Constitutional Law

Front 1

4 justiciability doctrines

Back 1

1. Standing
2. Ripeness
3. Mootness
4. Political question doctrine

Front 2

Standing

Back 2

The issue of whether P is the proper party to bring a matter to the court for adjudication.

Elements:
1. Injury
a. P can only assert injuries that they personally have suffered
b. P seeking injunctive or declaratory relief must show a likelihood of future harm
2. Causation; and
(Has to show D caused injury)
3. Redressability
(Has to show that a favorable decision would likely remedy the injury)
4. No Third Party standing

Front 3

Exceptions to third party standing

Back 3

1. Close relationship b/w P and injured party (e.g. doctor asserting patient's right get an abortion)
2. Injured third party unlikely to be able to assert his/her own rights (e.g. association seeking to invalidate a law requiring them to disclose their membership lists, b/c members would have to divulge their identities to assert their own rights)
3. An organization can sue for its members when
a. The member would have standing,
b. The interests are germane to the organization's purpose; AND
c. Neither the claim nor relief requires participation of individual members

Front 4

"Best standing" questions

Back 4

Look for choices where P has suffered a personal injury

If more than one P has suffered a personal injury, look for the one that has also suffered an economic injury

Front 5

Common standing issues:

Back 5

1. P suing to enforce a gov't statute
-P may have standing if she is w/in the "zone of interests" Cong. intended to protect

2. P suing as a citizen to claim gov't has violated const. or federal law
-Too general, P has to assert a particular injury

3. P suing as a taxpayer
-P can sue to litigate her tax bill, but cannot sue to challenge gov't expenditures. EXCEPT: P can sue to challenge Cong's spending on Estab. cl. grounds.
NOTE: if it involves Cong giving away surplus property or Exec. spending, no exception (it has to be Cong's spending)

Front 6

Ripeness

Back 6

The issue of whether a fed ct may grant pre-enforcement review of a stat. or regulation.

Factors:
a. Hardship P will suffer w/o pre-enforcement review
b. The fitness of the issues and the record for judicial review

Front 7

Mootness

Back 7

If events after filing of the lawsuit end P's injury, the case must be dismissed as moot

EXCEPTIONS:
1. Wrong capable of repetition but evading review (Roe v. Wade, P's pregnancy ends, but others may be subject to the unconst. law)
2. Voluntary cessation by D who could start up again
3. Class action lawsuits (if named P's claim becomes moot, but other Ps' still have claims, class action can continue)

Front 8

Political Question doctrine

Back 8

Some const. questions the court will not adjudicate. 4 types of political question doctrine cases:
1. "Republican form of gov't cl."
2. Challenges to the President's conduct of foreign pol'y
3. Challenges to impeachment and removal process
4. Challenges to partisan gerrymandering

Front 9

How cases come to the SCt

Back 9

1. Orig jurisdiction (state is a party, cases affecting ambassadors or consuls)
2. Appellate jurisdiction
a. Writ of certiorari (virtually all SCt's cases)
i. Cases from state courts involving constitutionality or a state law in conflict w/federal law
ii. All cases from fed cts of appeal
b. Direct Appeals (rare, cases from three judge federal dist ct panels)

Front 10

Final Judgment rule

Back 10

Generally, SCt can only hear cases after there has been a final judgment of a highest state court, a fed ct of appeals or a three-judge panel of a fed dist. ct.

Front 11

Adequate and Independent state law grounds

Back 11

SCt will not review a case if there is an adequate and independent state law ground of decision.
i.e. If a state court decision rests on two grounds, one state law and one federal law, if the SCt's reversal of the federal law ground will not change the result, the Court will not hear the case.

Front 12

Lower federal court review

Back 12

Rules:
They may not hear suits against state gov'ts b/c of the principle of sovereign immunity
1. 11th Amend. bars fed cts from hearing cases against states
2. Sovereign immunity bars suits against states in state courts or federal agencies

Front 13

Exceptions allowing states to be sued

Back 13

1. States may waive sovereign immunity but state must expressly waive.
2. States may be sued pursuant to federal laws adopted under section 5 of the 14th Amend. (Cong can adopt laws to enforce the 14th Amend. e.g. Title VII of the Civil Rights act authorizes suits against state gov't's as well)
3. The fed gov't may sue state gov't's
4. Bankruptcy proceedings against states

Front 14

Suits against state officials in fed ct

Back 14

Suits against state off'ls are allowed notwithstanding the principle of sovereign immunity

- state officers can be sued for injunctive relief
- state officers can be sued for $ damages to be paid out of their own pockets
- state officers cannot be sued if the state treasury will be paying the retroactive damages (but it's ok if the state chooses to indemnify its state officers)

Front 15

Abstention rules

Back 15

1. Unsettled state law - fed cts will temporarily abstain from resolving a claim if it rests on an unsettled question of state law
2. Pending state proceedings - fed cts may not enjoin a pending state court proceeding

Front 16

Congress' authority to act

Back 16

There must be an express or implied power

1. Nec. & Prop. Cl.
2. Taxing/Spending Power
3. Commerce Power

4. There is no general police power EXCEPT: on military bases, Indian reservations, federal Lands, and D.C. territories (MILD)

Front 17

Congress's taxing/spending power

Back 17

Congress may tax and spend for the general welfare. Cong. can spend for any public purpose.
*NOTE: But neither states nor Cong. can tax exports to foreign countries.

