jurisdiction of article III federal courts limited to
cases and controversies
article I courts
tax courts, DC courts are vested with administrative and judicial functions
power of judicial review
marbury v madison- held that supreme court may determine the constitutionality of acts of other branches of govenment
jurisdiction of supreme court
extends to all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party; congress may neither enlarge nor restrict but may give concurrent jursidiction to lower federal courts
two statutory means of SCOTUS review
1. APpeal (mandatory) applies to decision of 3 judge federal district courts
2. certiorari - (4 or more justices vote to hear case) - cases involving federal law issues and courts of appeal cases
judicial review: standing
concrete personal stake in the outcome (injury in fact) - specific, not theoretical, injury must arise from government conduct being complained of
flast v cohen
federal taxpayer has standing to make an establishment clause challenge to an expenditure which exceeds some specific limitation on the taxing and spending power
exception to mootness
capable of repetition yet evading review (pregnancy, elections)
state cannot be sued in federal court without consent, but state officials may be sued for federal law violations
local governments can be sued
US may sue a state and congress can remove state's immunity (like for civil rights violations)
doctrine of enumerated powers
feds only have authority granted express or implied by Constitution
10th amendment - powers not delegated are retained by states (protect health, safety, welfare, morals)
necessary and proper clause
grants congress the authority to carry into execution any enumerated power; not an independent source of power
plenary power which regulated both interstate and foreign commerce
regulates any activity which has a substantial economic effect on stream of interstate commerce
cumulative impact doctrine
even an entirely intrastate commercial or economic activity which has a cumulative impact on interstate commerce may be regulated
taxing and spending power
plenary power to tax and spend for the general welfare
congress can attach strings to federal appropriations, thereby regulating indrectly where it cannot legislate directly
taxing power of Congress
a federal tax is valid if the dominant intent is fiscal, direct taxes must be apportioned, indirect taxes must be geographically uniform
congress can delegate legsialtive power to executive and administrative agencies, but cannot subsequently retract it (INS v Chadha)
president can appoint purely executive officers, ambassadors, public ministers and supreme court judges with advice and consent of senate
congress may not appoint members of bodies having administrative or enforcement powers
constitution is silent; president may remove purely executive officers (Cab.) without cause but good cause is required to remove admin. official with fixed terms
congress has no power of summary removal
president has 10 days to exercise his veto, which may be overridden by 2/3 vote of each house
president and impounding funds
president has no power to impound funds
extends only to federal crimes, not state crimes
--cant be used for cases of impeachment
to refuse to disclose information, privilege must yield to important government interests
civil suits against pres.
absolute immunity in civil suits for damages based on actions taken while in office
foreign policy power of president
may establish military govt in occupied territory
treaties with 2/3 consent (advice and consent of senate)
informal means by which pres. can conduct day to day economic and business between foreign countries without senate consent
states can't tax feds, except fed employees
states not immune to suit by feds
feds may not compel states to enact regulatory program (nuclear waste, NY vs US)
dormant commerce clause
negative implications doctrine - where congress has not otherwise regulated, the states are free to regulate interstate commerce is 1. nondiscriminatory, 2)not unduly burdensome (interests balanced against burden on commerce such that no alternative less restrictive alternative exists)
market participation doctrine
where the state uses its own taxpayer funds to create the market, it may favor its own citizens with subsidies and hiring preferences
state taxation of interstate commerce
state tax must be reasonable and nondiscriminatory to satisfy the commerce clause and substantial nexus must exist between the state interest and the activity being taxed
- good in the stream of commerce are exempt from state taxation, but may be taxed at beginning and end of transit
field preemption- any state law in an area congress intends to occupy the field is unconstitutional
conflict preemption - any state law in actual conflict with a federal law will be unconstitutional (where federal law only establishes minimum standards, states may afford greater protection by enacting stricter laws than required by federal standards)
bill of rights : selective incorporation
under the 14th amendment due process clause, most bill of rights limitations are applicable to the states except 2:
right to a grand jury in criminal cases and right to jury trial for civil cases
contracts clause: prevents states from enacting legislation which retroactively impairs obligation of public or private contracts
ex post facto- can't make criminal conduct that was not a crime when committed
bill of attainder - legislative punishment of a named group or individual without judicial trial
state action: public function
where a private entity is performing activities traditionally and exclusively carried on by the state
state action: significant state involement
public school system: use of sate owned textbooks by private school, symbiotic relationship where state facilitiates, encourages, or authorizes discrimination in areas such as housing, employment, or essential services
licensing by state, state action>?
