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159 Cards in this Set

  • Front
  • Back
Judicial Power - Article III Powers
1. INTERPRETATION of Constitution, federal laws, treaties, and admiralty and maritime laws

and

2. DISPUTES between states, states and foreign citizens, and diverse citizens
Judicial Power - Judicial Review
SC may review CONSTITUTIONALITY of acts of other branches and STATE ACTS (Supremacy Clause)
Judicial Power - Federal Courts - Article III Courts
Congress may delineate ORIGNAL and APPELLATE jurisdiction but BOUND by Article III standards for SM/PARTY JURISDICTION and CASE OR CONTROVERSY
Judicial Power - Federal Courts - Article I Courts
Congress may CREATE courts UNDER ARTICLE I (tax courts)

- NO life TENURE for judges
- may NOT assign Article III Jurisdiction
Judicial Power - Supreme Court Original Jurisdiction
All cases affecting AMBASSADORS, PUBLIC MINISTERS, CONSULS, STATE PARTY

*BUT Congress may give CONCURRENT JURISDICTION to lower federal courts EXCEPT BETWEEN STATES
Judicial Power - Supreme Court Appellate Jurisdiction
Over ALL CASES in fed. power.

Cases come to SCOTUS in two ways:
1. WRIT OF CERTIORARI: DISCRETION to hear appeals from state court where constitutionality of law is challenged or all federal court of appeals

2. APPEAL: MUST hear cases appealed by three-judge federal district court panels that grant or deny INJUNCTIVE RELIEF
Judicial Power - Justiciability

Advisory Opinions
NO advisory opinions. Must be a PRESENT HARM or THREAT of specific future harm.
Judicial Power - Justiciability

Ripeness
NO REVIEW of law BEFORE ENFORCEMENT unless Plaintiff will suffer HARM or IMMEDIATE THREAT of harm.
Judicial Power - Justiciability

Mootness
Controversy must exist at all states EXCEPT when CAPABLE OF REPETITION BUT EVADING REVIEW (e.g.: abortion or D voluntarily stops)
Judicial Power - Justiciability

Mootness - Class Actions
CLASS REPRESENTATIVE may continue to pursue action if claims of OTHER MEMBERS are STILL VIABLE
Judicial Power - Justiciability

Standing - Components
1. Injury: direct and personal but need not be economic

2. Causation: causal connection between injury and conduct complained of

3. Redressibility: decision in P's favor must be able to eliminate grivance
Judicial Power - Justiciability

Standing - Congressional Conferral
Congress CANNOT GRANT standing when NO INJURY

BUT federal statute can create interests, injury to which may confer standing
Judicial Power - Justiciability

Standing - Enforce Government Statutes
P has standing to enforce if within ZONE OF INTERESTS Congress meant to protect
Judicial Power - Justiciability

Standing - Rights of Others
Generally NO THIRD PARTY STANDING

But if P has standing, may assert rights of third party if:
1. Difficult for Third Party to assert own rights; or
2. Special relationship
Judicial Power - Justiciability

Standing - Organizations
Organization has standing if:

1. individual members would have standing;
2. injury is related to org purpose; and
3. individual participation not requires
Judicial Power - Justiciability

Standing - Citizenship
NO STANDING merely as CITIZENS but may have standing under 10th A. if federal action interferes with state powers as long as INJURY
Judicial Power - Justiciability

Standing - Taxpayer
NO STANDING to challenge gvt expenditures because interest too remote

**EXCEPT spending under ESTABLISHMENT CLAUSE
Judicial Power - Justiciability

Adequate and Independent State Grounds
SCOTUS will not exercise jurisdiction over state court judgment if based on adequate and independent state law grounds.
Judicial Power - Justiciability

Abstention
1. Unsettled questions of state law: temporarily abstain when constitutional claims rests on unsettled question of state law

2. Pending state proceedings: Federal Courts will not enjoin pending criminal proceedings EXCEPT in PROVEN HARASSMENT or prosecutions in BAD FAITH
Judicial Power - Justiciability

Political Questions
Federal courts will not decide political questions:

1. Constitutionally committed to another branch of government
2. inherently incapable of judicial resolution
Judicial Power - Justiciability

