Term
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Definition
| Federal courts may decide only actual cases and controversies. They may not render advisory opinions, that is, opinions which do not bind the parties to the court's judgment. |
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Term
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Definition
A plaintiff must allege actual harm or the immediate threat of harm. Generally a case is not ripe where, on the facts, significant events necessary to sharpen the issues have not yet occurred.
Watch for "Dead letter statutes." |
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Term
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Definition
| A case will be dismissed as moot unless there exists an actual, live controversy between the parties at ALL stages of the litigation, including on appeal. |
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Term
| Exceptions to the mootness doctrine |
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Definition
1. The injury is capable of repetition to that plaintiff, yet because of its nature will evade review (i.e. abortion).
2. The case is brought as a class action and the issues remain alive at least as to one member of the class (doesn't need to be the named party).
3. Superficially, the case appears moot, but there are collateral consequences or some continuing issues between the parties.
4. The D has ceased the harm but is free to return to his old way (voluntary cessation of illegal activities). |
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Term
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Definition
1. P must suffer actual, concrete, injury in fact. (Not merely an ideological harm).
2. Causation
3. Redressability |
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Term
| Standing of Organizations and Associations |
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Definition
An organization, such as a union, has standing to sue for injury to itself, but it may also sue for injuries to its members if:
1. A member would have standing, and
2. The members' injury is related to the purpose of the organization, and
3. there is no reason that would require participation of the individual members in the suit (i.e. it's not a suit for damages but rather an injunction). |
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Term
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Definition
A party has standing only to raise his own rights and may not raise the rights of other, EXCEPT a party may raise the rights of someone else if:
1. the party has suffered some actual injury, AND
2. there is a special relationship between the party and the third person and there is some hindrance to the third party raising his own rights. |
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Term
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Definition
There is NO standing as a citizen.
Even where a P is suing under a statute conferring "citizen standing," standing requires a personal harm suffered by P. |
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Term
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Definition
Taxpayers may sue to challenge their own tax liability.
But they have no standing as taxpayers to challenge how the government spends the month it has collected.
Exceptions: A taxpayer has standing, as a taxpayer to challenge:
1. laws enacted under Congress' taxing and spending powers (not an executive or administrative action), AND
2. Exceeding a specific constitutional limit on taxing and spending (establishment clause) |
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Term
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Definition
| Legislators may challenge acts that cause them a personal and concrete injury. But, generally, a legislator has no standing to challenge laws which were properly enacted but which he or she believes are unconstitutional |
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Term
| Supreme Court Review of State Court Judgments |
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Definition
The Supreme Court may review the decisions of state courts, if and only if:
1. The case involves a matter of federal law, and
2. It is a final judgment, and
3. It is from the highest state court authorized to hear the case and
4. There is no independent and adequate grounds on which the state court decisions is based. |
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Term
| Independent and Adequate State Grounds |
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Definition
1. A case rests on an independent state ground so long as state law does not depend on an interpretation of federal law or incorporate a federal standard.
2. A case rests on an adequate state ground if, no matter how the federal issue in the case is decided, the outcome will still be the same under the resolution of the state law issue. |
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Term
| The Doctrine of Abstention |
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Definition
| Under the doctrine of abstention, a federal court will decline to hear a case challenging state law if it involves a constitutional challenge to the state law, but the meaning of the state law is unsettled or unclear, or the matter is already pending before state judicial or administrative tribunals. |
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Term
| The Political Question Doctrine |
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Definition
Federal courts will not decide political questions, that is questions which are constitutionally committed to another branch of the government to decide, or are beyond the competence or enforcement capability of the judicial branch.
Political questions
1. Republican form of government clause challenge.
2. True foreign affairs or military command decisions.
3. Impeachment procedures.
4. Seating of delegates at a national political conventions.
5. The election and qualification of members of congress (age, citizenship, and residency)
6. Procedures to amend the constitution |
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Term
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Definition
Under the Eleventh Amendment, a private party cannot sue a state in federal court, UNLESS
1. The state expressly consents OR
2. Congress clearly says so to enforce 14th amendment rights.
A person may sue state officers in their individual capacities for damages, and may sue state officers for injunctions against future unconstitutional action by the state.
