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149 Cards in this Set

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Article 3 of the C defines federal judicial power using "cases & controversies" – how has SC interpreted that phrase?
SC has interpreted as giving limits on judicial power. Those limits = justiciability doctrines
Government Action -- The Entanglement Exception
The Constitution applies of the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
EXAMPLES:

--There IS state action when a court enforces racially restrictive covenants.

There IS state action when the government leases premises to a restaurant that racially discriminates.

There IS state action when a state provides books to schools that racially discriminate.

There IS NOT state action when a private school that is more than 99% funded by the government fires a teacher b/c of her speech.

There IS NOT state action when the NCAA orders the suspension of a basketball coach at a state university.

There IS NOT state action when a group gets a government subsidy.

There IS state action when a private entity regulates interscholastic sports within a state.

There IS NOT state action when a private club with a liquor license from the state racially discriminates.
What are the 4 Justiciability Requirements (required at all levels)?
(1) P must have standing;
(2) Case must be ripe for review;
(3) Case must not be moot AND
(4) It must NOT be a political Q
What is standing? What does it signify?
= whether P is proper P to bring a case to the Ct for adjudication
What are the 4 requirements for/features of STANDING?
(1) Injury
(2) Causation & redressability
(3) No 3rd P Standing
(4) No Generalized Grievances Allowed
What is the significance of the INJURY REQUIREMENT for STANDING? What does it entail both for a regular P & a P seeking injunctive or declaratory relief?
(1) Plaintiffs only may assert injuries that they personally have suffered.
(2) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm.

EXAM TIP: for who has "best standing" Qs → look at Answer choice where P has personally suffered an injury... if more than one, choose P who has suffered an economic loss
What does it mean to say there is no 3rd party standing?
A plaintiff cannot assert claims of others - of 3rd parties - who are not before the court.
What must P do to show she meets the CAUSATION & REDRESSABILITY requirement for STANDING?
The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to redress the injury (in other words, federal CTs do NOT give advisory opinions)
What does it mean that there are no generalized grievances allowed under standing?
P must not be suing solely as a "citizen" or as a "taxpayer" interested in having the Gov follow the law.
What must you remember when deciding if someone qualifies for a standing exception?
Qualifies ONLY IF P meets other standing requirements + exception present
What are the 3 EXCEPTIONS to the 3rd Party Standing prohibition?
i. 3rd party standing is allowed if there is a close relationship between the plaintiff and the injured 3rd party. (e.g. doctors on behalf of patients)

ii. 3rd party standing is allowed if injured 3rd party is unlikely to assert his or her own rights. (e.g. criminal ∆s have 3rd P standing to raise the RTs of perspective jurors to be free from discrimination)

iii. An org may sue for its members, IF
• the members would have standing to sue;
• the interests are germane to the org’s purpose;
• neither the claim nor relief requires participation of individual members
What 2 factors do you consider when deciding if something is ripe for review?
(1) The hardship that will be suffered w/o preenforcement review.

(2) The fitness of the issues and the record for judicial review.

--E.g. FDA & drug companies – no drug company had yet been prosecuted & FDA wanted to wait (either comply w/ rule & risk losing millions of $ or force drug companies to violate & go through the pains of prosecution – SC found it was ripe)
What is the 1 exception to the generalized grievances prohibition (STANDING)? How restrictive is it?
= taxpayers have standing to challenge government expenditures as violating the Establishment Clause.

BUT taxpayers lack standing to challenge Fed Gov grants of property to religious institutions... taxpayers only have standing to challenge $!!!!
What is the significance of the POLITICAL QUESTION restriction? What are the 4 areas it covers?
Political questions are non-justiciable. These are issues (i) constitutionally committed to another branch of government or (ii) inherently incapable of judicial resolution.

• Cases under “the republican form of Government” clause

• Challenges to President’s foreign policy

• Challenges to impeachment and removal process

• Challenges to partisan gerrymandering
What is the Q asked when deciding if there has been a violation of procedural DP?
Has the Gov deprived a person of life, liberty (a significant freedom secured by C or Statute), or property (an entitlement to a continued receipt of a benefit)?
What if the Gov negligently deprives a person of procedural DP?
• Gov negligence = not sufficient for a deprivation of DP (e.g. loss of body safety)
• Usually has to be an intentional or reckless Gov action
• However, in an emergency situation, can only be held liable if the conduct shocks the conscience
What are the 3 steps in the balancing test for PROCEDURAL DP?
i) Importance of the interest to the individual.

ii) Ability of additional procedures to increase the accuracy of the fact-finding.

iii) Gov interest in administrative efficiency.
What is RIPENESS?
= the Q of whether a federal CT may grant pre-enforcement review of a statute or regulation.

