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| 11th amendment sovereign immunity doctrine |
bars suits in federal courts against a state govt in state court (by private party or foreign govt), even on federal claims, unless defendant state consents |
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Robin Mon, 13 Jul 2009 00:27:53 GMT |
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| Full Faith and Credit Clause |
if a judgment is entitled to full faith and credit, it must be recognized in sister states
ONLY applies if:
- court that rendered judgment had jurisdiction over the parties and subject matter
- judgment was on the merits
- judgment was final |
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Robin Mon, 13 Jul 2009 00:27:53 GMT |
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| Executive agreement |
- prevails over conflicting state law
BUT
- federal law prevails over agreement |
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Robin Mon, 13 Jul 2009 00:27:53 GMT |
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| Treaty vs. federal law |
last in time prevails
- treaty requires 2/3 Senate approval
- may be self-executing: effective w/o implementation by Congress |
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Robin Mon, 13 Jul 2009 00:27:53 GMT |
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| Art. 4 Privileges & Immunities Clause: state/local action that discriminates against out-of-state entities |
if denies out-of-state person important econ interests or civil liberties, it is INVALID UNLESS the state has a subs justification w/o less restrictive means
* Privileges & Immunities Clause does NOT apply where there is no discrimination
stronger than Commerce Clause: NO state market participant exception; but narrower in scope: ONLY applies to econ discrimination, does not apply to corps or aliens |
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Robin Fri, 10 Jul 2009 13:50:25 GMT |
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| Commerce Clause: state/local action that discriminates against out-of-state entities |
if no fed legislation, action is INVALID UNLESS:
- furthers important nonecon state interest w/o reasonable nondiscrim alternatives
- state is a market participant
- involves govt action regarding performance of a traditional govt function |
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Robin Fri, 10 Jul 2009 13:50:25 GMT |
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| Establishment Clause |
prohibits laws respecting the est. of religion
a law/action incl. a preference for a particular sect, it is invalid unless narrowly tailored to promote a compelling interest (rare)
a law/action contains NO sect preference it is VALID if:
- secular purpose
- primary effect that neither advances nor inhibits religion
- does not produce excessive govt entanglement w/ religion
law that favors/burdens a group invalid, but law that favors/burdens large segments of society that happens to incl. religious groups (e.g., Sunday closing law) is valid |
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Robin Fri, 10 Jul 2009 12:23:20 GMT |
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| Free Exercise Clause |
prohibits govt interference w/ religious beliefs, but does not prohibit regulation of conduct
EXCEPT: education of Amish kids, rules about unemployment compensation |
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Robin Fri, 10 Jul 2009 12:23:20 GMT |
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| 1st Am. general conduct regulation |
NO religious exemptions required
EXCEPT: state cannot refuse to grant unemployment benefits to someone who quits work for religious reasons |
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Robin Fri, 10 Jul 2009 12:23:20 GMT |
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| Public employment |
if about a matter of public concern, courts must carefully balance employee's rights as citizen to comment against govt's interest as employer
if speech does NOT involve matter of public concern, courts should grant wide deference to govt employer's judgment concerning whether speech was disruptive
EXCEPT: govt may punish employee's speech when pursuant to official duties, even if about a matter of public concern
political campaigns: fed govt may prohibit employees from active participation
bans on receiving honoraria: govt must show that rights outweighed by necessary impact speech would have on actual operation of govt
loyalty oath: may not be overbroad, vague
disclosure of associations: govt may only inquire where relevant to employment or benefits sought; 5th am. available |
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Robin Fri, 10 Jul 2009 01:51:17 GMT |
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| Electoral process |
may implicate freedoms of
- speech
- assembly
- association
Sup Ct uses balancing test: if restriction on 1st am. activity is severe, strict scrutiny applies; otherwise, if reasonable and nondiscriminatory, will be upheld
limit on contributions: subject to intermediate scrutiny; ok to limit $ to candidate, but not ballot referendum; NO const. limit on expenditures
regulation of core political speech: must pass strict scrutiny |
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Robin Thu, 09 Jul 2009 23:20:39 GMT |
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| Freedom of association |
implied: govt may not prohibit politically unpopular groups or unduly burden a right to belong