For the 11th Amendment to be a bar:
1. The plaintiff must be a private party, not another government.
2. The defendant must be a state, not a local government.
3. The suit must be for money to be paid out of the state treasury or for an injunction or declaratory relief where the state is the named party.
The 11th Amendment only bars suits in federal court, a plaintiff might still be able to sue a state in state court.
However, states may raise sovereign immunity against such claims in their own courts. |
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Term
| How can congress force a state to act if it cannot act through the commerce clause? |
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Definition
1. Congress can regulate states directly though the commerce clause (substantially affects).
2. Federal government can threaten states with preemption.
3. Federal government can bribe states with money under the spending power. |
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Term
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Definition
| Congress may use the taxing power to regulate and prohibit behavior so long as the statute is capable of raising some revenue, such as a prohibitive tax on gambling or goods made by child labor. |
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Term
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Definition
| The spending power is the chief source of power to bribe states to do what the federal government wants them to do. |
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Term
| A court will enforce a condition against a state which has accepted federal funds if: |
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Definition
1. It is enacted for the general welfare
2. It does not violate individual liberties
3. The condition is reasonably related to a legitimate federal interest
4. The condition must clearly be a quid pro quo |
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Term
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Definition
| Outlaws slavery; congress can enforce. |
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Term
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Definition
Laws passed under the 14th amendment apply only to government acts, not acts of private parties.
Congress only have the power to enforce, or remedy, the rights of the 14th amendment, as they have been defined by the courts. Congress does not have the power to redefine such rights. |
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Term
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Definition
| Protects the right to vote against any federal or state government racial discrimination, and it gives Congress the power to enforce the amendment. |
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Term
| The Delegation of Congressional Power |
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Definition
| Congress may broadly delegate legislative powers to administrative agencies, so long as congress sets forth some intelligible principle, or some standards, to guide the exercise of the delegated power. |
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Term
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Definition
UNCONSTITUTIONAL
If Congress delegates authority to the executive branch, congress may not reserve for itself a one-house, two-house, or committee veto over a particular act taken by the executive branch pursuant to that delegation. |
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Term
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Definition
Members of congress may not be prosecuted or punished, either civilly or criminally for their legislative acts.
Legislative acts are VERY narrowly defined to include acts integral to the legislative process, such as action on the floor, voting, and committee work.
They do not include acts such as communicating with constituents, redistribution of materials prepared in the legislative process, or bribery. |
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Term
| Domestic Powers of the President |
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Definition
1. The President has the power and duty to enforce or carry out the laws of congress.
2. The president may not make law, only carry it out; except if there is an emergency and Congress has not said no to the particular act.
3. The President must carry out Congressional directives.
4. The President may sign or veto legislation, but may not line item veto.
5. The president has the exclusive power to pardon for federal offenses (this includes possible future crimes)
6. The President has the power to appoint and remove executive officers. |
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Term
| Appointment of executive branch officials |
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Definition
Congress may never directly appoint executive branch officials. Congress may appoint persons who work only for Congress and do not take action or make decisions on behalf of the U.S. government.
Congress may limit the President's power to appoint in two ways:
1. As to principle officers (i.e. ambassadors and judges), the President appoints only with the advice and consent of the Senate, and
2. As to inferior officers (i.e. independent counsel) congress may vest the appointment in the President along or in department heads, or in the judiciary.
Congress may never directly remove executive branch official, except through impeachment.
Congress may not give executive powers to persons it may hire and fire. |
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Term
| War and Foreign Affairs Powers -- President |
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Definition
1. Congress alone has the power to declare war.
2. The president may act, without any approval of Congress, as the chief foreign policy spokesperson of the government.
3. When the President seeks to enter into agreements with foreign governments, some form of congressional approval is required:
Treaties: President needs 2/3 senate approval
Executive agreements: No specific congressional approval is needed, acquiescence is enough.
