Constitution

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Constitution
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2010-06-19 11:55:12
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Constitution
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Constitution
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  1. Requirements for standing
    • Injury: plaintiff must either have personally suffered harm or show likelihood of future harm (prefer econ loss)
    • Causation and redressability: must allege and prove that defendant caused the injury so the court coudl remedy the injury (no advisory opinions)
    • No third party standing: generally plaintiff cannot assert a claim for others
    • No generalized freivances: plaintiff must not be suing solely as a citizen or a taxpayer wanting the government to follow the law.
  2. Exceptions to third party standing
    • Plaintiff has independant standing AND
    • -close relationship between plaintiff and injured party: ie doctor/patient for divorce
    • -third party is unlikely to be able to assert his or her own right
    • -organization may sue for its members if: 1) members would have standing to sue, 2) interests are germane to the organization's purpose, 3) neither claim nor relief requires participation of the individual member
  3. Exception to no generalized grievances requirement for standing
    have right to challenge government expeditures that violate the establishment clause
  4. Ripeness
    This is whehter hte court may grant pre-enforcement review of a statute or regulation

    • Need:
    • -hardship without preenforcement review
    • -fitness of the issue and record for judicial review: do the courts have all the necessary information to decide the issue
  5. Mootness
    If events after filing end the plaintiff's injury then the case becomes moot

    • Exceptions:
    • -wrong capable of repetition but evading review
    • -voluntary cessation
    • -class action suits: if one class member is resolved it does not make the whole class action moot
  6. Cases and controversies requirement
    • Standing
    • Ripeness
    • Mootness
    • Political question doctrine
  7. Political question doctrine
    • Republican form of government
    • Challenges to PResident's conduct of foreign policy
    • Challenges to impeachment and removal process
    • Challenges to partisan gerrymandering
  8. When can the Supreme Court not review a state decision?
    When there is independent and adequate state law grounds. If based on two grounds (one state and one federal) and reversal of federal does not change the issue then the Supreme Court cannot hear the case
  9. Sovereign immunity
    11th amendment bars suits against the states in Federal Courts, state courts, and federal agencies

    • Exceptions:
    • -waived the sovereign immunity
    • -states may be sued pursuant to federal laws adobted under section 5 of the 14th Amendment
    • -federal government may sue state governments
    • -bankruptcy proceedings
  10. Suits against state officers
    • may be sued for injunctive relief
    • may be sued for money damages out of their own pocket and not the government treasuries
    • may NOT be sued if the state treasury will be paying retroactive damages
  11. When may Congress act?
    • Express or implied Congressional power
    • Neccessary and proper clause + another power
    • Taxing/spending power and commerce power
    • 10th Amendment limits congressional power for all powers not granted to the federal government
  12. Active Commerce Power
    • May regulate teh channels of interestate commerce
    • May regulate the instrumentalities of interstate commerce and persons or t hings in interestate commerce
    • May regulate economic activities that have substantial effect on interestate commerce (can cummulate effect for economic activities)
  13. 10th amendment limit on congressional powers
    • Congress cannot compel state regulator or legislative action, however they may induce action through witholding funding
    • Congress may prohibit harmful commercial activity by states
  14. Congress's power to delegate
    • no limit exists on the ability to delegate legislative power
    • congress cannot delegate executive power to itself or it's officers
  15. What is required for Congress to act?
    • Cannot have:
    • -legislative veto: not using bicameralism (going through both houses and presentment (giving to President to sign or veto)
    • -line-item veto: President must sign or veto the bill in its entirety.
  16. Foreign Policy
    • Treaties: President negotiates adn effective when ratified by Senate
    • Executive agreements: this is an agreement between the US and foreign country signed by president and head of the foreign nation
    • -can be used for any purposes
    • President has broad powers as Commander in Chief to use American troops in foreign countries
    • Congress has the power to declare war
  17. Order of Supremacy
    • Constitution
    • Last in time Federal law or treaty
    • Executive agreement
    • State law
  18. President's powers of appointment and removal:
    • Appointment power
    • -President may appoint ambassadors, federal judges and officers of the US
    • -Congress may vest the appointment of inferior officers in the President, the heads of departmetns, or the lower federal courts
    • -Congress may NOT give itself or its officers the poewr of appointment