EXAM TIP: Whenever you see Con Law Q asking for request of declaratory judgment, look to see if ripeness issue.
What are the 7 examples you need to know for PROCEDURAL DP?
• welfare benefits (= notice & hearing)
• disability benefits (= post-termination hearing)
• Student disciplined by a public school (= notice of the charges & an opportunity to explain, NOT trial like hearing)
• Parental RTs (= notice & a hearing)
• Punitive damage awards (= instructions to jury & judicial review, grossly excessive violate DP)
• American citizen detained as an enemy combatant (=notice of charges & representation by attorney)
• Pre-judgment attachment or Gov’s seizure of assets (= notice & a hearing, unless exception)(no innocent owner defense)
What is the test for a deprivation of economic RTs?
RB Test
How do you distinguish PROCEDURAL from SUBSTANTIVE DP?
PDP = procedures Gov must follow, whereas SDP looks at whether there is a sufficient substantive justification for Gov actions
What is the effect of the MOOTNESS restriction?
If events after the filing of a lawsuit end the plaintiff's injury,
the case must be dismissed as moot.

P must present a LIVE CONTROVERSY at all stages of the proceeding.
What 2 areas is SUBSTANTIVE DP used in?
(1) To protect economic liberties
(2) To protect privacy
What are the 3 EXCEPTIONS to the MOOTNESS restriction?
(1)*** Wrongs capable of repetition but evading review (wrongs that evade review b/c too brief… must be a chance of happening to P again)(e.g. Roe)

(2) voluntary cessation = ∆ voluntary halts it but is free to resume it at anytime (e.g. employer & discrimination)

(3)class action suits - if the named P’s claim becomes moot, the action will not be dismissed as long as at least one class member's claim is still live.
What are the 3 Qs are asked for TAKINGS situations?
i. Is there a taking?

ii. is it for Gov/public use (must be or has to be given back)

iii. Is just compensation paid?
What level of scrutiny do fundamental RTs receive?
• Strict Scrutiny (necessary to protect a compelling Gov interest)
What are the 2 types of TAKINGS?
(1) Gov confiscation or physical occupation, NO MATTER HOW SMALL the property is = a taking (remember cable boxes e.g.)

(2) regulatory taking – Government regulation is a taking if it leaves no reasonable economically viable use of the property.
How do you distinguish SDP from EP?
• SDP - limits liberty of all persons to engage in some activity
• EP - law treats a person or class of persons differently
Can a property owner challenge a regulation as a TAKING if it was already in place when he bought the property? I.e. if he knew beforehand & still bought the property?
yes, he may bring a takings challenge to regulations that existed at the time the property was acquired (doesn’t matter that they were already in place & buyer was aware of them)
Besides the privacy categories, what other fundamental rights qualify for strict scrutiny?
• interstate travel
• Voting (besides residence, age, & citizenship, dilution & restrictions are invalid & subject to strict scrutiny)
• 1st Amendment RTs
Is it a TAKING if it only last for a limited period of time?
Temporarily denying an owner use of property is not a taking so long as the Gov's action is reasonable.
What is the REMEDY for a TAKINGS (2 options) & how is it measured?
i. Pay just compensation
ii. Terminate the regulation & pay damages

*** compensation measured by LOSS TO THE OWNER & NOT GAIN to the taker... = no compensation for worthless property!
PRIVACY is a FUNDAMENTAL RIGHT - what are the 9 privacy categories that are protected by SDP & the 1 he highlighted as not being protected?
(1) RT to marry
(2) RT to procreate
(3) RT to custody of one's children.
(4) RT to keep the family together (housing)
(5) RT to control the upbringing of one's children
(6) RT to purchase & use contraceptives
(7) RT to abortion (undue burden test)
(8) RT to engage in private consensual homosexual activity
(9) RT to refuse medical treatment

BUT NO RT to physician - assisted suicide
What are the 2 types of content-based restrictions on SPEECH & what levels of scrutiny for content vs. content-neutral statutes under 1st A?
• Content-based restrictions on speech generally = strict scrutiny.
i. subject matter restrictions
ii. viewpoint restrictions

• Content-neutral = intermediate scrutiny
Who bears the BURDEN OF PROOF for different levels of scrutiny?
Gov for Strict Scrutiny
Unclear for Intermediate Scrutiny (probably Gov)
Person challenging the law for RB Test
What level scrutiny for CT orders restricting SPEECH? What must a person do & not do if she wants to challenge the CT order?
• Court orders suppressing speech must meet strict scrutiny.
• Procedurally proper court orders must be complied with until they are vacated or overturned.
• A person who violates a court order is barred from later challenging it.
Can the Gov require a LICENSE for SPEECH?
• Yes - ONLY IF there is an important reason for licensing and clear criteria leaving ALMOST NO discretion to the licensing authority.

• Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses AND judicial review.
Under EP, what classifications are SUSPECT? What are quasi-suspect?
• Suspect = race, national origin, sometimes alienage
• Quasi-suspect = gener, legitimacy
When are laws regarding SPEECH invalid for VAGUENESS and/or for OVERBREADTH?
• Law = unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

NOTE: "Fighting Words" laws are ALWAYS unC vague & overbroad

• law = unconstitutionally overbroad if it regulates substantially more speech than C allows to be regulated.
When may Gov punish inciteful speech?
= may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
Can the Gov regulate conduct that is SYMBOLIC SPEECH?
= can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
Can the Gov punish you for possession of materials that meet the 3 part test for obscenity?
• Gov may not punish a person for having obscene material (= private possession) UNLESS it's child pornography (compelling Gov interest in drying up mkt for kiddie porn)
What happens if a business violates the obscenity laws?
Gov may seize the assets of businesses convicted of violating obscenity laws.
What are some examples of what is & is not PROTECTED SPEECH under the 1st A?
• Gov has interest in preventing A&B
• Flag-burning = C protected speech
• Anonymous Speech = protected
• Contribution Limits in election campaigns = C
• Draft-card burning NOT = protected speech
• Nude Dancing NOT = protected speech
• Burning a cross = PROTECTED UNLESS it’s done w/ intent to threaten
What about profanity & indecent speech? Protected?
Profane and indecent speech is generally protected by 1st Amendment.
How is the existence of a RACIAL classification proven?
a. The classification exists on the face of the law.

b. If law = facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent.
What if the Gov only found 7 obscene items in a store?
Gov could destroy the contents of the whole store
What 4 types of SPEECH is UNPROTECTED OR LESS PROTECTED by the 1st Amendment?
1. Incitement of illegal activity.
2. Obscenity and sexually-oriented speech.
3. Commercial speech
4. Defamation
Why can a Gov not prohibit profane speech? What about if it is sent over the internet?
• To censure words is to censure ideas & Gov cannot cleanse English language
• Gov cannot make it a crime to send indecent material over internet
What are the 2 Exceptions to the Gov's ability to regulate/limit profane or indecent speech?
i) over the broadcast media
ii) in schools
How should RACIAL classifications benefiting minorities be treated? What level of scrutiny is applied & in what 3 ways must we recognize it for the exam?
• Strict scrutiny is applied
i. Numerical set-asides require clear proof of past discrimination.
ii. Educational institutions may use race as one factor in admissions
iii. Seniority systems may not be disrupted for affirmative action.
What is the 3 part test for determining whether something qualifies as OBSCENE?
MUST meet ALL of these requirements:

(1) The material must appeal to the prurient interest
(= shameful or morbid interest in sex)

(2) Material must be patently offensive under the law prohibiting obscenity
(ANY law must delineate which depictions would qualify as patently offensive)

(3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value
(= value determined by a NATIONAL standard & NOT a local value)
Are advertisements protected by the 1st A?
Yes EXCEPT false & deceptive ads are not protected.
What if the advertisement is technically true but carries w/ it inherent risks of being misleading? 3 categories where this comes up - what are they & what is the result?
True commercial speech that inherently risks deception can be prohibited.

i. May prevent professionals from advertising or practicing under a trade name.

ii. May prohibit attorney, in-person solicitation of clients for profit (offer of free services & mailings are both OK)

iii. May NOT prohibit accountants from in-person solicitation of clients for profit.
In what 2 cases may the Gov use zoning ordinances to regulate the location of what some perceive as obscene activity/expression?
Gov may use zoning ordinances to regulate the location of adult bookstores and movie theaters.
What will & will not be allowed for GENDER classifications in the law? How is it shown?
• Shown in the same 2 ways as for racial classifications (on face or impact + intent)

a. Gender classifications benefiting women & based on role stereotypes = NOT allowed.

b. Gender classifications designed to remedy past discrimination & differences in opportunity = allowed.
How does the Supreme Court normally take cases?
Writ of Certiorari from highest state courts or US Cts of Appeal
What are the two ways that the Supreme Court gets cases to hear? Which courts do they get those cases from?
1. Writs of Certiorari (highest state courts and US Cts of Appeal)

2. Appeals (3-judge fed. district ct. panels)
How does the law treat child pornography? Can it meet the 3 part test? What if it is simulated child porn?
• Child pornography may be banned EVEN IF the material does not meet the test for obscenity

• unC to bar computer generated images or stuff that features child-like looking adults