EXCEPT: infringement justified if there is a compelling state interest unrelated to suppression of ideas if the least restrictive means of protecting govt interest involved |
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Robin Thu, 09 Jul 2009 23:20:39 GMT |
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| Freedom of the press |
- press has right to publish truthful info on matters of public concern; restrictions must be narrowly tailored to further an interest of highest order
- public and press have right to attend criminal (and probably civil) trials, but judge may find overriding interest in limiting
- press may be required to testify before grand jury
- NO right to interview, inspect prisoners, grounds
- business reg/tax: must be GENERAL, may not be content-based w/o compelling justification
- broadcasting (radio, tv) may be more closely regulated than press; may limit speech broadcast (content-based regs on cable tv may be subject to strict scrutiny, but not content-neutral regs)
- internet: strict scrutiny of regs |
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Robin Thu, 09 Jul 2009 23:03:18 GMT |
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| Unprotected speech |
- inciting imminent lawless action
- fighting words (true threats: cross-burning w/ intent to intimidate) (but regs usually overbroad and invalid)
- obscenity: prurient interest, patently offensive based on community standard + lacks serious value based on natl reasonable person standard; zoning ok
- defamatory speech (NOTE: public official, figure, concern: 1st am. req P to prove falsity + fault)
- unlawful or misleading commercial speech (otherwise reg of commercial speech only upheld if serves subs govt interest, directly advances the interest, and is narrowly tailored to serve the interest)
PRIOR RESTRAINT: require special societal harm will result; must be
- narrowly drawn, reasonable, definite
- injunction must be promptly sought
- prompt and final determination of validity of the restraint |
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Robin Thu, 09 Jul 2009 22:57:07 GMT |
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| 1st Am.: regulation of conduct associated w/ speech and assembly |
PUBLIC forum (streets) & LIMITED PUBLIC (designated by practice or policy) forum (schoolrooms): govt may regulate speech w/ reasonably time, place, manner regs that are
- content-neutral
- narrowly-tailored to serve important govt interest
NOTE: must still be not overbroad, vague, or giving unfettered discretion
NONPUBLIC forum (military base): ok to more broadly regulate if
- viewpoint neutral
- reasonably related to legit govt purpose |
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Robin Thu, 09 Jul 2009 22:57:07 GMT |
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| 1st Am.: content vs. conduct regulations |
CONTENT-neutral: intermediate scrutiny (must advance important interests and not subs burden speech more than necessary)
CONDUCT-neutral: may restrict time, place, manner
laws must NOT be:
- overly broad
- vague
or else may violate Due Process Clause
reg may not give officials broad discretion over speech issues; must be defined standards |
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Robin Thu, 09 Jul 2009 22:57:07 GMT |
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| 1st Amendment |
prohibits Congress from:
- est. a religion or interfering w/ free exercise of religion
- abridging freedoms of speech, press
- interfering w/ right of assembly
applicable to states via 14th am. |
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Robin Thu, 09 Jul 2009 22:57:07 GMT |
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| Fundamental rights |
- if denied to all: Substantive Due Process problem
- if denied to some: Equal Protection problem
- standard: strict scrutiny: govt action must be NECESSARY to protect a COMPELLING govt interest
rights:
- privacy: marriage, sex, use of contraceptives, childrearing (abortion: state may regulate pre-viability if no undue burden on right to abort, post-viability may prohibit abortion unless woman's health threatened)
- obscene material at home
- keeping family together in home
- rights of parents
- right to vote (may be reasonably restricted based on residency)
- right to interstate travel |
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Robin Thu, 09 Jul 2009 21:58:19 GMT |
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| Gender |
quasi-suspect classification
classifications benefiting women designed to remedy past discrimination generally valid
laws discriminating against men ok where sub related to important govt interest (statutory rape, male draft) |
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Robin Thu, 09 Jul 2009 21:58:19 GMT |
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| Alienage |
state/local laws on alienage are SUSPECT classifications subject to strict scrutiny EXCEPT: law discriminating against alien participation in state govt and public policy jobs subject to RATIONAL basis review
undocumented aliens NOT a suspect classification |
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Robin Thu, 09 Jul 2009 21:58:19 GMT |
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| Race |
- only intentional segregation violates Const.; neutral attendance zones, etc., ok even if racial imbalance results
- affirmative action also subject to strict scrutiny
- race-based plans to remedy SPECIFIC past discrimination ok, but not general discrimination
