Term
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Definition
| Original - ambassadors, public ministers, consuls, states a party; Appellate - writ of certiorari at SCT discretion; Appeal by 3 judge fed district ct panel that grant/deny injunctive relief. |
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Term
| Limitations On Exercise Of Fed Jurisdiction - Police Of Strict Necessity |
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Definition
| No advisory opinions; Ripe for review; Not moot; P must have standing; Adequate and Independent State Grounds; Abstention; No political questions; Limits imposed by 11th am. |
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Term
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Definition
| P must show that she has been or will be directly and personally injured by the allegedly unlawful gov't action which effects her rights under the const/fed law; injury need not be economic. Must show a causal connection bw injury and conduct complained of and redressability. |
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Term
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Definition
| Congress has power to tax as long as the tax has a reas relationship to revenue production or if Congress has the power to regulate the activity; neither congress nor states can tax exports to foreign countries. There must be uniformity - meaning the tax must be uniform across all states where the taxed item is found. |
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Term
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Definition
| Congress may spend to provide for the common defense and general welfare - i.e. Any public purpose. |
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Term
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Definition
| Congress may regulate the channels of interstate commerce; regulate the instrumentalities; regulate activities that have a substantial effect on interstate commerce. |
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Term
| Congress's War And Related Powers |
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Definition
| Const gives Congress power to declare war, raise and support armies and provide for and maintain a navy. |
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Term
| Delegation Of Legislative Power |
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Definition
| Leg power may be delegated to exec/judic branch as long as there are intelligible standards - which is always met - for the delegate to follow. |
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Term
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Definition
| Appointment and Removal. Appt with advice/consent of senate; removal not required. Congress may remove only by impeachment. Pardons for federal crimes; Veto Power; Power as Chief Executive - unsettled law. |
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Term
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Definition
| May act militarily in actual hostiles against the U.S. limited only by Congress's power of military appropriation. Treaty power, with 2/3 consent of Senate; Executive Agreements (federal law prevails over). |
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Term
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Definition
| Subject to constitutional limits. Supreme over state laws; last in time over federal laws. |
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Term
| Article Iv Privileges And Immunities |
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Definition
| 4PI prohibits discrimination by a state against nonresidents. Corporations and aliens are not protected by this (but likely by another clause). Only fundamental rights involving important commercial activities and civil liberties are protected. A state law may be valid if there is no less restrictive means to solve the problem and that the nonresidents either cause or are part of the problem. |
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Term
| 14th Am Privileges And Immunities |
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Definition
| Right to travel and right to vote. Privileges of National Citizenship. |
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Term
| State Legislation Involving Free Flow Of Commerce: Exam Approach |
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Definition
| Ask: Does the question refer to any federal legislation that might - 1) supersede the state regulation or preempt the field or 2) authorize state regulation otherwise impermissible? If neither, does the reg discriminate against nonresidents or place an undue burden on free flow of commerce. If discriminatory it is invalid unless it furthers an important noneconomic state interest and there are no reasonable nondiscriminatory alternatives or the state is a market participant. |
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Term
| State Taxation Of Interstate Commerce |
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Definition
| States may not use their tax systems to help in-state business; a state may only tax activates if there is a substantial nexus to the state; and state taxation of interstate businesses must be fairly apportioned. |
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Term
| Regulating Private Conduct |
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Definition
| Congress may by statute, apply const norms to private conduct. 13th am can be used to prohibit private race discrimination by allowing congress to adopt appropriate legislation; the commerce power; congress cannot use Sect 5 of 14th Am to regulate private behavior |
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Term
| Private Conduct That Must Comply With Constitution |
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Definition
| Where the private entity is performing a public function; if the gov't affirmative authorizes, encourages or facilitates unconst activity - i.e. The entanglement exception. |
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Term
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Definition
| A Fair Process (i.e. Notice and a hearing) is req'd for a gov't agency to individually and with intent (not negligence) take a person's life, liberty or property. Property requires an entitlement. |
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Term
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Definition
| 3 part balancing test that weighs: importance of interest to individual; and value of specific procedural safeguards to that interest; against the gov't interest in fiscal and administrative efficiency. Normally notice and chance to respond are req'd before termination of the liberty/property interest. Public Employment "for cause": prior notice, opportunity and subsequent evidentiary hearing. Drivers License: prior evid hearing except for breathalyzer test suspension statutes. |
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Term
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Definition
| For public use and not without just compensation. Can be regulatory taking if regulation that leaves property with no further economically viable uses. |
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Term
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Definition
