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Definition
P is not entitled to review of statute or regulation before enforcement unless (1) P will suffer some harm or immediate threat of harm
(2) issue fit for judicial review, and
(3) there is a record for judicial review. |
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| Federal court will abstain fro resolving a constitutional claim when based on unsettled question of law |
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Term
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Definition
a real controversy must exist at all stages of review. If the matter has already been resolved, case will be dismissed as moot.
Exceptions:
(1) controversy is capable of repetition but evading review,
(2) voluntary cessation: Defendant who voluntarily stops the offending practice but is free to resume.
(3) Class action suits: A person may continue to pursue a class action after their controversy has become moot if claims of other class members are still viable |
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Term
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Definition
| Issues constitutionally committed to political branches or inherently incapable of judicial resolution |
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| Individual standing requires (1) personal injury in fact, (2) causation between conduct and the injury, and (3) redressability. |
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An organization may sue for its members if:
(1) the individuals have standing,
(2) the interests are germane to the organization’s purpose,
(3) individual members participation in the lawsuit is not required. |
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| Prohibits federal courts from hearing private party’s claims against state government unless: the private party sues state officer, the state consents, or Congress removes immunity |
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Term
| Federal Executive Powers: Treaty Powers |
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Definition
| President can enter into agreement with foregn country with 2/3 Senate approval. Treaties prevail over conflicting state laws. |
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Term
| Federal Executive Powers: Executive Agreements |
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Definition
| President may enter into agreement with a foreign country. Agreement prevails over conflicting state laws but not federal law or Constitution. |
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Term
| Federal Executive Powers: War & Foreign Relation Power |
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Definition
| President has no power to declare war but may act militarily in actual hostilities. |
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Term
| Federal Executive Power as Chief Executive |
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Definition
-If President acts with express of implied Congressional authority, his actions are at its highest
-If President acts where Congress is silent, his action will be upheld unless usurps power of another branch
-If President acts against express Congressional will, he has little authority. |
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| Federal Executive Power: Impeachment |
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Definition
| Majority in the House to charge impeachment and a 2/3 Senate vote to convict and remove from office. |
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Term
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Definition
Congress has plenary power to regulate:
-Channels of interstate commerce
-Instrumentalities of interstate commerce and persons or things in interstate commerce
-Economic activities that have a substantial effect on interstate commerce |
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| Congress may tax and spend for the general welfare and may enact any tax to raise revenue for the general welfare. |
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| Limitations on Power of 10th amendment |
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Definition
–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 can induce state government action by putting strings on grants
-Congress may prohibit harmful commercial activity by state governments |
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Term
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Definition
Supremacy Clause of Article IV provides that the Constitution and laws and treaties made pursuant to it, are the supreme law of the land.
1. Express preemption – If a federal statute expressly says that federal law is exclusive in an area state and local laws are preempted
2. Implied preemption – Federal law preempts state law when Congress enacts scheme so pervasive as to make reasonable the inference that Congress left no room for states to act.
3. Conflict preemption – Federal law preempts state law when it conflicts with federal law because either compliance with both laws is physically impossible or compliance with state law would pose an obstacle to the accomplishment of the Congressional purpose/objective. |
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Term
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Definition
State laws cannot place an undue burden on interstate commerce.
1. Any state law that discriminates or unduly burdens interstate commerce is VOID unless:
-It furthers an important noneconomic state interest and there are no reasonable nondiscriminatory alternatives; OR
-The state is a market participant (when state is buyer or seller as opposed to regulator of transactions between others); OR
-The law favors government performing traditional govt functions
2. Nondiscriminatory laws that further an important noneconomic state interest but incidentally burden interstate commerce are generally VALID unless the burden on interstate commerce is clearly excessive in light of the benefits to the local community. (Balancing benefits and burden) |
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Term
| P & I Clause of Article IV: |
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Definition
State laws that deny out-of-state persons the privileges and immunities accorded to in-state persons violate the provisions.