Front 18

Commerce power

Back 18

Congress may regulate:
1. The channels of IC (highways, waterways, internet)
2. The instrumentalities of IC (things that help IC, e.g. cars, planes, trucks, internet, telephones) and persons or things in IC (people & animals moving b/w states, goods in IC, even electricity & radio waves b/c they cross state lines).
3. Economic activities that have a substantial effect on IC (but if it's a non-economic activity, the substantial effect cannot be based on aggregate impact)

Front 19

10th Amend.

Back 19

All powers not granted to fed gov't nor prohib to states are reserved to the states

1. Cong cannot compel state regulatory or legis action (but can induce it by putting strings on grants, as long as the conditions are expressly stated and relate to the purpose of the spending program)

2. Cong may prohibit harmful comm'l activity by state gov'ts.

Front 20

Cong's power under section 5 of the 14th Amend.

Back 20

Cong may not create new rights, it may only prevent or remedy violations of rights recognized by the courts and such laws must be "proportionate" and "congruent" to remedying the constitutional violations

(???)

Front 21

Cong's power to delegate

Back 21

-No limit on Cong's power to delegate legislative power
-Cong. may not delegate exec. power to itself or its officers.
-For Cong to act, there must always be bicameralism (passage by both house and senate) and presentment (given to Pres to sign or veto).
-Legislative vetos (Cong attempts to overturn exec. action w/o bicam or presentment) are unconst.
-Line-item vetos (Pres attempts to veto only parts of a bill) are also unconstitutional.

Front 22

Federal Executive Power, External Affairs

Back 22

1. Treaty power & Executive agreements
2. Foreign relations - reps country in foreign relations
3. War - Pres. can't declare war, but has broad power as Commander-in-chief to use troops in foreign countries

Front 23

Treaties

Back 23

Agreements b/w U.S. and a foreign country that are negotiated by the Pres. They are effective when ratified by the Senate.

Front 24

Federal Executive Power, Domestic Powers

Back 24

1. Appointment/Removal of Exec. Officers
2. Pardon power
3. Veto power
4. Exec. orders (to direct subordinate officers, Youngstown rule)

Front 25

Fed. Exec. Power, Appointment/Removal

Back 25

Pres. appoints ambassadors, public ministers and consuls, SCt judges and all other officers. But Cong. can vest power to appt inferior officers (officers who can be fired w/o cause) in courts or heads of dep'ts, but cannot itself apppoint inferior officers.

Pres can remove high level, purely exec. officers (like cabinet members) at will, but Cong can provide statutory limits (like good cause) on Pres. power to remove other appointees. Unless removal is limited by statute, Pres. can fire any exec. branch officer.

For Cong. to limit removal power, it must be:
1. An office where independence from Pres. is desirable, and
2. Cong can only limit removal, not prohibit it entirely

*NOTE: Cong can only remove exec. officers through the impeachment process.

Front 26

Fed. Exec. Power, Pardon power

Back 26

Pres. may grant pardons for all federal offenses, but not for impeachment or civil contempt. Cong. cannot limit the pardon power.

Front 27

Fed. Exec Powers, Veto power

Back 27

Pres. has 10 days to exercise veto power. If he fails to act while Cong is not in session, it's auto-vetoed. If Cong is in session, bill becomes law.
[Cong. can overcome veto by 2/3 vote in both houses)

Front 28

Fed. Exec. Power, Power to direct subordinate officers

Back 28

Youngstown rule
1. If Pres acts w/express or implied auth of Cong, --> likely valid
2. If Pres. acts where Cong. is silent, upheld unless it usurps another branch's power
3. If Pres. acts against the express will of Cong., he has little authority and likely his action is invalid.

Front 29

Fed. Exec Powers, Treaty Power

Back 29

Pres. can enter into treaties w/the consent of 2/3 of the Senate

Front 30

Treaties vs. other domestic law, hierarchy rules

Back 30

1. Treaties prevail over conflicting state laws.
2. If a treaty conflicts w/a federal law, the last-in-time prevails.
3. If a treaty conflicts w/the Const., it is invalid.

