Term
| What are the requirements to qualify as a case or controversy? |
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Definition
| No advisory opinions, proper timing, standing, no political questions |
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Term
| Federal courts may only decide actual ______ or _____; no ________ cases. |
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Definition
| Federal courts may only decide actual CASES or CONTROVERSIES; no HYPOTHETICAL cases. |
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Term
| For ripeness requirement, plaintiff must allege: |
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Definition
| real harm or threat of imminent harm. |
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Term
| A case will be dismissed as moot unless there exists an actual, live controversy between the parties at ___________ stages of the litigation, including appeal. |
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Definition
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Term
| Requirements for standing: |
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Definition
1) Real or genuine harm
2) An injury CAUSED by the defendant 3) The injury must be capable of redress |
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Term
| An organization hs standing to sue for injury to itself and also for its members if: |
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Definition
1) a member or members would have standing and
2) the members' injury is related to the purpose of the organization and
3) there is no reason (such as an award of damages to individual members) that would require participation of the individual members in the suit. |
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Term
| Standing to raise the rights of third parties if: |
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Definition
1) the party has suffered some actual injury AND
2) there is a special relationship between the party and the third person and there is some hindrance to the third party raising his own rights |
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Term
| Examples of third party standing: |
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Definition
| Doctor raises rights of a patient to have abortion. Seller of beer raises rights of maules under 21 to buy liquor. |
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Term
| What is citizen standing? |
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Definition
| NO such thing as citizen standing. Citizen standing requires personal harm suffered by the plaintiff. Not enough to alleget that you know of an illegality and it offends you as a citizen. |
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Term
| What is the rule on taxpayer standing? |
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Definition
| There is no taxpayer standing to challenge federal spending except for congressionally authorized money given to religion in violation of the establishment clause. |
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Term
| What is legislator's standing? |
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Definition
| Legislators can challenge formal actions that cause them some personal and concrete injury, like being denied right to vote on a law. They can't challenge a law that was properly enacted. |
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Term
| Can you bring a "Republican form of government" challenge? |
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Definition
| No, because it is a political question; the republican guarantee clause clearly vests only the President and Congress with the right to enforce it. |
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Term
| Can you challenge foreign affairs or military command decisions? |
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Definition
| No because in various clauses, the Constitution clearly vets the President and Congress with complete, non-reviewable discretion over war and military action. |
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Term
| Can you challenge impeachment procedures? |
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Definition
| No - the Constitution clearly vests the Senate with the sole power to try impeachments. |
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Term
| Can you challenge the election and qualification of members of Congress (age, citizenship, and residency)? |
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Definition
| Yes because age/citizenship/residency requirements establish judicially manageable standards. A disputed election return is NOT subject to judicial review. |
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Term
| Can you challenge procedures to amend the Constitution? |
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Definition
| No because the Constitution vests Congress with the sole discretion to determine the time within which a state legislature must act on pending amendments. |
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Term
| What are the 4 basic requirements for supreme court review? |
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Definition
1) there is a final judgment of the state's highest court and
2) the state court's judgment turned on federal grounds and
3) the case meets the other requirements for case or controversy and
4) there is no independent and adequate state ground upon which the state court decision is based. |
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Term
| What is an adequate and independent state ground? |
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Definition
| A case rests on independent state ground so long as state law doesn't depend on an interpretation of federal law or incorporate a federal standard. |
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Term
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Definition
| When a federal court will decline to hear a case challenging a state lw if it involves a constitutional challenge to the state law, but the meaning o the state law is unsettled or the matter is already pending before state judicial/administrative tribunals. |
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Term
| What are the requirements for the 11th amendment to bar a suit? |
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Definition
1) the plaintiff must be a private party, not another government.
2) The defendant must be a state, not the US, or local government like a county or municipality.
3) The suit must be for money to be paid out of the state treasury or for an injunction or declaratory relief where the state is the Named Party. |
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Term
| What three things can Congress do to force states to do what it wants? |
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Definition
1) Authorize President to enforce its decrees against the states.