procedural due process
procedural safeguards of notice and a hearing are availabel whenever there is a serious deprivation of any life, liberty or property
procedure- the court balances the severity of harm to the individual against the admin. costs of the govt to determine what if any safeguards are required
private property may not be taken for public use without just compensation: eminent domain and inverse condemnation require compensation but exercise of state police power regulation does not
"per se taking"
a confiscation or a physical occupation or a regulation which denies the owner all reasonable economically viable use: balancing test determines whether taking has occurred when there is no per se taking
substantive due process: economic regulation
economic - must meet rational basis
substantive due process - fundamental rights
right to vote or be candidate, right to travel, right to privacy (CAMPER) contraception, abortion, marriage, procreation, education, relations
where persons similarly situated are treated differently
3 standards of review for equal protection- strict scrutiny
strict scrutiny (likely to fail) - protected 1st amendment cases, suspect classes (race, alienage, origin), fundamental rights (vote, travel, privacy)
equal protection - intermediate scrutiny
burden on state to show the law is substantially related to an important interest
purposeful discrimination required; affirmative action permitted subject to middle-tier test
equal protection - rational basis
burden is on plaintiff to show the law is not rationally related to any legitimate interest, applies to all other classifications including 1) poverty 2) age 3)retardation 4)necessities of life 5) economic and social welfare
(govt usually succeeds)
freedom of religion: free exercise
free exercise - individuals religious beliefs are absolutely protected; conduct in furtherance may be regulated
a law that discriminates against religious conduct is subject to STRICT SCRUTINY (can't use peyotee, Oregon v Smith)
govt may not aid or prefer one religion or sect over another STRICT SCRUTINY review
1)secular purpose 2)doesn't primary advance or inhibit religion 3)no excessive entanglement with religion
4 attacks on regulation of free speech
1) overbreadth (punishes protected speech as well as unprotected)
2)vagueness (statute is so unclearly defined that persons of ordinary intelligence must guess at its meaning)
3)prior restraint (restriction in avdance of publication generally invalid, except national security
4)unfettered discretion (where licensing official has unfettered discretion whether to convey or deny permit)
essay approach to freedom of speech: content specific
ask: is action content specific?
strict scrutiny if protected - have to show compelling interest
unprotected: clear and present danger, defamation, child porn, fighting words
essay approach to freedom of speech: content neutral
(regulation does not depend on the speaker's identity, message, or viewpoint)
time place and manner = 3 part test
1)further significant gov't interest (safety, etc)
2)narrowly tailored (no more restrictive than necessary)
3)leave open alternative channels of communication
freedom of association
public employment/bar membership may not be denied based upon group affiliation unless 1)knowing and active member of subversive group 2)specific intent to further group's unlawful objectives
-- loyalty oaths (generally invalid as condition for employment, except for uphold const. oath)
--disclosure requirements (to avoid a chilling effect on first amendment, disclosure not necessary unless govt could make membership illegal)
freedom of the press
--right of access (both public and press have a right to attend trial, unless overriding gov't interest)
--newsperson privilege (no privilege exists to refuse to disclose confidential sources to grandjury, unless state shield law exists)
--broadcasting (may be regulated more closely than press due to frequency, for instance equal time on tvs (but not equal space in newspapers)
6 forms of speech that may be regulated without strict scruinty analysis
--clear and present danger 1(directed at imminent unlawful action 2)likely to produce
--freedom not to speak (dont have to pay pledge of allegiance, can cover motto on licdnsd plzgd
miller v california
1)appeal to prurient interest in sex applying contemporary community standards 2) depict sexual conduct in offensive way 3)lack serious literay, artistic, political, or scientific value
time, place, manner restriction of speech
reaosnable restriction may be permitted
public forums, 3 step test: 1)further significant gov't interest (safety, etc)
2)narrowly tailored (no more restrictive than necessary)
3)leave open alternative channels of communication
--nonpublic forums (jails/billboards/military) - regulation must be 1)viewpoint neutral 2)reasonably related to government interest
regulation of speech in nonpublic forum (jails/airports/etc)
regulation must be 1)viewpoint neutral 2)reasonably related to government interest
speech licensing statutes
to be valid a licensing shceme must relate to important govt objective, be clearly written, narrowly drawn, and reasonably regulate
if statute is valid - can't speak unless license, have to challenge in court first
if invalid - speaker may ignore
if injunction is issued - must obey even if its invalid, and appeal - no defense to contempt charge
2 basic approaches to free exercise
purposeful interference -> apply strict scrutiny
incidental burden -> rational basis
vice advertising restrictions
1)directly advance 2)substantial govt interest 3)narrowly tailored
state may regulate abortion provided no undue burden on right to obtain abortion
election funding regulation
total spending limits by a candidate = unconstitutional
individual campaign contribution limits, constitutional if reasonable
federal law will supercede any state law in direct conflict
generally wrong answers, 6 things
1)general welfare clause
2)necessary and proper clause
3)14th amendment P & I
5)distinction between rights and privilege
6)10th amendment, except New York v Us (forced nuclear regulation program)
the jurisdiction of the federal courts is limited to:
1)cases in law and equity arising under the Constitution
2)ambassadors and consuls
3)admiralty and maritime
4)case between two or more states
5)US is a party
6)state and citizens of another state
7)citizens of different states
the 11th amendment prohibits...