• If no children used in the production, then cannot be DEEMED child pornography
What is the one type of case over which the US SC has original and exclusive jurisdication?
suits btw state governments
What is at issue in the ALIENAGE Classifications & what level of scrutiny?
= discrimination against non-citizens

• Strict Scrutiny
What is the final judgment rule?
SC may hear cases only after there has been a final judgment of the highest state court, US Ct of Appeals, or 3-judge fed. district court.
(E.g., no interlocutory review by the SC)
When can the US SC review a state court decision?
Whenever there is not an independent and adequate state law ground of decision.
What are some examples of invalid ALIENAGE classifications?
• Only US citizens could receive welfare benefits = unC
• Only US citizens could hold civil service jobs = unC
• Only US citizens could take bar & practice law = unC
What happens if a state court decision rests on 2 grounds -- one a state law and one a federal law - and it is appealed to the US SC?
if SC reversal of the federal law ground will not change the result in the case, the SC can’t hear the case.
What are 3 areas where LESS THAN strict scrutiny is applied to ALIENAGE classifications?
• RB test for alienage classifications that concern self-government & the democratic process.
• RB test is used for Cong discrimination against aliens.
• intermediate scrutiny discrimination against undocumented alien children.
What are 5 EP areas that only merit RB Test review
1. Age discrimination (often involves challenges to Gov retirement law & Gov always wins)

2. Disability discrimination (zoning ordinance that prevented home for mentally ill - Gov lost under RB)

3. Wealth discrimination (poverty NOT = suspect classification)

4. Economic regulations (e.g. pushcart vendors in New Orleans)

5. Sexual orientation discrimination
What level of scrutiny for COMMERCIAL SPEECH?
intermediate

= Gov regulation must be
narrowly tailored, but it does not need to be the least
restrictive alternative.
What is Abstention?
Federal courts may not enjoin pending state court proceedings, even if the federal court has jurisdiction over the case
What is the general rule for when Congress has authority to act?
There must be express or implied Congressional power in order for Congress to take any given action.

Congress can exercise those powers ENUMERATED in the Constitution plus all auxiliary powers NECESSARY AND PROPER to carry out all powers vested in the federal government.

NOTE: The necessary and proper clause standing alone cannot support federal law. It must work in conjunction with another federal power.
What is the key difference between a Writ of Cert. and an Appeal?
If case comes up on writ of certiorari, SC has complete discretion whether or not to hear the cases.

If a case comes up on an “Appeal” from a 3 judge fed ct panel, the SC is required to take the case. (The case SKIPS the US Cts of Appeals!)
What are the boundaries of congressional action under the Commerce Clause after Lopez? (3 rules)
1. Congress may regulate the CHANNELS of interstate commerce

2. Congress may regulate the INSTRUMENTALITIES of interstate commerce, and persons or things in interstate commerce; OR

3. Congress may regulate ECONOMIC ACTIVITIES that have a SUBSTANTIAL EFFECT on interstate commerce

In area of non-economic activity, a substantial effect cannot be based on cumulative impact – Morrison (VAWA)

Wickard v. Filburn – cumulative impact of economic activity, even if it’s for individual use, falls under the Commerce Clause
What is the primary constitutional LIMITATION on Congressional power?
10th Amendment = all powers not granted to the US, nor prohibited to the states, are RESERVED to the states or the people
Can Congress compel state action? Explain.
Under the 10th Amendment, Congress cannot compel state regulatory or legislative action.
What is SOVEREIGN IMMUNITY (re: lower federal and state courts)? What is the Constitutional basis for this rule?
Sovereign immunity bars suits against state governments in state courts OR federal courts

(Eg, federal and state courts may not hear suits against state governments)

11th Amendment bars suits against states in fed. court
- doesn’t matter if P is from that state or from a different state
- Doesn’t matter if it’s a suit for $ or an injunction
Can Congress prohibit any state government activity? Explain.
Congress may prohibit harmful commercial activity by state governments

Eg, Federal drivers privacy protection act. Congress not imposing affirmative DUTY on states, but instead PROHIBITING HARMFUL commercial activity.
What RESIDENCY requirements are valid (2) & which ones are invalid (3)?
Valid
• 30 days to vote in a state
• 1yr residency to get divorced

Invalid
• 1yr residency to receive full welfare benefits
• 1yr to receive state subsidized medical care
• 1yr to vote in a state
What are Congress' powers under section 5 of the 14th Amendment?
Congress may not create new rights or expand the scope of rights.

