Term
| What does the Strict Scrutiny standard require? |
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Definition
| The law must be NECESSARY for a COMPELLING interest. |
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Term
| What requirement is "implicit" in strict scrutiny? |
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Definition
| "Necessary" means "Least restrictive means." |
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Term
| When does strict scrutiny apply? |
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Definition
| When there is a suspect class, or a fundamental right. |
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Term
| Who bears the burden of proof when strict scrutiny applies? |
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Definition
| The government. The government must show that the law is necessary to advance a compelling interest. |
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Term
| What does Intermediate Scrutiny require? |
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Definition
| The law must be SUBSTANTIALLY RELATED to an IMPORTANT government interest. |
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Term
| When does Intermediate Scrutiny apply? |
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Definition
| Classifications based on gender and the legitimacy of children. |
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Term
| What does the Rational Basis test require? |
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Definition
| The law must be rationally related to a legitimate government interest. |
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Term
| When does Rational Basis apply? |
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Definition
| To the residuary! (Not questions of suspect classes, fundamental rights, gender, legitimacy). |
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Term
| Who bears the burden when Rational Basis applies? |
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Definition
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Term
| What is the standard of review for "public use?" |
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Definition
| Must be RATIONALLY RELATED to a CONCEIVABLE public purpose. |
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Term
| Content-based restrictions on speech trigger what level of scrutiny? [define the level of scrutiny as well] |
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Definition
| Strict Scrutiny. Must be necessary to advance a compelling government interest. |
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Term
| What are the three requirements of time, place, and manner restrictions on speech in a public forum? |
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Definition
1. Content Neutral. (must be neutral on its face and as applied, and must not allow executive discretion in enforcement).
2. Alternative Channels of Communication must be left open. (must not be a flat prohibition on speech).
3. Must NARROWLY SERVE a SIGNIFICANT state interest. (most neutral regulations are upheld; does not require a compelling interest). |
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Term
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Definition
| A place traditionally reserved for speech activities, such as a park, street, or public sidewalk. |
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Term
| In public forums, what are the only kinds of regulations allowed? |
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Definition
| Time, Place, and Manner restrictions. |
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Term
| What standard of scrutiny is applied to regulation of commercial speech? |
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Definition
| Regulation of commercial speech must directly advance a substantial government interest, and be narrowly tailored to that interest. |
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Term
| What are the 5 categories of speech that can theoretically be regulated based on their content? |
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Definition
| Obscenity, incitement, fighting words, defamation, and commercial. |
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Term
| Source and Scope of Judicial Power: |
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Definition
| Limited to cases and controversies and reviewing another branch's acts, and state actions under the supremacy clause to ensure conformity with the constitution. |
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Term
| 11th amendment limitation: |
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Definition
Bars citizens from suing state government in federal court for money damages or equitable relief.
Bars suits against state officials for violating state law. |
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Term
| Exceptions to 11th amendment: |
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Definition
Consent
INjunctive or declaratory relief
damages paid by state officer
congressional enforcement of 14th amendment rights. |
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Term
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Definition
Cases affecting ambassadors.
Cases affecting public ministers/consuls.
Cases where state is a party. |
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Term
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Definition
Cases through certiorari and direct appeal.
NO AUTHORITY to review final state court judgments resting on Adequate and Independent State Grounds. |
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Term
| Judicial review: 4 requirements |
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Definition
standing
timeliness
justiciability
abstention. |
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Term
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Definition
Injury in fact. (concrete/particularized, not necessarily physical/economic, future injury must actual and imminent.)
Causation (D caused the injury)
Redressability. (relief requested is likely to prevent/redress the injury. |
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Term
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Definition
No standing to challenge allocation of funds, except:
--litigate how much owed on tax bill.
--challenge expenditures as violating establishment clause |
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Term
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Definition
generally no standing to bring lawsuit, except:
--when 3rd party unable to assert their own rights.
--if there is a special relationship between p and 3rd party.
--p's injury adversely affects the p's relationship with 3rd party. |
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Term
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Definition
Organization can sue on its own behalf or on behalf of its members if:
--member has standing to sue in his own right, and
--Interest at stake germane to organization's purpose |
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Term
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Definition
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Term
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Definition
| p must have experienced a real injury (action brought too soon is unripe. |
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Term
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Definition
must be a live controversy at each stage of review (action brought too late is "moot")--but case not moot if:
--controversy is capable of repitation but is "evading review," (i.e. will not last long enough to work through judicial system).