Eleventh Amendment Limitations
Federal Courts may not hear PRIVATE PARTY or FOREIGN GOVERNMENT claim AGAINST STATE GOVERNMENT

**does NOT apply to actions against LOCAL governments, actions by the US or other states, or bankruptcy proceedings
Judicial Power - Justiciability

Sovereign Immunity
Prevents state from being sued in state court, even on federal claims, unless state consents
Judicial Power - Justiciability

Eleventh Amendment - Exceptions
1. State Officers:
-actions to ENJOIN conduct that violates Constitution or federal law
-actions for DAMAGES PERSONALLY

2. Congress Removes Immunity as to Fourteenth Amendment
-must be unmistakably clear
Legislative Power - Enumerated and Implied Powers

Necessary and Proper Power
Make all laws necessary and proper for executing ANY POWER granted to ANY BRANCH of government

*cannot alone support legislation; must be with another federal power
Legislative Power - Enumerated and Implied Powers

Taxing Power
Tax upheld if REASONABLE RELATION TO REVENUE PRODUCTION or Congress has POWER TO REGULATE the activity taxed
Legislative Power - Enumerated and Implied Powers

Spending Power
May spend to provide for the COMMON DEFENSE and GENERAL WELFARE -- ANY PUBLIC PURPOSE

*can spend for but not directly regulate any public purpose
Legislative Power - Enumerated and Implied Powers

Commerce Power
EXCLUSIVE power to regulate foreign and interstate commerce.

Covers:
1. CHANNELS of interstate commerce;
2. INSTRUMENTALITIES of interstate commerce; and
3. Activities that have a SUBSTANTIAL EFFECT on interstate commerce (INTRASTATE activities count if IN AGGREGATE substantially affects)
Legislative Power - Enumerated and Implied Powers

War Powers
Declare war, raise and support armies, provide for an maintain navy
Legislative Power - Enumerated and Implied Powers

War Powers - Military Courts and Tribunals
- NO general power for JUDICIAL REVIEW of court-martial proceedings
- ENEMY CIVILIANS and SOLIDERS tried; Congress cannot deny HABEAS CORPUS to aliens absent meaningful substitute
- jurisdiction over ALL OFFENSES by American soliders at time of offense and when charged
- CIVILIANS may be tried only when actual warfare forces federal courts to shut down
Legislative Power - Enumerated and Implied Powers

Investigatory Power
Implied power; investigation must be expressly or impliedly authorized by congressional house
Legislative Power - Enumerated and Implied Powers

Property Power
DISPOSE of and MAKE RULES for territories and other properties of US.
Legislative Power - Enumerated and Implied Powers

No Federal Police Power
Congress has no general police power.

HOWEVER police-TYPE powers over DC, federal lands, military bases, and Indian reservations
Legislative Power - Enumerated and Implied Powers

Bankruptcy Power
NONEXCLUSIVE power to establish uniform rules for bankruptcy
Legislative Power - Enumerated and Implied Powers

Postal Power
EXCLUSIVE power to place reasonable restrictions on use of mail, but may NOT DEPRIVE any citizen or group general mail privilege
Legislative Power - Enumerated and Implied Powers

Power Over Citizenship
1. Exclusion of aliens: no right to enter US; but RESIDENT ALIENS must be given notice and hearing before they can be deported

2. Naturalization: EXCLUSIVE power; however, may not take away citizenship without consent
Legislative Power - Enumerated and Implied Powers

Admiralty Power
EXCLUSIVE unless Congress leaves maritime matters to state jurisdiction
Legislative Power - Enumerated and Implied Powers

Coin Money and Fix Weights and Measurements
Self - explanatory
Legislative Power - Enumerated and Implied Powers

Patent/Copyrights
Control issuance of patents and copyrights
Legislative Power - Delegation
May GENERALLY DELEGATE to executive or judicial branch if INTELLIGIBLE STANDARDS and power NOT UNIQUELY confined to Congress
Legislative Power - Speech and Debate Clause
Conduct in REGULAR COURSE of FEDERAL LEGISLATIVE PROCESS are immune from prosecution
Legislative Power - Congressional "Veto"
Legislative veto is an attempt to overturn executive agency action without bicameralism or presentment and is INVALID.
Executive Power - Domestic Powers

Appointment
Appoints AMBASSADORS, other PUBLIC MINISTERS AND CONSULS, JUSTICES of SUPREME COURT, and all OTHER OFFICERS OF US with advice and consent of Senate.