Front 31

Fed. Exec. Power, Executive Agreements

Back 31

Exec. agreement is an agreement b/w the U.S. and a foreign country that is effective when signed by the Pres. and the head of a foreign nation (no need for Senate ratification)

They can be used for any purpose.

They prevail over conflicting state laws, but never over conflicting federal laws or the const.

Front 32

Fed. Exec. power, Commander-in-Chief

Back 32

Pres has broad powers as C-i-C to use troops in foreign countries.

SCt has never invalidated Pres's use of troops.

*NOTE: For exam, BEST answer - For SCt, case should dismiss case b/c it's a political question, but if that's unavailable, the next best answer: Pres. wins b/c Pres has broad powers as C-i-C

Front 33

Impeachment and Removal

Back 33

Pres, VP, federal judges and officers of U.S. can be impeached and removed for treason, bribery or for high crimes and misdemeanors.

Impeachment does not remove a person from office. A majority of house votes to impeach. 2/3 of Senate must vote to convict and remove.

Front 34

Fed. Exec Power, Absolute immunity

Back 34

Pres. has absolute immunity to civil suits for money damages for any actions while in office. However, Pres. doesn't have immunity for actions prior to taking office.

Front 35

Fed. Exec. Power, Exec. privilege

Back 35

Pres. has exec. privilege for presidential papers and conversations, but such privilege yields to other important gov't interests.

U.S. v. Nixon - Need for evid. in criminal trial outweighed Exec. privilege

Front 36

Fed. Exec. Power, Pardon power

Back 36

Pres. can pardon those accused or convicted of federal crimes
EXCEPT a person who has been impeached

Pres. cannot pardon for state law crimes, and can only pardon for criminal law, never civil.

Front 37

Pre-emption

Back 37

Supremacy Cl. of Art. IV provides that the Const. and laws and treaties made pursuant are the supreme law of the land

1. Express preemption - if fed. stat. explicitly says fed. law is exclusive in a field, --> state and local laws expressly preempted

2. Implied preemption -
a. if fed and state laws cannot both be complied w/, fed law preempts state law
b. if state law impedes the achievement of a federal objective, fed law preempts state law
c. if Cong. evidences a clear intent to preempt state law (e.g. immigration law), fed law preempts state law

Front 38

Inter-governmental Immunity

Back 38

States cannot tax or regulate fed gov't activity.

E.g. a state cannot tax a P/X, b/c tax would be owed by fed treasury, BUT a state can tax a private store on federal land.

e.g.2. States cannot apply their environmental laws to fed gov't activity

Front 39

Dormant Commerce Cl.

Back 39

State and local laws are unconstitutional if they place an undue burden on IC

Front 40

Privileges and Immunities cl. of Art. IV

Back 40

No state may deprive citizens of other states of privileges and immunities it accords its own citizens (applies only when the law discriminates against out-of-staters)

Front 41

Privileges and Immunities Cl. of the 14th Amend.

Back 41

Always the wrong answer unless question involves right to travel

Front 42

Dormant Comm. Cl. & Priv. & Immun. Cl. analysis if law does NOT discriminate

Back 42

1. Privileges & Immunities cl. of Art. IV does not apply
2. If the law burdens IC, it viol. the dormant comm. cl if its burdens exceed its benefits

Front 43

Dormant Comm. Cl. analysis if law discriminates against out-of-staters

Back 43

1. If the law burdens IC, it violates the dormant comm. cl. unless it is necessary to achieve an important purpose

important - NOT econ. protectionism; but protecting natural resources is ok
necessary - no less discriminatory alternative can achieve the purpose

Side 3: 2 exceptions

Hint 43

1. Cong approval --> no dormant comm. cl. issue
2. The market participant exception - a state or local gov't can prefer its own cits in receiving benefits from gov't programs or in dealing w/gov't-owned business
e.g. state univ. can charge more from out-of-state students, b/c it's a gov't program
e.g.2. state-owned factory can charge more from out-of-state purchasers w/o viol. dorm. comm. cl.