- govt action must be narrowly tailored to interest in affirmative action; NOT ok in elementary school, but ok in public universities (compelling interest in diversity)
- college admissions: race may only be a factor; no quotas
- race may be non-predominant factor in redistricting |
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Robin Thu, 09 Jul 2009 21:58:19 GMT |
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| Equal Protection Clause |
- 14th am.: limited to state action
BUT: grossly unreasonable discrimination by fed govt violates Due Process Clause of 5th am. (same tests)
FUND RIGHT or SUSPECT CLASSIFICATION: strict scrutiny
QUASI-SUSPECT CLASSIFICATION: intermediate scrutiny
OTHER: rational basis
* strict/intermediate scrutiny require INTENT which may be shown by:
- law discriminatory on its face
- discriminatory application of facially-neutral law
- discriminatory motive behind law |
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Robin Thu, 09 Jul 2009 21:14:56 GMT |
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| Due Process Clause |
- 5th am.: applies to fed govt
- 14th am.: applies to state, local govts
same tests
FUND RIGHT at issue: strict scrutiny
OTHER cases: rational basis standard |
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Robin Thu, 09 Jul 2009 21:14:56 GMT |
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| Substantive Due Process & Equal Protection: standards of review |
STRICT SCRUTINY
- regs affecting fund rights (interstate travel, privacy, voting)
- regs. affecting 1st am. rights
- regs. involving SUSPECT classifications (race, natl original, alienage)
law must be necessary to achieve a compelling govt purpose; govt has burden of proof
INTERMEDIATE SCRUTINY
- regs. involving quasi-suspect classifications (gender, legitimacy)
law must be subs relayed to an IMPORTANT govt purpose
RATIONAL BASIS (min scrutiny)
- regs. involving non-suspect or quasi-suspect (age, disability, poverty)
law must be rationally related to a legit govt purpose (valid unless arbitrary, irrational)
- burden on challenger |
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Robin Thu, 09 Jul 2009 21:14:56 GMT |
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Substantive Due Process
vs.
Equal Protection |
law limits liberty of all persons to engage in some activity
vs.
law treats a person/class differently |
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Robin Thu, 09 Jul 2009 21:14:56 GMT |
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| Taking |
must be rationally related to legit public purpose
- incl. reg resulting in denial of all econ value of land
- compensation measured by loss to owner, not gain to taker (i.e., no comp when worthless)
mere regulation does NOT require compensation |
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Robin Thu, 09 Jul 2009 20:36:54 GMT |
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| Indigent plaintiffs |
govt fees must be waived when fund right would be denied (marriage license, divorce court filing fee, but NOT bankruptcy fees, review of welfare termination) |
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Robin Thu, 09 Jul 2009 20:36:54 GMT |
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| Due Process balancing test |
- importance of interest to individual
- value of specific procedural safeguards to the interest against
- govt interest in fiscal and admin efficiency
rights are subject to voluntary and knowing waiver |
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Robin Thu, 09 Jul 2009 20:36:54 GMT |
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| "entitlement" |
rights = privileges |
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Robin Thu, 09 Jul 2009 20:36:54 GMT |
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| Retroactive law: general rule |
if passes Contracts, Ex Post Facto, Bill of Attainder Clauses, must still pass Due Process Clause
if it does not affect a fundamental right, it need only be rationally related to a legit govt interest |
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Robin Thu, 09 Jul 2009 20:30:28 GMT |
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| Bills of attainder |
legislative acts that inflict punishment w/o judicial trial
state and fed govts prohibited from passing |
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Robin Thu, 09 Jul 2009 20:30:28 GMT |
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| Ex post facto laws |
state or fed govt may not pass laws that retroactively alter CRIMINAL offenses or punishments in a subs prejudicial manner (e.g., criminalizes behavior, incr. punishment, reduces evidence req to convict)
compare: Due Process Clause of 5th/14th am. prohibits court from retroactively interpreting criminal laws in unexpected or indefensible ways |
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Robin Thu, 09 Jul 2009 20:30:28 GMT |
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| Contract Clause |
prohibits states form enacting laws that retroactively impair contract rights
NOT applicable to federal government (although law might violate 5th am. Due Process Clause)
PRIVATE contracts: intermediate scrutiny: invalid unless serves important and legit public interest and is reasonable and narrowly-tailored
PUBLIC contracts: stricter scrutiny |
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Robin Thu, 09 Jul 2009 20:30:28 GMT |
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| States: discrimination |
states NOT required to outlaw discrimination, ONLY to not facilitate, encourage, authorize it |
