Constitutional Law - Bar Mind

Front 1

1. Requirement for Cases & Controversies
a. STANDING – (Proper Party?)

Back 1

– Plaintiff has suffered a (1) concrete injury in fact, (2) caused by the defendant that is (3) redressible by the court.

Front 2

1. Requirement for Cases & Controversies
a. STANDING – (Proper Party?)

i. Concrete Injury

Back 2

P must allege and prove that he has personally been injured or imminently will be injured.

1. P may only assert injuries that they personally have suffered

2. Need NOT be an economic injury

3. P seeking injunctive or declaratory relief must show a likelihood of future harm

4. MBE Tip: If asked to determine the best standing identify personal injury. If more than one, identify personal injury with economic loss ($)

Front 3

1. Requirement for Cases & Controversies
a. STANDING – (Proper Party?)

ii. Causation

Back 3

Must be a causal connection between the injury and the conduct.

1. P must allege and prove that that the D caused the injury.

Front 4

1. Requirement for Cases & Controversies
a. STANDING – (Proper Party?)

iii. Redressibility

Back 4

P must allege and prove that a favorable court ruling is likely to remedy the harm suffered. NO ADVISORY OPINIONS!

1. Note – Often the flip side of causation

2. Courts will NOT determine the constitutionality of a statute if it has never been enforced and there is no real threat that it ever will be.

Front 5

1. Requirement for Cases & Controversies
a. STANDING – (Proper Party?)

iv. Third Party Standing

Back 5

P can only sue to protect his own rights, NOT those of 3rd parties.

1. Exceptions – Must meet the 3 above elements AND:
a. Special Relationship between P and injured party (Dr. – Patient)
b. Injured party is unlikely to be able to assert his own rights
i. Ex. law criminalizing distribution of contraceptives to unmarried persons. Doctor allowed to raise rights of unmarried persons.
c. An Organization may sue for its members, if: (aka association standing)
i. Members would have standing to sue in their own right
ii. Interests are related to the organizations purpose
1. i.e. Sierra Club can bring an environmental claim.
iii. Individual member participation is NOT required (i.e. no individual damages requested - injunction)

Front 6

1. Requirement for Cases & Controversies
a. STANDING – (Proper Party?)

v. No generalized grievances

Back 6

P must NOT be suing solely as a citizen or taxpayer interested in having the government follow the law.

1. Exception: taxpayers have standing to challenge government expenditures as pursuant to federal statutes as violating the Establishment Clause (i.e. Federal aid to religious schools)
a. NOTE – For a taxpayer to have standing under this exception, Congress’s spending power must be involved.

2. Exception: P has standing to enforce a federal statute if she is within the “zone of interests” congress meant to protect.

Front 7

1. Requirement for Cases & Controversies
b. RIPENESS – (Avoiding Pre-mature litigation

Back 7

May the court grant pre-enforcement review of a statute or regulation: (2 part test)
i. Hardship that will be suffered without pre-enforcement review

ii. Fitness of the issues and the record for judicial review (does federal court have everything it needs to decide the question)
1. MBE Tip: request for declaratory judgment is a ripeness question
2. Ex. challenging statute before signed into law, or challenging a law after enactment but before it is applied to plaintiff

Front 8

1. Requirement for Cases & Controversies
c. MOOTNESS

Back 8

A live controversy must exist at ALL stages of litigation. If the matter has already been resolved, the case will be dismissed as moot.

i. Exceptions
1. Capable of repetition but evading review (Roe v. Wade-pregnancy)
2. Voluntary cessation – D halts offending practice but is free to resume at any time
3. Class action suits – As long as one member of the class has ongoing injury

ii. Ex. Parties die, events occur or lapse, change in law

Front 9

1. Requirement for Cases & Controversies

d. POLITICAL QUESTION DOCTRINE

Back 9

Federal Courts will NOT adjudicate political questions that have constitutionally committed to another branch or inherently incapable of judicial resolution.

i. "Republican form of government clause"

ii. Foreign Policy – Challenges of the President's conduct of foreign policy (i.e. the war is illegal)
1. Including presidents ability to rescind treaties, even though Senate must ratify

iii. Impeachment or Removal – Challenges to impeachment or removal process
1. i.e. whether persons elected meet age, residency or voting requirements.

iv. Partisan Gerrymandering – Challenges to Partisan Gerrymandering
1. Drawing Voting district lines to maximize votes for republicans / democrats
2. Can still bring a case for anything other than partisan purposes (Race)

Front 10

2. SUPREME COURT REVIEW (Generally MBE)

a. Original Jurisdiction

Back 10

Supreme Court has original and exclusive jurisdiction for suits between state governments, cases affecting ambassadors or public ministers.

