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171 Cards in this Set

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  • Back
For a case to be justiciable, P must have:
To be justiciable, plaintiff must have standing, case must be ripe, case cannot be moot or political question.
To have Standing P must have:
To have standing, plaintiff must have actual/imminent injury, show causation (D caused injury), have redressabilty (favorable court decision likely to remedy harm).
P's injury must show:
P’s injury must show that she has been or will be directly and personally injured by the allegedly unlawful government action, which affects her rights under the Constitution or federal law.
P cannot have third party standing except:
Plaintiff cannot have third party standing, except:
a. If there is a close relationship between the claimant and the third party. Doctor-patient, parent-child
b. A party is unlikely able to assert own rights – convicted person on death row.
c. An organization has standing to sue if
i. members would have standing to sue (there is an injury to the organizations members)
ii. the interests are germane to the organization’s purpose
iii. individual member participation in the suit is not required.
An organization has standing to sue if:
c. An organization has standing to sue if
i. members would have standing to sue (there is an injury to the organizations members)
ii. the interests are germane to the organization’s purpose
iii. individual member participation in the suit is not required.
No Citizenship standing:
No Citizenship standing – people have no standing merely as “citizens” to claim that government action violates federal law or the Constitution.
a. A person may have standing to allege that federal action violated the 10th Amendment by interfering with powers reserved to the states as long as the person has a redressable injury.
Taxpayer Standing:
Plaintiff cannot have taxpayer standing, except: challenging expenditures violating Establishment Clause.
Ripeness – Immediate threat of harm A plaintiff is not entitled to review of a statute or regulation before its enforcement unless the P will suffer some harm or immediate threat of harm. To have ripeness, a court will decide whether federal court grants pre-enforcement review of statute or regulation by balancing
Hardship suffered without pre-enforcement review: greater the hardship the more likely to review
2. Fitness of the issues and the record for judicial review: does court have all it needs to decide the case.
To avoid mootness:
To avoid mootness: a real controversy must exist at all stages of review, otherwise case is dismissed.
Exceptions to mootness:
1. Wrong capable of repetition yet evading review
2. Voluntary cessation: defendant halts, but is free to resume challenged action at any time
3. Class action suits: a class representative may continue to pursue a class action after the representative’s controversy has become moot if claims of other class members are still viable.
Ripeness vs. mootness:
Ripeness bars consideration of claims before they have been developed; Mootness bars their consideration after they have been resolved.
Political Question:
Issues that are constitutionally committed to another branch of government or are inherently incapable of judicial resolution
1. Challenges to republican form of government
2. Challenges to president’s conduct of foreign policy
3. Challenges to impeachment and removal process
4. Challenges to political gerrymandering.
Advisory opinions:
There are no advisory opinions
1. There must be a specific present harm or threat of specific future harm.
Declaratory relief is allowed if:
Declaratory relief is allowed if there is an actual dispute between parties having adverse legal interests
a. Engaged in or will be engaged in specific conduct
b. Challenged action posses a real and immediate danger to their interests
c. The federal courts will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.
Adequate and Independent State Grounds
Adequate and Independent State Grounds the SC will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds – even if federal issues are involved.
1. State law grounds are adequate if they are fully dispositive of the case.
2. They are independent if the decision is not based on federal case interpretation of identical federal provisions.
1. A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.
2. Federal courts will not enjoin pending state criminal proceedings (in some cases civil) except in cases of proven harassment or bad faith prosecutions.
Article III Courts – Established by Congress, The Federal judicial power extends to cases involving:
The Federal judicial power extends to cases involving:
i. Interpretation of the Constitution, federal laws, treaties and admiralty and maritime laws and
ii. Disputes between states, states and foreign citizens, and citizens of diverse citizenship.
Supreme Court Power of Judicial Review
The Supreme Court may review the constitutionality of acts of other branches of the Federal government. It may also review state acts pursuant to the Supremacy clause.
Jurisdiction of the Supreme Court:
SC has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.
Supreme Court Review Cases come to the SC by:
1. Writ of Certiorari – Most cases The Supreme Court has complete discretion to hear cases that come to it by certiorari. Those types of cases are:
a. Cases from state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (ii) a state statute allegedly violated federal law.
b. All cases from federal courts of appeals.
