Con-Law-V2

Front 1

Does the federal court have the power to hear the case?

Back 1

Art. III, section 2 limits the jurisdiction of the federal courts to cases:
(1) arising under the Constitution, Laws of the US and Treaties;
(2) affecting ambassadors, public ministers and consuls;
(3) of admiralty and maritime jurisdiction;
(4) to which the United States shall be a party;
(5) between two or more states, a state and citizens of another state, or citizens of different states.

Front 2

Original jurisdiction.

Back 2

Article III, Section 2 gives the Supreme Court original jurisdiction in controversies affecting ambassadors, other public ministers, and consults; and controversies to which a state is a party. Congress may not expand or contract original jurisdiction. Marbury v Madison (1803).

Front 3

Appellate jurisdiction.

Back 3

Art. III, section 2 gives the U.S. Supreme Court appellate jurisdiction in federal law cases arising in the inferior federal courts and the state courts, and admiralty and maritime cases. Congress may contract appellate jurisdiction through the Exceptions and Regulations Clause.

Front 4

2 ways to Invoke Supreme Court appellate Jx.

Back 4

(1) direct appeal and (2) writ of certiorari.

Front 5

Direct appeal.

Back 5

Decisions of three-judge federal district courts. Rare.

Front 6

Writ of certiorari.

Back 6

The main discretionary way for invoking Supreme Court appellate jurisdiction is through a writ of certiorari. The case must involve conflicts between:
(1) different federal courts of appeal;
(2) the highest courts of two states; or
(3) the highest state court and a federal court of appeals.

Front 7

Rule of Four.

Back 7

Under the Rule of Four: Four or more justices must vote to grant petition.

Front 8

Is the dispute a case or controversy?

Back 8

The jurisdiction of federal courts is limited to "cases" and "controversies." A "case" or "controversy" is
(1) a real and substantial dispute which
(2) touches the legal relations of the parties
(3) having adverse interests and which
(4) can be resolved by a judicial decree.

Front 9

Advisory opinion?

Back 9

The supreme Court may not give advisory opinions. State courts can.

Front 10

Political question?

Back 10

Under the political question doctrine, federal courts will not decide issues that should be resolved instead by the other two political branches of the government. Baker v Carr (1962).

Front 11

May the Court give a decaratory Judgment?

Back 11

The Court may give a declaratory judgment, which is a decision to determine the legal effect of the conduct without awarding damages or injunctive relief.

Front 12

Is the case ripe?

Back 12

The controversy must be ripe for decision, that is, there must be an immediate threat of harm.

Front 13

Is the case moot?

Back 13

A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot.

Front 14

injury capable of repetition?

Back 14

Controversies capable of repetition, but evading review are not moot.

Front 15

Remaining collateral consequences?

Back 15

If collateral (or lesser) matters remain, the case will not be dismissed. Powell v McCormack (1969).

Front 16

Should the federal court abstain from hearing the case (Pullman)?

Back 16

Under the Pullman doctrine, a federal court may temporarily "abstain" from resolving a constitutional claim when the disposition rests on an unsettled question of state law.

Front 17

Should the federal court abstain from hearing the case (Younger)?

Back 17

Under the Younger doctrine, a court will generally not enjoin a pending state criminal case, or enforcement proceeding in which an especially strong state interest is involved, absent a showing of bad faith harassment by the state prosecutors. Younger v. Harris (1971).

Front 18

Does P have standing?

Back 18

A plaintiff bringing a lawsuit in federal court must show
(1) a direct and personal injury,
(2) that the injury was caused by the conduct of the defendant and,
(3) the relief sought in the suit will prevent or redress the injury.

Front 19

Taxpayer standing?

Back 19

A taxpayer has standing to litigate her tax bill, but generally no standing to challenge government expenditures because the taxpayer's interest is too remote.

Front 20

Does P have standing under the Flast Exception?

Back 20

Under Flast Exception, a federal taxpayer had standing to challenge congressional taxing and spending measures on 1st Amendment Establishment Clause grounds. Flast v Cohen (1968).

Front 21

Can P raise the rights of third parties?

Back 21

Generally, a litigant lacks the standing to assert the rights of third parties (jus tertii) not before the court. However, standing may be found where:
(1) A special relationship exists between the claimant and the 3rd party;
(2) Where the 3rd party is unable to bring suit on his own behalf.

Front 22

Can an association raise the rights of its members?

Back 22

An association has standing to assert the claims of its members, even if the association has not suffered any injury itself, if:
(a) The members would otherwise have standing to sue in their own right;
(b) The interest asserted is germane to the association's purpose; and
(c) Neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit.

Front 23

Siler doctrine

Back 23

Under the Siler doctrine, when possible, federal court must decide lawsuits on state law grounds rather than federal constitutional grounds.

Front 24

Is the state court's decision based on adequate and independent state grounds?

Back 24

A final state court judgment that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court because it would be an advisory opinion.
(1) State law grounds are adequate if they are fully dispositive of the case.
(2) State law grounds are independent if the decision is not based on federal case interpretation of identical federal provisions.

Front 25

Does the 11th Amendment prevent a party from suing the State in federal court?

Back 25

The 11th Amendment prohibits a state from being sued in federal (or State) court by citizens of another state or foreign country without the state's consent.

Front 26

Exceptions to the application of the Eleventh Amendment.

Back 26

(1) A state may consent to suit by expressly waiving its Eleventh Amendment protection;
(2) A state official may be sued in federal court to prevent enforcement of an unconstitutional state statute. Ex parte Young (1908);
(3) The 11th Amendment bars only suits for damages, not those for injunctive or declaratory relief;
(4) An action for damages against a state officer is not prohibited, as long as the officer pays; and
(5) Congress may abrogate state immunity if it is clearly acting to enforce rights created by the Fourteenth Amendment.
(6) Suits in bankruptcy in which the state is a party.
(7) Actions against local governments.
(8) Actions by the US gov or other state governments.