Front 11

2. SUPREME COURT REVIEW (Generally MBE)

b. Writ of Certiorari

Back 11

i. Supreme Court has discretion to grant Writs of Certiorari.
1. ALL cases from State Courts and the U.S. Court of Appeals to the Supreme Court are by Writ of Certiorari

ii. Supreme Court MUST hear cases that come to it by appeal from decision of a three-judge federal district courts (appeals skip appellate review and goes to Sup. Ct.)

Front 12

2. SUPREME COURT REVIEW (Generally MBE)

b. Writ of Certiorari

c. Final Judgment Rule

Back 12

– Only hears cases after final judgment from the highest state court, a US Court of Appeals, or a three-judge federal district court. (Must be a “case or controversy.”)
i. In other words, generally NO interlocutory review

Front 13

2. SUPREME COURT REVIEW (Generally MBE)

b. Writ of Certiorari
d. State Law Grounds

Back 13

The Supreme Court will hear State Cases regarding the constitutionality of a federal statute, or whether a State Statute violates a federal law.

i. The Supreme Court will NOT hear the case if reversal of the federal law ground will NOT change the result because of a companion state law ground. (Can’t overrule state law decisions)

ii. MBE: Residents file injunction under state and federal environmental law. The State Supreme Court holds both violate, the Supreme Court cannot review, because reversal of fed law would not change the outcome.

Front 14

3. ELEVENTH AMENDMENT (Sovereign Immunity)

a. Rule

Back 14

Prevents Federal AND State courts from hearing suits involving citizens suing their own state or another state government. (look for an individual against a state)

Front 15

3. ELEVENTH AMENDMENT (Sovereign Immunity)

b. Exceptions

Back 15

i. Waiver is permitted, but MUST be express (consent)

ii. Section 5 of the 14th Amendment (i.e. Title VII)

iii. Plaintiff is the Federal Government suing a state

iv. Bankruptcy proceedings

Front 16

3. ELEVENTH AMENDMENT (Sovereign Immunity)

c. Suits against state officials are ALLOWED for:

Back 16

i. Injunctive relief (Even if it will require prospective payment from the state)

ii. Money damages to be paid by them personally

iii. May NOT be sued if the state treasury will be paying retroactive damages

Front 17

4. ABSTENTION

Back 17

a. Federal courts may NOT enjoin pending State Court proceedings except in cases of proven harassment OR prosecutions taken in bad faith.

b. Federal courts will temporarily abstain from resolving a constitutional claim when the disposition rest on an unsettled question of State Law.

Front 18

5. CONGRESS' Authority to Act

Back 18

a. Power must be based on an Express or Implied power

i. NO General Federal police power

ii. Exceptions: MILD – Military Bases, Indian Reservations, Federal Lands, District of Columbia

Front 19

5. CONGRESS' Authority to Act
b. Necessary and Proper Clause

Back 19

Congress has the power to make ALL laws necessary and proper (appropriate) for executing ANY power granted to ANY branch of the federal government.

i. The necessary and proper clause standing alone cannot support federal law. It must work in conjunction with another federal power.

Front 20

5. CONGRESS' Authority to Act
c. Taxing and Spending Power

Back 20

Congress may tax and spend for the general welfare

i. Taxing – Must raise some revenue

ii. Spending – Spending may be for ANY public purpose.

iii. Limited – Although the taxing and spending powers are broad, they are sill limited by all other constitutional provisions.

iv. MBE: If the answer states general welfare, then must be tax and spending or police power

Front 21

5. CONGRESS' Authority to Act
d. The Commerce Clause

Back 21

Congress may regulate the:

i. Channels of interstate commerce;
1. i.e. highways, waterways, internet

ii. Instrumentalities of interstate commerce and Person or Things in interstate commerce
1. ANYTHING crossing state lines – Trucks, planes, trains, phones, internet, stocks, insurance, radio signals, cattle, people.

iii. Economic Activities that have a Substantial Effect on interstate commerce
1. Intrastate Activity: If congress attempts to regulate intrastate activity the court will uphold the regulation if:
a. It involves economic or commercial activity. (i.e. growing wheat or medical marijuana), AND
b. Congress can conceive a rational basis that it has a cumulative effect on interstate commerce.
2. Non-Economic Activity – Congress can NOT regulate unless Congress can factually show that it has a Substantial Economic Effect on interstate commerce.
a. i.e. possessing a gun in a school zone, or gender motivated violence

Front 22

5. CONGRESS' Authority to Act
e. War and Treaty Powers

Back 22

Congress has the power to declare war, raise and support armies, and provide for and maintain an army.

i. Remedy the Effects – Economic Regulations during war and in the post war period to remedy the affects of war have been upheld.

