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192 Cards in this Set

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What is the authority of the fed courts under the Constitution called?
the Federal Judicial power
What is the authority of Congress under the Constitution called?
the Federal Legislative power
What is the authority of the President under the Constitution?
the Federal Executive power
What is federalism?
limits on state and local governments power b/c federal govt has power, and the states must get along with each other
What does the Constitution guarantee?
it assures protection of individual liberties, where neither the fed or state govt can deprive a person of liberty without due process, or deny equal protection under the law
How is the 1st amendment tested on the exam?
just about speech and religion
What article of the Constitution grants the judiciary power?
Article 3
What does Article 3 of the Constitution require before a court can hear a case?
there is a req of a CASE and CONTROVERSY: this makes a case JUSTICIABLE; need to show actual harm, or threat of specific and immediate future harm
If there is no case or controversy, can the court hear the case?
no, the court must decide actual cases and controversies, and cannot issue advisory opinions
What are the justiciability requirements?
look to see if there is: 1) standing, 2) mootness, 3) ripeness, 4) political question
What is standing, re: justiciability?
the issue of whether the P is the proper party to bring the matter to court
this tested on A LOT!
What is required to be shown to get standing?
4 reqs must be met: 1) Injury; 2) Causation and Redressability; 3) No third party standing; 4) No generalized grievances
Describe the injury requirement for standing
p must allege/prove that he has been injured or imminently will be injured in future (anything can be an injury); injury NOT established with only mere ideological objection, must have suffered PERSONALLY; if seeking injunctive/declaratory relief, must show likelihood of FUTURE HARM personal to you
Describe the causation and redressibility requirement for standing
that the D caused the injury and court's favorable decision will remedy the harm; if the fed court ruling will have no effect, then it's an unlawful advisory opinion (think of mbe question on where the fed agency will decide if they like the fed court judgment--b/c the fed court ruling will have no effect, it's an unlawful advisory opinion!)
Describe the no third party standing requirement for standing
a p can't assert claims of others/third parties who are not before the court, must present personally suffered injuries; EXCEPTIONS: 1) close relationship, so that p can be trusted to adequately represent interests of the 3p (doctor-patient, custodial parent); 2) injured party unlikely to be able to assert own rights (prospective jurors: d has the right to sue if a juror is dismissed b/c of race/gender); 3) an organization may sue for its members if: a) members would have standing, b) interests are germane to organization's purpose, and c) neither claim nor relief reqs participation of individual members
most qs on exception 1!
Describe the no generalized grievances requirement for standing
the p must not be suing solely as a citizen or taxpayer interested in having the govt follow the law/spend $ a certain way; EXCEPTION: taxpayers can sue if govt expenditures violate Establishment Clause, where funds going to endorse religion (programs giving $ to religious schools a good ex)
What is ripeness, re: justiciability?
whether a fed court may grant pre-enforcement review of a statute/reg; don't have to wait to sue until someone violates a law, but still need a case or controversy! must show: 1) the hardship that will be suffered w/o pre-enforcement review (like waiting to see if a fed agency has authority to do something under its reg, no need to wait to see if lack authority to do so), AND 2) the fitness of the issues and the record for judicial review (the court has enough info to make a decision, no need to wait to get better picture of the prob)
What is mootness, re: justiciability?
if events after the filing of a suit end the p's injury, the case must be dismissed b/c a p must present a LIVE controversy, (but non-frivolous $ damages claims can be saved); EXCEPTIONS: 1) the wrong is capable of repetition but evades review b/c of inherently limited TIME duration (abortion cases), 2) voluntary cessation: d can voluntarily stop, but once case is gone, could start up again! need to put an end to it, 3) class action suits: at least 1 member of the class still has injury, then not moot
What is the political question doctrine re: justiciability?
refers to constitutional violations that the fed courts will not adjudicate b/c leave for other branches to do, beyond judiciary's scope; 4 types of political questions: 1) re the US guarantee to each state a Republican Form of Fovernment Clause; 2) Challenges to the President's conduct of foreign policy; 3) Challenges to the impeachment and removal process; and 4) Challenges to partisan gerrymandering (sup ct. won't hear it, but other courts will)
foreign policy one is a big topic!
What must be met before the Sup Ct. will review a case?
all the justiciability reqs must be met: standing, no ripeness, no mootness, no political question
How do most cases come before the Sup. Ct.?
by the writ of certiorari (the Court has the discretion to hear cases or not)
Which cases come to the Sup. Ct. via certiorari?
a) all cases from state courts come via the writ, b) all cases from US Courts of Appeals come via the writ
How do other cases come to the Sup Ct besides via certiorari?
a) appeals exist for decisions of 3-judge fed district courts, skips right to sup ct. past the court of appeals; b) the sup ct has ORIGINAL and EXCLUSIVE jurisdiction for suits b/t state governments (so must file in sup ct first)
When can the Sup Ct. hear a case?
generally only after there has been a final judgment of the highest state court, or US Court of Appeals, or three-judge fed district court; this is called: Final Judgment Rule; no interlocutory review in the sup ct.!
When can the Sup Ct. review a state court decision?
must not be an INDEPENDENT and ADEQUATE state law ground for the decision; if state court decision rests on 2 grounds, state law and fed law, if the Sup.Ct's reversal on fed law ground will not change result in case, the Court cannot hear it
ex. if cops charged with fed civil rights violation and state battery, and recovered 1 sum of damages for either charge, the sup ct. cannot hear it b/c if it reversed on the fed ground, the state claim still entitles the p to $ damages
Can fed courts and state courts hear suits against state governments?
no b/c of SOVEREIGN IMMUNITY from the 11th am (local govts are different, they don't have immunity)
Discuss sovereign immunity
the 11th am bars suits against states in fed court; so state govts generally cannot be named as ds in fed court; also barred in state courts and fed agencies, even on fed law claims! EXCEPTIONS: a) waiver by the state, b) fed laws adopted under section 5 of 14th am, c) fed govt can sue a state govt, and d) bankruptcy proceedings, no immunity for states
Discuss sovereign immunity exception 1, waiver by the state
state can waive sovereign immunity, but it must EXPRESSLY CONSENT to be sued
Discuss sovereign immunity exception 2, section 5 of 14th am
states can be sued pursuant to the fed laws adopted under section 5 of the 14th am (gives congress right to authorize the limits on states that the 14th am imposes), but congress cannot authorize suits against states under any other constitutional provisions or power
Discuss sovereign immunity exception 3, fed govt can sue the states
sovereign immunity does not bar the fed government from suing a state
Discuss sovereign immunity exception 4, bankruptcy proceedings
the 11th am doesnt apply to fed laws exercised pursuant to congress's bankruptcy action, so it doesnt bar actions of the us bankruptcy courts
What kind of lawsuits are allowed when you want to sue the state?
