con law

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con law
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  1. Under Article III of the federal constitution, the jurisdiction of federal courts is limited to cases or controversies
  2. Included in the kinds of cases that come within the judicial power of the United States are diversity jurisdiction and federal question jurisdiction
  3. A major exception to the judicial power is created by the 11th Amendment and by the preexisting concept of state sovereign immunity
  4. You cannot sue a state for money damages in either state's own court or federal court unless the state consents or the U.S. Congress expressly says so to enforce 14th Amendment rights
  5. 11th Amendment protects state and state agencies, not local governments (e.g. cities, counties, or towns).
  6. Almost all cases come to the Supreme Court by way of writ of certiorari. The court has discretion-- it can take a case or not.
  7. Congress can make exceptions to the Court's appellate jurisdiction
  8. Adequate and Independent State Grounds: The Supreme Court can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on an adequate and independent state ground
  9. AISG: arises only when Sup Court reviews a state court judgment
  10. AISG: adequate=
    the state ground must control the decision no matter how a federal issue is decided. This happens when the federal claimant wins anyway under state law
  11. independent= the state law does not follow/depend on an interpretation of federal law. No AISG if state law adopts or follows federal law.
  12. When a state court decision is unclear as to whether it rests of federal grounds or state grounds, the Supreme Court can review it.
  13. justiciability: to be heard in federal court, must have standing and case must be timely
  14. standing: requires injury, causation, and redressability
  15. standing: injury must be concrete but need not be economic
  16. standing: mere ideological objection is not injury
  17. standing: an organization has standing if its members have standing
  18. causation: D's act must have caused or will cause the injury
  19. standing: redressability= a court can remedy or redress the injury
  20. If the injury is in the past, the redress is damages
  21. If future injury is threatened, redress is an injunction
  22. past injury does not give automatic standing to seek an injunction for future injury. You must show that it will happen again.
  23. Federal taxpayers always have standing to challenge their own tax liability (e.g. prop taxes) However taxpayers do not have standing to challenge government expenditures. EXCEPTION when:
    there is an establishment of religion challenge to specific congressional appropriation. This can be challenged by any taxpayer.
  24. legislators generally do not have standing to challenge laws that they voted against
  25. In general, may not raise the rights of someone else EXCEPT
    parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction
  26. timeliness: case may not be ripe or moot.
  27. ripeness concerns prematurity of a case. You must show actual harm or an immediate threat of harm
  28. mootness are overripe and are dismissed whenever they become moot UNLESS a controversy capable of repetition yet evading review. Such cases always have an internal time limit (.e.g pregnancies and abortion).
  29. federal courts cannot issue advisory opinions- they cannot rule on the constitutionality of proposed legislation
  30. courts will not decide political questions, e.g. foreign affairs, impeachment procedures, and political gerrymandering cases since no judicially manageable standards for judicial decision making
  31. Powers of Congress: don't choose MBE answers with the words:
    " promote the general welfare" when by itself this is not a standalone power of Congress
    " federal police power" fed gov't doesn't have
    "necessary and proper" with no other legislative power attached to it. necc and proper is not a free standing power of Congress
  32. MBE tip: when it doubt, pick the commerce power
  33. Congress can regulate the channels and instrumentalities of interstate commerce and intrastate activity that has a substantial effect on interstate commerce
  34. substantial effect is judged in the aggregate- does the aggregate activity of everyone doing the same thing have a substantial effect on interstate commerce?
  35. stage generally cannot burden interstate commerce, but may be ok if Congress authorizes
  36. a tax must be rationally related to raising revenue. ok  even when the tax is actually used to prohibit a good or activity if rationally related
  37. the tax must be nationally uniform, but ok impact is disparate 
  38. Congress cannot force states to adopt or enforce regulatory programs.
  39. Congress can bribe states through the use of the spending power
  40. COngress can adopt its own regulatory program and enforce it with federal officers
  41. Congress has the power to declare war and maintain the Army and Navy
  42. Congress can provide for military trial of enemy combatants or enemy civilians
  43. Congress cannot provide for military trial of U.S. civilians
  44. Congress can regulate the District of Columbia and enact legislation that only applies to D.C.
  45. 13th amendment- reflects Congress's broad power to legislate against racial discrimination whether public OR private
  46. 13th only amendment allowing Congress to regulate purely private behavior
  47. Congress does not have the power to overrule the Court's decisions and define new rights other than those specified in the Constitution (e.g. RFRA)
  48. Executive branch can direct the actions of federal executive agencies, provided the actions are not inconsistent with an act of Congress, but the executive branch generally cannot direct the actions of persons outside the executive branch unless authorized by an act of Congress
  49. president has to power to enforce the law, but not to make or break it
  50. Some powers are exclusively executive, e.g. enforcement of law, pardon power, veto power, hiring and firing of executive officers, military decisions once Congress declares war, negotiating treaties (though Congress must approve), executive agreements
  51. If an executive officer, acts on behalf of the United Sates. If an officer appoint by speaker of the house,  cannot be given executive power to act on behalf of the country
  52. executive agreements do not have the binding status of a treaty but take precedence over conflicting state laws. A treaty has the same authority as a statute.