2. Appeal – Rare cases
a. The SC must hear cases that come to it by appeal. These cases are confined to decision by three-judge federal district court panels that grant or deny injunctive relief.
3. Final Judgment Rule: SC hears case only after final judgment of higher state court, court of appeals or 3-judge federal district court
4. SC Review of State Court Decision: Must not be independent and adequate state law ground of decision.
11th Amendment Limit on Federal Courts:
11th Amendment Limit on Federal Courts: Is a judicial bar that modifies judicial power by prohibiting a federal court from hearing a private party’s or foreign governments claims against a state government.
What is barred by the 11th Amendment Limit on Federal Courts:
a. Actions against state governments for damages;
b. Actions against state governments for injunctive or declaratory relief where the state is a named party.
c. Actions against state governments officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is a quiet title action that would divest the state of ownership of land
d. Actions against state government officers for violating state law.
Sovereign Immunity
The Court has held that the following are barred by the doctrine of sovereign immunity:
a. Suits against a state government in state court, even on federal claims without the defendant state’s consent and
b. Adjudicative actions against state and state agencies before federal administrative agencies.
What is not barred by Sovereign Immunity:
a. Actions against local governments
b. Actions by the US government or other state governments
c. Discharges in Bankruptcy court.
Exceptions to 11th Amendment Limit on Federal courts:
a. Certain actions against state Officers: actions against state officers for injunctions from violating federal law or to comply with constitutional mandates, monetary damages from officer out of their own pocket, for payments of retroactive damages paid from the state treasury.
b. State consents to suit in federal court. State must clearly waive its 11th Amendment immunity expressly and unequivocally.
c. Congressional removal of immunity pursuant to federal laws adopted under §5 of the 14th Amendment.
Exam Note: The 11th Amendment will prohibit a federal court from hearing a claim for damages against a state government (but not officers) unless:
a. The state has consented to allow the suit in federal court
b. The P is the United States or another state or
c. Congress has clearly granted federal courts the authority to hear a specific type of damage action under the 14th Amendment.
Federal Legislative Power: (Congress Power)
Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government.
Necessary and Proper Power:
Necessary and Proper Power: Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.
Exam Tip: Necessary and Proper Clause standing alone -
The Necessary and Proper Clause standing alone cannot support federal law. It must work in conjunction with another federal power.
No Federal Police Power except:
(MILD) over Military bases, Indian reservations, federal Lands & territories, District of Columbia.
Commerce clause:
Congress has the exclusive power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either:
1. regulate the channels of interstate commerce
2. regulate the instrumentalities of interstate commerce or
3. regulate activities that have a substantial effect on interstate commerce.
Cumulative Impact doctrine:
Congress may regulate entirely intrastate activities that have a cumulative impact on interstate commerce.
Affectation doctrine:
Congress may regulate any activity, even intrastate activity, that in the aggregate has a substantial economic effect on interstate commerce.
Conflicting state laws in regulating interstate commerce:
When Congress regulates interstate commerce, conflicting state laws are superseded and even non-conflicting state/local laws may be preempted.
Spending Power:
Congress may spend for the common defense and the general welfare (any public purpose).
Taxing Power:
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 power to regulate the activity taxed.
Taxing exports to foreign countries
Neither congress nor the states can tax exports to foreign countries.
Property Power:
Congress has power to dispose of and make rules for territories and other properties of the US, subject to the limitation that federal takings must be for some purpose of effectuating an enumerated power.
Power over Citizenship:
Congress may establish uniform rules of naturalization. Congress has plenary power over aliens.
Resident aliens are entitled to:
Resident aliens are entitled to notice and a hearing before they can be deported.
Congress has exclusive power over naturalization and denaturalization, however:
Congress has exclusive power over naturalization and denaturalization. However Congress may not take away the citizenship of any citizen – native-born or naturalized – without his consent.
War Powers: Economic regulations, Military courts and tribunals
Congress has the power to declare war, raise and support armies, provide for and maintain a navy
1. Economic regulations during and after wartime to remedy wartime disruptions have been upheld.
2. Military courts and tribunals – Congress is authorized to make rules for the government and regulation of armed forces.
