What is the requirement for a case to be in controversy?
P must have standing, the case must be ripe, there must be no issue of mootness, and it must not fall under the political question doctrine.
What is standing?
The issue of whether P is the proper party to bring the matter to the court for adjudication.
What must P prove to show that they have standing?
That he or she has been personally injured or that they will imminently be personally injured. If seeking injunctive or declaratory relief the they must show the likelihood of future harm.
When is third party standing allowed?
If there is a close relationship between P and the injured third party, if the injured third party can't act on their own behalf, and if the third party are members of an organization whose interests are related to the organization's purpose ("associational standing").
What is ripeness?
It is the question of whether a federal court may grant pre-enforcement review of a statute or regulation. Ripeness issues arise when there is a request for a declaratory judgment.
What is mootness?
If events after the filing the lawsuit end P's injury, the case is dismissed as moot.
What are the three exceptions to the mootness requirement?
A wrong capable of repetition but evading review, voluntary cessation, and class actions suits.
What is a political question?
Challenges brought under the "republican form of government" clause, challenges to the President's conduct of foreign policy, challenges to the impeachment and removal process, and challenges to partisan gerrymandering.
When is a court obligated to review a claim?
When there is a statute that specifies that review is by appeal.
When does a case skip the circuit court on appeal and goes straight to the Supreme Court?
When there is a 3-judge panel on the federal district level.
When may the Supreme Court hear a case?
After there has been a final judgment o the highest state court, of a U.S. Court of Appeals, or a three-judge federal district court.
When can the Supreme Court review a state court decision?
When there is not an independent and adequate state law ground of decision.
What is the principle of sovereign immunity?
The 11th Am. bars suits against states in federal court. It doesn't matter which state the person is from or what relief they seek. It also bars suits against states in courts or federal agencies.
Lower federal courts may not enjoin pending state court proceedings.
Over which types of issues does Congress have police power?
There is no general federal police power. Congress has police power only over the military, Indian reservations, federal lands and territories and the District of Columbia.
When does Congress have the authority to act?
There must be express or implied Congressional power; the necessary and proper clause; and the taxing/spending power and commerce power.
What is the scope of Congress's taxing/spending power?
Congress can create any tax to raise revenue and any spending plan to expend for general welfare. However, Congress cannot legislate for the general welfare, only for taxing.
What is the scope of Congress's power under the Commerce Clause?
Congress may regulate the channels of interstate commerce, including with foreign nations, Indian tribes, and among the several states; Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce; and Congress may regulate economic activities that have a substantial effect on interstate commerce.
What is the 10th Amendment limitation on Congressional powers?
The 10th Am. states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people. Congress cannot compel state regulatory or legislative action, but it can prohibit harmful commercial activity by state government.
What is the scope of Congress's power under Sect. 5 of the 14th Am.?
Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constitutional violations. (Congress may only use this to regulate state and local governments.)
What is the scope of the delegation of Congressional powers?
There is no limit on Congress's ability to delegate legislative power; legislative vetoes and line-item vetoes are unconstitutional; and, Congress may not delegate executive power to itself or its officers.
What is a treaty?
Treaties are agreements between the U.S and a foreign country that are negotiated by the President and are effective when ratified by the Senate.
What is the scope of treaty provisions?
Treaties prevail over conflicting state laws; if a treaty conflicts with a federal statute, the one adopted last in time controls; and if a treaty conflicts with the U.S. Constitution, it is invalid.
What is an executive agreement?
An executive agreement is an agreement between the U.S and a foreign country that is effective when signed by the President and the head of the foreign nation.
What is the scope and purpose of an executive agreement?
Executive agreements can be used for any purpose, they don't require Senate approval to be effective, and they prevail over conflicting state laws, but not federal laws or the U.S. Constitution.
Who has the power to appoint ambassadors, federal judges and officers of the U.S?
The President appoints and then Senate must confirm the nomination, but the appointment power belongs to the President.
Who has power over inferior officers, department heads or judges in the lower courts?
Officers of the U.S. have the power to fire inferior officers, and Congress has some discretion over them as well.
Congress may not give itself or its officers the appointment power.
What is the scope of the President's power to remove?
Unless removal is limited by statute, the President may fire any executive branch officer.
When can Congress limit the President's power to remove?
It must be an office where independence from the president is desirable, and Congress cannot prohibit removal, it can limit removal to where there is good cause. (Congress cannot limit removal of the cabinet members.)
Which individuals within the government are eligible to be impeached and for which crimes?
The President, Vice President, federal judges, and officers of the U.S. can be impeached and removed from the office for treason, briber, or for high crimes and misdemeanors.