  53. Congress may accuse president of high crime or misdemeanor (impeachment)
  54. impeachment requires 2/3 Senate vote. Remedy is removal and nothing else.
  55. President CANNOT impound funds- When a statute clearly requires that funds be spent, President has no power not to do so.
  56. Congress may not pass a law including provision to reserve the right to disapprove future executive action. To override future executive actions, Congress must change the law.
  57. Congress can delegate its power to administrative agencies if there are intelligigle standards governing the exercise of that delegate power (almost all delegations are upheld)
  58. President has absolute immunity for official acts, executive privlege not to reveal confidential communications with presidential advisers  (but can be outweighed by a specifically demonstrated need in a criminal prosecution); no immunity for acts done prior to taking office
  59. judges have absolute immunity for all JUDICIAL acts. May be liable for non-judicial activities
  60. U.S. Senators, Congressmen, and their aids cannot be prosecuted or punished in relation to their official acts. The official acts of a federal legislator cannot be introduced into evidence
  61. Power over foreign relations and coin money are exclusively federal
  62. The federal government is generally immune from direct state regulation or taxation, however states can tax indirectly (e.g. taxing the income of federal employees)
  63. states are not immune from direct federal regulation
  64. state laws cannot shield state officers from federal liability
  65. Article IV (Comity Clause): Privileges and Immunities of STATE citizenship
  66. Article IV Comity Clause forbids serious discrimination against out of state individuals absent substantial justification
  67. Comity Clause does not protect out of state corporations
  68. Serious discrimination typically involves employment, e.g. under Comity Clause, there can be no legal requirement of residency for private employment (includes occupational licenses like bar exam). However, public employment can require residency requirements
  69. Non serious discrimination= recreational opportunities (e.g. hunting licenses)
  70. Dormant Commerce Clause: RULE: in the absence of federal regulation, state regulation of commerce is valid so long as 1) there is no discrimination against out of state interests, 2) the regulation does not unduly burden interstate commerce and 3) the regulation does not apply to wholly extraterritorial activity
  71. Dormant Commerce Clause protects both out-of-state individuals AND out-of-state businesses
  72. No discrimination against out of state interests: examples include taxing the out of state interest at a higher rate, forbidding sale only of out of state products, requiring that manufacturing be performed in-state
  73. No discrimination against out of state interests: EXCEPTIONS:
    • - if state is a market participant: state is buying or selling goods or services and can choose to deal with only in-state persons
    • - subsidies: a state can always choose to subsidize only its own citizens (e.g. in-state college tuition)
    • - federal approval: congress authorizes or consents to state regulation of commerce even if it discriminates against out of state interests
  74. Non-discriminatory regulations are rarely struck down
  75. both substantive due process and equal protection have the same three standards of review, though intermediate scrutiny has only ever been used to decide cases based on equal protection grounds
  76. strict scrutiny asks:
    is the law necessary for a compelling state interest?
  77. implicit in strict scrutiny is the requirement for the least restrictive means
  78. when strict scrutiny applies, the government bears the burden of proof. It must show that the interest is compelling and the law is necessary to that interest.
  79. strict scrutiny applies when there is a suspect classification or a fundamental right
  80. intermediate scrutiny asks, is the law:
    substantially related to an important government interest?
  81. intermediate scrutiny applies to classifications based on legitimacy and gender
  82. rational basis asks:
    is the law rationally related to a legitimate interest?
  83. rational basis: the challenger bears the burden of prof
  84. fundamental rights issues may be under due process or equal protection
  85. if a law denies a fundamental right to everyone, triggers
    substantive due process
  86. if a law denies a fundamental right to only some, it violates equal protection
  87. fundamental rights: travel: fundamental right of interstate travel and settlement
  88. fundamental rights: travel: states can imposed reasonable residency requirements for political participation and government benefits
  89. reasonable= 30-90 days. unreasonable= one year, except in-state tuition and jurisdiction to divorce
  90. fundamental rights: travel: all residents have a right to be treated equally. a state cannot have a tax scheme that favors long term residents over recently arrived residents
  91. fundamental rights: voting: fundamental for all citizens over 18
  92. fundamental rights: poll taxes are unconstitutional because they burden the fundamental right to vote
  93. fundamental rights: voting: short term (e.g. 30 days) residency requirements are permitted
  94. fundamental rights: voting: Congress controls the residency for the President. States control residency requirements for all others.