can sue a state officer, even if the state govt cannot be named as a d; can be sued for: a) injunctive relief, and b) $ damages to be paid of own pocket; state officer CANNOT be sued if the state treasury will be the one paying retroactive damages
What is abstention?
fed courts may NOT enjoin pending state court proceedings; usually if theres an unsettled question of state law, fed courts stay out of it; the EXCEPTION: if it's a state prosecution, a fed court will hear an action to enjoin a pending state court prosecution if it's being conducted in bad faith--merely to harass the D
rarely tested
What are the main powers of Congress's authority to act?
Big Three powers: 1. Taxing, 2. Spending (can tie $ to states adopting a law), and 3. Commerce (if affects interstate commerce, can regulate)
laws re highways and speed limits touch on both spending and commerce clause powers
What are the reqs for Congress exerting its power?
must be an EXPRESS or IMPLIED Congressional power
Does Congress have a general police power?
no, but exceptions
What are the exceptions where Congress DOES have police power?
MILD: M=military; I=Indian reservations; L=lands (federal); D=D.C.
What does Article 1, Sec 8 say about when Congress can adopt a law?
can adopt all laws that are NECESSARY and PROPER to exercise its authority
What does the taxing and spending powers allow Congress to do?
tax and spend for the general welfare (NOTE: these are not an explicit powers, this is just in the PREAMBLE of the Constitution!)
What is the general Commerce Power?
Congress can regulate commerce with foreign nations, Indian Tribes and among the states (commerce power has been limited over time)
Under what situations has the Sup Ct. said Congress can act under the Commerce Clause
Congress can regulate: 1) channels of interstate commerce: highways, waterways, internet, across state lines; 2) instrumentalities of interstate commerce and persons/things in interstate commerce: trucks, plains, phones, radiowaves; 3) economic activities that have a SUBSTANTIAL EFFECT on interstate commerce; if it's a NON-ECON activity, then substantial effect cannot be based on CUMULATIVE IMPACT
ex of economic impact: the wheat case, all farmers combined have economic impact on wheat prices if they keep too much for their own families, congress has power to regulate b/c substantial effect, cumulative impact; ex. of NON-econ activity: vawa, just b/c victims of crimes have negative impact on econ doesnt mean congress can regulate how victims can sue their abusers/attackers, can't be based on cumulative impact of damaging effects on women's productivity
How does the fed Commerce Clause relate to the state enforcing a tax on something?
if congress has not adopted laws regarding a subject, local govts are free to tax or regulate local aspects of the subject area as long as the tax or reg does not discriminate against interstate commerce or unduly burden it. the supreme court considers: 1) whether there is a substantial nexus b/t the activity or property taxed and the taxing state, 2) whether tax fairly apportioned, and 3) whether there is a fair relationship b/t the tax and the benefit the taxed party receives from the state
How does the 10th am limit Congress power?
it limits Congress's powers over states, where all powers NOT granted to the fed NOR prohibited to the states, are thus reserved for the states/the people; 2 principles emerge from this: 1) Congress cannot compel state regulatory or legislative action, BUT--can induce state action by condition funds on acceptance of regs, IF conditions EXPRESSLY STATED and RELATE to the purpose of spending program; and 2) Congress may prohibit harmful commercial activity by state govts (like states selling lists of ppl to make money)
harmful activity prohibition less tested on
Can congress delegate powers?
yes, a) no limit on congress's ability to delegate legislative power; BUT b) legislative vetoes and line-item vetoes are unconstitutional, b/c there must always be BICAMERALISM (passage by both house and senate) and PRESENTMENT (bill goes to Pres to sign or veto), Pres must either sign or veto the bill in its ENTIRETY, not accept some provisions over others; c) congress may not delegate executive power to ITSELF or its officers (can only give power to other branches, not take away power from other branches)
What does the Fed Executive power generally have authority over?
1) Foreign policy; and 2) Domestic affairs
usually qs on exam will be about who wins, Pres or other branch of govt?
What documentspowers are involved in the foreign policy power of the Executive?
a) treaties, b) executive agreements, c) commander-in-chief powers
What are treaties?
def: agreements b/t the US and a foreign country that are negotiated by the Pres and effective when ratified by the Senate
What happens if state laws, federal statutes, or the Constitution conflict with treaties?
the state laws are invalid; for fed laws and treaties: whichever was adopted LAST IN TIME controls (the earlier MUST give way); for Constitution: the treaty is invalid b/c Constitution is supreme law
What are executive agreements?
an agreement signed b/t the US and a foreign country that is effective when signed by Pres and foreign nation; no need for Senate approval (unlike for treaties) but still same powers under these agreements as treaties! they can be used for ANY PURPOSE
What happens if state laws, federal statutes, or the Constitution conflict with executive agreements?
executive agreements prevail over conflicting state laws, but NEVER over fed law or Constitution
What are the powers of Pres as Commander in Chief?
has broad powers as CIC to use American troops in foreign countries
on exam: even if q has crazy hypo about Pres using troops for crazy purpose, OK! if the question is testing POLITICAL QUESTIONS then that's the right answer, but if testing who wins b/t Pres and other branch, then Pres wins
What are the powers the Pres has over Domestic Affairs?