Delegation of Legislative Power:
Generally, Congress may delegate legislative power to the executive branch. However, it may not appoint or delegate executive power to itself.
Speech and Debate Clause:
legislators are immune from prosecution for conduct that occurs in the regular course of federal legislative process and motivation behind that conduct.
Exception to Speech and Debate Clause:
Except: Immunity does not cover bribes, speeches outside Congress or the republication in press release or newsletter of a defamatory statement originally made in Congress.
Enforcement Power (§5 of 14th Amendment):
Congress may not create new rights/expand scope of rights.
1. May act only to: A) prevent/remedy violation of already existing rights; and B) so long as law is ‘proportionate’ and ‘congruent’ to remedying constitutional violation.
Legislative veto:
Legislative veto of executive actions is invalid. For Congress to act there must always be bicameralism (passage by H & S) and presentment (president to sign/veto).
10th Amendment limitations on Congressional powers:
All powers not delegated to federal government and not prohibited to the states are reserved to the states or the people.
10th Amendment limitations - Congress cannot:
Congress cannot compel state regulatory or legislative action, but can add conditions to grants as long as they are expressly stated and relate to the purpose of the spending program.
10th Amendment limitation - Congress may:
Congress may prohibit harmful commercial activities by state governments.
Creation of a treaty:
The President may negotiate a treaty, but the Senate must ratify the treaty by 2/3s vote.
If a treaty conflicts with state laws:
If treaty conflicts with state laws the treaty prevails.
If a treaty conflicts with a federal statute:
If a treaty conflicts with a federal statute last in time controls.
If a treaty conflicts with the Constitution:
If a treaty conflicts with the Constitution the treaty is invalid.
Creation f an executive agreement:
The President may make an executive agreement without Senate approval.
If the Executive Agreement conflicts with state laws:
If the Executive Agreement conflicts with state laws the Executive Agreement prevails.
If the Executive Agreement conflicts with a federal statute:
If the Executive Agreement conflicts with a federal statute the Executive Agreement is invalid.
If the Executive Agreement conflicts with the Constitution:
If the Executive Agreement conflicts with the Constitution the Executive Agreement is invalid.
What is the Presidents power as commander in chief as it relates to American troops?
The President has broad powers as commander-in-chief to use American troops in foreign countries. But no power to declare war.
President's Appointment Power
The President appoints ambassadors, federal judges, and officers of the United States; the Senate approves these appointments.
Congress may vest appointment of:
Congress may vest the appointment of inferior officers in the President alone, and heads of departments or lower federal courts; Congress may not give itself or its officers the appointment power of executive agencies.
Removal Power:
The President may fire any executive branch officer.
Congress may limit removal:
Congress may limit removal where independence from the President is desirable; Congress may only limit removal where there is good cause. Congress may remove executive officers only through the Impeachment process.
Who may be Impeached and for what crimes?
President, VP, federal judges, officers of the US can be impeached and removed for treason, bribery, high crimes and misdemeanor.
Requirement for impeachment:
Impeachment requires majority vote of House to invoke charges, 2/3 vote in the Senate is necessary to convict and remove from office.
Veto Power: If the President vetoes an act of Congress:
If the President vetoes an act of Congress the act may still become law if overridden by 2/3 vote of each house.
Line-Item Veto:
A line-item veto is unconstitutional.
Pocket Veto:
The President has 10 days to exercise veto power. If he fails to act within the time a bill is automatically vetoed if Congress is not in session. If Congress is in session the bill becomes law.
Presidential Privileges and immunities:
The President has absolute immunity in civil suits for money damages while in office. No immunity for actions prior to taking office
b. The President has executive privileges for presidential papers and conversations, but must yield to important government interests (criminal proceedings).
Pardon Power:
The President has pardon power for those accused/convicted of federal crimes (NOT civil/state crimes). Pardon power cannot be limited by Congress.