Front 23

5. CONGRESS' Authority to Act
f. Power to Coin Money

Back 23

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

Front 24

5. CONGRESS' Authority to Act
g. Power Over Citizenship

Back 24

Congress may establish uniform rules of naturalization. This gives congress plenary powers over aliens.

Front 25

5. CONGRESS' Authority to Act
h. Fourteenth Amendment, Section 5 powers

Back 25

i. Congress may NOT create new rights or expand the scope of rights

ii. May act only to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedy the violations

Front 26

5. CONGRESS' Authority to Act
i. Tenth Amendment Limit on Congress Power

Back 26

States that all powers NOT granted to the United States, nor prohibited to the states, are reserved to the states or the people.

i. Congress cannot COMMANDEER state regulatory or legislative action
1. i.e. Cannot require States to legislate per federal standards, or require them to enforce federal law (against 3rd parties)
1. Note: Can induce action by attaching strings to grants, so long as the conditions are express and relate to the purpose of the spending program

ii. Congress MAY prohibit harmful commercial activity by state governments.
1. Ex: Prevent state from releasing or selling private information

Front 27

5. CONGRESS' Authority to Act
j. Delegation of Powers

Back 27

i. Legislative powers MAY be delegated so long as “intelligible standards” are set.
1. Generally Congress may Delegate ANY Legislative Power (no limit exists on Congress’ ability to delegate legislative power)
2. Exceptions – Powers uniquely confined in Congress (declare war, impeachment)
3. MBE Tip: Fed law is unconstitutional because it is in excess of delegation of legislative powers is usually wrong.

Front 28

5. CONGRESS' Authority to Act
ii. Legislative Vetos and Line-item Vetos

Back 28

ii. Legislative Vetos and Line-item Vetos are ALWAYS Unconstitutional
1. Congress MUST use:
a. Bicameralism – passage by both the House and Senate, AND
b. Presentment – Presenting the bill to the president for his signature or veto
2. President must sign or veto the bill in its entirety.

iii. Congress may NOT delegate executive powers to itself or its officers

Front 29

6. Federal EXECUTIVE Power
a. FOREIGN Policy

Back 29

i. Foreign Relations – President has paramount power to represent the U.S. in day to day foreign relations.

ii. Treaties – Agreements between the U.S. and foreign country that are negotiated by President and are effective when ratified by the Senate
1. Power – President has the power to ENTER into treaties with the consent of two thirds of the Senate.
2. Prevail over conflicting State Laws
3. Conflict between Treaty and Federal Law, the LAST one adopted controls
4. Conflict between Treaty and Constitution, treaty is INVALID

iii. Executive agreements
1. Agreement between U.S. and foreign country that is EFFECTIVE when signed by President and head of foreign country
a. i.e. NO Senate approval required
2. Can be used for ANY purpose that treaties can be used for
3. Prevail over conflicting State Laws,
4. NEVER prevail over conflicting Federal law or the Constitution

iv. Commander in Chief
1. President has broad powers as Commander-in-Chief to use American troops in foreign countries
2. MBE Tip: Lawsuit to challenge use of troops – dismissed as political question, otherwise, President wins.

Front 30

6. Federal EXECUTIVE Power
b. DOMESTIC Affairs
i. Appointment Power

Back 30

1. President appoints Ambassadors, Federal Judges, and Official Officers of the U.S. (Senate approves)

2. Congress may vest the appointment of inferior officers in the President, heads of departments, or in the lower federal courts
a. Inferior Officer – those that can be fired by an officer of the U.S. (i.e. U.S. attorneys can be fired by the Attorney General)

3. Congress may NOT give itself or its officers the appointment power
a. MBE Tip: Congress created new agency – gives appointment rights to President for some, to Congress for some, and to others - WRONG! (President must appoint)

Front 31

6. Federal EXECUTIVE Power
b. DOMESTIC Affairs

ii. Removal Power

Back 31

1. President – unless limited by statute, the President may fire (remove) any executive branch officer
a. For congress to limit removal, it must be an office where independence from the President is desirable AND
b. Congress cannot prohibit removal, it can limit removal to where there is good cause

2. Congress may provide statutory limitations on the president’s power to remove
a. Note – Can’t prohibit removal, but may limit removal to good cause.
b. Note – Congress can remove executive officers through impeachment.