Congress may act only to prevent or remedy violations of rights recognized by courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations. (Eg, such laws have to be narrowly tailored to remedying proven constitutional violations)
What limitations are there on Congress' ability to delegate legislative power?
NONE.
What are the (3) EXCEPTIONS to the SOVEREIGN IMMUNITY rule? (E.g., States may be sued under what circumstances?)
i. Waiver – states can waive sovereign immunity and allow themselves to be sued (must be EXPLICIT waiver)

ii. Pursuant to fed. laws adopted under § 5 of 14th amendment (Example: Title 7 of employment discrimination act) Congress cannot authorize suits against states under other constitutional provisions.

iii. Federal government may sue state governments
Are legislative vetoes constitutional? Why or why not?
NO.

For Congress to act, there must be:

1. bicameralism (passage by both House and the Senate) AND
2. presentment (giving bill to President to sign or veto).

In a legislative veto, one or both of these is missing.
Is the line-item veto constitutional?
NO.

President must sign or veto a bill in its entirety
Can Congress delegate executive power to itself or its officers?
NO. Congress can’t give itself powers that we traditionally view as executive in nature

Power to enforce the law, eg
What is the status of treaties re:

1. conflicting state laws?

2. Conflicting federal statutes?

3. The Constitution?
1. Treaties prevail over conflicting state laws

2. If a treaty conflicts with a fed. statute, the one adopted LAST in time controls (often tested!)

3. If a treaty conflicts with the US Constitution, it is invalid.
Can state officers be sued? In what situation may a state officer NOT be sued?
State officers CAN be sued. State officers can also be sued for $ damages to be paid out of their own pockets

State officers may NOT be sued if it is the state treasury that will be paying retroactive damages
What is an executive agreement?
agreement btw the US and a foreign county that is effective when signed by the President and head of the foreign nation
What is the status of executive agreements re:

1. conflicting state laws?

2. Conflicting federal statutes?

3. The Constitution?
Executive agreements prevail over conflicting state laws, but NEVER over conflicting federal laws or the Constitution
What is the extent of the FEDERAL POLICE POWER?
No general police power.

Congress IS acting under police power if it is legislating for:
1. the MILITARY,
2. INDIAN RESERVATIONS,
3. FEDERAL LANDS and TERRITORIES, or
4. the DISTRICT of COLUMBIA

Exam tip: “MILD” – congress doesn’t have a strong police power – just a MILD one.
Does the Senate have to ratify executive agreements? Treaties?
If it’s a TREATY, Senate has to ratify

If it's an executive agreement, Senate does NOT have to ratify
What is the Appointment Power?
1. President appoints ambassadors, federal judges, and officers of the US

2. Congress may vest the appointment of inferior officers in the President, the heads of departments, or the lower federal courts

3. Congress may not give itself or its officers the appointment power
What is the Removal Power?
1. UNLESS removal is limited by statute, President may fire any executive branch officer

2. For congress to limit the executive's removal power, it must be an office where independence from the President is desirable (eg, special prosecutor/investigator)

3. Congress cannot prohibit all removal; but it can limit removal to where there is good cause.
Who can be impeached? Under what circumstances (for what reasons)?
President, VP, federal judges, & officers of the US can be impeached and removed from office for treason, bribery, or high crimes and misdemeanors.
Does impeachment remove a person from office?
No - separate conviction vote of Senate required for removal.
What kind of vote is required to impeach? To remove from office?
Impeachment by House of Reps requires a majority vote

Conviction in Senate (required for removal) requires a 2/3 vote
Can the President be charged with a civil offense while in office? Limitations?
President has absolute immunity to CIVIL suits for money damages for any actions while in office

But NO immunity for actions that occurred prior to taking office
What does Executive Privilege cover? Limitations?
President has executive privilege for presidential papers and conversations, but the privilege must yield to other important government interests (eg, to overriding needs for the information)

Eg, need for evidence in criminal trial outweighs privilege (Watergate)
What is the Predidential power to pardon, and what it its extent/limitations?
President has power to pardon ANYONE accused of/convicted of fed. crimes, with one Constitutional exception: if the person has been impeached, there can never be pardon for activities that led to the impeachment.

Prez may pardon ONLY for FEDERAL crimes, not state crimes

Prez can pardon ONLY for CRIMINAL crimes, not civil conviction
Can Congress induce state regulatory action? Explain.
Yes. Congress can induce state government action by putting strings on grants, so long as:

1. conditions are expressly stated and

2. those conditions relate to the purpose of the spending program

Exam tip: inducement is OK, but compelling is not.
What are the primary limits on state & local government power b/c of the existence of the national government (federalism)?
1. Preemption (Supremacy Clause)

2. States may not tax or regulate federal government activity.

3. Dormant Commerce Clause

4. Privileges & Immunities Clause of Article IV

5. (Privileges or Immunities Clause of 14th amendment - very limited application)
What is implied pre-emption? How does it operate?
if a fed. statute is silent about preemption, implied preemption can be found

1. if fed. & state law are mutually exclusive, federal law preempts state law.