What is impeachment?
Impeachment does not remove the person from office; the House holds the power to impeach, after which point, a trial is held in the Senate and the person remains in office unless convicted.
What are the voting requirements for impeachment?
Impeachment by the House of Representatives requires a majority vote; conviction by the Senate requires a 2/3 vote.
What is the scope of the President's civil immunity?
Absolute immunity to civil suits for money damages while in office, but no immunity for actions occurred prior to taking office.
What is the executive privilege?
The President has an evidentiary executive privilege for presidential papers and conversations, but it yields to other important government interests, such as the need for evidence at a criminal trial
What is the President's power to issue a pardon?
President can pardon only those convicted or accused of a federal crime and can only pardon for criminal liability.
What is preemption?
Because of the Supremacy Clause, which makes the Constitution and valid treaties the supreme law of the land, any conflict is between federal and state laws will result in the state law being preempted by the federal law.
What are the two types of preemption?
Express and implied.
What is express preemption?
A statute explicitly states that federal law is exclusive in the field.
What are the three ways in which preemption can be implied?
If fed and state law are mutually exclusive, fed preempts; if state law impede the achievement of a fed objective, fed preempts; and if Congress evinces a clear intent to preempt state law, fed preempts.
What does it imply if it is unconstitutional to pay a state tax out of the Federal Treasury?
That States may not tax or regulate federal government activity.
What is the dormant commerce clause?
It means that state or local laws are unconstitutional if they place an undue burden on interstate commerce; it is the negative implications of the commerce clause.
What is the privileges and immunities clause of Article IV?
It states that no state may deprive citizens of other states the privileges it affords its own citizens. It applies only when a state discriminates against out-of-staters.
What is the privileges and immunities clause of the 14th Am.?
It affords citizens the right to travel.
What is the standard for analyzing a law that discriminates against out-of-staters?
Must show that the law serves and important purpose, and must show that the law is also necessary.
What is the market participant exception?
A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.
Corporations and aliens cannot use the privileges and immunities clause; it only refers to citizens.
Which clause does a law violate if it discriminates against out-of-staters with regard to their ability to earn a livelihood?
It violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government interest. The law must discriminate against out-of-staters only and must involve civil liberties or important economic activities.
When must a court in one state give full faith and credit to the judgment of courts in another state?
When the court that rendered the judgment had jurisdiction over the parties and the subject matter; the judgment was on the merits; and the judgment was final.
What are the two exceptions where private conduct must comply with the Constitution?
The public function exception and the entanglement exception.
What is the public function exception?
The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government.
What is the entanglement exception?
The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activities. In these cases, the government must stop the activities or the private conduct must conform to the Constitution.
Government funding does not imply government action.
How is the Bill of Rights applied?
The Bill of Rights applies directly to the federal government only. It is applied to the state and local governments through its incorporation into the Due Process clause of the 14th Am.
Which amendments in the Bill of Rights have NOT been incorporated by the states?
3rd Am. not to have soldiers quartered in the home, 5th Am. right to grand jury indictment in civil cases, 7th Am. right to jury trial in civil cases, and 8th Am. right against excessive fines.
What is the rational basis test?
A law is upheld if it is rationally related to a legitimate government purpose. The government's goal must only be permissible, even a conceivable legitimate interest with reasonable means. The challenger has the burden of proof.
What is the intermediate scrutiny test?
The law is upheld if it is substantially related to an important government purpose (more than legitimate). Court must be convinced of actual importance of purpose and means narrowly tailored to achieve an objective. Gov't has the burden of proof.
What is the strict scrutiny test?
A law is upheld if it is necessary to achieve a compelling state interest. Government's objective must be crucial and court must be convinced actual objective is crucial or compelling and the means must be the least restrictive alternative, and the means chosen must be narrowly tailored and necessary. Gov't has the burden of proof and usually loses.
What is an entitlement?
A reasonable expectation of a continued receipt of a benefit.
What is procedural due process?
Refers to the procedures the gov't must follow when it takes a person's life, liberty or property.
What is substantive due process?
The question of whether there's an adequate reason for the government to deprive a person of life, liberty, or property.
What is equal protection?
It focuses on whether government differences in the treatment of people are adequately justified.
What are the two issues of procedural due process questions?
Whether there is a deprivation of life, liberty, or property; and which procedures are required.
When does a deprivation of liberty occur?
If there is a loss of a significant freedom provided by the Constitution or a statute.
When does a deprivation of property occur?
If there is an entitlement and that entitlement is not fulfilled. (Tip: There is no distinction between rights and privileges; only an entitlement is important.)
