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72 Cards in this Set
- Front
- Back
Federal Executive Power (foreign powers
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Foreign Powers
-Treaty Power -Executive Agreement -War and Foreign Relation Power: President has no power to declare war but may act militarily in actual hostilities |
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Federal Executive Power (Domestic Powers)
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a. Appointment Power
(1) Ambassadors (2) Federal Judges (3) Officers of the US b. Removal Power c. Veto Power d. Chief Executive Power e. Executive Privilege and Immunity |
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Chief Executive Power
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1) if president acts with express or implied congressional authority, his actions are at its highest
2) if president acts where congress is silent, his action will be upheld unless it usurps another branch 3) if president acts against congressional will, he has little authority |
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Federalism Topics
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i) Preemption
ii) Dormance Commerce Clause iii) Privileges and Immunities Clauses |
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Preemption
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the Supremacy Clause of Article VI provides that the
Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. |
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Types of Preemption
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Express
Implied: Impedance Clear intent |
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Express Preemption
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if a federal statute expressly says that federal
law is exclusive in an area, state and local laws are preempted. |
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Implied Preemption
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Implied preemption - if federal and state laws are mutually
exclusive, federal law preempts state law. |
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Impedance Preemption
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If state law impedes the achievement of a federal objective, federal
law preempts state law. |
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Clear intent preemption
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If Congress evidences a clear intent to preempt state law, federal
law preempts state law. AKA - Occupy Field |
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Dormant Commerce Clause
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(Negative implications of the commerce
clause) State laws that place an undue burden on interstate commerce are unconstitutional. |
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(DCC) If the state law discriminates against out-of-state persons and is an undue burden on interstate commerce, it is invalid UNLESS:
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1) The state is a Market Participant;
2) The law furthers an important, noneconomic state interest and there are nondiscriminatory alternatives; or 3) The law favors government performing traditional government functions. |
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(DCC) If the state law does not discriminate, then ask if it burdens
interstate commerce? |
1) If it does, then it is invalid unless the state’s interest in the
regulation outweighs the burden of interstate commerce. 2) If it does not burden ISC, then it is valid. |
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Privileges & Immunities Clauses (Art. 4)
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Article IV - State laws that deny out-of-state persons privileges and
immunities accorded to in-state persons violate the provision. 1) If the state law discriminates against out-of-state persons with regard to civil liberties or important economic activities, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose 2) If the law does not discriminate, Article IV does not apply. |
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Privileges & Immunities Clauses (14 Am.)
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Fourteenth Amendment was meant to protect citizens from their
own state, but is used only for the right to travel. |
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INDIVIDUAL RIGHTS - issues
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PRE- state action
i) First Amendment Speech ii) Freedom of Association iii) First Amendment Religion iv) Equal Protection v) Substantive Due Process vi) Procedural Due Process vii) Economic liberties |
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State Action
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always analyze before raising individual rights
State Action: State action includes official government conduct and private conduct where there is significant governmental involvement with the private party Private party actions that are state action: 1. public function: traditionally the exclusive prerogative of the state 2. entanglement: significant state involvement affirmatively facilitating that private action (eg, entwinement) |
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First Amendment Speech Issues
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i) Prior Restraint
ii) Vagueness iii) Overbreadth iv) Content Regulation or Content Neutral |
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Prior Restraint
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A prior restraint restricts speech before it occurs, rather than punish it afterwards. The government must show some special societal harm would result otherwise
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What is required for a prior restraint to be valid
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To be valid, a system for prior restraint must provide the following procedural safeguards:
1) Standards must be narrowly drawn, reasonable, and definite; 2) Injunction must promptly be sought; and 3) There must be prompt and final determination of the validity of the restraint. |
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Vagueness (free speech)
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Vagueness – Reasonable person is not given reasonable notice of what is
prohibited. |
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Overbreadth
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Overbreadth – Regulates both protected and unprotected speech.