Front 32

6. Federal EXECUTIVE Power
b. DOMESTIC Affairs

iii. Veto Power

Back 32

President has the power to veto acts of congress.

1. Override – If the president disapproves (vetoes) an act of congress, the act may still become law if the veto is overridden by a two-thirds vote of EACH house.

2. Pocket Veto – The president has 10 days to exercise the veto power. If he fails to act then the bill becomes law if congress is in session, but is automatically vetoed if Congress is NOT is session

3. Line Item Veto – ALWAYS unconstitutional.

Front 33

6. Federal EXECUTIVE Power
b. DOMESTIC Affairs

iv. Impeachment and Removal

Back 33

The president, vice president, federal judges and officers of the U.S. can be impeached from the office for treason, bribery, or for high crimes and misdemeanors.

1. Impeachment does NOT remove person from office

2. A majority vote of the House of Representatives is necessary to invoke the charges of impeachment. (*Impeachment does not remove)

3. 2/3 vote from Senate is necessary to convict and remove

Front 34

6. Federal EXECUTIVE Power
b. DOMESTIC Affairs

v. Executive Privilege / Immunity

Back 34

1. Privilege – President has executive privilege to keep certain communications secret. (National security secrets are given great deference by the courts)
a. Exception – In criminal proceedings, presidential communication will be available to the prosecution.

2. Immunity – President has Immunity from Civil Suits for money damages involving actions that occurred while in office.
a. NO immunity for actions that occurred prior to taking office

Front 35

6. Federal EXECUTIVE Power
b. DOMESTIC Affairs

vi. Power to Pardon

Back 35

those accused or convicted of FEDERAL crimes
1. Exceptions:
a. Impeachment – cannot be pardoned for the offenses that led to impeachment

2. Civil Contempt – pardon power doesn’t apply

3. MBE Tip: Federal ONLY! Criminal Liability ONLY!

Front 36

7. STATE POWER (FEDRALISM)

a. PREEMPTION

Back 36

(Supremacy Clause of Article VI) – The Supremacy Clause of Article VI provides that the Constitution, and Laws made pursuant to it, are the Supreme Law of the land.

i. Express preemption – Federal law says the states may NOT regulate.
1. MBE Tip: States may set stricter environmental standards than EPA, unless Congress prohibits

ii. Implied preemption
1. Conflict
a. Physical – If you cannot comply with both federal and State Laws, then federal law preempts
b. Obstacle – If the State law is an obstacle to the Federal Objective, then federal law preempts

2. Field – Federal interest is so dominant or federal regulation is so pervasive that it will preclude enforcement of state laws on the same subject.
a. Look for comprehensiveness or the federal scheme and creation of an agency to administer the laws. (Ex: Immigration laws)
b. i.e. congress has left NO room for the states to act

3. States may not tax or regulate federal government activity (inter-governmental immunity)
a. Unconstitutional to pay a state tax to federal treasury (i.e. a store owned and operated by federal government, state cannot tax)
b. Federal government never has to comply with state pollution controls)

Front 37

7. STATE POWER (FEDRALISM)

b. Dormant Commerce Clause & Article 4 Privileges and Immunities Clause
i. Privileges OR Immunities Clause of the 14th Amendment

Back 37

– No State may deny their citizens the privileges or immunities of national citizenship.

1. Interpreted as the right to travel, and the right to vote for federal officers.

2. Look for durational residency requirements.

3. MBE Tip: Always wrong answer unless it involves the right to travel

Front 38

7. STATE POWER (FEDRALISM)

b. Dormant Commerce Clause & Article 4 Privileges and Immunities Clause
ii. Dormant Commerce Clause

Back 38

STATE and LOCAL Laws are unconstitutional if they place Undue Burden on Interstate Commerce, even though Congress has not acted.