Power as Chief Executive:
a. If POTUS acts with express or implied authority of Congress his authority is at its maximum and his actions likely are valid.
b. If POTUS acts where Congress is silent his actions will be upheld unless it usurps the power of another governmental branch
c. If POTUS acts against the express will of Congress he has little authority and his action is likely invalid.
Supremacy Clause:
Federal law may supersede or preempt local laws.
1. If a state law conflicts with federal law, the state law will be invalidated.
2. If a state law prevents achievement of a federal objective it will be invalidated.
Federal law preempts state law where federal statute explicitly states federal law is exclusive in the field (express preemption) or if both are mutually exclusive, state law impedes a federal objective (implied preemption).
Intergovernmental Immunity (taxing):
States may not tax/regulate federal government activity. Unconstitutional to pay state tax out of federal treasury; states can’t regulate federal government if significant burden on federal activity.
Dormant Commerce Clause:
If Congress has not enacted laws regarding the subject, state/local government may regulate activities that are purely local if:
1. the law does not discriminate against interstate commerce to benefit local interests and
2. the law does not place an undue burden on interstate commerce.
Exception to DCC: A discriminatory state law will be invalid unless:
A discriminatory state law will be invalid unless it furthers an important state interest and there are no reasonable nondiscriminatory alternative OR the state is a market participant (e.g. when buying or selling, hiring labor or giving subsidies; vs. a market regulator).
Exception to DCC: A non-discriminatory state law will be invalid if:
If a non-discriminatory state law burdens interstate commerce it will be invalid if the burden on commerce outweighs state’s interest. The court will apply less restrictive alternative test.
Article 4 Privileges & Immunities Clause:
Article 4 Privileges & Immunities Clause prohibits arbitrary discrimination against citizens of another state unless it is necessary to achieve an important government interest.
1. Only “fundamental rights,” those involving civil liberties and important economic activities (e.g., pursuit of livelihood) are protected.
2. Corporations and aliens are not protected by this clause.
3. On exam, also consider Commerce Clause, EPC, Contracts Clause.
14th Amendment Privileges & Immunities Clause:
States may not deny their citizens the Privileges & Immunities of national citizenship (e.g. right to vote for federal officers, right to interstate travel, right to petition Congress for redress of grievances).
1. Does not protect corporations.
State Taxation of Interstate Commerce:
State Taxation of Interstate Commerce must not be used to help in-state businesses at expense of out-of-staters.
1. Only tax business/activities that have substantial nexus to state; and
2. State taxation of interstate business must be fairly apportioned (tax is based on extent of taxable activity/property in the state).
Full Faith & Credit Clause:
Courts in one state must give full faith and credit to judgments of courts in another state if the court had jurisdiction, judgment was on the merits, and judgment is final.
State Action:
Constitutional protections only apply to governmental actions (not private conduct), except where the public function doctrine or the entanglement exception apply.
Public Function doctrine:
State action can be found in actions of individuals/entities that are performing a task traditionally and exclusively done by the government.
Significant state involvement exception:
State action also exists wherever a state affirmatively facilitates, authorizes, encourages or authorizes unconstitutional/discriminatory conduct by its citizens. (mere acquiescence by the state in private conduct is not enough).
Congress can prohibit discrimination without showing state action:
Congress can prohibit discrimination without showing state action under the 13th Amend Enabling Clause and the Commerce Clause.
Bill of Rights:
Bill of rights (the first ten Amendments of the constitution) applies directly only to federal government; however it applies to state/local governments through incorporation into the Due Process Clause of the 14th Amendment.
Rights applicable to the states:
All 1st Amendment guarantees, 2nd Amend right to bear arms, 4th Amend unreasonable search and seizure, 5th Amend privilege against self incrimination, compensation for taking or property for public use, 6th Amend speedy and public trial by impartial jury, notice and right of confrontation, compulsory process, and right to legal counseling all serious criminal proceedings, and 8th Amend cruel and unusual punishment, excessive bail and excessive fine provisions are assumed.
Rights not applicable to the states:
3rd Amend prohibition against quartering troops in person’s home; 5thAmend right to grand jury indictment in criminal cases; 7th: right to jury trial in civil cases; 8th: right against excessive fines.
