Constitutional Law 1 Is the case Justiciable i Deciding whether the court could hear the case ii Ripeness must be an actual or immediate threat of harm Justiciable iii Abstention undecided state law issues that need to be figured out before we get to the constitutional questions Not Justiciable iv Mootness no actual case or controversy going on Not Justiciable v Political Questions do not answer questions before having a ripe case Not Justiciable vi Standing where there is some kind of harm and it is addressable by the court Justiciable i Separation of powers between legislative executive and judicial branch 1 Ex Executive branch is in charge of foreign policy legislative makes the law judicial 2 Constitutional Issue a Separation of Powers interprets the law b Scope of Federal Powers i Tax Spend Clause ii Commerce Clause 1 Congress is given the right to levy and raise taxes to spend it where they feel necessary 1 Congress is given the right to regulate interstate and foreign commerce c State Interference with the Federal System i Preemption 1 Supremacy Clause 2 Federal government s law is superior to state law 3 Ex Bankruptcy when you file for bankruptcy one of the things they look for is if you have been living in your home for less than 30 months the preemption is going to occur because you will only get the Federal Homestead exemption which is 50 000 dollars ii Dormant Commerce Clause 1 When Congress is silent about interstate and foreign commerce the states are allowed to regulate if two things occur a 1 Nondiscriminatory against out of state interests i Less Restricted Means Test is this the best and easiest way to do it Or is there a better way b 2 Creates an undue burden i Balancing Test balances state interest and interstate commerce iii Privileges Immunities Clause 1 Does Not apply to corporations or aliens 2 A person from one state cannot be discriminated against based on basic economic rights 3 Ex If a person from Florida goes to a hospital in New York the hospital has to take their insurance and treat them 3 Individual Rights State Action a Freedom of Speech Issue i Types 1 Commercial situations that could be suppressed if it is misleading or illegal 2 Political protected even if it is misleading or illegal a Ex fighting for marijuana laws 3 Obscenity I know it when I see it but I cannot describe it b Freedom of Speech Issue i Prior Restraint 1 Any restrictions in advance of publication a The government does not allow you to have your speech for one reason or another ii Two Different types of scenarios 1 License situation if the government s prior restraint is based on what you are saying 2 Content Neutral giving limited access to government facilities based off of not what you are saying but other factors a Ex Garbage reasons safety reasons security reasons iii Vagueness Over breadth 1 When you are going to ban languages you have to be precise a Ex FCC banning 7 words on the radio 2 Over breadth Cannot go beyond what is necessary Can only ban speech in a limited circumstance c Freedom of Speech Issue i Content Based or Content Neutral 1 Content Based a Strict Scrutiny Test gets applied to content based 2 Content Neutral a Add time place manner and forum and add that to the Strict Scrutiny Test b Ex A protest in front of Doak Stadium after the game being moved to another time because of how crowded the game is causing safety issues d Freedom of Religion Issue i Establishment Clause state cannot promote one religion over another 1 It is ok for the government to host a religious event if a Secular purpose b Secular effect c Causes no undue entanglements e Free Exercise Clause i Everyone gets a chance to practice their religion ii Smith Test courts look at the motivation behind the law get high f Equal Protection i We have to treat everyone the same ii Applies federally under the 5th Amendment iii Applies to the states under the 14th Amendment iv Test Levels 1 Ex Guys from New Mexico said it is in their religion to take a controlled substance and 1 Strict Scrutiny Test 1st Amendment and Fundamental Rights a Apply when the government has to prove the measure is necessary to further a compelling interest to no less restrictive alternative 2 Intermediate Scrutiny Test Age and Gender a The government has to prove that the measure is substantially related to an important interest i Ex 21 drinking age Age 18 for serving in the military 3 Rational Basics Test Economic and Social Welfare a The plaintiff has to prove the measure being challenged is not rationally related to any legitimate interest i Ex A school district decides to protect babies born to teenage mothers and set a plan that every teenager that is pregnant will be dropped from high school and reenrolled in a high school that has motherly classes 1 The government is not allowed to interfere with life liberty or property without a due g Due Process i Procedural process ii Substantive 1 Economic Regulation a Ex A school opens up next to a liquor store The liquor store most likely will not be able to stay open They were economically regulated out of business b Use rational basics test 2 Fundamental Rights a Cannot be taken away due to strict scrutiny test Administrative Agencies 1 Enabling Legislation passed by congress and a Must Contain 1 The Name Congress or Legislature must give the agency a name 2 Purpose Legislation will outline the purpose and why we need a particular agency 3 Function what type of functions do the agencies do 4 Powers give them the ability to move forward with their functions b Functions i Rulemaking the regulations They get the ability to create regulations Those regulations are finer tuning of the statutes 1 Done with a system called Notice and Comment how an agency adopts regulations a Notice of a Proposed Rule b Comment Period i Everyone gives input on the proposed rule c Final Rule i government will complete its study from the comment period ii will make its final rule and give a date when it will be announced ii Enforcement of Rules i Ex Immigration Officers enforce the law b Onsite inspections c Have the ability for search warrants d Have the ability to subpoena documents i Can obtain documents they wish to see iii Adjudication the interpreting of the rules 1 Prosecution of a Business a Agency must file a complaint b Negotiate after complaint is filed c Defendant might try a consent decree i Defendant pleads no lo contendre 1 Ex getting a parking ticket and deciding to pay it rather
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