1. MBE – The dormant commerce clause is also called Negative implications of the commerce clause.

2. TEST – Look to whether the law is:
a. Facially Discriminatory – Discriminates against interstate commerce to protect local economic interests. (i.e. Tax Ohio $15 all other states $40)
i. Invalid unless it:
1. Furthers an Important Noneconomic State interest AND
a. Examples – health, safety, welfare
2. No Reasonable Nondiscriminatory alternative
ii. Market Participant Exception – A state or local government may prefer its own citizens when acting as a market participant.
1. Ex. Buying and selling, giving state subsidies. hiring labor or discounted tuition in State universities.
iii. Traditional Governmental Function – The SC is more lenient when the law favors a traditional governmental function. (waste disposal)
iv. Congressional approval – If congress acts to allow the burden then it is no longer dormant.
b. Non-Discriminatory Laws – i.e. Discriminate in purpose or effect
i. Balancing the state's interest against the burden on interstate commerce, AND
ii. Consider whether other alternatives could be less burdensome

Front 39

7. STATE POWER (FEDRALISM)

b. Dormant Commerce Clause & Article 4 Privileges and Immunities Clause
iii. Privileges AND Immunities Clause of Article IV – Prohibits discrimination by a State against Non-Residents. (3 Part test)

Back 39

1. Residents – The law MUST discriminate against Out-of-State Residents
a. Corporations and aliens cannot use this privilege (MAY use Dormant Commerce Clause or equal protection clause)

2. Fundamental Rights – Only Civil Liberties or Important Economic Activities are protected.
a. I.e. ability to earn a living, access to courts, emergency services, purchase property, medical care
b. NOT Elk hunting or recreational activities.

3. Substantial Justification – If the law discriminates against out-of-state residents with regard to a fundamental right, it violates the privileges and immunities clause UNLESS:
a. The State has a Substantial Justification for the discrimination
i. i.e. the non residents either cause or are part of the problem.
b. NO Less Restrictive Means to solve the problem.

Front 40

c. TAXATION

i. Federal Taxation on State Governments

Back 40

1. Congress may subject states to a regulation or taxation if the law or tax applies to both the public and private sector. (i.e. minimum wage laws)

2. Federal taxes applying ONLY to states must comply with the 10th amendment.
a. Note – May indirectly regulate through the spending power.

Front 41

c. TAXATION

ii. STATES may NOT tax or regulate federal government activity

Back 41

1. CANNOT pay state tax out of federal treasury

2. Exception – Nondiscriminatory, indirect taxes are permissible (i.e. States taxing federal employees)

3. MBE Tip: Federal government NEVER has to comply with state environmental standards

4. MBE Tip: A mom & pop store on federal land. States can Tax because a private person is paying the tax, not the federal government. (Can’t tax a gov owned store)

Front 42

c. TAXATION

iii. State Taxation (not usually on Bar)

Back 42

1. Must Not Discriminate – If States use their tax system to help in-state businesses it will violate the commerce clause. (Tax credits for in-state businesses)

2. A Non-Discriminatory tax will be valid if: (i.e. Not unduly burdensome)
a. Substantial Nexus – May only tax activities that have a substantial nexus to the state
b. Fairly Apportioned – State taxation must be fairly apportioned (Burden is on taxpayer to prove unfair apportionment)
c. Fair Relationship – Fairly related to the state services or benefits provided

Front 43

d. FULL FAITH and CREDIT

Back 43

i. Courts in one state must give full faith and credit to judgments in another state if:
1. Court that rendered judgment had jurisdiction over the parties and subject matter

2. Judgment was on the merits

3. Judgment is final
a. Ex. Judgment in California MUST be enforced in ANY other state so long as the judgment has jurisdiction, on the merits and is final.

Front 44

e. CONTRACTS CLAUSE

Back 44

No STATE shall impair the obligations of contracts
i. Applies ONLY to State or Local interference with existing contracts

1. NEVER applies to Federal Government
a. Note – flagrant contract impairment would violate the due process clause

2. NEVER applies to Future contracting rights

Front 45

e. CONTRACTS CLAUSE

ii. Interference with PRIVATE contracts must meet "intermediate scrutiny" (Modified)

Back 45

1. Substantially Impairment of a party's rights under an existing contract

2. Important and Legitimate Public Interest

3. Reasonable and Narrowly tailored means of promoting that interest

Front 46

iii. Interference with PUBLIC (government) contracts must meet strict scrutiny

Back 46

1. Necessary to achieve

2. Compelling government purpose

3. No less Restrictive Alternative (Means must be necessary)

Front 47

8. PROTECTIONS of CIVIL LIBERTIES

a. STATE ACTION

Back 47

Constitution only applies to government action, NOT private conduct:
i. EXCEPTIONS (When the constitution applies to private conduct)
1. Statutes – Congress, by statute, MAY apply constitutional norms to private conduct
a. 13th Amendment can be used to prohibit private race discrimination
i. MBE Tip: Discrimination never violates the 13th Amendment, only slavery! However, discrimination can violate laws created under the 13th Amendment, Section 2.

