Bar Review -- Constitutional Law

Front 1

Justiciability Requirements

Back 1

- Standing
- Ripeness
- Mootness
- Political Question Doctrine

Front 2

Standing

Back 2

- Injury – Π must actually or imminently injured.
- Causation and Redressability -- favorable court result would remedy injury.
- No third party standing
- No generalized grievances

Front 3

Third Party Standing Exceptions

Back 3

- Close relationship b/w Π and third party.
- OR some reason to believe the third party can’t come to court to protect itself.
- Association standing

Front 4

Association standing:

Back 4

- Member must have standing to sue individually
- Germaine to organization’s purpose
- Neither claim nor relief requires participation of individual members

Front 5

Mootness Exceptions

Back 5

- Wrong capable of repetition but evading review
- Voluntary cessation – defendant voluntarily halts the offending practice, but is free to resume it at any time
- Class Action suits – if named plaintiff’s claim is moot, class action not dismissed so long as one member of class has an ongoing injury.

Front 6

Political Questions Not Heard by Courts

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- Republican Form of Government Clause
- Challenges to President’s foreign policy
- Challenges to the impeachment process
- Challenges to partisan gerrymandering

Front 7

Supreme Court Review

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- Writ of Certiorari -- complete discretion to hear cases on writ of cert.
- Original and Exclusive Jurisdiction – suits b/w state governments.
- Final Judgment Rule – all state or federal appeals must be tried before going to Supreme Court.
- No review for independent and adequate state court decisions.

Front 8

Sovereign Immunity Exceptions

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- Express Waiver of immunity. No implied waiver.
- State sued pursuant to federal laws enacted under Section 5 of Fourteenth Amendment.
- Federal government suing state governments.
- Suits against state officer individually – injunctive relief and personal financial liability.

Front 9

Congressional Police Power

Back 9

- No inherent police power, must be express or implied.
- “M.I.L.D.”
o Military
o Indian Reservations
o [Federal] Lands and territories
o District of Columbia

Front 10

Commerce Power

Back 10

- Channels of interstate commerce
- Instrumentalities of interstate commerce
- Persons and things within interstate commerce
- Economic activities having a substantial effect in interstate commerce
- Intrastate economic activities that, in the aggregate, substantially affects interstate commerce.

Front 11

Tenth Amendment limit on Congressional Power

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- Congress cannot compel state or legislative action.
o Can induce state actions by putting strings on grants.
- Congress may prohibit harmful commercial activity by state governments.

Front 12

Inducements to state action, requirements for strings on grants

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- Strings must be expressly stated AND
- Relate to the purpose of the program.

Front 13

Congress’ power under Section 5 of the Fourteenth Amendment

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- Congress may act to prevent violations of rights already recognized by the courts.
- Congress may enact laws Proportional and Congruent to remedying constitutional violations.

Front 14

Military Courts, Tribunals for Citizens and Enemies

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- Regular federal courts have no power to review court-martial proceedings.
- Enemy Civilians and Soldiers – may be tried by military courts. Congress cannot deny all habeas corpus review.
- American Soldiers – military courts have jurisdiction over all offenses. Must be armed forces member at time of offense AND when charged.
- American civilians – may be tried under martial law only if actual warfare forces fed courts to shut down.
- Citizen Enemy Combatants – citizen held in U.S. as an “enemy combatant” must be given Due Process.

Front 15

Executive Powers – Foreign Policy

Back 15

- Treaties – President has power to negotiate treaties, effective when ratified by Congress.
- Executive Agreements – signed by President and head of foreign nation. No Congressional approval required.
- Commander in Chief – power to use American troops in foreign country. Limited by Congress’ spending power

Front 16

Treaties and Executive Agreements – conflicts with fed and state laws

Back 16

- Treaties
o Conflict with federal law – the last in time prevails.
o Conflict with state law – treaty prevails.
- Executive Agreements
o Fed conflict – fed law prevails
o State conflict – executive agreement prevails

Front 17

Executive Powers – Domestic (generally)

Back 17

- Appointment power
- Removal power
- Power to pardon
- Veto power
- Executive privilege

Front 18

Executive Appointment power

Back 18

- Power to appoint all ambassadors, federal judges, and officers of the United States.
- Congress may vest appointment of “inferior officers” in the President, the heads of departments, or the lower federal courts.
o “Inferior officer” – those that can be fired by officers of the U.S.

