Term
| 4 situations in which is case is NOT moot |
|
Definition
® Injury is capable of repetition to the same Π, but b/c of the short-lived nature, will evade review.
® Class action and at least one member still live issues
® Appears moot, but there are collateral continuing issues
® Reasonable likelihood the ∆ could return to his old harmful ways. |
|
|
Term
| 3 requirements for an organization to have standing to sue for its members |
|
Definition
□ Member or members would have standing,
□ The members' injury is related to the purpose of the organization, AND
□ Nothing that would require participation of the indiv. members in the suit. |
|
|
Term
| Two requirements for taxpayer standing to exist |
|
Definition
□ Challenged law is enacted under Congress' taxing and spending powers, AND
□ It's an Establishment Clause challenge. |
|
|
Term
| Two times a court will abstain from hearing a case challenging a state law |
|
Definition
○ It involves a C'l challenge to 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 |
|
|
Term
| 6 kinds of issues that are always PQs |
|
Definition
- Challenges based on the "Republican form of government" clause
- True foreign affairs or military command decisions
- Impeachment procedures
- Seating of delegates at a nat'l political convention
- Election & qualification of members of Congress (age, citizenship, & residency requirements)
- Procedures to amend the C
|
|
|
Term
| When does the 11A bar suit? |
|
Definition
- Π must be a private party
- ∆ must be a state, not a municipality of subdivision of a state.
- 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
|
|
|
Term
| When can you sue a state when the 11A would otherwise bar it |
|
Definition
the state expressly consents
OR
Congress CLEARLY says you can to enforce civil rights statutes passed under the 14A. |
|
|
Term
| What are the conditions of the federal gvt. using the spending power to bribe states to pass a law |
|
Definition
- The law the fed. gvt. wants to be enacted is for the general welfare
- The law cannot violate indiv liberties
- It's reasonably related to a legit federal interest (low bar only need a very loose connection)
- Must be CLEAR that the money is conditioned on a specific action by the state
|
|
|
Term
| Is a legislative veto over agency action OK? |
|
Definition
|
|
Term
| Congressional immunities: speech and debate clause |
|
Definition
A very narrow protection whereby members of Congress have no criminal or civil liability for acts integral to legislative process
○ If something is said on the floor but republished…not immune for the republished stuff. |
|
|
Term
| What can the President pardon for, and can this power be taken away |
|
Definition
|
|
Term
|
Definition
§ Laws that discriminate for the purpose of favoring instate commerce are always Un-C'l
§ Laws the discriminate for health and safety purposes are invalid UNLESS the state shows it had no reasonable, non-discriminatory means to achieve the objective. |
|
|
Term
| DCC unreasonable burden rule |
|
Definition
| balance actual effects of the law on the free flow of commerce against the state's interest served by the law. (Normally state wins this, but if tiny benefit and big burden, no) |
|
|
Term
| 4 situations where the DCC doesn't apply |
|
Definition
- Congressional approval of the state law
- When the state acts as a market participant, (buyer or seller)
- When the state is giving subsidies
- NOTE: high tax on everyone w/ a break back to in-state people is an illegal discriminatory tax
- 21A: State CAN "burden" liquor but still CAN'T discriminate against out-of-state liquor.
|
|
|
Term
| Is state taxation subject to DCC requirements? |
|
Definition
|
|
Term
| 3 requirements a tax on interstate commerce must meet to be valid |
|
Definition
- Non-discriminatory
- Activity, person, or thing to be taxed must have a substantial nexus to the state (actual presence in the state)
- Not unreasonably burdensome
- Flat taxes on interstate businesses are invalid b/c cumulative non-apportioned taxes could crush an interstate business
|
|
|
Term
|
Definition
- States may not by legislation substantially impair pre-existing K's UNLESS
- the law serves an overriding public need, AND
- the law is a reasonably and narrowly tailored means of meeting that need.
