CONSTITUTIONAL.csv

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mtramm
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162519
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CONSTITUTIONAL.csv
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2012-07-16 03:10:22
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  1. The limitations on federal jurisdiction are called strict necessity. What are the three parts to this test:
    • 1. Standing (Injury, Causation and Redressability, Generally no third party standing, No generalized grievances except establishment clause case)
    • 2. Ripeness: immediate threat of harm (hardship, fitness of issues and record)
    • 3. Mootness: Must still be live controversy or capable of repetition
    • 4. The SCOTUS will not exericise jurisdiction if
    • a. the state court judgement is based on adequate and independent state grounds even if federal issues are involved
    • b. Unsettled question of state law
    • c. political questions 
    •  
  2. Examples of Political Question
    • 1. Republican form of government
    • 2. President's foreign policy
    • 3. Impeachment and removal
    • 4. Partisan gerrymandering
  3. Congress has Police Power in all of these locations MILD
    • Military
    • Indian Reservations
    • Lands (federal)
    • District of Columbia
  4. Congress has the exclusive power to regulate all foreign and interstate commerc. Law must either:
    Regulate the channels of interstate commerce

    Regulate the instrumentalities of interstate commerce

    Regulate activities that have a substantial effect on interstate commerce  
  5. Taxing power. Tax will be held up if one of two requirements are met:
    The tax bears some reasonable relationship to revenue production or

    Congress has the power to regulate the actitvity taxed 
  6. Spending power:
    congress ahs the power to spend for any public purpose
  7. Who does the president have the right to appoint, and who does he hneed the advice and consent of the senatne? 

    When can executive officers be removed? 
    Senate and pres = superior officers 

    Congress can  vest sole power in president to appoint infereior officers. 

    Prez can remove any pure executive officer.

    Congress may limit his ability on inferior positions. Congress can only remove them through impeachment process. 
  8. Treaties vs. Other sources of law
    • Treaties > State Law
    • Treaties = Federal Law (last in time controls)
    • Constitution > Treaties
    • Executive agreements vs. Other sources of law
    • Exec > State Law
    • Federal Law > Exec
    • Constitution > Exec
  9. Presidents immunity
    Absolute immunity over all civil damages based on any action he took within his official responsibilites. 
  10. What is the effect of the supremacy clause?
    Allows a federal law to supersede or preempt local laws. 

    Conflicts: automatic invalidation

    State law prevents achievement of federal objective: invalidation

    Preemption: Express or implied (if implied courts will start with presumption that state general welfare power is not supposed to be superceded and will look for clear and manifest purpose of congress to do so)  
  11. Privileges and Immunities (Article IV vs. 14th Amendment)
    • Art. IV: No state may deny citizens of other states the privileges of its own citizens without substantial justification
    • 14th Amendment: Preserves a person's right to travel between states

    by 5th amendment Only fundamental rights are protected

    14 protects right to interstate travel. 
  12. When can a state make a law that regulates local aspects of interstate commerce?
    If it does not discriminate or unduly interstate commerce 
  13. A state law that discriminates agaisnt interstate commerce to protect local intersts is almost always invalid. What are three exceptions to this rule?
    Imporatant state interest 

    Market participant

    Favoring government performing tranditional goverment functions  
  14. If a state burdens interstate commerce with a non-discrimanatory law, when will that law be struck down?
    Almost always upheld. But if law's burden is greater than interest it is protecting them it will be declared invalid.
  15. A state tax that discriminates against interstate commerce will be declared invalid under the commerce clause. But a non discriminatory tax will be valid if:
    Subtantial nexus to the taxing state 

    Fair apportionment based on a ratinal formula

    Fair  relationship to the services or benefits provided by the state.
  16. What is the 2 step process for determing whether a state tax that affects interstate commerce is valid?
    Is it premmpted or athorized? If not:

    Does the tax discrimiante or unduly burden (substantial nexus, unfair apportionment, no fair relationship). If so invalid.
  17. Procedural due process requires fair process (notice and hearing) if a government agency is to individually take a persons life liberty or property. Only intentional depreivation invokes due process.

    What is liberty? 

    What is property?  

