Con. Law 2011

Front 1

What are the three main parts of Art III section 1

Back 1

i. The judicial power of the US:

1. shall be vested in one SC, and in such inferior Courts as the Congress may from time to time ordain and establish.

2. The Judges, both of the supreme and inferior Courts, shall hold their offices during good behavior (life), and shall at stated times, receive for their services.

3. a compensation, which shall not be diminished during their continuance in office.

Front 2

What does Art. IIi Section 2 do?

Back 2

Grants the judiciary:
Subject Matter Jurisdiciton.

Front 3

What jurisdiciton does the Federal judiciary have power over?

Back 3

The Federal judiciary has Subject Matter Jurisdiction which includes Federal Question Jurisdiction and Diversity Jurisdiction.

Front 4

What is Federal Question Jurisdiction?

Back 4

Jurisdcition over:
cases, in law and equity, arising
i. under this Constitution,
ii. the laws of the US, and
iii. treaties made, or which shall be made, under their authority;

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What is Diversity Jurisdiction?

Back 5

Jurisdiction over cases:

affecting ambassadors, other public ministers and consuls;
c. to all cases of admiralty and maritime jurisdiction;
d. to controversies to which the US shall be a party;
e. to controversies between two or more states (between a state and citizens of another state);
f. between citizens of different states;
g. between citizens of the same state claiming lands under the grants of different states (and between a state, or the citizens thereof; and foreign states, citizens or subjects

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Over what type of cases does the SC have Original Jurisdiction or "Trial Type" Jurisdiciton?

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all cases affecting affecting ambassadors, other public ministers and consuls;
c. to all cases of admiralty and maritime jurisdiction;
d. to controversies to which the US shall be a party;
e. to controversies between two or more states (between a state and citizens of another state);
f. between citizens of different states;
g. between citizens of the same state claiming lands under the grants of different states (and between a state, or the citizens thereof; and foreign states, citizens or subjects

CONGRESS CANNOT EXTEND OR TAKE AWAY THIS JURISDICTION.

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Over what types of cases shall the SC have appellate Juridiction?

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1. In all other cases before mentioned,
a. the SC shall have appellate jurisdiction, both as law and fact (ie writ of mandamus)
2. with such exceptions, and under such regulations as the congress shall make

CONGRESS MAY ENLARGE OR REDUCE APPELLATE JURISDICTION

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What does the case of Marbury V Madison establish?

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The ability of the court to Review Acts of Congress

1. Establishes that the consitution is the fundamental and paramount law of the land.
2. The SC has the duty to say what the const. means and it's interpretation is binding on all branches as to what the consitution means.
3. If there is a conflict between a statute and the const., the crt has the authority and duty to declare the statute unconstitutional and void.
4. Created Judicial Supremacy

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What is the Supremecy Clause and what does it have to do with the Judiciary?

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The supremacy clause is located in Article 4 of the consitution and it says that the consitution and the laws made in pursuance thereof an dall treaties made or which shall be made, under the authority of the US shall be the supreme law of the land.

In COOPER v. ARRON, the SC held that an AZ gov. had to comply with the holding in Brown and that the SC's interpretation of the EP clause was also the supreme law of the land. An extension of the supremacy clause.

Front 10

Can the SC review state court decisions if they are in conflict with federal laws, decisions, or treaties?

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Yes

i. The SC can review the constitutionality of a decision by a state’s highest crt
1. Judicial pwr extends from the case or controversy – NOT from the crt – if judicial pwr extends to the case under Art III, §2 then there’s appellate juris., BUT NOT orig. juris.

In Martin v Hunter's Lessee a VA probate code statute which stated that aliens could not inherit land was in conflict with a treaty by the US gov. HIghest court in VA upheld the statute and said the SC had no right to review it's decision. Was held that the treaty superceded VA law.

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What grants the SC the power to review state court decisions?

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i. Jurisdiction extends to “cases and controversies.” The case is what is dispositive. If jurisdiction extends to case, that’s the end of the matter. It doesn’t matter which court it is from because THE CASE, NOT THE COURT GIVES JURISDICTION.

However, the court cannot merely review adjudications of state law.

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What's the difference between Cert and Appeal?

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iii. Cert v. Appeal
- Cert: absolute discretion to take the case
- Appeal: right demands the court to take the case (i.e. statute is in direct conflict with treat as is the case here; redistricting is one of the few where you have a right to the SC)

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May the SC review state issues?

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No.

iii. No review of state issues
1. The SC may not review state court decisions that merely adjudicate questions of state law
2. The SC’s review of state court judgments = lim.d to questions of fed. law
3. The SC’s review of state court judgments is prohibited when there’s an independent adequate state ground

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What is the idea of concurent jurisdiction?

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iv. Concurrent Juris.
1. the Judiciary Act said concurrent juris. w/ appellate review To make sure that st8s = doing properly so = uniformity w/ fed/st8 interp of Constit.,
a. Since we can’t try them, then must → app. rev.
2. It’s not the crt that gives us juris., it’s the case (if the judicial pwr ext.s to the case under Art 3, § 2, it = vain search to look in Constit. 4 where to hear the case)
3. Enumerated cases = described in Art. 3 § 2

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After cooper v Aaron what are some of the fears that the SC had and what will they do to make sure they don't cross the line?

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The SC knew that they were supreme in interpreting the law but knew that they needed JUDICIAL self restraint in order to keep their power because they do not have the power to enforce the laws.

Some tools of judicial self restraint are:

o Jackson and Cherokee case: “Let’s watch him enforce it.”
o Tools such as standing/ripeness
o If we can avoid the constitutional question
• You’ve alleged EP of the 14th, but wait we can answer this under Federal Voting Rights Act
o Raising an issue for the first timein the SC
o There is a strong judicial presumption that what president/Congress have done is constitutional
• Burden is usually upon the other branches
• EXCEPTION REGARDING FIRST AMENDMENT:

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What is the exceptions Power?

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The exceptions power refers to the exceptions power given to congress in article 3 section 2.

In Marbury the SC ruled that while the COurt's og jurisdiction was sef-excecuting, the appellate jurisdicion could be regulated (take away all or some) by Congress. The language in the second sentence "with such exceptons and under such regualtions as congress shall make" confers this power.

1. Cong. can’t violate indiv. liberties (ie can’t t/o the crt’s ability to review habeas corpus)
2. Cong. may not violate SOP
3. Cong. may not destroy the essential function of the SC
a. may not undercut court’s ability to accomplish what the constitution req.s

and all limitations must be nuetral

In McCardle the SC withdrew jurisdiciton of a reconstruction statute under which Mc was charged for publishing editorials in a Miss. newspaper.

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What is meant by Justiciability?

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Justiciability is a term used to describe the tools of judicial self-restraint.

These tools inlude:
1. RIpeness
2. Standing
3. Mootness and
4. Political Questions

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What makes something a political Qustion?

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1. Does the Constit. say that a particular matter should be decided by the Prez. or Cong.? If yes  then not justiciable
2. Crts won’t ans. certain questions if the questions are beyond the competence & capability of the crts
ii. Criteria for political questions (SC will not answer any question that meets any of the 6 factors)
1. A textually demonstrable Constit.al commitment to a coordinate political dept (Constit.al)
a. Ex: Making treaties or amending the Constit.
b. Ex: Declaring that free speech = vio.d by Nat’l Guard’s presence
2. A lack of judicially discernable & manageable standards for resolving the issue (Prudential)
a. Ex: Gerrymandering
3. The impossibility of deciding w/o an initial policy determination of a kind clearly for non-judicial discretion (Prudential)
a. Ex: Prez. must recog. country before they get access to the crts
4. The impossibility of a crt’s undertaking independent rez. w/o expressing lack of respect due to coordinate branches of govt
a. Ex: Mil. decisions by the Prez.
5. An unusual need 4 unquestioning adherence to a po.al question already made
a. Ex: Prez. destroyed petroleum reserves so it wouldn’t do any good to come back & litigate the question
6. The pot. of embarrassment from multi-furious pronouncements by various depts of one question

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iii. Examples of Political Questions

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2. Whether a treaty was properly terminated/fo. affairs in gen.
3. Whether the Prez. is appropriately breaking off diplomatic rx.s
4. Whether the hostilities of a war are actually over/whether US = under attack/appropriate amt of force to use/war in gen.
5. Whether the Prez. properly dispatched the military
6. Arming, training, etc the Nat’l Guard = province of Cong. (Art. 1 § 8)—crt won’t be able to eval. it satisfactorily b/c no expertise
7. Basically anything dealing w/ Constit.al Amdts
8. Questions about the Guarantee Clause (Art IV, § 4)
9. Questions about what = a “republican form of govt”

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To whom does the political question doctrine apply?

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1. The po. question doctrine applies horizontally to actions & inactions of Cong./Prez. (it’s the essence of SOP)
2. The po. question doctrine DN apply vertically to issues raised by the states
3. Doctrine DN apply when SC = faced w/ the antecedent question as to who under the Constit. has been assigned the po. decision-making pwr

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Case examples of political questions

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1. Baker v. Carr
a. Issue  whether a redistricting act precluded a state from being a republican form of govt by creating an arbitrary method of electing officials
b. Conclusion  court would not decide the issue because the Prez. & Cong. already recog.d the state as a republican form of govt as req.d by Constit.
2. Goldwater v. Carter
a. Issue  whether the Prez. may cancel a treaty w/o advice & consent of Senate
b. Conclusion  court won’t decide the issue b/c it’d be perf.ing the pwr of the executive & legislative branches; this is too much like ratifying a new Amdt
3. Gilligan v. Morgan
a. Issue  whether the judiciary should oversee the training of the Nat’l Guard
b. Conclusion  crt won’t decide this issue b/c it’s not qualified to oversee mil. training
4. Nixon v. US - Factor 1
a. Issue  Whether the crt will review impeachment proceedings
b. Rule  crt won’t b/c the Senate has the sole pwr to try all impeachments

Front 22

what does article 3 section 2 require?

Back 22

cases and controversies

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What is the general rule of ripeness?

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we must have concrete facts and actual conflict between parties truly osdile and adverse to each other.

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What are the three elements of ripeness?

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1. You must have an actual case or controversy (more than a hypo so that the court is not handing down advisory opinions.
--ex. you must have aliens denied at the border, not thinking about coming over.

2. You must have actual adverse parties (both parties must have a true stake in the outcome)
-ex. muskrat, not ripe because the US did not have a stake in the outcome, a straw defendant.

3. Injury in fact (an acutal injury, not just a threat)
-ex. sierra club could not bring suit because logging had not yet begun.

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Examples of ripeness cases

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Muskrat - the us and muskrat were not adverse parties. US was giving US land. The controversty was between the original indians granted the land and the new indians that were granted land. (must have actual adverse parties)

Siera club - the logging had not yet begun. there was no injury (must have an injury in Fact)

Aliens at Border - not a hypothetical

Front 26

What is the exception to ripeness?

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Self-excecuting statutes or regulations

If statute/regulation is self-executing such that its mere presence causes actual injury prior to its enforcement, one DN have to wait until the rule is invoked against them (aka pre-enforcement actions)

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How does a self-excecutng statute work?

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The mere prescence of the law must cause irreperable harm

ex. Pierce - • New England passed a law that no person shall in any private deonominal, parachocial school shall teach any subject other than English until the 8th grade
o The mere presence of that law puts a chill on the freedom of the people who teach in schools

Ex. criminal statutes that may be vague.

ex. Perce- • The AK statute prohibiting teaching of evoluation
o You may say that’s stupid, but it was a criminal offense 6 months in jail
o No one wants to be the first one to be prosecuted so they can take that to the SC

ex. • If we passed a statute that said all children must be enrolled in public schools starting in the year 2012
o Those private schools suffer irreparable harm today because the parents will just go ahead and put the kids in the public school
• These are called self executing – the mere presentce of the law threatens to cause irreparable harm to a right.

Front 28

What is mootness?

Back 28

something is moot when an intervening circumstance nullifies a question such that there is no longer any case or controversy.

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Can a case be moot even after it has already been filed?

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Yes. A case is moot if events occuring after the filinf deprive the litigant of an ongoing stake in the case - ie death of a person, closing of a business, or the admittance to a school.

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Case examples of mootness

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1. Defunis - a suit for reverse discrimination, but by the time the case hits the SC, he is already in his 3rd year of law school.

c. Tiverton
i. Issue - whether 4th Amdt exclusionary rule applies to admin.ive proceedings in revoking a liquor license
ii. Conc.  case was moot b/c bar went out of biz. before case was heard

d. Arizonans for Official English
i. Issue  Whether a state statute vio.d 1st Amdt b/c it req.d all state officials to conduct biz. in English
ii. Conc.  case was moot b/c P quit her job
e. Tory v. Cochran (was not moot)
i. P died & defamation inj. = still in effect against D
ii. NOTE: When we’re dealing w/ the death of a party, make sure the person who dies is the person who the issue applies to (& not merely a party to the suit)

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What are the Four exceptions to Mootness?