|
|
|
Term
| for a gvt'l deprivation or property, when is a hearing normally required |
|
Definition
| Often required hearing be pre-deprivation, unless a significant need for gvt. to act quickly |
|
|
Term
| What counts as a taking for E.D. purposes? |
|
Definition
○ Physical invasion or occupation: no matter how TINY or brief (e.g., a wire running thru your place)
○ Regulatory taking: only a taking IF there is no economically viable use for the property OR it doesn't reasonably advance a legitimate state interest |
|
|
Term
| Times affirmative action meets S.S. |
|
Definition
- Courts can use race based remedies to redress past de jure discrimination (e.g., to integrate an intentionally segregated school)
- Voluntary plans: gvt. agencies can have a compelling interest in specifically correcting prior discrimination against minorities
- University admissions: a diverse student body is itself a compelling interest
- Not true for secondary and elementary schools
|
|
|
Term
| State may discriminate against aliens for what kind of employment? |
|
Definition
| States MAY require U.S. citizenship for gvt. policymaking or policy implementing positions. (cops, public school teachers, NOT notaries). |
|
|
Term
| When do you not have a right to refuse medical treatment? |
|
Definition
| to be vaccinated against contagious diseases. |
|
|
Term
| What restraints are acceptable on the exercise of the right to vote, and what is NOT? |
|
Definition
□ Short residency requirements are OK
□ Requirement to own property for general elections, long residency requirement, poll taxes, are NOT |
|
|
Term
| The rules on racial and political gerrymandering |
|
Definition
- Racial gerrymandering: If trying to dilute minority votes, Un-C'l, but if trying to empower, it can be a factor so long as it's not THE factor.
- Political gerrymandering (test is impossible to meet): Must be intentional and consign the other party to losing over time.
|
|
|
Term
| What must the gvt. show in order to have a prior restraint be C'l? |
|
Definition
| gvt must show it's necessary to prevent direct, immediate, and irreparable harm. |
|
|
Term
| 3 requirements for "time place and manner" restrictions on speech to be C'l |
|
Definition
- They are content neutral standards affording MINIMAL discretion
- There are substantial alternative opportunities for the speech to take place
- The law narrowly serves a "significant" state interest (almost anything counts)
|
|
|
Term
| Unprotected Speech: Speech inciting immediate violent or lawless behavior |
|
Definition
□ Must be meant to incite, AND
□ Is likely to actually incite imminent lawlessness
NOTE: NOT the hostile audience problem |
|
|
Term
| Unprotected Speech: Fighting Words/Hate Speech |
|
Definition
§ They have to be more than just offensive. Must tend to cause immediate violence
§ Laws against this are often overbroad |
|
|
Term
| Unprotected Speech: True Threats |
|
Definition
| Where speaker means to communicate a serious expression of intent to commit an unlawful act of violence |
|
|
Term
| Unprotected Speech: Obscenity - 3 requirements |
|
Definition
- Average person, applying contemporary community standards, would find that as a whole it appeals to a prurient interest
- It depicts, in an offensive way, sexual conduct specifically defined by state law
- It lacks serious literary, artistic, political, or scientific value. Mere nudity or dirty words are not enough to make something obscene
|
|
|
Term
| Unprotected Speech: Libel, Defamation, and Invasions of Privacy |
|
Definition
|
|
Term
| Semi-Protected Speech: Commercial Speech |
|
Definition
- Gvt. may regulate and prohibit false / misleading advertising, or advertising proposing an unlawful transaction.
- If the gvt. wants to regulate beyond the above justifications, must pass an intermediate scrutiny showing the regulation advances a substantial gvt interest and is narrowly tailored.
|
|
|
Term
|
Definition
§ Gvt. action must have a secular purpose
§ It's primary effect must neither advance or inhibit religion
§ It must not create excessive entanglement with religion |
|
|
Term
| Gvt'l ability to regulate non-obscene explicit material |
|
Definition
| § Even if something isn't obscene, but it's explicit, the gvt. may keep minors away from it, and may also zone it to prescribe places for it. |
|
|
