Constitutional Law

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Justiciability

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(1) Case or Controversy
(2) Present Harm or Threat of Specific Future Harm
(3) Ripeness
(4) Mootness (Exceptions: Capable of repetition, but evading review, and class actions)
(5) Standing
(6) No Adequate and Independent State Grounds
(7) No Political Questions
(8) Must Not Be Barred by 11th Amendment (Sovereign Immunity)

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Standing

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(1) Injury: Directly, personally injured (or will be). Need not be economic injury.
(2) Causation: Causal connection between injury and conduct complained of.
(3) Redressability: Decision in the litigant's favor must be capable of eliminating her grievance.

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Ripeness

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Plaintiff is not entitled to review of statute/regulation before its enforcement, unless plaintiff will suffer some harm or immediate threat of harm.

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Mootness

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Real controversy must exist. If the matter is resolved, the case is moot. Exceptions:
(1) Capable of Repetition, but Evading Review (Roe v. Wade, or when the defendant stops the offending behavior, but is free to start again)
(2) Class Action (If some class members' claims are still viable)

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Supreme Court Jurisdiction

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Original Jurisdiction: Claims affecting ambassadors, public ministers, consuls, and those in which a state is a party.

Appellate Jurisdiction: All cases to which federal power extends by writ of certiorari or appeal (rare - only three judge federal court injunctive relief appeals).

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Taxpayer Standing Requisites

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Taxpayer has standing to litigate tax bill, but no standing to challenge government expenditures because taxpayer's interest is too remote. Exception: Suits attacking taxing and spending measures on 1st Amendment Establishment Clause grounds (e.g., federal expenditures to aid parochial schools).

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Organization Standing

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Organization has standing if:
(1) Injury in fact to members giving them the right to sue on their own behalf;
(2) Injury is related to the organization's purpose; and
(3) Individual member participation in lawsuit is not required.

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Standing to Assert Rights of Others

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A claimant with standing in own right may also assert rights of a third party if:
(1) Difficult for third party to assert own rights or
(2) Special relationship exists between claimant and third party.

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Abstention

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Federal courts can choose to abstain from hearing a case if:
(1) There's an unsettled question of state law
(2) Federal courts will not enjoin pending state criminal proceedings except in cases of proven harassment or prosecutions taken in bad faith.

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Political Questions

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(1) Issues constitutionally committed to another branch of government
(2) Issues inherently incapable of judicial resolution.
Examples: Challenges to Congressional procedures for ratifying Constitutional Amendments.

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Sovereign Immunity

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Prohibits Federal court from hearing a private party's or state government's claims against a state government. Extends to any action in which a state is a party or will have to pay retroactive damages. Doesn't extend to actions against local governments, by U.S. or other states, or discharge of a state's claim against a debtor in federal bankruptcy court.

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Exceptions to Sovereign Immunity

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(1) Certain actions against state officers:
(a) Enjoining future unconstitutional or illegal conduct, even if it could require payment from the state,
(b) Actions for damage against officer personally.
(2) State consents
(3) Congress removes the immunity (only as to actions under the 14th Amendment). Must be unmistakenly clear that this was Congress' intent.

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Enumerated and Implied Powers

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(1) Necessary and Proper
(2) Taxing Power
(3) Spending Power
(4) Commerce Power
(5) War and Related Powers
(6) Investigatory Powers
(7) Property Power
(8) NO Federal Police Power
(9) Bankruptcy Power
(10) Postal Power
(11) Citizenship Power
(12) Admiralty Power
(13) Power to Coin Money and Fix Weights and Measures
(14) Patent/Copyright Power

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Necessary and Proper Power

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Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. Note: MUST have a federal power working with it - cannot stand alone.

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Taxing Power

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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. Congress can't tax exports to foreign countries.

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Spending Power

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Congress may spend to "provide for the common defense and general welfare." Spending may be for any public purpose. Non-spending regulations cannot be supported by General Welfare Clause.