--defendant voluntarily ceases its illegal/wrongful action upon commencement of litigation until court is assured wrong will not be repeated.
--named p's claim in class action suit is resolved. |
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Term
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Definition
advisory opinions: No advisory opinion unless an actual case or controversy exists.
Declaratory judgments: challenged action must be real and immediate danger to party's interests.
Political question matters (to be resolved by another branch of government) not subject to judicial review. |
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Term
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Definition
| federal court may abstain from ruling on unsettled issues of state law. |
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Term
| Powers of Commerce: 7 big categories |
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Definition
Commerce
Taxation and spending
War and Defense
Property Power
Power over aliens and citizenship
Necessary and Proper clause
Enabling Clause of 14th amendment |
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Term
| Commerce Clause, 3 sub-powers. |
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Definition
1. Interstate commerce-power to regulate
2. substantial economic effect--power to regulate any activity or combination thereof that has substantial economic effect on interestate commerce.
3. Non-economic activity. |
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Term
| Interstate commerce: power to regulate |
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Definition
Channels and
instrumentalities of interstate commerce, and
any activity that substantially affects it. |
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Term
| substantial economic effect-power to regulate any activity or combination therefor that has substantial economic effect on interstate commerce |
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Definition
aggregation--even if an intrastate activity has no direct economic impact, as long as there is...
--rational basis for concluding
--that total incidence of activity in the aggregate
--substantially affects interstate commerce
--then congress can regulate. |
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Term
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Definition
| If regulation involves a non-economic activity of traditional state concern, congress must establish connection between the activity and substantial economic effect in order to regulate it. |
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Term
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Definition
1. Taxing: tax upheld if it has reasonable relationship to revenue production or if congress has power to regulate the activity being taxed
--congress has plenary power to impose taxes to raise revenue (or for any public purpose) through general welfare clause.
2. spending
--Power to spend for the general welfare (any public purpose, including conditional federal funding. |
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Term
| War and defense powers of congress: |
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Definition
1. power to declare war.
2. Raise and support armies/navy
3. govern land/naval forces, and
4. organize militia
--whatever action necessary to provide for national defense. |
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Term
| Congress power: property power: |
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Definition
1. no express limit on power to dipose of US property, however
2. congress may only take private property for public use with just compensation and to effectuate an enumerated power. |
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Term
| Congress: power over aliens and citizenship |
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Definition
1. plenary power over aliens
--subject to due process clause.
2. Exclusive authority over naturalization. |
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Term
| Congress: Necessary and Proper Clause |
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Definition
1. Power to enact any legislation necessary and proper to execute federal government authority.
--but clause NOT INDEPENDENT SOURCE OF POWER so must carry into effect other enumerated power. |
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Term
| Congress: Enabling clause of the 14th amendment |
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Definition
1. Enables congress to enforce equal protection and due process rights.
--as defined by the supreme court.
--enforcement must have congruence and proportionality between injury to be prevented and means adopted to achieve that end. |
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Term
| Domestic powers of the president: |
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Definition
1. power to pardon federal offenses.
2. veto power
3. appoints officers of US with advice/consent of the senate, and remove executive appointees without cause or senate approval.
--presidential authority--varies with degree of congressional authorization. |
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Term
| Foreign affairs powers of president |
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Definition
1. president can take military action against actual hostilities against US.
--but only congress can declare war
2. Exclusive power to negotiate treaties
--ratified by senate
3. power to enter into executive agreements with foreign nations.
--without senate approval. |
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Term
| Congressional Limits on executive: |
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Definition
1. If congress explicitly mandates expenditure of funds, President cannot impound funds.
2. Unconstitutional for Congress to attempt legislative veto of executive action. |
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Term
| Delegation of legislative power: |
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Definition
| 1. Delegation to executive branch constitutional if Congress specifies intelligible principle to guide delegate. |
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Term
| Judicial Limitation of Congressional Power |
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Definition
| 1. Congress cannot reinstate right to bring legal action rejected by Supreme Court. |
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Term
| Immunities and Privileges |
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Definition
1. Judicial: Absolute immunity from civil liability for damages from judicial acts.
2. Legislative: No civil/criminal liability for statements and conduct made in regular course of legislative process.
3. Executive: no civil liability for performance of official responsibilities; executive privilege regarding non-disclosure of confidential information. |
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Term
| Dormant Commerce clause, general rule. |
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Definition
1. General rule: if congress has not, states can regulate interstate commerce so long as regulation does not.
--discriminate against out of state commerce.
--unduly burden interstate commerce.