Front 19

The Removal Power and Congressional Limits

Back 19

- President may fire any executive branch office.
- For Congress to limit removal:
o Must be an office where independence from the President is desirable. (e.g. Special Prosecutor of Presidential wrongs).
o Congress cannot prohibit removal outright; can only limit removal for good cause.

Front 20

Executive Power to Pardon

Back 20

- President has power to pardon all accused or convicted of federal crimes.
o Cannot pardon those convicted of state crimes (Governors’ job).
o Cannot pardon for civil liability, only criminal.
- Exception to pardon power: where there has been an impeachment, cannot pardon offenses leading to impeachment.

Front 21

Veto Power

Back 21

- President may veto an act of Congress, congress may override by 2/3 vote.
- “Pocket Veto” – President has 10 days to exercise his veto power, otherwise:
o If Congress is not in session, the bill s auto-vetoed.
o If Congress is in session, the bill becomes law.
- Line Item Veto is unconstitutional.

Front 22

Executive Privilege and Immunity

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- Protects presidential papers and conversations. National security secrets given great deference by courts.
o Exception – criminal proceedings where prosecution demonstrates need for such information.
- President is immune from civil liability for all action while in office.
o President does NOT have immunity for acts occurring prior to taking office.

Front 23

Zones of Executive Power

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- Highest – when the President acts with express or implied authority of Congress.
- Where congress is silent, the President’s acts allowed, unless usurps power of another branch.
- Lowest – when the President acts against the express will of Congress.

Front 24

Federal Preemption of State Laws

Back 24

- Supremacy Clause of Art. IV says the Constitution and laws made under it are the supreme law of the land.
- Express Preemption – if Fed law explicitly provides that Fed law is exclusive in a field, then state and local laws are preempted.
- Implied Preemption – 3 zones

Front 25

Implied Preemption of State Laws

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- Conflict b/w state and federal law – fed law wins and state law invalidated.
o Exception – environmental laws. State standards may be stricter than fed law.
- State prevents achievement of federal objective – state law invalidated even if purpose is not to frustrate fed law.
- Congressional intent – if Congress evidences a clear intent to preempt state and local laws, fed law preempts them.

Front 26

Full Faith & Credit Clause applicability

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- Applies only if:
o The court that rendered the judgment had personal and subject matter jurisdiction
o The judgment was on the merits
o AND the judgment is final.

Front 27

Inter-sovereign Litigation

Back 27

- Fed vs. State -- Fed may sue a state without state’s consent.
- State vs. Fed -- A state can NOT sue the fed government without the fed’s consent.
- State vs. Fed Officer – deemed to be brought against the U.S. if judgment would be paid out of fed treasury. If Officer acted ultra vires (beyond his authority), relief against the individual can be granted.
- State vs. State – may sue without the latter’s consent. Supreme Court has exclusive original jurisdiction.

Front 28

Federal Taxation/Regulation of State Government

Back 28

- Tax or Regulation applying to both state and private entities – Valid
- Tax applying only to state – may be limited by Tenth Amendment
o Exceptions: Restrictions against states’ violation of civil rights, spending power conditions (strings attached to grants).

Front 29

Article IV – Privileges and Immunities Clause

Back 29

- Prohibits discrimination by a state against nonresidents. Corporations and aliens not protected.
- Only “fundamental rights” protected – commercial activities and civil liberties.
- “Substantial Justification” Exception: state must show that nonresidents either cause or are part of the problem and that there are “no less restrictive means” to solve it.

Front 30

State Regulation of Interstate Commerce (Dormant Commerce Clause)

Back 30

- Congress may permit state regulations that otherwise conflict with the Commerce Clause.
- “Dormant Commerce Clause” -- Absent Congressional action, state may regulate local aspects of interstate commerce provided it does not (1) discriminate or (2) unduly burden interstate commerce.

Front 31

State Regulations that Discriminate against Interstate Commerce

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- Almost always invalid.
- Exception: Important noneconomic state interest and no reasonable discriminatory alternatives.
- Exception: State as “market participant.” E.g. in-state tuition vs. out-of-state tuition.