    • Removal Power
    • -Unless limited by statute President may fire any executive branch office
    • -Exception: 1) limit removal where independance from President is desirable 2) cannot prohibit removal but can limit for good cause
  19. Impeachment and removal
    Can be impeached for treason, bribery or high crimes and misdemeanors

    • Need majority of house to impeach
    • Need 2/3 of Senate to convict
  20. Presidential immunity and privileges
    • President has absolute civil immunity for money damages while in office, but not for actions taken prior to office
    • President has executive privilege for presidential papers and conversations, but must yield to important gov't intersts
    • Pardon for Federal crimes and ONLY for criminal liability NOT civil liability
  21. Preemption
    Article 6 provides that hte Constitution, law, and treatise made to it are the supreme law of the land

    • Express preemption
    • Implied preemption
    • -federal and state laws are mutually exclusive
    • -state law impedes the achievement of a federal objective
    • -Congress evidences a clear intent ot preempt state law

    States may not tax or regulate the federal governmetn activity as a power to tax is a power to destroy
  22. State law affecting interstate commerce (dormant commerce clause)
    • If the law does NOT discriminate: law burdens interstate commerce, it violates the dormant clause if it causes an undue burden.
    • If discriminates against out of staters: needs to be necessary to achieve an important governmental purpose
    • -Exception: 1) congressional approval 2) government acting as market participant
  23. State law affecting interstate commerce (Article IV privileges and immunities)
    Statute does not discriminate: not apply because not discrimination against out of staters

    • Statute does discriminate: needs to be necessary to achieve an important government purpose
    • -must discriminate against out of staters
    • -discrimination must be with regard to civil liberties or important economic activities
    • -corporations and liens cannot use privileges and immunites
    • -discrimination must be necessary to achive an important governmental purpose
    • Article 4 privileges and immunities:
  24. State taxation of interstate commerce
    • states may not use their tax systems to ehop in-state businesses
    • states may only tax activities if there is a substantial nexus to the state
    • state taxation must be fairly apportioned
  25. Full faith and credit
    • court that rendered the judgment had jurisdiction over the parties and subject matter
    • judgment was on the merits
    • judgment is final
  26. Protection of civil liberties
    Contitution ONLY protects against state action

    • Can regulate private conduct ONLY when:
    • -13th amendment to prohibit race discrimination with a badge of slavery
    • -commerce power can be used to apply constitutional norms of private conduct
    • -congress cannot use sectino 5 of 14th amendment to regulate private conduct
    • -the private entity is performing a task traditionally, exclusively done by the government
    • -entanglement exception: the government affirmatively authorizes, encourages, or facilitates unconstitutional activity
  27. Entanglement exception for treating private parties as state actors
    • court enforcing racially restrictive covenants
    • gov't leases prmises to restaurant that racially discriminates
    • provides books to school that racially discriminate
    • No state action when private school is over 99% funded by government and fires for her speech
    • No state action when NCAA orders suspension of basketball coach at state university
    • state action when private entity regulates interscholastic sports within a state
    • no state action where private club obtains a liquor license from state racial discrimination
  28. Bill of rights that DO NOT apply to state and local governments
    • 2nd amendment right to bear arms
    • 3rd amendment right to not have a soldier quartered in a person's home
    • 5th amendment right to grandjury indictment in criminal cases
    • 7th amendment right to jury trial in civil cases
    • 8th amendment right against excessive fines
  29. Levels of scrutiny:
    Rational basis test: burden on challenger that the law does not have a conceivable legitimate purpose OR is not rationally related

    Intermediate scrutiny:
    burden on government that the law substantially related to an important government purpose. Needs to be narrowly tailored but not the best way.

    Strict scrutiny:
    burden on government that it is necessary to achieve a compelling government purpose. There needs to be no less restrictive means to achievce the objective.
  30. Procedural due process:
    • Deprive of:
    • -life:
    • -liberty: occures if there is a loss of significant freedom provided by constitution or statute. Prisoners rarely have liberty interest
    • -property: this occurs if there is an entitlement and that entitlement is not fulfilled. A unilateral expectation is not enough.

    Must be an intentional government action or at least reckless that it "shocks the conscience." Negligence is not enough.

