Cal Bar Cheat Sheet (Con Law)

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Interstate Commerce

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Congress generally has the power to regulate the channels, instrumentalities and any activities that substantially affect interstate commerce.

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The Dormant Commerce Clause

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Where Congress has not regulated on a particular subject matter, states are free to regulate interstate commerce on that matter so long as they do not: (1) directly discriminate against out-of-state commerce; or (2) unduly burden intestate commerce.

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[Dormant Commerce Clause] Direct Discrimination Against Out-of-State Commerce

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A law that discriminates against out-of-state commerce on its face by preferring local interests is presumed to be invalid. However, a facially discriminatory law will be upheld if: (1) it furthers an important non-economic interest; and (2) there are no less discriminatory alternatives available. such laws will also be presumed valid where the state is acting as a market participant.

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Market Participant

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A state may prefer its own citizens when acting as a market participant, including buying or selling products, hiring labor and giving subsidies.

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[Dormant Commerce Clause] Undue Burden

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Even where a law does not facially discriminate, it may be unconstitutional if it unduly burdens interstate commerce. A law unduly burdens interstate commerce when the burden on commerce outweighs the local interests protected or benefited by the legislation. This is known as the burden balancing test.

If the law unduly burdens interstate commerce, it may still be valid if the state is acting to further an important interest and there are no less discriminatory alternatives. It will also be valid if the state is acting as a market participant.

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Privileges and Immunities Clause

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Under the Privileges and Immunities Clause, a state cannot discriminate against residents of other states unless it can show a substantial justification for the differential treatment and that no less restrictive means were available.

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Contracts Clause

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The Contracts Clause generally prohibits states from enacting legislation that retroactively interferes with existing contractual relationships. Legislation that impairs a private contract is invalid unless the law: (1) serves an important and legitimate interest; and (2) is reasonably and narrowly tailored means of promoting that interest

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Equal Protection

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The 14th Amendment provides that no person shall be denied the equal protection of the laws. This generally means that individuals can only be classified on the basis of a group characteristic in limited situations. In order to determine whether an Equal Protection Clause violation has occurred, the classification being used must be scrutinized

Courts apply different levels of scrutiny for different classifications. Classifications that burden fundamental rights or are based on race, national origin and alienage receive strict scrutiny. Classifications based on illegitimacy or gender receive intermediate scrutiny. All other classifications are subject to rational basis review.

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Standing

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Article III requires that an actual case or controversy exist before a constitutional challenge can be made. Part of that requirement is a plaintiff must have standing to sue. Standing means the individual has suffered: (1) an injury in fact; (2) that is redressable by a favorable court decision; and (3) was caused by the act being challenged.

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Organizational Standing

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An organization has standing to sue when: (1) there is an injury in fact to members which gives them the right to sue on their own behalf; (2) the injury is germane to the purpose of the organization; and (3) participation of individual members of the organization is not required.

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First Amendment - Free Speech

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The First Amendment provides that Congress shall make no law abridging the freedom of speech.

When determining whether or not this protection has been violated, courts generally look to whether the regulation of speech is content-based or content-neutral. When looking at content-based speech regulations, courts distinguish between protected speech and unprotected speech.

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[Content Regulation] Protected Speech

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A content-based regulation seeks to prohibit the expression of certain ideas or information. When such regulations impact protected speech, they are subject to the highest standard of review, strict scrutiny. Under the strict scrutiny test for speech, the government has the burden of showing that its regulation is necessary to serve a compelling state interest and that its regulation is narrowly drawn to achieve that end.

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Unprotected Speech

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Courts have determined that the government has a per se compelling interest in prohibiting certain types of speech, now commonly referred to as the unprotected categories of speech. Those are: speech that incites imminent lawless action, fighting words, obscenity, defamation, child pornography and many forms of commercial speech.

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Content Neutral Regulations

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Content-neutral regulations are those that do not prohibit the expression of certain ideas, but prohibits speech in its entirety based on the time, place, and manner of the expression. Content neutral regulations must generally be narrowly tailored to serve a significant government interest and must leave open alternative channels of communication for the information.

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[Content Neutral Regulation] The Regulation of Conduct

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Whether the government can regulate conduct depends on whether the forum in which the conduct occurs is a public, non-public, or limited public forum

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Public Forum

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A public forum is a place where speech has traditionally been permitted, such as a public park. The government may regulate certain conduct in public forums provided: (1) the regulation is content neutral; (2) is narrowly tailored to serve a significant government interest; and (3) there are alternative channels of communication left open.

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Limited Public Forum

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A limited public forum is one that was not historically open to speech but has been designated for such purpose by the government, such as a school. Regulation in limited public forums must satisfy the same standards as those in public forums.

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Non-Public Forum

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Non-public forums are government owned property that are not open to speech, such as the White House. The government may regulate conduct and speech in non-public forums if: (1) the regulation is viewpoint neutral and; (2) the regulation is reasonably related to a legitimate government purpose.

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Other Considerations Regarding Speech

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Outside of the tests pertaining to certain types of speech, courts also look to whether the regulation is a prior restrain, is vague, overbroad or permits government officials to have unfettered discretion in determining what conduct is or is not permitted.