2. States may set environmental standards stricter than federal law, UNLESS congress clearly prohibits it.

3. If state or local law impedes achievement of a federal objective, federal law preempts state law

4. If Congress evidences a clear intent to preempt state law, then fed. law preempts state law (Eg: federal immigration law. Any attempt by states to regulate immigration will be deemed preempted.)
Is it constitutional to pay a state tax out of the federal treasury?
NO.
Does the federal government have to comply w/ state & local pollution laws? Wat is this principle called?
NO.

sometimes called “intergovernmental immunity”
What is the Privileges & Immunities clause of Article IV?
No state may deprive citizens of other states of the Privileges & Immunities that it affords its own citizens.

An anti-discrimination provision - limits ability of a state to discriminate against out-of-staters.

Only FUNDAMENTAL RIGHTS (those involving important commercial activities, like the pursuit of livelihood) and CIVIL LIBERTIES are protected.
What does the Privileges or Immunities clause of 14th amendment protect?
Right to travel.
If a law does not discriminate against out of staters, is the P&I clause involved? Dormant commerce clause?
If the law doesn’t discriminate against out-of-staters, the P&I clause of Article IV does NOT apply!

But if the law burdens interstate commerce, it DOES violate the dormant commerce clause IF its burdens exceed its benefits (Balancing test of burdens and benefits)
When does a state law violate the DORMANT COMMERCE CLAUSE? Exceptions?
If a law burdens interstate commerce, it violates dormant commerce clause UNLESS that law is necessary to achieve an important government purpose.

Helping in-staters at out-of-staters expense is NEVER an important government purpose

State has to show the law is necessary: has to show there is no less discriminatory way to achieve the objective.

EXCEPTION 1: Congressional approval

EXCEPTION 2: the market participant exception. (A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing w/ government-owned businesses)
When does a state law that discriminates against out-of-staters violate the P&I clause of Article IV?
If the law discriminates against out-of-staters w/ regard to their civil liberties or ability to earn their livelihood, it violates the P & I clause of Article IV UNLESS it is necessary to achieve an important gov’t purpose.

State must show its law is NECESSARY to achieve purpose - eg, must show that NO less discriminatory alternative could achieve the purpose

NB: Civil liberties are rarely litigated under the P&I clause. Usually P&I clause is involved when state/local government discriminates against out of staters in their ability to earn a living (hobbies, like hunting, don't count)
Does the P&I clause of Article IV apply to corporations? To aliens?
NO. Applies to individuals only.
Does the dormant commerce clause apply to corporations?
YES.
What are the 3 main rules about State Taxation of Interstate Commerce that we need to know?
1. States may not use their tax systems to help in-state businesses

2. A state may only tax activities if there is a substantial nexus to the state

3. State taxation of interstate businesses must be fairly apportioned.
What is the full faith and credit clause? When does it apply?
Courts in one state (state or federal) must give full faith and credit to judgments of courts in another state, so long as:

1. The court that rendered the judgment had jurisdiction over the parties and the subject matter,

2. The judgment was on the merits, and

3. The judgment was final
Does the Constitution apply to private action?
No - only to government/state aciton.
Can Congress by statute apply constitutional norms to private conduct? If yes, how?
Yes.

1. 13th Amendment can be used to prohibit private race discrimination (Only slavery violates the 13th amendment ITSELF; race discrimination NEVER violates the 13th amendment itself. It CAN violate fed. statutes adopted by Congress under 13th Amdmt.)

2. Commerce power can be used to apply Constitutional norms to private conduct (Civil Rights Act- hotels & restaurants can’t racially discriminate - law passed under the Commerce Power.)

3. Congress CANNOT use § 5 of 14th amendment to regulate private behavior (Under § 5, Congress can ONLY regulate state & local governments)
What is the SUPREMACY CLAUSE?
Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

(eg, Federal law WINS every time)
What are the 2 situations in which private conduct MUST comply with the constitution?
1. Public function exception = Constitution applies if a private entity is performing a task traditionally, exclusively done by the government

2. Entanglement exception – Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
What is EXPRESS PREEMPTION?
if a federal statute expressly says federal law is exclusive in a field, then state and local laws are deemed pre-empted.

Anytime Congress has authority to act, it can declare that federal law is exclusive in the area.
What is the NECESSARY AND PROPER CLAUSE?
Congress can adopt all powers “necessary and proper” to carry out its authority.

Congress may choose any means not prohibited by Constitution to carry out its authority.
What is the DORMANT COMMERCE CLAUSE? Where does it come from?
State & local laws are unconstitutional if they place an undue burden on interstate commerce.