13th Amendment
13th Amendment prohibits slavery and involuntary servitude. Under the 13th Amendment’s Enabling Clause, Congress can prohibit racially discriminatory action by anyone (government or private citizen).
14th Amendment
14th Amendment prevents states from depriving any person of life, liberty or property without due process and equal protection of law.
15th Amendment
15th Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or color.
Generally private conduct is:
Generally, private conduct is not prohibited by the 14th and 15th amendment – only where state action is involved.
5th Amendment - Takings:
The 5th Amend provides that private property may not be taken for public use without just compensation. Applicable to the states via the 14th Amendment.
Public Use:
If the government’s action is rationally related to a legitimate public purpose (health, welfare, safety, economic or aesthetic reason) the public use requirement is satisfied.
1. Authorized taking by private enterprises are included if they redound to the public advantage (railroads, public utilities).
Possessory Taking requires:
A possessory taking (requires compensation) occurs where there is government confiscation or physical occupation of private property;
1. Temporary possession of property is generally not a taking so long as the government’s actions are reasonable.
A regulatory taking occurs:
A regulatory taking occurs where government regulation leaves no reasonable economically viable use of the property.
1. A regulation that causes a mere decrease in value of property is not a taking. (zoning ordinance).
Just Compensation for a taking:
If Government action amounts to a taking the government must:
1. Pay the fair market value of the property taken. The gain to the taker is irrelevant. Or
2. Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (temporary taking damages).
Government speech - The free speech clause restricts:
The Free speech Clause restricts government regulation of private speech; it does not require the government to aid private speech nor restrict the government from expressing its views. Generally government speech and government funding of speech will be upheld if rationally related to a legitimate state interest.
Government speech - Public monument:
A city’s placement of a permanent monument in a public park is government speech and not subject to Free Speech clause scrutiny even if the monument is privately donated.
Government funding of private speech:
Government funding of private speech must be viewpoint neutral.
A law is unconstitutionally vague if it fails to give persons reasonable notice of what is prohibited. The law must clearly define what speech is regulated, so that person knows what speech is permissible.
A law is unconstitutionally overbroad if it regulates substantially more speech than constitutionally allowed.
Prior Restraints:
Prior Restraints prevent speech before it occurs rather than punish it afterwards. They are rarely allowed. To justify a prior restraint the govt. must show that some special societal harm will otherwise result.
1. Court orders or administrative rules that prevent speech before it occurs must meet strict scrutiny.
2. If government adopts a content-based prior restraint of speech, the govt has the burden of proving that the restriction is narrowly tailored to accomplish its goal.
Procedural Safeguards for prior restraints:
To be valid, a prior restraint must provide the following safeguards:
a. The standards must be narrowly drawn, reasonable and definite;
b. Injunction must promptly be sought; and
c. There must be prompt and final determination of the validity of the restraint.
Content-based restrictions (test):
Restrictions on content of speech must be narrowly tailored to achieve a compelling govt interest.
The government has a compelling interest in the following categories of speech which are deemed “unprotected” under the 1st Amendment:
1. Inciting Imminent Lawless Action
2. Fighting words
3. Defamation
4. Obscenity
5. False or deceptive advertising
Inciting Imminent Lawless Action (Clear and present danger test):
A state cannot forbid advocating the use of force or of law violation unless such advocacy (i) is directed to producing or inciting imminent lawless activity and (ii) is likely to produce or incite such action.
Fighting words:
a. True threats – statements meant to communicate an intent to place an individual or group in fear of bodily harm (cross burning).
b. Personally abusive words likely to incite immediate physical retaliation.
A public figure must prove actual malice and falsity of the statement; a private citizen with public concern must prove falsity and negligence for actual damages/malice for presumed and punitive damages.
Speech is obscene if taken as a whole by the average person, applying contemporary community standards:
a. appeals to the prurient interest in sex,
b. portrays sex in a patently offensive way; and
c. does not have serious scientific, literary, artistic, or social value (using a national reasonable person standard for the third prong)
False or deceptive advertising:
False or deceptive advertising is not protected, but lawful, non-misleading/non-fraudulent speech may be regulated if it serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest.