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Robin Thu, 09 Jul 2009 20:12:31 GMT |
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| Commerce Clause: race |
Congress may prohibit private racial discrimination in activities that may have subs effect on interstate commerce
Commerce Clause is important basis for civil rights laws |
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Robin Thu, 09 Jul 2009 20:12:31 GMT |
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| 14th Amendment Section 5 |
Congress has power to adopt appropriate legislation to enforce rights and guarantees of the 14th am. but NOT to expand rights or create new rights |
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Robin Thu, 09 Jul 2009 20:09:41 GMT |
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| 13th Amendment Enabling Clause |
Congress pay prohibit racially discriminatory action by anyone (govt or private citizen) |
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Robin Thu, 09 Jul 2009 20:09:41 GMT |
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| 14th Amendment Due Process Clause |
applies provisions of Bill of Rights (am.1-10) to states
EXCEPT:
- 5th am. prohibition of criminal trials w/o grand jury indictment
- 7th am. right to a jury trial in civil cases |
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Robin Thu, 09 Jul 2009 20:09:41 GMT |
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State sales tax
Occupational state taxes |
may be imposed on seller of goods for sales consummated w/in the state
- generally do not discriminate against interstate commerce
- issue typically involves whether there is a subs nexus, properly apportioned, or fairly related to services provided by the state |
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Robin Thu, 09 Jul 2009 20:09:41 GMT |
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| Commodities in interstate commerce |
EXEMPT from state tax |
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Robin Thu, 09 Jul 2009 19:56:48 GMT |
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| Use taxes |
on goods purchased outside but used inside state are valid
interstate seller may be required to collect a use tax if it has suff nexus to taxing state |
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Robin Thu, 09 Jul 2009 19:56:48 GMT |
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| State taxes |
nondiscriminatory tax is valid if:
- subs nexus to state
- fair apportionment (taxpayer burden)
- fair relationship to services, benefits provided |
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Robin Thu, 09 Jul 2009 19:56:48 GMT |
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| Ban on discriminatory state regulation |
EXCEPTIONS:
- important state interest
- state as market participant: state may prefer citizens in buying, selling, hiring, subsidizing
- more lenient standard where law involves performance of a traditional govt function (likely motivated by legit objectives and not econ protectionism) |
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Robin Thu, 09 Jul 2009 19:56:48 GMT |
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| Dormant Commerce Clause |
even where Congress has not acted, Commerce Clause restricts state regulation of interstate commerce: states must not favor local econ interests or unduly burden interstate commerce
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Robin Thu, 09 Jul 2009 19:33:13 GMT |
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| Power to regulate foreign commerce |
exclusively w/ Congress (w/ minor exceptions) |
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Robin Thu, 09 Jul 2009 19:27:42 GMT |
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| Interstate Privileges and Immunities Clause |
prohibits discrimination by a state against nonresidents
- corps, aliens NOT protected
- only fundamental rights protected (commercial activities, civil liberties)
* subs justification exception: state law may be valid if subs justification for different treatment; state must show that nonresidents cause or are part of problem state is trying to solve and no less restrictive means are available
also consider: DORMANT COMMERCE CLAUSE |
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Robin Thu, 09 Jul 2009 19:27:42 GMT |
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| State taxation and regulation of federal government |
state tax on federal instrumentalities must be nondiscriminatory, indirect
states may NOT regulate the federal government or agents while performing their federal functions |
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Robin Thu, 09 Jul 2009 19:27:42 GMT |
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| 11th amendment sovereign immunity doctrine |
bars suits in federal courts against a state govt in state court (by private party or foreign govt), even on federal claims, unless defendant state consents |
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Robin Thu, 09 Jul 2009 19:12:32 GMT |
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| Federal judicial power |
- interpretation of Constitution, federal laws, treaties
- disputes between states, states vs. foreign citizens, citizens of diverse citizenship
requires:
- no advisory opinions (present/threat of harm)
- ripeness
- mootness
- standing (injury, causation, redressability) |
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Robin Thu, 09 Jul 2009 19:12:32 GMT |