Congress may vest appointment of INFERIOR OFFICERS in President, courts, or head of department.

Congress itself may NOT appoint members with administrative or enforcement powers.
Executive Power - Domestic Powers

Removal by President
President can remove high level, purely executive officers at will. HOWEVER, Congress may provide STATUTORY LIMITATIONS.
Executive Power - Domestic Powers

Removal by Congress
Congress may remove executive officers ONLY by IMPEACHMENT.
Executive Power - Domestic Powers

Pardons
President may pardon FEDERAL OFFENSES except for IMPEACHMENT or CIVIL CONTEMPT.

*Power cannot be limited by Congress
Executive Power - Domestic Powers

Veto
- May veto an act; but overridden by 2/3 vote of each house
- 10 days to exercise; if not, vetoed if Congress not in sessions and law if Congress is in session
- LINE ITEM VETOES are UNCONSTITUTIONAL; must approve or reject total
Executive Power - Domestic Powers

Chief Executive
Power over internal affairs:

- if with express or implied AUTHORITY OF CONGRESS, authority at maximum and actions likely valid;
- if CONGRESS SILENT, action UPHELD UNLESS USURPS POWER of another branch
- if AGAINST EXPRESS WILL OF CONGRESS, little authority and action LIKELY INVALID
Executive Power - External Affairs Powers

War
NO power to DECLARE WAR but may act militarily in actual hostilities against US without Congress declaration
Executive Power - External Affairs Powers

Treaties
President has power to enter into treaties; effective upon ratification of 2/3 vote of Senate
Executive Power - External Affairs Powers

Treaties - Supremacy
- conflicting STATE LAWS are invalid
- conflicting FEDERAL LAWS -- last in time prevails
- conflicting CONSTITUTION - treaty is invalid
Executive Power - External Affairs Powers

Executive Agreements
Signed by the POTUS and head of foreign country; same purposes as treaties.

Do NOT require Senate consent.
Executive Power - External Affairs Powers

Executive Agreements - Supremacy
- preempt State laws
- Federal laws preempt
Executive Power - Executive Privilege
POTUS privilege to keep certain communications secret, esp. national security secrets.

EXCEPTION for PROSECUTION of CRIMINAL PROCEEDINGS where demonstrated need
Executive Power - Executive Immunity
POTUS is ABSOLUTELY IMMUNE from civil damages based on action within official responsibilities.

NO IMMUNITY for acts before taking office.

AIDES may share immunity if DISCRETIONARY AUTHORITY.
Executive Power - Impeachment
POTUS, VP, and all civil officers subject to impeachment for TREASON, BRIBERY, HIGH CRIMES, AND MISDEMEANORS.

MAJORITY vote by HOUSE to INVOKE charges.

TWO-THIRDS vote by SENATE to CONVICT and REMOVE
Federal/State Powers - Exclusive Federal Powers
1. Expressly limited by Constitution
2. Inherent: power can only be exercised by federal government
Federal/State Powers - Exclusive State Powers
Powers not delegated to federal government are reserved to the states.
Federal/State Powers - Concurrent Powers

Supremacy Clause
1. If CONFLICT, state law is INVALIDATED.

2. If PREVENTS FEDERAL OBJECTIVE, state law is INVALIDATED.

3. If Federal law OCCUPIES FIELD, state law is preempted even if non-conflicting
Federal/State Powers - Full Faith and Credit
Judgment must be recognized in sister states if:

1. Court had JURISDICTION over parties and subject matter;
2. Judgment on the MERITS; and
3. FINAL judgment
Intersovereign Litigation

US v. State
US can sue state without consent
Intersovereign Litigation

State v. US
Public policy forbids suing US without its consent. Congress can permit US to be sued.
Intersovereign Litigation

Federal Officer
- suit against officer deemed against US if judgment would be satisfied out of US Treasury

- specific relief granted if officer acted ULTRA VIRES
Intersovereign Litigation

State v. State
May sue without consent. SCOTUS has exclusive original jurisdiction.
No Commandeering
Congress may not require state executive officials to enforce federal laws.
State Taxation of Federal Instrumentalities
May not DIRECTLY tax without Congress consent.