  95. fundamental rights: states can impose requirements for candidates to be listed on a ballot, such as longer residency, filing frees, and nomination petitions, so long as serious candidates can reasonably comply
  96. fundamental rights: if candidate requirements become so onerous that they effectively bar access to the ballot, they are unconstitutional.
  97. fundamental right: marriage: can't be a substantial interference with an age-qualified man and woman
  98. fundamental rights: contraceptions: fundamental for everyone, whether married or not
  99. fundamental rights: sort of: sexual intimacy: rational basis with teeth (i.e. state has not legitimate reason to regulate)
  100. fundamental rights: abortion: states can regulate, but cannot impose an undue burden on the women's right to terminate her pregnancy
  101. fundamental rights: abortion: allowed stuff: informed consent requirements, 24 hour waiting periods, parental notification requirements for minors
  102. fundamental rights: abortion: not allowed: parent consent requirements, spousal requirements
  103. fundamental rights: abortion: gov't financing of abortion is not required (e.g. can prohibit abortion at a hospital it funds)
  104. fundamental rights: parental rights: right to raise children as parent sees fit, including choice of religious or private schools
  105. fundamental rights: parental rights: can lose  rights through abandonment, abuse, or neglect
  106. fundamental rights: family relations: includes right to live together with close relatives
  107. fundamental rights: obscene: right to read in privacy of one's own home UNLESS child porn
  108. fundamental rights: obscene material: no fundamental right to purchase, sell, import, or distribute
  109. fundamental rights: refusal of medical treatment: not clear whether a fundamental right, but invokes a liberty interest
  110. fundamental rights: refusal of medical treatment: no right to commit suicide
  111. 5th Amendment due process applies to federal government
  112. 14th amendment due process applies to localities and states
  113. Equal protection clause found in 14th Amendment, but applied to federal gov't via 5th amendment
  114. 14th: equal protection: suspect classifications=
    • race
    • ethnicity 
    • national origin
  115. 14th: equal protection: suspect classifications: P must show discriminatory purpose. not enough to show a disproportionate impact
  116. 14th: equal protection: suspect classifications: affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action
  117. 14th: equal protection: suspect classifications: preferential admissions allowed if necessary to achieve a diverse student body and diversity is essential to the education
  118. Exceptions to when strict scrutiny applies to alienage (U.S. citizenship):
    1. If federal government classifies based on U.S. citizenship, doesn't trigger strict scrutiny. But cannot be arbitrary and unreasonable

    2. If involves state or local participation in government functions, non-U.S. citizens can be barred from certain government jobs or: voting, serving on a jury, working in any kind of govt' law enforcement officer, or as a public school teacher
  119. undocumented aliens are not a suspect class, but states can't deny their kids a public education
  120. intermediate scrutiny: gender classifications almost always invalid
  121. non-suspect classifications include age and wealth; however gov't has to waive fees for indigents when charging the fee would deny a fundamental right (e.g. certain court fees)
  122. If electing representatives by district, fundamental right via equal protection
  123. race may be A factor in drawing district lines, but cannot be the predominate or only factor
  124. political gerrymandering (drawing districts to hurt one party) rarely struck down b/c considered a political question
  125. in sum: if issue of U.S citizenship generally can't discriminate (unless about gov't job or certain gov't functions; if issue of residency, generally can discriminate if concerns benefits (e.g. in-state tuition)
  126. takings: if regulatory taking, compensation is generally not required even if the regulation reduces the value of hte property
  127. if gov't physically occupies only a tiny portion of your property, still a taking
  128. if no physical occupation, generally no taking
  129. takings: zoning: no taking unless zoning does not advance a legitimate interest and it extinguishes a fundamental attribute of ownership. Can be considered a taking if it leaves no economically viable use for the property
  130. unconstitutional legislation: bill of attainder= a legislative punishment without judicial trial
  131. unconstitutional legislation: ex post facto laws: may not expand criminal liability retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct
  132. unconstitutional legislation: impairing contracts violates Contracts Clause, i.e. state legislatures may not impair existing contracts unless there is an overriding need (e.g. emergency like Great Depression or termination of mortgages)
  133. establishment of religion: Lemon test:
    • 1) does the law have a secular purpose
    • 2) does the law have a primary effect that neither advances nor inhibits religion
    • 3) does the law avoid excessive government entanglement with religion?
  134. Lemon test not explicitly overruled, thought not often applied
  135. neutral aid (aid that goes to everyone, including religious primary and secondary schools) is allowed
  136. violates Establishment Clause for the gov't to endorse one religion over another and to endorse religion over non-religion. Some endorsements upheld (e.g. "In God We Trust" on currency)
  137. Goal is to prohibit government endorsement of religion that might prove coercive on an individual's conscience, e.g.
