Judicial Power: Source & Scope: Source Article 3 Section 2: What powers are delineated to the federal courts?

i. arising under the constitution, laws, and treaties of the US;

ii. Affecting foreign countries' ambassadors, public ministers, and consuls;

iii. Involving admiralty and maritime jx

iv. When the US is a party

v. Between two or more states, or between a state and citizens of another state;

vi. Between citizens of different states or between citizens of the same state claiming lands under grants of different states; or

vii. Between a state, or its citizens, and foreign states, citizens, or subjects.

What is abstention?

A federal court cannot enjoin pending state court procedding

Under the Supremacy Clause (Article IV, Section 2) of the US Constitution, what power does the federal judiciary have?

The power to review state actions and to ensure conformity with the constitution, laws, and treaties of the US.

What is 11th Amendment sovereign immunity?

States cannot be sued in federal court unless:

1. Federal court sues
2. Express waiver
3. Congress clearly removes immunity
4. suits against state official for enforcing unconstitutional statute
5. state v. state
6. actions against local governments
7. bankruptcy 

 What is the general welfare?

may only tax and spend

 Re

What are the two ways to establish appellate jurisdiction for SCOTUS?

Certiorari: petition or discretionary review (rule of 4)

Direct Appeal: SCOTUS MUST hear by direct appeal small number of cases that come from a decision on injunctive relief issued by a special 3 judge district court panel.

Can a final state-court judgment resting on adequate and independent state grounds be reviewed by SCOTUS?

NO

TO have standing, the plaintiff bears the burden of establishing three elements:

Injury in fact

Causation

Redressability

When does a taxpayer have standing?

When a taxpayer is challenging governmental expenditures as violating the establishment clause

What is ripeness?

readiness of a case for litigation

what is mootness?

a case is moot if no further legal proceedings would have an effect, no longer a live controversy.

A live controversy must exist at each stage of review, not only when the claim is filed. 

What are the three exceptions to mootness?

Capable of repetition: 

Voluntary Cessation: D voluntary ceases illegal action once litigation commences

Class actions:

Can federal courts render advisory opinions on the basis of an abstract or hypothetical dispute?

No, this is an advisory opinion prohibition.

What is abstention?

Federal court abstains from deciding a claim when a strong state interest is at stake

Pullman doctrine

A court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts

Younger abstention

Courts will generally not enjoin a pending state criminal case or a state enforcement proceeding in which an especially strong state interest is involved. 

Seen in cases of proven harassment or prosecutions taken in bad faith

The Powers of Congress

Article 1, Section 8, Clause 3 of the Constitution is what clause?

Commerce

What powers does Congress have over interstate commerce?

Congress has the power to regulate:

i. the channels (highways, waterways, airways, etc) and

ii. the instrumentalities of interstate commerce(cars, trucks, ships, airplanes, etc.)

iii. any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right

Taxation and spending

Article 1, Section 8: a tax by Congress will generally be upheld if it had a...

Reasonable relationship to revenue production

Power is plenary (exclusive)

Government has no burden to prove the tax is necessary to any compelling government interest

General Welfare clause: power to tax for any public purpose - this does not give Congress specific power to legislate for the public welfare in general.

Do differences in state law destroy the uniformity requirement for Congress to tax?

No,

Does Congress have an express power to investigate?

no, but under the necessary and property clause Congress has broad authority to conduct investigations incident to its power to legislate.

Can a subpoenaed witness who fails to appear before Congress or refuses to answer questions be cited for contempt?

yes, 

How many days does the president have to veto any bill presented to him by Congress?

10

Can the President veto a part of a bill, and approve the rest?

No, violates the Presentment Clause.

Can Congress appoint members of a body of administrative or enforcement powers?

NO, these must be appointed by the President

Which controls, a treaty or an act of Congress?

Whichever was more recently adopted

What must Congress specify in order to delegate some of it's authority to the executive branch?

intelligible principles

What does the Dorman Commerce Clause prevent states from regulating?

1. Discrimination of out-of-state commerce;
2. Unduly burdensome interstate commerce; or
3. Regulate extraterritorial (wholly out-of-state) activity

Dormant Commerce Clause: out-of-state discrimination

When can a state discriminate against out-of-state commerce?

when the state is a market participant

*State owned cement plant may, in times of shortage, sell only to instate buyers

Dormant Commerce Clause: undue burden

What is the balancing test to determined undue burden on interstate commerce

Cost-benefit analysis or a form of close scrutiny of state economic regulation.

Dormant Commerce Clause: Extraterritorial 

Can Connecticut require that beer sold in Connecticut not be priced higher than beer sold in the four neighboring states? 

No because the Connecticut regime had a practical effect of regulating beer prices in those 4 states.

State Taxation of Commerce

can states tax interstate commerce if Congress has not already acted in the particular area?

