Full Set Flashcards
Judicial Power originates from
Article III of the constitution (diversity jurisdiction & federal question)
exception to article III judicial power
created by 11th amendment - state sovereign immunity (can’t sue a state for $ damages in state or fed court unless the state consents or unless to enforce 14th Am. individual rights)
scope of 11 a
only protects states and state agencies NOT local gov’ts
whom can you sue for 11a?
state officer, but only for injunction. $ must sue personally
original jurisdiction of SCOTUS
controversies between states
establishing SCOTUS appellate jurisdiction
- certiori (discretionary, only fed court that has appellate discretion)
- direct appeal
limitations on SCOTUS appellate jurisdiction
Congress can make exceptions
adequate and independent state grounds (AISG) rules for appellate jurisdiction
SCOTUS can review state court only if turns on federal grounds (adequate - when party claiming fed right wins anyway can’t appeal)
standing elements
- injury
- causation
- redressability
injury standing requirement
concrete & orgs can have standing if members have standing
timeliness requirement
meaning the claim must be ripe and not moot, but controversies capable of repetition, yet evading review, are not moot, even though they look like it, e.g., abortions
advisory opinions
fed courts can’t issue them
can’t rule on constitutionality of proposed leg
3 wrong answers for congress having the power to pass leg
- promoting general welfare is not a power
- no general police power
- necessary & power no a free-standing power, only works in conjunction with another power
3 biggest Congressional powers for MBE
- taxing
- spending
- commerce
when in doubt match the action to the congressional right
Commerce Power
- interstate commerce (highways, etc)
- instrumentalities (cars, etc.)
- having substantial effect on interstate commerce in aggregate
Taxing Power & Spending Power
are different powers
taxing cl is the right answer whenever Congress imposes a tax even when the tax is actually used to prohibit the good or activity in question & MUST be rationally related to raising revenue
spending power includes spending for general welfare to accomplish things it couldn’t do by direct regulation
Anti-commandeering limitations on taxing power & spending power
can’t force state to adopt/enforce fed reg, but CAN bribe states through spending & can enforce with fed officers
Congress & the military
only Congress can declare ware
maintains army & navy
provides for discipline within the military & btw military & enemy, but cannot provide for civilian trials in military
when is executive’s power the greatest
when in statute, which they generally are
exec powers not subject to statutory control
pardon power
veto power
appointment & removal of exec officers
Congress exec
impeachment
impoundment (prez has no power to impound funds when statute unambiguously requires that funds be spent)
legislative veto is unconstitutional (needs to write whole new law)
exec absolute immunity for official acts & doesn’t have to reveal confidential communications w/ advisers unless specifically demonstrated need
Immunity for judges
all judicial acts
legislator protections
Speech or Debate clause - senators, congressmen and aids can’t be prosecuted for official actions
Art IV Comity Clause
forbids discrimination against out-of-state individuals, but not corporations
usually involves employment
no legal requirement of residency for private employment, but can for public
Dormant Commerce Clause
ONLY APPLIES ABSENT FED REG & if Congress consents, no problem
protects out of state corporations
in absence of federal regulation, state regulation of commerce is valid so long as: (balancing)
- no discrim against out of state interests
- reg does not unduly burden interstate commerce
- reg does not apply to wholly extraterritorial activity
DCC’s requirement that there by no discrimination against out of state interests
e.g., taxing out-of-state @ higher rate, requiring manufacture instate
exception - can discriminate with state is buying or selling goods or services, e.g., sale of cement produced by state-owned plant only to instate purchasers
can always subsidize only its own citizens
DCC’s nondiscriminatory taxation requirement (elements for validity)
- substantial nexus btw taxing state & property/activity taxed
- fair apportionment of tax liability among states
Ad Valorem Property Taxes (value-based personal property taxes)
on commodities if they are in the state for a business purpose on tax day
on instrumentalities if they are used within that state as an instrumentality
Preempting the Field
Congress determines there shouldn’t be state law of any sort in particular field - RARE
Full Faith & Credit
states have to give ff&c to judgements rendered by other states’ courts, so long as the rendering court had jurisdiction to rend a final judgement on the merits
Due Process Test
- nature of liberty at stake
- value of protecting that interest
- gov’t’s interest in efficiency and cost
Due Process Hearing Timing
before deprivation - terminating welfare benefits & non-emergency revocations of drivers’ licenses; public employees unless significant reason not to keep employee on job
after if prompt & fair - terminating disability benefits & dismissing students for academic reasons
Due Process & Equal Protection SoR
- strict scrutiny
- intermediate scrutiny
- rational basis
Strict Scrutiny test
necessary for a compelling interest, least restrictive means
burden on gov’t
applies with suspect classification
applies with fundamental rights
Intermediate Scrutiny test
substantially related to important gov’t interest
applies to classifications based on legitimacy & gender
Rational Basis test
rationally related to legitimate state interest
burden on challenger
Substative Due Process vs. Equal Protection
fundamental right to everyone - DP
violates fundamental right to only some - EPC
Fundament Rights (lists)
travel
voting & ballot access
privacy (marriage, contraception, sexual intimacy, abortion, parental rights, family restrictions, obscene material, refusal of medical treatment)
Interstate Travel fundamental right
can have reasonable residency for voting & welfare benefits
30-90 days
1yr too long for everything except instate tuition & divorce
Voting fundamental right
18+
poll taxes
short-term res are permitted
Congress controls residency requirements for prez elections (states get the rest)
Abortion fundamental privacy right
states can regulate, but can’t place undo burden
allowed: informed consent requirements, 24hr waiting periods, parental notifications
not allowed: parental consent, spousal consent
not required: gov’t financing abortion
Privileges & Immunities clause of 14a
really no wind in those sales, but
P&I Cl of Art IV (comity clause) has a narrow but important meaning. it prohibits serious discrimination against out-of-state individuals, especially in the context of access to the private job market
5th Am
Let’s us apply EPC concepts to fed gov’t, just read right into the Due Process Clause of 5a (they’re both enumerated in 14)
Race as a suspect class test
Discriminatory purpose required (disparate impact is insufficient
When is affirmative action valid?
