Glossary of MBE: Constitutional Law
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- P must prove actual or imminent injury. P must allege/prove that D caused injury so that a favrorable court decision is likely to rememdy it.
- Exceptions to Third Party Standing
- (1) close relationship; (2) unlikely to be able to assert own rights; (3) organization standing
- If events after filing suit ends the injury.
- Exceptions to Mootness
- (1) wrong capable of repetition by avoiding review; (2) voluntary cessation; (3) class actions
- Whether a federal court may grant pre enforcement review. Look at: (1) hardship to be suffered; (2) fitness of issues/record for review.
- Political Question Doctrine
- constitutional violations that fed cts won't hear: (1) "repubican form of gov't"; (2) foreign policy; (3) impeachment/removal; (4) partisan gerrymandering
- When may SCOTUS not review a case? (2 reasons)
- (1) When there's an indpendent state law ground of decision; (2) when state decision rests on st AND fed grounds, reversal of a federal ground won't change the result (b/c of the state law ground)
- May a lower federal court hear suits against state governments?
- No. Sovereign immunity.
- When CAN states be sued? (Sovereign immunity exceptions.)
- (1) explicit waiver; (2) laws adopted made by s 5 of 14th Amt'; (3) federal gov't CAN sue state gov't.
- Is there a general federal police power? What are the exceptions?
- No. Exceptions (MILD): (1) military; (2) Indian res; (3) land and territories; (4) Dist of Col.
- When is the "general welfare" applicable?
- Only in taxing/spending situations: Congress may tax and spend for the general welfare.
- What may congress regulate under the commerce clause?
- (1) channels of CATSS (h'ways, waterways); (2) instrumentalities of CATSS and people in it (trucks, planes); (3) econ activities that affects CATSS
- What's up with all that Morrison crap?
- If a non-econ activity is implicated, its substantial effect can't be aggregated/based on cumulative impact.
- How about putting strings on federal grant programs? Like giving states money for roads if they raise the drinking age to 21?
- Ok as long as conditions are expressly stated and related to the purpose of the spending program.
- Can Congress create new rights or expand the scope of existing ones?
- No. Can only prevent/remedy violations and laws that are PROPORTIONATE and CONGRUENT to fixing the violation.
- What's the deal with legislative vetos and line item vetos?
- Unconstitutional. Can't bypass bicameralism and presentement to the president.
- What powers does Congress have the power to delegate? Is there a limit?
- No limit on designating lesislative powers.
- Let's talk about treaties. What happens when they conflict with state laws? Federal statute? The Constitution?
- Treaties: (1) Trump state law; (2) last in time controls in conflict with federal statute; (3) give way to the Constitution
- Don't you love executive agreements? I do!
(1) Do they require Senate approval?
(2) What about conflicts of law?
- (1) no senate approval
(2) prevail over state law, but NEVER over fed law OR Constitution
- Can the President use American troops in foreign countries?
- Are you fucking kidding? Where have you been? Read the news lately? Of course he can! (Bastard.)
- Who may the President appoint?
- ambassasadors, federal judges, US officers - senate must approve nominations
- Does Congress get to appoint anyone? Or are they merely pawns who act at the behest of the President?
- Inferior officers (those that can be fired by a US officers.
- How about new agencies? Can Congress give itself appointment powers?
- No. Can't appoint members, and can't delevated executve/appointment powers to itself.
- Removal power. Who gets it?
- Unless ficed by statute, President may fire any executive officer.
- CAN Congress limit the President's removal power by statute? When? Hows?
- Must be where an officer's independence from the President is desireable; can't prohibit removal, but can limit it to good cause shown.
- For what reasons can President, VP, judges, or officers be impeached? Does that get 'em out?
- treason, bribery, high crimes and misdemeanors
impeachment doesn't remove; impachment in House (maj), conviction in Senate (2/3)
- Presidential immunity.
- absolute immunity to civil suits for any actions while in office; HOWEVER, no immunity for actions prior to office (e.g., Clinton v. Jones)
- Executive privilege? Does the President ever have to disclose stuff?