NONDISCRIMINATORY, INDIRECT taxes ok if do not unreasonably burden.
Privileges and Immunities

Article VI - General
Article VI prohibits discrimination by state against NONRESIDENTS.

*does NOT apply to CORPORATIONS or ALIENS
Privileges and Immunities

Article VI - Rights Protected
Fundamental rights: commercial activities and civil liberties
Privileges and Immunities

Article VI - Exception
State law may be valid if SUBSTANTIAL JUSTIFICATION for different treatment.

NO LESS RESTRICTIVE MEANS.
Privileges and Immunities

Article VI and Commerce Clause
Consider together
Privileges and Immunities

Fourteenth Amendment
States may not deny citizens privileges or immunities of national citizenship

*NOT apply to CORPORATIONS
Federal/State Regulation - Interstate Commerce

Congress Powers
1. SUPERSEDE conflicting STATE LAW

2. May PERMIT state law that would otherwise violate or PROHIBIT state law that would otherwise be upheld
Federal/State Regulation - Interstate Commerce

Dormant Commerce Clause - General
Even where Congress has not acted, Commerce Clause restricts state regulation of interstate commerce.
Federal/State Regulation - Interstate Commerce

Dormant Commerce Clause - Discriminatory Regulations
Almost always invalid

EXCEPT:
1. important, noneconomic STATE INTEREST and NO REASONABLY NONDISCRIMINATORY ALTERNATIVES
2. State is a MARKET PARTICIPANT
3. Performance of a TRADITIONAL GOVERNMENT FUNCTION
Federal/State Regulation - Interstate Commerce

Dormant Commerce Clause - Nondiscriminatory Laws
If burdens interstate commerce, valid UNLESS BURDEN OUTWEIGHS a legitimate LOCAL INTEREST
Federal/State Regulation - Liquor

Intrastate
Interstate
Federal Power
INTRASTATE: STATE governments have WIDE LATITUDE over importations and conditions under which SOLD or USED

INTERSTATE: subject to Commerce Clause

FEDERAL POWER: may regulate through Commerce power or conditioning grants of money
State Taxation

Discriminatory Taxes
State taxes that DISCRIMINATE AGAINST INTERSTATE COMMERCE VIOLATE COMMERCE CLAUSE unless AUTHORIZED.
State Taxation

Nondiscriminatory Taxes
Valid if:

1. SUBSTANTIAL NEXUS to taxing state;
2. FAIR APPORTIONMENT according to rational formula; and
3. FAIR RELATIONSHIP to services provided by state
State Taxation

Use Taxes
VALID

Imposed on goods purchased out of state but used in state
State Taxation

Ad Valorem Property Taxes - General
Based on assessed value of property
State Taxation

Ad Valorem Property Taxes - Commodities in Interstate Commerce
Entirely exempt from state taxation

- begins when DELIVERED to INTERSTATE CARRIER or STARTS interstate JOURNEY
- BREAK does NOT destroy INTERSTATE CHARACTER unless intended to end
- ENDS when reaches destination -- THEN subject to tax
State Taxation

Ad Valorem Property Taxes - Instrumentalities
Validity depends on:
1. whether TAXABLE SITUS to taxing state; and
2. whether value has been PROPERLY APPORTIONED to amount of contact with taxing state
State Taxation

"Doing Business" Taxes: Privilege, License, Franchise, or Occupational
Generally valid if:

1. activity taxed has a SUBSTANTIAL NEXUS to taxing state;
2. FAIRLY APPORTIONED; and
3. FAIRLY RELATE TO SERVICES PROVIDED
Limitations on Government Power

Bill of Rights
First 10 Constitutional amendements limit FEDERAL power; but 14th A. DUE PROCESS applied almost all to state EXCEPT:
- 5th A. right to GRAND JURY indictment
- 7th A. right to JURY TRIAL in CIVIL case
Limitations on Government Power

Thirteenth Amended
Prohibits SLAVERY and INVOLUNTARY SERVITUDE.