If the state law discriminates against out-of-state persons and burdens a fundamental right (civil liberties or important economic activities), it is VOID unless it is necessary to achieve an important government purpose (less than strict...needs to be substantial state interest but no less restrictive means to solve the problem)
If the law does NOT discriminate against out-of-state persons, Article IV does not apply. |
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Term
| P & I Clause of 14th Amendment |
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Definition
| States may not deny citizens privileges and immunities of national citizenship (i.e., right to the assistance of U.S. embassies abroad, the right to the protection of U.S treaties, the right to travel to the seat of the national government, the right to use the navigable waterways, and the right to interstate travel) unless it passes strict scrutiny. |
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Term
| Attack speech by these categories: |
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Definition
-Prior restraint
-Vagueness
-Overbreadth
-Content-based vs. Content-neutral
a) Content based categories that are freely regulated
b) Time, place manner
c) Expressive Conduct |
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Term
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Definition
Must meet strict scrutiny. To be valid, the govt must show the following procedural safeguards:
-There must be specific criteria to judge the prior restraint
-No discretion is given to an official to make that decision
-There must be a built in appeal process from the denial based on the decision of the review board. |
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Term
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Definition
Overbroad laws are unconstitutional
(applies to both protected and unprotected speech) |
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Term
| Content based regulations have to meet: |
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Definition
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Term
| Government can regulate these categories: |
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Definition
-Incitement
-Fighting Words
-Threats
-Obscenity (appeals to prurient interest in sex, patently offensive, and lacks SLAPS)
-Commercial speech that is false, deceptive, or advertising illegal activity) or passes intermediate scrutiny
-Defamation |
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Term
| Content-neutral regulations have to meet: |
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Definition
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Term
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Definition
Public Forum & Designated Public Forums
-Government required to make available for speech (parks, streets, sidewalks) or has designated to be open for speech.
-Test: Law must be content-neutral, narrowly drawn to serve a significant government interest (weaker than strict scrutiny) and leave open ample alternative channels of communication.
Limited Public and Non-Public Forums
-Govt owned facility that is open to certain speakers or subjects and publicly owned facility that has not been open to the public (airports, govt offices)
-Test: Law must be viewpoint neutral and reasonable in light of the purposes of the forum. |
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Term
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Definition
Government can regulate expressive conduct if:
(1) the law furthers an important state interest,
(2) the interest is unrelated to the suppression of the expression and (3) the burden on speech is no greater than necessary to serve/further that governmental interest. |
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Term
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Definition
-Government may not prohibit or punish group membership unless the law meets strict scrutiny.
-Government may punish an individual for membership in an organization engaged in unlawful activity if the person is actively affiliated with the group, knows of its illegal activities and has specific intent of furthering those illegal activities |
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Term
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Definition
-Government may not punish (deny benefit or impose burden) religious belief unless it passes strict scrutiny.
-Government may regulate conduct motivated by religious belief through neutral laws of general applicability if it can pass the rational basis test. |
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Term
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Definition
-State may not aid or demonstrate hostility to religion unless it passes strict scrutiny.
-State law does NOT violate establishment clause if (SEX):
a. Secular Purpose
b. Effect is not to advance of inhibit religion
c. Does not foster excessive entanglement with religion |
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Term
| Equal Protection (generally) |
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Definition
| State can enact laws so long as it’s doing it equally and applies to everyone (applies to state through 14th amendment and applies to federal govt through due process clause of 5th amendment) |
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Term
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Definition
1) Laws that on their face classify persons according to suspect classification are VOID unless it passes strict scrutiny (Race, Alienage, National Origin)
2) Laws that on their face classify persons according to a quasi-suspect classification are VOID unless it passes intermediate scrutiny
3) Laws that on their face are neutral but that discriminate in impact on a suspect or quasi-suspect class and are the result of a discriminatory motive/intent are VOID.
4) Laws that burden a fundamental right are void unless they pass strict scrutiny.
5) Laws that classify persons in any other way are void unless passes rational basis test. (Age, disability, wealth, economic regulations, sexual orientation) |
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Term
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Definition
-Rational basis = rationally related to legitimate state interest
-Intermediate scrutiny = substantially related to an important state interest
-Strict scrutiny = narrowly drawn/necessary to achieve a compelling state interest (there must be no less restrictive alternatives available) |
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Term
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Definition
State infringes on life, liberty or property (law applies to everyone)
1. State action that deprives persons of a fundamental right is void unless passes strict scrutiny.
2. State action that does NOT deprive persons of a fundamental right is void unless it passes rational basis test. |
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Term
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Definition
Deprivation of life, liberty (significant freedom secured by Constitution or statute), or property (entitlement to a continued receipt of a benefit)
Must be intentional or reckless government action (no negligence)
Type of procedure due depends on:
1. The importance of the interest to the individual; and
2. The ability of additional procedures to increase the accuracy of the fact-finding; and
3. The government interest in fiscal and administrative efficiency |
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Term
| Laws affecting economic rights need to pass: |
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Definition
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Term
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Definition
Government may take private property for public use if it pays just compensation:
1. Government taking: Confiscation or physical occupation OR regulatory taking by denial of all economic value of land
2. Taking for Public Use: legitimate public purpose (e.g., health, welfare, safety, economic or aesthetic reasons)
3.Just Compensation: Government must pay FMV (measured by loss to the owner, not gain to taker) OR Terminate regulation and pay damages for when regulation was in effect (i.e., temporary taking damages) |
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Term
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Definition
No state shall impair the obligations of existing (not future) contracts
1. Private contracts – intermediate scrutiny
2. Govt contracts – strict scrutiny |
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