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| Supreme Court jurisdiction |
in all cases affect ambassadors, etc., and where a state is a party
concurrent jurisdiction granted by Congress to lower federal courts in all cases except those between states
appellate jurisdiction in federal cases
- writ of certiorari: discretion to hear cases from state courts where constitutionality of a federal statute or treaty or state statute at issue and all cases from federal courts of appeals
- must hear appeals from 3-judge federal district panels |
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Robin Thu, 09 Jul 2009 19:12:32 GMT |
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US vs. state
state vs. US
state vs. state |
US may sue a state w/o its consent
state may NOT sue US w/o consent (incl. suit against federal officer if would be paid out of public treasury or would interfere w/ public administration)
- specific relief against officer as individual granted if officer acted ultra vires (beyond authority)
state may sue another state w/o consent
- Sup Ct has exclusive jurisdiction |
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Robin Thu, 09 Jul 2009 19:12:32 GMT |
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| Full Faith and Credit Clause |
if a judgment is entitled to full faith and credit, it must be recognized in sister states
ONLY applies if:
- court that rendered judgment had jurisdiction over the parties and subject matter
- judgment was on the merits
- judgment was final |
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Robin Thu, 09 Jul 2009 19:03:04 GMT |
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| Interstate Compact Clause |
if agreement between states increases states' power at expense of federal power, congressional approval is required |
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Robin Thu, 09 Jul 2009 19:03:04 GMT |
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| Preemption of state law |
if federal law is comprehensive or federal agency created to administer the law |
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Robin Thu, 09 Jul 2009 19:03:04 GMT |
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| Impeachment |
Pres, VP, civil offices of US are subject
grounds: treason, bribery, high crimes, misdemeanors
requires:
- majority of House to invoke charges
- 2/3 vote in Senate to convict and remove |
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Robin Thu, 09 Jul 2009 17:47:24 GMT |
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| Executive agreement |
- prevails over conflicting state law
BUT
- federal law prevails over agreement |
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Robin Thu, 09 Jul 2009 17:46:22 GMT |
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| Treaty vs. federal law |
last in time prevails
- treaty requires 2/3 Senate approval
- may be self-executing: effective w/o implementation by Congress |
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Robin Thu, 09 Jul 2009 17:46:22 GMT |
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| Individual rights (misc.) |
- ex post facto laws are unconst. (creates new crime or expands penalty after committed) (applies only to criminal sanctions)
- bills of attainder are unconst. (inflicts punishment w/o trial)
- contract clause: states may NOT (fed govt ok) retroactively impair obligations of contracts
--private contracts: intermediate scrutiny
--state/local contracts: strict scrutiny
- 14th am. & privileges and immunities: applies today in right to travel (rule: states may NOT deny privileges and immunities of natl citizenship)
- takings clause: generally must be physical occupation by govt (e.g., even cable box), but incl. regulatory takings (e.g., zoning--govt must leave viable econ use); temp is not per se taking; may be existing when property acquired
--conditions for permit, etc., must be related to the property use
--measured by FMV loss to owner (not gain to govt) |
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Robin Thu, 02 Jul 2009 16:51:33 GMT |
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| First Amendment: freedom of religion |
FREE EXERCISE CLAUSE
- govt may NOT inquire into validity, only into sincerity of your belief
- religious conduct: govt may NOT prohibit conduct merely b/c religious, but may regulate (generally applicable laws ok)
ESTABLISHMENT CLAUSE
- law must have secular purpose
- law must not be excessively entangled w/ religion
- effect of law must not be to promote (endorse) religion (e.g., dilute w/ secular content) |
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Robin Thu, 02 Jul 2009 16:35:46 GMT |
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| First Amendment: freedom of association |
- laws that prohibit/punish membership must meet strict scrutiny
- does NOT protect right to discriminate UNLESS intimate assoc. or integral to group purposes (e.g., BSA) |
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Robin Thu, 02 Jul 2009 16:23:11 GMT |
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| First Amendment: freedom of speech |
- content-based restrictions: strict scrutiny (subject matter, viewpoint restrictions)
- content-neutral restrictions: intermediate scrutiny (time, place, manner--must still allow subs. other opportunities and narrowly serve a significant state interest)
EXCEPTIONS to rule against content-based restrictions: speech may be banned if
- incitement
- fighting words / hate speech (but statutes typically unconst. as overly broad: must be addressed to particular person)