Content-neutral restrictions (Test):
Content-neutral restrictions generally only needs to meet intermediate scrutiny. They will be upheld if the government can show that (i) they advance important interest unrelated to the suppression of speech, and (ii) they do not burden substantially more speech than necessary to further those interests.
Conduct regulations:
The government can regulate conduct related to speech and assembly by content neutral time, place and manner regulations.
Time, Place, Manner Restrictions:
The breadth depends on whether the forum is public/designated public/nonpublic.
Public Forums:
Government restrictions of public forums must be content-neutral, narrowly tailored to serve an important govt interest, and leave open alternative channels of communication.
Non-public forums:
Government restrictions of non-public forums must be viewpoint neutral and must be rationally related to a legitimate government purpose.
Free Exercise Clause:
Free exercise clause prohibits govt from punishing someone on the basis of her religious belief.
Free Exercise Clause cannot be used:
Free exercise clause cannot be used to challenge government regulations unless the regulation was specifically designed to interfere with religion.
Free Exercise Clause does not require:
Free Exercise clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct.
Free Exercise Clause Exception – Unemployment Compensation:
A state cannot refuse to grant unemployment benefits to person who quit their jobs for religious reasons.
Free Exercise Clause Exception – Right of Amish not to educate children:
The Amish are exempt 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.
Establishment Clause (Definition/Test):
The Establishment clause prohibits laws respecting the establishment of religion.
1. The government may not prefer one sect over another unless it is narrowly tailored to promote a compelling government interest.
Exam Note: Use Strict Scrutiny test if there is a sect preference.
Establishment Clause (Lemon Test):
Under the Lemon Test if a govt regulation or action contains no sect preference, it is valid under the Establishment Clause if it
a. Has a secular purpose;
b. Has a primary effect that neither advancers nor inhibits religion; and
c. Does not produce excessive entanglement with religion.
Exam Note: Use Lemon Test if there is no sect preference.
Freedom of the press:
Generally, the press has no greater First Amendment freedom than does a private citizen
i. Publication of Truthful Information - The press has a right to publish truthful information about a matter of public concern restricted only by sanctions narrowly tailored to further an interest of the highest order.
ii. Access to trials: The First Amendment protects the right to attend criminal trials, but that right may be outweighed by an overriding interest articulated in the findings by the trial judge.
1. This include the right to attend voir dire and pre-trial hearings unless the judge makes a specific finding that closure was narrowly tailored to preserve a higher value.
iii. Broadcasting Regulations Radio and TV broadcasting regulations may be more closely regulated than the press.
Freedom of Association and Belief:
The First Amendment protects the right to associate for expressive of political activity. Infringement on this right may be justified by a compelling state interest that is unrelated to the suppression of ideas through means significantly less restrictive of associational freedoms.
i. Laws that prohibit or punish group membership must meet strict scrutiny; to punish membership in a group, the government must prove the person actively affiliated with the group, knew of its illegal activities, with the specific intent of furthering those illegal activities.
1. Laws requiring disclosure of group membership must meet strict scrutiny.
ii. Laws that prohibit a group from discriminating are unconstitutional unless: 1) intimate association; 2) expressive activity.
Contract Clause:
Contract Clause prohibits states from enacting any law that retroactively impairs existing contract rights.
Private contracts – Intermediate scrutiny:
A state legislation that substantially impairs an existing private contract is invalid unless the legislation (i) serves an important and legitimate public interest and (ii) is a reasonable and narrowly tailored means of promoting that interest.
Public contracts – stricter scrutiny:
Legislation that impairs a contract to which the state is a party is tested by the same basic test but the contract will likely receive stricter scrutiny.
Ex Post Facto Laws:
Laws that retroactively make something a crime; applicable only in criminal cases (not civil). A statute retroactively alters a law in a substantially prejudicial manner if it:
1. Makes criminal an act that was innocent when done;
2. Prescribes greater punishment for an act than was prescribed for the act when it was done; or
3. Reduces the evidence required to convict a person of a crime from what was required when the act was committed.
Bills of Attainder:
Laws that direct punishment of specific person without trial.