1) appointment/removal power, 2) impeachment/removal, 3) immunity, 4) executive privilege, 5) pardon
Discuss the appointment power of Exec
the appointment power: a) Pres appoints: 1) embassadors, 2) fed judges, 3) officers of the U.S., but Senate must approve a nomination for that person to take office (like an AG); b) Congress may vest appointment of INFERIOR officers in the Pres to appoint heads of departments or lower fed court officers, but discretionary (like AAG)
so for superior officers, Pres has appointment power; for inferior officers, Congress has discretion
Discuss the removal power of Exec
unless removal is limited by statute, the Pres may fire any exec branch official; BUT Congress may limit removal by statute if 2 reqs met: 1) it must be an officer where INDEPENDENCE from the Pres is desirable, AND 2) CANNOT prohibit removal entirely, can only limit removal to where GOOD CAUSE shown
independence desired if appoint special prosecutor or independent counsel to investigate Pres wrongdoing
Discuss impeachment and removal
the Pres, VP, fed judges and all officers of US can be impeached and removed from office for a) treason, b) bribery, c) or high crimes and misdemeanors (no need to define this); BUT, impeachment does NOT remove a person from office, and reqs a MAJORITY vote by the House of Rep, and then conviction occurs if 2/3 of Senate votes to do so
Discuss Pres immunity
absolute immunity to civil suits for $ damages for any actions WHILE IN OFFICE, BUT NO immunity for actions that occurred PRIOR to office
Discuss Pres executive privilege
has privilege for presidential papers and conversations, but MUST YIELD to other important govt interests (like if Pres is being prosecuted, this overrides the privilege)
Discuss Pres ability to pardon
can pardon anyone accused or convicted of FED, NOT STATE, crimes, EXCEPT where the person to be pardoned has been impeached by the House of Rep--that person can NEVER be pardoned for the UNDERLYING crimes that lead to impeachment; pardon power does NOT apply to civil liability (like for civil contempt, even if someone imprisoned!)
remember on bar: civil contempt CANNOT be pardoned
What is preemption?
valid federal law overrides/preempts inconsistent state law: Article VI has the Supremacy Clause=constitution, and the laws and treaties made pursuant to it, are the supreme law of the land
What are the diff ways you can find preemption?
1) express preemption; 2) implied preemption; 3) Inter-governmental immunity
What is express preemption?
Congress can state that its power is EXCLUSIVE in a field if its statute says that fed law is exclusive, so state and local govts are preempted in that field;
What is implied preemption?
if a fed statute is silent about preemption, can be implied in 3 diff ways: 1. if not possible for someone to simultaneously comply with both fed and state law, then state law is deemed preempted (think emissions standards, if feds set goal of 95%, a state cant go below that, but can go above that), 2. if state law impedes the achievement of a fed objective, then state or local law deemed preempted (think filing grievances in fed labor board punished by state, this impedes fed obj to encourage reporting), 3. if congress evidences a clear intent to preempt state law, then state law deemed preempted (immigration, intended to be exclusively governed by fed law)
What is Inter-governmental immunity?
states may not charge state tax to be paid out of fed treasury for fed activity; so fed govt immune from unwanted state taxation (if a fed building located in a state, no need to pay state property taxes!)
What are the main clauses to focus on in Article IV?
1) dormant commerce clause; 2) privileges and immunities clause
What is the dormant commerce clause?
aka "Negative implications of the commerce clause"; principle that state or local laws are unconstitutional if they place undue burden on interstate commerce (this is inferred from the commerce clause, not explicitly written)
What is the privileges and immunities clause of Article IV?
MUST show DISCRIMINATION against out of staters, no state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens w/o SUBSTANTIAL JUSTIFICATION (ex. of good justification: requiring police and emergency personnel to live in the city to be ready for emergency); only applies to citizens, not corporations
What is the privileges and immunities clause of the 14th am?
used to preserve a person's right to travel from one state to another (think of welfare ex, where violated 14th am to only allow new residents to collect the level of welfare benefits they received from their previous state)
How do you analyze the dormant commerce clause?
must analyze it from 2 points of view: 1) if a state/local law DOES discriminate against out of staters, OR 2) if a state/local law does NOT discriminate against out of staters.
How do you analyze the dormant commerce clause if the state/local law in question DOES discriminate against out of staters?
if there IS discrimination: a law violates dormant commerce if it places a burden on interstate commerce UNLESS it is NECESSARY to achieve an IMPORTANT govt purpose and no less discriminatory ALTERNATIVE (heavy burden on govt); 2 EXCEPTIONS: a. Congressional approval of the discrimination, or b. market participant exception (a state/local govt can prefer own citizens and govt owned businesses, in receiving benefits like lower in state tuition b/c they are taxpayers)
congress approval means it's no longer dormant; no less discrim alternative (like if state prohibits certain fish in its water to preserve indigenous wildlife, ok, no alternative)
How do you analyze the dormant commerce clause if the state/local law in question DOES NOT discriminate against out of staters?
if there is NO discrimination: a law violates the dormant commerce clause if its BURDEN on interstate commerce outweighs the BENEFITS of the law (balancing test) (ex. only certain types of mud guards on trucks in one state, so if trucks passing through, couldnt drive with diff mud guards: violation of dormant commerce clause b/c too high a burden)
What are the questions you need to ask to analyze whether the privileges and immunities clause has been violated?
Q: does the state law discriminate against out of staters? A1: if not, then the art IV clause doesnt apply b/c only applies if discrimination; A2: so if the law DOES discriminate, then it violates privs and immuns if--discriminates against individuals re important ECONOMIC activities (earning a living) or CIVIL LIBERTIES, UNLESS it is NECESSARY to achieve an IMPORTANT govt purpose; (corporations and aliens CANNOT use or invoke privileges and immunities clause)
like prohibiting out of staters to get a license fish: this violates privileges and immunities b/c about earning a living (whereas elk hunting license is not considered earning a living)
What are the main differences of the dormant commerce clause compared to the privileges and immunities clause?
dormant commerce clause: 1) does NOT require discrimination against out-of-staters to apply, 2) requires a BURDEN on interstate commerce, 3) corporations and aliens CAN sue under it, and 4) EXCEPTIONS to it: congressional approval, and market participant exception
What are the main differences of the privileges and immunities clause compared to the dormant commerce clause?
privileges and immunities clause: 1) DOES require discrimination against out of staters to apply, 2) requires discrimination regarding civil liberties or important economic activities, 3) corporations and aliens CANNOT sue, and 4) NO EXCEPTIONS to it
What are implications of states using their taxes in interstate commerce?
states may not use their tax systems to help in state businesses that discriminate against out of state producers; a state may only tax activities if there is a SUBSTANTIAL NEXUS b/t the product or activity to be taxed and the state; state taxation of interstate businesses or companies must be fairly apportioned, can't be double taxed (ex. NY can only take a % tax on trucking corps based on their % revenue in NY ONLY even if cross state lines
What is the full faith and credit clause?