- obscenity
- defamation (note: public person must prove falsity + actual malice; private person in matter of public concern must show falsity + negligence)
- commercial ads may be banned if misleading or about illegal product (intermediate scrutiny)
other important free speech concepts:
- vagueness
- over-breadth
- symbolic speech / conduct as speech
- prior restraint is subject to strict scrutiny (e.g., gag orders on press not allowed; but state may require non-discretionary permits for speech)
- right not to speak
- electoral process
- speech by govt employees (ok EXCEPT policy-makers or w/in duties)
- 1st am. right to anonymous speech
- invasion of privacy (but ok to truthfully report info from govt records)
PLACES available for speech:
- public forums (must be subject matter- and viewpoint-neutral or meet strict scrutiny; if neutral, must meet intermediate scrutiny but no req. that least restr. alternative used)
- limited public forums (strict scrutiny)--e.g., schools
- non-public forums (reg. must be reasonable and neutral)--e.g., military bases
- privately owned property (NO 1st am. right to use for speech) |
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Robin Thu, 02 Jul 2009 16:18:05 GMT |
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| Equal Protection |
whenever govt distinguishes among ppl
- clause applies to states AND fed govt
SUSPECT CLASSES: race, ethnicity, alienage, national origin--strict scrutiny (law must be necessary or narrowly-tailored to meet a compelling govt interest)
- must show disparate impact + evidence of intent (racial quote will NOT meet strict scrutiny) EXCEPT compelling interests to remedy past discrim. by institution itself, diversity in higher ed. (but not mechanical points)
- racial segregation: only de jure (official), NOT de facto, prohibited
- states may NOT req. US citizenship for private employment or govt benefits (but residency ok) but may favor for jobs in policy-making, govt functions, etc.
* at fed level, any reg. of aliens will be upheld
QUASI-SUSPECT CLASSES: legitimacy, gender--intermediate scrutiny (law must be subs. related to important govt interest)
- law cannot promote stereotypes EXCEPT: statutory rape laws, draft laws, citizenship laws
- must show disparate impact + intent to discrim.
RATIONAL BASIS: law must be rationally related to a legitimate state interest (easy test--e.g., age ok)
NOTE: sex orientation is NOT a suspect class., but laws on sex orientation and disability have been struck down as violating rational basis review
FUND. RIGHTS & EQUAL PROTECTION:
- ed. is NOT a fund. right, therefore unequal opportunities do NOT violate Equal Protection Clause
- right to travel IS a fund. right
- durational residency req. violate right to travel if not short
- rational basis applies to restrictions on foreign travel
- right to vote is fund. (therefore strict scrutiny)
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Robin Thu, 02 Jul 2009 15:17:38 GMT |
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| Due Process |
PROCEDURAL DUE PROCESS: govt must provide notice + opportunity to be heard (Q: Is life, liberty, or property being taken (deprivation)? If yes, what process is due?)
- life
- loss of liberty (const. rights, detention, physical punishment, or restrictions of legal rights)
- loss of property (inc. govt benefits; req. entitlement, not expectation)
- deprivation (intentional: must shock conscience; NO duty to protect individuals from private harm)
* court balances: importance of interest, value of procedure in incr. fact-finding accuracy, govt interest
* e.g., procedures that may be req.: right to appeal, access to lawyer, trial-type procedures, pre-/post-deprivation hearings
ACCESS TO COURTS
- filing fees must be waived if would deny a fund. right (e.g., divorce, but NOT bankruptcy)
SUBSTANTIVE DUE PROCESS: req. strict scrutiny (unless noted)
- recognized fund. rights incl.:
--marriage and divorce (***MA: incl. same-sex)
--right to procreate
--access to contraception
--right to private consensual sex activity (incl. homosexual sodomy)--NO standard of review specified
--right to refuse medical treatment--NO standard of review specified
--right to choose to have an abortion: before viability-state may reg. so long as no undue burden; after viability-state may ban w/ exception for life/health of mother
--right to read and enjoy obscene material in privacy of own home (except child, unless digital)
--right to construct/form certain family relationships (custody, education, family may live together, but NOT grandparents' visits)
-NON-fund. liberties (NO right):
--assisted suicide
--hiding from govt investigation at home
--practice trade/profession
--economic liberties |
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Robin Thu, 02 Jul 2009 14:17:04 GMT |
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| Structure of civil liberties |
APPLICATION OF RIGHTS PROVISIONS OF THE CONSTITUTION
- state (NOT private) action (incl. fed, state, local, legis/admin)
- application of the Bill of Rights (mostly applied to states, except 2:arms, 3:quartering, 5:grand jury indictment, 7:jury trial in civil cases, 8:excessive fine)
LEVELS OF SCRUTINY
- rational basis review (law must be rationally related to a legit govt purpose, which need not be actual, only conceivable; applies to socio-econ legis., P has burden)
- intermediate scrutiny (upheld if subs. related to an important govt purpose: more than legit.; govt has burden of proof; applies to gender class.)