    • officially sponsored school prayer
    • officially sponsored graduation prayer
    • inspirational bible reading (though not inspirationg, e.g. educational, is okay)
    • Display of Ten Commandments if for religious purposes (secular purposes, e.g. historical, teaching as an example of early legal code is ok)
    • prohibition of teaching evolution
    • nativity scenes without other holiday scenes to dilute the religious message
  138. free exercise of religion: right to hold any belief protected absolutely. but religious conduct is qualified
  139. free exercise of religion: a law cannot regulate religious conduct because of its religious significance
  140. free exercise of religion: neutral, generally applicable laws can be enforced despite religious objections
  141. free exercise of religion: no right to accommodation i.e. right to exemption from neutral, generally applicable regulations of conduct EXCEPT non-discrimination employment laws cannot be applied to ministers; fed gov't can't regulate employment relations b/w a religious institution and its ministers
  142. content based regulations trigger strict scrutiny and are usually struck down
  143. expressive conduct (i.e. symbolic speech): law regulating it upheld if:
    • law furthers an important interest
    • that interest is unrelated to the suppression of expression; and
    • the burden on expression is no greater than necessary
  144. expressive conduct: if government trying to suppress a message, then the law will be struck down; if the gov't is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld
  145. vague laws= give no clear notice of what is prohibited and thus violates due process
  146. overbreadth: overbroad laws are ones that go too far in regulating speech. these laws burden substantially more speech than is necessary to protect a compelling interest and thus violate the 1st Amendment
  147. prior restraints disfavored, so injunctions against speech almost impossible to get.
  148. regulation of time, place, or manner is content neutral
  149. regulation of time, place, or manner applies mostly in a public forum
  150. public forum= a place traditionally reserved for speech activities. These places include a street, park, and public sidewalk around public building (not airports).
  151. regulation of time, place, or manner is content neutral: requirements to regulate (3)
    • 1) content neutral on its face and as applied. No allowance for executive discretion (e.g. giving chief of police discretion to give parade permits)
    • 2) alternative channels of communication must be left open
    • 3) must narrowly serve a significant state interest (lower standard than "compelling.")
  152. In a nonpublic forum, any reasonable regulation of speech will be upheld
  153. nonpublic forums include various government property, eg. gov't offices, jails, power plants, military bases.
  154. Unreasonable: example= discrimination based on viewpoint
  155. some content based restrictions on free speech ok:
    • obscenity
    • incitement
    • fighting words
    • defamation
    • commercial speech
  156. content based restrictions: obscenity requirements:
    • -erotic; appeals to prurient interest
    • -patently offensive to the average person in the society (society could be country as a whole, particular state, or a major metropolitan area)
    • - defined by proper standards that aren't vague and/or overbroad
    • - lacks serious value: determination made by the court, not the jury and based on a national standard, not a local one.
  157. obscenity: narrowly drawn ordinances can regulate the zoning of adult theaters, but cannot ban them entirely
  158. incitement if immediate violence is not protected
  159. fighting words: if likely to provoke an immediate breach of the peace, aimed/targeted at someone BUT on bar exam fighting words statutes usually unconstitutionally vague/overbroad (e.g. law against "hate speech"  "offensive language")
  160. defamation: false statements of fact damaging to a person's reputation not protected.
  161. defamation: public officials and public figures can recover for defamation only on proof of knowing or reckless falsity
  162. private plaintiffs can recover on proof of negligent falsity
  163. most regulations on commercial speech are struck down. if advertising truthful and informational it must be allowed.
  164. regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored to that interest.
  165. misleading commercial speech may be prohiited
  166. 1st amendment restrictions basically don't apply to the government as a speaker
  167. corporations have the same 1st Amendment right to speak as individuals
  168. freedom of the press: the press/media have no special privileges. have the same rights as everyone else EXCEPT broadcasters may have a special case
  169. freedom of association: cannot be published b/c of political associations
  170. freedom of association: states cannot require open primaries
  171. freedom of association: requiring public employees to take a loyalty oath to the Constitution often struck down as vague/overbroad
  172. government employees cannot be hired or fired based on political party, political philosophy, or any act of expression UNLESS confidential advisor or policy-making employee (e.g. President's cabinet officers)
  173. campaign finance: contributions can be regulated, provided that the limits are not unreasonably low
  174. direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated
  175. independent expenditures cannot be regulated
  176. a coordinated expenditure is a disguised contribution and can be regulated as contributions can be regulated
  177. SC has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures
  178. The constitution protection of direct independent expenditures applies to corporations, including non profits and unions

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