Constitutional Law - Essay Outline

Front 1

Federal Executive Power (foreign powers

Back 1

Foreign Powers
-Treaty Power
-Executive Agreement
-War and Foreign Relation Power: President has no power to declare war but may act militarily in actual hostilities

Front 2

Federal Executive Power (Domestic Powers)

Back 2

a. Appointment Power
(1) Ambassadors
(2) Federal Judges
(3) Officers of the US

b. Removal Power

c. Veto Power

d. Chief Executive Power

e. Executive Privilege and Immunity

Front 3

Chief Executive Power

Back 3

1) if president acts with express or implied congressional authority, his actions are at its highest

2) if president acts where congress is silent, his action will be upheld unless it usurps another branch

3) if president acts against congressional will, he has little authority

Front 4

Federalism Topics

Back 4

i) Preemption

ii) Dormance Commerce Clause

iii) Privileges and Immunities Clauses

Front 5

Preemption

Back 5

the Supremacy Clause of Article VI provides that the
Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

Front 6

Types of Preemption

Back 6

Express

Implied:

Impedance

Clear intent

Front 7

Express Preemption

Back 7

if a federal statute expressly says that federal
law is exclusive in an area, state and local laws are preempted.

Front 8

Implied Preemption

Back 8

Implied preemption - if federal and state laws are mutually
exclusive, federal law preempts state law.

Front 9

Impedance Preemption

Back 9

If state law impedes the achievement of a federal objective, federal
law preempts state law.

Front 10

Clear intent preemption

Back 10

If Congress evidences a clear intent to preempt state law, federal
law preempts state law.

AKA - Occupy Field

Front 11

Dormant Commerce Clause

Back 11

(Negative implications of the commerce
clause) State laws that place an undue burden on interstate commerce are unconstitutional.

Front 12

(DCC) If the state law discriminates against out-of-state persons and is an undue burden on interstate commerce, it is invalid UNLESS:

Back 12

1) The state is a Market Participant;
2) The law furthers an important, noneconomic state interest
and there are nondiscriminatory alternatives; or
3) The law favors government performing traditional
government functions.

Front 13

(DCC) If the state law does not discriminate, then ask if it burdens
interstate commerce?

Back 13

1) If it does, then it is invalid unless the state’s interest in the
regulation outweighs the burden of interstate commerce.
2) If it does not burden ISC, then it is valid.

Front 14

Privileges & Immunities Clauses (Art. 4)

Back 14

Article IV - State laws that deny out-of-state persons privileges and
immunities accorded to in-state persons violate the provision.

1) If the state law discriminates against out-of-state persons
with regard to civil liberties or important economic activities, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose
2) If the law does not discriminate, Article IV does not apply.

Front 15

Privileges & Immunities Clauses (14 Am.)

Back 15

Fourteenth Amendment was meant to protect citizens from their
own state, but is used only for the right to travel.

Front 16

INDIVIDUAL RIGHTS - issues

Back 16

PRE- state action
i) First Amendment Speech
ii) Freedom of Association
iii) First Amendment Religion
iv) Equal Protection
v) Substantive Due Process
vi) Procedural Due Process
vii) Economic liberties

Front 17

State Action

Back 17

always analyze before raising individual rights

State Action: State action includes official government conduct and private conduct where there is significant governmental involvement with the private party

Private party actions that are state action:
1. public function: traditionally the exclusive prerogative of the state
2. entanglement: significant state involvement affirmatively facilitating that private action (eg, entwinement)

Front 18

First Amendment Speech Issues

Back 18

i) Prior Restraint
ii) Vagueness
iii) Overbreadth
iv) Content Regulation or Content Neutral

Front 19

Prior Restraint

Back 19

A prior restraint restricts speech before it occurs, rather than punish it afterwards. The government must show some special societal harm would result otherwise

Front 20

What is required for a prior restraint to be valid

Back 20

To be valid, a system for prior restraint must provide the following procedural safeguards:

1) Standards must be narrowly drawn, reasonable, and definite;
2) Injunction must promptly be sought; and
3) There must be prompt and final determination of the
validity of the restraint.

Front 21

Vagueness (free speech)

Back 21

Vagueness – Reasonable person is not given reasonable notice of what is
prohibited.

Front 22

Overbreadth

Back 22

Overbreadth – Regulates both protected and unprotected speech.

Front 23

[Valid] Content Regulations

Back 23

1) Incitement of illegal activity
2) Obscenity
3) Commercial speech
4) Defamation – see Torts

Front 24

Incitement of illegal activity (content regulations)

Back 24

a) Speech is directed to cause activity
b) illegal activity is imminent

Front 25

Obscenity (content regulations)

Back 25

a) appeals to prurient interest
b) patently offensive
c) lacks literary, artistic, political or scientific value.