- for papers and conversations, but must yield to other important gov't interests (when there is an overriding need for info)
- Express Preemption
- if a statute says federal law is exclusive in a field, state/local law is preempted
- Implied Preemption
- federal law trumps when: federal and state law are mutually exclusive; state law impedes fed objective; Congress shows clear intent to preempt state law, even if the statute itself is silent
- Intergovernmental immunity.
- States may not tax or regulate fed gov't activity. (Ex: can't pay tax out of federal treasury.)
- Dormant commerce clause (negative implications of the commerce clause)
- state/local law unconstitutional if they place an undue burden on CATSS.
- Privileges and Immunities Clause of Article IV
- No state may deny citizens of other states of privileges and immunities it accords its own citizens. (Anti-discrim provision.)
- Privileges or Immunities Clause of the 14th Am't
- must implicate the fundamental right to travel for this to apply
- How do we determine if a law violates the commerce clause?
- balance the burdens against the benefits (ex: in the mud guard case, the burden didn't exceed the benefit)
- If a law discriminates against out-of-staters, how can it pass constitutional muster under the dormant commerce clause?
- It must be necessary to achieve an important gov't interest
- Market Participate Exception (to the dormant commerce clause)
- state/locality may prefer its own citizens in receiving benefits from gov't programs or dealing with gov't owned businesses (ex: in-state tuition)
- What are the 4 differences between the commerce clause and the privileges and immunities clause of Art IV?
- (1) DCC doesn't require discrimination, PAI does; (2) DCC requires burden on CATSS, PAI requires discrim re: civil/ecnom liberties; (3) DCC corporations/alients can sue, PAI they can't; (4) exceptions (congressional approval, mkt part), PAI no exceptions.
- May states tax to help in-state business?
- May state tax interstate activities?
- Only if the activities provide a substantial nexus to the state; interstate must be fairly apportioned.
- What are the three requirements for courts in one state to give full faith and credit to courts of another state?
- (1) jurisdiction of parties/subject; (2) judgment was on the merits; (3) judgment was final
- May Congress by statute apply constitutional norms to private activity? In what way?
- 13th Am't to prohibit laws against pvt discrim; commerce power (ex: Heart of Atlanta, Katzenback)
- Public Function Exception (regarding regulation of private stuff)
- If a private entity is performing a task traditionally/exclusively performed by gov't, Congress can regulate
- The Entanglement Exception (regarding regulation of private stuff)
- applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity (determining state action)
- Which amendments are NOT incoprorated into the BOR?
- 2d right to bear arms; 3d right re: soldiers; 5th right to GJ in crim cases; 7th right to jury in civil cases; 8th right against excessive fines (rest of this am't IS incorporated)
- What is liberty for purposes of DP analysis?
- loss of significant freedom protected by the Constitution (harm to reputation NOT loss of liberty)
- What is property for purposes of DP analysis?
- entitlement that is not fulfilled; reasonable expectation of continued receipt of a benefit
- What is the three-part balancing test to determine the procedures required under DP?
- (1) important of interest to the person
(2) ability of additional procedures to increase accuracy of fact finding
(3) gov't interest
- Takings Clause
- gov't may take private property for public use of it provides just compensation
- Possessory Taking
- gov't confinscation by physical occupation
- Regulatory Taking
- b/c or a regulation, there is no economically vibale use of property (mere decrease in value is NOT a taking)
- What constitutues "just compensation"?
Is the gain to the gov't a factor to consider?
- Fair market value.
- What constitutes "public use"?
- Anything, so long as gov't acts out of reasonable belief it will benefit the public.
- Contracts Clause
- No state shall impair obligations on contracts.
- What is the standard for private contracts?
- Intermediate scrutiny, sort of.
Test: (1) Does the legilsation subtantially impar party's rights under existing K? (2) If so, does the law reasonably and narrowly tailor means of promoting important and legit gov't interest?