2) Use its spending power to bribe states to do what it wants.
3) Use certain other powers (treaty power, section 5 of 14th amendment) to command states to do certain things. |
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Term
| When may Congress tax to control behavior? |
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Definition
| Congress may use taxing power to regulate and prohibit behavior so long as the statute is capable of raising revenue. |
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Term
| When will a court impose a condition against a state that has accepted federal funds? |
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Definition
1) condition serves a public purpose
2) condition is unambiguous
3) condition is related to the federal interest
4) condition does not violate an independent bar (another part of the constitution) |
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Term
| Which amendment applies to both government and private action? |
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Definition
| 13th amendment prohibiting slavery and all "badges" of slavery. |
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Term
| When can Congress delegate power? |
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Definition
| Congress may broadly delegate power to administrative agencies as long as there are some standards set out to guide the exercise of the power. |
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Term
| What is the speech and debate clause? |
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Definition
| Prevents prosecution or civil punishment for Congress members' official or legislative acts. (Actions on the floor, voting and committee work) |
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Term
| President has exclusive power to pardon for_________. |
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Definition
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Term
| President has power to appoint and remove__________. |
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Definition
| high level, purely executive officials |
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Term
| Congress may never directly appoint ________. |
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Definition
| executive branch officials |
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Term
| Congress can limit President's power in what 2 ways? |
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Definition
1) As to officers of the United States, such as ambassadors, judges, and cabinet heads, the President appoints only with advice and consent of Senate and
2) As to inferior officers, Congress may vest the appointment in PResident alone, or in department heads (such as judiciary). |
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Term
| Treaties need at least __________ for approval |
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Definition
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Term
| Executive agreements need __________ for approval |
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Definition
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Term
| If there is a conflict between treaties or executive agreements and legislation, they are usually resolved in favor of the ___________ |
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Definition
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Term
| A president's privilege not to disclose communications will be waived if: |
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Definition
| there is a specific need for evidence in a criminal trial |
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Term
| The president is absolutely immune as to: |
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Definition
| civil suits for monetary damages for any Presidential (not personal or pre-presidential) acts |
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Term
| What are the steps for impeachment? |
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Definition
1) Articles of impeachment by the House (majority vote)
2) trial by Senate
3) removal from office (2/3 approval of Senate) |
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Term
| Express preemption is when: |
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Definition
| Congress says that federal law displaces or ousts state law in an area |
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Term
| Implied preemption is when: |
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Definition
| state law is inconsistent with federal law or where Congress has passed so many regulations in an area that federal law "occupies the field" |
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Term
| Article IV Privileges and Immunities clause says states can't discriminate against ___________ with respect to _____ |
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Definition
| can't discriminate against out of state citizens (not corporations/aliens) with respect to commercial activities or civil liberties |
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Term
| What is the negative or dormant commerce power? |
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Definition
| Where Congress has not acted, state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce. |
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Term
| What is the market participant doctrine? |
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Definition
| If a state is acting not as a regulator but as a buyer/seller of goods/services, the negative commerce clause does not apply and the stte can discriminate or burden interstate commerce. |
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Term
| What 3 requirements must a tax on interstate commerce meet? |
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Definition
1) must have a fair relationship to the service or benefits provided by the state
2) activity/person/thing taxed must have a substantial nexus to the state
3) Tax must not be unfairly apportioned - must be apportioned to the company's business done in the state/benefits received from state. |
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Term
| Bill of Rights protections apply against __________ not __________ |
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Definition
| apply against the federal gov't, not state gov'ts. |
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Term
| Except for the _______ amendment, _______ action is required to trigger protection under the bill of rights |
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Definition
| Except 13th amendment, state action (not private action) is required. |
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Term
| There is official state action when: |
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Definition
| state passes a law/regulation or permits officials (police, bureaucrats) to take action. This is true even if they act in violation of law but are clothed with authority. |
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Term
| There is state action under the public function doctrine when: |
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Definition
| a private entity performs a gov't function traditionally and exclusively performed by governments |
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Term
| There is state action when there is _________ with _______ conduct |
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Definition
| significant state involvement with private conduct. |
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Term
| The contract clause says states may not ___________ unless _____________ |
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Definition
| may not substantially impair pre-existing Ks unless 1) it serves an overriding public need and 2) law is reasonably and narrowly tailored to meet need |
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Term
| An ex post facto law applies only to: |
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Definition
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Term
| An ex post facto law can be three things: |
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Definition
1) makes a criminal act that was innocent when done
2) prescribes greater punishment for an act than when it was first done
3) reduces evidence required to convict person for crime |
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Term
| A bill of attainder is federal or state_________ that targets __________ without a trial |
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Definition
| legislation that targets particular individuals |
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Term
| Two questions to ask in a due process analysis: |
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Definition
1) did gov't deprive someone of life, liberty, property?
