discriminating against citizens of other states
regulatory taking occurs when
the government substantially restricts the use of private property—e.g., a moratorium on construction on private property.
Is a restriction substantial? Totality test:
- balsnce of public interest in the reg vs. burden on owner’s property rights, like alienation
- the economic impact on the property—e.g., the change in the property’s fair market value caused by the regulation—and
- the interference with the owner’s reasonable investment-backed expectations regarding the use of the property
when may the government pass a direct tax on persons or property?
direct federal tax (e.g., a tax on real property) only if it is:
- apportioned proportionately among the states based on each state’s population and
- reasonably related to revenue production (i.e., no provision extraneous to tax purposes).
when can a federal court issue a declaratory judgement invalidating a state law?
only if the dispute presents a real and immediate danger to a party’s interests. Otherwise, a declaratory judgment would amount to an impermissible advisory opinion—i.e., a judicial opinion that determines the validity of a law without resolving an actual dispute.
Ex: P wants DJ that a state law banning signs near polling places is inC. However, statute presents no real and immediate danger to volunteer. So, no interest at state to satisfy A3(III)’s case and controversies requirement.
what does prior restraint forbid?
Prior restraints are laws that forbid certain speech before it occurs.
Must pass strict scrutiny (necessary, narrowly tailored to achieve compelling gov interest
what does a declaratory judgement do and when is it allowed?
declaratory judgment can, among other things, declare a law unC before it is ever enforced. To get one without it being enforced, though, a P must show:
the dispute presents a real and immediate danger to a party’s interests.
Otherwise, a declaratory judgment would amount to an impermissible advisory opinion on a state law.
MUST BE A CASE/CONTROVERSY
can Congress pass laws that carry out provisions of a treaty? Why or why not?
YES. Article I necessary and proper clause gives Congress the power to enact laws that are reasonably appropriate to carry out the President’s express powers—e.g., providing funding for conservation activities to carry into effect a treaty.
Can you civil sue the media for publishing facts about your ex-relationship that they got from talking to your ex-boyfriend, who is running for Congress on his perfect marriage?
No. 1A shields the media from liability for publishing lawfully obtained private facts and other truthful information that involves a matter of public concern.
Does federal Q JDX apply when suing to enforce a judgment of another state that a treaty recognizes as enforceable in a US court?
Yes, because FedQ covers questions that “arise under” a US treaty, and since a US treaty is what makes this actionable, it counts.
can a state government charge a federal official with a criminal act that he performed in the course of his duties?
NO. sovereign immunity prohibits anyone from suing the federal government in state or federal court unless Congress consents—i.e., the suit is authorized by federal statute. This includes criminal charges.
This immunity extends to suits against federal officers (e.g., federal marshals) for actions taken in their official capacities. That is because a suit against a federal officer acting in his/her official capacity is treated as a suit against the federal government itself.
Can the federal gov refuse U.S. entry to a foreign citizen based on their political beliefs?
YES
Congress has plenary power over non-citizens. Non-citizens have no right to enter the United States and may be refused entry for reasons such as their political beliefs.
If the foreigner was a resident non-citizen threatened with deportation rather than a non-citizen denied entry into the country at all, he would have been subject to deportation, but only after notice and a hearing.
can Congress enact a rational law mandating that everyone buy a health good?
No. Cannot mandate that people engage in commerce.
can Congress expand or limit the original JDX of the Supreme Court?
No, just the lower federal courts
do corporation get the benefit of the P&I Clause of the C?
no, it is for citizens, which does not include corporations as plaintiffs
must restriction on commercial speech be the least restrictive means?
NO
narrowly tailored to serve a substantial governmental interest
this does not require the least restrictive means
what is the standard for regulations of speech in a public forum?
content-neutral, narrowly tailored to serve a significant governmental interest, and it must leave open ample alternative channels for communication of the information.
May the USCT review a state Supreme Court decision where it is not clear if AISD for the decision existed?
Yes. USCT may make the determination if AISD existed
categories of speech regulations that may pass strict scrutiny for content based restrictions
COFID
obscenity,
incitement to violence
fighting words,
defamation, or
commercial speech.
what is incitement, AKA subversive speech?
Speech that is directed to incite or produce imminent lawless action
and that is likely to produce such action
what protections for travel between states
The Due Process Clause contains a substantive component that guarantees certain fundamental rights, including the right to travel among the states. This includes the right to enter one state and leave another and to be treated as a welcome visitor. Because this law impinges on a fundamental right, it is subject to strict scrutiny.
can Congress mess with USCT’S state vs state original idx?
Congress cannot expand or limit this jurisdiction, but it can grant concurrent original jurisdiction to lower federal courts.