Government can PROHIBIT racially discriminatory action by anyone, even PRIVATE CITIZEN.
Limitations of Government Power

Fourteenth and Fifteenth Amendments- General
14th: Prohibits STATES from depriving LIFE, LIBERTY, or PROPERTY without DUE PROCESS and EQUAL PROTECTION.

15th: prohibits FEDERAL and STATE from DENYING right to VOTE because of race or color.

Requires STATE ACTION.
Limitations on Government Power

Fourteenth Amendment - Section 5
Gives Congress power to adopt APPROPRIATE LEGISLATION to enforce.

CANNOT create NEW RIGHTS, only prevent violation of EXISTING RIGHTS.

Must identify PATTERN OF VIOLATION and adopt legislation that is CONGRUENT AND PROPORTIONAL.
Limitations on Government Power - Rights Over Individuals

Commerce Clause
Congress may PROHIBIT PRIVATE RACIAL DISCRIMINATION in activities that have SUBSTANTIAL EFFECT on interstate COMMERCE.
State Action Requirement

Two Ways
1. Exclusive PUBLIC FUNCTION: activities traditionally the exclusive prerogative of the state

2. Significant STATE INVOLVEMENT: state affirmatively facilitates, encourages or authorizes acts of discrimination
Retroactive Legislation

Contract Clause - Private and Public Contracts
Prohibits STATES from enacting laws that RETROACTIVELY IMPAIR contracts:

1) PRIVATE CONTRACTS -- INTERMEDIATE SCRUTINY
Invalid unless:
i) important and legitimate public purpose; and
ii) reasonably and narrowly tailors

2) PUBLIC CONTRACTS -- STRICT SCRUTINY
Stricter scrutiny, esp. if reduces contractual burdens on the state

**DOES NOT APPLY TO FEDERAL GOVERNMENT
Retroactive Legislation

Ex Post Facto Laws
STATE/FEDERAL may not crate law that RETROACTIVELY alters CRIMINAL OFFENSES or PUNISHMENTS:
- makes criminal an act that was INNOCENT WHEN DONE
- GREATER PUNISHMENT than when act was done
- REDUCES EVIDENCE required to convict
Retroactive Legislation

Bills of Attainder
STATE/FEDERAL may not pass LEGISLATIVE ACT that inflict PUNISHMENT WITHOUT judicial TRIAL.
Retroactive Legislation

Due Process
Retroactive laws must also pass due process.

If NOT FUNDAMENTAL right, only needs to pass RATIONAL BASIS.
Procedural Due Process

General
Intentional government taking of LIFE, LIBERTY, OR PROPERTY requires a FAIR PROCESS
Procedural Due Process

Meaning of "Liberty"
1. Loss of SIGNIFICANT FREEDOM of action
2. Denied FREEDOM provided by CONSTITUTION or STATUTE
Procedural Due Process

Meaning of "Property"
Must have LEGITIMATE CLAIM or ENTITLEMENT (includes public school, welfare, and sometimes government employment)
Procedural Due Process

Type of Process Required
3-part Balancing Test:

1. IMPORTANCE of INTEREST
2. Value of PROCEDURAL SAFEGUARDS
3. GOVERNMENT INTEREST in fiscal/administrative efficiency
Procedural Due Process

Access to Courts - Indigent Plaintiffs
FEES must be WAIVED when fee would DENY FUNDAMENTAL RIGHT
ex: marriage/divorce

*fees ok for nonfundamental rights
Taking Clause - General
Fifth Amendment prohibits PRIVATE PROPERTY to be taken for PUBLIC USE without JUST COMPENSATION
Taking Clause

Public Use
Public use requires the government action be RATIONALLY RELATED to a LEGITIMATE PUBLIC PURPOSE
Taking Clause - Taking vs. Regulation

Actual Appropriation/Physical Invasion
Almost always taking
Taking Clause - Taking vs. Regulation

Use Restrictions
1. TAKING if regulation leaves NO ECONOMIC USE
(but TEMPORARY NOT per se takin; Court considers relevant circumstances to determine whether fairness and justice require compensation)

2. Regulations that DECREASE VALUE are NOT TAKINGS if leave ANY ECONOMICALLY VIABLE USE
Taking Clause

Just Compensation
CONDEMNATION:
- Government pays land owner FAIR MARKET VALUE

REGULATION:
- Landowner can bring action for INVERSE CONDEMNATION; if TAKING, government can:
-- pay FMV; or
-- TERMINATE REGULATION and pay DAMAGES
Substantive Due Process and Equal Protection - Which to Use
SDP: limits ALL PERSONS to engage in activity

EP: treats PERSON or CLASS differently
Substantive Due Process and Equal Protection - Standard

Strict Scrutiny
(definition and when to use)
Government must prove law is NECESSARY to achieve a COMPELLING government purpose.