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Adequate and Independent State Grounds

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Supreme Court will not exercise jurisdiction if state court judgment rests on adequate and independent state law grounds - even if federal law is involved.

Adequate = fully dispositive of the case.

Independent = not based on federal case interpretations of identical federal provisions.

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Commerce Power

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Congress has the exclusive power to regulate all foreign and interstate commerce. To be within this power, the law must either:
(1) Regulate channels of interstate commerce;
(2) Regulate the instrumentalities of and persons and things in interstate commerce; or
(3) Regulate activities that have a substantial effect on interstate commerce.

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Intrastate Activity

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When Congress attempts to regulate interstate activity under the third prong (activities having a substantial effect on interstate commerce), court will uphold if regulating economic or commercial activity and the court can conceive a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.

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War and Related Powers

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Constitution gives Congress the power to declare war, raise and support armies, and provide for and maintain a navy.

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Investigative Power

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Power of Congress to investigate is implied. Investigation must be expressly or impliedly authorized by the appropriate Congressional house.

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Bill of Rights and Incorporation

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14th Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states. Exceptions:
(1) 5th Amendment prohibition of criminal trials without a grand jury indictment, and
(2) 7th Amendment right to a jury trial in civil cases.

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13th Amendment

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13th Amendment prohibits slavery and involuntary servitude. Under 13th Amendment Enabling Clause, Congress can prohibit racially discriminatory action by ANYONE (government OR private citizen).

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15th Amendment

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Prevents both federal and state governments from denying a citizen the right to vote on account of race or color. (State action - no protection against private actor)

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14th Amendment, Section 5

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Gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th Amendment. May not expand existing constitutional rights or create new ones - only remedial powers. Must point to a history or pattern of violation of rights and adopt a law that is narrowly tailored to address that history or pattern.

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State Action

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Required to show a Constitutional violation. Concept applies to government and government officers at all levels - federal, state, or local. Note, however, that state action can be found in actions of seemingly private individuals who (1) perform exclusive public functions, or (2) have significant state involvement.

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Exclusive Public Functions (State Action)

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Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them. Examples: Running a town, conducting an election.

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Significant State Involvement (State Action)

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State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. Examples: Allowing a state official to act in a discriminatory manner under "color of state law" or administration of private discriminatory trust by public officials).

State must be "significantly involved;" mere acquiescence by the state is not enough. States are not constitutionally required to outlaw discrimination. Only forbidden to facilitate, encourage, or authorize it.

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Contract Clause

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Prohibits states from enacting any law that retroactively impairs contract rights. No comparable clause applicable to federal government, but flagrant contract impairment would violate 5th Amendment Due Process Clause.

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Contract Impairment (Public and Private Contracts)

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Private: State legislation that substantially impairs an existing private contract is invalid unless:
(1) legislation serves important or legitimate public interest, and
(2) is reasonable and narrowly tailored to promote that interest.

Public: Legislation that impairs contract to which the state is a party uses the same basic test, but will likely get stricter scrutiny, especially if the legislation reduces contract burdens on the state.

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Ex Post Facto Laws

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State and Federal governments may not pass a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for past activity. Elements:
(1) Makes criminal an act that was innocent when done;
(2) Prescribes greater punishment than prescribed when act done; or
(3) Reduces evidence required to convict than was required when act was committed.

ONLY applies to criminal cases.

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Bills of Attainder

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Legislative Acts that inflict punishment on individuals without a judicial trial. Both federal and state governments are prohibited from passing bills of attainder.

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Due Process Considerations Regarding Retroactive Legislation

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If retroactive law doesn't violate Contracts clause, Ex Post Facto clause, or Bill of Attainder clause, must still pass muster under Due Process clause. If retroactive law doesn't relate to a fundamental right, need only be rationally related to a legitimate government interest.

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Procedural Due Process

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Fair process required for a government agency to individually take a person's life, liberty, or property. Only intentional deprivation (not negligent) of these rights violates the Due Process Clause. (Rights can be waived, voluntarily and knowingly). Red Herring: Court no longer differentiates between a right and a privilege. Proper term is "entitlement."