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1. Capable of repetition, yet evading review (Roe v. Wade)

2. Class Actions (Sosna v. Iowa)

3. Voluntary actions to make case moot

4. Collateral Consequences

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Capable of repetition, yet evading review

What are the elements and what is an example of the case?

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1. ELEMENT #1: Challenged action was in its duration too short to be fully litigated prior to its cessation or expiration AND
2. ELEMENT #2: A rzble expectation that the same complaining party will be subject to the same action again
a. Ex: Capable of being preg. again; not capable of going to law school again
b. Likely as opposed to speculative that the same injury will occur to the same P

Ex. Roe v Wade

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Class Actions

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f litigant meets the req.mnts of class axn status, then they’ll will be considered an adverse party b/c theoretically someone in the class will always be suffering the same harm

Ex. b. Sosna
i. Issue  f. brought suit alleging vio. of EPC b/c statute req.d 1 yr residency for divorce
ii. Conclusion  case was moot b/c she’d meet the residency req.mnt but crt ruled on case b/c a class had been est.d (Class Action Exception)

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Voluntary actions to make case moot

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i. Erie
1. Issue  whether state statute vio.d 1st Amdt free speech by restricting nudity
2. Conclusion  not moot b/c the conduct was capable of repetition b/c owner still had license & could open another club (You can’t fake Mootness by temporarily shutting down)

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d. Collateral Consequences

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i. Subs. & valid claim still exists (such as $ damages, crim. sentence, felony still on record, Cong.man not compensated)

ii. Ie Powell v. McCormack-Past his term for Senate BUT he had subs. claim for $ damages in salary denied to him

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Standing

What is Statnding?

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The litigant must have a personal or property interest in the matter that’s particular to P & P must be affected in fact (This = concerned w/ who gets to sue & for what)

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What is constitutional standing? and what are the elements?

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i. Constit.al Standing (MANDATORY in EVERY case & can’t be waived) Rules → To have a proper stake, A P must show:

1. Injury in Fact:
2. Proof of Causation
3. Proof of Redressability

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What is an "injury in fact?"

Back 38

An invasion of a legally protected interest which is:

a.Concrete & particularized AND Actual & imminent (not hypothetical)

b.The P must have suffered direct & personal harm

c. The injury must come w/in the zone of the Constit.al claim

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What is proof of causation?

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(a causal connection bet. alleged injury & conduct complained of)
a. The injury must be fairly traceable to the challenged action of the D and NOT the result of the independent action of some 3rd party not before the crt

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What is Proof of redressability?

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a. Must show that the remedial order of the court will likely alleviate the injury suffered likely (if you win will the problem be fixed?)
i. Ie are you going after the correct D?
b. It must be “likely” as opposed to merely “speculative” that the injury will be “redressed by a favorable decision”

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Constitutional Standing Case Examples (1)

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i. Sierra Club
1. Issue  whether Sierra Club (due to special int. in conservation of nat’l parks) had standing to challenge building of amusement park in the forest
2. Conclusion  no standing b/c they DN est. injury in fact to the people who used the forest, they DN show how people would be injured

ii. US v. Richardson
1. Issue  Whether a citizen had standing to force CIA to give account of receipts & expenditures
2. Conclusion  no standing b/c injury was abstract & psychological

iii. Valley Forge
1. Issue  Whether the parties had standing to challenge disposition of govt property vio.ing the Establishment clause
2. Conclusion  no standing as taxpayers b/c they were challenging an admin.ive reg. under Article IV, § 3, rather than an appropriation; no injury in fact b/c no pers. injury, just a psychological generalized grievance suffered by all Americans

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Constitutional Standing Case Examples (2)

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iv. US v. Hays
1. Issue  Whether people living outside voting dist. could contest redistricting
2. Conclusion  no standing b/c abstract & generalized grievance/must live in dist. in order for it to be a personalized injury

v. Raines v. Byrd
1. Issue  Whether members of Cong. may sue challenging the passage of an act that may be unconstit.al
2. Conclusion  no standing b/c Prez. hadn’t vetoed anything—therefore no injury in fact

vi. Clinton v. NY
1. Issue  Whether NY could challenge an exercise of Presidential pwr under the line item veto act
2. Conclusion  parties had standing b/c they were actually injured by the veto, there was a causal connection b/c they sued the party who caused the injury, & Constit.al vio. of bicameralism & presentment

vii. Duke
1. Issue  whether residents near nuclear pwr plant have standing to challenge statutory caps on liability for nuclear meltdown
2. Conclusion  had standing b/c injury in fact (aesthetic & envtal), personal (Ps lived nearby)

viii. Lujan
1. Issue  Whether an envtal grp could challenge a reg. which lim.d Endangered Species Act to US
2. Conclusion
a. no standing b/c
i. no injury in fact  desire to appreciate animals was a cognizable int. but not protectable
ii. redressability  US can’t control fo. govts
iii. causal connection  regulating endangered species might not help them

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Prudential Standing Requirements

What are they?

Back 43

The prudential standing requirements are requirements for standing imposed by the court for pragmatie reasons. These requirements may be changed by statute.

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What are the prudential standing requrements?

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1. No general grievances
2. A logical nexus between the P's status and the claim to be adjudicated.
3. You can't assert the rights of a third party

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What does no general grievances mean?

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If the claim is shared by millions, then the claim is too inconsequential to have standing.

General Rule → US taxpayer doesn’t have standing to question a Federal appropriation because injury suffered is one suffered by millions and is miniscule. (Frothingham)

Front 46

What are the two exceptions to the no generalized grievances rule in prudential standing?

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⇨ Exception: Local taxpayer does have standing to sue if he is challenging a municipal tax appropriation because claim in not fractionally infinitesimal

➢ City Council appropriates 400K to have marble nativity scene in front of City Hall. This goes against the 1st amendment Establishment Clause (separation of church and state). Who has standing → Waco resident can challenge because the money he pays in taxes isn’t minute.

⇨ Exception: Earmarking Exception → if you can trace your tax dollar that went to pay for unconstitutional program, you have standing (US v. Butler)

Front 47

What is required to have a logical nexus between the plaintiff's status and the claim?

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Two mandatory requirements:

(a) logical link between status (taxpayer) and specific type of legislative enactment that he questions (GWC)

(b) logical link between status (taxpayer) and the precise nature of the Constitutional right asserted (some express or implied prohibition on taxing and spending)

Front 48

The nexus between the plaintiff's status and the claim is an exception to the general grievances issue.

What are we concerned with?

Back 48

we are concerned with the taxpayers questioning appropriations not standing to question the tax.

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Again, what are the elements of the flast exception?s

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a. Elements
i. ELEMENT #1: Taxpayer must est. a logical link bet. the taxpayer status & the specific piece of legis.
1. If the legis. was enacted under the GWC, then there’s a rebuttable presumption that you have paid the tax & satisfied this element
2. The only time to est. the nexus bet. being a taxpayer & the appropriation is under the GWC
ii. ELEMENT #2: Taxpayer must show an express prohibition in the Constit. on Congress’ taxing & spdg pwrs that has been vio.d/exceeded by the act
1. ONLY provision ever accepted by the crt is the Establishment clause (if govt is spdg money to endorse religion)

Front 50

What is meant by no third party standing?

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The general rule is that:
: A party DN have standing to assert the rts of a 3rd party UNLESS:
a. The 3rd party has suffered an injury in fact
b. The 3rd party has a close rx to person whose rts he seeks to assert
c. There’s some hindrance on the 3rd party to asserting his own rights

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Examples of the third party exception:

Back 51

2. Singleton
a. Issue  Whether a physician may bring suit on behalf of women for not allowing Medicaid funds for abortions
b. Conc.  standing b/c
i. Doctors suffered injury in fact (they DN get paid)
ii. There’s a close rx bet. doctor & patient
iii. There’s a hindrance on the 3rd party b/c of privacy & cost to bring suit
3. Powers
a. Issue  Whether a white criminal may bring suit for the discrim. of black jurors in the voir dire process
b. Conc.  standing b/c
i. Injury in fact  taints the entire judicial system
ii. Close rx  close rx in the int. in trial
iii. Obstacle  jurors won’t invest time or money to bring suit

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where does state sovereign immunity come from?

Back 52

The 11th ammendment

i. The judicial pwr of the US shall not be construed to extend
1. to any suit in law or equity,
a. commenced or prosecuted against one of the US
i. by citizens of another state, or
ii. by citizens or subjects of any foreign state”

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What does the 11th ammendment bar?

Back 53

1. suits by a citizen against his state in Fed. Court

2. Suits by a citizen against a state, een if a fed question is raised

3. Suits in state court (11th am never applicable in state court)
- also you can't bring a 1983 action against a state becaue it is not a person.

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What are the 6 exceptions to 11th ammendment soverieign immunity?

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1. Suits against officials for injunctive relief
2. Suits by the US against a state
3. Suits against cities or other political subdivisions (becasue they are not states and are therefore liable under 42 USC 1983)
4. Suits by states against sister states
5. Waiver/Consent by states
6. Congressional Waiver of state SI
4.

Front 55

When can a person sue a state official?
What does it mean to ex parte young someone?

Back 55

The 11th amendment does not prevent suit against officials for injunctive relief

The suit must be:
1. Against a state official
2. for unjuncitve relief
3. Against a violation of FEDERAL law.

The theory behind this exception is that the official has acted outside his official capacity by enforcing an unconsitutional law and thus he is strippped of his sovereign immunity.

ONLY prospective monetary relief is granted, NOT retroactive relief (so only if new injury after suit BUT Ps here can’t recover). GR = ONLY declaratory + inj. relief.

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when and how can a state waive its own SI?

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a. A state will be deemed to have waived its SI ONLY where stated by the most express lang. OR by such overwhelming implication from the text as would leave no room for any other rzble interp. (ie Fed. Torts Claim Act)

b. A state waives its 11th Amdt immunity when it removes a case from state crt to fed. crt (Lapides)

c. In accepting fed. funds, has the state consented to suit in fed. crt? --Cong. must manifest clear intent to condition participation in the prgm funded under the Act on a state’s consent to waive SI

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When may congress abrogate a state's sovereign immunity?

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Cong. may abrogate a state’s immunity when:
a. Elements
i. ELEMENT #1:Cong. expresses its intent to abrogate state SI under the 11th Amdt by clear & unequivocal lang. in the statute
ii. ELEMENT #2: Cong. acts under §5 of the 14th Amdt (Cong. can’t abrogate state SI under Art. I)
iii. ELEMENT #3: There’s a congruence (harmony) & proportionality (constancy) bet. the unconstit.al evil & the parameters of the statute
1. The states had to surrender enough SI to effectuate the guarantees of §1 of the 14th

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What is the short way to say that?

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Cong. may abrogate a state’s SI when:
A. There’s congruence &
proportionality bet. the injury to
be prevented or remedied, AND

B. The means are adopted to that
end

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Cases in which Congress could not abbrogate state SI

Back 59

b. Florida Prepaid
i. Issue  Whether Cong. had the authority to abrogate the state’s SI by patent infringement act when no history & patter of unconstit.al conduct by the states
ii. Conc.  No, there was no record of vio. by the states
c. Kimel
i. Issue  Whether age discrim. act abrogated the state’s SI
ii. Conc.  no history & pattern of unconstit.al conduct by the states
1. DN pass C & P test—it was so out of proportion to remedy that it couldn’t prevent unconstit.al behavior

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Cases where congress could abrogate state SI

Back 60

d. NV Department of Human Resources
i. Issue  Whether state employee can sue the state (dept director) under Family Medical Leave Act?
ii. Conc.  Cong. could abrogate SI under § 5 of the 14th b/c of the long & extensive history of sex discrim. w/ respect to admin. of leave benefits by the state & the remedy was congruent & proportional to the harm

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What is the analysis for whether or not congress may abrogate a state's sovereign imunity?

Back 61

Analysis
a. Has Cong. expressed its intent to abrogate state SI under the 11th Amdt by clear & unequivocal lang. in the statute?
i. If no  stop
ii. If yes  Did Cong. act pursuant to a valid grant of Constit.al authority?
1. If acted under Art. I-8-3 stop, Cong. can’t abrogate 11th Amdt SI

2. If acted under § 5 of the 14th Amdt  3 questions
a. Def. the precise scope of the Constit.al rt allegedly involved? (level of scrutiny = relevant here & to determine 3rd part)
b. Is there a history/pattern of unconstit.al conduct in regard to that Constit.al right by the States that Cong. is seeking to remedy?
c. Is the remedy sought by Cong. congruent and proportionate to the injury to be prevented &the means adopted to that end?
Ie you can’t prohibit more conduct than would be considered unconstit.al

3. If all yes, then Cong. may compensate prospectively

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What is Federalism?