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[Valid] Content Regulations
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1) Incitement of illegal activity
2) Obscenity 3) Commercial speech 4) Defamation – see Torts |
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Incitement of illegal activity (content regulations)
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a) Speech is directed to cause activity
b) illegal activity is imminent |
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Obscenity (content regulations)
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a) appeals to prurient interest
b) patently offensive c) lacks literary, artistic, political or scientific value. |
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Commercial speech (content regulations)
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a) Illegal, false and deceptive ads not protected.
b) Intermediate scrutiny |
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Content Neutral Regulations- time, place and manner restrictions
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1) Public forums and designated public forums
2) limited public and non-public forums 3) Private Forums 4) symbolic speech |
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Public forums and designated public forums (content neutral regulations)
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a) Government required to make (these forums) available for speech
or as designated to be open for speech. b) Regulations must be: i) content neutral, ii) narrowly tailored to serve an important government interest, AND iii) leave alternative places for communication. |
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Limited Public and Non-Public Forums
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Regulations must be:
i) reasonable (Rational Basis Review); and ii) viewpoint neutral. |
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Private property
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govt may adopt reasonable regulations to limit access to private
property for speech and assembly purposes |
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Symbolic Speech
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Government can regulate if important state interest unrelated to suppression of message and burden no greater than necessary
definition: actions that purposefully and discernibly convey a particular message or statement to those viewing it (burning flag, burning draft cards) |
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Freedom of Association
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Freedom of Association - Government may not prohibit or punish group membership unless the law meets strict scrutiny
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First Amendment Religious Issues
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Free Exercise Clause
Establishment Clause |
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Free Exercise Clause
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Government may not punish (deny benefit or impose burden) on the basis of religious beliefs as opposed to conduct.
Strict scrutiny |
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Establishment Clause
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Analysis:
Is there a sect preference on the face of the regulation? If yes, then apply strict scrutiny test. If no, then apply the 3 prong "Lemon" test |
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"Lemon Test"
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1). It must serve a secular purpose;
2). Its primary effects must not advance or inhibit religion; and 3). It must not create excessive govtal entanglement with a religious administration or bureaucracy |
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Approach to religious issues
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If you raise the establishment clause you should always raise the free exercise clause and vice versa
(except for taxpayer standing-establishment clause is likely the main issue here) |
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Equal Protection Clause
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Equal protection is derived from the 14th amendment, and therefore only applies to the states.
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Equal Protection (intentional discrimination)
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Proving intentional discrimination (BOP on P):
1. law is discriminatory on its face; 2. patently discriminatory application of facially neutral law; or 3. prove discriminatory motive behind law or action NOTE: negligent behavior (NB) does not give rise to EP claim |
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What is the difference between equal protection challenges brought against the federal government and state government?
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Federal
-Brought under the DP clause of the 5th amendment State (or local) -Brought under the EP clause of the 14th amendment NOTE: The analysis is identical, just the source changes. |
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Equal Protection Analysis
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1) Classification
2) Scrutiny |
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Classification (EP)
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1) Fundamental Interest = SS
2) Suspect = SS 3) Quasi Suspect = IS 4) Other Classes = RB |
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Fundamental Interest (EP)
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1st Amendment, Travel, Voting... for example
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Suspect (EP)
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NORA: Race, Alienage or National Origin
Statute Must Be: a) Facially discriminatory; OR b) Facially neutral but has discriminatory impact and intent. Scrutiny: STRICT |
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Quasi Suspect (EP)
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SIC: Sex (Gender), Illegitimacy, and Undocumented
alien children Statute must be: a) Facially discriminatory; OR b) Facially neutral but has discriminatory impact and intent Scrutiny: INTERMEDIATE |
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Other Classes (EP)
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WADS: Wealth, Age, Disability, and Sexual Orientation
***Alienage related to self government and the democratic process or congressional regulation gets downgraded Scrutiny: RATIONAL BASIS |
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Scrutiny
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Strict Scrutiny
Intermediate Scrutiny Rational Basis |
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Strict Scrutiny
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1) law necessary to achieve
2) compelling government purpose |
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Intermediate Scrutiny
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1) Law substantially related to achieve
2) important government purpose |
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Rational Basis
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1) law is rationally related to achieve
2) legitimate government interest |
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What is the difference between procedural and substantive due process?
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(1) SDP
Was there an adequate reason to take away the right? (2) PDP Was the procedure fair? Typically, whether notice and a hearing was required 5th and 14th Amendment |
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Application of Substantive Due Process
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IF rights are fundamental: courts generally apply SS
IF rights are non-findamental: courts apply RBR |
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When to apply Rational Basis test for SDP:
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Rational Basis:
1) Applies to all non-fundamental rights- typically economic and social regulations. 2) Is the law rationally related to a legitimate government purpose? The burden is on the challenger to show the law is not rationally related to a legitimate government purpose. |
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When to apply Strict Scrutiny test for SDP?