courts in one state must give full faith and credit (meaning must ENFORCE) all judgments of courts in another state, as long as: 1) the court that rendered judgment had personal and subject matter jurisdiction, 2) the judgment must be on the merits, and 3) the judgment was final
What does the constitution apply to re protection of individual liberties?
only protects against government action; private conduct does NOT have to comply with the constitution; HOWEVER, via statute congress may apply constitutional norms to private conduct
How does congress use the constitution to create statutes that affect private conduct?
a) pursuant to the 13th am (prohibits slavery/involuntary servitude) congress can prohibit private race discrimination via broad powers to enforce the provision; b) pursuant to the commerce clause, congress can affect private conduct, such as the Civil Rights Act (think restaurant on highway discrim against blacks, got out of state supplies, cumulative discrim effect); EXCEPTION: c) congress can use section 5 of 14th am to regulate state and local govts, but NOT private conduct!!
What are exceptions to the rule that private conduct need not comply with the constitution? meaning, when DOES private conduct need to comply with the constitution?
2 ways: 1) the public functions exception: constitution applies if a private entity is performing a task traditionally exclusively done by govt; 2) the entanglement exception: the constitution applies if the govt affirmatively authorizes, encourages, or facilitates unconstitutional activity
What are examples of the entanglement exception, where the govt authorizes/encourages/facilitates unconstitutional activity and thus the constitution can be implicated in private conduct?
a) courts cannot enforce racially restrictive covenants; b) there is state action when the govt leases premises to restaurants that racially discriminate; c) there is state action when a state provides free books to private schools that racially discriminate; d) there is NO state action when a private school over 99% funded by govt fires a teacher b/c of her speech (state has nothing to do with encouraging the firing/possible discrimination here so no state action); e) there is NO state action when the NCAA (private entity) order the suspension of a basketball coach at a state university (no real state involvement even if at a state university); f) there IS state action when a private entity regulates interscholastic sports within a state (b/c most members are public schools); g) there is NO state action when a private club with a liquor license from the state racially discriminates
How is the Bill of Rights applied?
applies directly only to the fed govt; applied indirectly to state and local govts through its incorporation into the due process clause of the 14th am (fundamental rights, liberty interests) EXCEPT: a few are not incorporated to the states: a) the 13th am right to not have a soldier quartered in a person's home, b) the 5th am right to a grand jury indictment in criminal cases (req for fed crim cases but states don't need to req it), c) the 7th am right to jury trials in CIVIL cases (states dont need to req it), d) the 8th am right against successive fines (states dont need to req, BUT states DO need to protect against cruel and unusual punishment)
question on these a lot!!!
When are levels of scrutiny applied in the sup ct?
when the sup ct. addresses individual liberties under the constitution, the outcome of analysis depends on level of scrutiny applied
What are the levels of scrutiny?
1) rational basis test: a law is upheld if it is RATIONALLY related to a LEGITIMATE CONCEIVABLE govt purpose (the challenger has the burden of proof to show either a) there is no CONCEIVABLE legit purpose OR b) that the law is not rationally related to the purpose); 2) intermediate scrutiny: law is upheld if it SUBSTANTIALLY relates to an IMPORTANT ACTUAL government purpose, and the means chosen must be NARROWLY TAILORED, meaning does NOT have to be the best or least restrictive means (the govt has the burden of proof here, and can't think of conceivable govt purposes, must be ACTUAL); 3) strict scrutiny: a law is upheld if it is NECESSARY to achieve a COMPELLING ACTUAL government purpose, meaning must be LEAST RESTRICTIVE means used (the govt has the burden of proof, must show it is a vital actual purpose)
For individual liberties, what are the 2 clauses you look at in the 5th and 14th am?
1) procedural due process; 2) substantive due process
What is procedural due process?
the procedures a govt must follow to take away someones life, liberty, or property; any taking can be broken down into 2 questions: 1) has there been a deprivation of life, liberty or property?, 2) if there has been a deprivation, and ONLY if there has, what procedures are required?
What is a P entitled to have if their due process rights are violated?
procedural due process requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker; P is entitled to a "trial type" hearing (right of cross, subpoena witnesses, etc) where 1) the order will be based on adjudicative facts, 2) the number of parties to whom notice and opportunity to be heard would have to be given is not impactically large, and 3) agency action deprives the party of liberty or property; otherwise abuse of discretion results
What is a deprivation of liberty?
occurs if there is a loss of a significant freedom provided by the constitution (taking of rights)
What is a deprivation of property?
occurs if a person has an entitlement (reasonable expectation to the continued receipt of a benefit) and that entitlement is not fulfilled (diff than a loss of a right, here could be that you had a govt k for 1 year position guaranteed but you were fired, but if no promise of renewal, then no property interest)
When is the govt liable for deprivation of due process?
govt negligence is NOT sufficient, must be an intentional govt action, or at least reckless action; BUT, in emergency situations, govt is liable under due process ONLY if its conduct "shocks the conscience" (still an intent req here); ALSO generally the govt's failure to protect ppl from privately inflicted harms does NOT deny due process
If there has been a deprivation, what procedures are required?
3 part balancing test: 1) the importance of the interest to the individual (more important, more protection req by court), 2) the ability of additional procedures to increase the accuracy of fact-finding (the more will lead to better decisions and reduce erroneous deprivations, the more likely court req), and 3) the govt's interests: usually about efficiency and economy
What are some examples of procedural reqs to avoid due process violations?
a) welfare benefits: termination req both notice and hearing; b) social security disability benefits: termination reqs only post-termination hearing; c) permanent termination of parent's right to custody: req notice and hearing; d) before institutionalizing an adult: must be notice and hearing (EXCEPT in emergency); e) harm to reputation: by itself is NOT a loss of liberty; f) prisoners: rarely have liberty interests, when sue for loss of liberty almost always lose; g) punitive damages awards: reqs jury instructions to guide discretion of jury and judicial review to ensure that any award is reasonable; h) a non-citizen held as enemy combatant: entitled to due process, meaning ability to challenge continued detention; i) US citizens facing criminal charges in a foreign country held by the American Military: can file a habeus corpus petition and seek review of their detention in fed court; j) due process req recusal of a judge if there is substantial risk of actual bias (direct, personal, pecuniary gain)
In what areas has substantive due process been used?