Back 62

a. FG is one of enumerated or lim.d powers
i. The 3 branches of the FG may only assert those powers specifically granted by the Constit.
b. An action by a state actor is valid under fed. law unless it violates some specific lim.ion imposed by the US Constit.; while a fed. action must fall w/in one of the enumerated powers listed in the Constit.

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When is an action by a state actor valid and when is a federal action valid?

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b. An action by a state actor is valid under fed. law unless it violates some specific lim.ion imposed by the US Constit.; while a fed. action must fall w/in one of the enumerated powers listed in the Constit.

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Under the commerce clause what does Congress have the power to do?

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objective that falls w/in the specifically enumerated powers, Cong. may use any means that’s rationally rx.d to the objective being sought
i. DN have to be absolutely necessary for the enactment of an enumerated pwr—mere convenience may suffice

ii. N&P is NOT an independent source of legislative authority. It’s ONLY for the implementation of all the foregoing pwrs & ALL other pwrs enumerated. (Ie the N&P clause is only effective insomuch as it’s attached to an enumerated pwr listed in the Constit.)

Front 65

What does McCulloch v Maryland say?

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Necessarry and Proper does not mean it is absolutely necessary or indespensible.

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What is the ends/means test?

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Let the end be legitimate,
let it be w/in confines of Constitution,
and all means which are appropriate which are plainly adapted to that end
which are not prohibited with the letter and spirit of the Constitution, are Constitutional

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The ends means test broken down

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iii. THE “ENDS/MEANS TEST” for determining validity of N&P legis.
1. The ends of the statute are legitimate & w/in the confines of the Constit.
2. The means are rationally rx.d to a constitutionally specified object
3. The means aren’t prohibited by the Constit

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Requirements for a statute to pass the Necesasy and proper test

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v. REQUIREMENTS In other words
1. N & P clause must attach to another pwr specifically enumerated in Constit.
2. Statute may not violate express prohibitions in the Constit.
3. Statute must be rationally rx.d to a constitutionally specified objective
a. Ex.s of specified objectives: lay & collect taxes; provide for the defense of the country; borrow money on the credit of the US; regulate commerce, immigration & bankruptcy

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What is the commerce clause?

Back 69

the commerce clause is Art. 1.8.3


it gives Congres the Power “To regulate commerce w/ fo. nations, & among the several states, & with the Indian tribes.”

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What does commerce mean?

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i. Commerce means all types of commercial intercourse

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Can Congress Regulate Intrastate Commerce?

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ii. If intrastate commerce has a direct & subs. fx on interstate commerce, then Cong. can regulate it by latching it on to the Elastic Clause
1. The Elastic Clause is a dependent clause (need to attach it to the commerce clause & then can legislate in McCullough v. MD)
2. This clause can be attached to ANY of the enumerated pwrs so long as it DN vio. an express prohibition in the Constit.
iii. Cong. can’t use commerce clause to circumvent express prohibitions in the Constit.

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What are the three broad categories of activity that Congres may regulate under the commercce clause?

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1. Congress may regulate the USE OF THE CHANELS OF INTERSTATE COMMERCE

2. Congress may regulate & protect THE INSTRUMENTALITIES (things) of interstate commerce or persons or things in interstate commerce even though the threat may come only from intrastate activities

3. Congress may regulate those activities having a subs. rx to interstate commerce—those activities that SUBSTANTIALLY EFFECT interstate commerce (this refers to intrastate activities)

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What is the difference between interstate and intrastate commerce?

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a. Intrastate that which is physically confined to one state is w/in the reserve pwr of the states under the 10th Amdt (Cong. can regulate activity if there’s a subs. effect on interstate commerce)
i. Rights traditionally left to the states
1. Education
2. Family law
3. General criminal law/“police power”
b. Interstate  activity that physically crosses state lines is w/in Congress’s pwr to regulate pursuant to interstate commerce

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What is the concept behind the stream or flow of commerce?

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Whenever an article, commodity, or person enters into the stream or flow of commerce, commerce cont.s w/ respect to that person, article, or commodity UNTIL the termin. of the journey even though there may be a multitude of conveyances that appear to be merely interstate in character

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What are some examples of the way congress can reguate the cannels of interstate commerce?

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4. Examples
a. Navigable waters = waterways that do/could go thru 2 states or connect w/ int’l waters (Cong. has plenary pwr to regulate things in navigable waters)
i. Ex: Lake Michigan connects to an int’l body of water; same w/ Brazos River even though confined to state of TX b/c flows into Gulf of Mexico

b. A commodity that’s begun to move as an article of trade from one state to another is interstate commerce bet. that states until its terminates (even though there may be intrastate transactions in between)
i. A driver’s pers. info. is an article of commerce therefore its sale into interstate stream of commerce is sufficient to support Cong.al regulation (also ins. info.)

c. Keeping channels of interstate commerce free from immoral & injurious users (that’s whatever Cong. def.s it as); Cong. can keep ppl out of streams of interstate commerce & PREVENT them from using the streams for immoral purposes (ie can’t transport your prostitute to have sex in your state)
i. BUT Cong. can’t punish mfgrs w/ child labor b/c once the product is ready to travel, the evil deed is done whereas w/ hooker the channel of commerce is used for evil which isn’t complete before enters stream

e. The effect of intrastate commerce regulations on interstate commerce can’t be TOO indirect–there must be a direct effect in order for Cong. to have the pwr to regulate (Schechter Poultry)

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e. The effect of intrastate commerce regulations on interstate commerce can’t be TOO indirect–there must be a direct effect in order for Cong. to have the pwr to regulate

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EX. schecter poultry -

US argued alternatively that (1) S’s activities were within the stream of commerce of the chicken, and (2) S’s activities (wages – not paying min. wage, hours – letting them work over 40 hrs/week, and working conditions), though completely local, substantially effected commerce.

iii. Holding: The act was unconstitutional (distinguishes direct v. indirect effect)

(1) Not in the stream of commerce because the transactions ended when the chicken reached the NYC slaughterhouses.

(2) Not directly affected commerce because wage and price policies did not directly affect interstate commerce.

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ii. Congress may regulate & protect the instrumentalities (things) of interstate commerce or persons or things in interstate commerce even though the threat may come only from INTRASTATE CTIVITIES

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examples
a. Shreveport Rate Case - court said ICC could regulate intrastate rate because of the close and substanital relationship to interstate traffice

b. b. Southern RR -req.ing all train cars to comply w/ safety reg.s, impacts purely intrastate carriers
this is okay b/c ii. If there is a sufficiently close & direct rx bet. the 2 classes of traffic, such that the safety of interstate activity = affected by the intrastate activity, reg. is proper

c. c. Heart of Atlanta --Whether Title 7 CRAct of ‘64 can prohibit a hotel that advertised out of state from discrim.ing against blacks
-act Constit.al b/c it’s regulating use of channels & protecting instrumentalities
1. Injurious in 2 ways
a. Quantitative injury  blacks DN want to travel if = discrim.d so affects tourism
b. Qualitative injury  the hotels that allows blacks will be inferior

d. Airports-You’re in a place where interstate commerce channels are, so Cong. can regulate it (ie TSA searches b/c we’re protecting ppl & things in interstate channels)

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What is the third broad category of activity that congress may regulate through the commerce clause?

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iii. Cong. may regulate those activities having a subs. rx to interstate commerce—those activities that subs.ly effect interstate commerce (this refers to intrastate activities)

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How doe we know if an intrastate category "substantially effects" interstate commerce?

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We use the substantial effects test:

a. The rx bet. the regulated activity & interstate commerce must be strong enough or close enough to justify fed. intervention

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What is the first step in determining whether or not a an intrastate activity substantially effects interstate commerce?

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First, we must distinguish between economic and non-economic activity

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what is the third broad category of activity that congress may regulate throught the commerce clause?

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activities having a subs. rx to interstate commerce—those INTRASTATE activities that subs.ly effect interstate commerce (this refers to intrastate activities)

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What is required for congress to reguate these activitiies?

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a. The rx bet. the regulated activity & interstate commerce must be strong enough or close enough to justify fed. intervention

Front 83

What are teh two types of activity that Congress can regulate?

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Economic and non economic activity

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How can Congress reguate INtrastate economic activity?

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iii. Aggregate/Cumulative Effect Test-Where the cumulative or aggregate effect of local activity is subs. when tkn together w/ that of many others similarly situated, regulation is proper

2. Exs: Restaurants that use interstate supplies, inns/motels catering to interstate guests, & production/consumption of homegrown wheat

DN use this test when there’s interstate commerce

2. It’s the effect upone interstate commerce, NOT the source of the injury (marij.), which is the criteria for eval./that gives Cong. the regulatory authority

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How can Congress regulate intrastate non-economic activities?

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ii. For Cong. to regulate non-econ.ic activity, there must be:

1. Jurisdictional hook/nexus that ties it back into interstate commerce (nexus bet. the activity being regulated & interstate commerce)
a. Ex.  “if he travels thru channels of interstate commerce to get to school or weapon had traveled thru interstate commerce”

2. Subs. effect on commerce
a. Subs. effect on interstate commerce must be direct & unattenuated
b. Mere but-for connections are attenuated & insufficient to confer reg. under the commerce clause

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Commerce Clause Regulation of INTRASTATE activiity examples

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Non-economic activity cases

iii. US v. Morrison
1. Issue  Whether VAWA = Constit.al under the commerce clause
2. Conc.  no b/c violence against women DN subs.ly effect interstate commerce. This was a non-econ.ic statute w/ no jurisdictional hook to tie crime to interstate commerce
iv. US v. Lopez
1. Issue  Whether Cong. could regulate gun possession w/in school zones
2. Conc.  no, b/c it was a purely intrastate activity & a non-econ.ic activity. Further there’s no jurisdictional hook.
3. Misc.-It’d not commerce even if life ins. po. in diff. st8, even if ppl won’t come to town & visit, etc.
v. Dewey
1. Issue  Whether arson of a private occupied residence can be reg.d by the commerce clause
2. Conc.  no, if a residence isn’t used for any commercial purpose it’s not used in commerce/if residence is occupied by tenants then it can come under the commerce clause b/c that’d be a commercial purpose

Economic Activity with an aggegate effect on interstate commerce

commercial purpose
3. Katzenback
a. Issue  Whether BBQ restaurant discrim.ing against blacks that DN advertise in interstate commerce & not located near an interstate highway, but did get meat from out of state could be prohibited from discrim.ing b/c of Act
b. Conc.  Constit.al b/c BBQ restaurant got 46% of their meat from out of state, therefore had a subs. rx to interstate commerce. Cumulative effect test  if all restaurants could discrim., the effect wouldn’t be infinitesimal

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Where does Congress get its powers to tax?

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From article 1.8.1 and from the 16th ammendment.

Front 88

What is the difference between a tax that is primarily for raising revenue and one that is primarily regulatory?

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If the thrust of the tax is to raise revenue then it is a revenue based tax.

If the the tax is acitvated by engaging in prohibited conduct and/or singes a single person out then it is regulatory.
--However, congress can single out an entire industry and this is considered revenue producing.

an example of singling out an individual is taxing them within an industry when they engage in certain business activities (then it is a penalty)

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So when can congress tax?

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Congress can always tax for raising revenue under 1.8.1.

If a tax siingels people out and works essesntially as a penalty, then it is regulatory on its face. In this case, congress only has the power to tax those things whic it has enumerated powers to regulate.

When it regulates under its enumerated powers, then Congress is not really taxing for revenue but instead attaching the N+P clause to the enumerated power (e. regulating commerce) in order to use taxes to regulate.

Congress cannot pass a tax that is regulatory on its face for something that it does not have the enumerated power to regulate.

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Taxing Power Case Examples

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b. US v. Kahriger
i. Issue  Whether gambling tax imposed on everyone in the biz. of gambling vio.d dual sovereignty under the 10th Amdt
ii. Conc.  No b/c all ppl in the gambling biz. were affected by the tax & it wasn’t regulatory on its face but was in fact for revenue
c. Veazie Bank
i. Issue  Con Cong. tax banks on 10% of notes issued?
ii. Conc.  yes, tax is valid b/c although it was regulatory it did raise revenue & was imposed on all
d. Bailey v. Drexel Furniture
i. Issue  Whether a tax imposed on employers of under-aged children vio.d dual sovereignty under the 10th Amdt
ii. Conc.  the tax was unconstit.al b/c it was only imposed on those who vio.d & was a penalty rather than for raising revenue

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From where does congress get its power to spend?

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From the General Welafare Clause

The Cong. shall have the pwr to pay the debts & provide for the common defense & general welfare of the U.S.
2. GWC confers only a pwr to spend; it confers no independent pwr to regulate
a. The pwr to spend isn’t lim.d to enumerated powers of Art. I, § 8, rather, the only lim.ion on spdg is that it can be in fact for the GW of the US & DN violate express prohibitions of the Constit.
i. Can tax & spend for the GW, but can’t regulate

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What are the restrictions on the the spending power?