Yes as long as the state does not discriminate against or unduly burden interstate commerce

State Taxation on Commerce

What is the SCOTUS 4 part test to determine whether a state tax on interstate commerce comports with the commerce clause?

Complete Auto Test

1. Substantial Nexus: requires significant contacts with, or substantial activity within, the taxing state

2. Fair Apportionment: Interstate taxes cannot pay total taxes higher than local commerce by virtue of having to pay tax in more than one state

3. Nondiscrimination: cannot favor local commerce

4. Fair Relationship to Services Provided: 

When a tax discriminates against nonresident individuals, like income tax that exempts local residents what does the tax violate?

Comity Clause

If a tax is discriminatory against out-of-state businesses, and is authorized by Congress, what does it violate?

Equal Protection Clause of the 14th Amendment if there is NO rational basis to support it.

What is an ad valorem property tax?

Tax based on the value of the real or personal property and is often asserted at a particular time.

Goods in the course of transit may not be taxed, unless stopped in the state for a business purpose

Applied on Tax day.

Foreign Commerce

What does the Import-Export Clause of Article 1, Section 10 prohibit the states, without the consent of Congress from doing?

Imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods, except what is absolutely necessary for executing its inspecition laws. 

Federal Preemption of State Law

When is Federal preemption implied?

i. Congress intended for Federal law to occupy the field

ii. The state law directly conflicts with the federal law

iii. The state law indirectly conflicts with federal law by creating an obstacle to or frustrating the accomplishment of the law's purpose

Full Faith and Credit Clause

In order to be given full faith and credit, decisions must meet three requirements

i. The court that rendered the judgment must have had jurisdiction over the parties and the subject matter

ii. The judgment must have been on the merits rather than on the procedural issue; and

iii. The judgment must be final

Procedural Due Process

Compare the 5th and 14th Amendments

5th: applies against the Federal government -- no person shall be deprived life, liberty, or property without due process of law

14th: no state shall make or enforce any law which shall...deprive any person of life liberty or property, without due process of law

Important Amendments applied to states as well as Feds

1st: Speech, religion

2nd: Guns

4th: Searches and Seizures

5th: right to grand jury indictment

6th: right to unanimous jury in criminal trial

8th: Excessive bail & cruel and unusual 

Protected Interests - Due Process

Are government issued licenses and continued welfare and disability benefits legitimate property interests?

Yes

Protected Interests - Due Process

only if there is an employment contract or a clear understanding that the employee may only be fired for cause.

Protected Interests - Due Process

Can an at-will government employee be discharged for engaging in speech protected by the 1st amendment?

No

Protected Interests - Due Process

Employee must make a prima facie claim that she is being discharged for reasons that violate specific constitutional guaruntees.

Protected Interests - Due Process

yes

Protected Interests - Due Process

The state must give pre-termination notice, but only a post-termination evidentiary hearing is required.

No formal hearing requirement

Protected Interests - Due Process

No

Protected Interests - Due Process

Student must receive oral or written notice of the charges against him, and if he denies them, and explanation of the evidence the authorities have and an opportunity to present his side of the story.

Substantive Due Process

What is the standard of review?

Twofold 

i. a governmental action that infringes upon a fundamental right is subject to strict scrutiny 

ii. If the interest infringed upon is not fundamental, then there need be only a rational basis for the regulation

Substantive Due Process

What is the test for strict scrutiny?

The law must be the least restrictive means to achieve a compelling governmental interest. 

Substantive Due Process: Strict Scrutiny

What is least restrictive?

There cannot be a way to achieve the same interest that is less restrictive of the right at issue. 

The law should be neither over-inclusive (reaching more people or conduct than is necessary) nor under-inclusive (not reaching all of the people or conduct intended)

Substantive Due Process: Strict Scrutiny

What is a compelling interest?

Necessary or crucial

Substantive Due Process: Strict Scrutiny

Who has the burden of proof?

What is it applicable to?

Government

Fundamental rights

Substantive Due Process: Rational Basis

What is the test?

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest.

The test is minimal scrutiny and generally results in the law being upheld. 

Substantive Due Process: Rational Basis

Who has the burden of proof?

What does it apply to?

The burden is on the challenger of the law to overcome the presumption by establishing that the law is arbitrary and irrational.

Applies to: lifestyle, taxes, zoning, and punitive damages

Fundamental Rights

What are they?

i. Right to travel

ii. Right to vote

iii. Right to privacy (including marriage, sex, abortion, child rearing, related people to live together).

Fundamental Rights

When a fundamental right is being infringed upon for all persons, the issue is likely a substantive due process issue or an equal protections issue?

Substantive 

Equal Protect: is a right being denied to only a particular class of persons

Fundamental Rights

Is there a fundamental right to international travel?

There is a right to travel internationally, however it is not fundamental.