- Privacy is a fundamental right for purposes of SDP. What does this include?
custody of kids
keep families together
abortion (undue burden std)
refuse medical treatment (C&C ev to show persom wanted Tx before life ends)
- What is the three-part approach to equal protection questions?
- (1) What is the classification?
(2) What level of scrutiny should be applied?
(3) Does this law meet that level of scrutiny?
- How should racial classifications of minorities be treated under EPC?
- strict strutiny
quotas need proof of past discrim
may use race as a single factor
seniority system not disrupted by AA
- How should gender classifications be treated under EPC?
role stereotypes NOT allowed
remedying past discim OK
- How are alienage classifications greated under EPC?
- generally strict; intermediate for self-gov and dem process; rational for Congressional discrim against aliens
- How should discrimination against non-marital children be treated under EPC?
- intermediate; laws denying benefit to all non-marital kids, but granting to all marital kids is unconstitutional
- What types discrimination requires rational basis review?
sexual orientation (Romer v. Evans)
- What are the fundamental rights protected under EPC?
- (1) travel - durational resident requirements require ss
(2) vote - one person/one vote; at-large ok unless discrim
- Is there a fundamental right to an education?
- What is the standard for the regulation of content-based speech?
- What is the standard for the regulation of content-neutral laws burdening speech?
- What's the standard for court orders on prior restraint?
Must they be complied with?
Can someone who violates them challenge later?
- (1) strict
(2) propert orders must be complied w/ until vacated/overturned
(3) he who violates an order doesn't get to challenge it later
- Vagueness (1st Am't)
- reasonable person can't tell which speech is probibited or allowed
- Overbreadth (1st Am't)
- regulates more speech than the Constitution allows
- Fighting Words
- vague and overbroad (though Chaplinsky still good, SCOTUS hasn't upheld a fighting words conviction)
- Can symbolic speech be regulated?
- Only if an important interest unrelated to suppression of a message and impack on communication is no greater than necessary to achieve a gov't purpose
- Is anonymous speech protected?
- What about incitement of illegal activity? Is that speech protected?
- Only if you're the president. Heh. But no, not really.
- Test for obscenity
- (1) prurient interest (local/community std)
(2) patently offensive under the law defining it
(3) lack redeeming artistic, literary, political, scientific value (nat't std)
- What sorts of commercial speech is not protected?
- Ads for illegal activity or false/deceptive ads.
- Is government negligence enough for a deprivation of liberty or property?
- Must show that it was intentional or reckless; in emergency cases, only if it "shocks the conscience."
- Is profane and indecent speech protected?
- Yes, except for when it's on the broadcast media or at schools
- What is the required showing for defamation of a private individual when the matter is of public concern
- falsity + negligence, BUT falsity + actual malice to get punitive damages
- What is the required showing for defamation of a private individual?
- falsity + negligence will get ya punitive damages, too
- What about the media? Can they get into trouble for truthful reporting?
- No, so long as they didn't participate in any illegality; illegally gotten stuff ok to report on, so long as THEY didn't do the wrong.
- May the gov't regulate speech in public forums?
- ss required
regs needn't be least restrictive, and must leave open alternative places for speech
- Can the gov't close speech in non-public forums?
- No, but can regulate as long and reasonable and viewpoint neutral.
- What are the five non-public forums?
- military bases
areas outside prisons/jails
ad space on public buses
sidewalks on post office property
airports (literature ok, soliciting funding not ok)
- In order to meet the strict scrutiny to punish someone for membership in a group, what three things must be demonstrated?
- (1) affiliated w/ the group
(2) knowing of illegal activities
(3) specific intent to further those activities
- Can the gov't require disclosure of group membership?
- Not if it would chill assocation (NAACP)
- Are laws prohibiting discrimination in private groups ok?
- Yes, UNLESS they interfere with intimate association or expressive activity (BSA had anti-gay message, so discrim there was ok)
- Can the free exercise clause be used to challenge a neutral law of general applicability?
- no (peyote case)
- What is the test for finding a law constitutional under the establishment clause?
secular purpose for the law
effect must be to neither advance nor inhibit religion
no excessive entanglement with religion
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