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(1) Three limitations on GWC:

(a) Must be pursuant the general welfare (doesn’t violate 10th)

(b) Must be unambiguous as to the conditions, so state knows that if she takes this money, she has to do certain things (Atascadero).

(c) The conditions must relate to the federal interest in the appropriation

(d) Condition/restriction can’t be barred by express prohibition in const.

⇨ May not be used to induce states to act in unconstitutional way.

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When does a taxpayer have the ability to question an appropriation?

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ordinarily, under Frothingham taxpayers can’t question the appropriations HOWEVER

Earmarking exception → If you can trace the $ to unconstitutional schemes of appropriation, the amount is no longer infinitesimal. Congress has control over standing. If put in General fund, lose standing; but if put into an account, etc… that falls under the earmarking exception

⇨ In this case, taxpayer could read act and trace where taxpayer $ goes
⇨ 2 Exceptions to Frothingham: Flast v. Cohen/US v. Butler

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What is the difference between economic coersion and monetary inducement?

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a. Econ.ic Coercion  where Cong. coercively purchased compliance in an area where Cong. couldn’t regulate, the legislation = inappropriate
b. Monetary Inducement  where Cong. merely induced compliance, making an appropriation of funds conditional, the enactment was Constit.al

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When may appropriations be used as monetary inducements?

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1. Pursuant to GWC spending
2. Rx bet. appropriation & GW objective
3. Can’t force state to violate other part of the Constit. (10th Amdt)
4. No violation of doctrine of dual sovereignty when appropriations are VOLUNTARY

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Spending cases

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6. US v. Butler  agric. biz. had standing to sue the govt b/c they were the ones being taxed & their tax money was earmarked for farmer subsidies (Taxpayer standing EXCEPTION = called “Earmarking EXCEPTION”—that = 2nd exception to Frothingham)

8. SD v. Dole
a. Issue  Whether Cong. could take away 5% of SD’s GWC highway funds if they DN increase their drinking to 21
b. Conc.  Yes, it is Constit.al. There are 4 lim.ions of GWC:
i. Must be for general welfare, NOT for local purpose
ii. Statute must be unambiguous as to the conditions so that states know what the choice is about
iii. The conditions on the fed. funds must be rx.d to the fed. int. on the particular nat’l int. or purpose
iv. There can’t be some unconstit.al condition (ie in appropriating the $, you can’t req. that the st8 vio. the Constit.)

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What is the dormant commerce clause?

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ii. States can regulate local activities impacting interstate commerce UNTIL Cong. chooses to regulate those areas—We call this the dormant commerce clause—Cong. can’t → undue burdens
1. EX: Mud flaps on trucks in AR = illegal
2. Dormant Commerce Clause Theory-There = some pwrs Cong. could regulate, but DN. Thus, the st8s can reg. the activity until/unless Cong. decides to regulate it.

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what is the difference between a civil liberty and a civil right?

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⇨ Civil Liberty – expressed prohibitions against what gov’t can do to you (ex post facto, habeas)
Origin is in the mail body of the federal constitution

⇨ Civil Rights – affirmative right individual can assert as a limitation on a sovereign (voting right)
Civil Rights get their origin from the state consitutions and the Bill of Rights

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Bill of Rights

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Ammendments 1-8 are only binding on the Fed gov. They only apply to states they they're incorporated thru the conduit of the 14th ammendment due process clause.

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Explain the priveledges and immunitites clauses in the constitution

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There are two P and I clauses in the consitution

The P I clause in the 14th protects the Priveledges and immunitites of US citizenship.

The P and I clause in article 4 section 2 protects the priveledges and immunities of state citizenship.

prevents the states from enacting statutes that effect the right of citizens of other states when they come to their state (states not allowing citizens of other states to do stuff)

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What are the rights protected by the Priveldges and immunities clause of the 14th?

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These are known as the Correlative Rights -

iii. CORRELATIVE RIGHTS INCLUDED
1. RIGHT #1: Right to Travel
a. Right of citizens of one state to enter & leave another state (Crandall 14th Amdt)
b. Right to be treated as a welcome visitor rather than an unfriendly alien temporarily present in the 2nd state (use the Art. IV, § 2:
c. Travelers who become permanent rez.s, rt to be treated like other citizens of that st8—ie Δ st8 citizenship (Saenz-14th Amdt textual guarantee: “All persons born in the US, naturalized, subj. to the juris. thereof, are US citizens & of the state where they reside”)
2. RIGHT #2: Right to vote in national elections (one person one vote)
3. OTHER RIGHTS: 3) right to have access to navigable waters, 4) right to have access to fed. crts, 5) right to have access to all US officials, 6) right to enter federally-owned lands, 7) right to be protected while in custody of US Marshall, 8) right to transact business with the government, 9) right to free access to the ports 10) rt to petition Cong. for redress of grievances

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Whati is the logic behind the correleative rights theory?

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4. Correlative Rts Theory = Unimpeachable Logic-Ppl created the govt for themselves. The ppl are principles & govt = an agent of the ppl to facilitate the well-being of the ppl. But in giving the govt its rts, there must be certain corollary rts given to the ppl. These right DN apply to corporations & aliens

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What does the 14th p and i clause say?

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no state shall make or enforce any law which shall abridge the privileges & immunities of citizens of the U.S.

Front 104

14th p and I cases

Back 104

1. SlaughterHouse Cases
a. Issue  Whether a state can, under police pwr, shut down slaughterhouses or whether this is a violation of right to pursue a livelihood under the 14th
b. Conc.  14th Amdt only protects federal, not state, P & I’s. The P&I clause & Bill of Rights remain w/ the states, therefore, police pwr was a proper function of the states. This case rendered the 14th Amdt P&I clause a nullity b/c it DN create any new rts that DN prev.ly exist in the Constit.

2. US v. Cruishank
a. Issue  Whether a FED. statue making it illegal to deprive others of their freedom of speech & association rights is Constit.al
b. Conc.  the right to assemble & speak freely are privileges & immunities of state citizenship, & therefore, the statute went beyond the power of the FG
i. The rt to speak & assemble came from the states—the ppl must look to the states & the state Constit.s for protection (UNLESS you’re trying to petition Cong. for redress)
ii. If the purpose of the right being deprived has been predicated upon or related to some fed. law, then Cong. has the pwr to regulate it b/c it is a right of citizens of the US
3. United States v. Guest
a. Facts  Private indiv.s were charged w/ criminal conspiracy under a federal statute becase in forbiding backs to travel
b. Conc.  The P&I’s involved here = the right to travel freely from state to state.
i. This is a P&I of FEDERAL citizenship—therefore it’s protected from STATE encroachment by the 14th Amdt– however, this is encroachment by indiv.s, NOT STATES
ii. P&I’s of citizens of the US are protected from state as well as indiv. transgressions; BUT 14th Amdt is only a restriction on the sovereign states & NOT indiv.s

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what is said in the P and I clause of art 4 section 2

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the citizens of each state shall be entitled to the P&I of Citizens of the Several States (GR: States may NOT discrim. against non-residents)

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What is the purpose of Article 4.2

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prevents the states from enacting statutes that effect the right of citizens of other states when they come to their state (states not allowing citizens of other states to do stuff)

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What is a horizontal guaranteee?

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It does NOT create rights, but every state must treat you as they treat their own citizens UNLESS (1) the right isn’t fundamental or (2) it advances a subs. state interest & there’s a rzble nexus bet. the discrim. & the state’s interest (2nd part = causation)
a. EX: Out of state tuition = higher to account for diff. bet. paying/not paying taxes (but can’t be more than what it actually costs to education—ie NO penalities)

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When do we use this clause?

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2. Only use this clause when a non-resident of the state isn’t treated the same as a resident w/ respect to an important state right
3. Can only be used against state actors

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How do you determine whether a state has violated p and I 4.2?

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v. Piper Analysis  use when a statute distinguishes bet. residents & non-residents of that particular state
1. STEP 1: Identify the right
2. STEP 2: Is it a fundamental right (crts decide what is fundamental)?
a. Test for fundamental right (non-economic rights are NOT protected)
i. Rights that are essential to promote interstate harmony
ii. Rights important to the maintenance & well-being of the union
iii. Rights sufficiently basic to the livelihood of the nation
iv. Rights bearing upon the vitality of the nation as a single entity or fundamental to nat’l harmony
b. If no  Article IV §2 P & I Clause does not apply

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What is the last step in the piper analysis? once a state has discriminated against a non-resident and denied them a fundamental right?

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STEP 3 Balancing TEST:  does the state defend its position by demonstrating that
i. There is a subs. reason for the diff. in treatment, AND
ii. The discrim. practiced against nonresidents bears a subs. rx to the state’s objective?
1. If no  Discrim. against non-rez. vio.s P/I clause
2. If yes  States = permitted to discrim. against non-residents

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Examples of the Piper Analysis

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1. Virginia v. Friedman
a. Issue  Whether a state statute may require a non-resident atty to tk the bar exam when it DN req. that of its own citizens
b. Conc.
i. Identify the right  to practice law
ii. Fundamental?  yes
iii. Substantial reason for difference in treatment  NO
iv. Therefore, the statute is unconstitutional
2. Lunding v. NY Tax Appeals
a. Issue  Whether a NY statute could prohibit a non-NY resident from tking an alimony deduction while letting its own residents do so
b. Conc.
i. Identify the right  right to a tax deduction for alimony payments
ii. Fundamental?  YES b/c practice law + make a living
iii. Subs. reason for discrim.? No (so it fails 1st prong & we DN need to go to 2nd prong of whether the discrim. bears a subs. rx to the st8’s objective)
iv. Therefore, the statute is unconstit.al

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more piper

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3. Baldwin v. Montana Fish and Game Commission
a. Facts  P was a non-resident of MT who wanted to elk hunt in MT, but found that it cost much more for non-residents to hunt there than residents.
i. P brought suit in t ct seeking dec. judgment against D claiming that the MT statutory elk-hunting scheme denied them their Constit.al rights under Art. IV §2. Elk-hunting was a HUGE business in MT.
b. Conc.
i. Identify the right  right to hunt
ii. Fundamental  No, elk-hunting is NOT a fundamental right & thus the state can discrim. against the non-resident b/c he wasn’t protected by the P&I clause of Art. IV, §2

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more more piper

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5. NH v. Piper:
a. Facts  P was a resident of VT, but she passed the NH bar exam. The NH had a rule that in order to be admitted to the NH bar, you had to be a citizen of NH. The NH SC held that she couldn’t be admitted to the bar even though she only lived 400 yards away from the border bet. the 2 states.
b. Conc.
i. Identify the right  right to practice law & right to work in other states
ii. Fundamental? YES (nat’l econ. + rts important to the maintenance & well-being of the nation—out of st8 lawyers = more likely to tk controv. causes)
iii. Is there a subs. reason for the discrim.? NO!!!
1. NH SC said that the reasons for the statute were 1) non-residents would be less likely to become familiar w/ local rules & procedures, 2) they’d less likely to behave morally, 3) They’d be less likely to be available for crt proceedings, & 4) they’d be less likely to do pro bono work

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What is the difference between the EPC and the DPC clause?

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i. EPC DN have life, liberty, or property qualifications like DPC;
ii. EPC DN create substantive rts, it simply protects you from invidious classifications
iii. Can’t use either against civilians UNLESS they’re P&Is of US citizenship (we NEED state action of a particular character that’s described by the Amdt—indiv. invasion of indiv. rts isn’t the subject matter of the Amdt so you’d need to look at state law)
iv. It’s only where you fall below the floor to where it’d shock the judicial conscious that the 14th Amdt DPC applies (ie double jeopardy in st8s)
v. ALL of these cases = de novo & case-by-case review (ie to determine if the specific facts/conduct shock the conscious of Eng.-spkg ppl)—means on EXAM that facts are key & the only way to decide the case

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what is the purpose of the bill of rights?

Back 115

to protet the individua against various sorts of interference by the federal government.

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what does the 14th amendment do?

Back 116

It puts restrictions upon the states.

it prohibits the deprivation of life liberty or property without due process of law.

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Tell me about the Bill of Rights

Back 117

The bill of rights are not directly applicable to the states nor are the applicable via the 14th p and i clause

Front 118

why did the SC start incorportating the BOR and did they overrule slaughterhouse?

Back 118

the SC recognized that states were not implementing and using thier state constitutions BOR for violations against minorities.

incorporation means that the same standard is used for states and the federal government.

This did not overrrule slaughterhouse's holing that there are seperate and distinct rights under the P and I's of state and federal citizenship,

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Ho are stae and federal COA's brought for civil rights violations by state and federal actors?