Front 27

'Necessary and proper" clause

Back 27

Under the "Necessary and Proper Clause", Congress has the power to use any means rationally related to furthering an end within the enumerated powers and not otherwise forbidden.

Front 28

Can Congress regulate under the Commerce Power?

Back 28

Under the Commerce Power, Congress has the power to regulate:
1. Channels of interstate commerce;
2. Instrumentalities of interstate commerce; and
3. Activities that substantially affect interstate commerce.
Gibbons v Ogden (1824).

Front 29

Affectation Doctrine

Back 29

Under the Affectation doctrine, Congress has the power to regulate any activity, whether local or interstate, which, on its own, or in the aggregate, has a substantial economic effect upon interstate commerce. Rational basis scrutiny applies.

Front 30

Wickard v Filburn (1942).

Back 30

The federal commerce power could be used to regulate the amount of wheat a farmer grew on his land. Although farmer's excess production and home consumption had only a negligible impact on interstate commerce, if a large number of other farmers did the same thing, aggregate impact on commerce would be substantial.

Front 31

U.S. v Lopez (1995).

Back 31

A federal law made it a crime for any individual knowingly to possess a firearm in a school zone. But no "commercial" activity nor activity that "substantially" affects interstate commerce. Therefore, no "jurisdictional nexus" between gun possession to interstate commerce and beyond limits of Commerce Clause.

Front 32

Gonzales v Raich (2005).

Back 32

Marijuana used for medical purposes: although one person's use of a small amount of marijuana may have only a trivial impact on interstate commerce, the aggregate effect of many users may be substantial.

Front 33

United States v Morrison (2000).

Back 33

Rejected argument that Violence Against Women Act could be sustained if assaults on women have an aggregate impact on interstate commerce that is substantial.

Front 34

Heart of Atlanta Motel v United States (1964).

Back 34

Court upheld provisions of Civil Rights Act of 1964 barring discrimination in places of public accommodation as "affecting" interstate commerce.

Front 35

Does the 10th Amendment act as a limit to the Commerce Power?

Back 35

The 10th Amendment, which provides that powers not delegated to the federal government are reserved to the states, serves as a (very weak) limitation on the federal commerce power.

Front 36

Commandeering State legislative processes.

Back 36

The 10th Amendment prevents Congress from commandeering the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program. New York v U.S. (1992).

Front 37

Can Congress regulate under the Taxing and spending Power?

Back 37

Under Article I, Section 8, Congress has the power to tax for revenue and spend for the general welfare. Congress can, however, require states to comply with specified conditions in order to qualify for federal funds.

Front 38

Oklahoma v Civil Service Commission (1947).

Back 38

Congress conditioned further grants of highway funds upon resignation of state highway administrator who was also state Democratic Party chairman.

Front 39

U.S. v American Library Association (2003).

Back 39

A federal law requiring public libraries that receive federal funds to screen out Internet pornography does not violate the 1st Amendment rights of patrons and is a valid exercise of Congress's spending clause power.

Front 40

Can Congress regulate under the War and Defense Powers?

Back 40

Under Art. I, section 8, Congress has the power to
(1) Declare war;
(2) Raise and support Armies;
(3) Provide and maintain a Navy; and
(4) Organize, arm, discipline and call forth the militia.

Front 41

United States v O'Brien (1968).

Back 41

SCOTUS upheld military draft and selective service systems. i.e., war power confers upon Congress very broad authority to initiate whatever measures it deems necessary to provide for the national defense in peacetime as well as in wartime.

Front 42

Habeas corpus.

Back 42

Habeas Corpus is the right of a state or federal prisoner to prove to a federal judge that the prisoner is being held in violation of the constitution or federal law.

Front 43

National Guard.

Back 43

The President has the authority to order units of the National Guard into federal service without the consent of the governor of the respective state. Generally, to assist in times of national emergency; however, authority holds when no national emergency exists.

Front 44

Can Congress regulate under the Investigatory Power?

Back 44

Under the investigatory power, implied from the "necessary and proper" clause, Congress may conduct investigations incident to its legislative power.

Front 45

Can Congress regulate under the Property Power?

Back 45

The Property Clause (Art. IV, section 3) gives Congress complete power over federal lands.

Front 46

Other Congressional Powers.

Back 46

Congress has power over bankruptcies, maritime matters, the coining of money, fixing of weights and measures, and patents and copyrights.

Front 47

Can Congress regulate under its "power over naturalization"?

Back 47

Article I, Section 8 allows Congress to "establish a uniform rule of naturalization."

Front 48

Congress' power over aliens.

Back 48

Congress has plenary power over aliens, subject to the constraints of the Fourteenth Amendment for lawfully admitted aliens.
(1) Aliens have no right to enter the United States and may be refused entry for reasons such as their political beliefs.
(2) Resident aliens are subject to deportation, but only after notice and a hearing.

Front 49

Congress' power over naturalization.

Back 49

Congress has exclusive authority over naturalization. It may not, however, take away the citizenship of any citizen without her consent, unless that citizenship was obtained by fraud or in bad faith.

Front 50

Children born abroad.

Back 50

Children born abroad whose parents are U.S. citizens are not automatically entitled to U.S. citizenship; Congress can grant citizenship conditioned on the child's return to the U.S. within a specified time or for a specified duration.

Front 51

Speech or Debate Clause

Back 51

The Speech or Debate Clause protects statements and conduct made in the regular course of the legislative process by members of Congress.

Front 52

Must the president execute this law?

Back 52

Art. II, section 1 provides that "the executive power shall be vested in a President of the United States of America." The president has the power to:
(1) execute the law;
(2) "take care" that the law is fully executed; and
(3) prosecute crimes and, with the courts, punish those convicted.

Front 53

May Congress/Pres appoint/remove this person?

