Term
| 11th Amendment (state sovereign immunity) Exceptions: |
|
Definition
1. Consent
2. Injunctive relief against state officials (but not states themselves)
3. Damages paid by an individual
4. Prospective damages
5. Congressional authorization (to enforce 14th Amendment) |
|
|
Term
|
Definition
1. Original (ambassadors, public ministers, cases in which a State is a party - not expandable)
2. Appellate (cert. and direct appeal, which is rare)
3. NO JURISDICTION when the issue rests on adequate and independent state grounds, or, in rare cases, when Congress has limited the jurisdiction of SCOTUS |
|
|
Term
| Requirements to have standing in federal court: |
|
Definition
1. Injury in fact, or imminent injury
2. Causation
3. Redressability |
|
|
Term
| What types of cases are non-justiciable? |
|
Definition
1. Advisory opinions
2. Declaratory judgments
3. Political questions
4. Anything else the court feels is best left to the states |
|
|
Term
| Federal police power is... |
|
Definition
| NEVER the right answer. Congress has no general police power to legislate for the health, safety, welfare, or morals of citizens. |
|
|
Term
|
Definition
Congress has the power to regulate the
1. Channels and
2. Instrumentalities of interstate commerce, as well as
3. Any activity that substantially affects interstate commerce (rational basis) |
|
|
Term
| Limitations on the taxing and spending power of Congress: |
|
Definition
1. No rational relationship to any government interest, only a reasonable relationship to revenue production
2. All taxes must be geographically uniform among states
3. No tax on goods exported to foreign countries for that reason alone
4. Congress may spend for the "general welfare" i.e., any public purpose (and thus indirectly police by withholding funds) |
|
|
Term
| Limitations on Congress's power over aliens: |
|
Definition
1. Congress has plenary power over aliens and may deny them entry to the US for almost any reason
2. However, once they are in the US, the 5th Amendment kicks in and they cannot be removed without notice and a removal hearing |
|
|
Term
| The US Constitution's Necessary and Proper clause is... |
|
Definition
| Probably NOT the right answer, unless it carries into effect other enumerated powers. It is not an independent source of power on its own. |
|
|
Term
| Distinguish the 13th, 14th, and 15th Amendments: |
|
Definition
13th: Ban on slavery and congressional power to regulate both private and government action to prevent discrimination
14th: Equal Protection and Due Process
15th: Voting rights |
|
|
Term
| Domestic Powers of the President: |
|
Definition
1. Pardon for federal offenses
2. Veto (can be overridden by a 2/3 vote in each house)
3. Appointment of officers and officials to organizations that have administrative or enforcement powers |
|
|
Term
| Foreign Powers of the President: |
|
Definition
1. Commander and Chief (but only Congress may declare war)
2. Negotiate treaties (requires 2/3 of Senate to ratify)
3. Enter into executive agreements (don't require Senate ratification, but not as powerful as a treaty) |
|
|
Term
| Congressional limits on the Executive branch: |
|
Definition
1. Impeachment
2. Appropriation - the President cannot impound funds appropriated by Congress (but there must be an explicit appropriation, otherwise no violation)
3. No legislative veto of executive agency actions; Congress must go through the channels of passing a bill |
|
|
Term
|
Definition
If Congress has not enacted legislation in a particular area of interstate commerce, states are free to regulate, as long as they do NOT:
1. Discriminate against out of state commerce (unless it is necessary to an important state interest or the state is acting as a market participant)
2. Unduly burden interstate commerce, or
3. Regulate wholly out-of-state activity
Note: States may not tax foreign imports and exports; that's Congress's territory |
|
|
Term
| What constitutes significant state involvement (such that the state may be sued for its wrongful conduct)? |
|
Definition
1. An affirmative act to facilitate, encourage, or authorize the activity; mere licensing or regulation of a private party does not count
2. Businesses that the government substantially regulates or to which the government grants a monopoly (like utility companies) do not exercise state action |
|
|
Term
| What are the elements considered for procedural due process? |
|
Definition
1. Whether the threatened interest is a protected one (liberty, including fundamental rights or freedom of choice or action, or property interests)