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1. STATE COA’s
a. #1 BoRts (or substantive DP) + 14th DPC  need a state actor
b. #2 P&I of state citizenship  see state Constit./laws for COA/ENFORCEMENT AGAINST CIVILIANS
2. FEDERAL COA’s
a. #1 BOR themselves  must have fed. actor
b. #2 P&I’s of US  only enforced through the constitution/no state actor necessary/ENFORCEABLE AGAINST CIVILIANS

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How to say it on the test:

Back 120

State or local gvt is violating specific rights of citizen as guaranteed by X Amdt as incorporated against the state & local govt through the DPC of the 14th Amdt

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what are the three theories of incorporation?

Back 121

1. Complete Incorporation
2. Fundamental Rights approach
3. Selective Incorporation

Front 122

Complete Icorporation

Back 122

This theory states that the 14th amendment encompasses all of the BOR and they are synonymous with Due Process.

The bill of rights, nothing more, nothing less

This theory never had a majority of the court.

Front 123

What rights/cases were incorporated under Complete Incorporation.

Back 123

1. Griswold v. Conn
a. Issue  Whether the prohibition of using or distributing contraceptives was a violation of the 14th
b. Conclusion
i. Law was invalid because
1. the court found a right of privacy implicit in the
a. 3rd amendment prohibition against quartering of soldiers
b. 4th amendment right of people to be secure in their persons
c. 5th amendment right against self-incrimination; and
d. 9th amendment right to retain rights not enumerated in the constitution

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what does the findamental rights approach say?

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1. From a totality of the circumstances there’s a floor below which the states can’t treat an indiv. w/o depriving him of DP.

2. Only those aspects of liberty that = fundamental are protected by the 14th against state interference
a. Under this approach, there’s NO INCORPORATION of any of the rights—they’re just considered to be synonymous w/ DP.

3. The test to determine whether a state action has fallen below the DP floor is whether it’d shock the conscious of English-speaking people (do b/c fundamental rt → principles of justice so rooted in the traditions & conscious of ppl)

4. Not all fed. precedent carries over (case-by-case analysis)

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cases in which the fundamental rights approach was used

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1. Hurtado v. California
a. Issue  Whether an information instead of indictment was a violation of due process under the 14th
b. Conclusion  no, not a fundamental right because it is a preliminary proceeding not implicit in the concept of ordered liberty and the conduct does not fall below the floor therefore does not shock the conscience
2. Gitlow v. NY
a. Issue  whether state can prohibit the publishing of communist manifesto
b. Conclusion  yes, freedom of speech and press are implicit in the concept of ordered liberty therefore they are fundamental, but the states interest in self preservation outweighed the liberty interest in this case
3. Near v. MN
a. Issue  Whether the state can prohibit the publishing of malicious scandalous newspaper
b. Conclusion  no, was a violation of 1st amendment
i. Freedom of press is a fundamental right
4. Powell v. AL
a. Issue  Whether a state can arbitrarily assign counsel to an alleged criminal
b. Conclusion  no, state violated 6th amendment right to counsel because it is a fundamental right implicit in the concept of ordered liberty
i. Requirements for appointing counsel
1. appoint competent lawyer
2. give reasonable time to prepare defense
5. Cantwell v. Conn
a. Issue  Whether the state could mandate a permit for the right to distribute literature
b. Conclusion  statute violates 1st amendment
i. Freedom to worship includes
1. right to believe  absolute
2. conduct  subject to police power for health, safety, and morals regulation

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The selective incorporation theory

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1. some of the BOR apply to the 14th, but there is more to the DP clause than the first 8 amendments
a. if the right is not in the BOR, then the court creates a right necessary to order liberty (Right to privacy; innocent until proven guilty)

3. All federal precedent carry over

THE SC DECIDES IF THE Rt IS "IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY"

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Selective Incorporation cases

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1. Gideon v. Wainright
a. Issue  Whether person who committed a non capital offense could be denied assistance of counsel
b. Conclusion  no, right to counsel is fundamental to the 6th
2. Pointer v. TX
a. Issue  Whether the 6th amendment right to be confronted with the witness against you is applicable to the states by the 14th
b. Conclusion  yes, the 6th is fundamental and is made obligatory to the states through the 14th and includes right of cross examination
3. Benton v. MD
a. Issue  whether double jeopardy under the 5th is a fundamental right
b. Conclusion  yes,

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What are the modern fundamental rights cases?

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III. The Jury Cases: Modern Fundamental Rights
a. Duncan v. LA  in criminal prosecutions you have a right to jury trial if potential of incarceration is for more than 6 months because the offense is no longer a petty crime
b. Federal Court
i. Must be unanimous to convict (didn’t carry over to the states)
ii. Has to be a jury of 12
c. State Court
i. Jury have to have at least 6 jurors
ii. If only 6 jurors  must have unanimous vote to convict
iii. If 12 jurors, can convict with less than unanimous vote, but cannot convict with 7-5 vote

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What is the technical way of bringing a BOR claim agains state and local governemnts?

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a. The technical way to invoke first amendment against state or local government is
i. to say that the state or local government
1. is violating the free speech rights of the citizen as
a. guaranteed by the first amendment and
i. as incorporated against the state and local governments through the due process clause of the 14th amendment

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What can a citizen due when a state actor has violated their civil liberties?

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An individual may sue for a remedy fro violation of a constitutional wrong under 42 USC 1983

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Why is 1983 so important?

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i. Because civil liberties are not self-executing (capable of enforcement without a statute)
ii. Therefore, citizens need a statute to vindicate their civil liberties
iii. §1983 is this statute and to satisfy this statute, a citizen needs to show state action

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What is the language of 1983?

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i. every person who, under color of state law
ii. subjects any citizen or other person
iii. to deprivation of any rights, privileges, or immunities secured by the Constitution and laws
iv. shall be liable to the person injured

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How does a person bring a 1983 claim?

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i. STEP #1: Citizen must on-load a constitutional guarantee on to the §1983 claim
1. 3 options  citizen must
a. specifically articulate which life, liberty, or property interest is being interfered with  if not, he is done
b. assert equal protection violation (requires spec. intent to violate EP)
c. assert a violation of the incorporated privileges and immunities

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What is 1983 step 2?

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ii. STEP #2: Citizen must show that the interest is worthy of protection
1. §1983 vindicates rights either
a. expressly state in the constitution (14th amendment (LLP)
b. laws implied by the courts to be included in the constitution (right to privacy)

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Step 3?

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iii. STEP #3: Citizen must show state action/actor (some interf. by a governmental entity)
1. includes
a. executive, legislative, and judicial officers
b. subdivisions of the government (cities, junior colleges, public schools, etc.)
c. state employees (whether paid or not)  must look at function rather than pure employment

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Step 4

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iv. STEP #4: Citizen must show actor was acting under the color of state law
1. there must be a law that the state actor was acting pursuant to when he committed the wrong
2. usually state action will suffice to meet acting under color of state law (exception  public defenders)

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How do you say it technically and set up the problem?

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e. Technical Language of §1983 COA
i. John is suing the state under §1983 on loaded with the free speech and association rights guaranteed by the 1st amendment made applicable to the states through the due process clause of the 14th amendment

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What are the four ways to determine if someone is a state actor?

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1. The traditional approach
2. The Public function theory
3. Nuetral State action
4. Symbiotic Relationship

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what is the traditional approach?

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a. State Action
i. May be apparent
1. action by executive, legislative, and judicial officers
2. action by governmental entity

i. State Actor Elements
1. ELEMENT #1: State actor
a. State Actor is any one
i. that works for the state (does not require payment)
ii. performs the main duties of the state
2. ELEMENT #2: Nexus between the colorable state law and the entity
a. There needs to be a logical nexus between civilian and state actor (yeah a civilian did it, but actually state made him do it)
b. a but for test
i. misuse of power, possessed by virtue of state law, and made possible only because the wrongdoer is cloaked with the authority of state law

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Traditional State Actor Cases

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i. Ex Parte VA
1. Issue  Whether county judge violated the 13th and 14th amendment when he violated a statute which said that jurors could not be qualified based on race
2. Conclusion --> Judge was a judicial state actor. State acts by its legislative, judicial, and executive authorities. He denied equal protection of the laws
ii. Civil Rights Cases
1. Issue  Whether a violation of the 14th can be brought against individual actors when they deny minorities access to public places
2. Conclusion  the 14th amendment restrictions only apply to the sovereign and not to individuals.
a. We get around this by going through the commerce clause (Heart of Atlanta)
iii. Screws v. US
1. Issue  Whether sheriff that beat prisoner to death was a state actor acting under color of state law
2. Conclusion  yes because misuse of power possessed by virtue of state law and made possible only because the wrongdoer was clothed by state law
iv. Polk v. Dodson (exception)
1. Issue  Whether a court appointed attorney is a state actor
2. Conclusion  even though she was a state actor, she was not acting under color of state law because she owed absolute loyalty to her client and she was in adversarial position against the county who paid her
a. This is the only time that a true state actor is not acting under color of state law

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What is the Public Function thery?

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a. THE RULE: When a private individual or group is entrusted by the state with the performance of functions that are traditionally governmental in nature, he becomes an agent of the state and his acts constitute state action
b. MODERN TEST  this new test significantly limits the application of this theory
i. Elements:
1. ELEMENT #1: the function must be traditionally and exclusively reserved to the state
2. ELEMENT #2: some statute or state constitutional provision in fact requires the state to perform the function

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What are and are not public functions?

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c. What are these public functions?
i. The entire electoral process
ii. “Company Town”  Operation of a town, whether by a municipality or corporation
d. What are not public functions?
i. Operation of utilities
ii. Running a shopping center
iii. Operation of a park or nursing home
iv. Operation of a school

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Public Function Theory cases

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i. Marsh v. AL
1. Issue  Whether a privately owned corporation that owned a city was a state actor
2. Conclusion  since the corporation took over the function of the sovereign they stepped into shoes of the sovereign thus becoming the state actor.
ii. Jackson v. Metro
1. Issue  Whether turning off electricity without notice is violation of state statute came under 1983
2. Conclusion  even though it violated a right to property under the 14th, the utility was not a state actor even thought it is regulated by the utilities commission
iii. Flagg v. Brooks
1. Issue  Whether the auction of her furniture without proper notice came under 1983
2. Conclusion  they were acting under color of state law because they were trying to comply with state law but were not state actors because they were a private business
iv. Rendall v. Kohn
1. Issue  Whether teacher at a state run school had 1983 cause of action for freedom of speech, assembly under the 1st and general liberty of the 14th
2. Conclusion  not state action because state did not regulate firing of teachers even though there was pervasive state regulation

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What is the nuetral state action theory?

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a. THE RULE: If the government is sufficiently involved in the private actor’s conduct or encourages or benefits from that conduct, the private party’s acts will be deemed state action, and subject to constitutional review
i. Only when the licensing, regulation, or funding has actually made the govt responsible for the very behavior that the ∏ is complaining about is there state action
b. ELEMENTS
i. ELEMENT #1:The complaining party must show that there is a sufficiently close nexus between the state and the challenged action of the regulated entity
1. The mere fact that business is subject to state regulation does not by itself convert its action into that of the state for 14th amendment purposes
2. Required nexus may be present if
a. The private entity has exercised powers that are traditionally the exclusive prerogative of the state
3. the purpose of this is to assure that the state is responsible for the specific conduct of which the ∏ complains

ii. ELEMENT #2: A state can only be held responsible when it has exercised coercive power OR has provided such overt and covert encouragement that the choice must be that of the state
1. Mere approval or acquiescence in the initiation of a private party is not sufficient to hold state responsible under 14th

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Nuetral state action theory cases

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i. Moose Lodge
1. Issue  Whether private club refusing service to blacks came under 1983
2. Conclusion  no, because not a sufficient nexus between clubs action and state liquor regulations on the club to make club a state actor
ii. Blum
1. Issue  Whether state standard to determine healthcare benefits for the elderly was a violation under 1983 of 14th life, liberty, and property
2. Conclusion  just because business is subject to regulation does not convert it to state action, therefore, there was no state action in this case because doctors, not the state, determined the criteria for care
iii. NCAA v. Tarkanian
1. Conclusion  NCAA was not a state actor by requiring UNLV to suspend its coach because it is a group of individual schools, all over the country
iv. Brentwood Academy v. Tenn
1. Issue  Whether corporation organized to regulate school sports was a state actor for purposes of 1983
2. Conclusion  Yes, because all actor were in state positions and making regulations exclusively for Tenn schools, effectively stepping into the shoes of public officials

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what is the symbiotic relationship theory?