Fundamental Rights: Voting & Ballot Access

Does a person's right to vote extend to the right to vote for any possible candidate?

Equal Protection Clause

5th and 14th which is state and which is federal?

5th = federal

14th = states

Equal Protection Clause

Standards of Review

Strict Scrutiny: fundamental right OR suspect classification

Intermediate Scrutiny: 

Rational Basis Test

Equal Protection Clause

Standards of Review: Intermediate Scrutiny

Intermediate Scrutiny: To be constitutional, the law must be substantially related to an important government interest

Applies to: gender, nonmarital children

Equal Protection Clause

Standards of Review: Strict Scrutiny

Applies to?

What triggers it?

Fundamental rights or suspect classifications

Race

Ethnicity

National Origin

Classification by state law

Alienage

Must be discriminatory intent

Equal Protection Clause

Standards of Review: Rational Basis

Applies to?

Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational

age

wealth

weight

Equal Protection Clause

Standards of Review: When is a law facially discriminatory?

Equal Protection Clause

Standards of Review: When is a law discriminatory in application?

Neutral on its face, when a discriminatory purpose was used when applied the law

Equal Protection Clause

For governmental affirmative action program based on race to survive, what must the relevant government entity demonstrate?

More than a history of societal discrimination

The government itself must be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects.

Privileges and Immunities Clauses

Article IV, Section 2, Comity Clause provides that...

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Exam Note: Although the Privileges and Immunities Clause of Article IV and the Commerce Clause are not coextensive, they tend to mutually support each other; thus consider both when analyzing a question.

Takings Clause:

Can the Takings clause extend to takings of non-possessory property rights? (i.e., easements or lien)

Yes

Takin

Takings Clause

Per Se Takings: two types

Physical occupation: permenant physical occupation

No economically viable use: permanent total loss of the property's economic value

Prohibited Legislation

What is a Bill of Attainder?

Legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial

Appliesonly to criminal or penal measures

Prohibited Legislation

What are Ex Post Facto Laws?

Law is confined to a retroactive change to a criminal or penal law. Struck down if:

i. criminalizes an act that was not a crime when it was originally committed;

ii. authorizes, after an act was committed, the imposition of a more severe penalty on that act;

iii. Deprives the defendant of a defense available at the time the act was committed; or

iv. decreases the prosecution's burden of proof required for a conviction to a level below that which was required when the alleged offense was committed. 

Freedom of Religion:

Establishment Clause: Standard of Review

SEX

A governmental action that benefits religion is valid if

Lemon v. Kurtzman 3-part test

(1) It has a Secular purpose;

(2) It's principal or primary Effect neither advances nor inhibits religion;

(3) Does not result in eXcessive entanglement with religion.

Freedom of Religion: Establishment Clause: 

When is governmental financial assistance to religious institutions permitted?

Aid is secular in nature, used for ONLY secular purposes, and when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral.

Freedom of Religion: Establishment Clause: 

Are tax exemptions for religious institutions valid?

Yes since they are equivalent to those given to other charitable organizations.

Freedom of Religion: Establishment Clause: 

What religious activities have been held to violate the establishment clause as clearly promoting religion in public schools?

i. prayer and bible reading

ii. designated period of silence for "meditation or voluntary prayer"

iii. Non-denominational prayer at graduations

iv. posting the ten commandments 

v. prohibiting teachings of Darwinism 

Freedom of Religion: Establishment Clause: 

Does a Ten Commandments display on public property constitute an impermissible violation of the Establishment Clause?

Yes, if the display has a "predominantly religious purpose"

No ten commandments at courthouse

Freedom of Religion: Establishment Clause: 

When will government holiday displays not be upheld?

if a reasonable observer could conclude that the display is an endorsement of religion

1st Amendment: Free Exercise Clause: 

What two freedoms are included?

1. The freedom to believe and the freedom to act

2. The degree of protection that individuals are afforded from governmental interference in religion depends on whether religious belief or conduct is involved.

Freedom of Expression and Association: Speech: Expressive Conduct

When will governmental regulation of expressive conduct be upheld?

i. the regulation is within the government's power to enact

ii. regulation furthers an important government interest;

iii. governmental interest is unrelated to the suppression of ideas; and

iv. the burden on speech is no greater than necessary

Freedom of Expression and Association: Speech: Expressive Conduct

When will governmental regulation of expressive conduct be upheld?

Freedom of Expression and Association: Speech: Expressive Conduct

Are these actions allowed?

Draft card burning = no

Wearing Black armbands to protest Vietnam = ok

Burning American Flag = ok

Leafletting = ok

Freedom of Expression and Association: Speech: 

A law that burdens a substantial amount of speech or other conduct constitutionally protected by the 1st amendment is said to be...