Back 53

President has constitutional power to appoint principal officers and may remove them at will. Congress has constitutional power to decide whether president, department heads, or courts appoint inferior officers.

Front 54

Veto power.

Back 54

Once Congress has approved legislation, the President is granted 10 days in which to veto it. If not, the proposed legislation becomes law. If the President veto's the bill, Congress may override the veto by a two-thirds vote in each house.

Front 55

Pocket veto.

Back 55

The Constitution grants the president 10 days to review a measure passed by the Congress. If the president has not signed the bill after 10 days, it becomes law without his signature. However, if Congress adjourns during the 10-day period, the bill does not become law.

Front 56

Line-item veto.

Back 56

A line-item veto, which would give the President the power to cancel portions of new federal legislation is unconstitutional b/c it violates Presentment Clause. Clinton v City of New York (1998).

Front 57

Youngstown Sheet & Tube Co. v Sawyer (1952).

Back 57

Supreme Court invalidated a presidential order directing seizure of steel mills to prevent a threatened strike. The President cannot usurp Congress's law-making authority.

Front 58

Delegation to executive.

Back 58

On numerous occasions Congress has delegated to the President broad authority to effect structural changes in the executive branch (e.g., creating agencies such as the Department of Health, Education, and Welfare, the Environmental Protection Agency, and the Nuclear Regulatory Commission).

Front 59

Legislative veto.

Back 59

In INS v Chadha (1983), the Supreme Court held that a legislative veto violated the constitutional requirements of the separation of powers, and, therefore, it was unconstitutional.

Front 60

May the president pardon this person?

Back 60

Art. II, section 2 gives the President the power grant pardons for federal crimes, except in cases of impeachment.

Front 61

Does the president have a privilege to refuse to disclose this information?

Back 61

The President has an absolute privilege to refuse to disclose information relating to military, diplomatic or sensitive national security secrets. Other confidential communications between the President and his advisors are only presumptively privileged. United States v Nixon (1974).

Front 62

Can the President respond to attacks?

Back 62

Even absent a declaration of war by Congress, president has power as Commander-in-Chief to respond to attacks against the US and take appropriate actions. (No power to seize private property or declare war).

Front 63

Does the President have the power to enter into a treaty with X?

Back 63

The President has the power to:
(1) negotiate treaties subject to ratification by Senate; and
(2) enter executive agreements not subject to ratifications by the Senate

Front 64

Can the house/senate impeach the president/VP/officer?

Back 64

Art. II, section 4 provides that the "President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Front 65

Impeachment.

Back 65

Expressed power of Congress that allows for formal charges against a civil officer for crimes committed in office. The House of Representatives has the sole power to impeach; while the Senate has the power to try impeachments. 2/3 vote is required for conviction.

Front 66

Does the State law violate the supremacy clause?

Back 66

The Supremacy Clause, in Art. VI, paragraph 2, provides that the Constitution, treaties and laws of the United States are "the supreme law of the land." Congress can expressly preempt state law. Alternatively, implied preemption may be found where:
(1) It is impossible to comply with both state and federal law;
(2) State law impedes the achievement of a purpose of federal law; or
(3) Federal law has regulated a subject so thoroughly that it appears Congress intended to occupy the entire field to the exclusion of state law.

Front 67

Federalism.

Back 67

Federalism is the co-existence of the national and state governments. Structure of governmental powers: (1) those powers exclusively given to federal government; (2) those powers reserved to states under 10th Amendment; and (3) those powers that can be exercised concurrently by both federal and state governments.

Front 68

Minimum standards and the supremacy clause.

Back 68

Where Congress has legislated merely to establish certain minimum standards, then the states are free to enact more stringent standards than those mandated by federal law.

Front 69

Police power.

Back 69

The federal government has no police power. It must legislate through one of its enumerated powers. The states, on the other hand, have a broad, general authority to protect health, safety, welfare, morals, or aesthetic interests of the people.

Front 70

Can the State tax/regulate the Federal government?

Back 70

The fed gov and its agencies are immune from state taxation and regulation. Moreover, the federal government and its agencies are immune from suits by private individuals except where the government allows itself to be sued.

Front 71

Can the Federal government regulate the state?

Back 71

As long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states and local governments in the same regulation as it regulates private actors, if:
(1) the legislation makes it clear on its face that it applies to both states/local government and private actors; and
(2) the legislation does not impact any essential government functions, such as law enforcement.

Front 72

State immunity from Federal Law.

Back 72

The state is immune from U.S. commandeering its officers into federal service. U.S. may entice these actions under the Spending Clause but may not force them under the Commerce Clause. NY v US (1992).

Front 73

South Dakota v Dole (1987).

Back 73

Congress can condition a provision of 5% of federal highway funds on the state's raising its drinking age to 21; the amount at issue did not exceed the point at which "pressure turns into compulsion."

Front 74

Can the Federal government/another state sue the state?

Back 74

The federal government or one of its agencies (or instrumentalities) may sue a state and a state may sue another state without its consent.

Front 75

Does the state legislation violate the Dormant Commerce Clause?

Back 75

Under the 10th Amendment, if Congress has not enacted legislation in a particular area of interstate commerce, the states are free to regulate, so long as the state statute do not:
(1) discriminate against out-of-state commerce (must be least discriminatory means);
(2) unduly burden interstate commerce (balancing test); and
(3) regulate extraterritorial (wholly out-of-state) activity.
Additionally, the State legislation must be rationally related to a legitimate state police power purpose.

Front 76

Art. 1., Section 10 prohibits states from.

Back 76

(1) Making treaties with other nations;
(2) Coining money;
(3) Passing a bill of attainder;
(4) Enacting an ex post facto law;
(5) Impairing the obligation of contracts;
(6) Laying any duty on imports or exports, except where it is necessary for executing its inspection laws;
(7) Engaging in war; or
(8) Maintaining a peacetime army.