If there is a conflict between a treaty/executive agreement and legislation then the later legislation prevails. |
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Term
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Definition
The president enjoys a presumptive privilege not to disclose presidential communications. (Use a balancing test if deciding to disclose for a criminal trial).
The president is absolutely immune from civil suits for damages for any presidential acts, such as the wrong firing of an employee. |
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Term
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Definition
| Process: Articles of impeachment by the house, trial by the senate (2/3 vote), removal from office. |
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Term
| The Supremacy of Federal Power over the States |
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Definition
1. The constitution operations on states, not as a source of power, but as a limit on what states can do.
2. The Constitution expressly forbids states from taking certain actions, such as coining money.
3. The constitution also prohibits the states from exercising power which is inherently federal (i.e. foreign relations) |
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Term
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Definition
1. Federal law preempts or prevails over any INCONSISTENT state law.
2. Express preemption: If Congress says that federal law displaces or ousts state law in an area, then state law in that in that area is preempted.
3. Implied Preemption: Even if Congress doesn't specifically say so, state law will be preempted if state law is inconsistent with federal law. |
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Term
| The Privileges and Immunities Clause of the 4th Amendment |
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Definition
States may not discriminate against out of state citizens with respect to commercial activities or the enjoyment of civil liberties.
States may require in-state residency for their own employees, may give in-state tuition, and make prefer their own citizens in giving state benefits. |
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Term
| The Dormant Commerce Clause |
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Definition
| Where Congress has not acted state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce. |
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Term
| Dormant Commerce Clause -- Discrimination |
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Definition
The strongest argument to strike down a state law under negative commerce clause is that it discriminates against interstate commerce. There are 2 kinds of discriminatory laws:
1. Law that discriminate for the purpose of favoring in-state commerce. These types of laws are always PER SE INVALID.
2. Laws that discriminate for the purpose of promoting health or safety are invalid unless the state shows that it had no reasonable, non-discriminatory means to achieve its police power objective. |
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Term
| Dormant Commerce Clause -- Unreasonable Burdens |
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Definition
Even if a state law is non-discriminatory, it may still be invalid if it imposes an unreasonable burden on interstate commerce.
This is a balancing test. |
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Term
| Exceptions to the Negative Commerce Clause |
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Definition
1. If Congress allows.
2. The Market Participant Doctrine: Whenever a state is acting as a buyer or seller of commodities or services, the negative commerce clause dos not apply. Subsidies are allowed.
3. 21st Amendment: Gives the states the power to regulate the possession to regulate liquor. |
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Term
| Requirements of Tax on Interstate Commerce |
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Definition
1. It must be nondiscriminatory
2. The activity, person, or thing taxed must have a substantial nexus/connection to the state (i.e. there must be actual presence)
3. The tax must not be unreasonably burdensome, in particular, it must be proportioned to the company's business done in the state or benefits received in the state. |
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Term
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Definition
State action is required to sue the government for violation of the amendments.
Types of state action:
1. Obvious: Under color of law.
2. Private Conduct as State Action: public function doctrine (very narrow) and significant state involvement with private conduct. |
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Term
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Definition
| States may not by legislation substantially impair pre-existing contracts unless the law serves an overriding public need, and the law is reasonable and narrowly tailored means of meeting that need. |
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Term
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Definition
Neither Congress nor the states may pass ex post facto laws. The ex post facto prohibition applies only to criminal statutes, not civil statutes.
An ex post facto law is any legislation that
1. Goes back in time and makes something criminal.
2. Increases the punishment after the crime was committed
3. Decreases the amount of evidence needed to convict someone. |
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Term
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Definition
| Prohibits any federal or state legislation that inflicts punishment, civil or criminal, on named individuals or ascertainable members of a group without a judicial trial. |
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Term
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Definition
Concerns how the government acts. If the government deprives you of a life, liberty or property interest, it must follow procedures to insure it is acting fairly and accurately.