Procedural Due Process:
The 14th Amendment prevents states from depriving any person of life, liberty or property without due process and equal protection of law. Procedural Due Process refers to the procedures the government must follow when it takes away life, liberty, or property. Procedural Due Process requires sufficient notice and a hearing (subject to waiver).
Liberty is deprived if:
Liberty is deprived if a person looses significant freedom of action or is denied a freedom provided by the Constitution or a statute.
Property is deprived if:
Property is deprived if there is a legitimate claim or “entitlement” to a benefit under the state or federal law. An entitlement exists if there is a reasonable expectation of continued receipt.
Balancing Test for Procedural Due Process:
The type and extent of required procedures are determined by a three-pronged balancing test that weighs:
1. The importance of the interests to the individual; and
2. The value of specific procedural safeguards to that interest; against
3. The government’s interest in fiscal and administrative efficiency.
Due Process rights are subject to waiver if:
Due Process rights are subject to waiver if the waiver is voluntary and made knowingly.
Substantive Due Process:
The 14th Amend prevents states from depriving any person of life, liberty or property without due process and equal protection of law. Substantive Due Process asks whether the government has an adequate reason for taking away a person’s life, liberty, or property. What is adequate will depend on the level of scrutiny. Usually used to protect economic liberties and safeguard privacy.
Constitutional Source for Substantive Due Process:
Due Process Clause of the 5th Amendment applies to federal government. Due Process Clause of the 14th Amend applies to state/local governments.
Fundamental rights are protected under (standard and test used):
Fundamental rights are protected under substantive due process through strict scrutiny analysis, requiring that the legislation be necessary to achieve a compelling government interest.
Fundamental rights include:
1. Right to travel
2. Right to Privacy
3. Right to vote
4. All 1st Amendment rights
Right to Travel:
Right to travel: A person has a fundamental right to travel from state to state and to be treated equally after moving into a new state.
a. International travel is not a fundamental right.
Right to Privacy:
Privacy rights include contraception, abortion, marriage, procreation, raising a family, right to custody of one’s child, right to keep the family together.
Prisoners right to privacy:
Prisoners have no reasonable expectation of privacy in their prison cells, and have no Fourth Amendment protection (protection against unreasonable search and seizure).
Abortion: Prior to viability, the government may not prohibit abortion, but may regulate them so long as there is no undue burden on the ability to obtain abortions.
i. No undue burden: 24 hour waiting period; licensed physicians; parental notice/consent; ban of partial abortions
ii. After viability, states OK to prohibit abortions unless necessary to protect woman’s life/health.
Right to vote:
Right to vote is a fundamental right. Restrictions other than on the basis of residence, age, and citizenship are invalid unless they pass strict scrutiny.
a. States must use almost exact mathematical equality when creating congressional district within the state.
Mere rationality cases:
Mere rationality All other cases the mere rationality test is applied. The law will be upheld if:
1. It is rationally related to any conceivable legitimate end of government. i.e. business and labor relations, taxation, lifestyle, zoning, punitive damages (except for grossly excessive punitive damages).
Equal Protection Rule:
Equal Protection asks whether the government’s differences in the treatment of people or a class of people are adequately justified. What is adequate depends on the level of scrutiny used for the type of discrimination.
Equal Protection Rule - Constitutional Source:
Equal Protection Clause of the 14th Amendment is limited to state action. However, grossly unreasonable discrimination by the federal govt. violates the Due Process Clause of the 5th Amendment.
Equal Protection vs. Substantive Due Process:
Equal Protection treats a person or class of persons differently vs. Substantive Due Process which limits liberty of all persons engaged in some activity.
Test for Equal Protection Clause - fundamental right/suspect class:
If a fundamental rights (1st Amendment rights, interstate travel, privacy, voting) or suspect classification is involved then strict scrutiny is used to evaluate the regulation.
Test for Equal Protection Clause - quasi-suspect class:
If a quasi-suspect classification is involved then intermediate scrutiny is the applicable standard.