Front 77

Market participant.

Back 77

A state that itself enters the marketplace is a "market participant," not subject to Dormant Commerce Clause; except when:
(1) State seeks to control conduct beyond its role in market; or
(2) it gives tax credits or exemptions.
In these situations, it is acting as state and not a market participant.

Front 78

Use tax.

Back 78

A tax on goods purchased outside of the state, but used within it. Valid unless higher than sales tax.

Front 79

Sales tax.

Back 79

Tax on the sale of goods consummated within the state. Generally valid if there is a substantial nexus to the taxing state and the tax is properly apportioned (if more than one state can tax the sale).

Front 80

Ad Valorem tax.

Back 80

Tax on the assessed value of some property.
Commodities: Valid only if property no longer in interstate commerce.
Instrumentalities: Valid if:
(1) instrumentality has "taxable situs" in state (i.e., receives benefits and protection from state); and
(2) tax is fairly apportioned.

Front 81

Can the state tax activity ("doing business" tax)?

Back 81

State taxation of interstate commerce is permissible. Valid if:
(1) substantial nexus to taxing state;
(2) fairly apportioned;
(3) does not discriminate against interstate commerce; and
(4) fairly relates to services provided by the state.

Front 82

Taxes and the Privileges and Immunities Clause of Article IV

Back 82

Privileges and Immunities Clause of Art. IV prohibits state taxes that discriminate against nonresidents.

Front 83

Is this state tax permissible?

Back 83

The state may tax citizens, residents, and nonresidents, and corporations provided the tax is nondiscriminatory.

Front 84

Was there state action?

Back 84

14th Amendment applies only if there is action by a state or local government officer or private individual whose behavior meets the requirements for state action. There is "state action" by private individuals in the following four instances:
(1) Public Function Doctrine;
(2) Judicial Enforcement of Private Agreement;
(3) Public/Private Partnership; and
(4) State Endorsement of Activity.

Front 85

Public Function Doctrine.

Back 85

Where a private party is performing what is traditionally and exclusively the function of the government.
(1) e.g., a "company town."
(2) Utility companies, health insurance companies, and nursing homes not public functions.

Front 86

Marsh v Alabama (1946).

Back 86

A private company owned an entire town. Court concluded that it could not ban Jehovah's witnesses for trespassing because it was a company town, i.e., the equivalent of a public city.

Front 87

Hudgens v NLRB (1976).

Back 87

The "company town" rationale does not apply to a privately owned shopping center.

Front 88

Judicial Enforcement of Private Agreement.

Back 88

Where court is enforcing a private agreement that requires a private party to discriminate against its will. Shelley v Kraemer (1948).

Front 89

Public-Private Partnership.

Back 89

Where state and private party agree to joint action; or where state and private party enter into a "symbiotic relationship" and the private party's action is an "indispensable part" of the state's operation.

Front 90

Burton v Wilmington Parking Authority (1961).

Back 90

A restaurant owner, whose business was located in a building owned by the city, was prohibited from discriminating against racial minorities ("symbiotic relationship")

Front 91

Gallagher v. Neil Young Freedom Concert (1995)

Back 91

Private security officers were not acting under color of state law in performing pat-down searches of concert patrons at a rock concert held by a private concert promoter at a state university. University had a policy about bringing contraband into the university arena, university officials were aware that pat-downs would be performed by a private security firm, and university police observed the pat-downs were insufficient to create nexus between action of private security firm and university.

Front 92

Does the federally protected right of X apply to state/local governments infringement?

Back 92

Through the process of "selective incorporation," most of the rights protected against federal infringement by the Bill of Rights are applicable to the states and local governments through the 14th Amendment. Major exceptions include:
(1) 5th Amendment right to a grand jury in criminal cases; and
(2) 7th Amendment right to a jury trial in civil cases.

Front 93

Was there a deprivation or threatened deprivation of an individual's life, liberty, or property?

Back 93

Under Procedural Due Process, the state must act with adequate or fair procedures when it deprives a person, corporation, or alien of life, liberty or property, including the requirement of prior notice and prior, or subsequent evidentiary hearing.

Front 94

Does the hearing occur before or after deprivation?

Back 94

Balance the following:
(1) importance of the interest to the individual; and
(2) value of specific procedural safeguards to that interest; against
(3) the government interest in fiscal and administrative efficiency.

Front 95

Goss v Lopez (1975).

Back 95

There is a constitutionally protected property interest in the entitlement to continued attendance at a public school: significant suspension for disciplinary reasons (e.g., 10 day duration) cannot be imposed without at least a minimum form of hearing.

Front 96

Goldberg v Kelly (1970).

Back 96

A property interest has been found in the right to continued welfare benefits.

Front 97

Bell v Burson (1971).

Back 97

A state may not revoke a driver's license without a hearing.

Front 98

Perry v Sindermann (1972).

Back 98

There is a property interest if the employment is under a tenure system, or that the employee can be terminated only for "cause."

Front 99

Did the government violate a person's rights under the Due Process Clause of the 14th Amendment?

Back 99

The Substantive Due Process Clause of the 14th Amendment limits the power of the states to regulate certain areas of human life (liberty interests).
(1) For a non-fundamental right (most economic and social welfare interests), the burden is on the plaintiff to show the measure being challenged is not rationally related to ANY legitimate interest.
(2) For a fundamental right (privacy, interstate travel, voting, 1st A), the burden is on the government to show that the measure being challenged is necessary to further a compelling interest, that is, it must be the least restrictive means of achieving that interest.

Front 100

NFR: Non-marital relationships.

Back 100

Interest of unmarried persons in living together in a dwelling or associating in private (non-First Amendment) club or association is not fundamental. However, law burdening sexual intimacy of adult, unrelated gays was held not to have legitimate interest. Lawrence v Texas (2003).

Front 101

NFR: The right to die.