1) protecting economic liberties; 2) safeguard property
What is substantive due process?
asks whether the govt has an adequate reason for taking away a person's life, liberty or property (not about the procedures used to do so); when government action limits a fundamental right, the govt must meet strict scrutiny; but if a fundamental right is not involved, the challenging party must prove that the act is not rationally related to a legit govt interest)
What protection does the substantive due process provide for economic liberty?
only minimal protection: a) only use rational basis test for laws affecting economic rights; b) the Takings Clause of the 5th am applies, where govt may take private property for public use ONLY if it provides JUST COMPENSATION: does not apply levels of scrutiny, but uses separate test
What is the test for determining if a govt taking violates substantive due process?
3 part test: 1. is there a taking?: a) possessory taking=govt confiscation or phys occupation of property is a taking, b) regulatory taking=govt reg is a taking if leaves NO REASONABLE ECONOMIC VIABLE USE of the property (decrease in value is not enough alone); 2. is it for public use?: the sup ct. has said that a taking is for public use so long as the govt acts out of reasonable belief that the taking will BENEFIT the public; 3. is just compensation paid?: measured in terms of loss to the owner in REASONABLE MARKET VALUE terms--the gain to the govt is irrelevant (doesnt matter if prop value is $10k even if govt plans to make $20mil, still only need to sell for fmv!)
What are some added notes about govt takings and substantive due process?
a) govt conditions on development of property must be justified by a benefit that's ROUGHLY PROPORTIONATE to the burden imposed, if the conditions are excessive, it's a taking; b) a property owner may bring takings challenge to regulations that existed at the time the property was acquired (so even if knew in advance can bring an action, may not win though!); c) temporarily denying an owner use of property (developing prop) is NOT a taking so long as the govt action is REASONABLE (ex 3yr moratorium to conduct an environmental study is ok)
What is the contracts clause of Article I, section 10?
no state shall impair the obligations of contracts; provisions are: a) the clause only applies to STATE or LOCAL interference with ALREADY EXISTING contracts (so no limit on a state's regulation of future contracts); b) state and local govts MAY interfere with existing PRIVATE contracts if INTERMEDIATE scrutiny is met (the language mixes in intermed and rational scrutiny words=does the legislation substantially impair a party's rights under an existing k? if so, is the law reasonably and narrowly tailored means of promoting an important and legit public interest); c) state or local interference with GOVT contracts reqs strict scrutiny (worried about the govt trying to get out of its own contracts); d) neither state nor fed govt can adopt EX POST FACTO laws, but this does NOT apply in civil cases, ONLY CRIM cases (so can't punish conduct lawful at time that now isnt, or increase punishment for a crime after it was committed)
why ex post facto here? maybe at time of the breach of a k, punitive damages not available (like in employer k situation) but now it does allow punitive damages, can still impose punitive damages (ex post facto is irrelevant in civil cases)
What is privacy considered to be under the constitution?
a fundamental right, protected under substantive due process, which applies strict scrutiny standard if govt interferes w/ privacy rights (this was read into the constitution, part of the penumbra, not explicit)
What are some of the fundamental privacy rights?
to marry, to procreate, to custody, to keep family together, to parent and control upbringing of children, to purchase/use contraceptives, to abortion, to consensual same-sex activity, to refuse medical treatment, right to travel b/t states, right to vote, freedom of speech, freedom of association, free exercise of religion, right to possess firearms
Discuss fundamental right to marry
govt can only interfere w/ this right via strict scrutiny
Discuss fundamental right to procreate
if involuntary sterilization, must meet strict scrutiny!
Discuss fundamental right to custody of children
can only be terminated if proves a compelling reason: parental abuse/neglect; state is allowed to create an irrebuttable presumption that married woman's husband is father of woman's child
Discuss fundamental right to keep family together
broader than parents and children: includes extended family ('unrelated' ppl living together, can't include grandparents etc, these ARE related and have fundamental right to live together)
Discuss fundamental right to control upbringing of kids
ex: can't order parent to allow grandparent visitation, interferes with fundamental right to raise kids
Discuss fundamental right to purchase and use contraceptives
not much to it
Discuss fundamental right to abortion
PRIOR to viability=states can't prohibit abortions, but can REGULATE abortions as long as no UNDUE BURDEN (standard) on ability to obtain abortions; AFTER viability=states can prohibit abortions unless necessary to protect woman's life/health
Describe what is NOT considered an undue burden on abortions
requirement for 24 hour waiting period; req abortions to be performed by licensed physicians; prohibition on partial birth abortions; req parental consent and notification for unmarried minors SO LONG AS alternative procedure where judge can determine if mature enough or in best interests
Describe what IS considered an undue burden on abortions
req spouse consent and notification: those laws=unconstitutional
Does the govt have any duty to subsidize abortions or provide them in public hospitals?
no
Discuss fundamental right to private consensual same-sex activity
fundamental right; can't prohibit constitutionally or criminally, but no level of scrutiny
Describe fundamental to refuse medical treatment
no level of scrutiny; a) competent adults have right to refuse medical treatment, even life-saving; b) state has compelling interest in protecting sanctity of life so may req clear and convincing evidence that person wants to terminate treatment; c) state may prevent family members from terminating person's treatment (want to avoid emotional/biased motives)
Is there a fundamental right to physician-assisted suicide?
no
Discuss fundamental right to bear arms under 2nd am
no level of scrutiny; individuals have right to weapons for self-defense
Discuss fundamental right to travel
strict scrutiny for: a) preventing travel/moving b/t states, b) durational reqs (person live in jurisdiction for amt of time to get benefit like welfare/voting) b/c could chill migration--max is 50 days for voting purposes (ok b/c need to give time for checking voting statistics). NO FUNDAMENTAL RIGHT FOR: international travel, only RATIONAL basis needed
Discuss fundamental right to vote
a) strict scrutiny if deny some citizens right to vote; b) 1 person 1 vote=state and local elections must have districts drawn in equal sizes (elect representatives, guaranty clause of republican form of govt, redistricting); c) at-large elections are CONSTITUTIONAL UNLESS proof of discriminatory PURPOSE (discriminatory IMPACT NOT enough); d) use of RACE in drawing district lines=strict scrutiny; e) counting uncounted votes W/O STANDARDS=violates equal protection
What are NOT fundamental rights?
all req only rational basis review: a) no fundamental right to education, b) no fundamental right to physician assisted death, c) no fundamental right to practice a trade or profession
What are the rights where the basis of review is unknown?
a) right to engage in private consensual same-sex activities, b) right to refuse medical treatments, c) right to possess firearms
What is the only fundamental right with its own standard?
abortion: standard=undue burden
When does equal protection apply?
whenever govt draws distinction among ppl, can challenge based on equal protection violation
What are the steps to determine whether there's an equal protection issue?