Front 44

Privileges and Immunities cl. of Art. IV analysis if the law discriminates against out-of-staters

Back 44

If the law discriminates against out-of-staters w/regard to their ability to earn a livelihood, it violates the priv. & immunities cl. of Art. IV. unless it is necessary to achieve an important gov't purpose

1. The law must discrim against OOS'ers
2. The discrimination must be w/regard to civil liberties or important econ. activities (earning a livelihood)
3. Corporations and aliens cannot use the privileges and immunities cl. ("citizen" in priv & immun cl. = indiv. who is a U.S. citizen)
4. The discrimination must be necessary to achieve an important gov't purpose (no less discriminatory means can achieve gov't's objective)

Front 45

State taxation of interstate commerce, 3 rules

Back 45

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 (transaction state is taxing has a significant connection to the state)
3. State taxation of interstate business must be fairly apportioned

Front 46

Full faith and credit

Back 46

State or federal courts in one state must give FF&C to judgments of courts in another state, so long as:
1. The court that rendered the judgment had personal & subject-matter jurisdiction
2. The judgment was on the merits; and
3. The judgment is final

Front 47

Cong's power to apply constitutional rules to private behavior

Back 47

1. Cong can use 13th Amend. to make statutes to prohibit private race discrimination
2. Comm. power can be used to apply constitutional norms to private conduct (e.g. Civil rights act prohibits hotels & restaurants from racial discrim.)
3. Cong. CANNOT use the 14th Amend. to regulate private behavior

Front 48

Exceptions when private conduct must comply w/the Const.

Back 48

1. The public function exception - const. applies if a private entity is performing a task traditionally, exclusively done by gov't (e.g. running a town, using a private entity like political parties to run their own primary elections)

2. The entanglement exception - Const. applies if the gov't affirmatively authorizes, encourages or facilitates unconst. activity.
E.g. court cannot enforce racially restrictive covenants
e.g.2. there is a state action when the gov't leases premises to a restaurant that racially discriminates
e.g.3. there is a state action when a state provides books to schools that racially discriminate
e.g.4. there is no state action when a private school that is over 99% funded by the gov't fires a teacher b/c of her speech (gov't subsidy is insufficient for finding state action)
e.g.5 There is no state action when the NCAA orders the suspension of a basketball coach at a state university
e.g.6. There is a state action when a private entity regulates interscholastic sports w/in a state
e.g.7. There is not a state action when a private club w/a liquor license from the state racially discriminates

Front 49

Application of the Bill of Rights to state and local gov'ts

Back 49

1. Applies to state and local gov'ts through incorporation into the DP cl. of the 14th Amend.
2. The following are not incorporated:
a. 2nd Amend.
b. 3rd Amend. right not to have a soldier quartered in a person's home
c. 5th Amend. right to a grand jury indictment in criminal cases
d. 7th Amend. right to jury trial in civil cases
e. 8th Amend. right agaisnt excessive fines

Front 50

Rational basis test

Back 50

A law is upheld if it is rationally related to a legitimate gov't purpose (gov't almost always wins under this level of scrutiny, challenger has burden of proof)

Front 51

19 x 13

Back 51

247

Front 52

Strict scrutiny

Back 52

A law will be upheld if it is necessary to achieve a compelling gov't purpose (again ct looks at gov'ts actual purpose).

Means must be necessary to attain the objective (gov't must show that no less restrictive/discriminatory alternative could achieve gov't's goal). Gov't usually loses; gov't has burden of proof.

Front 53

Procedural due process

Back 53

Procedures gov't must follow when it takes away someone's life, liberty or property

Front 54

Substantive due process

Back 54

Whether gov't has an adequate reason to take away someone's life, liberty or propert

Front 55

Equal protection

Back 55

Whether the differences in gov't's treatment of people are adequately justified

Front 56

Procedural DP analysis

Back 56

1. Deprivation of life, liberty (significant freedom secured by const. or stat.) or property (an entitlement to continued receipt of a benefit)?
2. What procedures are req.? (balancing test:
a. Indiv. interest
b. Ability of add'l procedures to increase the accuracy of fact-finding; and
c. Gov't interest

Front 57

Procedural DP, deprivation of liberty, definition

Back 57

Loss of a significant freedom provided by the const. or a stat.

Written law (const. & statutes) create liberty interests

Front 58

Procedural DP, deprivation of property, definition

Back 58

Occurs if there is an entitlement and that entitlement is not fulfilled

Entitlement = reas. expectation of continued receipt of a benefit

e.g. gov't promises e'e they have a job for 1 yr --> entitlement

Roth - e'e worked on yr-to-yr basis & K didn't guarantee renewal --> no reas. expectation of continued emp't after the year

Front 59

Deprivation of procedural DP, gov't mens rea?

Back 59

Gov't negligence is not sufficient for a deprivation of DP, generally there must be intentional gov't action or at least reckless action.

In emergency situations (e.g. high speed car chase), gov't is only liable if its conduct "shocks the conscience."

Front 60

Procedural DP, gov't's omission liability

Back 60

Generally, gov't's failure to protect people from privately inflicted harms does not deny DP.

e.g. failure of gov't to respond to child abuse claims --> no liability fo denial of DP

Front 61

Procedural DP, terminating welfare benefits, procedures req.

Back 61

Notice and a hearing

Front 62

Procedural DP, Terminating SSD benefits, procedures req.

