Constitutional Law

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What does Article III: Federal Judicial Power extend to?

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1. Interpretation of the Constitution, fed laws, treaties, an admiralty & maritime laws. AND

2. Disputes b/w states, states & foreign citizens, AND citizens of diverse citizenship

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For which cases does the Supreme Ct have original jurisdiction?

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All cases affecting ambassadors, public ministers, consuls, and those in which a state is a party. (But Congress has given concurrent jurisdiction to lower fed cts in all cases except those b/w states)

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For strict or intermediate scrutiny to apply, there must be intent on the part of the govt to discriminate. Intent may be shown by:

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(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.
**discriminatory effect is not enough!

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Suspect Classifications are:

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1.) Race and Natl Origin

2.) Alienage Classifications

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School integration

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Only INTENTIONAL school segregation violates the Constitution. If school systems and zones are established in racially neutral zones, there is no violation. There is also no violation if housing patterns create racial imbalance in schools.

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"Benign" Govt Discrimination/Affirmative Action

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Govt action that favors racial minorities is subj to the strict scrutiny standard as govt action discriminating against racial minorities

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Remedying Past Discrimination

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The govt has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and identifiable. A race-based plan cannot be used to remedy GENERAL past societal discrimination.

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Where there was no past discrimination

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Even where the govt has not engaged in past discrimination, it may have a compelling interest in affirmative action. However, the govt action must be narrowly tailored to that interest.

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Diversity in Public Education

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The S. Ct has NOT found diversity in itself to be a sufficiently compelling reason to justify placing students in a particular elementary or secondary school on the basis of race. HOWEVER, the law is diff for public universities and colleges. Those schools have said that they have a compelling interest in having a diverse student body, and the S. Ct has deferred to that claim. BUT each applicant must be evaluated as an individual. Admissions officers may consider race ALONG with a range of factors. If race or ethnicity is the defining criterion for admission, the admission policy will not be narrowly tailored to achieving a compelling interest.

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Discriminatory Legislative Apportionment

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Race can be considered in drawing up new voting districts, but IT CANNOT BE THE PREDOMINANT FACTOR. If a P can show that a redistricting plan was drawn up predominantly on the basis of racial considerations, the plan will violate the Equal Protection Clause UNLESS the govt can show that the plan is narrowly tailored to serve a compelling state interest.

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Fed Alienage Classifications

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Bc of Congress' plenary power over aliens, fed alienage classifications are NOT subj to strict scrutiny. Such classifications are valid if they are not arbitrary and unreasonable.

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State and Local Alienage Classifications

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Generally, state and local laws on alienage are subj to strict scrutiny. EX: It is unconsitutional for U.S. citizenship to be required for welfare, civil service jobs OR to become a lawyer.

EXCEPTION: Participation in the self-govt process -- if a law discriminates against alien participation in state govt (voting, jury service, elective office, etc.) the RATIONAL BASIS standard is applied. Also the rational basis standard is used for state and local laws limiting certain non-elective offices involving important public policy (e.g., police officers, probation officers, and teachers)

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Undocumented Aliens

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undocumented aliens are NOT a suspect classification. Thus, state laws regarding them are subj to RATIONAL BASIS standard. HOWEVER, denial of free public education to undocumented alien children is invalid, and MORE than rational basis is used by the Court.

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Quasi-Suspect Classifications are based on:

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1.) Legitimacy

AND

2.) Gender

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Gender Classifications

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reviewed under intermediate scrutiny standard -- must be substantially-related to an important govt purpose.

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Intentional Discrimination Against Women is:

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generally invalid, however classifications benefitting women that are designed to remedy past discrimination are generally valid

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Intentional Discrimination Against Men is:

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generally invalid, HOWEVER certain laws have been found to be substantially related to an important govt interest, such as: statutory rape laws, all male draft)

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Legitimacy Classifications

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Discriminatory regulations intended to punish children born out of wedlock are invalid.

EX: A law allowing only marital children to recover from father's estate is invalid. HOWEVER, allowing non-marital children to recover from their father's estate only if parenthood is established before the father's death IS VALID.

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Rational Basis Standard

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Classifications based on age, disability and wealth classifications.

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The Fundamental Rights are:

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right to interstate travel, privacy, voting and the First Amendment rights

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Standing to Assert Rights of Others:

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Generally, one cannot assert the constitutional rights of others in order to gain standing, BUT a claimant with standing in her own right MAY assert the rights of a third party IF:

1) It is difficult for a party to assert her own rights; OR

2) A special relationship exists b/w the claimant and the 3rd party. EX: a doc can assert a P's rights in challenging an abortion restriction.

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Standing of Organizations:

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An organization has standing if:
(1) there is an injury in fact to members that gives them a right to sue on their own behalf,
(2) the injury is related to the organization's purpose, AND
3) individual member participation is not required for the lawsuit.