1. what is the classification involved? 2. What level of scrutiny should be applied? 3. Does this law meet the level of scrutiny?
TIP: on exam, most classifications are RATIONAL BASIS!
In what 2 amendments are there equal protection clauses?
1) 14th am=applies only to states and local govts, never to fed; 2) 5th am=applied to fed govt through the due process clause here (court read this clause into the 5th am)
What level of scrutiny do classifications based on race or country of origin deserve?
strict scrutiny is the test when the govt discriminates based on race/country origin
How is existence of a racial classification proven?
2 ways: 1) classification exists on the FACE of the law; 2) if law is race-neutral on face, prove BOTH a) discriminatory impact AND b) discriminatory intent
ex of on face: blacks cant serve on juries; ex of race-neutral: req police officers to take an exam, blacks failed more often, this is only rational basis b/c only prove discrim impact, not purpose
What happens if a peremptory challenge is based on race discrimination?
it denies equal protection; must not be used for purpose to discriminate or have a discrim impact
What happens when racial classifications are used to BENEFIT minorities?
strict scrutiny; a) if use numerical set-asides/quotas=must show clear proof of past discrim, b) educational institutions may use race as ONE FACTOR in admissions decisions to enhance diversity/benefit minorities b/c compelling interests, BUT can't admit based solely on race or add points to application just for race, c) public schools may not use race as factor in assigning students to schools unless pass strict scrutiny
What level of scrutiny do classifications based on gender deserve?
intermediate scrutiny for sex-based discrimination and based on gender=substantially related to an important govt interest, or "exceedingly persuasive justification"
How is existence of a gender classification proven?
2 ways: 1) classification exists on the FACE of the law; 2) if law is gender-neutral on face, prove BOTH a) discriminatory impact AND b) discriminatory intent
ex of on face: only men can attend military public school=unconstitutional; ex of gender-neutral: firefighter can only be 5'10'' and 150 lbs, discriminates against women, but constitutional b/c can only show discrim impact, not purpose
What happens if a peremptory challenge is based on gender discrimination?
it denies equal protection
What happens when gender classifications are used to BENEFIT or DISADVANTAGE women?
intermediate scrutiny: a) gender classifications benefiting women based on ROLE STEREOTYPES are NOT allowed; b) gender classifications designed to REMEDY PAST discrimination or differences in opportunity ARE allowed
stereotype: woman's husband dies, she gets survivor benefits automatically, but if a man's wife dies, he must prove that he was dependent upon her--this is unconstitutional; remedy past discrim/diffs: allowed to have diff social security calcs b/c women history of wage discrim
Generally, what do laws that discrim based on alienage have to meet?
strict scrutiny; BUT: some privileges just for citizens and classifications that discrim for these privileges only reqs rational basis=a) voting, b) serving on jury, c) being police officer, d) being teacher, e) being probation officer; EXCEPTION: non-citizens CAN be notary publics
strict scrutiny when state welfare benefits are denied to aliens and is unconstitutional; but for the rational basis privileges, reasoning is=this is b/c we have a right to preserve our democracy, these privileges are integral to that purpose
What happens when CONGRESS discriminates against aliens?
only use rational basis (like controlling immigration, they get discretion for this)
What level of scrutiny do you apply to classifications/discrimination based on undocumented alien children?
intermediate scrutiny (cannot deny them public education or make them pay for it)
What level of scrutiny do you apply to classifications/discrimination of non-marital children?
intermediate scrutiny; laws that deny benefit to all non-marital children but grant to all marital children are unconstitutional
inheritance rights is a good example
What is rational basis review used for in classifications?
a) age (will see mandatory retirement law on exam, still probably rationally related), b) disability (ordinance preventing disability home in neighborhood is unconstitutional even under rational basis), c) wealth discrim (being poor is not a suspect class), d) govt economic regs (req certain prereqs to work in a certain profession is ok), e) sexual orientation (so far it's rational basis)
Recap: What classifications (for equal protection purposes) deserve strict scrutiny? What is the test?
a) race, b) national origin, c) alienage generally, d) interstate travel, and e) voting; test=must be necessary to achieve a compelling state interest
Recap: What classifications (for equal protection purposes) deserve intermediate scrutiny? What is the test?
a) gender, b) illegitimacy, c) undocumented alien children; test=must be substantially related to an important govt interest (or "exceedingly persuasive justification"
Recap: What classifications (for equal protection purposes) deserve rational basis scrutiny? What is the test?
a) alienage classifications related to self govt and democratic processes, b) congressional regulation of aliens, c) age, d) disability, e) wealth, f) all other classifications; test=must rationally relate to a legitimate govt interest
What is an important distinction to made when you get a First Am question?
b/t 1) content based restrictions AND 2) content-neutral restrictions
first am is MOST OFTEN tested con law concept!
For content based restrictions, what level of scrutiny applies?
generally strict scrutiny, but EXCEPTION: content-neutral restrictions only req intermediate scrutiny
What are the content based restriction categories?
1) subject matter restriction (application of the law depends on the topic of the message, like judges are allowed to make statements for their elections); and 2) viewpoint restrictions (application of law depends on ideology of the speech, like allowing both anti and pro war speeches)
What level of scrutiny do you apply to the content-neutral restrictions?
intermediate scrutiny
content neutral ex: an ordinance that prevents ALL parades in a particular park--this is not precluding certain speech over others, just bars any type of parade at all regardless of content
What are prior restraints?
preventing speech before it occurs (often a judicial order)
an unconstit prior restraint was found when a court issued an injunction to prevent the NYTimes from releasing the Pentagon Papers
What do court orders suppressing speech req for level of scrutiny? What must a party ordered to refrain from speaking do after a procedurally proper court order is in place?
strict scrutiny; BUT if procedurally proper order in place, MUST BE COMPLIED WITH until the order is vacated or overturned, and a person who VIOLATES the order before this is BARRED from later challenging it
What happens if the court issues a 'gag' order on the press to prevent prejudicial/pre trial publicity?
they are NOT allowed! if you see a fact pattern on mbe about a highly publicized trial and the judge wanting to protect d's right to fair trial by gag order, this is UNCONSTITUTIONAL!
this is tested on a lot!