2) what process is due? |
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Term
| Minimal due process requires: |
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Definition
| an opportunity to present objections to the proposed action and an impartial decision maker |
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Term
| Courts balance 3 factors to determine what due process is needed: |
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Definition
1) importance of individual interest involved
2) value of specific safeguards to that interest
3) government's interest in fiscal and administrative efficiency |
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Term
| Government (state or fed) may not take property without: |
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Definition
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Term
| Any governmental taking of property must be for a ____ |
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Definition
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Term
| Strict scrutiny standard: |
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Definition
| The government must prove that the action or law is necessary to achieve a compelling governmental interest. |
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Term
| Intermediate scrutiny standard: |
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Definition
| The government must prove that the action or law is substantially related to an important government interest. |
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Term
| Minimum scrutiny/rational basis standard: |
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Definition
| Plaintiff must prove that the action or law is not rationally related to legitimate government interest. |
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Term
| A facially neutral law with only a _____ usually triggers the _______ standard |
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Definition
| disparate impact; rational basis |
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Term
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Definition
| race, national origin, alienage |
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Term
| Quasi-suspect classifications: |
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Definition
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Term
| Prior to _________, government may not impose ___________ on a woman's choice to terminate pregnancy |
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Definition
| viability; any undue burden |
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Term
| After viability, a state may _________ |
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Definition
| prohibit abortions if it wants |
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Term
| What are the fundamental rights? |
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Definition
1) Privacy
C - Contraception
A - Abortion
M - Marriage/divorce
P - Porn/obscenity
R - Family relationships
S - Sex
2) Right to vote/participate in political process
3) Right to interstate travel |
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Term
| In all elections to the House, _______________ is required and deviations more than _________ will be struck down |
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Definition
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Term
| A statute will be void for vagueness if: |
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Definition
| person of reasonable intelligence cannot tell what conduct is prohibited |
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Term
| A law will be struck down as overbroad under the first amendment if it: |
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Definition
| prohibits substantially more expression than necessary |
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Term
| What are the requirements for time place and manner controls? |
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Definition
1) Content neutral
2) Substantial alternative opportunities for speech to take place
3) Law narrowly serves a significant state interest |
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Term
| Inciting lawless or violent behavior may be punished if |
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Definition
1) speech is directed at inciting and
2) in fact likely to incite imminent lawlessness |
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Term
| Fighting words are __________ by the first amendment |
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Definition
|
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Term
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Definition
| words that have a direct tendency to cuase to cause acts of violence by the person to whom the remark is addressed. |
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Term
| Speech is obscene if it meets 3 reqs: |
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Definition
1) average person, applying contemporary community standards, would find that work as a whole appeals to the prurient interest
2) work depicts/describe sex in an offensive way
3) lacks serious literary/artistic/political/scientific value |
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Term
| Test for when govt may regulate symbolic speech |
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Definition
1) it is within the constitutional power of the govt
2) it furthers an important government interest
3) it is unrelated to the suppression of free expression
4) if the restriction is no more than necessary to achieve govt interest |
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