    • Balancing test for what procedure is required:
    • -importance of interest to the individual
    • -ability of additional procedures to increase the accuracy of hte fact-finding: risk of erroneous deprivation
    • -government's interests
  31. Examples of due process procedures
    • welfare benefits: notice and hearing
    • social security benefits: post termination hearing
    • disciplined at public school: notice of charges and opportunity to explain
    • parental right to custody terminated: notice and hearing
    • punitive damages: instructions to jury and judicial review
    • US citizen held as enemy combatant: due process: notice or charges, representation, meaningful hearing
    • prejudgment attachmetn: notice and hearing unless exigent circumstances where need to post a bond
    • gov't ceizure of assets: notice and hearing
    • ceizure related to illegal activity: may over innocent owner
  32. What standard applies for economic liberties?
    Rational basis test: burden on challenger that the law does not have a conceivable legitimate purpose OR is not rationally related
  33. Takings clause
    • may take property for public benefit use if provides just compensation. Needs to have another reason for taking.
    • possessory and regulatory takings
    • government conditions on development must be justified by a benefit that is roughly proportionate to the burden imposed
    • temporarily denying use of property is NOT a taking as long as government action is reasonable.
    • value is based on loss to owner and NOT the gain to taker
  34. Possessory taking vs. regulatory taking
    • Possessory taking: government confiscation or physical occupation of property
    • Regulatory taking: government regulation is taking if it leaves no reasonable economic viable use.
  35. Contracts clause
    • no state shall impair obligations of contracts:
    • -applies to local or state contracts in existence
    • -state or local interference with private contracts must meet intermediate scrutiny (reasonably and narrowly tailored for an important government interest)
    • -state or local interference with government contracts must meet strict scrutiny
    • -ex post facto law does not apply to civil cases.
  36. Fundamental rights under substantive due process
    • right to marry
    • right to procreate
    • right to custody of one's children (except parental abuse and presumption that husband is irrebuttably father)
    • right to keep family together
    • right to control the upbringing of one's children
    • right to pruchase contraceptives
    • right to abortion
    • right to privacy protects right to engage in private consensual homosexual activity
    • right to refuse medical treatment (specific criteria met)
  37. Right to abortion
    • prior to viability may regulate abortion so long as they do not create an undue burden on the ability to abtain an abortion:
    • - 24 hour waiting period not undue burden
    • -requirement performed by licensed physician not an undue burden
    • - prohibition of partial birth abortions not an undue burden

    after viability then may prohibit UNLESS necessary for the woman's life or health

    Gov't has not duty to subsidize abortions or provide at public hospitals
  38. right to refuse medical treatment
    • competent adults have right to use even life-saving medical treatmetn
    • state may require clear and convincing evidence that a person wanted treatment terminated
    • state may prevent family members from terminating the treatmetn of another.
  39. right to travel
    • Violated by:
    • -laws preventing people from moving into a state must meet strict scrutiny
    • -durational residency requirement must meet strict scrutiny (50 day max)
    • -rights to foreign travel only needs rational basis test
  40. Right to vote
    • laws taht deny some citizens righ tot vote must meet strict scrutiny. However, to regulate electoral process to prevent fraud only need to balance desirability
    • one person - one vote for all state and local elections
    • At-large electiosn constitutional unless proof of discrimination
    • use of race in drawing election district lines must meet strict scrutiny
  41. Equal protection clause
    • 5th amendment for federal government through due process clause.
    • 14th amendment for state and local governments

    • Strict scrutiny: race, national origin, alienage, travel, voting
    • Immediate scrutiny: gener, illegitimacy, undocumented alien children
    • Rational Basis Test: Alienage classification related to self government and congressional regulation, age, disability, wealth, all else.
  42. Equal protection: race and national origin
    strict scrutiny is used

    • When proven?
    • -classification exists on face of law
    • -law is facially neutral: 1) discriminatory impact and 2) discriminatory intent

    • numerical set asides require clear proof of past discrimination
    • educational institutions may use race as ONE FACTOR, but cannot set aside spots or add points to admission scores
  43. Equal protection: gender
    intermediate scrutiny used

    • When proven?
    • -classification exists on face of law
    • -law is facially neutral: 1) discriminatory impact and 2) discriminatory
    • intentnumerical set asides