When can the govt req a license for speech?
only if there is an important reason and clear criteria leaving almost no discretion to the licensing authority; must also be procedural safeguards: prompt determination of requests for licenses, judicial review of license denials
What does vagueness mean and what is the consequence of a vague law?
a law is unconstitutionally vague (void for vagueness) if a reasonable person cannot determine what speech is prohibited and what is allowed; must specify in sufficient detail what is prohibited conduct
ex. an ordinance prohibiting any literature that "corrupts morality of children" was void for vagueness b/c can't determine what is corrupting
What is overbreadth?
a law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
ex. an ordinance prohibiting any live entertainment to shut down nude dancing would shut down plays and sports events!
What are fighting words and are they protected speech?
words designed to provoke retaliation; this is NOT protected speech BUT statutes attempting to punish this speech is often VOID FOR VAGUENESS
so in theory fighting words are not protected speech, but very little success stopping people from saying it
What is symbolic speech and what is the standard applied to whether the govt can regulate it?
it can be a physical act that is meant to express something; govt can regulate it if govt has an important interested UNRELATED to suppression of the message itself, AND if the IMPACT on communication is NO GREATER than necessary to achieve the govt goal
ex: beating the dean up to express a message about law school is not symbolic speech that is protected: govt could regulate this b/c it is important to stop/prevent assaults, and preventing the assault is unrelated to the message of hating law school
What is unprotected/less protected speech?
a) draft card burning (b/c important interest to be able to mobilize in emergency), b) nude dancing, c) incitement of illegal activity (more below), d) obscenity and sexually-oriented speech (more below), e) some commercial speech (more below), f) defamation (more below), g) ads for illegal activity/false and deceptive ads, h) some true ads that can be deceptive, i) speech by govt employees on the job
What is protected speech?
a) flag burning, b) burning a cross UNLESS intent to threaten or intimidate someone (like kkk putting burning flag in black person's lawn), c) contribution limits in election campaigns allowed, BUT expenditure limits in campaigns NOT allowed (discussed in next slide), d) anonymous speech (have a right NOT to disclose our identities and not to speak at all), e) generally profane and indecent speech (exceptions on later slide), f) accountants can solicit clients for profit
Discuss first am issue of contribution limits in election campaigns further
the govt CANNOT limit the amount a person spends to get candidate elected, as long as expenditures are INDEPENDENT of the candidate and not disguised contribs; corporations, unions and other entities can spend whatever they want to get candidate elected (also, can limit contributions in incremental values, but can't limit the total amount given to a candidate)
so if you can only give $25,000 to a candidate, you must only spend that much in any given transaction, but can have unlimited transactions (so could spend as much as you want total)
Can the govt req disclosure of names and addresses of persons who sign ballot petitions?
YES, a state has an interest in promoting transparency and accountability in elections justifies this
Can anyone challenge speech by the govt as violating the first am?
NO, govt not req to aid free speech, can fund certain programs even if reflects a certain position, just reqs rational basis review
Discuss first am issue of incitement of illegal activity further
this is UNPROTECTED speech; modern test=govt may punish speech if substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality
ex. "let's blow up dean's office" and guy is carrying a bomb
Discuss first am issue of obscenity and sexual-oriented speech further
3 part test: 1. material must appeal to "prurient interest" meaning "shameful or morbid interest in sex", 2. must be patently offensive under the law (meaning law must specify what is in the category of patently offensive, and 3. taken as whole, material must lack serious redeeming artistic, literary, political, or scientific value as determined by national NOT local standard
tested on a lot!
Obscenity in NY
3 part test: 1. material must appeal to "prurient interest" in sex of the average person, 2. must be patently offensive, measured by standards of community, and 3. lacks serious redeeming artistic, literary, political, or scientific value; to be guilty of possession of obscene articles the D must possess the material with the intent to promote--"a person who possesses 6+ or more identical obscene articles is presumed to possess them with intent to promote the same"--can rebut presumption if conclusively shows that he possess the material for private use, and the ultimate decision is for the jury, as fact finder
Can the govt use zoning ordinances to regulate #/location of adult bookstores and movie theaters?
yes, city has interest in preserving their neighborhoods
Can the govt punish private possession of obscene material?
no
Can the govt punish businesses convicted of violating obscenity law?
yes, the govt can seize the assets of these businesses, even assets unrelated to obscenity
What is the law on child porn?
can be banned completely even if not obscene; child porn=children must be used in the PRODUCTION of the material (not computer gen or adults who look like kids); govt can punish private possession of child porn
What about profanity and indecent speech?
generally protected, EXCEPT: 1) free, over the air broadcast media (uniquely intrusive into homes, unlike cable that you pay for); 2) in schools (b/c schools are promoting civilized discourse)
Discuss first am issue of commercial speech further
a) advertising for illegal activity and false/deceptive ads are NOT protected, b) true commercials w/inherent risk of deception can be prohibited (states can prevent use of trade names; can prohibit attorney in-person solicitation of clients for profit)
What about lawyers who advertise as debt-relief agencies
can be req to include legal status and nature of assistance provided, possibility of a debtor filing for bankruptcy
What about accountants?
govt may NOT prohibit accountants from in-person solicitation of clients for profit (trained in accuracy)
What about accident victims?
can prohibit solicitation 30 days after accident to protect family id
What is the standard for commercial speech regs?
must be narrowly tailored, but does NOT need to be least restrictive means
think dorm solicitations on campuses, can prevent this even if a less restrictive means (like req licenses) is available
Re defamation, if the P is a public "official", how can she recover for defamation?
must prove with clear and convincing evidence the FALSITY of the statement and ACTUAL MALICE, where the D knew the statement was false or acted with reckless disregard of the truth
we want public debate so standard is higher
Re defamation, if the P is a public "figure", how can she recover for defamation?
must prove FALSITY of the statement and actual malice (these are celebs, although never explicitly defined)
Re defamation, if the P is a "private figure" and matter is of "public concern", how recover?
state may allow P to recover COMPENSATORY damages by proving FALSITY of statement and NEGLIGENCE/actual injury, where D was not as careful as a reasonable speaker should have been; BUT can recover PRESUMED or PUNITIVE damages (presumed=automatic) only by showing ACTUAL MALICE as the injury!