Back 62

Post-termination hearing

Front 63

Procedural DP, Public school discipline, procedures req.

Back 63

Discipline - notice of charges and an opportunity to explain (to principal or administrator) not a trial-type hearing

But no DP req. for corporal punishment

Front 64

Procedural DP, permanent termination of parent's custody rights, procedures req.

Back 64

Notice and a hearing

Front 65

Procedural DP, Punitive damages, procedures req.

Back 65

Instructions to the jury to guide their exercise of discretion
And judicial review to make sure any award is reas.

Grossly excessive punitive damages viol. DP.

Front 66

Procedural DP, American citizen held as enemy combatant, procedures req.

Back 66

Notice of charges, representation by a lawyer, a meaningful factual hearing

Front 67

Procedural DP, pre-judgment attachment or gov't seizure of assets, procedures req.

Back 67

Must be preceded by notice and a hearing. Gov't can seize property that has been used in an illegal activity even if the owner of the property is innocent.

Front 68

Laws affective economic liberties, standard of review

Back 68

Only a rational basis test is used for laws affecting econ. rights.
e.g. laws affecting trade, professions, emp't compensation (minimum wage laws)

Const. provides only minimal protection for econ. liberties

Front 69

Takings cl., general rule

Back 69

Gov't may take private property for public use if it provides just compensation

Front 70

Takings cl., when a taking occurs

Back 70

Possessory taking - gov't confiscation or physical occupation of property is a taking

Regulatory taking - gov't regulation is a taking if it leaves no reas. economically viable use of the property

Front 71

Takings cl., Are gov't conditions on development of property a taking?

Back 71

If justified by a benefit roughly proportionate to burden imposed --> no taking.
O/w --> taking

Front 72

Takings cl., Can a property owner bring a challenge under the takings cl. to regs that existed at the time he/she acquired the property?

Back 72

Yes

Front 73

Takings cl., Does temporarily denying an owner the use of property constitute a taking?

Back 73

It is not a taking so long as gov't's action is reasonable.

E.g. a temporary moratorium on development of property for the gov't to conduct an environmental study --> reas. action, & not a taking.

Front 74

Takings cl., public use, definition

Back 74

Public use is broadly defined; as long as gov't acts out of reas. belief that the taking will benefit the public, it meets the std.
(gov't always wins this issue)

Front 75

Takings cl., just compensation std.

Back 75

Just compensation is measured by the loss to the owner in reas. market value terms (the gain to the taker is irrelevant)

Front 76

Contracts cl.

Back 76

No state shall impair the obligations of Ks

Front 77

Contracts cl., application to future Ks

Back 77

The contracts cl. (no state shall impair the obligations of Ks) applies only to state or local interference w/existing Ks. They can reg. future Ks yet to be entered into

Front 78

Contracts cl., level of scrutiny for private Ks

Back 78

For PRIVATE Ks, law must meet intermediate scrutiny. The test is:

1. Does the law substantially impair a party's rights under an existing K?
2. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public int.

Front 79

Contracts cl., level of scrutiny for gov't Ks

Back 79

For GOV'T Ks, state or local law must meet strict scrutiny (necessary to achieve a compelling interest)

Front 80

Ex post facto cl.

Back 80

Gov't cannot make a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.

The ex post facto cl. does NOT apply in civil cases. Retroactive civil liability only needs to meet the rat'l basis test.

Front 81

Privacy and Substantive DP

Back 81

Privacy is a fundamental right protected under substantive DP

Laws must satisfy strict scrutiny if they interfere w/privacy rights

Front 82

Examples of privacy rights triggering strict scrutiny:

Back 82

Right to marry
Procreate
Keep custody of one's children
Keep family together (has to be relatives asserting the right)
Right to control raising one's children
Right to purchase and use contraceptives

Front 83

Examples of fundamental rights triggering strict scrutiny (other than privacy rights)

Back 83

Right to travel (covered under Equal Protection)
To vote (covered under EP)
Freedom of Speech (1st Amend)
Freedom of Assoc. (1st)
Freedom of religion (1st, only if the law is not a neutral law of general applicability)

Front 84

Fundamental rights triggering "undue burden" test

Back 84

Right to abortion

Front 85

Examples of non-fundamental rights (only rat'l basis review):

Back 85

Right to practice a trade or profession
Right to physician-assisted suicide
Right to education (!)

Front 86

Right to abortion, test/rules

Back 86

Laws interfering with the right to abortion must meet the "undue burden" test instead of strict scrutiny

Prior to viability of the fetus, states may not prohibit abortions, but may regulate so long as they do not create an undue burden on the ability to obtain abortions

Not undue burdens:
1. 24-hr waiting period
2. Req. that licensed physician perform the abortion
3. The prohibition of "partial birth abortions"

After viability, states may prohibit abortions, unless they are necessary to protect a woman's life or health

Spousal consent and notification are unconst.
Parental consent for minors is ok, as long as the state creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve it.