    What Proces is required?
    Liberty: freedom or action or freedom provided by the constitution or statute 

    Property: legitmate claim or entitlement

    Liberty: Balance betwee: importance of the interest and the procedural safegaurds to that interest against  against the government interst in fisscal and administrative efficiency.
  18. Under the taking clause what can constitute a taking?
    Actual appropriation or physical invasion (not a mere regualtion)

    Use restriction if it denies all economic use of the land. (Not just temporary denial)  A regulation that merely denies the economic  value is not a taking if it leaves an economically viable use for the property. 

     
  19. Under the takings clausee what constitutes just compensation?
    Pay the property owner fair market value or 

    Terminate the regulation and pay damages 

     
  20. Differing levels of scrutiny verbatim
    • Rational Basis: Rationally related to a legitimate purpose
    • Intermediate: Substantially related to an important purpose
    • Strict: Necessary to achieve a compelling purpose (least restrictive alternative)
  21. Due process (14th Amendment) What procedures are required?
    • "Assuming a deprivation of life, liberty (freedom secured by constitution or statute) or property (entitlement to benefit),"
    • then balancing test with:
    • 1. Importance of interest to individual
    • 2. Ability of additional procedures to increase accuracy
    • 3. Government's interests (efficiency)
  22. Rights triggering Strict Scrutiny  uner due process
    • "Marry, procreate, children, keep family together, raise children, contraceptives"
    • Travel (durational requirements for benefits)
    • Vote
    • "Speech (content-based and prior restraint), Association"
    • Burden on religion if not a neutral law of general applicability
  23. Abortion rights standard?
    Undue burden
  24. Rights triggering rational basis under due process
    • Practicing trade or profession
    • Physician-assisted suicide
    • Education
  25. Equal Protection  classifications triggering strict scrutiny
    • Race
    • National origin
    • Alienage generally
  26. Equal Protection - classifications triggering intermediate scrutiny
    • Gender
    • Illegitimacy
  27. Equal Protection - classifications triggering rational basis
    • Alienage related to democratic process
    • Congressional regulation of aliens
    • Age
    • Disability
    • Wealth
    • All others
  28. For the equal protection clause of the 14th to apply, it must be shown that the government had the intent to discriminate against a protected classs. This can be shown three different ways:
    The law is discriminatory on its face 

    A disciminatory application of a facially neutral law

    A discriminatory motive behind the law

    ***discriminaty effect along is not enough  
  29. Content neutral law burdening speech?
    Intermediate Scrutiny (must advance important government intersts unrelated to the suppression of the speech must not burden substantially more speech than necessary. 

    Content burdening restrictings are presumptively unconstitutional except for obscenity or defamation.  
  30. What are three factors in determining the reasonabless of regulation over speech?
    Overbraod? 

    Void for vagueness

    Official discretion  
  31. If the government wants to regulate speech in a public forum or a designated public forum such as a street, sidewalk or public park, the law must meet three requirements:
    Must be content neutral 

    Narrowly tailored to serve and important government interst and

    Leave open alternative channels of communication 
  32. If the government wants to regulate speech in a limited public forum or non-public forum then the government is free to limit the speech in a location to the intended use. The law is valid if:
    Viewpoint neutral 

    Reasonably related to a legitmate government purpose  
  33. Obscenity laws require... POS? 
    • 1. Appeal to prurient interest by a community standard
    • 2. Patently offensive by a community standard 
    • 3. Artistic literary political scientific by NATIONAL standard*

    "Think P.O.S. (prurient, offensive, social qualities?)"
  34. If the government makes a law that infringes on a religion the free excise clause cannot be used to challenge it unlesss it was specifically desinged to interfere with religion. Also:
    The clause does not require religious excemption from generally applicable governmental regulations that happen to burden religious conduct. 
  35. "Speech restrictions on non-public forums (military, outside prisons, city buses, sidewalks outside post office, airports)"
    • Can close off speech entirely if viewpoint neutral and rational basis met.
    • At Airports can't prohibit distribution of literature
  36. Establishment Clause lemon test applied to no sect prefering laws that involve religion : SEX
    • Secular purpose
    • Effect neither to advance nor inhibit religion
    • no eXcessive entanglement

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