SDP -- FUNDAMENTAL RIGHTS: interstate travel, privacy, voting, and First Amendment

EP -- SUSPECT CLASS: race, national origin, alienage
Substantive Due Process and Equal Protection - Standard

Intermediate Scrutiny
(definition and when to use)
SUBSTANTIALLY related to an IMPORTANT government purpose

EP -- QUASI-SUSPECT CLASS: gender, legitimacy
Substantive Due Process and Equal Protection - Standard

Rational Bases
(definition and when to use)
Challenger must show it is not RATIONALLY related to a LEGITIMATE government purpose

SDP -- NON-FUNDAMENTAL right

EP -- NOT suspect or quasi-suspect class (age, disability, property)

*upheld unless arbitrary or irrational
Substantive Due Process

Irrebuttable Presumptions
May be IVALID if FACTS are PRESUMED against a person so that they are NOT QUALIFIED for an IMPORTANT BENEFIT
Equal Protection

Proving Discriminatory Classification
Three ways:

1. discriminatory ON ITS FACE;
2. DISCRIMINATORY APPLICATION of facially neutral law; and
3. DISCRIMINATORY MOTIVE behind law (ex: history of discrimination)
Equal Protection
Suspect Classifications - Race and National Origin

Benign Discrimination/Affirmative Action - Standard?
Subject to STRICT SCRUTINY
Equal Protection
Suspect Classifications - Race and National Origin

Affirmative Action - Past Discrimination
Compelling government interest in remedying PERSISTENT and IDENTIFIABLE past discrimination, not general past societal discrimination
Equal Protection
Suspect Classifications - Race and National Origin

Affirmative Action - No Past Discrimination
MAY have compelling interest in affirmative action but must be NARROWLY TAILORED

ex: may consider race in college admissions, but can't be defining factor
Equal Protection
Suspect Classifications - Alienage

Federal Classifications
NOT subject to STRICT SCRUTINY because of plenary power over aliens

VALID UNLESS ARBITRARY or UNREASONABLE
Equal Protection
Suspect Classifications - Alienage

State/Local Classifications
STRICT SCRUTINY UNLESS participation in STATE GOVERNMENT (voting, jury service, police officers, public school teachers), then RATIONAL BASIS
Equal Protection
Suspect Classifications - Alienage

Undocumented Aliens
NOT SUSPECT classification, apply RATIONAL BASIS EXCEPT public education to undocumented children
Equal Protection
Quasi-Suspect Classifications - Gender

Women
INTENTIONAL discrimination AGAINST women generally INVALID.

Classifications BENEFITTING women generally VALID when REMEDYING PAST DISCRIMINATION.
Equal Protection
Quasi-Suspect Classifications - Gender

Men
INTENTIONAL discrimination AGAINST men generally INVALID

*SOME laws pass intermediate scrutiny (statutory rape, draft)
Equal Protection
Quasi-Suspect Classifications - Legitimacy
INTERMEDIATE SCRUTINY

Discrimination to PUNISH illegitimate children is INVALID
*but may require that parenthood be established
Fundamental Rights - Privacy

List the 7 Fundamental Rights
1. Marriage
2. Contraceptives
3. Abortion*
4. Obscene Reading Material
5. Family (extended family together)
6. Rights of Parents (care, custody, and control of children)
7. Intimate Sexual Conduct
Fundamental Rights - Privacy

Abortion - Pre-Viability
State cannot regulation if it creates an UNDUE BURDEN on right to obtain an abortion.
Fundamental Rights - Privacy

Abortion - Post-Viability
May regulate but cannot prohibit if necessary to protect health or safety
Fundamental Rights - Vote

Residency Requirements
State MAY impose REASONABLE residency requirements

*Congress may override for Presidential elections with own requirements.
Fundamental Rights - Vote