the citizens of one state from suing their own state or another state on federal claims for money damages, in federal court, without state's consent
exceptions to the 11th amendment:
1)suits against state officials
2)federal suits brought by one state against another state
3)suits for injunctions to enjoin a state official from violating constitutional rights
although advisory opinions are banned, declaratory judgments may be made which are...
a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief
ripeness bars consideration of claims if...
they haven't fully developed
court will consider hardship of withholding court consideration
if state criminal proceedings are pending....
the federal court will abstain in a suit seeking an injunction against the state prosecution, absent a showing of bad faith harassment on the part of the state prosecutors
1)where state civil proceedings had commenced
2)where civil contempt hearings had begun
a third party can raise constitutional rights of another in 2 circumstances:
1)special relationship -- because of connection between interests of claimant and constitutional rights of 3rd party
2)3rd party unable or has difficulty bringing suit
6 factors for determining if political question:
1)textual constitutional commitment to political dept.
2)lack of judicial standards for resolving
3)impossibility of deciding without policy determination
4)impossibility of a court's undertaking independent resolution without lacking respect to branch
5)unusual need for unquestioning adherence to political decision
6)potential for embarrassments
justiciability acronym RAMPS
if state supreme court already has interpreted an issue, SCOTUS...
will defer to that decision
if state law has not been interpreted by that state yet, SCOTUS will...
decide based on how it predicts state court would interpret
grounds for certiorai are:
--conflicts between different federal courts of appeal
--conflicts between highest courts of two states
--conflict between highest state court and federal court of appeals
--state courts and appeals court involving yet unresolved issued
although a state court decision may involve a federal question, if the state court judgement can be supported on an .....
adequate and independent state ground, SCOTUS will not take jurisdiction
"adequete and independent state ground" removes jurisdiction for...
ONLY scotus, not federal courts generally
if a plaintiff loses in state court for failing to comply with procedural rule...
if supreme court finds state procedure to be adequate, (fundamentally fair) then doctrine will also apply to foreclose supreme court review
a congressional act purporting to be a tax should be upheld as a valid exercise of the taxing power if:
1)does in fact raise revenue
2)was intended to raise revenue
even when congress does not have the power to regulate a taxed activity...
tax will be upheld if "dominant intent" is revenue-raising
if does have power, tax can be used as regulating device still
general welfare clause has been construed as...
a limitation on taxing and spending powers, not an independent power
congress may place a condition on receipt of federal funds by a state if:
1)spending serves general welfare
2)condition is unambiguous
3)condition relates to the federal program
4)state not required to undertake unconstitutional action
5)amount in question is not so great to be coercive
in court martial proceedings, the safeguards are..
uniform code of military justice, not the bill of rights
--military courts have jurisdiction over serviceman
although congress does not have any express constitutional power to investigate...
the necessary and proper clause permits congress to conduct investigations incident to legislative power
congress may use eminent domain to take power if...
public use and just compensation
speech and debate clause protects legislators from...
criminal or civil proceedings for legislative acts
--only for acts that occur in regular course of legislative process
congress has power to enforce the 13th amendment, which...
congress may enforce 14th amendment, by
prohibiting states from violating due process, equal protection, and privileges and immunities
congress may enforce the 15th amendment, which...
prohibits states from discriminating against voting rights
to enforce the 14th and 15th amendments, congress must show that
1)widespread violations by state
2)remedy is congruent and proportional to violation
the president has excluive power to nominate high level officials such as cabinet members. the senate...