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Taxpayer Standing Requisites

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A taxpayer has standing to litigate her tax bill, but a taxpayer generally has no standing to CHALLENGE GOVT EXPENDITURES, bc the taxpayer's interest is too remote.

EXCEPTION: Suits attacking Congressional taxing and spending measures on FIRST AMENDMENT ESTABLISHMENT CLAUSE grounds (e.g., congressionally approved fed expenditures to aid parochial schools.)

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For a taxpayer to have standing:

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Congress' spending power must be involved. Thus, for example, there is NO STANDING to challenge federal govt grants of surplus property to religious groups or expenditures of general executive branch funds.

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Abstention - Unsettled Question of State Law

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A fed ct will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.

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Abstention - Pending State Proceedings

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Fed cts 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 are:

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ones that will not be decided. Political questions are:
1.) issues constitutionally committed to another branchof govt; OR
2.) inherently incapable of judicial resolution.

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Examples of Political Questions

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-challenges based on the "Republican Form of Govt" Clause of Art. IV.
-challenges to congressional procedures for ratifying constitutional amendments;
-whether a person elected to Congress meets the age, residency, or vote requirements
-the President's conduct of foreign policy

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Nonpolitical Questions

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-Legislative apportionment
-arbitrary exclusion of a congressional delegate
-production of presidential papers and communications

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The 11th Amendment Prohibits

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fed cts from hearing a private party's or foreign govt's claims against a state govt

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Doctrine of Soverign Immunity bars...

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suits against a state govt in state ct, even on fed claims, unless the D state consents

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What is NOT barred by the 11th Amendment?

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Actions against local govts, actions by the U.S. or other states, or proceedings in fed bankruptcy cts

EXCEPTIONS:
1.) Certain Actions against State Officers:
(i) actions to enjoin an officer from future conduct that violates the Constitution or fed law, even if this will require a prospective payment from the state; AND
(ii) actions for damages against an officer personally

2.) Congress Removes the Immunity -- Congress can remove the 11th Am immunity as to actions created under the 14th Am, BUT it must be unmistakenly clear that Congress intended to remove the immunity.

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Enumerated and Implied Powers

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Congress can exercise those powers enumerated in the Constitution plus all auxillary powers necessary and proper to carry out all powers vested in the fed govt

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Necessary and Proper Clause

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Congress has the power to make all laws necessary and proper (appropriate) for executing ANY power granted to ANY branch of the fed govt

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Necessary and Proper EXAM TIP

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The Necessary and Proper Clause alone cannot support fed law. Thus, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress' power to enact legislation necessary and proper) will be INCORRECT UNLESS another fed power is linked to the question

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Congress' Enumerated & Implied Powers

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1) "Necessary and Proper" Power

2) Taxing Power

3) Spending Power

4) Commerce Power

5) War and Related Powers

6) Investigatory Power

7) Property Power

8) No Fed Police Power

9) Bankruptcy Power

10) Postal Power

11) Power over Citizenship

12) Admiralty Power

13) Power to Coin Money and Fix Weights and Measures

14) Patent/Copyright Power

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Taxing Power

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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 power taxed. However, neither Congress nor the states may tax imports 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.

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Spending Power EXAM TIP

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The fed govt can tax and spend for the general welfare; it cannot directly legislate for it. Thus, nonspending regulations cannot be supported by the General Welfare Clause.

**Although the power to spend for the general welfare is broad (any public purpose), it is still ltd to by the Bill of Rights and other constitutional 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 w/in Congress' power under the Commerce Clause, a fed law regulating interstate commerce must either:

(i) regulate the channels of interstate commerce;

(ii) regulate the instrumentalities of interstate commerce and persons and things in interstate commerce;

OR

(iii) 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 intrastate activity under the 3rd prong, the Ct will uphold the regulation if it is of economic or commercial activity (e.g., growing wheat or medical MJ even for personal consumption) and the ct can conceive of a rational basis on which Congress could conclude that the activity IN AGGREGATE substantially affects interstate commerce. However, if the regulated intrastate activity is noncommercial and noneconomic (e.g., possessing a gun in a school zone or gender-motivated violence), it cannot be regulated under the Commerce Clause UNLESS Congress can factually show a substantial economic effect on interstate commerce.

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War and Related Powers

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

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Admiralty Powers

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Congress' admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.

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Power to Coin Money and Fix Weights and Measures

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Congress has the power to coin money and fix standards for weights and measures.

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Patent/Copyright Power

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Congress has the power to control the issuance of patents & copyrights.

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Delegation of Legislative Power

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Legislative power may generally delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (e.g., powers to declare war, impeach.)

NOTE: Congress may not appoint members of a body w/administrative or enforcement powers.