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Procedural Due Process Elements and Test

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Is life, liberty, or property being taken?
Liberty: Deprivation occurs if person (1) loses significant freedom of action, or (2) denied a freedom provided by Constitution or statute.
Property: Not just physical property. Can be a legitimate claim or "entitlement" to the benefit under state/federal law (i.e. welfare).

What type of process is required?
Three-Part balancing test that weighs:
(1) Importance of interest to individual; and
(2) Value of specific procedural safeguards to that interest; against
(3) Government interest in fiscal and administrative efficiency (Fair procedures and unbiased decision maker required).

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Access to Courts for Indigent Plaintiffs

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Government fees (e.g., court filing fees) must be waived when imposition of a fee would deny a fundamental right to the indigent. Thus, for example, marriage license or divorce court filing fee (privacy rights) or filing fee for candidates for electoral office (voting rights) must be waivable in certain circumstances.

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Takings Clause

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5th Amendment provides that private property may not be taken for public use without just compensation. 14th Amendment applies this to the states. "Taking" includes physical appropriations and also some government action that damages property or impairs its use.

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"Public Use" Limitation

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If government action is rationally related to a legitimate public purpose (e.g., for health, welfare, safety, economic, or aesthetic reasons), the public use requirement is satisfied. Authorized takings by private enterprises included if to the public advantage (e.g., railroads and public utilities).

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Taking vs. Regulation

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Actual appropriation or physical invasion (except in emergency situations) will almost always equal a taking.

Denial of all economic value of the land is a taking. (Temporary denials are not necessarily takings).

Regulations that decrease value not a taking if they leave an economically viable use for the property. The court will consider:
(1) social goods sought to be promoted;
(2) the diminution in value to owner; and
(3) owner's reasonably expectations regarding the property.

The more drastic, the more likely it's a taking.

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Just Compensation

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If regulation amounts to a taking, the government must:
(1) pay the property owner just compensation (i.e., fair market value); or
(2) terminate the regulation and pay the owner for damages.

"Worthless" property: Just compensation is measured by the loss to the owner, not the gain to the taker. No compensation for worthless property.

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Substantive Due Process vs. Equal Protection

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Substantive Due Process: Law limits liberty of all persons to engage in some activity.

Equal Protection: Law treats person/class of persons differently from others.

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Standards of Review for Substantive Due Process and Equal Protection

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Strict Scrutiny: Regulations affecting fundamental rights or involving suspect classifications.

Intermediate Scrutiny: Regulations involving quasi-suspect classes.

Rational Basis: Regulations not falling into the other two categories.

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Strict Scrutiny

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Government has the burden to prove that the law is necessary to achieve a compelling government purpose. Difficult burden - especially if there is a less burdensome alternative to achieve the government's goal.

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Intermediate Scrutiny

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Most likely, the government has the burden of proof. The law will be upheld if it is substantially related to an important government purpose.

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Rational Basis

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Law is upheld if it is rationally related to a legitimate government purpose. Very easy standard to meet. Law will be valid unless arbitrary or irrational.

Person challenging the law has the burden of proof.

Classes: Age, disability, and poverty.

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Irrebuttable Presumption

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If facts against a person are presumed so that she cannot demonstrate that she is qualified for some important benefit or right, the "irrebuttable presumption" may be unconstitutional.

Note: Supreme Court no longer treats irrebuttable presumptions different from other regulations or classes.

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Substantive Due Process Standards

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When a fundamental right is limited, law or action is evaluated under strict scrutiny. All other cases, a rational basis standard is applied.

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Equal Protection Standards

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Fundamental right or suspect class gets strict scrutiny.

Quasi-suspect class gets intermediate scrutiny.

All others get rational basis review.

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Suspect Classifications

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Race (favoring OR against), national origin (favoring OR against), or alienage (state or location only - federal alienage uses rational basis). Undocumented (illegal) aliens are not suspect.