Inferred from the grant of power to congress to regulate commerce among the states.

Aka the “negative implications of the commerce clause”
What is the TAXING AND SPENDING POWER of Congress?
Congress may tax and spend for the general welfare.
E.g., can adopt any tax to raise revenue, and any spending method to spend it as long as Congress thinks it will aid the general welfare.

Exam tip: this is the ONLY area in which Congress can act for the “general welfare”
What Bill of Rights rights have not been incorproated through the 14th amendment?
2nd A. right to bear arms

3rd A. right to not have a soldier quartered in your home

5th A. right to grand jury indictment in criminal cases

7th A. right to a jury trial in civil cases

8th A. right against excessive fines
What are the 3 levels of Constitutional scrutiny?
Rational Basis

Intermediate Scrutiny

Strict Scrutiny
What is the rational basis test? What is the B of P?
The law will be upheld if it is rationally related to a legitimate government purpose.

- Goal simply has to be permissible. The ACTUAL purpose doesn’t have to be permissible – as long as there is a CONCEIVABLE legitimate purpose, that’s enough
- VERY deferential to government – government usually wins

Challenger has B of P – must show no conceivable legitimate purpose, or that the law is not rationally related to that conceivable legitimate purpose
What is the intermediate scrutiny test? What is the B of P?
A law will be upheld if it is substantially related to an important government purpose

- court looks only to government’s ACTUAL purpose. A conceivable purpose isn’t enough.
- Means chosen must be substantially related to achieving the objective – a NARROWLY TAILORED way of achieving the goal. Least restrictive alternative analysis is NOT used.

Government has the B of P
What is the strict scrutiny test? What is the B of P?
A law will be upheld if it is necessary to achieve a compelling government purpose
- has to be more than just legitimate or important. Government objective has to be vital.
- Government ACTUAL purpose is all that the court looks at.
- Means chosen must be NECESSARY to achieve the objective (least restrictive alternative analysis - government must show that no less restrictive alternative can achieve the objective)
- government usually loses

Government has the B of P
RATIONAL BASIS TEST
RATIONALLY RELATED to a LEGITIMATE government interest.

(actual purpose need not be legitimate; must only be conceivable).

Gov. usually wins. The law us usually valid unless it is ARBITRARY or IRRATIONAL.

Challenger has the burden of proof.
INTERMEDIATE SCRUTINY
SUBSTANTIALLY related to an IMPORTANT government interest.

--Court looks to government's ACTUAL purpose.
--Burden is on the government.
STRICT SCRUTINY
Must be NECESSARY to achieve a COMPELLING government purpose.

You must find that NO less restrictive alternative could be used to achieve the government purpose.

--Court looks to government's ACTUAL purpose.
--Burden is on the government.
FREEDOM OF ASSOCIATION
Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person:

(i) actively affiliated with the group;

(ii) knowing of its illegal activities; and

(iii) with the specific intent of furthering those illegal activities.
FREEDOM OF ASSOCIATION: Disclosure of group members
Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny.
FREEDOM OF ASSOCIATION: Discrimination
Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity.
The ESTABLISHMENT CLAUSE: The "LEMON Test"
The Establishment Clause prohibits laws respecting the establishment of religion. If government action includes a preference for one religious sect over antother, it is INVALID unless it meets STRICT SCRUTINY.

If government action does NOT involve sect preference, it is VALID under the Establishment Clause if: (SEX)

1) There must be a SECULAR purpose for the law;

2) The EFFECT must be neither to advance nor inhibit religion; and

3) There must not be EXCESSIVE entanglement with religion.
The ESTABLISHMENT CLAUSE: Religious Speech and Activity
The gov't cannot discriminate against religious speech or among religions unless strict scrutiny is met.

Gov't sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups.

The gov't may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents vouchers which they use in parochial schools.
11TH AM Limits on Federal Courts
The 11th Am prohibits FEDERAL COURTS from hearing a private party's or foreign government's claims against a state government.

The doctrine of sovereign immunity bars suits against a state government in state court, even on federal claims, unless the defendant state consents.
Power of the States to TAX Interstate Commerce: Privilege, License, Franchise, or Occupational TAXES
These "doing business taxes" are generally permitted. The following basic requirements must be met:

(i) the activity taxed must have a SUBSTANTIAL NEXUS to the taxing state;

(ii) the tax must be FAIRLY APPORTIONED;

(iii) the tax must NOT DISCRIMINATE against interstate commerce; and

(iv) the tax must FAIRLY RELATE TO SERVICES PROVIDED by the state.
Scope of Congressional Power under the 14th Amendment
Section 5 of the 14th Am gives Congress the power to adopt APPROPRIATE LEGISLATION to enforce the rights and guarantees provided by the 14th Am. Under Section 5, Congress MAY NOT expand existing constitutional rights or create new ones--it may only enact laws to prevent or remedy violations of rights already recognized by the courts.
Retroactive Legislation: What is the Contract Clause?
The Contract Clause prohibits STATES from enacting any law that RETROACTIVELY impairs K rights. It does not affect Ks not yet entered into.
What are the Constitutional Sources of Substantive Due Process?
The DPC of the 5th Am applies to the federal government.