Front 87

Right to travel, rules

Back 87

Laws that prevent people from moving into a state must meet strict scrutiny

Durational residency reqs must meet strict scrutiny

Restrictions on foreign travel need meet only the rat'l basis test

Front 88

Right to vote, rules

Back 88

Laws that deny some citizens the right to vote (e.g. poll taxes - taxes on voting) must meet strict scrutiny, but regs of the electoral process to prevent fraud only need by on balance desireable.

One-person, one-vote must be met for all state and local elections

At-large elections are const. unless there is proof of a discriminatory purpose

Use of race in drawing election district lines must meet strict scrutiny

Counting uncounted votes w/o stds in a presidential election violates equal protection

Front 89

Equal protection analysis

Back 89

1. What is the classification?
2. What level of scrutiny should be applied? (rat'l basis is the default)
3. Does this law meet the level of scrutiny?

Front 90

Constitutional provisions concerning Equal protection

Back 90

14th Amend. - equal protection cl. applies only to state and local gov'ts

5th Amend DP cl. - applies equal protection to fed gov't

Front 91

Equal protection, determining the classification

Back 91

1. The classification can be on the face of the law; or
2. If the law is facially neutral, there can be a classification if there is both a discriminatory intent for the law and a discriminatory impract to the law

Front 92

Equal protection, strict scrutiny classifications:

Back 92

Race
Nat'l origin
Alienage - generally
Travel (but not foreign travel)
Voting

Front 93

Equal protection, intermediate scrutiny classifications:

Back 93

Gender
Illegitimacy
Undocumented alien children

Front 94

Equal protection, classifications triggering the rat'l basis test

Back 94

Alienage - if related to self-gov't and the democratic process
Congressional regulation of aliens
Age
Disability
Wealth
All other classifications

Front 95

Example of facially neutral laws with both discriminatory impact & intent

Back 95

Discriminatory use of peremptory challenges

Front 96

Equal protection, racial classifications, analysis/rules

Back 96

1. Strict scrutiny is applied
2. If the law is a numerical set-aside, gov't must show clear proof of past discrimination
3. Educational institutions may use race as one factor in admissions decisions to hold minorities (Grutter v. Bollinger)
4. But can't give candidates preference solely based on race (e.g. adding point to their admissions score b/c of race, Gratz v. Bollinger)
5. Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met

Front 97

Equal protection, gender classifications, analysis/rules

Back 97

Gender classifications benefitting women that are based on role stereotypes are not allowed

Gender classifications designed to remedy past discrimination and differences in opportunity are allowed

Front 98

Equal protection, alienage classifications, analysis, rules

Back 98

For federal laws using alienage classifications, the level of scrutiny is only the rat'l basis test (b//c of Cong's plenary power over immigration)

Generally, strict scrutiny is used for state and local laws on alienage, unless it concerns self-gov't/democratic process (e.g. voting, jury service, elective office) or if the law involves some important public pol'y (being a cop/teacher/probation officer)

*NOTE: Undocumented aliens are NOT a suspect classification. State laws regarding them are subject to rat'l basis review. (Denial of free public education to undocumented children was held invalid)

Front 99

Equal Protection, Race/Nat'l origin classification, analysis/rules

Back 99

Strict scrutiny is used

Affirmative action - gov't may use laws favoring ethnic or racial minorities, but it is still subject to strict scrutiny

Gov't has a compelling interest in remedying past discrimination if it is persistent and readily identifiable (can't just be general societal discrimination)

If there was no past discrim, gov't may still have a compelling reason to favor minorities to increase diversity. Ct has held it compelling at colleges & universities, but not elementary or secondary schools.

Colleges and universities can use race or ethnicith as a plus factor among a range of factors, but if it is a defining criterion for admission, then the Ct has held the law is not narrowly tailored for gov't's purpose.

Front 100

Equal protection, child's legitimacy classification, analysis/rules

Back 100

Legitimacy classifications are reviewed under intermediate scrutiny

Discriminatory regs intending to punish illegitimate children are invalid (e.g. prohibiting illegitimate children from inheriting from father), but gov't can validly req. illegitimate children to establish paternity before inheriting.

Front 101

Determining whether substantive DP or equal protection analysis applies

Back 101

If law limits right of all persons to engage in some activity --> substantive DP

If law treats a person or class of persons differently from others --> equal protection

Front 102

Substantive DP, right to vote

Back 102

Right to vote is a fundamental right and restrictions other than on the basis of age, residency and citizenship are invalid unless they pass strict scrutiny.