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a. THE RULE: If there is a mutually beneficial relation between the state and the private actor, the state will be subject to constitutional scrutiny. Requires exclusive contacts between the state and the private party in such a way that each benefits from the others conduct
i. Symbiotic relationship requires
1. Significant involvement  degrees of mutual interaction that form a dramatic level of partnership
a. A lease or a loan, by itself, will not suffice
2. Are the government and private entity acting as one? Need a business-like relationship
a. examples
i. Lease agreement calling for profits from parking lot as rent (Wilimington)
ii. Amtrack
1. government created the corporation by special law for the furtherance of government objectives
2. the government appoints the board of directors

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Symbiotic Relationship cases

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ii. Cases
1. Lebron v. National RR
a. Issue  Whether Amtrack was a state actor for purposes of 1st amendment violation by not allowing political billboard to be posted
b. Conclusion  Amtrack was part of the US government under respondent superior, therefore it was a state actor which violated 1st and 5th amendment

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what is meant by Due Process?

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a. Two DP Clauses in the Constit.
i. 5th Amdt  applies to deprivations of DP by FG (ie when in fed. prison)
ii. 14th Amdt  applies to deprivations of DP by the states

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What are the two types of due process?

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b. Two Classifications of DP
i. Procedural DP  Ensuring that there are no errors in the findings of fact (concerned w/ the method of implementing the law—it’s not the tking of life, liberty, or property that’s unconstit.al here, it’s the tking w/o “DP of the law”)
ii. Substantive DP  Concerned with the rzbleness/validity of the law itself
1. Two types of Substantive DP
a. Specific Constit.al provision
i. Ex.s  Religion, speech, counsel, jury trial, s/s
ii. Rule  Though a citizen has a specific Constit.al right, the conduct may still be regulated
b. Implied/Pure substantive DP  Implied by crt construction; not textually found in the Constit.
i. Ex.s  right to Kt, right to work, privacy, sanctity of family
ii. Methodology for def.ing/creating rts not in the Constit.:
1. Is the rt deeply rooted in the hist. & traditions of English-speaking ppl
2. Is it implicit in the concept of ordered liberty
3. Does it shock the judicial conscious

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What are the steps in analyzing whether or not there has been a substantive due process violation?

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d. STEP 1: Determine whether the right at issue is fundamental
i. Step 1(a): Carefully & narrowly describe the asserted rt (life, lib. or property int.)
ii. Step 1(b): Ask is it state executive or legislative action encroaching upon the right (who is the state actor?)
1. Executive  Ask is the right implicit in the concept of ordered liberty so that the deprivation of the right would shock the conscience of English-speaking people?
a. If yes  Did the actor have an intent to deprive the P of the right protected by DP? (there must be a level of culpability)
i. If yes  Fundamental right  apply strict scrutiny test
ii. If no  Not violation of DP
b. If no  no violation of DP
2. Legislative  Ask is the right deeply rooted in our nation’s history & the traditions of English-speaking people
a. if yes  The right is fundamental  apply strict scrutiny test
b. if no  The right isn’t fundamental  apply rational basis test

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Nex Step 2 in analyzing SDP

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e. STEP 2: Apply the appropriate level of scrutiny
i. Fundamental Rights
1. Test = strict scrutiny
a. State interest must be compelling, not merely legitimate
b. The means must be narrowly tailored or necessary to achieve the goal (the means is necessary to achieve the end)
ii. Non-Fundamental Rights (mostly economic rights)
1. Test = Rational basis
a. State interest must be legitimate
b. The means must be rationally rx.d to the ultimate state objective

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What are some rights that are substantive protections of economic rights under the 14th DP? and what level of scrutiny do they fall under?

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THese rights are not fundamental so they fal under the rational basis test

RIGHT #1: Freedom to Kt (Lochner)
RIGHT #2: Excessiveness of punitive damages (BMW v. Gore

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What are some cases that challenge economic regulation under teh DP clause of the 14th?

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iii. Cases
1. Nebbia v. NY
a. Issue  Whether statute setting milk prices vio.s 14th Amdt
b. Conc.  Crt used rational basis test, unless statute is arbitrary, capricious, discrim.ory or irrelevant to policy that the statute is trying to adopt, it is Constit.al
2. Ferguson
a. Issue  Whether KS that invalidated debt adjusted except for lawyers was valid under the 14th Amdt
b. Conc.  Rational basis to legislate injurious practices so legislature was free to decide whether to regulate

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What are some non-textual fundamental personal sanctity rights? and what level of scrutiny do they fall under?

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ii. The burden is on the state to prove what the compelling interest is b/c the family is a fundamental value in the society = strict scrutiny

1. RIGHT #1: Right of teachers to teach  fundamental right (sanctity of the family = fundamental rt/liberty interest so subject to strict scrutiny)—includes fo. lang. before 8th grade
2. RIGHT #2: Right of students to acquire knowledge  fundamental right
3. RIGHT #3: A parent’s right to direct the upbringing of their kids
4. RIGHT #4: A right to not have arbitrary physical intrusions of the body

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More non-textual fundamental rights

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5. RIGHT #5: The right for an indiv. himself to refuse medical treatment
a. This DN mean you have a rt to physician assisted suicide
i. It’s not a fundamental rt &, in the Alt., state reg.s here pass the rational basis test
b. Rt of 3rd person to refuse med. treatment for incompetent/person in vegetative state = ok ONLY when there’s clear & convincing ev. b/c the state’s int. = in protecting life so you’d better be sure
6. RIGHT #6: Right to a public criminal trial
a. If there = sufficient findings that public presence could lead to the jeopardy of a fair trial, the public can be excluded b/c D’s rt to fair trial = superior to pub.’s rt to access trial
7. RIGHT #7: The right to engage in sodomy in the privacy of one’s home
8. RIGHT #8: Right of married couples to use contraceptives
9. RIGHT #9: Right to procreation & child bearing
10. RIGHT #10: Right to marry
11. RIGHT #11: Right to live w/ family members

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cases involving non-textual fundamental rights.

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a. Meyer v. NE
i. Issue  Whether statute which DN allow kids to be taught a fo. lang. until they reached 8th grade was a vio. of DP
ii. Conc.  Yes, b/c parents have a fundamental right to control what is taught to their children & state had no compelling govt.al interest to interfere w/ the right
b. Pierce v. Society
i. Issue  Whether statute which req.s children to attend public school is a violation of DP
ii. Conc.  Yes, state couldn’t interfere w/ parents right to educate their children unless they pass strict scrutiny –they DN

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What are some non fundamental, non-textual personal sanctity rights and what level of scrutiny must they withstand

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some non fundamental, non textual sanctity rights requireing only that they pass the strict scrutiny test are:

1. RIGHT #1: The right of an adulterous father to have visitation rights for an illeg. child  NOT a fundamental right

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What about a woman's right to have an abortion?

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2. RIGHT #2: A women’s right abortion  NOT a fundamental right (Casey)
a. Test  the state shall not cast an undue burden on the women’s right to have an abortion
i. Undue burden  A regulation that has the effect of placing a subs. obstacle in the path of a women wanting an abortion before the fetus attains viability
1. Ex.s of what isn’t an undue burden (ie b/c merely an “incidental effect”)
a. Req.ing a 24-hour waiting period
b. Req.ing tests before doing the abortion
c. Req.ing doctors to give alt.s to abortion & info. concerning the procedure
d. Req.ing minors tell their parents as long as there is a judicial bypass
2. Ex.s of what is an undue burden
a. Req.ing measures to prevent abortions
b. Publicizing names of f. who get abortions
c. Req.ing long waiting periods
d. Req.ing spousal notification
ii. The women now has a right to an abortion until viability,
iii. After viability, the state may prevent an abortion (UNLESS f. may be harmed)

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partial birh abortions?

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b. D&E aka Partial Birth Abortion
i. State laws can be stricter b/c past viability BUT MUST have exceptions for mother’s life/health

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more non-textual non fundamental rights

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3. RIGHT #3: The right to a physician assisted suicide  not a fundamental right
a. In this case, the crt abandons the test asking “whether the right is implicit in the concept of ordered liberty so that its deprivation would shock the conscience of English-speaking people”
b. The crt now asks whether the right is deeply rooted in our nation’s history  it isn’t b/c suicide was one of 2 most heinous crimes at C/L
4. RIGHT #4: Right to engage in consensual sex

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what does a person need to show to bring a procedural due process claim?

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a. For a procedural DP claim, a P needs to show that an administrative, adjudicative, or executive action is harming him individually (the action can’t be a legislative act  b/c if it were it’d be a SDP claim)
i. This assumes that the law = valid, but asserts that the manner employed in enforcing/applying it is unfair
b. If the state provides an adequate remedy, there’s no PDP vio.–they may’ve deprived you of an interest, but NOT w/o DP of law
c. Designed to protect fairness in fact finding

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What is the the first step in the procedural due process analysis?

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a. STEP #1: Identify the life, liberty, or property interest at issue (ie job, reputation, Kt, property, edu., welfare, parole, driver’s license, horse training license, tenure, etc)

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What is the rule and scenarios for property interests?

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i. Property interests  Must be present an entitlement in state law (look to the state regulation or state constitution for the property interest)
1. General Rule
a. Property interests req. there to be a legit. claim of entitlement to the benefit
b. Entitlement is present when the govt sets standards & in effect recognizes the right to get the benefit if you meet the standards
i. As opposed to the govt giving benefits at their discretion = not an entitlement (no property interest)
c. If a statute, regulation, or even an informal document like a benefit handbook indicates the circumstances under which a particular benefit will be granted or cont.d, then a person is likely to have a property interest in the benefit
2. Scenarios
a. P is already getting the benefit/govt is trying to take away  the govt is probably depriving the P of a property interest
b. P is applying for the benefit/govt rejects application  P probably DN have a property interest so the govt DN have to use PDP, it can arbitrarily or irrationally reject your application
c. Govt job  Employee needs a property interest/entitlement = there’s an entitlement if
i. The govt can’t fire you unless for good cause
ii. You have tenure or
iii. You can prove that by the circumstances, there’s de facto tenure ship (Perry v. Sinderman)
iv. BUT-Mere expectancy to the benefit DN = entitlement

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Examples of property interests

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3. Ex.s of Property Interests
a. Receipt of welfare payments, Right to occupy public housing, Right to take certain courses in public school, Right to participate in extracurricular activities sponsored by public schools

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What are some examples of when liberty interests are deprived?

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ii. Liberty interests  Derived from the Constitution
1. Ex.s of When a Liberty Interest is Deprived
a. P is deprived of the right to drive
b. P is denied a license that she needs to practice her profession
c. P is deprived of the right to raise a family b/c of charges of abuse or neglect
d. Conditional liberty int.s include kids in pub. schools, ppl in pub. employment, & ppl on parole & probation

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What liberty interest does a parolee and a probationer have?

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e. Parole (Morrissey v. Brewer) & Probationer (Gagnon v. Scarpelli)
i. Parolee has a conditional liberty int. (ie out of jail but can’t get jobs or move w/o PO’s consent) including following rts:
1. Written notice of claimed vio.s of parole
2. Disclosure of ev. against
3. Opportunity to hear & present/rebut ev./witnesses
4. Rt to confront witnesses (UNLESS dangerous)
5. Neutral & detached hearing body
6. Written statement about outcome
ii. DP req.s 2 hearings: (1) Hearing to est. PC to t/o liberty
(2) Hearing w/in 60 days (during this period he’s back in jail) to determine the issue formally—DN have to be in front of a judge, the best grp = parole brd
iii. Rt to Atty-Sometimes it may be necessary & crt will have
to appt one for indigents, BUT otherwise, it’s ok if you
want to pay but you’re not getting one free from govt

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Examples of what are not liberty interests

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2. Ex.s of what it is not a liberty interest
a. Reputation  Mere injury to one’s reputation isn’t a liberty interest in DP; there must be reputational injury & also a deprivation of a state created right (reputation + deprivation of state right = liberty interested)—(Paul v. Davis)
b. Job-Ie if you’re an at-will employee can be fired for anything that’s not based on Constit.al vio. (ie can’t fire b/c of comments/views b/c → possible free speech claim) BUT can just decide not to rehire if there isn’t a tenure (or de facto) system
i. Diff. outcome if tenure (even de facto) system b/c it’s about “policy & custom/practices”

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What is the second step in asserting a violation of procedural due process?

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b. STEP #2: How much PDP is Due?
i. The Balancing Test  Weigh the state’s interest in making a prompt disposition against the damage to P in being denied the safeguard

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When are hearings due?

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ii. Hearings
1. Factors in determining whether you get the hearing before or after
a. FACTOR #1: The private interest that’ll be affected by the official action
b. FACTOR #2: The risk of erroneous deprivation of such interest through the procedures used & the probable value, if any, of additional procedural safeguards
i. Ex.s of additional procedure safeguards
1. The right to a hearing at which P can plead his case  usu. a right in most circumstances
2. The right to have counsel present at the hearing  usu. only a right where the proceedings are criminal or quasi-criminal
3. The right to appeal the adverse decision to a higher body  usu. only a right where the proceedings are criminal or quasi-criminal
c. FACTOR #3: The govt’s interest including the function involved & the fiscal & administrative burdens that the additional or substantive procedural req.mnt would entail
d. Post-deprivation remedy could nullify the violation

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When is notice due?