**no legislative delegation has been invalidated since 1936.

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Speech and Debate Clause -- Immunity for Fed Legislatures

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Conduct that occurs in the reg course of the fed legislative process and the motivation behind that conduct are immune from prosecution.

NOTE: immunity does NOT cover: bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory stmt originally made in Congress.

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Congressional "Veto" of Executive Actions Invalid

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A legislative veto is an attempt by Congress to overturn an executive agency action w/o bicameralism (i.e., passages by both houses of Congress) or presentment (i.e., giving the bill to the President for his signature or veto). Legislative vetos of executive actions are invalid.

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Freedom of Religion

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The First Amendment Prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the 14th Amendment.

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Free Exercise Clause

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The Free Exercise Clause prohibits govt from punishing someone on the basis of her beliefs. For example, the Clause forbids:

(i) State govts from requiring office holders or employees to take a religious oath (the Fed Govt is similarly restricted by Art. VI.)

(ii) States from excluding clerics from holding public office; AND

(iii) Cts from declaring a religious belief to be false.

**The S. Ct has not defined what constitutes a religious belief, but it is clear that religious belief need not come from an organized religion or a supreme being. The Ct has never held an asserted religious belief to be not religious for First Amendment purposes.

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EXAM TIP on Free Exercise Clause

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Technically, the govt MAY deny benefits to or impose a burden on someone based on her religious beliefs IF there is a compelling interest. However, the S. Ct has NEVER found an interest so compelling that it justifies such action.

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General Conduct Regulation -- No Religious Exemptions Required

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The Free Exercise Clause cannot be used to challenge govt regulation unless the regulation was specifically designed to interfere w/religion (e.g., a law that prohibits the precise type of animal slaughter used in a ritual by a particular religious sect is unconstitutional). Moreover, the Free Exercise Clause does not require religious exemptions from generally applicable governmental regulations that HAPPEN to burden religious conduct; i.e., a law that regulates the conduct of ALL ppl can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying w/the law.

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EXCEPTION to General Conduct Regulation -- No Religious Exemptions Required (Unemployment Compensation Cases)

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A state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons (i.e., the work or the conditions of the work conflict w/tenet's of the worker's religion) The worker need not belong to a formal religious organization in such a situation, as long as the belief is sincere.

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EXCEPTION to General Conduct Regulation - No Religious Exemptions Required (Right of Amish not to Educate Children)

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The S. Ct has granted the Amish an exemption from a law requiring compulsory school attendance until age 16, based on the Free Exercise Clause AND the fundamental right to educate one's children.

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EXAM TIP - Free Exercise Clause

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The Free Exercise Clause prohibits govt interference w/religious beliefs, but it generally does NOT prohibit regulation of conduct. If the governmental action regulates general conduct -- including relgious conduct -- it is valid (e.g., banning any use of peyote is valid even though a group's religious beliefs require its use during its ceremonies.) The only exceptions to this rule are those pertaining to unemployment compensation and the education of Amish children.

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Establishment Clause

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The Establishment Clause prohibits laws respecting the establishment of religion.

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Sect Preference

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If a govt regulation or action includes a preference for one religious sect over another, it is invalid unless it is NARROWLY TAILORED to promote a COMPELLING interest.

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EXAM TIP on Sect Preference

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Although you should know the standard (narrowly tailored to promote a compelling interest) for govt preference of a religious sect (or sects), it is UNLIKELY that the govt could ever have a compelling interest in preferring one religious group.

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Cases Involving Financial Benefit to Religious Institutions

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The S. Ct applies 3-part test above w/greater strictness when govt financial aid is going to a religiously affliated grade or high school than it does when the aid is going to another type of relifious institution.

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Recipient-Based Aid

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The govt may give aid in the form of financial assistance to a defined class of persons as long as the class is defined w/o reference to religion or religious criteria. Such a program is valid even if most of the ppl receiving aid use it to attend a religiously affiliated school.

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Aid to Colleges and Hospitals

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Aid to colleges or hospitals will be upheld as long as the govt program requires the aid to be used for nonreligious purposes and the recipient so agrees.

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Aid to grade schools and high schools

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Aid to religious grade schools and high schools is usually found to have a secular purpose, but may fail the other parts of the test. For example, if the program has detailed administrative regulations to prevent the effect of advancement of religion, the law will be striken for excessive govt entanglement.

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Religious Activities in Public Schools

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School sponsored religious activity is invalid, but school accomodation of religion is valid. Moreover, if a public school allows members of the public and private organizations to use school property when classes are not in session, it cannot deny a religious organization permission to use the property for mtgs merely bc religious topics will be discussed.

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Substantive Due Process -- Constitutional Source - 2 Clauses

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The Due Process Clause of the 5th Am applies to the Fed Govt. The Due Process Clause of the 14th Am applies to the state and local govts. The same tests are applied under each clause.