Back 101

The right of a terminally ill or comatose person to choose to die is not a fundamental right. But, under Cruzan, people have a due process "liberty" interest in not being forced to undergo unwanted medical procedures, such as life support. Cruzan v Missouri Department of Health (1990). This must be balanced by the state's countervailing interest in preserving life.

Front 102

NFR: Suicide

Back 102

A terminally ill patient can refuse medical treatment but cannot obtain physician's assistance to commit suicide: A terminally ill patient has no "liberty" interest in committing suicide.

Front 103

NFR: Access to services.

Back 103

Interest of persons in receiving food, clothing, and shelter is not fundamental. But where state establishes a "special relationship" with a person through civil or criminal confinement, it has "affirmative duties of care and protection."

Front 104

FR: Contraception.

Back 104

Access to contraceptive devices and services is fundamental. In Griswold v Connecticut (1965), the Court invalidated a state law prohibiting the use of contraceptive devices.

Front 105

FR: Marriage.

Back 105

A state law cannot unduly burden or significantly interference with right to marry. In the absence of an undue burden, rational basis test is applied.

Front 106

FR: Family Relations.

Back 106

Related persons, including extended family members, have a fundamental right to live together in a single household.

Front 107

FR: Parental relationships.

Back 107

Married parents have a fundamental interest in decisions about raising their children. Other persons with a connection to a child do not have a fundamental interest, including grandparents.

Front 108

FR: Private education.

Back 108

Parents have a right to privately educate their children outside the public school system.

Front 109

FR: Right to Travel.

Back 109

The Privileges and Immunities Clause in Art. IV, section 2, and the Commerce Clause mutually enforce the fundamental right of every citizen to travel freely from state to state.

Front 110

Residency Requirements.

Back 110

Durational residency requirements for benefits are subject to strict scrutiny. Examples:
(1) 1-year waiting period before receiving welfare benefits or state-subsidized medical care is invalid;
(2) reasonable residency requirements for obtaining a divorce, reduced tuition at state universities are valid.

Front 111

Right to Travel internationally.

Back 111

The right to international travel is not absolute and may be subject to certain restrictions (e.g., passport requirement).
Travel to certain countries or dangerous areas may be restricted.
E.g., passport for travel to Cuba denied.Zemel v Rusk (1965).

Front 112

FR: Obscene material.

Back 112

The right to possess obscene material in the privacy of one's home is a fundamental right. Stanley v Georgia (1969). But:
(1) State can criminalize even private possession of child pornography. Osborne v Ohio (1990).
(2) Government can severely restrict the sale, purchase, receipt, transport, and distribution of obscene materials.

Front 113

FR: Right to Vote.

Back 113

(1) The fundamental right of U.S. citizens over age 18 to vote extends to all federal, state, and local elections.
(2) Reasonable restrictions on residency (e.g., 30 days is valid) are valid.
(3) Special purpose elections may condition right to vote (own property for water storage districts).
(4) One person, one vote - very strict.
(5) Gerrymandering - race cannot be a predominant factor in drawing boundaries of voting districts, unless can pass strict scrutiny.
(6) Fee must not preclude indigents.

Front 114

Did the government violate a woman's right to have an abortion?

Back 114

The Substantive Due Process Clause of the 14th Amendment, limits the power of the states to regulate certain areas of human life (liberty interests). For abortion rights, following Planned Parenthood v Casey (1992), the court applies an "undue burden" test, depending on whether the fetus is viable or not.

Front 115

Pre-viability Rule.

Back 115

Before viability, an undue burden exists when the purpose or effect of a state law places substantial obstacles in the way of a woman's right to seek an abortion. Planned Parenthood v Casey (1992).

Front 116

Post-viability Rule.

Back 116

Once the fetus reaches viability, the state may regulate, and even prohibit abortion, since the state's interest in protecting the fetus may supersede a woman's right to choose. There is an exception to preserve the health or life of the mother.

Front 117

Was the government's action a taking?

Back 117

Congress' power of eminent domain is implied in Constitution. However, the Takings Clause of the 5th Amendment, extended to states by 14th Amendment, provides that private property shall not be taken for public use without just compensation.

Front 118

Public Use?

Back 118

The government's determination that a taking is for a public use will be upheld as long as it is rationally related to some conceivable public purpose. Kelo v City of New London (2005).

Front 119

Was the government's regulation permissible?

Back 119

In order not to constitute a taking, a land use, or zoning regulation must:
(1) substantially advance a legitimate state interest and
(2) not deny the owner all reasonable economically viable use of his land.

Front 120

Penn Central balancing test.

Back 120

Under the Penn Central balancing test, court will consider the following factors in determining whether the government action was a regulation or taking:
(1) The social goals sought to be promoted;
(2) The diminution in value to the owner; and
(3) The owner's reasonable expectations regarding the property.

Front 121

Temporary restriction.

Back 121

A temporary restriction causing a diminution in value is not a taking because property will recover value when prohibition is lifted. Therefore, the regulation doesn't "permanently deprive" owner of "all economic beneficial uses" of his land.

Front 122

"Just Compensation."

Back 122

If regulation amounts to a taking, government must:
(1) pay owner just compensation (fair market value);
(2) terminate regulation and pay for damages caused by regulation.
Just compensation is measured by loss to owner (if property is worthless - no compensation).

Front 123

Loretto v Teleprompter Manhattan CATV Corp. (1982).

Back 123

An ordinance requiring landlords to install cable television wires in all rental units constituted a taking (a physical occupation).

Front 124

Kelo v City of New London (2005).

Back 124

City took property in a residential neighborhood and gave it to real estate developers as part of an economic development and revitalization plan intended to generate new jobs and higher tax revenues.

Front 125

Does law violate equal protection clause of 14th A?

Back 125

The Equal Protection Clauses of the Fifth and Fourteenth Amendments guarantee that people who are similarly situated will be treated similarly. It only applies to intentional acts by the state.