1. Notice
2. Opportunity to be heard.
Only applies to adjudicative type acts, not legislation. |
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Term
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Definition
| An intentional, not merely negligent act |
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Term
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Definition
A physical liberty or a loss of legal rights.
Mere injury to one's reputation is NOT a liberty interest. |
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Term
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Definition
1. Conventional real and personal property, tangible and intangible.
2. Government benefits
3. Government employment.
Key: ENTITLEMENT |
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Term
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Definition
Minimal due process requires notice and hearing. (Usually hearing must come first).
To determine the actual procedures needed in each case, the court balances:
1. Nature of the private interest involved
2. Whether the challenged procedures are likely to lead to an erroneous determination, and
3. Nature of the government's interest. |
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Term
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Definition
Neither the federal government (5th Amendment) nor the state (14th amendment) may take private property without just compensation.
Any taking of property must be for a public use, meaning any legitimate governmental goal, and just compensation must be paid (meaning FMV) |
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Term
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Definition
1. Physical invasion or occupation
2. Regulatory taking: These are usually not takings as long as the regulation advances a legitimate state interest and leaves an economically viable use.
3. Conditional Permits: Use a rough proportionality test to determine if conditional permit is allowed. |
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Term
| Privileges and immunities of national citizenship |
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Definition
Wrong answer.
Once you are a citizen of the state they cannot discriminate. |
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Term
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Definition
The government must prove that the law is necessary to achieve a compelling interest.
There is no presumption of constitutionality. |
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Term
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Definition
The government must prove that the law substantially serves an important interest.
There is no presumption of constitutionality. |
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Term
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Definition
The plaintiff must prove that the law lacks a rational basis and is unrelated to any legitimate objective.
The law is presumed constitutional. |
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Term
| Intentional discrimination |
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Definition
1. The law intentionally discriminates on its face.
2. The law is neutrally written, but is intentionally discriminatory.
Disparate impact is NOT enough. |
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Term
| Discrimination against racial ethnic groups |
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Definition
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Term
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Definition
1. Court ordered race based remedies: Courts are empowered to use race-based remedies to redress past de jure discrimination.
2. Voluntary affirmative action plans: Government agencies can have a compelling interest in specifically correcting their prior discrimination against minorities. (not for past discrimination)
3. Racial preference in university admissions: No quotas allowed but can take race into account. |
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Term
| Discrimination based on Alienage |
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Definition
Standard applied to congress: Rational basis
Standard applied to state and local government: Strict scrutiny.
Exception: States may require U.S. citizen for government policymaking or policy implementing positions. |
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Term
| Discrimination based on legitimacy |
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Definition
Intermediate scrutiny
Everything struck down except for intestacy because we can require a paternity test. |
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Term
| Discrimination based on gender |
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Definition
Intermediate scrutiny.
Gender discrimination cases that are allowed:
1. Bona fide affirmative action: must make up for past discrimination against women.
2. Real differences between men and women: draft or statutory rape laws. |
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Term
| All other classifications |
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Definition
Rational Basis.
Almost always upheld except in rare cases. |
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Term
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Definition
| Strict or heightened scrutiny (Not rational basis) |
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Term
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Definition
1. Marriage and divorce (but only substantial burdens or unreasonable conditions).
2. Contraception
3. Abortion: prior to viability the government may not impose any undue burden; after viability the government may regulate substantially and even prohibit as long as there is an exception to save the live of the mother or protect her health interests.
4. Obscenity in the home (right of possession)
5. Certain family rights
6. The right to refuse medical treatment (more leeway to state, i.e. vaccines)
7. Sexual activity between adults.
No right to engage in:
Adultery, incest, prostitution, or assisted suicide. |
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Term
| The Right to Vote and Participate in the Political Process |
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Definition
1. The right to vote.
2. The right to fair representation: In state and local elections can have a 16% deviation, federal elections must be under 1%. Race cannot be a predominate factor in gerrymandering; political gerrymandering is really hard to prove (must be intentional).