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1. Rule: Notice must be rzbly calculated to inform the P of available opportunities to present their objections
2. Notice must be rzble in light of the circumstances
a. GR: State has to attempt to provide notice, it isn’t req.d to be successful (UNLESS has reason to know notice wasn’t received—ie certified letter was returned as opposed to prison case where notice was signed for)
3. State’s responsibility to inform P of procedures
a. Where the procedures are arcane & aren’t set forth in documents accessible to the public, notice of remedies would be req.d (Memphis Light v. Craft)
b. No rational justifies, however, req.ing individualized notice of state law remedies which are est.d by published, generally available, state statutes & case law

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Examples of liberty interests

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1. Rule: Notice must be rzbly calculated to inform the P of available opportunities to present their objections
2. Notice must be rzble in light of the circumstances
a. GR: State has to attempt to provide notice, it isn’t req.d to be successful (UNLESS has reason to know notice wasn’t received—ie certified letter was returned as opposed to prison case where notice was signed for)
3. State’s responsibility to inform P of procedures
a. Where the procedures are arcane & aren’t set forth in documents accessible to the public, notice of remedies would be req.d (Memphis Light v. Craft)
b. No rational justifies, however, req.ing individualized notice of state law remedies which are est.d by published, generally available, state statutes & case law

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More examples of liberty interests

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iii. Freedom from arbitrary intrusion on body (kid getting corporal punishment at school) (Ingraham v. Wright)
1. Note  this isn’t cruel & unusual punishment b/c the 8th only applies to criminal trials
2. DP DN req. notice & hearing prior to imposition of corporal punishment b/c it’s authorized by C/L → post-deprivation remedy nullifies the violation
3. If P is hit too hard, he can sue the teacher in a civil tort action
iv. P denied a license that he needs in order to practice his profession/school
1. The issue DN lend itself to a judicial proceeding, there’s no way she can prove to the crt that she is competent to be a doctor
2. You’re not entitled to a seat in medical school

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examples of property interests

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a. Remember, we look to state law to property int. to be linked, BUT the fed. Constit. determines whether the interest rises to the level of a “legit. claim of entitlement” protected by the DPC
b. Receipt of Welfare (Goldberg v. Kelley)
i. Will usually req. a hearing before hand & written judgment by an impartial arbiter b/c these people are poor & taking away their $ will cause them sig. harm (ie hearing needs to be b4 t/o benefits)
ii. P = entitled to timely & adequate notice of termin./hearing if want an opportunity to defend self & confront adverse witnesses/cross-examine them

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More examples of property interests

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c. Receipt of Disability Benefits (Matthews v. Elderidge)
i. Can terminate the benefit before person gets a hearing b/c this = fundamentally diff. than welfare benefits (here ppl DN necessarily depend on $ to survive whereas w/ welfare they do)
ii. You have the option to have a hearing & show that benefits = wrongfully termin.d so you should be reinstated & get reimbursed for the costs during the period you were off of the benefits
d. Cutting off one’s utilities
i. Req.s an informal hearing before cutting off the utilities
ii. Post-deprivation remedy would NOT nullify the violation

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property interest in a public education

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e. Entitlement to Public Education (b/c of property taxes)
i. When judges are asked to review the substance of a genuinely academic decision, they should have great respect for the faculty’s professional judgment
ii. They may not override it UNLESS it’s such a subs. departure from accepted academic norms as to demonstrate that the person or committee responsible DN actually exercise professional judgment (ie it wasn’t academic judgment, it was the “stair method of grading”)
1. Also, the rt to go to college isn’t deeply rooted in the hist. of Eng.-spkg ppl
iii. Process Due & Suspension?
1. Must give oral or written notice of allegations against him & immediately question him when pot. suspension = 10 days or less:
a. If he confesses  He is suspended
b. If he denies  He gets
i. A summary of the ev. against him
ii. An opportunity to tell his side of the story
c. If he poses an immediate danger  He’s out immediately
d. If he does something more egregious (damages property) so +10 day suspension  A more formal hearing is req.d–there’s a more severe nature & interest involved here b/c he may lose the whole semester & have permanent marks on his record

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Restraining Orders

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f. But NOT Restraining Orders/Enforcement of them
i. The procedural component of DP DN protect everything that might be described as a “benefit”. To have a property int. in a benefit, a person clearly must have more than an abstract need or desire & more than a unilateral expectation of it. Instead, he must have a legit. claim of entitlement to it as created by state law.
ii. Cops DN have to arrest UNLESS PC b/c it’s about using rzble means to enforce the restraining order—cops have discretion (this type of discretion = FATAL to claims of benefits/entitlement)
iii. It’s a Constit.al fact whether a specific property int. rises to the level of being an entitlement that can be protected/vindicated under the DPC

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Where does EP come from?

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a. THE CLAUSE(14th): Nor shall any state…deny to any person w/in its juris. the EP of the laws
i. The 14th EPC only applies to the states
ii. If, however, it’s the FG acting  use the 5th Amdt’s DPC
1. The 5th DN have an EPC, but the EPC has been read into the DP of the 5th

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How do you say it on the test?

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the FG is denying you EP as it’s a component of the DP of the 5th Amdt

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What is the purpose of the EP clause?

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The EP clause protects indiv.s/grps from laws that set arbitrary, discrim.ory, or invidious classif.s
i. It involves the right not to be treated diff.ly UNLESS rzble basis for classification

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How does the burden shift in regard to the classes?

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1. Once the classif. = est.d (ONLY for inherently suspect classif.s), the burden shifts to the govt to prove the specific test for the classif.
2. Once the discrim. = proven (ie VMI gender discrim., a quasi-suspect class), then the burden shifts to the govt to prove it had an exceedingly persuasive justif.
a. Same thing applies w/ appropriate test for Elevated rational basis & Rational basis + their applicable tests

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Is Ep a substantiece right?

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ii. Unlike the DP clause, however, EP DN create substantive rights except w/ “one man/one vote”
1. Rather, it’s a P/I of US citizenship & a fundamental rt protected by the 14th Amdt

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Do only us cits get protection udner the DP clause?

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iii. “Any person” → DN have to be a US citizen (ie aliens = protected)
1. There can be a classification of 1 person for purposes of EPC under 14th Amdt b/c the # pf ppl in a class is immaterial for EP analysis
c. THE RULE: Incidental indiv. inequality DN violate EP; only if the differentiation of classification is unrzble does it violate EP

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What is the first step in alleging a violation or EP?

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a. STEP 1: What is the classification of the discrim.d grp/indiv.?
i. CLASS #1: Inherently Suspect Class (use strict scrutiny test)
1. Includes
a. Race
b. Alienage  not having US citizenship
c. Indigency (limited)  Wealth isn’t a suspect class UNLESS:
i. B/c of money one is completely unable to pay for some desired benefit, and
ii. As a result, one sustains an absolute deprivation of a meaningful opportunity to enjoy the benefit
d. National Origin
e. Fundamental Rights  The test to determine if it is a fundamental right
i. Ex.s  Speech, press, religion, interstate travel, in-home porno, contraceptives, right of access to criminal trial, assembling, voting, privacy, procreation, marriage, reapportionment

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What is the exception to discrimination against aliens?

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b. Alienage  not having US citizenship
i. Exception: Political Function Exception
1. RULE  a state is permitted to exclude persons outside the political community from positions that are so closely bound up w/ the formulation & implementation of self-govt
2. If this is one of those positions, we DN apply Strict Scrutiny but apply the following test
a. ELEMENT #1: Is the classif. overly inclusive or under inclusive (narrowly tailored)?
b. ELEMENT #2: If classif. is narrowly tailored, does restriction apply to elective or important non-elective positions/functions that go to the very heart of representations (examples  teachers, police; examples of what isn’t  notaries)
c. If the classif. meets this test, then apply rational basis test
3. Cases
a. Notary Case
i. Issue  Does a notary public fall under the Public function exception. Public notary must be familiar with TX law, state is afraid alien will leave state, & must have some level of competency
ii. Conc.  TX can’t Constit.ly preclude alien from being notary. Notaries DN perform functions going to heart of govt. Since duties are clerical & ministerial, aliens may be bared only if state can survive strict scrutiny.

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what is the second class?

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ii. CLASS #2: Quasi-Suspect Class (use exceedingly pervasive justification test)
a. Includes-Gender-based discrim.

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What is the third class?

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iii. CLASS #3: Elevated Rational Basis Class
1. Includes
a. Illegitimacy
i. Inheritance in probate crts
ii. Child support
iii. Worker’s compensation benefits
iv. Wrongful death benefits
b. Mental incapacitation
c. Illegal alien children

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What is the fourth class?

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iv. CLASS #4: Rational Basis (90% of the time, this will be the classif.)
1. Includes-All other classes not included above

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What is the second step in alleging a violation of equal protection?

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b. STEP #2: Determine if DeJure or Defacto
i. Is the discrim. DeJure or DeFacto

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What are the three types of dejure discrimination?

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1. DeJure  State actor involved
a. Three types
i. Statutes are facially discrim.ory
1. Ex.  Strauder–Blacks can’t serve on juries
ii. Statutes that are facially neutral but are deliberately administered in a discrim.ory way
1. Ex.  Yick Wo–only Chinese immigrants were found to be in vio. of the city ordinance
iii. Statutes that are facially neutral but whose purpose of motive may have been to discrim. or DA a suspect class
1. Ex.  Poll tax was to discourage poor ppl & minorities from showing up at the polls

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What is defacto discrimination?

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2. DeFacto  Not unconstit.al b/c it involves no state action, it’s beyond the parameters of the EPC. It’s not the state acting, but social or economic factors causing the apparent discrim.
a. Ex:  When segregation is a result of human migration & economics
ii. If defacto  you are dead in the water
iii. If dejure, move to STEP 3

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What is the third step in alleging a violation of EP?

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If it's dejure segregtion then ask if the government inteded to discriminate

i. GENERAL RULE: P must prove specific intent to discriminate b/c disproportionate fx alone DN rise a PF assumption of intent to discriminate

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What is the exception that does not need intent by the governement to discriminate?

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ii. EXCEPTION:
1. Jury cases  P can rely solely on disproportionate effect where there’s a jury case & startling result/super egregious
a. ELEMENT #1-ID the class
b. ELEMENT #2-Prove the degree of underrepresentation
c. Satisfying these 2 elements shifts the burden to state to dispel the inference of intentional discrim.—If state comes up w/ a legit. reason like they’re excluded b/c they’re not US citizens/have a green card, are felons, are illiterate, etc; then, the state can win
2. Permitted to use statistical disparity, when
a. Grand jury or petit jury—however, you’re not entitled to a particular amt of minorities on your jury
b. Redistricting so blacks can’t vote in city election
c. Some of the aff. action cases

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What is the fourt step in alleging a violation of EP?

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d. STEP #4: Apply the appropriate level of scrutiny depending on the classif.

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What is the first step and what is the classification it goes along with?

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e. TEST #1: Strict Scrutiny Test (Applicable to Inherently Suspect Classes)
1. Elements
a. ELEMENT #1: A compelling state interest (BOP is on state)
b. ELEMENT #2: Statute is narrowly tailored to achieve the desired objective
2. Burden on state  state usually loses here

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Examples of where strict scrutiny was applied

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3. Cases
a. Strauder v. WV
i. Facts  VA statue provided that all white male persons who are over 21 years of age who are citizens of the state shall be eligible to serve as jurors. P, a black male was convicted of murder by a jury in which all blacks had to be removed pursuant to the statute. P says he is deprived of EP b/c of the race classification
ii. Issue  has D been deprived of EP
iii. Conc.  Statute on its face was discrim.ory, strict scrutiny here b/c there was obviously a specific intent to discrim. on the face of the law & no compelling govt int.
b. Castenda v. Patida
i. Facts  D tried for burglary & rape. 50% of the grand jurors were Hispanic. D claims that he was still discrim.d against b/c 79% of city is Hispanic & only 30% of grand jurors & 49% of petit jurors were Hispanic.
ii. Issue  Whether a statistical analysis raise EP violation
iii. Conc.  Statistics can be used to show EP vio.s in jury cases, this is PF ev. for the P, but may be rebutted by the state
c. Lovings v. VA
i. Facts  Virginia statute prohibited marriage between whites and non-whites.
ii. Issue  Does the statute deprive of EP
iii. Conc.  Statute violated EP, since the statute contained a racial classif. it’s subject to strict scrutiny. The purpose of the statute “to preserve the racial integrity” wasn’t a compelling state interest

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What is the second test and with what classification is it used?