b. NOT 15th Amendment – prevents race and gender discrimination in voting.
i. Only where some state action is involved

c. Commerce Clause can be used to apply constitutional norms to private conduct. (i.e. Civil Rights Act enacted under the commerce clause)

d. NOT the 14th Amendment, Section 5 – Only used only to regulate state and local governments (Not private behavior

Front 48

8. PROTECTIONS of CIVIL LIBERTIES

a. STATE ACTION
2. Public Function

Back 48

If a private entity is performing a task Traditionally and Exclusively performed by the government.

c. Ex. Election primaries, company town, maybe prisons.

d. NOT a shopping center, education facility or public utility

Front 49

8. PROTECTIONS of CIVIL LIBERTIES

a. STATE ACTION
3. Entanglement

Back 49

government affirmatively Authorizes, Encourages, or Facilitates unconstitutional activity. (Mere acquiescence is not enough)

a. State Action When
i. Courts enforce racially restrictive covenants

ii. Administering a private discriminatory trust

iii. State leases premises to a discriminatory lessee and the State derives a benefit from the discrimination (Symbiotic Relationship)

iv. State provides textbooks to a school that racially discriminated

v. Discriminating private entity that regulates interscholastic sports within a state
b. NO State Action When
i. Granting a license and providing services to a private club

ii. Granting a monopoly to a Utility Company

iii. Heavily regulating an industry

iv. Private school that is over 99% funded by government fires a teacher because of her speech

v. NCAA (private entity that operates all over the country) orders the suspension of a basketball coach at a state university

vi. Private club with a liquor license from the state racially discriminates

Front 50

b. BILL of RIGHTS – Limits Federal power

Back 50

i. Applies directly ONLY to the federal government

ii. ALL rights have been applied to state and local government through its incorporation into the due process clause of the Fourteenth Amendment
1. Except (Rights that do NOT apply to state and local governments)
a. Second Amendment right to bear arms - Not just for militia but also for private use for self defense.
b. Third Amendment right to not to quarter a soldier
c. Fifth Amendment right to grand jury indictment in criminal cases
d. Seventh Amendment right to jury trial in CIVIL CASES
e. Eighth Amendment right against excessive fines

Front 51

c. EX POST FACTO

Back 51

clause does NOT apply in Civil Cases.
i. An ex post facto law is a law that:
1. Criminally punishes conduct that was lawful when it was committed
2. Increases punishment for a crime AFTER it was committed, OR
3. Reduces the Evidence required to convict after the crime was committed.

ii. Retroactive civil liability only need meet a rational basis test under Due Process

iii. MBE Tip: Usually a wrong answer with respect to the contracts clause.

Front 52

d. BILL of ATTAINDER

Back 52

a law that directs the punishment of a specific person(s)without a trial
i. MBE Tip: Usually appears in a wrong answer for a contract clause question

Front 53

e. TAKINGS CLAUSE

Back 53

(5th Amendment) – The government may take private property for public use if it provides just compensation (Applicable to the states via 14th Amendment)

Front 54

e. TAKINGS CLAUSE

i. Taking

Back 54

Critical issue is whether there has been a taking or merely a regulation

1. Possessory taking: Government confiscation or physical occupation of property is a taking (Gov placing a cable box on your property) (Exception – Emergencies)

2. Regulatory taking:
a. Denial of ALL economic Value is a taking
i. i.e. prohibition of any building on the land
ii. Nuisance control regulations are NOT takings
iii. Temporarily denying an owner use of property is NOT a taking so long as the government action is reasonable
iv. A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
v. Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed, otherwise it is a taking.
b. Decreasing Economic Value does NOT amount to a taking
i. Investment backed expectations test: (Balance)
1. The social goals of the regulation,
2. The diminution in value of the property, and
3. Owner’s reasonable expectations for the use of the property
ii. No right to the highest and best use of your property

3. Public Use – Broadly defined by the Supreme Court. Rationally related to a legitimate public purpose i.e. health, safety, welfare, economic, aesthetic (reasonable belief that the taking is a benefit for the public)

Front 55

e. TAKINGS CLAUSE

ii. Just Compensation

Back 55

– Measured in terms of loss to owner based on FM (gain to taker is irrelevant)

4. Compensate owner or terminate regulation and pay owner for damages that occurred while it was in effect

Front 56

f. LEVELS of SCRUTINY

i. Rational Basis

Back 56

– (1) Rationally related to a (2) Legitimate government purpose

1. Deferential to government

2. BOP – Challenger (plaintiff) must prove the law had NO conceivable legitimate purpose or law is not rationally related

3. *ALL non-suspect classifications – Age, disability, wealth, etc.