has power to confirm or reject thos enominees
may congress delegate the appointment of lesser officers, such as judiciary or dept. heads to pres.?
with respect to officer removal power, it is generally agreed that....
the president may remove any executive appointee without cause
if the president wishes to remove executive officers with fixed terms or those with judicial functions, he,...
must have good cause
once congress has passed legislation and presented it to the president...
president has 10 days to act upon it, may veto or do nothing and it becomes law
if a bill is passed within 10 days of the end of the congressional term...
the president must sign it within 10 days, or it won't become a law
a veto may be overridden by
2/3 vote of senate and 2/3 vote of house
when a treaty and federal statute conflict on the issue in question....
time determines the controlling authority, with last in time controlling
if state law is inconsistent with executive agreements...
executive agreement is valid and prevails
what kind of ratification do executive agreements need from congress?
but executive agreements cant prevail over federal statutes
impeachment is imposed for...
treason, bribery, or other high crimes and misdemeanors
house of representatives has the sole power to impeach, but senate votes for conviction (2/3)
if congress directs president to spend appropriated president...
he must do it, he has no power to impound the funds
the constitution limits the state's police powers by:
1)reserving certain enumerated powers for feds.
2)restricting both federal and state gov't in violation of constitution
3)if congress enacts legislation to preempt state law
if a state is sued by feds or other state...
goes straight to supreme court
a state enjoys immunity from federal taxation if the tax is either:
1)unique state activities
2)essential government functions
10th amendment prohibits feds from using power to force state legislature to pass a law or state official to administer federal program
if a state law discriminates on its face between instate and out of state economic actors, the state must show:
1)regulation serves a compelling state interest
2)the regulation is narrowly tailored to serve that interest
if a state incidentally burdens interstate commerce, state must show:
1)the regulation serves an important state interest
2)the burden of interstate commerce isn't excessive in relation to the interest served
exceptions to dormant commerce clause:
1)congress may authorize
2)when states act as market participants, can prefer in-state business
4 rules for state's taxing interstate commerce
1)substantial nexus between activity and state
2)tax fairly apportioned
3)tax must not discriminate against interstate commerce
4)fairly related to services provided
a sales tax is valid only if...
sale of goods is consummated instate, not if seller delivers goods to out of state buyer
ability to collect use tax depends on..
whether the interstate seller who receives goods from outside the state has a sufficient nexus within taxing state
"doing business" taxes must....
relate to the benefits conferred by taxing state upon interstate business
net income taxes may be applied by the state upon a company engaining in interstate commerce as long as:
a flat license fee, or a fee levied by state upon people who solicit local orders and then fill them out of state and ship from another state...
a license tax on a traveling salesperson is valid when...
a state levies it upon a seller who actually sells and delivers the product within the state
"state action" can be found in the actions of private actors under 2 theories:
1)public function theory - traditionally gov't activities
2)significant state involvement or endorsement
if congress implements minimum standards...
the states are free to enact more stringent standards
for due process, "persons" include...
corporations and aliens, not just citizens
5th amendment due process guarantees:
fundamentally fair procedural safeguards
1)private interest affected
2)risk of an erroneous deprivation
3)govt interest including the function and fiscal burdens that additional procedure would entail
if a law has an irrebuttable presumption...
this will violate 5th amendment procedural due process
best answer when private individuals who do not qualify as state actors discriminate...
frequently, this is the best answer when first amendment right of free speech or religion is not offered as a choice..
if a state revokes a contract to which it is a party, this evokes...
if a state passes legislation that improperly burdens or discrmiinates against interestate commerce, the answer should relate to
the dormant commerce clause
best choice for an unconstitutional argument state acts, or 2)state does not have grant a hearing or invades privacy rights
due process clause
best option when state action interferes with a fundamental interest (right to vote, travel, race, sex)
equal protection clause
congress power to spend treasury funds, but not to regulate activity - best answer when voluntary cooperation by party with federal government is the only way to reach result
general welfare power or spending power
the only answer when state action v federal action
bars states from discriminating against nonresidents on fundamental matters
but almost NEVER the correct aswer
privileges and immunities clause
best answer where there is a congressional statute or provision conflicting with a state activity
allowed for regulatory purposes if there is a revenue-raising function
--best answer if commerce clause isn't an answer
fundamental rights, substantive due process doctrine now is used to...
evaluation governmental regulations that affect fundamental rights of person hood
evokes strict scrutiny review
laws that burden the exercise of fundamental rights are strict scrutiny review, examples:
1)right to vote
2)right to travel
3)right to privacy
4)1st amendment rights
6)other rights referred to as fundamental rights
before time of viability...