--regulate wholly out of state activity. |
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Term
| Dormant Commerce clause, discrimination against out of state commerce. |
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Definition
(protecting local economic interests at the expense of out of state competitors.)
-State or local discriminatory regulation may be upheld if:
--important government interest: not allowed unless important local interest being served and no other nondiscriminatory means available to achieve that purpose.
--market participant: state can favor local commerce or discriminate against nonresident commerce like a private business.
--traditional government function: regulation can favor state/local government entities if entities are performing traditional government function.
--congressionally permitted discrimination: must be unmistakably clear that congress allows impermissible state regulation. |
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Term
| Dormant commerce clause: undue burden on interstate commerce: |
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Definition
Balancing test pose of state law against burden on interstate commerce and evaluate whether there are less restrictive alternatives.
--if benefits are grossly outweighed, even nondiscriminatory regulation may be struck down. |
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Term
| State taxation of Commerce: |
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Definition
1. interstate commerce:
--general rule: permitted only if congress has not already regulated a particular activity and tax does not discriminate against or unduly burden interstate commerce.
--4 part test:
---substantial nexus between activity being taxed and taxing state.
---fair tax apportionment such that interstate commerce doesn't pay tax in more than one state.
---no local direct commercial advantage over interstate competitors (even if neutral on face)
---Tax must be fairly related to services provided by taxing state.
2. Foreign Commerce: states must have congressional consent to impose import/export taxes. |
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Term
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Definition
1. out of state judgments must be given in-state effect it...
--court rendering judgment had jurisdiction over the parties/subject matter.
--Judgment was on the merits, and
--final judgment. |
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Term
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Definition
1. Traditional Government Function (private person acting like gov't)
2. Significant State Involvement (sufficient contacts; state facilitating/encouraging/authorizing...license/reg not enough)
3. Insignificant state involvement (businesses granted monopoly, nursing homes with medicaid, schools receiving gov't funds) |
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Term
| Procedural due process; guaranteed by states through... |
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Definition
|
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Term
| procedural due process; guaranteed by feds through... |
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Definition
|
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Term
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Definition
1. necessary procedures before depriving individuals and other "persons," e.g., corporations, of "life, liberty, or property."
2. 14th amendment.: most provisions of the bill of rights applicable against states.
3. Both due process clauses: "Substantive" component guarantees fundamental rights to all persons--"catchall." |
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Term
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Definition
Liberty: significant governmental restraint on one's physical freedom, fundamental rights, or freedom of choice or action.
Property: legitimate claim of entitlement. |
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Term
| How do you determine how much process is due? |
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Definition
Consider three factors:
1. The private interest affected.
2. Value of additional safeguards, and
3. Burden (cost) of additional process. |
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Term
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Definition
| Court fees will be waived for indigent person if fundamental right is on the line. |
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Term
| Standard of review in substantive due process cases when fundamental right is on the line: |
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Definition
1. Strict scrutiny (burden on G) if G action infringes fundamental right.
--law must be least restrictive means to achieve compelling government interest.
---least restrictive: cannot be a less restrictive way to achieve interest and law should not be over/underinclusive.
---compelling interest: necessary or crucial. |
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Term
| Standard of review in substantive due process other than strict scrut: |
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Definition
Intermediate:
Rational Basis: (burden on challenger: law must be rationally related to legitimate state interest (minimal scrutiny). In practice, applied to laws related to lifestyle, taxation, zoning, and punitive damages. |
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Term
|
Definition
Travel
Voting and Ballot access.
Privacy
Second Amendment |
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Term
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Definition
| Marriage, Contraception, intimate sexual behavior, abortion (undue burden test), parental rights, family relations, and obscene material. |
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Term
| Equal protection as applied to states: |
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Definition
|
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Term
| Equal protection as applied to feds: |
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Definition
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Term
| Standards of review for equal protection: |
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Definition
Strict scrutiny: least restrictive means to achieve compelling government interest. Applies to fundamental rights or suspect classification involved.
Intermediate Scrutiny: Substantially related to important governmental interest. applies to gender and legitimacy.
Rational Basis: Rationally related to legitimate state interest. Applies when higher standards do not: age, wealth, weight, business. |
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Term
| Equal protection; Proving Discrimination. |
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Definition
Must show discriminatory intent and discriminatory impact.
Discriminatory on face: law that creates distinctions between classes of persons explicitly.
Discriminatory application: neutral law applied discriminatorily.
Discriminatory motive: disparate impact coupled with proof of discriminatory motive/intent. |
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Term
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Definition
trigger strict scrutiny protection.