Front 57

f. LEVELS of SCRUTINY

ii. Intermediate Scrutiny

Back 57

(1) Substantially related to (1) Important government purpose (3) Means Narrowly Tailored (But NOT the least restrictive alternative)

1. BOP = Government

2. *Gender and Non Marital Children

Front 58

f. LEVELS of SCRUTINY

iii. Strict Scrutiny

Back 58

(1) Necessary to achieve a (2) Compelling government purpose (3) No less Restrictive Alternative (Means must be necessary)

1. Will look ONLY at the government’s actual objective (must be compelling)

2. BOP = Government

3. *Race, national origin, alienage, interstate travel, privacy, voting, 1st Amendment

Front 59

g. DUE PROCESS

i. PROCEDURAL Due Process

Back 59

Refers to the procedures the government must follow if deprives a person of life, liberty, or property. (2 Part Test – Deprivation / Procedures)

Front 60

g. DUE PROCESS

1. Has there been a DEPRIVATION of life, liberty or property?

Back 60

a. Liberty – A deprivation of Liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.

i. Examples:
1. Prisoners rarely have liberty interests
2. Institutionalize of child by parent requires screening by neutral fact finder
3. Harm to reputation alone is NOT a deprivation of liberty
4. Except in an emergency before an adult can be institutionalized there must notice and a hearing

b. Property – A deprivation of Property occurs if there is an Entitlement and that entitlement is NOT fulfilled
i. Entitlement – reasonable expectation to continue to receive a benefit (This is the new test)
1. Attendance at public school, welfare benefits, government employment, personal belongings, and realty.

c. Intentional Deprivation – Government negligence is not sufficient for a deprivation of due process. Generally there must be intentional government action or at least reckless action for liability to exist.
i. Emergency – However, in emergency situations, the government is liable under due process only if its conduct "shocks the conscience." (i.e. high speed chase not)
ii. Waiver – Individuals may expressly waive due process.

d. Government Must Create the Danger – Generally the government’s failure to protect people from privately inflicted harm does not violate.
i. Government is only liable if it deprives an interest or if it creates danger or if in government custody

Front 61

g. DUE PROCESS

2. If there IS a Deprivation, What procedures are required?

Back 61

a. Balancing Test
i. Individuals Interest
ii. Value of Safeguards – The ability of additional procedures to increase the accuracy of the fact-finding
iii. Government Interest (Efficiency and saving money)

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g. DUE PROCESS

3. Procedure Requirements
a. Prior Notice and Prior Hearing

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i. Welfare Benefits terminated
ii. Resident aliens being deported
iii. Before rights to a child are permanently removed
iv. Adult Commitment to Mental Institution

2. Child – Only a screening by a neutral fact finder is required for a parent to institutionalize a child
v. Termination of a parent’s custody rights
vi. Real property forfeiture (government seizure)
1. Except in emergency circumstances
2. Government can seize property in an illegal activity even if it has an innocent owner

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g. DUE PROCESS

3. Procedure Requirements
b. Prior Notice and a Post Hearing

Back 63

i. Social Security/Disability benefits terminated
ii. Public Employment (Tenure / Termination)

Front 64

g. DUE PROCESS

3. Procedure Requirements
c. Subsequent Notice and a Subsequent Hearing

Back 64

i. American citizen captured in foreign war and held as enemy combatant in U.S. (trial, jury, counsel)
ii. Personal Property forfeiture

3. Exception – Government may seize property from an innocent owner (co-owner) if used in criminal activity

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g. DUE PROCESS

3. Procedure Requirements
d. Notice and chance to explain

Back 65

i. Public education discipline / dismissal – notice of charges and chance to explain
1. corporate punishment schools – NO due process required

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g. DUE PROCESS

3. Procedure Requirements
e. Instructions to the jury and judicial review

Back 66

i. Punitive damage awards – grossly excessive punitive damages are a violation of due process