Front 26

Commercial speech (content regulations)

Back 26

a) Illegal, false and deceptive ads not protected.
b) Intermediate scrutiny

Front 27

Content Neutral Regulations- time, place and manner restrictions

Back 27

1) Public forums and designated public forums
2) limited public and non-public forums
3) Private Forums
4) symbolic speech

Front 28

Public forums and designated public forums (content neutral regulations)

Back 28

a) Government required to make (these forums) available for speech
or as designated to be open for speech.

b) Regulations must be:
i) content neutral,
ii) narrowly tailored to serve an important government interest, AND
iii) leave alternative places for communication.

Front 29

Limited Public and Non-Public Forums

Back 29

Regulations must be:
i) reasonable (Rational Basis Review); and
ii) viewpoint neutral.

Front 30

Private property

Back 30

govt may adopt reasonable regulations to limit access to private
property for speech and assembly purposes

Front 31

Symbolic Speech

Back 31

Government can regulate if important state interest unrelated to suppression of message and burden no greater than necessary

definition: actions that purposefully and discernibly convey a particular message or statement to those viewing it (burning flag, burning draft cards)

Front 32

Freedom of Association

Back 32

Freedom of Association - Government may not prohibit or punish group membership unless the law meets strict scrutiny

Front 33

First Amendment Religious Issues

Back 33

Free Exercise Clause

Establishment Clause

Front 34

Free Exercise Clause

Back 34

Government may not punish (deny benefit or impose burden) on the basis of religious beliefs as opposed to conduct.

Strict scrutiny

Front 35

Establishment Clause

Back 35

Analysis:

Is there a sect preference on the face of the regulation?

If yes, then apply strict scrutiny test.

If no, then apply the 3 prong "Lemon" test

Front 36

"Lemon Test"

Back 36

1). It must serve a secular purpose;
2). Its primary effects must not advance or inhibit religion; and
3). It must not create excessive govtal entanglement with a
religious administration or bureaucracy

Front 37

Approach to religious issues

Back 37

If you raise the establishment clause you should always raise the free exercise clause and vice versa

(except for taxpayer standing-establishment clause is likely the main issue here)

Front 38

Equal Protection Clause

Back 38

Equal protection is derived from the 14th amendment, and therefore only applies to the states.

Front 39

Equal Protection (intentional discrimination)

Back 39

Proving intentional discrimination (BOP on P):
1. law is discriminatory on its face;
2. patently discriminatory application of facially neutral law; or
3. prove discriminatory motive behind law or action

NOTE: negligent behavior (NB) does not give rise to EP claim

Front 40

What is the difference between equal protection challenges brought against the federal government and state government?

Back 40

Federal
-Brought under the DP clause of the 5th amendment

State (or local)
-Brought under the EP clause of the 14th amendment

NOTE:
The analysis is identical, just the source changes.

Front 41

Equal Protection Analysis

Back 41

1) Classification
2) Scrutiny

Front 42

Classification (EP)

Back 42

1) Fundamental Interest = SS
2) Suspect = SS
3) Quasi Suspect = IS
4) Other Classes = RB

Front 43

Fundamental Interest (EP)

Back 43

1st Amendment, Travel, Voting... for example

Front 44

Suspect (EP)

Back 44

NORA: Race, Alienage or National Origin

Statute Must Be:
a) Facially discriminatory; OR
b) Facially neutral but has discriminatory impact and
intent.

Scrutiny: STRICT

Front 45

Quasi Suspect (EP)

Back 45

SIC: Sex (Gender), Illegitimacy, and Undocumented
alien children

Statute must be:
a) Facially discriminatory; OR
b) Facially neutral but has discriminatory impact and
intent

Scrutiny: INTERMEDIATE

Front 46

Other Classes (EP)

Back 46

WADS: Wealth, Age, Disability, and Sexual Orientation
***Alienage related to self government and the democratic process or congressional regulation gets downgraded

Scrutiny: RATIONAL BASIS

Front 47

Scrutiny

Back 47

Strict Scrutiny

Intermediate Scrutiny

Rational Basis

Front 48

Strict Scrutiny

Back 48

1) law necessary to achieve
2) compelling government purpose

Front 49

Intermediate Scrutiny

Back 49

1) Law substantially related to achieve
2) important government purpose

Front 50

Rational Basis

Back 50

1) law is rationally related to achieve
2) legitimate government interest

Front 51

What is the difference between procedural and substantive due process?

Back 51

(1) SDP
Was there an adequate reason to take away the right?

(2) PDP
Was the procedure fair? Typically, whether notice and a hearing was required

5th and 14th Amendment

Front 52

Application of Substantive Due Process

Back 52

IF rights are fundamental: courts generally apply SS

IF rights are non-findamental: courts apply RBR

Front 53

When to apply Rational Basis test for SDP:

Back 53

Rational Basis:

1) Applies to all non-fundamental rights- typically economic
and social regulations.