3. Access to the ballot |
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Term
| The right to interstate travel |
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Definition
| The right of international travel is not fundamental. |
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Term
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Definition
| A statute is vague, and thus unconstitutional if a person of common intelligence could not know what behavior is prohibited. |
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Term
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Definition
| A law is overbroad, and thus unconstitutional, if it prohibits substantially more expression than is necessary. |
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Term
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Definition
| A prior restraint enjoins speech before it is utters, as opposed to punishing it afterward. Prior restraints are greatly disfavored, and the government bears a heavy burden to show a prior restraint is necessary to prevent direct, immediate and irreparable harm. |
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Term
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Definition
Strict Scrutiny.
The government may not restrict a person's opinion, message or ideas.
Content protection includes the freedom not to speak and symbolic expression, if the government is aiming at the message of the symbolic act. |
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Term
| Time, place and manner restrictions |
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Definition
Reasonableness Test
If government regulation does not aim at content but affects expression only indirectly as a by-product of regulating other conduct, such as designating where you can march, it will be judged under more lenient standards. |
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Term
| The three requirements of valid time, place and manner controls |
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Definition
1. Content neutrality (watch for license/permit statutes).
2. Substantial alternative opportunities for the speech to take place.
3. Law narrowly serves a significant state interest (anything that makes sense) |
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Term
| Speech inciting immediate lawless or violent behavior |
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Definition
The government may punish and prohibit speech that:
1. Is directed at inciting AND
2. Which is in fact likely to incite imminent lawlessness. |
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Term
| Fighting words, hate speech, or true threats |
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Definition
Fighting words may be punished or prohibited; this is very narrow.
True threats are not protected speech. True threats are statements where the speaker intends to communicate a serious expression to commit a serious act of violence against a group of people. |
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Term
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Definition
Obscene things may be prohibited.
To be obscene it must: Sexy, sickening, specifically defined, serious value lacks. |
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Term
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Definition
Some first amendment protection, but not all.
The government may regulate and prohibit false, misleading, or deceitful ads or ads that propose an unlawful transaction.
Intermediate scrutiny. |
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Term
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Definition
The press has the same rights as everyone else, no more or less.
No right to reply to a newspaper article. |
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Term
| Expression in a Non-Public Forum |
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Definition
Government can regulate on its own property.
Time, place, and manner controls will be upheld as long as they are reasonable.
Non-public property: Schools, military basis, jails, government workplaces, government airports, government telephone poles, sidewalks on postal service property, teacher mailboxes. |
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Term
| Speech of Public Employees |
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Definition
| There are civil servants. Civil servants make speak out as long as it doesn't affect the office; may be able to limit their interaction with partisan politics. |
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Term
| Speech of Students in School |
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Definition
| Schools can have course contents, may set standards of decency in discourse, and may stop materially disruptive speech. |
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Term
| Free exercise of religion -- religious belief |
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Definition
Governments may neither punish people because of their religious beliefs nor require them to profess any particular religious belief.
The government may inquire into the sincerity of your beliefs but not the truth of your beliefs. |
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Term
| Laws aimed at religious behavior or conduct |
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Definition
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Term
| Generally applicable laws that happen to affect religious practices or conduct |
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Definition
| The government may pass laws that harm a religion as long the government's purpose was not to impair that religion. |
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Term
| Court resolution of church disputes |
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Definition
| Courts may not use church doctrine but can resolve disputes between religious people using civil law. |
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Term
| Establishment Clause -- Basic Test |
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Definition
Neutrality and No Endorsement
Lemon test (if a law fails any part of this test, it constitutes an establishment of religion)
1. A secular purpose
2. Primary effect of the law has to be neither to advance or inhibit religion
3. Law mus avoid excessive entanglement with relition. |
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Term
| Generalized government benefits |
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Definition
| Must be available to everyone and cannot be specifically available to religions. |
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Term
| Government aid to religious schools |
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Definition
| Any student aid must be available to all students. |
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Term
| Government sponsored prayers or religious displays |
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Definition
Prohibits government sponsored religious exercise and prayers in public schools. Prayers to open a legislative session are okay.
Reindeer rule for religious displays -- be inclusive. |
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