The DPC of the 14th Am applies to the state and local governments.

The same tests are applied under each clause.
EPC: Proving a Discriminatory Classification
For strict or intermediate scrutiny to be applied, there must be INTENT on the part of the government to discriminate. Intent may be shown by:

(i) A law that is DISCRIMINATORY ON ITS FACE;

(ii) A DISCRIMINATORY APPLICATION of a facially neutral law; or

(iii) A DISCRIMINATORY MOTIVE behind the law.

NOTE: The third is the most difficult to prove. A discriminatory EFFECT alone is not enough. The legislature's discriminatory motive must be shown (e.g., by evidence of a history of discrimination).
Abortion: State Interest
The right of privacy includes the right of a woman to have an abortion without interference from the state under certain circumstances. However, normal strict scrutiny analysis cannot be applied because the state has two compelling interests here that often compete: protecting the woman's health and protecting the fetus that may become a child.

The Court has adopted two basic rules: a pre-viability rule and a post-viability rule.
Abortion: Pre-Viability Rule
NO UNDUE BURDENS

Before viability (a realistic possibility that the fetus could survive outside the womb), a state may adopt a regulatoin protecting the mother's health and the life of the fetus if the regulation does not place an "undue burden" on or substantial obstacle to the woman's right to obtain an abortion.
Abortion: Post-Viability Rule
May prohibit abortion UNLESS WOMAN'S HEALTH THREATENED.

Once the fetus is viable, the state's interest in the fetus's life can override the woman's right to obtain an abortion, but the state cannot prohibit the woman from obtaining an abortion if it is necessary to protect the woman's health or safety.
Restrictions on Speech in Limited Public Forums and Non-Public Forums
Speech and assembly can be more broadly regulated in limited public forums (e.g., military bases and schools when classes are in session) and nonpublic forums. The Gov't can regulate speech in such a forum to reserve the forum for its intended use. Regulations are valid if they are:

(i) VIEWPOINT NEUTRAL; and

(ii) REASONABLY RELATED TO A LEGITIMATE government purpose (rational basis).
Speech: Validity for Prior Restraints
To be valid, a system for prior restraint must provide the following procedural safeguards:

(i) The standards must be NARROWLY DRAWN, REASONABLE, AND DEFINITE;

(ii) Injunction must PROMPTLY be sought; and

(iii) There must be PROMPT AND FINAL DETERMINATION of the validity of the restraint.

Prior restraints are very rarely allowed. The government has the heavy burden of justifying the prior restraint by showing that some SPECIAL SOCIAL HARM will otherwise result.
Justiciable Case or Controversy
"RAMPSE"

a. Standing (always raise 1st in ALL con law essays if it is an issue raised by the facts)
i. Standing
ii. Third Party Standing
iii. Taxpayer Standing
iv. Organizational Standing (always mini-irac)

b. Ripeness

c. Mootness

d. Eleventh Amendment

e. Abstention

f. Political Question
Congress: Taxing Power
Congress has the power to tax, and most taxes will be upheld if they bear some REASONABLE RELATIONSHIP TO REVENUE PRODUCTION or if Congress has the POWER TO REGULATE the activity taxed.

However, neither Congress nor the states may tax exports to foreign countries.
Congress: Spending Power
Congress may spend to "provide for the common defense and general welfare." Spending may be fore ANY PUBLIC PURPOSE.
Right to Vote
The right to vote is a fundamental right. Thus, restrictions on that right, other than on the basis of residence, age, and citizenship, are INVALID unless they meet strict scrutiny.

--Reasonable residency requirements valid
--property ownership requirement = not valid
--poll taxes are unconstitutional
--But, states may require primary elections (but can't prohibit certain people from running in a particular political party).
Speech: Giving Officials Unfettered Discretion
A regulation cannot give officials broad discretion over speech issues; there must be DEFINED STANDARDS for applying the law.

If a statute gives licensing officials UNBRIDLED DISCRETION, it is VOID ON ITS FACE and speakers need not even apply for a permit.

BUT, if the licensing statute includes standards, a speaker may not ignore the statute; he must seek a permit and if it is denied, he can challenge the denial on 1st Am grounds.
1st Am: Freedom of Religion
The 1st Am prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the 14th Am.