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Substantive Due Process -- Applicable Standards

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When a fundamental right is ltd., the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard is applied.

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Substantive Due Process -- A Few Irrebuttable Presumptions May Be Invalid

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

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EXAM TIP

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TheS. Ct no longer treats irrebuttable presumptions differently from other regulations or classifications. Thus, if an answer choice says "invalid bc it is an irrebuttable presumption," it is probably wrong. You must consider whether it concerns a fundamental right or suspect or quasi-suspect class, and judge it accordingly.

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Power of States to Tax Foreign Govts

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The Import-Export Clause and the Commerce Clause greatly limit the states' power to tax foreign commerce.

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Suits by U.S. Against a State

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The U.S. may sue a state w/o its consent.

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Suits by a State Against the U.S.

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Public policy forbids a state from suing the U.S. w/o its consent. Congress can pass legislation that permits the U.S. to be sued by a state in given situations.

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Federal Officer as a D -- Limitation

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A suit against a fed officer is deemed to be brought against the U.S. itself if the judgment sought would be satisfied out of the public treasury or would interfere w/public administration & therefore is not permitted.

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Federal Officer as a D -- Specific Relief Against Officer

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Specific relief against an officer as an individual will be granted if the officer acted ultra vires (beyond his authority).

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Suits By One State Against Another

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One state may sue another state w/o the latter's consent. The S. Ct has exclusive original jurisdiction.

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Freedom of Speech and Assembly

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Whenever the govt seeks to regulate the freedoms of speech or assembly, the Ct will weigh that great importance of speech & assembly rights against the interests or policies sought to be served by the regulation.

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The First Amendment prohibits

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Congress from establishing a religion or interfering w/the free exercise of religion, abridging the freedoms of speech and press, or interfering w/the right of assembly. These prohibitions are applicable to the states through the 14th Am.

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Content v. Conduct

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Speech and assembly regulations can be generally categorized as either content regulations (regulations forbidding communication of specific ideas) or conduct regulations (regulations of the conduct associated w/speaking, such as the time of speech, sound level, etc.) Diff standards are used to assess the validity of a regulation w/in each category.

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Content

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It is presumptively unconstitutional to place burdens on speech bc of its content except for certain categories of speech (obscenity, defamation, etc.) Content-neutral speech regulations generally are subj to intermediate scrutiny, i.e. they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests.

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Conduct

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Conduct related to speech can be regulated by content-neutral time, place and manner restrictions. Additionally, all regulations of speech are subj to the following restrictions.

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Reasonableness of Regulation -- Overbroad Regulation Invalid

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If a regulation of speech or speech-related conduct punishes a substantial amt of protected speech in relation to its plainly legitimate sweep (e.g., a regulation outlawing ALL First Amendment activity in an airport terminal; a regulation prohibiting all canvassers from going onto private residential property to promote ANY cause w/o first obtaining a permit), unless a ct has ltd construction of the regulation so as to remove the threat to constitutionally protected expression. If the expression is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.

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Reasonableness of Regulation -- Void for Vagueness Doctrine

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If a criminal law or regulation fails to give persons reasonable notice of what is prohibited (e.g., a prohibition of "lewd" speech), it may violate the Due Process Clause. This principle is applied somewhat strictly when First Amendment activity is involved.

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Reasonableness of Regulation -- Cannot Give Officials Unfettered Discretion

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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. 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 First Amendment grounds.

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Scope of Speech

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The freedom to speak includes the freedom NOT to speak. Thus, the govt generally cannot require ppl to salute the flag or display other msgs w/which they disagree (e.g., a person need not display the state motto "live free or die" on a license plate). The freedom can extend to symbolic acts undertaken to communicate an idea. (e.g., wearing a black armband to protest the war), although the govt may regulate such conduct if it has an important interest in the regulation independent of the speech aspects of the conduct and the incidental burden on speech is no greater than necessary (e.g., to facilitate a smooth draft, the govt can prohibit the burning of draft cards).

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Mandatory Financial Support

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Although the govt may not compel another person to express a msg, it may tax ppl and use the revenue to express a msg w/which they disagree. (e.g., a beef producer can be required to pay an assessment to support govt sponsored generic advertising of beef even if the producer thinks generic advertising is a waste of money.) However, it appears that ppl cannot be compelled to subsidize private msgs w/which they disagree (e.g., while lawyers may be compelled to pay bar dues and govt teachers can be compelled to pay union dues, they cannot be compelled to pay sums to such private associations that will be used to support political views that, or candidates whom they do not endorse.)

EXCEPTION - University Activity Fees: The govt can require public university students to pay a university fee even if the fee is used to support ideological speech by student groups whose beliefs are offensive to the student, as long as the program is viewpoint neutral.