2. What process is due (determined by balancing the private interest affected, the risk of erroneous deprivation, and the burden involved in providing additional process) |
|
|
Term
|
Definition
1. The law must be the least restrictive means to achieve a compelling governmental interest
2. Burden of proof is on the government
3. Applied if a fundamental right is invoked or a suspect classification is involved |
|
|
Term
|
Definition
1. Law must be substantially related to an important government interest
2. Burden of proof is generally thought to be on the government
3. Applies when a classification is based on gender or status as a nonmarital child |
|
|
Term
|
Definition
1. Law is rationally related to a legitimate state interest
2. Burden of proof is on the challenger to prove that a law is arbitrary or irrational
3. Applies when stricter tests do not (i.e., no suspect class or fundamental right is involved) |
|
|
Term
|
Definition
1. Voting and Ballot Access
2. Interstate Travel
3. Privacy (including abortions, sex, marriage, child rearing, living with family relations, possessing most obscene material, and refusing medical treatment)
4. Possession of a firearm (2nd Amendment) |
|
|
Term
|
Definition
1. Race
2. Ethnicity
3. National origin
4. Alienage (if the classification is by state law) |
|
|
Term
| Ways to prove discriminatory intent: |
|
Definition
To trigger strict or intermediate scrutiny, a law must have discriminatory intent, not just a disparate impact. This intent can be proven by:
1. Facial discrimination
2. Discriminatory application
3. Discriminatory motive |
|
|
Term
| Rights protected by the Comity Clause (Privileges and Immunities in Article IV): |
|
Definition
1. Employment
2. Transfer of property
3. Access to state courts
EXCEPTION: Substantial justification
Notes:
1. Consider in conjunction with Commerce Clause
2. Almost NEVER a right answer under 14th Amendment |
|
|
Term
| Standard for taking property under eminent domain: |
|
Definition
| Taking must be rationally related to a conceivable public purpose (includes economic redevelopment goals; burden is on the challenger |
|
|
Term
| Prohibited legislation under the US Constitution: |
|
Definition
1. Bills of attainder (legislative acts that declare a person or group guilty of some crime and punishes him/them without a trial)
2. Ex post facto laws (confined to criminal or penal laws)
3. State laws that retroactively impair the obligation of contracts (unless they are reasonable and necessary to serve an important government interest) |
|
|
Term
| Establishment Clause: A governmental action that benefits religion is valid if: |
|
Definition
1. It has a secular purpose
2. Its principal or primary effect neither advances nor inhibits religion, and
3. It does not result in excessive government entanglement with religion |
|
|
Term
| Governmental regulation of expressive speech is valid if: |
|
Definition
1. The regulation is within the government's power to enact
2. It furthers an important government interest
3. The interest is unrelated to the suppression of ideas, and
4. The burden on speech is no greater than necessary |
|
|
Term
| Standards for content-neutral time/place/manner restrictions on speech in public and nonpublic forums: |
|
Definition
Public: Regulations must be
1. Content-neutral
2. Narrowly tailored to serve a significant government interest
3. Leave open alternative channels for communication
Nonpublic forum: Regulations must be
1. Viewpoint neutral
2. Reasonably related to a legitimate government interest |
|
|
Term
| Categories of content-based speech that may be restricted: |
|
Definition
1. Obscenity (appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious academic, artistic, etc., value)
2. Subversive speech (speech directed to inciting imminent lawless action and likely to produce such action)
3. Fighting words (restrictions are almost always overbroad)
4. Defamation
5. Commercial speech (regulations must be narrowly tailored to directly advance a substantial government interest, unless the speech is misleading or concerning unlawful activity)
NOTE: The standard for content based regulations is STRICT SCRUTINY (necessary to achieve a compelling government interest) |
|
|
Term
| A person may be denied public employment based on membership in a political organization, only if: |
|
Definition
1. He is an ACTIVE member of a SUBVERSIVE organization
2. He has knowledge of the organizations illegal activity, and
3. He has a specific intent to further those illegal objectives |
|
|