woman has right to abortion.
otherwise, only for life or health of mother
are spousal notification or consent laws allowed for abortion?
a parental consent for abortion law is allowed if...
state established judicial bypass with consent of judge instead of parent
may a state prohibit use of public facilities or publicly employed staff from performing abortions?
if law bars same sex sex?
it will be unconstitutional because of no legitimate state interest
the right to possess obscense materials in the privacy of one's home is protected, but...
the government can severely restrict the sale, purchase, receipt, transport, and distribution of obscene materials
the right to die is not...
a fundamentally right, but a right to not be forced to undergo life support
if a government benefits program requires residency duration...
it will be subject to strict scrutiny
the right to international travel is subject to...
whenever the government attempts to redistrict....
fairly exact mathematical equality between districts is required so as to not dilute fundamental right to vote
private property can be taken for public use if...
1)direct government appropriation
equal protection review is triggered where...
similarly situated persons are treated differently
no state shall "deny equal protection" 14th amendment
strict scrutiny applies to..
governemtn action that uses suspect classifications (race, national origin)
strict scrutiny test is...
must be necessary to further a compelling interest
under intermediate scrutiny, burden is on government or prove..
substantially related to achievement of an important gov't interest
intermediate scrutiny applies to ...
gender and illegitimacy
rational basis applies to
all classifications not strict or intermediate, such as age, wealth, disability, etc.
rational basis standard is...
plaintiff has burden to show no legitimate government interest
_____ must be shown to trigger strict or scrutiny
only justifications for upholding affirmative action:
1)remedying the effect of past or present discrimination
2)achieving a diverse student body in an institute of higher ed.
affirmative action based on gender must meet...
intermediate scrutiny standards
privileges and immunities clause protects right t:
4)enter public lands
5)protected while in custody of US marshalls
the ______ clause prohibits states from discriminating against non-residents
contract clause applies only to..
state legislation, and not to state court decisions or federal government
a private contract may be modified by state legislature when:
1)necessary to serve an important and legitimate public interest
2)reasonable and narrowly tailored
a statute will be considered ex post facto if:
1)not a crime when it was committed
2)prescribes greater punishment for a crime after commission
3)decreases amount of evidence required for conviction
4)extends the statute of limitations for a crime as to which the previously applicable SOL has expired
things considered to be bills of attainder:
3)without a judicial trial
4)upon named individuals or an easily ascertainable group
5) for past conduct
if a government program preferred one religion over others, then...
strict scrutiny will be applied
if religious suit, but no explicit preference for a religion, then apply lemon test:
1)secular legislative purpose
2)principal or primary effect or purpose must neither advance nor inhibit religion
3)must not foster excessive entanglement with religion
as a general rule, religious activities in public schools...
will violate the establishment clause because their primary purpose is to promote religion
if an individual's conduct is motivated by religious belief...
state may regulate or prohibit if neutral in respect to religion and neutral application
--strict scrutiny applied and unconstitutional unless compelling state interest and narrowly tailored means
a law that regulates conduct creating an incidental burden on speech is allowable if...
1)further important government interest
2)restriction on speech is no grater than essential for furtherance of interest
a regulation which relates to unprotected speech is permissible if:
fighting words 1)more than annoying or offensive 2)genuine liklihood of imminent violence
for speech to be considered obscene, apply miller test:
1)contemporary community standards would find it appeals to prurient interest
2)work depicts or describes in a patently offensive way, sexual conduct
3)lacks serious literary, artistic, political or scientific value
if speaker is in the government...
government can forbid speech, no 1st amendment protection
for slander claim...
if private person, negligent standard
if public official, malicious statement
commercial speech is protected if...
1)not false or deceptive
2)does not relate to unlawful activity
government regulation of speech must..
1)serve substantial government interest
2)directly advance the substantial government interest
3)not be more extensive than is necessary to serve that interest
regulation of time place and manner for speech must:
1)content neutral to subject matter and view point
2)narrowly tailored for important interest
3)leave alternative channels of communication open
speech related activities at nonpublic forum, like military, jail, or government buildings can be regulated if..
reasonable time place and manner
2)related to legit interest
can an individual be denied public employment based on membership in political organization?
no, unless it's a high level policy making position
(unless it's a subversive organization with knowledge of illegal aims and intent to further illegal ends)
may government suppress or restrain speech in advance of publication or utterance?