Front 32

Nondiscriminatory State Laws that Burden Interstate Commerce (Balancing Test)

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- Such laws will be valid unless the burden outweighs the benefit.

Front 33

State Taxation on Interstate Commerce

Back 33

- Discriminatory Taxes – violate the commerce Clause unless authorized by Congress.
- Nondiscriminatory Taxes – Valid if
o Activity has a “Substantial Nexus” to the taxing state.
o The tax must be fairly apportioned [to percent of business done within the state].
o AND must have a fair relationship to the services or benefits w/in the state.

Front 34

Ad Valorem Property Taxes

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- Taxes on commodities in course of interstate commerce EXEMPT from state taxation.
- Taxes on Instrumentalities Used to Transport Goods Interstate. Ask:
o Whether the instrumentalities acquired a “taxable situs” w/in the state
o AND whether the value has been “properly apportioned” according to amount of contacts w/in the state.

Front 35

Requirements for State “doing business” Taxes

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- The activity taxed must have a “substantial nexus” to the taxing state
- The tax must be “fairly apportioned”
- The tax must “not discriminate” against interstate commerce
- AND the tax must “fairly relate to services provided” by the state.

Front 36

Bill of Rights provisions NOT Applicable to States

Back 36

- The Second Amendment
- The Third Amendment
- The Fifth Amendment prohibition on criminal trials w/out a grand jury indictment
- The Seventh Amendment’s right to jury trial in civil cases

Front 37

“State Action” Requirement Applied to Private Entities

Back 37

- Private entity performs a “public function” that is traditionally and exclusively performed by the government.
- The Entanglement Exception – government affirmatively facilitates, encourages, or authorizes acts of private discrimination.

Front 38

Procedural Due Process, generally

Back 38

- A fair process is required for a government agency to individually take a person’s “life, liberty, or property.”
- Liberty – includes the right to engage in gainful employment.
- Property – occurs if there is an entitlement (reasonable expectation to continue receiving a benefit) and that entitlement is not fulfilled.

Front 39

Type of Process Required for a “Taking”

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3-part balancing test:
- The importance of the interest to the individual
- The value of specific procedural safeguards
- The government interest in fiscal and administrative efficiency (saving money).

Front 40

When Regulation Amounts to a “Taking”

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- Denial of ALL economic benefits of land = taking.
- Temporary denials of all economic use – Court will weigh relevant circumstances to determine whether “fairness and justice” require just compensation.
- Decreasing Economic Value – Court asks whether economic impact of the regulation on claimant substantially interferes with distinct, investment-backed expectations of the claimant.

Front 41

“Just Compensation” Remedy for Government Taking

Back 41

If regulation amounts to a taking, government must:
- Pay the property owner just compensation for the property
- OR terminate the regulation and pay owner for damages that occurred while the regulation was in effect.
- “Just compensation” measured by loss to the owner, not gain to the taker. Property worthless to owner gets no compensation.

Front 42

“Rational Basis” language

Back 42

- “Law is upheld if it is rationally related to a legitimate government purpose.”
- Challenger has the burden of proof.
- Applies to all non-suspect classifications: age, disability, poverty etc.

Front 43

“Intermediate Scrutiny” language

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- “Law is upheld if it is substantially related to an important government purpose.”
- Government has the burden of proof

Front 44

“Strict Scrutiny” language

Back 44

- “Law is upheld if it is necessary to achieve a compelling government purpose.”
- Government has burden of proof that the law is the “least restrictive alternative.”

Front 45

Difference b/w Substantive Due Process and Equal Protection

Back 45

- Substantive Due Process is implicated when a fundamental right is limited as to all persons.
- Equal Protection is implicated when the law treats a person or class of persons differently from others.

Front 46

Fundamental Rights of Substantive Due Process

Back 46

- Interstate travel
- Privacy (many subparts)
- Voting
- First Amendment rights.

Front 47

Privacy Rights Protected by Substantive Due Process

Back 47

- Marriage
- Procreation
- Custody of one’s child
- Keeping the family together
- Control one’s child’s upbringing
- Purchase and use of contraceptives
- Abortion (special test)
- Private consensual homosexual activity
- private possession of obscene reading material
- Refusal of medical care

Front 48

Proving Discriminatory Classification

Back 48

May prove government intent to discriminate by:
- A law that is discriminatory on its face
- A discriminatory application of a facially neutral law; or
- A discriminatory motive behind the law.