- strict scrutiny (necessary or narrowly-tailored to achieving compelling govt purpose; must be almost only way to achieve objective; applies to suspect classes: race, ethnicity, national origin, alienage, laws that burden fund. rights) |
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Robin Wed, 01 Jul 2009 16:58:47 GMT |
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| Federalism |
SUPREMACY CLAUSE Art.4: Const., laws, treaties of US are supreme law (valid fed law overrides inconsistent state law)
- VERTICAL FEDERALISM:
--preemption: express or implied (impossibility, obstacle, field) (but state law not overriden merely b/c regulates same subject as fed law; state law may be stricter)
--states may NOT tax the fed govt (but can tax private actors) or regulate fed govt w/o consent
--states have NO power over foreign affairs
- HORIZONTAL FEDERALISM:
--privileges and immunities-Art.4: states may not deprive citizens of other states of priv/imm it provides its own citizens (no discrimination against other citizens w/ respect to civil liberties + ability to earn livelihood--but not hobbies)
--dormant Commerce Clause: states may not unduly burden (even if non-discr.) or interfere w/ interstate commerce (may not discr. against out-of-state interests) EXCEPT: regulating public health and safety, subsidies req. that recipients live in-state, when state acts as buyer/seller of goods
--power of states to tax interstate commerce (tax may not be used to help in-state businesses; tax must have subs. nexus to state and be fairly apportioned)
--full faith and credit (ct must have jurisdiction, must be enforce by courts of other states, judgment must be on merits and final |
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Robin Wed, 01 Jul 2009 16:36:08 GMT |
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| Federal executive power |
Art.2
FOREIGN AFFAIRS
- treaty power: treaties are entered into by Pres. and must be approved by 2/3 of Senate; equiv. to statutes if self-executing or implemented by statute; prevail over state law (but not con)
- executive agreements: NO Senate approval req.; can do same things as treaties; prevail over state law (but not fed or con)
- commander-in-chief power: use of troops always const. (but Congress may refuse to appropriate $)
DOMESTIC AFFAIRS
- veto power (NOT line item)
- appointment and removal power
- executive privilege (papers and conversations)
- pardon power (fed crimes, EXCEPT impeachment--political remedy)
- removal, impeachment (House majority, then 2/3 Senate), liability (Pres. has immunity while in office for acts in official capacity--NOT prior acts) |
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Robin Wed, 01 Jul 2009 15:43:37 GMT |
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| Art. 1 |
defines powers of Congress |
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Robin Wed, 01 Jul 2009 14:52:23 GMT |
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| Federal legislative power |
- NO general POLICE POWER: Congress may only act if there is express or implied authority (state and local govts have police power); Congress's powers are enumerated in Art. 1
EXCEPT:
--military
--Indian reservations
--federal lands and territories
--District of Columbia
- TAXING & SPENDING, COMMERCE CLAUSES
--Congress may adopt any tax to raise revenue and spend money on any program it has the power to adopt that will serve general welfare
--Congress has the power to regulate interstate commerce with foreign nations, Indian tribes, among the several states
(Congress may regulate: channels of commerce, instrumentalities of commerce, activities w/ subs. efffect on interstate commerce, incl. intra-state); presumptions: (non)econ has (no) subs. effect (incl. aggregation of activities)
- Sec.5 of 14th am. ENFORCEMENT POWER: Congress has power to pass laws to enforce Sec.1 of 14th am. (equal protection, due process)
--Congress may NOT create new rights or expand existing scope of rights under Art.1
--Congress may only act to prevent violations (incl. new laws that are congruent and proportional to prevent or remedy violations)
- NECESSARY & PROPER CLAUSE: Congress can do what is necessay and property to effectuate its powers (but must operate in tandem w/ another power: means to effectuate)
- 10th am.: RESTRAINT ON CONGRESS' POWER?