    • classifications based on stereotypes not allowed
    • allowed to remedy past discrimination or differences in opportunity.
  44. Equal protection: aliens
    • generally strict scritiny used EXCEPT (then rational basis):
    • -for self government and democratic process: voting, jury, police, teachers, probation officers
    • -congressional discrimination
    • -intermediate scrutiny for discrimination against undocumented alien children
  45. Equal protection: illigitimate children
    immediate scrutiny used

    • cannot deny benefits to all non-marital children but grant to marity children.
    • -Can require paternity test before being able to recovery
  46. Equal protection: rational basis review for
    • age
    • disability
    • wealth
    • economic regulation
    • sexual orientation (possibly intermediate standard)
  47. First amendment
    • Content based vs. content neutral restrictions
    • Vagueness and overbreadth
    • Symbolic speech
    • Anonymous speech protected
    • Speech by government cannot be challenged as violating the First amendment

    • Unprotected or less protected:
    • -Incitement of illegal activity
    • -Obscenity and sexually oriented speech
    • -Commercial speech
    • -Defamation
  48. Symbolic speech
    gov't can regulate conduct that communicates if it has an important interest unrelated to suppression of hte message and the impact is no greater than necessary to achieve the government's purpose

    • examples:
    • -flag burning: protected
    • -draft card burning: unprotected
    • -nude dancing: unprotected
    • -burning cross: protected unless threatening
    • -election contribution limits: constitutional
    • -election expenditure limtes: unconstitutional
  49. Incitement of illegal activity
    may punish if substantial likelihood of imminent illegal activity and speech is directly causing imminent illegality
  50. Obscenity and sexually oriented speech
    • Test:
    • -material must be prurient (shameful or mordid interest in sex; community standard)
    • -material must be patently offensive under law prohibiting obscenity (community standard)
    • -material must lack serious redeeming artistic, literary, political, or scientific value (national standard

    • gov't can use zoning to regulate location of adult bookstores such as important interest of character of neighborhoods
    • child pornography may be completely banned
    • gov't may seize assets of business convicted by obscenity laws
    • Profane and indecent speech gegnerally protected:
    • -Except in broadcast media and schools
  51. Commercial speech
    advertising illegal activity and false and deceptive ads not protected

    • prohibit commercial speech that risks deception:
    • -can prohibit professionsls form advertising or practicing under a trade name
    • -prohibit in person solicitation of clients by attorneys. NOT OTHER PROFESSIONS

    All else intermediate scrutiny: must be narrowly tailored but NOT least restrictive alternative
  52. Defamation
    • If plaintiff is public official or running for public office then must prove 1) falsity of statement and 2) actual malice
    • If plaintiff is public figure 1) falsity of statement and 2) actual malice
    • If plaintiff is private figure and a matter of public concern plaintiff must show 1) falsity of statement and 2) negligence.
    • -may get punitive damages if prove malice
    • If plaintif is a private figure and is NOT a matter of public concern the plaintif can recover presumed or punitive damages without showing actual malice.
  53. What places are available for speech?
    • Public forums: government properties that is constitutionally required to maek available for speech
    • -regulations must be subject matter and viewpoint neutral or strict scrutiny applies
    • -may regulate time, place, or manner that serves an important governmental purpose and leaves open adequate alternative places for communication
    • -need NOT use the least restrictive alternative
    • -CANNOT set permit fees for public demonstrations

    Limited public forums: properties that government could close to speech but choosed to open. Same rules as public forums

    • Non-public forums: government properties that hte government constitutionally can and does close to speech.
    • -can regulate if 1) reasonable 2) viewpoint neutral

    NO FIRST AMENDMENT RIGHT ON PRIVATE LAND
  54. Freedom of association
    Laws to prohibit or punish group membership must meet strict scrutiny.

    • Test:
    • -actively affiliated with a the group
    • -knew of its illegal activities AND
    • had the specific intent of furthering those illegal activities

    • Laws prohibiting discriminatory group membership or constitutional UNLESS:
    • -intimate associate
    • -expressive activity: would go against the purpose of it.
  55. Freedom of religion
    • Free exercise clause: cannot be used to challenge neutral law of general applicability
    • Establishment clause:
    • lemon test:
    • -must be a secular purpose for hte law
    • -effect must be neither to advance nor inhibit religion
    • -must not be excessive entanglement with religion

    Cannot discriminate against religious speech or among religions unless strict scrutiny is met.

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