2) Is the law rationally related to a legitimate government
purpose? The burden is on the challenger to show the law
is not rationally related to a legitimate government purpose.

Front 54

When to apply Strict Scrutiny test for SDP?

Back 54

Applies to all fundamental rights

a) Right to interstate travel
b) Right to vote
c) Right to privacy:
i) contraception, marriage, procreation, child rearing re: choice of private education, and familial relations (right to stay/live together).

Front 55

Right to Interstate Travel (SDP)

Back 55

Usually tested with residency waiting reqs for benefits

i. If long periods and life necessities, then struck down on strict scrutiny

ii. If short period for other than fundamental rights,
then may be upheld

Front 56

Right to vote (SDP)

Back 56

a. Federal Election districts: one person, one vote
b. State/local elections: no unjustifiably large disparities in
number of voters per district

Front 57

Abortion (SDP)

Back 57

Abortion is treated different than everything else under Substantive Due Process

Undue Burden Test:
i. Before viability: regulation can’t place undue
burden on right to abortion
ii. After viability: may prohibit all abortions unless
necessary to protect the woman’s life or health
iii. Viability = fetus lives outside womb WITH medical
assistance

Front 58

What is an undue burden (Abortion)

Back 58

Undue burdens
i. Spousal notification; ban all partial birth

Not Undue burden
i. 24 hr waiting; only MD can do it; parental
notification (but must have judicial bypass textually
included in statute)

Front 59

Procedural Due Process

Back 59

Use when: Deprivation of life, liberty or property

liberty= significant freedom secured by constitution or statute
property= entitlement to a continued receipt of a benefit

Front 60

Procedural Due Process (government standard)

Back 60

Use when the governments action is:
i) reckless;
ii) intentional

Front 61

Procedural Due Process Analysis

Back 61

Analysis:
1. is this a liberty or property interest for which process is due?
2. if yes, then what process is due?

Front 62

Liberty (PDP)

Back 62

1. freedom from bodily injury and restraint, AND

2. freedom to exercise fundamental rights that have been impaired by
(a) intentional government action [no DP for negligent acts]
(i) NB: defamation: gives rise to PDP claim if intentional govt act is involved

Front 63

Property (PDP)

Back 63

1. land, personal property, and
2. any existing entitlement to a specific benefit under state or federal law for which there is a
a) legitimate expection that the benefit will continue

Front 64

What process to apply:

Back 64

1. notice and
2. fair hearing before
3. an unbiased decisionmaker

Front 65

When applying this process what should be balanced?

Back 65

Use Mathews balancing test for type and timing:

Balance the...
1. Importance of the interest to the P and
2. The ability of additional procedures to increase the accuracy of the fact finding

...against

3. Government interest in administrative efficiency and cost

Front 66

Application of Mathews to 3 scenarios

1. Life necessity
2. Public danger
3. Public employee

Back 66

1. if benefit is a life necessity (eg, welfare):
--- likely need pre deprivation trial-type hearing

2. if public danger is involved (eg, violent public school student gets suspended):
--- no pre-deprivation hearing needed

3. Public employees:
---get notice and pre-termination response but full hearing only after termination

Front 67

Property Rights (Economic Liberties)

Back 67

Takings Clause: 5th amend (feds) and 14th Amend (states)

Takings Clause: government may take private property for public use if it pays just compensation

Front 68

Takings Elements

Back 68

Elements
1. A taking of private property for
2. Public use
--a. includes private property given to private party so long as public benefit to that exchange
3. Must have just compensation

The more drastic the reduction in economic value, the more likely a taking

Rational Basis Analysis

Front 69

Possessory Takings

Back 69

1. Possessory taking: easements, abolishing inheritance, etc
---a. exception: health or safety emergency

Front 70

Regulatory Taking

Back 70

2. Regulatory taking
--a. Denial of all economic value of land to owner [if some viable use left, no taking]
--b. conditional permits: governments demanded exaction must have a essential nexus with legit govt purpose that is roughly proportional to burden on society
--c. test when economic use of land remains:
(i). what social goals are promoted;
(ii). what is the diminution in value to owner; and
(iii). what are owner's reasonable investment-backed expectations regarding the property

Front 71

Takings

Back 71

3. Remedy
--a. pay compensation OR return property pay interim damages

Front 72

Contracts Clause

Back 72

i. State and local governmental regulations cannot
(1). substantially interfere with the obligations of
(2). existing contracts (ie, no retroactive impairment permitted)

ii. Limits
(1). N/A to feds, judicial decisions

iii. Judcial Review
(1). private contracts: intermediate scrutiny
(2). public contracts: strict scrutiny