--all powers not granted to fed govt or prohibited by states are reserved to states or people
--Congress may NOT compel or commandeer state legislative or regulatory activity
--Congress may induce states to act (via spending power) by attaching strings to grants IF conditions are clear + related to the purpose of the federal program
--Congress may prohibit harmful state commercial activity b/c does not impose affirmative burden (just retraining activity)
- DELEGATION OF LEGISLATIVE & EXECUTIVE POWER
--Congress cannot delegate executive (enforcement) power to itself or its officers
--NO significant limit exists on Congress' authority to delegate legislative power to administrative agencies
--legislative vetoes (allowing only 1 branch of Congress to overturn executive action) are unconstitutional (b/c no bicameralism or presentment
--line-item vetoes are always unconstitutional (statute that permits Pres. to veto lines) |
2 |
Robin Wed, 01 Jul 2009 15:23:39 GMT |
|
| Lower federal court review |
even if justiciability grounds met, lower federal courts will NOT hear a case if:
SOVEREIGN IMMUNITY: 11th am. bars suits against states in federal courts
* Congress may not create causes of action for private individuals against state govts--states cannot be sued in state court even on state claims w/o consent EXCEPT:
--waiver
--federal statutes adopted by Congress (14th am.)
--federal govt may sue states (sovereign immunity is about private individuals suing states)
--bankruptcy proceedings
--money damages and injunctive relief (state officers may be sued for violations of federal law)
ABSTENTION: federal courts do not enjoin pending state court proceedings |
0 |
Robin Wed, 01 Jul 2009 14:40:36 GMT |
|
| Adequate and independent state law grounds |
if state court decision rests on 2 grounds, 1 federal and 1 state, the Sup. Ct. will NOT hear the case if reversal of federal law ground will NOT change the result |
0 |
Robin Wed, 01 Jul 2009 14:30:49 GMT |
|
| Final Judgment Rule |
Sup. Ct. will hear a case ONLY after final judgment from
- state high court
- federal courts of appeals
- 3-judge district court |
0 |
Robin Wed, 01 Jul 2009 14:30:49 GMT |
|
| Supreme Court review: 3 ways to get to Sup. Ct. |
- writ of certiorari (all cases from state courts & federal courts of appeals)--discretionary
- review of 3-judge federal district courts (where statute provides Sup. Ct. review by appeal)
- original & exclusive jurisdiction (for suits between state govts) |
0 |
Robin Wed, 01 Jul 2009 14:28:46 GMT |
|
| Political question doctrine |
allegations of constitutional violations that federal courts will NOT adjudicate:
- cases under Art. 4: republican form of govt clause
- challenges to President's conduct of foreign policy (esp. commitment of troops)
- challenges to impeachment and removal process
- challenges to partisan gerrymandering |
0 |
Robin Wed, 01 Jul 2009 14:25:44 GMT |
|
| Mootness definition |
controversy must be live
EXCEPT:
- wrongs capable of repetition but evading review (e.g., abortion)
- voluntary cessation by D
- class actions (ok so long as 1 member has an on-going injury) |
0 |
Robin Wed, 01 Jul 2009 14:21:44 GMT |
|
| Ripeness criteria |
generally, P is prosecuted and then challenges constitutionality
OR
P seeks pre-enforcement review:
- HARDSHIP: P must show he will suffer w/o pre-enforcement review
- FITNESS: issues in record must be fit for review (may be pure legal Q w/o factual development, e.g., does FDA have authority) |
0 |
Robin Wed, 01 Jul 2009 14:17:25 GMT |
|
| Justiciability doctrines |
- standing
- ripeness
- mootness
- political question |
0 |
Robin Wed, 01 Jul 2009 14:13:28 GMT |
|
| Standing components |
- PERSONAL INJURY (damages) OR likelihood of future harm (injunctive relief)
- CAUSATION & REDRESSABILITY (fed ct likely to remedy the injury--cts cannot issue advisory opinions; + must show D is cause)
- NO THIRD PARTY STANDING (P must present personally suffered injuries EXCEPT: if close relationship exists, e.g., doctor/patient, or third party cannot come to ct, or organizations)
- NO GENERALIZED GRIEVANCES (no citizen or taxpayer standing--must be specific, e.g., own taxes, EXCEPT: govt expenditures that violate the Establishment Clause) |
0 |
Robin Wed, 01 Jul 2009 14:13:28 GMT |
|
| Art. 3 |
cases and controversy req.:
for fed ct to hear dispute, must be case or controversy |
0 |
Robin Wed, 01 Jul 2009 14:13:28 GMT |
|