Dilution - One Person, One Vote
Congress: must use ALMOST EXACT MATHEMATICAL EQUALITY for state districts

State/Local: must not be off by a few percentage points
Fundamental Rights - Vote

Gerrymandering
CANNOT use RACE as PREDOMINANT FACTOR in drawing boundaries
Fundamental Rights - Travel

Interstate Travel
FUNDAMENTAL right to MIGRATE state to state and be TREATED EQUALLY, though some residency requirements are ok

(ex: 30 day to vote; one year to divorce)
Fundamental Rights - Vote

International Travel
NOT a fundamental right; RATIONAL BASIS applies
Freedom of Speech - Government Speech
First Amendment restricts regulation of private speech; government can express its views and aid private views

Funding of speech generally upheld if meets rational basis.
Freedom of Speech - Content vs. Conduct
CONTENT: restrictions based on content must meet INTERMEDIATE SCRUTINY; presumptively unconstitutional

CONDUCT: restrictions on conduct ok if content-neutral TIME, PLACE AND MANNER restrictions
Freedom of Speech - Reasonableness of Regulation
Regulation is UNCONSTITUTIONAL if:

1. OVERBROAD: punishes SUBSTANTIAL AMOUNT of PROTECTED SPEECH
2. VAGUE: fails to give reasonable notice of what is prohibited
3. UNFETTERED DISCRETION: gives officials UNBRIDLED DISCRETION without DEFINITE STANDARDS
Freedom of Speech - Symbolic Speech
SYMBOLIC ACTS intended to COMMUNICATE an idea are protected; ALTHOUGH the government MAY REGULATE if IMPORTANT interest INDEPENDENT OF SPEECH
Freedom of Speech - Public Forums and Designated Public Forums
Government MAY REGULATE speech on public property OPEN to speech activities and which the government DESIGNATES for SPEECH ACTIVITIES AS LONG AS:

1. content neutral
2. narrowly tailored to important government interest
3. alternative channels of communications
Freedom of Speech - Limited Public Forums and Nonpublic Forums
MAY REGULATE to reserve forum for intended use if:

1. viewpoint neutral; and
2. reasonably related to a legitimate government purpose
Freedom of Speech - Content Regulations

Standard
STRICT SCRUTINY -- necessary to achieve a compelling government action
Freedom of Speech - Content Regulations

Incitement
Speech can be burdened if it creates a CLEAR AND PRESENT DANGER of IMMINENT LAWLESS ACTION.

*lawless action must be likely and speaker must have intended
Freedom of Speech - Content Regulations

Fighting Words
May burden TRUE THREATS or ABUSIVE WORDS likely to INCITE IMMEDIATE PHYSICAL RETALIATION

**ok in theory, but usually vague or overbroad
Freedom of Speech - Content Regulations

Obscenity - Protected? and Define
NOT PROTECTED

1. Appelas to PRURIENT INTEREST (by community standard)
2. PATENTLY OFFENSIVE (by community standard); and
3. LACKS SERIOUS VALUE (by national standard)
Freedom of Speech - Content Regulations

Defamatory Speech - Public Official or Public Concern
Plaintiff must prove defamation plus FALSITY and MALICE
Freedom of Speech - Content Regulations

Commercial Speech
Generally protected if TRUTHFUL, not relating to UNLAWFUL ACTIVITY or FALSE OR MISLEADING

Regulate if:
1. serves a SUBSTANTIAL GOVERNMENT INTEREST;
2. DIRECTLY ADVANCES interest; and
3. NARROWLY TAILORED to serve interest (reasonably fit)
Freedom of Speech - Prior Restraints
Government must show SPECIAL SOCIETAL HARM:

1. Standards NARROWLY DRAWN, REASONABLE AND DEFINITE;
2. Injunction must be PROMPTLY SOUGHT; and
3. PROMPT AND FINAL DETERMINATION of validity
Freedom of Press - Access to Trials
First Amended guarantees right, including voir dire and pretrial unless judge rules otherwise.

May be OUTWEIGHED by OVERRIDING INTEREST
Freedom of Association
Freedom to associate with ideological groups; implied from explicit rights.