Race, ethnicity, and national origin
Alienage--SS only when states discriminate. Feds are allowed to make classifications, so long as not "arbitrary and unreasonable." |
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Term
| Quasi-suspect classifications. |
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Definition
Trigger intermediate scrutiny: Substantially related to important government interest.
Gender: gov't must show "exceedingly persuasive justification for distinctions; and separate facilities must be substantially equivalent.
Legitimacy: Legislation designed to punish nonmarital children will be struck down. |
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Term
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Definition
1. applies only to citizens (not corps or aliens)
2. Prohibits one state from discriminating against citizens of another state with respect to fundamental rights or essential activities.
--examples include pursuit of employment, transfer of property, access to state courts.
3. substantial justification exception.
--applies if nonresidents are cause or part of problem state trying to solve, and
--no less restrictive means. |
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Term
| 14th amendment: national citizenship |
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Definition
1. applies only to citizens (not corps or aliens)
2. Protects against infringement on privileges and immunities of national citizenship.
--right to travel interstate, vote for national offices, enter public lands, and peaceably assemble.
--Provision is seldom successfully invoked, rights are redundant to rights protected elsewhere in constitution, and in practice applies only to right to travel. |
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Term
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Definition
Check on the power of eminent domain.
A. Challenger to a taking must have a property interest.
--includes real property and tangible/intangible personal property.
--interests include fee simple, easement, leasehold, lien, rights of property owner. |
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Term
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Definition
1. seizure/destruction/damage to property.
2. re-characterization of property as public.
3. regulatory taking, and
4. exaction of promises from developer. |
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Term
| Takings: just compensation |
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Definition
| Fair market value at time of taking measured in terms of loss to the owner (not benefit to government) |
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Term
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Definition
Bills of attainder
Ex post facto laws
Impairment of contracts
--applies only to state legislation
--...that retroactively impairs contractual rights. |
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Term
| Establishment clause: Lemon test. |
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Definition
Standard of review: Governmental action benefitting religion may be valid if: SEX
1. Secular purpose
2. primary Effect neither advances nor prohibits religion, and
3. does not result in eXcessive entanglement. |
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Term
| financial aid to religiously affiliated institutions |
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Definition
Lemon test.
1.Indirect aid to schoolchildren: valid if widely available to class of persons not defined by religion.
2. Direct aid to colleges/hospitals--upheld if aid used only for nonreligious purposes, and
3. tax exemptions--valid if equivalent to exemptions to other charitable institutions not advancing/inhibiting religion (i.e. can't be available only to religious organizations). |
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Term
| 5 types of displays held as invalidly promoting religion at school: |
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Definition
1. Prayer/bible reading
2. period of silence for meditation/voluntary prayer
3. Nondenominational prayer by cleric at graduation.
4. Posting of ten commandments
5. Prohibiting teaching of Darwinism |
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Term
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Definition
1. Ten Commandments on public property not allowed if it has predominantly religious purpose.
2. Government holiday displays okay unless reasonable observer's conclusion is that they endorse religion. |
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Term
| Free exercise: Religious belief |
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Definition
1. Absolutely protected and cannot be restricted by law; and
2. Government cannot deny benefits or impose burdens based on religious belief
--court may determine sincerity of person asserting belief, but may not determine reasonableness of belief. |
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Term
| Free Exercise: Religious Conduct |
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Definition
1. Not absolutely protected.
2. Laws that intentionally target religious conduct subject to strict scrutiny.
3. Neutral laws of general applicability that have an impact on religious conduct only subject to rational basis test. |
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Term
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Definition
Expressive conduct (symbolic speech)--regulation upheld if...
1. It is within the government's power to enact.
2. It futhers an important government interest.
3. Interest is unrelated to suppression of ideas, and
4. Burden on speech no greater than necessary |
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Term
|
Definition
1. void if burdens substantially more speech than necessary to protect a compelling gobernment interest.
2. A few possible impermissible applications of statute not sufficient ot make it overbroad.
3. Overbroad statutes may be challenged as "facially invalid" to prevent chilling effect on protected speech. |
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Term
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Definition
| Statute void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited. |
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Term
|
Definition
Regulation of speech in advance of its expression.
Invalid unless there is PARTICULAR HARM to be avoided and certain PROCEDURAL SAFEGUARDS are provided to the speaker, for example...
---narrowly drawn/reasonable/definite standards.
---promptly sought injunction.
---prompt/final decision on validity of restraint.