Front 126

EP - RAN.

Back 126

Race, alienage, and national origin are "suspect" because they are based upon immutable characteristics seldom connected to the merits of person and strict scrutiny applies. The burden is on the government to prove that the measure being challenged is necessary to further a compelling interest.

Front 127

EP - Gender and Illegitimacy.

Back 127

Gender and illegitimacy are viewed under middle tier scrutiny. The burden is on the government to prove that the measure being challenged is substantially related to an important interest.

Front 128

EP - Economic and social.

Back 128

For economic and social measures, the burden is on the plaintiff to show the measure being challenged is not rationally related to any legitimate government interest.

Front 129

Rational Basis "with a bite".

Back 129

For some measures, such as anti-gay legislation, rational basis "with a bite" is becoming used more frequently. The court still presumes the legislature's classification to be acceptable, but requires them to articulate their real reasons.

Front 130

De Jure Discrimination.

Back 130

De Jure discrimination will be found if a law intends to purposefully discriminate against a particular group.

Front 131

De Facto Discrimination.

Back 131

De facto discrimination is the first step in proving de jure discrimination. This involves a factual analysis that demonstrates races are being treated differently.

Front 132

Purposeful Discrimination.

Back 132

Purposeful discrimination is required to make a classification "suspect," and thus subject to strict scrutiny. Three ways to establish:
(1) law discriminates on its face;
(2) law is neutral on its face, but is administratively discriminatory; or
(3) law is neutral, but discriminatory motivation was present when law was passed.

Front 133

Brown v Board of Education (1954).

Back 133

Court held that deliberate "de jure" segregation violates equal protection.

Front 134

Busing.

Back 134

School boards have an affirmative duty to eliminate intentional racial segregation of schools. Court-ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school system.

Front 135

Affirmative Action.

Back 135

Remedying past discrimination in a particular government institution is generally viewed as a compelling interest, but attempting to remedy general, societal injustice through affirmative action is not.

Front 136

UC Regents v Bakke (1978).

Back 136

Race or ethnic origin may be considered as a factor in admissions programs, but use of "quota" systems will be struck down as not being necessary to promote racial equality or educational diversity.

Front 137

Exceptions to Strict Scrutiny for Legal Aliens.

Back 137

States may discriminate against aliens where significant participation in the functioning of government is involved: (e.g., police officers, public school teachers). In this case, rational basis applies.

Front 138

Illegal Aliens.

Back 138

Illegal aliens are not "suspect" or "quasi-suspect" class, and rational basis analysis applies. BUT, illegal alien children have a right to free public elementary and secondary education.

Front 139

Federal classification based on alienage and illegitimacy.

Back 139

(1) Strict scrutiny doesn't apply to federal classifications based on alienage because Congress has broad plenary power to regulate immigration.
(2) Middle tier may not apply to illegitimacy in federal cases.

Front 140

Craig v Boren (1976).

Back 140

Oklahoma statute, which permitted the sale of beer to females over 18 years old, but forbade the sale of the beverage to males between 18 and 21, held invalid as not substantially related to any important government objectives.

Front 141

Massachusetts Board of Retirement v Murgia (1976).

Back 141

Court upheld the validity of a Massachusetts statute requiring police officers to retire at age 50, even though they may be as physically fit as younger officers.

Front 142

Does law violate the privileges OR immunities clause of the 14th A?

Back 142

The 14th Amendment provides that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The P and I clause of the 14th Amendment protects only the privileges and immunities of national citizenship. Slaughterhouse Cases (1873). (not corporations or aliens).

Front 143

Saenz v Roe (1999).

Back 143

New Revival of P or I Clause. Supreme Court invoked it to strike down a California statute providing that for one year after becoming a resident of California, a person could not receive welfare benefits exceeding the amount the person would have received in the state of prior residence. Held that one of the privileges and immunities of national citizenship is the right to move to a new state and to be treated just as well as long-time residents of that state.

Front 144

Does this law violate the privileges AND immunities clause under Article IV?

Back 144

The Privileges and Immunities Clause of Article IV (Comity Clause) prohibits states from discriminating against nonresidents with respect to "essential activities" or "fundamental rights:" Intrastate travel, doing business, property interests, higher taxes, receiving medical services. Only citizens are protected, not corporations or aliens.

Front 145

Toomer v Witsell (1948).

Back 145

State statute requiring a nonresident commercial fisherman to pay a $2,500 license fee to fish offshore, while a resident fisherman paid only a $25 license fee. State law invalid because it discriminated against nonresidents who were pursuing their livelihood (i.e., commercial fishermen).

Front 146

Baldwin v Montana Fish and Game Commission (1978).

Back 146

State statute requiring a nonresident to pay $225 for a recreational hunting license, while a resident hunter paid only a $9 license fee. Discrimination permitted because it is within a state's police power to regulate recreational, noncommercial activities.

Front 147

Does the State's legislation violate the contract clause?

Back 147

Under the contract clause, states cannot make laws that impair the obligations of contracts. However, a private contract can be modified by the legislature under its police power when it is necessary:
(1) to serve an important and legitimate public interest and
(2) the regulation is a reasonable and narrowly tailored means of promoting that interest.

Front 148

Is this statute an ex post facto law?

Back 148

A statute retroactively alters the criminal law if it
(1) makes criminal an act that was not a crime when committed,
(2) prescribes greater punishment for a crime after its commission,
(3) decreases the amount of evidence required for conviction or
(4) extends limitations period for crime as to which previously applicable limitations period has already expired.

Front 149

Is the legislative act a bill of attainder?

Back 149

A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct.

Front 150

Facial and as-applied challenges to statute.

Back 150

A facial challenge (overbreadth, vagueness, prior restraint, unfettered discretion) to a statute alleges that the legislation is unconstitutional on its face and therefore void. An as-applied challenge alleges that a particular application of a statute is unconstitutional.