Residency reqs - Reasonable time periods (e.g. 30 days) are valid, but 50 days is the max

Property ownership - property reqs for voting rights are invalid (unless the vote is on something related to property, such as a vote on water storage rights)

Side 3, dilution of right to vote, rules

Hint 102

One-person, one-vote for reps from individual districts.

States have to use almost exact mathematical equality when creating districts w/in the state (each district has the same # of people), but Cong just has to apportion districts using good faith

No apportionment req. for "at-large" elected off'ls (all voters elect)

Front 103

First Amend., Content-based vs. Content-neutral

Back 103

Content-based (must meet strict scrutiny), two types:
1. Subject-matter restrictions - application of the law depends on the topic
2. Viewpoint restrictions - application depends on the ideology expressed in the message

Content-neutral - laws that burden speech generally (intermediate scrutiny)

Front 104

First Amend, prior restraints

Back 104

Prior restraint - judicial order or admin system that stops speech before it occurs

Court orders suppressing speech must meet strict scrutiny.

*NOTE: gag orders on press to prevent prejudicial pre-trial coverage are not allowed, ALWAYS unconstitutional

Side 3, licensing rules

Hint 104

Gov't can req. a license for speech 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.

Front 105

First Amend, Vagueness and Overbreadth

Back 105

Vagueness - a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed

e.g. "books tending to corrupt morals of youth" = unconst. for vagueness

Overbreadth - a law is unconst. overbroad if it regulates substantially more speech than the constitution allows to be regulated

*Note: fighting words laws are unconstitutionally vague and overbroad (fighting words aren't protected but ct never upholds fighting words convictions, correct answer is always that the law is vague and overbroad

Front 106

First Amend, symbolic speech

Back 106

Gov't 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 gov't's purpose

Side 3: Question 1 unprotected symbolic speech

Question 2: protected symbolic speech

Hint 106

1. Unprotected: Draft-card burning, contributions to political campaigns (limits are const.); nude-dancing

2. Protected: flag-burning, burning a cross (unless it's intended to threaten), Campaign expenditure limits (people can spend as much on ads for their candidates as they want);

Front 107

First Amend, anonymous speech

Back 107

Anonymous speech is protected by 1st

Front 108

First Amend., Gov't speech

Back 108

Speech by gov't cannot be challenged as violating First Amend.

Pleasant Grove v. Summum - a city's placement of a monument in a public park is gov't speech (even if the monument was privately donated)

Front 109

First Amend., Categories of Unprotected/Less protected speech

Back 109

1. Incitement of illegal activity
2. Obscenity and sexually-oriented speech
3. Comm'l speech
4. Defamation
5. Privacy (?)
6. Speech by gov't e'es
7. Other than these categories, content-based restrictions have to meet strict scrutiny

Front 110

First Amend, Incitement to illegal activity

Back 110

Gov't may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is direct to causing imminent illegality

Front 111

First Amend., Obscenity and sexually-oriented speech, 3-part test

Back 111

Test:
1. Material must appeal to the prurient interest (shameful or morbid interest in sex; local/community std, not nat'l std)
2. Material must be patently offensive under the law prohibiting obscenity
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (social value is determined by a nat'l std, not a local std)

Front 112

First Amend., obscenity and sexually-oriented speech, zoning ordinances

Back 112

Gov't can use zoning ordinances to regulate the location of adult bookstores and movie theaters

Front 113

First Amend, obscenity/sexually-oriented speech, child pornography

Back 113

Child pornography can be completely banned even if not obscene (children must be used in the production, computer-generated images or actors that look like kids --> not child porn)

Front 114

First Amend., obscenity/sexually-oriented speech, private possession

Back 114

Gov't may not punish private possession of obscene materials, but may punish private possession of child pornography

Front 115

First Amend, obscenity/sexually-oriented speech, businesses violating obscenity laws

Back 115

Gov't may seize the assets of businesses convicted of violating obscenity laws

Front 116

First Amend, Profane and indecent speech

Back 116

Generally protected (Cohen - F*** the draft)

*EXCEPTION: Over broadcast media, (FCC v. Pacifica, George Carlin 7 dirty words) b/c it enters home & is accessible to kids. This exception doesn't apply for cable or satellite, b/c consumers choose.
**EXCEPTION: In schools

Front 117

First Amend, Comm'l speech

Back 117

Advertising for illegal activity, and false and deceptive ads are not protected by First Amend.

True comm'l speech that inherently risks deception can be prohibited

Other comm'l speech can be regulated if intermediate scrutiny is met.

Gov't regulation of comm'l speech must be narrowly tailored, but it does not need to be the least restrictive alternative.