Front 49

Suspect Classifications and scrutiny

Back 49

- Race – strict scrutiny
- National Origin – strict scrutiny
- Documented Aliens – fed classification valid so long as not arbitrary and unreasonable. State classifications get strict scrutiny.

Front 50

One-Person One-Vote Principle and exceptions

Back 50

- Applies whenever government of any level decides to select a governmental body by popular election from individual districts.
- States must use “almost exact mathematical equality” when drawing congressional districts w/in the state. Congress needn’t be precise when apportioning congresspersons to each state.
- Exception: n/a to appointed officials and officials elected “at large” – all of voters elect all offices being elected.
- Exception: n/a to special purpose elections – for officials who do not exercise “normal government authority” e.g. water shortage district.

Front 51

Abortion analysis

Back 51

- Pre-viability – “Undue Burden” – states may adopt regulations so long as they do not place an undue burden or substantial obstacle on a woman’s right to an abortion.
- Post-viability – May prohibit abortion unless woman’s health or safety is threatened.
- No government obligation to finance abortions.

Front 52

Right to Refuse Medical Care – 3-part Holding

Back 52

- Competent adults have a right to refuse medical care, even life-saving medical care.
- A state may require clear and convincing evidence that a person wanted treatment terminated, before it is ended.
- A state may prevent family members from terminating treatment for another.
- NB: No right to physician-assisted suicide.

Front 53

Content-Based and Content-Neutral Restrictions vs. Viewpoint-Based Restrictions

Back 53

- Content Based Restrictions – get strict scrutiny. Application of the law depends on the topic of the message.
- Content-Neutral Restrictions – get intermediate scrutiny, must advance important, non-speech-suppression interests and must not burden substantially more speech than necessary.
- Viewpoint-Based Restrictions – application of the law depends on the ideology of the message.

Front 54

Overbreadth and Vagueness

Back 54

- Overbroad Regulation – burdens substantially more speech than necessary for its legitimate goal. E.g. banning ALL First Amendment activity in an airport.
- Vague Regulation – similar to criminal law, when a regulation fails to give persons reasonable notice of what is prohibited. E.g. “no lewd speech.”

Front 55

Time, Place and Manner Restrictions

Back 55

- Public Forums: regulation ok if (1) is content neutral; (2) is narrowly tailored to serve a “significant” government interest; and (3) leaves open alternative channels of communication.
- Limited Public Forums and Nonpublic Forums: Less restrictive on gov. Regulation valid if it is (1) viewpoint neutral; and (2) reasonably related to a “legitimate” government purpose.

Front 56

Unprotected Categories of Speech, generally

Back 56

- Incitement – 2 factor test.
- Fighting Words – true threats. NB: almost every law regulating fighting words fails on vagueness and overbreadth grounds.
- Obscenity – multi-factor test.
- Defamation
- Deceptive and illegal activity ads in commercial speech

Front 57

Incitement Test

Back 57

- Speech that
(1) is likely to produce imminent lawless action and
(2) is intended to bring such a result.

Front 58

Obscenity Test

Back 58

The materials must:
- Appeal to the prurient interest (applying contemporary community values)
- Be patently offensive under the law prohibiting obscenity
- Taken as a whole, lacks serious redeeming artistic, literary, political, or scientific value (applying a national standard).

Front 59

Commercial Speech Regulation

Back 59

- Government may ban deceptive advertising or ads for illegal activity.
- Commercial speech that inherently risks deception may be prohibited e.g. direct client solicitation by attorneys.
- Intermediate Scrutiny applies to commercial speech:
o Substantial government interest
o Interest is directly advanced by the statute
o Narrowly tailored, needn’t be the least restrictive alternative.

Front 60

Requirements to Punish Group Membership

Back 60

Must prove the person:
- Actively affiliated with the group
- Knowing of its illegal activities
- AND with the specific intent of furthering those illegal activities.

Front 61

The Establishment Clause (Lemon Test)

Back 61

- There must be a secular purpose to the law
- The effect must neither advance nor inhibit religion
- There must not be excessive entanglement with religion