| If a law limits all persons to engage in some activity, it is usually SDP. Fundamental rights get Strict Scrutiny; all other SDP cases get rational basis. |
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Term
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Definition
| If a law treats a person or a class of persons differently from others it is usually EP. |
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Term
| Strict Scrutiny (Maximum Scrutiny) |
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Definition
| Regs affecting fundamental rights or involving a suspect class (race, national origin and alienage). The law will be upheld if it is necessary to achieve a compelling gov't purpose. The gov't has burden of proof. |
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Term
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Definition
| Regs involving quasi-suspect classes - i.e. Gender and legitimacy. Law is upheld if it is substantially related to an important gov't purpose. Gov't has burden of proof. |
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Term
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Definition
| Everything else - including age, wealth, disability, undocumented aliens. The law is upheld if it is rationally related to a legitimate gov't purpose. Usually valid unless it is arbitrary and irrational. |
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Term
| Equal Protection And Proving Discriminatory Action |
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Definition
| Must be intent on the part of the gov't to discriminate shown by: a law that is discriminatory on its face; a discriminatory application of a facially neutral law; or a discriminatory motive behind the law. |
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Term
| Fundamental Rights - Right To Privacy |
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Definition
| Marriage, Contraception, Abortion, to vote, and to travel. |
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Term
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Definition
| Generally, strict scrutiny but only as to the states. Rational basis for alien classify. That concern self-gov't and the democratic process. Only rational when congress discriminates - they have plenary power over aliens. Undocumented alien children get intermediate scrutiny, usually in the public education context. |
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Term
| Freedom Of Speech And Assembly - Generally |
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Definition
| Free Speech Clause restricts gov't regulation of private speech; doesn’t require gov't to aid private speech or restrict gov't from expressing its views and fund private speech as it sees fit. Gov't speech or funding of, will be upheld if rationally related to a legitimate state interest. |
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Term
| Freedom Of Speech And Assembly - Content Vs. Conduct |
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Definition
| Content regulations forbid communication of a specific idea; conduct regulations regulate the conduct associated with speaking such as the time of the speech, sound level, etc. Content regulations are intermediate scrutiny. Conduct can be regulated by approp time, place and manner restrictions. |
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Term
| Reasonableness Of Regulation |
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Definition
| A regulation is overbroad if it punishes a substantial amount of protected speech in relation to its plainly legitimate sweep; A law or reg is void if it fails to give persons reas notice of what is prohibited. |
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Term
| Time, Place And Manner Restrictions To Regulate Conduct |
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Definition
| The breadth of this power to regulate depends on the type forum: public, designated public forum, limited public forum and nonpublic forum. |
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Term
| Unprotected Speech: Regulation/Punishment Based On Content |
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Definition
| Inciting Imminent Lawless action, Fighting words, Obscenity, Defamatory Speech, some Commercial Speech, |
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Term
| Inciting Imminent Lawless Action |
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Definition
| Speech can be burdened if it creates a clear and present danger of imminent lawless action. It must be show that imminent illegal conduct is likely and that the speaker intended to cause it. |
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Term
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Definition
| Speech is obscene if it: 1)Appeals to prurient interest in sex, using a community standard 2) is patently offensive and an affront to contemporary community standards; and 3) lacks serious value using a national person standard. |
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Term
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Definition
| Commercial speech is generally given 1st Am protection if it is truthful. May be burdened if it proposes unlawful activity or is misleading/fraudulent. Regulation will be upheld only if: 1) Serves a Substantial Gov't interest; 2) Directly advances that interest; and 3) is narrowly tailored to serve that interest - not the least restrictive means. |
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Term
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Definition
| To be valid a system of prior restraints must provide the following safeguards: the standards must be narrowly drawn, reasonable and definite; injunction must promptly be sought; and there must be prompt and final determination of the validity of the restraint. |
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Term
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Definition
| Generally the press has the same 1st Am rights that all private citizens have. I.e. They may be req'd to testify to grand jury; are only subjected to general business regulations or taxes but cannot be taxed for special regulation or taxes, etc. |
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Term
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Definition
| FEC prohibits gov't interference with religious beliefs but it generally does not prohibit regulation of conduct as long as the law wasn't specifically designed to interfere with religion. A state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons. Amish children are exempt from compulsory school attendance. |
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Term
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Definition
| Est. Clause prohibits the laws respecting an establishment of religion. If gov't action includes a preference for one religion over another it is invalid unless narrowly tailored to promote a compelling gov't interest. No sect preference - Lemon Test. |
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Term
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Definition
| A law is valid under Est. Clause if it: has a secular purpose; has a primary effect that neither advances nor inhibits religion; and does not produce excessive gov't entanglement with religion. |
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