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C L B R O: The Federal Judicial Power
C L B R O: The Federal Judicial Power
1. Art. III requires that federal courts may only try cases and controversies.
a. Supreme Court may not issue advisory opinions.
2. Standing
a. Injury
1) must allege and prove that he or she has been injured or imminently will be injured.
2) Includes violations of C/L, statutory, or constitutional rights.
3) May include aesthetic or environmental injuries.
4) Economic loss is the best injury.
5) ’s may only assert injuries that they personally have suffered.
6) ’s seeking injunctive or declaratory relief must show a likelihood of future harm.
d. No Generalized Grievances
1) may not sue solely as a “taxpayer” or a “citizen” interested in having the gov’t follow
the law.
2) Establishment Clause Exception
a) Taxpayers may challenge gov’t spending as violating the Establishment Clause
against religion.
i) Ex: If the gov’t gives $ directly to religious schools.
b) Taxpayer may not challenge a gov’t grant of land as violating the Establishment
Clause (only $).
3. Ripeness
a. Generally court may not review a statute until it is has been violated.
b. Factors
1) Hardship that will be suffered w/o pre-enforcement review.
2) Fitness of the issues and record for judicial review.
c. Ex: Drug companies were allowed to challenge FDA reg that required them to add
expensive labels to drugs.
4. Mootness
a. If ’s injury ends after the lawsuit is filed, the suit is dismissed as moot.
b. Exceptions
1) Wrong capable of repetition but evading review.
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2) Voluntary cessation.
3) Class action suits.
1. Writ of Certiorari
a. Virtually all cases come to the U.S. Supreme Court by writ of certiorari.
1) All cases from State courts (discretionary review).
2) All cases from U.S. Court of Appeals (discretionary review).
3) Decisions of three-judge district courts (non-discretionary review).
4) Suits between State gov’ts (original and exclusive jurisdiction).
C. Sovereign Immunity
1. Lower federal courts and state courts may not hear suits against state governments.
a. 11th Amend. bars naming a state as a in federal court.
b. Sovereign immunity bars suing a state in state court (without the state’s consent).
2. Exceptions
a. Waived by state gov’t.
b. States may be sued pursuant to federal laws adopted under 14 th Amend.
1) Ex: Civil Rights Act adopted under EPC.
2) Feds may not authorize suits under other portions of the Constitution.
c. Federal gov’t may sue state gov’ts.
d. Suits against state officers.
1) Ex: If a law is unconstitutional.
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1) Washington, D.C.
2) Indians.
3) Military.
4) Federal Land.
4. Commerce Clause
a. Channels of interstate commerce.
b. Instrumentalities or persons or things in interstate commerce.
c. Activities that have a substantial effect on interstate commerce.
1) Economic impact.
2) If area being regulated is non-economic, then substantial effect can not be based on
cumulative impact (i.e, violence against women).
d. Ex: all forms of intercourse that go across state lines, trucks, phones, the Internet.
B. Delegation of Powers
3. Congress may not delegate executive power to itself or its officers (MBE).
A. Foreign Policy
1. Treaties
a. Negotiated by the Pres. and effective when ratified by the Senate.
2. Executive Agreements
a. Negotiated by the Pres. and effective when signed by the Pres. and the head of a foreign
country.
b. Do not need to be ratified by the Senate.
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TREATIES AND EXECUTIVE AGREEMENTS
B. Domestic Affairs
2. Removal Power
a. Unless limited by statute, President may fire any executive branch officer.
b. Congress may limit removal to good cause when independence from the Pres. is
desirable.
4. Immunity
a. Pres. has absolute immunity to civil suits for $ damages for any actions while in office.
b. Immunity does not apply to actions before taking office.
5. Executive Privilege
a. Executive privilege covers presidential papers and conversations.
b. Privilege yields to other important governmental interests.
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IV. Federalism
1. Supremacy Clause states Constitution and federal laws are supreme law of the land.
2. Express Preemption
a. Federal law explicitly states that the federal law is exclusive.
3. Implied Preemption
a. If federal law and state law are mutually exclusive, state law is preempted.
1) If it is impossible to comply w/ both the State and Federal laws.
2) State may set stricter environmental standards than the Federal law, unless
prohibited.
b. If state law impedes the achievement of a federal objective, federal law preempts state
law.
c. If Congress evidences a clear intent (based on legislative history) to preempt state law.
B. Dormant Commerce Clause and the Privileges & Immunities Clause of Article IV
2. Discrimination
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DORMANT COMMERCE CLAUSE/PRIVILEGES & IMMUNITIES CLAUSE OF ART. IV
YES NO
Violates the Dormant Violates the Privileges & If the gov’t is burdening Privileges & Immunities
Commerce Clause if it Immunities Clause of Art. interstate commerce, Clause of Art. IV is
places a burden on IV if it discriminates balance the benefit to inapplicable.
interstate commerce against individuals w/ the state vs. the burden
unless it is necessary to regard to important on interstate commerce
achieve an important economic activities or (if the benefit exceeds
government purpose. civil liberties unless it is the burden, the law is
necessary to achieve an upheld; if the burden
Two Exceptions: important gov’t purpose. exceeds the benefit, the
(1) Congressional law is struck down).
approval of
discrimination.