What effect does government negligence have on the application of due process?
Government negligence is not enough for a deprivation of due process. Generally, there must be intentional government action or at least reckless action for liability to exist.
What is the effect of the government failing to protect citizens from privately inflicted harms?
Generally, the government's failure to protect people from privately inflicted harms does not deny due process.
What level of scrutiny is used for laws affecting economic rights?
Only a rational basis test is used; the Constitution provides only minimal protection for economic liberties. (Licensing requirements = economic rights)
What is the takings clause?
The government may take private property for public use if it provides just compensation.
What types of "takings" may take place?
A possessory taking or a regulatory taking.
What is a possessory taking?
The government confiscation of or physical occupation of a property.
What is a regulatory taking?
A government regulation that leaves no reasonable economically viable use of the property.
When is a taking for public use?
A taking is for public use if government acts out of a reasonable belief that the taking will benefit the public.
How is just compensation measured?
Just compensation is measured by loss to the owner; gain to the taker is irrelevant.
What is the contracts clause of Art. I, Sect. 10?
No state shall impair the obligations of contracts.
What is the scope of the contracts clause?
It applies only to state or local interference with existing contracts; interference with private contracts must meet intermediate scrutiny; interference with government contracts must meet strict scrutiny.
What is an ex post facto law?
A law that criminally punishes conduct that was lawful when it was done, or that increases punishment for a crime after it was committed. (Retroactive civil liability only needs to meet a rational basis test.)
What is a bill of attainder?
A law that directs the punishment of a specific person(s) without a trial.
What are the limitations on the state's rights to regulate abortions?
Prior to viability states may not prohibit abortions but can regulate as long as it does not create an undue burden on the ability to obtain abortions. After viability, states can prohibit abortions unless necessary to protect woman's life or health.
Spousal consent and notification laws for abortions are unconstitutional.
What is the scope of the state's ability to require parental notice and consent to abortions for unmarried minors?
A state may require parental notice and/or consent for an unmarried minor's abortion so long as it creates an alternative procedure where the minor can obtain an abortion by going to a judge.
What are the constitutional differences between the right to travel between states and the right to travel internationally?
Laws that prevent people from moving between states must meet strict scrutiny review; laws that restrict international travel only need to meet a rational basis test.
What are the three elements of an equal protection analysis?
1. How the government is drawing the distinction 2. What level of scrutiny should be applied, and 3. Does the gov't action comply with the level of scrutiny?
To whom does the 14th Am. equal protection clause apply?
Only to state and local governments--it never applies to the federal government!
How is equal protection applied to the federal government?
Through the due process clause of the 5th Am. No provision of the Constitution says that the federal gov't has to provide equal protection but the Supreme Court reads it through the DP clause of the 5th Am.
How are racial classifications benefiting minorities treated?
Strict scrutiny is applied; numerical quotas require clear proof of past discrimination; and educational institutions may use race as one factor in admission decisions to help minorities.
How is the existence of a classification proven?
The classification exists on the face of the law. If the law is facially neutral, proving the classification requires demonstrating both discriminatory intent and discriminatory impact.
How are alienage classifications treated
Strict scrutiny is used with some exceptions.
What privileges can the government reserve to citizens?
The government may discriminate against aliens regarding voting, serving on a jury, being a cop, a teacher or a probation officer. Only the rational basis test is used for classifications that concern self-government and the democratic process.
What type of review is used for discrimination against non-marital children ('legitimacy classifications')?
Intermediate scrutiny is used.
What are the two possible types of free-speech restrictions?
Content-based and content-neutral.
What is a content-based free speech restriction?
A restriction on subject matter; the application of the law depends on the topic of the message.
What is a content-neutral free speech restriction?
A restriction on viewpoint; the application of the law depends on the ideology of the message.
Content-neutral laws need to meet intermediate scrutiny; content-based laws need to meet strict scrutiny review.
When can the government require a license for speech?
Only if there is an important reason for licensing the clear criteria leaving almost discretion to the licensing authority.
When is a law unconstitutionally vague?
If a reasonable person cannot tell what speech is prohibited and what is allowed.
When is a law overbroad?
If it regulates substantially more speech than the constitution allows to be regulated.
What is the scope of regulation that can be applied to symbolic speech?
The government can regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the gov't's purpose.
What speech is unprotected or less protected by the First Am.?
Incitement of illegal activity, obscenity and sexually-oriented speech, commercial speech, defamation, private speech, and speech by gov't employees on the job.
What places are available for speech?
Public forums, designated public forums, limited public forums, and non-public forums.