Front 151

Does the law violate the Establishment Clause?

Back 151

Under the Lemon test, a law will be deemed to violate the Establishment clause unless:
(1) It has a secular purpose;
(2) the primary effect of law neither advances nor inhibits religion; and
(3) It will not result in excessive entanglement with religion.

Front 152

Lynch v Donnelly (1984).

Back 152

A nativity scene surrounded by two plastic reindeer, a Santa Claus, and a "Season's Greetings" banner, taken as a whole, celebrated the holiday season - does not violate Establishment Clause.

Front 153

Were a person's religious beliefs violated under the free exercise of religion clause?

Back 153

(1) A person's religious beliefs are absolutely protected.
(2) However, conduct in furtherance of those beliefs may be regulated.
(3) If there is purposeful interference => strict scrutiny.
(4) If law is neutral and generally applicable, but imposes an incidental burden on an individual's free exercise rights => rational basis.
(5) Government may not determine reasonableness of a belief but may determine the sincerity of person asserting belief.

Front 154

Military issues and 1st amendment.

Back 154

(1) Political activities may be curtailed as long as nondiscriminatory.
(2) The military has broad authority to prohibit uniformed personnel from wearing religious apparel.
(3) Enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations based on race discrimination.
(4) Petitions may require commander's approval prior to distribution, in interests of discipline.
(5) Prior restraint allowed for classified military information.

Front 155

Employment Division v Smith (1990).

Back 155

State of Oregon criminalized the possession of peyote as a means of strengthening its drug enforcement policy. The government is not required to give anyone an exemption from a neutral, generally applicable law, even if it burdens their ability to practice their religion.

Front 156

The First Amendment

Back 156

Under the 1st Amendment, made applicable to the states through the Due Process Clause of the 14th Amendment, "Congress shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." By inference, there also exists "freedom of association."

Front 157

Was the speech being regulated content-based?

Back 157

If government regulates speech because of its content => strict scrutiny: the government must show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.

Front 158

Student's freedom of expression rights.

Back 158

Public school students have a right to freedom of expression. However, the rights of students in public school settings are not necessarily as strong as the rights of adults in other settings.

Front 159

Is the expressive conduct protected under the First Amendment?

Back 159

Conduct will be treated as "symbolic speech" protected by the First Amendment if it is
(1) intended to convey a particularized message and
(2) the message was likely to be understood by those who viewed it.
However, symbolic speech may be restricted if the regulation
(1) furthers an important government interest which is
(2) unrelated to the suppression of speech, and
(3) the burden on speech is no greater than necessary. U.S. v O'Brien (1968).

Front 160

U.S. v Eichman (1990).

Back 160

Federal prohibition against burning the American flag held unconstitutional because the regulation was content specific since it was an attempt to preserve the flag as a symbol of national unity.

Front 161

Texas v Johnson (1989).

Back 161

American flag state desecration law not content-neutral, violated the First Amendment.

Front 162

U.S. v O'Brien (1968).

Back 162

Draft card burning regulation upheld because not aimed at symbolic content of message.

Front 163

Tinker v Des Moines District (1969).

Back 163

Law forbidding black armbands in school held invalid because related to symbolic content of conduct and communication.

Front 164

Content neutral, "time, place, and manner" regulation in public forum.

Back 164

Where government regulates time, place, and manner of content neutral speech in a (limited) public forum, it must prove that its regulation is:
(1) narrowly tailored to serve a significant interest; and
(2) leaves open alternative channels for communication.

Front 165

Traditional Public forum?

Back 165

Traditional public forums are those that are historically associated with expression, such as sidewalks, streets, and parks. Government may impose reasonable restrictions on the time, place, or manner of protected speech.

Front 166

Designated (limited) public forums?

Back 166

A designated (or limited) public forum is one that has not historically been used for speech-related activities, but which the government has opened for such use (civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use after hours). The government can change a designated forum to a nonpublic forum, but cannot do the same with a traditional forum.

Front 167

nonpublic forum?

Back 167

A nonpublic forum is essentially all public property that is not a traditional or designated public forum (e.g., government offices, schools, jails, and military bases, sidewalks on postal service property, and airport terminals).

Front 168

Content neutral, "time, place, and manner" reg in nonpublic forum.

Back 168

The government may regulate speech-related activities in nonpublic forums as long as the regulation is
(a) viewpoint-neutral and
(b) reasonably related to a legitimate government interest.

Front 169

Is this licensing statute valid?

Back 169

A licensing statute will be valid provided that it is:
(1) content neutral as applied, i.e., the message cannot be considered in granting or denying the permit, and
(2) does not give licensing officials "unfettered discretion" to determine who may receive a permit.
Where a statute is facially void, a speaker need not even apply for a permit. However, if it is valid on its face, then the applicant must seek a permit.

Front 170

Ex parte injunctions against 1st amendment activity.

Back 170

An ex parte injunction against 1st Amendment activity is generally invalid, except in an emergency.

Front 171

Can the government obtain a prior restraint against this publication?

Back 171

Generally, government cannot suppress or restrain speech in advance of its publication or utterance. Notable exceptions include: (1) national security; (2) obscenity; and (3) film censorship.

Front 172

Collateral Bar Rule.

Back 172

Generally, under the Collateral Bar Rule, if a person seeking to exercise their 1st Amendment rights is enjoined from doing so, he must appeal the injunction. Exceptions:
(1) Where court has no jurisdiction; or
(2) the injunction is "transparently invalid."

Front 173

Is this regulation overly broad?

Back 173

Under the Over-breadth doctrine, even when a state does have the power to regulate an area dealing with free speech, it must not do so "by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."

Front 174

1st A rights of third parties using the Over-breadth Doctrine?

Back 174

Under the Overbreadth Doctrine, if P can show that a statute would unconstitutionally restrict the expression of some other person not before court, court may hear the lawsuit.