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Applies to all fundamental rights
a) Right to interstate travel b) Right to vote c) Right to privacy: i) contraception, marriage, procreation, child rearing re: choice of private education, and familial relations (right to stay/live together). |
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Right to Interstate Travel (SDP)
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Usually tested with residency waiting reqs for benefits
i. If long periods and life necessities, then struck down on strict scrutiny ii. If short period for other than fundamental rights, then may be upheld |
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Right to vote (SDP)
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a. Federal Election districts: one person, one vote
b. State/local elections: no unjustifiably large disparities in number of voters per district |
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Abortion (SDP)
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Abortion is treated different than everything else under Substantive Due Process
Undue Burden Test: i. Before viability: regulation can’t place undue burden on right to abortion ii. After viability: may prohibit all abortions unless necessary to protect the woman’s life or health iii. Viability = fetus lives outside womb WITH medical assistance |
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What is an undue burden (Abortion)
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Undue burdens
i. Spousal notification; ban all partial birth Not Undue burden i. 24 hr waiting; only MD can do it; parental notification (but must have judicial bypass textually included in statute) |
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Procedural Due Process
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Use when: Deprivation of life, liberty or property
liberty= significant freedom secured by constitution or statute property= entitlement to a continued receipt of a benefit |
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Procedural Due Process (government standard)
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Use when the governments action is:
i) reckless; ii) intentional |
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Procedural Due Process Analysis
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Analysis:
1. is this a liberty or property interest for which process is due? 2. if yes, then what process is due? |
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Liberty (PDP)
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1. freedom from bodily injury and restraint, AND
2. freedom to exercise fundamental rights that have been impaired by (a) intentional government action [no DP for negligent acts] (i) NB: defamation: gives rise to PDP claim if intentional govt act is involved |
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Property (PDP)
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1. land, personal property, and
2. any existing entitlement to a specific benefit under state or federal law for which there is a a) legitimate expection that the benefit will continue |
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What process to apply:
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1. notice and
2. fair hearing before 3. an unbiased decisionmaker |
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When applying this process what should be balanced?
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Use Mathews balancing test for type and timing:
Balance the... 1. Importance of the interest to the P and 2. The ability of additional procedures to increase the accuracy of the fact finding ...against 3. Government interest in administrative efficiency and cost |
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Application of Mathews to 3 scenarios
1. Life necessity 2. Public danger 3. Public employee |
1. if benefit is a life necessity (eg, welfare):
--- likely need pre deprivation trial-type hearing 2. if public danger is involved (eg, violent public school student gets suspended): --- no pre-deprivation hearing needed 3. Public employees: ---get notice and pre-termination response but full hearing only after termination |
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Property Rights (Economic Liberties)
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Takings Clause: 5th amend (feds) and 14th Amend (states)
Takings Clause: government may take private property for public use if it pays just compensation |
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Takings Elements
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Elements
1. A taking of private property for 2. Public use --a. includes private property given to private party so long as public benefit to that exchange 3. Must have just compensation The more drastic the reduction in economic value, the more likely a taking Rational Basis Analysis |
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Possessory Takings
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1. Possessory taking: easements, abolishing inheritance, etc
---a. exception: health or safety emergency |
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Regulatory Taking
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2. Regulatory taking
--a. Denial of all economic value of land to owner [if some viable use left, no taking] --b. conditional permits: governments demanded exaction must have a essential nexus with legit govt purpose that is roughly proportional to burden on society --c. test when economic use of land remains: (i). what social goals are promoted; (ii). what is the diminution in value to owner; and (iii). what are owner's reasonable investment-backed expectations regarding the property |
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Takings
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3. Remedy
--a. pay compensation OR return property pay interim damages |
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Contracts Clause
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i. State and local governmental regulations cannot
(1). substantially interfere with the obligations of (2). existing contracts (ie, no retroactive impairment permitted) ii. Limits (1). N/A to feds, judicial decisions iii. Judcial Review (1). private contracts: intermediate scrutiny (2). public contracts: strict scrutiny |