(2) Market participant
exception.
1) Does not require discrimination vs. out-of- 1) Requires discrimination vs. out-of-staters in
staters in order to apply. order to apply.
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V. The Structure of the Constitution’s Protections of Individual Liberties
C. Levels of Scrutiny:
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VI. Due Process
1. Is there an adequate reason for the gov’t taking a person’s life, liberty, or property?
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c. Interference w/ government Ks gets Strict Scrutiny.
d. Ex Post Facto Clause
1) Retroactive criminal liability is unconstitutional under the Ex Post Facto Clause.
2) Retroactive civil liability gets Rational Basis Review.
3) Bill of Attainder directs punishment of specific person w/o a trial (unconstitutional).
4) Ex Post Facto Clause is a common wrong choice on a Contracts Clause MBE ?.
A. Approach
2. Classification
a. Classification exists on the face of the law or
b. If facially neutral, demonstrate that the law has
1) Discriminatory impact and
2) Discriminatory intent
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3) Example: Discriminatory use of peremptory challenges based on race denies equal
protection
D. Gender Classifications
3. Classification
a. Classification exists on the face of the law or
b. If facially neutral, demonstrate that the law has
1) Discriminatory impact and
2) Discriminatory intent
E. Alienage Classifications
3. Rational basis applies when Congress discriminates against aliens (they have the sole power
to regulate)
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F. Discrimination against Non-Marital Children
2. Laws that deny a benefit to all non-marital children, but grant to all marital children are
unconstitutional
1. Right to Travel
a. Laws that prevent people from moving into a state must meet strict scrutiny
b. Durational residency requirements must meet strict scrutiny
c. Rational basis applies to restrictions on foreign travel
2. Right to Vote
a. Laws that deny some citizens the right to vote get strict scrutiny
b. No property ownership conditions allowed
c. One-person-one-vote applies to all state and local elections
d. Voter approval does not justify a deviation from one-person-one-vote requirement
e. At large elections are OK unless discriminatory purpose exists
f. Use of race in drawing election district lines to benefit minorities must meet strict scrutiny
g. Counting uncounted votes without standards in a presidential election violates equal
protection (Bush v. Gore)
h. Maximum residency requirement for voting is 50 days
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EQUAL PROTECTION CHART
b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact
Law must be necessary to achieve a Law must be substantially related to an Law must be rationally related to a
compelling government purpose. important government purpose. legitimate government interest
3. Prior Restraints
a. Court orders suppressing speech before it occurs must meet Strict Scrutiny.
1) Collateral Bar Order: court orders must be complied w/ until they are overturned.
2) Gag Orders are always constitutional.
b. Licensing Schemes
1) Must be an important reason and clear criteria.
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5. Symbolic Speech
a. Can be regulated if gov’t has important interest unrelated to suppression of ideas and if
impact is no greater than necessary to achieve goal.
b. Examples
1) Flag burning is protected.
2) Draft card burning is not protected.
3) Nude dancing is not protected.
4) Burning a cross or painting a swastika are protected.
5) Penalty enhances for hate crimes are constitutional.
6) Election Restrictions
a) Contribution limits are constitutional.
b) Expenditure limits are unconstitutional.
3. Commercial Speech
a. False and deceptive ads are not protected.
b. Commercial speech that risks deception can be prohibited.
1) Professionals may be stopped from using a trade name.
2) Attorneys may be stopped from in-person, face-to-face solicitation.
a) Covers ambulance chasers.
b) Does not cover an offer for free services.
c) Does not cover letter solicitation.
3) Accountants may solicit any way they want (including face-to-face).
c. Other commercial speech is subject to Intermediate Scrutiny.
1) Gov’t regulation of commercial speech is narrowly tailored but does not have to be
the least restrictive means necessary.
4. Defamation
a. Because of Free Speech, a ’s right to recover for defamation may be limited.
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DEFAMATION
2. Non-Public Forums
a. Subject to rational basis review
b. Examples
1) Military bases.
2) Prison grounds.
3) City bus ad space.
4) Sidewalks on post office property.
5) Airports (may distribute literature only).
6) Debates on gov’t owned TV station.
D. Freedom of Association
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3. Laws that require disclosure of group membership which would chill association get strict
scrutiny.
E. Freedom of Religion
2. Establishment Clause
a. Lemon Test
1) Secular purpose for the law.
2) Effect must be neither to endorse nor inhibit religion.
3) No excessive entanglement w/ religion.
b. Examples
1) Law requiring posting of 10 Commandments in schools is unconstitutional.
2) Nativity scenes must be accompanied by secular counterpart and counterparts from
other religions.
3) Gov’t may not give cash $ directly to religious institutions or schools.
c. Laws discriminating among religious speech or religions are subject to strict scrutiny.
d. Schools
1) Gov’t sponsored religious activity in public schools is unconstitutional.
2) Voluntary school prayer is unconstitutional.
3) Religious groups must have the same access to school facilities as non-religious
groups.
4) Gov’t may give assistance (supplies) but not $ to religious schools as long as it is not
used for religious instruction.
5) Gov’t may provide parents w/ school vouchers; parents can then choose to use them
at religious schools.
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