Front 175

Regulation overly vague?

Back 175

Under "vagueness" doctrine, governmental regulations affecting free expression must be drawn "with narrow specificity."

Front 176

Is the speech unprotected?

Back 176

Government may regulate unprotected content subject to rational basis scrutiny. Unprotected content:
(1) clear and present danger;
(2) defamation;
(3) obscenity;
(4) child pornography;
(5) fighting words;
(6) fraudulent commercial speech.

Front 177

Does speech constitute "clear and present danger"?

Back 177

Under Brandenburg, the state may regulate speech where it "is
(1) directed to inciting or producing imminent lawless action and
(2) likely to incite or produce such action." Brandenburg v Ohio (1969).

Front 178

Fighting words.

Back 178

(1) Words must be more than annoying or offensive; must be a genuine likelihood of imminent violence by a hostile audience.
(2) "Fighting words" statutes designed only to punish certain viewpoints are unconstitutional; usually vague or overbroad.

Front 179

Captivity Doctrine.

Back 179

Captivity doctrine recognizes that certain audiences have an interest in not being forced to listen to the speaker's message. These audiences are said to be captive when subject to substantial interference with their privacy rights in an intolerable manner.

Front 180

Hostile Audience Reaction Doctrine.

Back 180

Under the hostile audience reaction doctrine, the state will curtail a speaker's speech in order to ensure order and avoid violence.

Front 181

Access to public forums.

Back 181

(1) Under the Minimal Access View, public forums are presumptively open to some kind of communication activities, even if they interfere with other uses.
(2) Under the Equal Access View, public forums may not open for speech activity, if required for another purpose, provided that there is no content-based discrimination.

Front 182

Does the state law violate constitutional limits on liability for defamation?

Back 182

In defamation cases:
(1) Public officials/figures must prove actual malice;
(2) private plaintiffs need to only show (a) negligence for matters of public concern; and (b) proof that defamatory statement was actually made for matters of private concern.
New York Times v Sullivan (1964). Gertz v Robert Welch, Inc. (1974). Dun & Bradstreet, Inc. v Greenmoss Builders, Inc. (1985).

Front 183

Is the speech obscene?

Back 183

Under the three-part test Miller v California (1975) test, obscene material must:
(1) Appeal to the prurient interest in sex applying contemporary community standards;
(2) Depict sexual conduct in a patently offensive way (determined by state law); and
(3) Lack (SLAPS) serious literary, artistic, political, or scientific value using a national reasonable person standard.

Front 184

Can child pornography be regulated?

Back 184

Child pornography may be regulated even without satisfying the Miller test because of the state's compelling interest in protecting minor children.

Front 185

Private possession of child porn.

Back 185

A state may criminalize even the private possession of child pornography in one's home. Osborne v Ohio (1990).

Front 186

Is this commercial speed protected under the First Amendment?

Back 186

Commercial speech is afforded middle-tier 1st Amendment protection, but can be prohibited as to (1) false or deceptive advertising or (2) illegal products.
Under the 3-part Central Hudson test, a regulation will not be unconstitutional if it:
(1) Serves a substantial government interest;
(2) Directly advances interest; and
(3) Is narrowly tailored to serve that interest.

Front 187

Can the government regulate this act of association?

Back 187

Freedom of association for expressive purposes is a fundamental right. NAACP v Alabama ex rel. Patterson (1948).

Front 188

Boy Scouts of America v Dale (2001).

Back 188

Boy Scouts of America sought to exclude homosexuals from participating in the organization because of the organization's view that homosexual conduct was inconsistent with the values it sought to instill in youth members: Such exclusion was constitutional under the organization's First Amendment right of expressive association.

Front 189

Can the individual be punished or deprived of public employment for political association?

Back 189

An individual may not be punished or deprived of public employment for political association unless:
(1) he is an active member of a subversive organization;
(2) such membership is with knowledge of the illegal aims of the organization; and
(3) he has a specific intent to further those illegal ends.

Front 190

Loyalty oaths.

Back 190

(1) Traditionally, the Court has invalidated statutes requiring loyalty oaths under the "vagueness" and "overbreadth" doctrines.
(2) Modernly, however, an oath that public employees will "support the Constitution of the United States" will usually be upheld.

Front 191

Can the government regulate the press?

Back 191

The press has no greater freedom to speak than any ordinary member of the general public: Regulation of the content of speech made by the print and broadcast media is subject to strict scrutiny.

Front 192

Right to attend trials.

Back 192

The 1st Amendment guarantees both the public and the press a right to attend criminal trials; however, the right is not absolute and may be outweighed where judge finds "overriding" interest that cannot be accommodated by less restrictive means.

Front 193

Broadcasting regulations.

Back 193

(1) Radio and TV broadcasting can be more closely regulated than the press, due to the limited number of airwaves available. A radio broadcast of patently offensive speech, even though not "obscene" under the Miller test, can be sanctioned to protect the privacy interests of children likely to be listening.
(2) Cable TV receives 1st Amendment protection somewhere between broadcast TV and newspapers.
(3) Fairness Doctrine: Radio and TV stations may be constitutionally required to offer free broadcasting time to certain individuals (opponents, persons who have been attacked in a broadcast, etc.)

Front 194

Internet regulation

Back 194

Regulation of the internet falls under strict scrutiny.

Front 195

Publication of illegally obtained information.

Back 195

Where a radio commentator played legally obtained tape on his show, but which had been illegally recorded by another, such a publication was protected under the First Amendment. Court reasoned that stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern. Bartnicki v Vopper (2001).

Front 196

Can state bar inquire into memberships of organizations by its applicants?

Back 196

A state can inquire into knowing membership in subversive organizations in screening its applicants for the bar. Thus, the 1st Amendment does not extend unlimited protection to a bar applicant who refuses to disclose political affiliations. Konigsberg v State Bar of California (1961).