When it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action.
In preferential admissions to colleges and universities, IF necessary to achieve a diverse student body & diversity MUST be essential to education & must be holistic.
Quotas are not allowed.
Separate tracks aren’t allowed.
Not allowed for secondary education.
U.S. citizenship as suspect class
generally require compelling gov’t interest (SS), except in 2:
- Feds - citizenship & naturalization, valid UNLESS arbitrary and unreasonable
- state & local participation in gov’t functions - valid
Racial Gerrymandering
dilution - invalid if done w/ discriminatory purpose
VRA - requires it for majority minority districts
race can’t be predominant reason for drawin
political gerrymandering
in theory can be struck down, but never is
Takings element
public use - rationally related to a conceivable public purpsoe
FMV @ time of taking
taking vs regulation
taking requires compensation
the threshold question is whether there is physical occupation of the land
regulatory taking
zoning regulation is a taking when no economically valuable use
zoning elements
advances legitimate interests and does not extinguish a fundamental attribute of ownership
Bill of Attainder
legislative punishment imposed without judicial trial, unconstitutional
Ex Post Facto Laws
unconstitutional to expand criminal liability retroactively, either by creating a new crime that applies to past conduct or increasing the penalty for past conduct
Contract Clause
bars states from legislative impairment of existing contracts unless there is an overriding need (something like an emergency)
Establishment - Lemon Test
- secular purpose?
- primary effect not advancing or inhibiting religion
- excessive entanglement with religion?
Endorsement
SCOTUS is worried about coercion
Neutral laws & religion
neutral, generally applicable laws can be enforced
excepted the Ministerial Exception (broad)
Content-based regulations SoR
SS, usu. struck down
Expressive conduct test
- further important interest
- interest is unrelated to suppression of expression
- burden on expression is no greater than necessary
“if gov’t is trying to suppress a message, then the law will be struck down; if the gov’t is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld.”
Vagueness standard
give no clear notice of what is prohibited & thus violate due process
Overbreadth
burden substantially more speech than is necessary to protect a compelling interest and thus violate 1st am.
Public Forum restriction requirements
Time, Place, Manner
- content neutral on its face & as applied (no exec discretion allowed)
- alternative channels of communication must be left open
- narrowly serve a significant state interest
compelling interest not required
Nonpublic Forum restriction requirements
any reasonable regulation of speech
viewpoint discrimination is invalid
can’t disrupt functions of gov’t
Limited Public Forum restriction requirements
only time, place, manner
gov’t has chosen to open this place to all comers
Obscenity Rule of S
content restriction
Sex
Society Sick
Standards
Serious value
minors can get lower standard, child porn, gov’t can regulate zoning for adult things
Incitement
content restriction - unprotected if to incite immediate violence
Fighting Words
content restriction - immediate breach of the peace, aimed at one person, all of them are vague or overbroad on MBE
Defamation
content restriction - see tort
Commercial Speech
content restriction - struck so long as true & informational
must directly advance a substantial gov’t interest and be narrowly tailored to that interest
misleading may be prohibited
regulation of media
no special privileges, except broadcasters
freedom of association
some loyalty oaths will be struck
states cannot require open primaries
speech by gov’t employees
can’t be hired/fired based on party/philosophy only for cause
gov’t speech
can have viewpoint
contributions - campaign finance
can be regulated, if limits are not unreasonably low
independent expenditures vs coordinated expenditures - campaign finance
independent expenditures - can’t; applies to corps, unions, etc.
coordinated expenditures - can, just a disguised contribution
equalization of campaign resources
no!
obscenity sexy
erotic, appeal to purient interest
obscenity society sick
patently offensive to average person (can self-define community)
obscenity standards
not vague or overbroad
obscenity serious value
lack it as determined by the court - NATIONAL STANDARD
order of power of checks & balances
Constitution > federal statute/treaty > prez power > states