Front 67

h. SUBSTANTIVE Due Process

Back 67

(5th amendment) – Determines whether the government has a justified reason for taking away a person’s life, liberty or property. (Applies to the states via the 14th Amendment)

Front 68

h. SUBSTANTIVE Due Process

i. Non-Fundamental Rights

Back 68

Constitution provides minimal protection for economic liberties (Non-fundamental rights)

1. Rational basis test is used for laws affecting economic rights

2. Economic Rights – The right to practice a trade or profession

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h. SUBSTANTIVE Due Process

ii. Fundamental Rights

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Apply Strict Scrutiny to the following Rights:

1. PRIVACY (Strict Scrutiny)
a. Marry
b. Procreate
c. Custody of One's Children – State may create irrebuttable presumption that married woman's husband is biological father
d. Keep the Family Together – Includes extended family, but must be actually related (cousins, grandma)
e. Control the upbringing of one’s children
ii. Note – NO right to grandparent visitation over parents objections
f. Purchase and Use Contraceptives
g. Freedom to receive Obscene Reading Material – (Except child porno)
h. Engage in Private Homosexual Activity
i. Refuse Medical Treatment
i. Competent adults have the right to refuse medical treatment, even in life-saving situations
ii. State may require clear and convincing evidence that a person wanted treatment terminated before it is ended
iii. State MAY prevent family members from terminating treatment for another
iv. NO constitutional right to physician-assisted suicide
j. Abortion (NO longer Strict Scrutiny)
i. Prior to viability (fetus survival outside womb) – States may NOT prohibit abortions, but may regulate abortions so long as they do not create an UNDUE BURDEN on the ability to obtain an abortion.
ii. NOT and undue burden

2. 24 hr waiting period

3. Performed by licensed physicians

4. Prohibition of "partial birth abortions"

5. Parental notice and consent for unmarried minors
a. Alternative – Minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interest or that she is mature enough to decide for herself
iii. After Viability – States MAY prohibit unless necessary to protect the woman's life or health
iv. Note – Government has NO duty to subsidize abortions or provide abortions in public hospitals
v. Note – Spousal consent and notification laws are unconstitutional

2. 2nd Amendment – Right to bear arms for protection (no level of scrutiny identified)

3. TRAVEL (Strict Scrutiny)
a. Laws that prevent people from moving into a state
b. Durational residency requirements for receiving benefits
vi. 1 year residency requirement to get divorced
c. Note – Restrictions on foreign travel need meet only the rational basis test

4. VOTE (Strict Scrutiny)
a. Laws that DENY some citizens the right to vote
i. Durational residency requirements up to 50 days are valid
ii. NOT property ownership as a qualification to vote
b. The use of race in drawing election district lines
c. Counting uncounted votes without standards in presidential elections violates equal protection
d. One-person, One-vote must be met for all state and local elections
i. Exception – Appointed officials, officials elected at-large, or special purpose elections (i.e. water district) do not have to comply with one person one vote requirement.

5. EDUCATION – NO fundamental right to education (Rational Basis Test)

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2. EQUAL PROTECTION

Back 70

(5th Amendment) – Determines whether the government’s different treatment of people is justified. (Applies to the states via the 14th Amendment)

Front 71

2. EQUAL PROTECTION

a. Approach to equal protection questions

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a. Approach to equal protection questions
i. Did the government have intent to discriminate?
ii. What is the classification?
iii. What level of scrutiny should be applied?
iv. Does this law meet the level of scrutiny?

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2. EQUAL PROTECTION

b. INTENT TO DISCRIMINATE

Back 72

In order to trigger strict / intermediate scrutiny, you must prove that the government intended to discriminate. If NO intent can be shown apply Rational Basis. Intent may be shown by:
i. A law that is discriminatory on its face
ii. A discriminatory application of a facially neutral law
1. Ex: discriminatory use peremptory challenges based on race

iii. A discriminatory motive behind the law
1. Note – Showing a discriminatory effect alone is NOT enough.
2. Ex. Height/weight restrictions for police/fire-fighters (Gender)

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2. EQUAL PROTECTION

c. CLASSIFICATIONS
i. Race and National Origin

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1. Strict Scrutiny is applied
a. Necessary to achieve
b. Compelling government purpose
c. No less Restrictive Alternative (Means must be necessary)
2. Proving Racial Classification
a. Classification exists on the face of the law
b. If the law is facially neutral, must show discriminatory impact AND di