Government may inhibit if COMPELLING government interest unrelated to suppression of ideas and uses LEAST RESTRICTIVE MEANS.
Freedom of Association - Electoral Process

Election Laws Affecting Speech - Standard
BALANCING TEST:

If restriction on First Amendment is SEVERE, apply STRICT SCRUTINY.

If restriction is reasonable and nondiscriminatory, usually upheld.
Freedom of Association - Electoral Process

Limits on Contributions - Standard and Acceptable Limits
INTERMEDIATE SCRUTINY.

MAY LIMIT contribution amount to a CANDIDATE; may NOT LIMIT amount to support to oppose BALLOT REFERENDUM
*except for groups formed to participate in the political debate
Freedom of Association - Electoral Process

Limits on Expenditures
MAY NOT limit amount a candidate can spend or amount a person can expend to get a candidate elected (provided not directly to candidate)
Freedom of Association - Electoral Process

Core Political Speech
Only upheld if STRICT SCRUTINY.
Freedom of Association - Public Employment

Restraints on Conduct
IF Government first employee for speech:
-Matter of PUBLIC CONCERN: balance rights as citizen with interest in efficient performance of public service
-NOT PUBLIC CONCERN: defer to employer's judgment concerning whether speech was disruptive

**EXCEPTION: MAY PUNISH speech when PURSUANT TO OFFICIAL DUTIES
Freedom of Association - Public Employment

Participation in Political Campaigns
Government MAY PROHIBIT EXECUTIVE branch employees from taking active part in political campaigns
Freedom of Association - Public Employment

Honoraria
BAN on honoraria VIOLATES when applied to RANK AND FILE employees
Freedom of Association - Public Employment

Employment Actions and Party Affiliation
NO employment actions based on party affiliation EXCEPT POLICYMAKING positions where affiliation is relevant
Freedom of Association - Public Employment

Loyalty Oaths
Acceptable, as long as NOT OVERBROAD OR VAGUE
Freedom of Association - Public Employment

Disclosure of Associations
May not force disclosure of organizational membership in exchange for employment or benefit

May inquire into activities relevant to employment
First Amendment - School Sponsorship of Extracurricular Clubs
NOT STRICT SCRUTINY.

Regulation must be VIEWPOINT NEUTRAL and REASONABLY RELATED TO A LEGITIMATE PUBLIC INTEREST.
Freedom of Religion - Free Exercise Clause

No Punishment of Beliefs
Prevents:
- requiring RELIGIOUS OATH for government employees
- EXCLUDING CLERICS from holding public office
- declaring RELIGIOUS BELIEF FALSE
Freedom of Religion - Free Exercise Clause

General Conduct Regulations
Free Exercise Clause PROHIBITS INTERFERENCE with BELIEFS but does NOT prohibit general regulation of CONDUCT.

EXCEPTIONS:
1. UNEMPLOYMENT BENEFITS for people who quit for religious reasons
2. AMISH exempted from law requiring children to attend school until 16
Freedom of Religion - Establishment Clause

Sect Preference
Laws showing PREFERENCE for one religion over another are INVALID UNLESS NARROWLY TAILORED to COMPELLING INTEREST

*existence of any compelling interest unlikely
Freedom of Religion - Establishment Clause

No Sect Preference - Lemon Test
Law is valid if:

1. SECULAR PURPOSE;
2. PRIMARY EFFECT neither advances nor inhibits religion; and
3. does not produce EXCESSIVE GOVERNMENT ENTANGLEMENT
Freedom of Religion - Establishment Clause

Lemon Test Application
Financial Benefit -- Recipient-Based Aid
May aid defined class if defined without reference to religion.
Freedom of Religion - Establishment Clause

Lemon Test Application
Financial Benefit -- Colleges and Hospitals
Upheld if program REQUIRES aid be used for NONRELIGIOUS PURPOSES and RECIPIENT AGREES
Freedom of Religion - Establishment Clause

Lemon Test Application
Financial Benefit -- Grade and High Schools
Usually pass secular purpose, but may fail for other reasons
Freedom of Religion - Establishment Clause

Lemon Test Application
Religious Activities in Public Schools
School SPONSORED religious activity is INVALID; but school ACCOMMODATION is VALID

*If allows public to use space, cannot deny to religious groups simply because of religion.