Overbroad

Freedom of Expression and Association: Speech: 

A statute is _________ if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

Void for vagueness

Freedom of Expression and Association: Speech: 

What are prior restraints?

Regulation of speech that occurs in advance of its expression (e.g., publication or utterance).

Generally presumed to be unconstitutional, with limited exceptions...

i. particular harm to be avoided

ii. certain procedural safeguards 

Freedom of Expression and Association: Speech: Political Campaign Contributions

What level of scrutiny are statutes limiting campaign contributions subject to?

Intermediate Scrutiny

Freedom of Expression and Association: Speech: Political Campaign Contributions

What can be limited and what cannot be limited?

Can be Limited:

Contributions to political parties & candidates

Political Action Committees (PACs)

Cannot be limited:

Political campaign expenditures

Expenditures by a candidate on her own behalf

Freedom of Expression and Association: Speech: Time, Place, and Manner of Expression

What is a public forum?

Traditional public forums: Historically been used for free speech -- sidewalks, streets, and parks

Designated (or limited) Public Forums: government has opened for public use -- civic auditoriums, publically owned theaters, school classrooms (after hours)

Freedom of Expression and Association: Speech: Time, Place, and Manner of Expression

What government restrictions can be placed on speech in a public forum?

i. content-neutral as to be subject matter and viewpoint (not necessary to hear what is said in order to apply regulation)

ii. Are narrowly tailored to serve a significant governmental interest; and 

iii. Leave open ample alternative channels for communication of the information

Freedom of Expression and Association: Speech: Time, Place, and Manner of Expression

What is the test for the constitutionality of injunctions in public forums?

Whether the injunction is content-neutral or content-based

content-neutral: Burdens no more speech than is necessary to achieve an important governmental interest

content-based: It must be necessary for the government to achieve a compelling governmental interest.

Freedom of Expression and Association: Speech: Time, Place, and Manner of Expression

What is a nonpublic forum?

All public property that is not a traditional or designated public forum.

Government offices, schools, jails, and military bases

Sidewalks on postal service property, airport terminals

Freedom of Expression and Association: Speech: Time, Place, and Manner of Expression

When can government regulate speech-related activities in nonpublic forum?

i. viewpoint-neutral and

ii. reasonably related to a legitimate governmental interest

Freedom of Expression and Association: Speech: Time, Place, and Manner of Expression

What is viewpoint neutral?

Freedom of Expression and Association: Speech: Regulation of Content

When can the government restrict speech on the basis of content?

Historic and traditional categories 5

1. Obscenity
2. Subversive speech
3. fighting words
4. defamation
5. commercial speech

Freedom of Expression and Association: Speech: Regulation of Content

What is the three prong obscenity test?

Under the Miller test, the average person, applying contemporary community standards, must find that the material, taken as a whole:

i. appeals to the prurient interest

ii. depicts sexual conduct in a patently offensive way; and 

iii. Lacks serious literary, artistic, political, or scientific value.

The 1st two prongs of this test use a contemporary community standard, usually state or local

3rd prong = national standard to determine value.

Freedom of Expression and Association: Speech: Regulation of Content

Who is a public figure or official, and what must they prove to establish defamation?

Someone who is known to the general public, includes any person who voluntarily injected herself into the public eye.

Plaintiff must prove the Defendant acted withactual malice, i.e., knowledge of the statement's falsity or reckless disregard for whether it was true or false.

Freedom of Expression and Association: Speech: Regulation of Content

What is a matter of public concern if the plaintiff is a private figure but the defamatory statement involves a matter of public concern?

Negligence with respect to the falsity of the statement 

Freedom of Expression and Association: Speech: Regulation of Content

What is the 4 part test regarding restrictions on commercial speech?

i. the commercial speech must concern lawful activity and be neither false nor misleading

ii. The asserted government interest must be substantial

iii. The regulation must directly advance the asserted interest; and

iv. The regulation must be narrowly tailored to serve that interest. "reasonably fit" between government ends and the means chosen to accomplish.

Freedom of Expression and Association: Speech: Regulation of Association

When can a person be punished or deprived of public employment based on political association?

Only if:

i. is an active member of a subversive organization

ii. Has knowledge of the organizations illegal activity; and

iii. Has a specific intent to further those illegal objectives.

Freedom of Expression and Association: Speech: Regulation of Content

Can a state require local political party to select presidential electors in an open primary when the national party prohibits nonparty members from voting?

No

Jury Selection:

What must the D show to establish an Equal Protection Clause violation in jury selection?

To establish a prima facie case for non-representative jury selection, a D must show that:

(i) the group excluded is a distinctive group in the community;

(ii) the group excluded was not fairly represented in the venire from which the jury was selected;

(iii) the underrepresentation resulted from a systematic exclusion of the group.

** jury must be selected from a representative cross-section of the community (the venire), the actual  jury selected need not represent a fair cross-section