Burden on government to prove censored material not protected speech. |
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Term
|
Definition
1. Statute giving officials unfettered discretion void on its face; speakers need not apply for permit and may not be punished for violation.
2. Statute must provide definite standards to officials on how to apply the law to restrict speech.
3. Statute must be related to important governmental interest and contain aforementioned procedural safeguards. |
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Term
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Definition
Cannot be forced to speak.
Cannot be forced to fund political speech by a group one is compelled to join with respect to one's employment. |
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Term
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Definition
| NEed not be viewpoint neutral, but is subject to Establishment Clause. |
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Term
|
Definition
Statutes limiting campaign contributions subject to intermediate scrutiny, and
Restrictions on campaign expenditures on communications during election campaign regarding a candidate subject to strict scrutiny. |
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Term
| Regulation of Speech in Public Forum |
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Definition
1. Traditional--historically associated with expression (e.g. sidewalks, streets, or parks)
2. Designated (limited)--not historically used for speech related activities but which government has opened for such use (e.g. civic auditoriums, publicly owned theaters, school classroom off-hours)
3. Restrictions must be...
....content-neutral as to subject matter and viewpoint.
....narrowly tailored to serve a significant government interest, and
....leave open ample alternative channels for communication.
4. Subject to strict scrutiny if not content-neutral
5. Injunction in public forum
....content-neutral--must not burden more speech than is necessary to achieve an important governmental interest, and
....content-based--must be necessary for the government to achieve a compelling governmental interest. |
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Term
| Regulation of speech in nonpublic forum |
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Definition
1. Definition: all public property that is not a traditional or designated forum
2. Regulation--must be viewpoint-neutral and reasonably related to a legitimate governmental interest.
--viewpoint-neutral--government may prohibit speech on certain issues altogether, but can't allow only one side of issue to be presented.
--Reasonable: restriction only needs to satisfy rational basis test.
3. PErsonal property--regulations rarely upheld. |
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Term
| Regulation of content of speech gets strict scrutiny, except... |
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Definition
1. obscenity and child pornography.
2. Incitement to violence: state may forbid speech advocating use of force or unlawful action if:
--speech is directed to inciting or producing imminent lawless action, and
--it is likely to incite or produce such action ( a clear and present danger)
3. Fighting words: Words that by their very nature are likely to incite an immediate breach of the peace
--annoying/offensive words not enough.
--must be genuine likelihood of imminent violence by hostile audience.
4. Defamation: If P is a public figure, or statement involves matter of public concern, P must prove FAULT and FALSITY in addition to prima facie case.
--public figure: if P known to general public or voluntarily injects herself into public eye, must prove D acted with actual malice.
--Public concern-- if P is private figure but statement is matter of public concern, need only prove negligence with respect to falsity. |
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Term
| Commercial speech--Restrictions subject to four-part test: |
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Definition
1. Commercial speech must concern lawful activity and be neither false nor misleading.
2. Asserted governmental interest must be substantial.
3. regulation must directly advance asserted interest.
4. Regulation must be narrowly tailored to serve interest ("reasonable fit" between government's ends and means chosen to accomplish them). |
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Term
| Regulation of media: general considerations |
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Definition
REgulation of right to publish matters of public concern subject to strict scrutiny.
1. gag orders--subject to prior restraint analysis and rarely upheld.
2. attending trials--right to attend may be outweighed by overriding interest that can't be accommodated by less restrictive means, and
3. Illegally obtained private info--okay to publish if 3rd party (unknown to publisher) obtained info and involves matter of public concern.
4. No constitutional right to protection of source. |
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Term
| Regulation of broadcast media: |
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Definition
| Greater responsibility to public so more closely regulated than print and other media. |
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Term
| Regulation of cable television: |
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Definition
| Content-based regulations subject to strict scrutiny. |
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Term
|
Definition
| Any regulation subject to strict scrutiny. |
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Term
| Regulation of Association: |
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Definition
Freedom of association protects right to form or participate in any group, gathering, club, or organization without restriction, but right not absolute.
1. infringement may be justified by compelling state interest.
2. Deprivation of public employment based on political association is allowed if...
---person is active member of subversive organization.
---has knowledge of group's illegal activity, and
---Has specific intent to further those illegal objectives. |
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Term
| Non-suspect classifications: |
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Definition
rational basis (rationally related to legitimate state interest)
Age.
Poverty.
Sexual Orientation. |
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Term
|
Definition
|
|
Term
| What standard applies to content-neutral restrictions on time, place, and manner of speech? |
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Definition
|
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