Proving Discriminatory classification - Intent on part of the government:
For strict or immediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by:
1. A law that is discriminatory on its face.
2. A discriminatory application of a facially neutral law; or
3. A discriminatory motive behind the law. (very difficult to prove).
Strict Scrutiny Test:
Used for regulations affecting fundamental rights (interstate travel, privacy, voting, and 1st Amend rights) or involving suspect classification (race, national origin, and alienage) are reviewed under strict scrutiny. The law is upheld if:
1. It is necessary to achieve a compelling government purpose.
a. Difficult test to meet, law often is invalidated especially if there is a less burdensome alternative to achieve government goal.
2. The Burden of proof is on the government.
Intermediate Scrutiny Test:
Used for regulations involving quasi-suspect classifications (gender and legitimacy) are reviewed under intermediate scrutiny. The law is upheld if:
1. It is substantially related to an important government purpose.
2. Burden of proof – is unclear. It’s probably the government.
Rational Basis Test:
Used for regulations that do not affect fundamental rights nor involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard. The law is upheld if:
1. It is rationally related to a legitimate government purpose.
2. Burden of Proof is on the person challenging the law.
3. Note: Rational basis is used to review regulations involving classifications that are not suspect or quasi-suspect such as age, disability, poverty.
Suspect Classification (Define/BOP):
Classifications based on race, alienage, or national origin must meet strict scrutiny. Burden of proof is on the government.
Test for Suspect classification:
Under strict scrutiny, the law must be necessary to achieve a compelling government interest using the least restrictive means.
Proving Discriminatory classification - Intent on part of the government:
For strict OR intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate, intent can be shown by:
a. A law that is discriminatory on its face,
b. A discriminatory application of a facially neutral law, or
c. A discriminatory motive behind the law (very difficult to prove).
Race and National Origin:
1. Test
judged by a strict scrutiny standard.
Race and National Origin:
1. School Integration
School integration - only intentional segregation violates the Constitution.
Race and National Origin:
1. Affirmative Action
Strict scrutiny applies to government action that favors and discriminates against racial minorities.
i. Numerical set-asides require clear proof of past discrimination
ii. Education institutions may use race as one factor to help minorities in admissions decisions
iii. Admission decisions cannot be made solely on basis of race
iv. Seniority systems may not be disrupted for affirmative action.
Race and National Origin:
1. Discriminatory Legislative Apportionment
Race can be considered in drawing up new voting districts but it cannot be the predominant factor.
Alienage Classification - Federal
Federal alienage classifications are not subject to strict scrutiny because Congress’s plenary power over aliens.
i. Such classifications are valid if they are not arbitrary and unreasonable.
Alienage Classification - State and local
State and local laws on alienage are suspect classification subject to strict scrutiny. i.e. requiring state lawyers to be citizens of US
i. Exception – Participation if self-government process If a law discriminates against alien participation in state government (voting, jury service, elective office) the rational basis standard is applied. Rational basis is also applied for state and local laws limiting important non-elective offices involving public policy (i.e. teacher, police or probation officer).
Alienage Classification - Undocumented Aliens
Undocumented Aliens are not a suspect classification. Rational basis standard is applied.
Quasi-Suspect classification (define/Test):
Classifications based on gender, legitimacy (or against undocumented alien children) must meet intermediate scrutiny.
Quasi-Suspect classification - Test:
Under intermediate scrutiny, the classification must be substantially related to an important government interest.
Quasi-Suspect classification - Burden of proof:
the government has the burden of proving an exceedingly persuasive justification to support its actions.
Quasi-Suspect classification - Women:
Gender discrimination that intentionally discriminates against women is subject to intermediate scrutiny.
a. Classifications benefiting women that are designed to remedy past discrimination generally are valid.
Quasi-Suspect classification - Men:
Intentional discrimination against men is generally invalid (i.e. alimony for women only). Certain laws have been found to be substantially related to an important government interest (i.e. statutory rape laws).
Legitimacy classifications:
Legitimacy classifications are reviewed under intermediate scrutiny. They must be substantially related to an important government interest.
a. Discriminatory laws intended to punish illegitimate children are invalid.
Test for classifications based on wealth, age or disabilities:
Classifications based on wealth, age, or disabilities must meet rational basis test. BOP on plaintiff.
1. Test. Under rational basis test, the classification must be rationally related to any conceivable legitimate govt interest.