Front 118

First Amend, comm'l speech, rules for prof'ls ads

Back 118

1. Gov't can prevent prof'ls from advertising or practicing under a trade name (e.g. optometrists advertising under "For Eyes" b/c bad ones could keep changing their name)
2. Gov't may prohibit atty, in-person solicitation of clients for profit
3. Gov't may not prohibit accountants from in-person solicitation of clients for profit.

Front 119

First Amend., Defamation

Back 119

If P is a public off'l or public figure, P can only recover by proving falsity of statement and actual malice (D knew stmt was false or acted w/reckless disregard of the truth).

If P is a private figure but the matter is of public concern, state may allow P to recover compensatory damages by proving falsity of stmt and negligence by D. For punitive damages, P must show actual malice.

If P is a private figure, and it's not a matter of public concern, P can recover punitive damages w/o showing actual malice.

Front 120

First Amend., Privacy (3 very specific rules)

Back 120

Gov't may not create liability for the truthful reporting of info that was lawfully obtained from the gov't

Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance

Gov't may limit its dissemination of info to protect privacy

Front 121

First Amend., Speech by gov't e'es

Back 121

Speech by gov't e'es on the job in their performance of duties is not protected by 1st

Front 122

First Amend, places available for speech

Back 122

1. Public forums - gov't properties that the gov't is constitutionally required to make available for speech
2. Limited public forums - gov't properties that the gov't could close to speech, but chooses to open to speech (e.g. school facilities opened to community groups on evenings and weekends)
3. Non-public forums - gov't properties that gov't constitutionally can and does close to speech.
4. Private property - no constitutional right of access to private property for speech

Front 123

First Amend, Public forums, rules

Back 123

Regs must be subject-matter and viewpoint neutral, or if not, strict scrutiny must be met

Regs must be a time, place or manner regulation that serves an important gov't purpose and leaves open adequate alternative places of communication

Gov't reg of public forums need not use the least restrictive alternative

City off'ls cannot have discretion to set permit fees for public demonstrations.

Front 124

First Amend, Non-public forums

Back 124

Same rules for public forums

Front 125

First Amend, Non-public forums

Back 125

Gov't can regulate speech in non-public forums so long as the reg is reasonable and viewpoint-neutral

Side 3, examples of non-public forums

Hint 125

Military bases, areas outside prisons and jails, sidewalks on post-office property, ad space on city buses, airports (gov't can prohibit solicitation of $ in airports, but not distribution of literature)

Front 126

First Amend, Freedom of Association, Laws that prohibit or punish group membership

Back 126

Laws prohibiting or punishing group membership must meet strict scrutiny.

To punish membership in a group, gov't must show:
1. Person is actively affiliated w/the group
2. Knew of its illegal activities; and
3. Had the specific intent of furthering those illegal activities

Front 127

First Amend, Freedom of Association, Laws requiring disclosure of group membership

Back 127

Where disclosure of membership would chill association, gov't must meet strict scrutiny

Front 128

First Amend, Freedom of Association, Laws prohibiting a group from discriminating

Back 128

Laws prohibiting discrim are constitutional unless they interfere w/intimate association (small gathering or dinner party) or expressive activity (Nazi party can discriminate; also Boy Scouts can discriminate against gays b/c they have an anti-gay message

Front 129

First Amend, Freedom of religion, Free exercise cl.

Back 129

Free exercise cl. cannot be used to challenge a neutral (not motivated by desire to interfere w/religion) law of general applicability

Paoti case - Native American religion used Paoti, law prohibited use of Paoti
B/c law was generally applicable and not motivated by a desire to interfere w/religion, --> no free exercise challenge

Gov't may not deny benefits to individuals who quit their jobs for religious reasons.

Sherbert - woman quit rather than work on Saturday Sabbath, state couldn't constitutionally deny unemp't benefits

Front 130

First Amend., Freedom of Religion, Establishment cl., Test

Back 130

Test:
1. There must be a secular purpose for the law (& if primary purpose is to advance religion, --> fails estab. cl.)
2. The effect must be neither to advance nor inhibit religion (symbols of multiple religions int he same place are ok)
3. There must not be excessive entanglement w/religion (like paying directly for instruction at parochial schools)

Front 131

First Amend, Freedom of religion, establishment cl., gov't discrimination against religious speech or among religions

Back 131

Gov't must meet strict scrutiny

Front 132

First Amend, Freedom of religion, estab. cl., gov't sponsored religious activity in public schools

Back 132

It's unconstitutional, but religious student and community groups must have the same access to school facilities as non-religious groups

Front 133

First Amend, freedom of religion, estab. cl., gov't assistance to parochial schools

Back 133

Gov't may give assistance to parochial schools as long as it is not used for religious instruction. Gov't may provide parents vouchers which they use in parochial schools.