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Quasi-Suspect Classifications

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Gender (against female usually invalid, but benefiting to remedy past discrimination is usually valid - intentional discrimination against men invalid, typically), legitimacy (punishing regulations are invalid). Regulations only allowing legitimate children to inherit are invalid. However, a regulation requiring illegitimate kids to establish paternity to inherit is valid.

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Rational Basis Classifications

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All others. Examples: Age, wealth, disability, sexual orientation.

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Fundamental Rights

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Interstate Travel
Privacy
Voting
1st Amendment Rights

Education is NOT a fundamental right.

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Right to Privacy

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Marriage (and probably divorce), use of contraceptives, abortion (pre-viability rule - no undue burdens; post-viability rule - may prohibit unless woman's health threatened), obscene reading material, keeping extended family together, parental rights, intimate sexual contact.

Note: State may gather/distribute citizens' information.

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Right to Vote

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Restrictions (other than age, residence, and citizenship) are invalid unless they pass strict scrutiny.

Reasonable time periods for residency (30 days) are valid.

Conditioning the right to vote/hold office on ownership is invalid (unless it's a special purpose election for landowners).

Poll taxes are unconstitutional.

States may require early registration to vote in primaries, but can't prohibit parties from opening their primaries to anyone, registered to the party or not.

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Dilution of Right to Vote

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"One person - one vote" applies when any level of government decides to select representatives from individual districts. States must use almost exact mathematical equality to create Congressional districts, but not Congress - just good faith.

State and local - no more than 2-3% variance between districts. Exception: Officials elected "at large" (apportionment exception) or special purpose election (one person-one vote exception).

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Gerrymandering

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Race (and presumably other suspect classes) cannot be predominant factor in drawing boundaries of voting districts unless district plan will pass strict scrutiny.

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Right to Travel

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Right to international travel is not a fundamental right. Fundamental right exists to migrate from state to state. Durational residency is tricky. Not all restrictions on interstate travel will be held invalid (e.g., increased penalties for father abandoning his children and leaving the state will be valid).

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Durational Residency Examples

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One year residency to get full welfare --> valid.

One year residency to get state subsidized medical care --> invalid.

One year residency to vote in state --> invalid.

30-day residency to vote in state --> valid.

One year residency to get divorced in state --> valid.

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1st Amendment (Content vs. Conduct)

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Content-based restriction: forbidding communication of specific ideas. Presumptively unconstitutional, except for certain kinds of speech (obscenity, defamation, etc).

Content-neutral restriction: Subject to intermediate scrutiny.

Conduct-based restriction: Can be regulated by content-neutral time, place, and manner restrictions.

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Restrictions on Free Speech

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Overbroad regulation is invalid. Void if too vague (strict standard - must give reasonable notice of what's prohibited). Must provide defined standards for applying the law. Unbridled discretion will be void on its face. Can extend to symbolic acts. Includes right not to speak. Viewpoint restrictions generally not allowed when state/government funds private speech.

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Time, Place, and Manner Restrictions

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Public forum - Public property that historically has been open to speech-related activities (e.g., streets, sidewalks, public parks).

Designated/limited public forum - government has opened to speech on a permanent or limited basis. Government may regulate with regulations that are: (1) content-neutral, (2) narrowly tailored and serve an important government interest, and (3) leave open alternative channels of communication.

Non-public forums: Regulations valid if (1) viewpoint neutral, and (2) reasonably related to a legitimate government interest.

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Injunctions Against Speech in Public Forums

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If injunction is content-based, it must be necessary to achieve a compelling interest. If content-neutral, must burden no more speech than necessary to achieve a significant government interest.

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Unprotected Speech

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(1) Inciting imminent lawless action
(2) Fighting words (usually invalid because vague or overbroad)
(3) Obscenity
(4) Defamatory speech
(5) Some commercial speech

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Obscenity

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Obscene if:
(1) appeals to prurient interest using a community standard;
(2) is patently offensive and an affront to community standards; and
(3) lacks serious value using national reasonable person standard.