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ii. TEST #2: Exceedingly Pervasive Justification Test (quasi-suspect class)
1. Elements
a. ELEMENT #1: Classif. est.d to further sig. govt.al interest
b. ELEMENT #2: Classif. is subs.ly rx.d to the achievements of the govt objective
2. Burden On state  state usually loses
3. Applicable class-Quasi-suspect

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Cases in which the exceedingly pervasive justification test was used?

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a. Craig v. Boren
i. Facts  Male couldn’t buy liquor if they were under 21. Females could buy if 18. Discrim.ing boys who are bet. 18-21. State’s reasoning was that guys get drunk more so for highway safety purposes the guys had to be older
ii. Conc.  The state needs statistical proof. They can’t just say it. Must show that reason for discrim.ing is subs.ly rx.d to achievements of objective
b. US v. Virginia
i. Facts  VA didn’t permit females to attend VMI. 2 justif.ns for diversity (1) wanted to give people option of kinds of school; & (2) character development. Claimed there was a separate but equal school for girls. SAT scores were lower, faculty not as good & the mil. style was gone at the all f’s school & the mil. style was gone at the all girls school
ii. Conc.  govt must demonstrate exceedingly persuasive justif. why girls aren’t admitted. VMI DN pass–not separate but equal.
iii. TEST #3: Overriding State Interest
1. ELEMENT: The state needs to have an overriding state int. for differential treatment
2. Applicable Class-Elevated Rational Basis
3. Cases
a. Gomez v. Perez
i. Facts-Illegitimate kid, paternity = est.d, but TX statute DN req. child support like it would if kid = “legit”
ii. Conc.-This creates two grps: legit. & illegit kids. The state DN have an overriding int. in treating these grps diff.ly based on this classif. & in essence denying the right of child support merely b/c parents weren’t married
b. Cleburne v. Cleburne (mental retardation)
i. Facts  City of Cleyborne got in a dispute w/ someone wanting to open place for mentally retarded. Trying to help these ppl develop life skills. Area zone for R-3 use  for insane or feeble minded need special use permit (entitlement terminates when biz. terminates). Living center sought to get permit but were denied.
ii. Conc.  Under elevated rational basis test, state has burden of proof which they did not meet

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What is the fourt test?

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iv. TEST #4: Rational Basis Test (rational basis class)
1. Elements
a. ELEMENT #1: Classif. is rationally rx.d to legit. govt int.
2. Burden On indiv. attacking the statute to prove no conceivable set of facts could justify what the state is doing  state usually wins (true even if state can’t come up w/ a rational reason but crt finds one)
3. Applicable Classes-Rational basis class

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Cases where the rational basis test was used.

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4. Cases
a. Logan v. Zimmerman
i. Facts  Guy was fired b/c one of his legs was too short, & they said he couldn’t do his job. State set hearing date for appeal. In clerk’s office, they messed up & set date too late
ii. Claim asserted  Claim is the property int. in his CoA. State C/L actions can be property int.s under the 14th Amdt. He’s complaining that state held this was jurisdictional & he had no right
iii. Conc.  State DN pass the test of rationality–he shouldn’t be deprived of hearing b/c of state mistake. EP claim  rationality test b/c no suspect class
b. New Orleans v. Dukes
i. Facts-N.O. enacted a statute to keep out push cart vendors but grandfathered in ppl who’d been there for 8+ yrs
ii. Conc.-There = rational basis for ordinance—city’s concerns about aesthetics = w/in state’s police pwr. So the diff. treatment bet. vendors based on time in city = ok.

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Where does affirmative action come from?

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a. Title VI - No person in US on the ground of race, color, nat’l origin, shall be subjected to discrim. in any prgm receiving fed. financial assistance
i. The scope of Title 6 is Coterminous w/ EP
ii. Note: EP components do NOT apply to private schools (not state actors), but some do receive fed. $ so they will come under Title VI.

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What is the analysis for Aff Action?

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a. Level of judicial scrutiny–strict (this will always be used when we’re talking about race)
i. Compelling state interest
1. STEP 1 → What is the interest
2. STEP 2 → Will the Court recognize it
3. There must be ev. of discrim. in the specific industry/area that the regulation applies to

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What is diversity?

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4. Diversity is a compelling state interest
a. Diversity req.s a critical mass of minority students to where we don’t just get 1 minority point of view
i. Critical mass = the benefits that diversity creates in terms of:
1. Cross racial understanding
2. Preparing students for diverse working world
ii. Diversity is a legit. goal, so long as race isn’t a determinative factor

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What is the second step in the strict scrutiny test and when is it satisfied in regard to affiemative action?

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ii. Narrowly tailored
1. DN req. exhaustion of every race neutral program
a. The statute will be narrowly tailored if race is more of a qualitative, tie-breaker factor than an automatic award
2. Can’t be narrowly tailored if there’s a quota or the equivalent of a quota
3. Can’t be narrowly tailored if not geographically specific
4. Can’t be narrowly tailored if there are classes included in the statute that there is no ev. of discrim. against
5. Key factor: There has to be an indiv. eval., race can’t be determinative. Must be an “indiv. assessment”; ex., indiv. assessment req.d in college admissions process at U. Michigan; UM DN have an indiv. assessment, therefore it was NOT narrowly tailored

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Aff action cases

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i. Adarand Construction v. Pena
1. Facts-US govt Kts give priority to co.s w/ minorities at certain %
2. Conc.-Construction co. that was rejected here b/c not enough minorities wins b/c the govt’s po. wasn’t narrowly tailored enough since there = MANY facets of the construction industry—ie plumbing, electrical, etc (so just b/c one part of the industry = discrim.ory, DN mean that another part is)
ii. Aff. Axn admissions cases
1. Facts-Schools give extra weight/consideration to students who = minorities
2. Conc.-State/edu. sy. has a compelling int. in diversity for reasons above. As long as there’s not a quota & it’s an individualized evaluation of all the factors w/ each applicant, then the po. = legit b/c narrowly tailored.

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What is alienage and how does it play into equal protection

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I. Intro
a. Alienage–not having US citizenship
i. However, they’re legally present in the country
b. They are an inherently suspect class
c. They are discrete & insular:
i. Easy to ID, easy to hate
ii. Politically powerless b/c not permitted to vote
iii. Traditionally discrim.d against

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What is the public function exception to alienage?

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II. Public Function Exception (Already discussed in main EPC section)

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What about the equal protection of alien children in regard to education?

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III. Illegal Alien Children
a. The SC has est.d that illegal aliens of school age may NOT be charged a fee for public school edu. (Plyer)
i. Facts-TX Statute said schools could deny public edu. to illegal alien children. They could go to school if they paid. If you were lawful alien you could go for free.
ii. Level of scrutiny–Elevated rational basis
1. Parents aren’t a suspect class b/c entry into the class was voluntary
2. The kids had no say–they just had to do what parents said. Public edu. is more important than other social benefits. Denying these children an edu. would render them illiterate & prevent them from becoming useful members of society.
iii. Conc.-No subs. goal of the state is furthered by this reg.-thus, this violates EP.

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How did the US go about desegragating the school system?

What did Brown v. Board of education say?

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I. Brown v. Board:
a. Edu. is the most important function of govt–when the state undertakes it–it’s a right which must be available on equal terms
b. Separate but equal can‘t provide equal edu.al opportunities b/c of intangible considerations
c. Schools must have plans to desegregate w/ “all deliberate speed”

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What factors are to be considered in eradicating segregation?

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II. Green factors to be considered in eradicating segregation:
a. Student assignment (attendance zone)
b. Faculty
c. Staff
d. Transportation
e. Extra-curricular activities – covers all of the activities
f. Facilities

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How did the courts go about remedying segregation?

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III. Remedying segregation (Swann v. Charlotte)
a. The crt gave guidance to d. cts & school boards containing the techniques of deseg.:
i. Racial quotas
1. Once official segregation is found, crt may consider what the ratio is of black to white, etc students in the dist. as a whole as a starting point
2. Abandonment, construction, & consolidation of school facilities is under control of the crt (also try to req. more minority teacher hiring)
ii. One race schools
1. Just b/c one or more schools are completely or almost single race DN necessarily mean that deseg. has not yet been accomplished
2. BUT, such schools must be carefully scrutinized by the crt, AND school must show that it’s not the result of past or present discrim.ory action
iii. Attendance zones
1. The remedial altering of attendance zones, isn’t, as a temporary measure, beyond the remedial powers of the crt
2. BUT, crt & school aren’t oblig.d to make year by year adjustments to maintain the initial order; If find segregation coming back as a result of shift in demographics, not unconstit.al (de facto segregation)
3. Pasadena v. Spangler: When the segregation comes back “de facto” it’s beyond the EPC b/c we there’s no “state action”
iv. Transportation
1. The crt approve busing as a means of bringing about deseg. as long as there’s not excessive amts of busing, BUT a scheme won’t be upheld if the time or distance of travel is so great as to risk either the health of the children or sig.ly impinge on the edu.al process
2. Taking white kids to black schools is okay, but must give free transportation

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When can the court relinquish jurisdiction over a school?

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b. Freeman: Factors to look at to see if crt can relinquish juris.:
i. Record of compliance/Totality of the Circumstances
1. “GF” has board changed, has it constantly shown GF w/ the deseg. decree?
ii. Practicability & efficiency of remedies
1. Green factors–Every facet of school operations, this tells us if there is a unitary system. Have the vestiges of past discrim. have been elim.d to the extent practicable?
2. Whether retention of judicial control is necessary or practicable to achieve compliance w/ decree?
a. When county grows, there’s a point in time where there’s nothing left for the board to do
iii. Local control–desire to return school authority to local control

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IV. San Antonio ISD v. Rodriguez

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a. Issue#1-Whether wealth is a suspect class
b. Rule-Wealth is a suspect class if:
i. B/c of momentary incapacity, they were completely unable to pay for some desired benefit, AND
ii. As a consequence, sustained absolute deprivation of their constitutional rights
c. Holding#1
i. Kids DN suffer absolute deprivation of right. They at least got minimum edu.. May not receive same quality, but EP DN allow elevated right of EP
d. Issue #2-Whether edu. is a fundamental right?
e. Holding #2
i. NO! Only rights that are fundamental are those rights that are implicit or explicit (P&I of fed. citizenship).
ii. Only substantive right found under EP–“one man, one vote.” (Greatly narrows def. of fundamental right)

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Hwo is Gender evaluated?

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I. Test
a. Classif. by gender must serve important gov’t objectives & must be subs.ly rx.d to achieve these objectives
b. The Crt applies this standard in a rigorous way which makes it closer to strict scrutiny.
c. The defenders of a gender-based scheme must show an “exceedingly pervasive justif.” for the scheme

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Gender cases

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II. Craig v. Boren
a. Facts: M. couldn’t buy liquor if they were under 21. F.s could buy at 18. Discrim.ing guys who = bet. 18-21. State’s reasoning was that guys get drunk more-so for highway safety purposes the guys had to be older.
b. Conc.: The state needs statistical proof. They can’t just say it. Must show that reason for discrim.ing is subs.ly rx.d to achievements of objective (causation)

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III. US v. VA–Justice Ginsburg

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a. Facts: VA DN permit f.s to attend VMI. 2 justif.s for diversity: (1) Wanted to give people option of kinds of school coeducation or all male (guy gets choice) and (2) Character development–physical harassment, absence of privacy. Claimed there was a separate but equal school for girls. SAT scores were lower, faculty not as good & the mil. style was gone at the all girls school.
b. Conc.: Govt must demonstrate exceedingly persuasive justif. why girls are not admitted. VMI DN pass–not separate but equal.
c. Concurrence: Test should be whether classif.s bear close & subs. relation. After Hogan, VA was on notice what VMI was doing was unconstit.al.
i. Separate but equal military schools DN exist

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Illegitimate Children. What is the level of review?

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I. Level of Review – …
a. … scrutiny is used. The classif. disadvantaging illegitimacies must be subs.ly rx.d to an important govt.al objective
II. Rts of Children in gen. = above in general EPC sheet

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What are the general rights of Children in regard to Citizenship?

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III. Rights of Children Pertaining to Citizenship
a. One American parent & one alien who get married–child is citizen & they DN have to do anything so long as American lived in America for 5 yrs
b. One American parent & one alien & kid is illegitimate born not in US
i. Mom is citizen & has had a continuous year of residency in us or its territory → Kid is automatically a citizen
ii. Dad is citizen–child must:
1. Est. blood rx + a bunch of other hoops
2. Before 18
a. If after 18–she’s out of citizenship

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name the justices of the supreme court

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KKGB RATSS

Anthony Kennedy
Elena Kagan
Ruth Bader Ginsburg
Stephen G. Breyer
Chief Justice John G. Roberts
Samuel A. Alito
Clarence Thomas
Sonia Sotomayor
Antonin Scalia