Re defamation, if the P is a "private figure" and matter is of a private concern, how recover?
can recover presumed or punitive damages w/o proving actual malice (no real burden of proof or standard for damages, but if the d has the defense of that it was the 'truth' and therefore not defamatory, burden of proof on him for that)
policy is that private defamation has less protection of the d b/c not a public interest and therefore not related to chilling public discourse
What can the state do re truthful reporting of info that was legally obtained?
state cannot create liability for this
ex. law prohibiting releasing id of rape victim, media got id from public records, this was allowed
What can the state do re the media broadcasting info that was illegally intercepted?
cannot hold media liable for broadcasting a tape of an illegally intercepted and recorded call, SO LONG AS the media did not participate in illegality and involves matter of public importance
ex. teachers on phone, illegally intercepted, radio allowed to broadcast
What can the govt do re its own dissemination of info?
can restrict own dissemination to protect privacy (meaning prevent public from attending certain govt proceedings); BUT only time where public has first am right to attend govt proceedings and access govt papers if for CRIM TRIALS and PRETRIAL proceedings
Is speech by govt employees on the job protected by the first am?
no
What places are available for speech?
1) public forums, 2) designated public forums, 3) limited public forums, 4) non-public forums, 5)
Discuss public forums
a) govt properties that govt constitutionally req to make available for speech: 1) parks, and 2) sidewalks (EXCEPT for post office sidewalks); b) regs must be SUBJ MATTER and VIEWPOINT neutral, or else strict scrutiny applies; c) regs must be a TIME, PLACE or MANNER reg that serves important govt purpose and leaves open ADEQUATE ALTERNATIVE places for commun; d) govt reg of speech in public forums need not use least restrictive means/alternative; e) permit fee reqs for parades/demonstrations are unconstitutional IF city officials have DISCRETION in setting the AMT of the fee
time place manner=if restrict certain speech/noises to certain times etc, ok if desire to preserve tranquility and there are alternatives
Discuss designated public forums
govt properties that the govt could close off to speech, but voluntarily opens to speech (same rules apply to reg public forums) BUT govt CANNOT choose who speaks and content
ex. schools can be opened up on weekends/evenings for non-school purposes
Discuss limited public forums
govt properties that are limited to certain groups/dedicated to discuss certain subjects, can reg speech SO LONG AS reg is reasonable and viewpoint neutral
ex. public schools, or city owned theater, or municipal auditorium....hold candidate debate, but not allow another person to discuss religious info during the debate: it's ok to limit the forum!
Discuss non-public forums
govt properties that govt constitutionally can and does close off to speech; can reg SO LONG AS reg is reasonable (meets rational basis) and viewpoint neutral; exs: a) military bases, b) areas outside prisons and jails (for security), c) schools (public law schools may req extra-curricular student groups funded by student activity fees to accept all students regardless of status or beliefs), d) signs on public property (ordinance prohibiting posting on poles, even if temporary, allowed), e) sidewalks (sidewalk on post office property is considered private sidewalk), f) airports (non public so can prohibit solicitation of $ but NOT distribution of literature
sidewalk one tested on!
Is there a first am right of access to private property for speech purposes?
no, ex. is shopping mall: privately owned!
this tested on a lot!
What standard of review if govt restricts freedom of association?
strict scrutiny applies to: 1) laws the prohibit or punish group membership must meet strict scrutiny; 2) laws that req disclosure of group membership, where it would chill association
disclosure of NAACP members during civil rights movement would chill membership/association
How can the govt lawfully punish membership in a particular group?
must prove: 1) person is actively affiliated w/the group, 2) has knowledge of the group's illegal activities, and 3) has the specific intent of furthering those illegal activities or objectives
Does freedom of association protect the right to discriminate against people?
generally NO, but EXCEPTIONS: a) if it's intimate association, where discrimination is b) integral to an expressive activity (ex is boy scouts, allowed not to admit openly gay men)
What are the 2 clauses involved in freedom of religion?
1) free exercise clause, and 2) establishment clause
Discuss the free exercise clause
a) cannot be used to challenge neutral law of general applicability (like peote, doesnt violate religious freedom b/c it's a neutral purpose and not intended to burden/target religion); b) govt may not deny benefits to individuals who quit their jobs for religious reasons (if refuse to work on sabbath, and quit job but state denies you unemployment benefits b/c they deemed it 'voluntary' this is unconstitutional)
Discuss the establishment clause
SEX: S=must be a Secular purpose to the law (req posting of 10 commandments in school has no secular purpose); E=the primary Effect must be neither to advance nor inhibit religion (nativity scene in a courthouse violates the clause, but multiple religious symbols with words 'tolerance' ok b/c not endorsing specific religion); X=must not be Excessive govt entanglement w/religion (if govt directly paid salaries of parochial teachers this would violate the clause)
Under the establishment clause, can the govt discriminate against religious speech or among religions?
no, UNLESS meets strict scrutiny
What is the policy under the establishment clause for religious activity in schools?
cannot have govt sponsored religious activity in public schools, BUT religious student and community groups must have same access to school facilities as non-religious groups
Under the establishment clause, can public schools allow prayer?
school prayer, even if voluntary, is NOT allowed; not even moment of silent prayer
Under the establishment clause, can the govt give assistance to parochial schools?
yes, SO LONG as not used for religious instruction; may provide parents with vouchers to use in parochial schools b/c there is a valid secular purpose for promoting education, and parents under right to raise kids can use the vouchers for religious schools if they want
Discuss the Import-Export Clause, Article I Section 10 Clause 2
prohibits states from imposing any tax on imported goods or on commercial activity connected with the imported good (like taxes discriminating against import) WITHOUT CONSENT from CONGRESS
What oaths may govt employees have to take?
oaths requiring govt employees to oppose the violent overthrow of the govt and to support the constitution; but cannot force them to show respect for the flag, as it may violate their religion