Standard may be different when minors are involved.

May limit size of adult entertainment establishments, but cannot ban them.

Private possession of obscene material (except child pornography) in the home cannot be punished.

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Limitations on Commercial Speech

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Afforded 1st Amendment protection if truthful. If it proposes illegal activity or is misleading/fraudulent, may be burdened. Any other regulation upheld if:
(1) serves a substantial government interest;
(2) directly advances that interest; and
(3) is narrowly tailored to serve that interest.

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Prior Restraints on Speech

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Rarely allowed. Government has heavy burden. Must show that some special societal harm will result. To be valid, system for prior restraint must provide the following safeguards:
(1) standards must be narrowly drawn, reasonable, and definite;
(2) an injunction must be promptly sought; and
(3) must be a prompt and final determination of validity of restraint.

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Freedom of Press

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Generally, press has a right to publish truthful information regarding matters of public concern, only restricted by narrowly tailored sanction furthering interest of highest order. Access to trials guaranteed. Press may be required to testify in front of grand jury. No right to interview prisoners of their choice or to inspect prison grounds. No special taxes are allowed. Radio/TV may be more closely regulated than the press. Newspaper regulations are subject to strict scrutiny. Internet also strict scrutiny.

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Freedom of Association

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Not express, but implied from explicit constitutional rights. Government may neither prohibit politically unpopular groups nor unduly burden a person's right to belong to such groups. Infringements of this right may be justified by a compelling state interest, unrelated to the suppression of ideas, if the infringements are the least restrictive means of protecting the government interest involved.

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Electoral Process

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Balancing test to determine whether a regulation of the electoral process is valid: If 1st Amendment restriction is severe, strict scrutiny is applied. If reasonable and non-discriminatory, it generally will be upheld. Statute limiting contributions gets intermediate scrutiny (only limit contributions to candidates - not parties). Laws may not limit amount candidate spends on campaign. Regulation of "core political speech" upheld only if it passes muster under strict scrutiny.

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Restraints on Conduct for Employees

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If government employer wants to fire an employee or independent contractor for speech-related conduct, there are two tests: If a public concern is involved, the courts must balance the employee's right as a citizen against the government's interest in efficient performance of public service. If no public concern, courts should give wide deference to government employer's judgment as to whether speech was disruptive. Federal government may prohibit federal executive branch employees from taking active part in campaigns. Public employee may not be hired, fire, promoted, etc, based on party affiliation except as to policymaking decisions. Standard for conduct must not be vague. Loyalty oaths OK as long as not overbroad or vague. Government can only require disclosure of relevant affiliations.

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Free Exercise Clause

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Government can't punish on the basis of religious beliefs. Can't require religious oaths, can't exclude religious clerics from holding public office, can't declare a religious belief to be false. Supreme Court has never found an interest so compelling as to deny benefits or impose a burden on someone based on religious views. Can't use this clause unless regulation was specifically designed to interfere with religion. Also, this clause does not require religious exemptions from generally applicable government regulations that happen to burden religious conduct. State can't refuse unemployment benefits to persons who quit their job for religious reasons. Supreme Court granted the Amish an exemption from law requiring kids to attend school until they're 16. Essentially, free exercise clause prohibits government interference with beliefs, not conduct. Regulations regarding general conduct usually valid.

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Property Power

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Congress has power to dispose of and make rules for territories and other properties of the U.S. No express limitation on Congress' power to dispose of property.

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Establishment Clause

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Prohibits laws respecting establishment of religion.

Sect preference: If government action or regulation includes a preference for one religious sect over another, it is invalid unless narrowly tailored to promote a compelling interest (VERY unlikely).

No sect preference: Valid if (1) has secular purpose, (2) has primary effect that neither advances nor inhibits religion, and (3) doesn't produce excessive government entanglement with religion.

School-sponsored religious activity is invalid, but school accommodation of religion is valid.