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Prior Restraints

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Prior restraints, which are regulations that prohibit speech before it occurs, are generally not permitted. In order for a prior restraint to pass constitutional muster, the government has the burden of showing that the prior restraint is necessary in order to prevent some special societal harm.

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Procedural Safeguards for Prior Restraints

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Any system in place for prior restraints must contain certain procedural safeguards, including: (1) standards that are narrowly drawn, reasonable and definite; (2) an injunction that must be promptly sought; and (3) there must be a prompt and final determination of the validity of the restraint.

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Overbroad

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A statute is overbroad if it bands speech that could constitutionally be forbidden but also bans speech which is protected by the First Amendment. Overbroad statute are almost always per se unconstitutional.

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Unfettered Discretion

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Under the First Amendment, a regulation that gives government officials unfettered discretion to determine what speech is prohibited is void on its face, and the speaker can challenge the regulation before applying for a permit. If there are some guidelines or standards for the government official, however, the speaker must apply for and get rejected for a permit before challenging the regulation on First Amendment grounds.

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Substantive Due Process: Fundamental Rights

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The Due Process Clause of the 14th Amendment provides that no state shall deprive any person of life, liberty or property without due process of law. The substantive due process prong of the Due Process CLause is judge-made law that provides that some rights are so fundamental to our existence as citizens and humans that a mere deprivation of them (regardless of how much process is provided) is a Constitutional violation.

Here, the state is denying π the right to [X]. The question is whether π has the fundamental right to [X]. If so, the deprivation is per se unconstitutional.

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Standing: Injury

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A π has suffered injury-in-fact when a harm has occurred, or the government has threatened injury.

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Standing: Causation

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In order to establish causation, there must be a causal connection between the injury and the state action.

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Standing: Redressability

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Redressability is present if a court decision in the π's favor would cure the alleged constitutional violation.

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Taxpayer Standing

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Taxpayers do not have standing to assert grievances merely because they are taxpayers. Taxpayers have automatic standing, however, if: (1) the Constitutional challenge relates to a tax bill; or (2) the Constitutional challenge is based on the Establishment Clause of the First Amendment.

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State Action

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The Constitution does not provide a means of redress for private wrongs. To that effect, state action must be present in order for an individual to vindicate his or her constitutional rights.

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Ripeness

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In order for a case to be justiciable, it must be ripe, which means that a π must have been harmed or suffered from an immediate threat of harm. In other words, reviews of state laws are not permissible until they are enforced.

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Fundamental Rights

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The right to marriage, privacy, sexual relations, abortion and child rearing are all deemed fundamental rights under the substantive due process clause. When a fundamental right is being interfered with by the government, courts will apply the strict scrutiny test to the state action. Under the strict scrutiny test, the government has the burden of showing that its action is necessary to achieve a compelling state interest.

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Rational Basis Review

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Under the rational basis test, the [X] must be rationally related to a legitimate state interest. When the ration basis test is being applied, the π has the burden of proof. Almost any legitimate state interest will pass muster.

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Third Party Standing

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A claimant may have standing to assert the rights of a third party if: (1) it is difficult for the third party to assert his or her own rights; or (2) a special relationship exist between the claimant and the third party.

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The Establishment Clause

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The First Amendment provides that the government shall not establish a religion. to determine whether the Establishment CLause has been violated, courts look first to whether a particular sect was preferred by the government. If not, the state action will stand if: (1) it has a secular purpose; (2) it has a primary effect that neither advances nor inhibits religion; and (3) it does not create an excessive entanglement between church and states.

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The Free Exercise Clause

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The Free Exercise Clause contains both the freedom to believe in any religion and the freedom to conduct one's self in accordance with any religion.

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[The Free Exercise Claus] Beliefs

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The freedom to believe in any religion is technically absolute and any government action that directly punishes someone on the basis of his or her religious beliefs is per se unconstitutional. Nonetheless, government regulation that indirectly imposes burdens on people of certain religions will be upheld if the government can show that the regulation is necessary to achieve a compelling state interest.

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[The Free Exercise Claus] Conduct

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The freedom to engage in certain religious activities or practices is not absolute and government regulations that prohibit certain religious activities will be upheld unless they specifically target religious practices. When specific religious practices are targeted, the government has the burden of showing that its actions are narrowly tailored to advance a compelling state interest.

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Equal Protection: Discriminatory Intent

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In order for a classification to be subject to scrutiny under the Equal Protection Clause, however, the π must show that there was discriminatory intent behind the classification. Mere discriminatory impact is insufficient to establish an Equal Protection violation.

Discriminatory intent can be shown when the classification is: (1)discriminatory on its face; (2) discriminatory in its application; or (3) has a discriminatory motive behind it.

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Equal Protection: Fundamental Rights

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Under the Equal Protection Clause, a regulation that does not classify on the basis of a suspect or quasi-suspect class but which burdens a fundamental right is subject to strict scrutiny. Rights deemed fundamental under the Equal Protection Clause are the privacy rights, the First Amendment rights, the right to vote, the right to be a candidate and the right to interstate travel.

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Establishment Clause: Excessive Entanglement

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An excessive entanglement can occur when the government's policy results in excessive oversight or monitoring of a religious entity by the government.