Con Law

CONSTITUTIONAL LAW OUTLINE



I. Introduction: Constitutional law is, in essence, the study of relationships. There are four major

relationships that students should know for purposes of the bar exam:



A. The role of federal courts in constitutional cases.



B. The relationship between the federal government and state governments (federalism).



C. The relationship between the three branches of the federal government (separation of powers).



D. The relationship between governments (state and federal) and individuals.



II. The Role of Federal Courts in Constitutional Cases (Least Important)



A. Judicial Review: power of courts to determine whether statutes, regulations or other laws are

consistent with the Constitution and if not to invalidate them. This was the principal holding of

Marbury v. Madison.



B. Principles of Judicial Review.



1. The Constitution is the supreme law of land. Prescribed by Supremacy Clause.



2. Supreme Court’s duty to interpret the Constitution.



3. Any Federal statutes, regulations, executive orders, etc. that are inconsistent with (i.e.,

repugnant to) the Constitution are invalid.



Example: Article III of the Constitution prescribes the Supreme Court’s original

jurisdiction; it does not authorize original jurisdiction in mandamus actions. Congress

enacts a law expanding the Supreme Court’s original jurisdiction to include cases in

which applicants seek writs of mandamus against officials in the executive branch.

Holding: the statute is inconsistent with the Constitution and thus invalid.



4. Any State statutes, regulations, executive orders, constitution amendments, etc. that are

inconsistent with the U.S. Constitution are invalid.



Example: The State of Arkansas amends its constitution to limit the number of times

citizens from Arkansas can run for election to the U.S. House of Representatives and

U.S. Senate. The U.S. Constitution sets forth the qualifications for those two offices and

does not limit the number of times a person can run. Holding: the amendment to the

Arkansas constitution is inconsistent with the U.S. Constitution and thus invalid.



5. Supreme Court’s interpretation of Constitution is final and binding over states and other

branches of the federal government. Congress prohibited from altering decisions of

Supreme Court in a particular case – BUT not affecting future cases



Example: The Supreme Court issues an opinion in which it determines that the statute

of limitations for securities fraud (which has heretofore been uncertain) is three years

and thus dismisses the action pending before it as untimely. Congress thereafter

amends the law to increase the statute of limitations to five years and attempts to

impose this change retroactively to include the case dismissed by the Supreme Court.

Holding: the retroactive nature of this new statute, at least as it applies to cases that the

Court has already dismissed, is unconstitutional, because the Supreme Court’s decision

in a particular case is final.



6. Supreme Court’s interpretation of federal law and the U.S. Constitution is final and

binding on state courts in both civil and criminal cases



C. Federal Court Jurisdiction



1. A federal court’s jurisdiction must be based on either the Constitution (Art. III, § 2) or

a federal statute.



2. Article III confers jurisdiction on federal courts over all “cases” or

“controversies”:



a. arising under Constitution, laws, or treaties of United States (i.e., federal

question jurisdiction)



b. of admiralty and maritime jurisdiction



c. in which the U.S. is a party



d. between two or more states (the only form of exclusive, original jurisdiction

today)



e. between a state and citizens of another state



f. between citizens of different states (i.e., diversity jurisdiction)



g. between citizens of the same state claiming lands under grants of different

states



h. between a state or citizens thereof and foreign states, citizens, or subjects (also

a form of diversity jurisdiction)



3. Supreme Court has two types of jurisdiction:



a. original jurisdiction: a cases filed directly in Supreme Court; no prior courts

have heard it. (Very quite rare, particularly in constitutional cases)



i. Supreme Court has original jurisdiction in “in all cases affecting

Ambassadors, other public Ministers and Consuls, and those in

which a state shall be a party”



ii. Congress cannot expand or reduce the Supreme Court’s original

jurisdiction. BUT they may grant concurrent jurisdiction to lower

federal courts to hear such cases. Congress has granted concurrent

jurisdiction to the lower federal courts over all cases within the Supreme









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Court’s original jurisdiction EXCEPT With the exception of suits between

states (usually involving boundaries)



July 1998 Sample MBE Question 89



b. appellate jurisdiction: jurisdiction to review a lower court’s decision; i.e. some

tribunal (state or federal) has ruled on this controversy before it reached the

Supreme Court



i. Most Court’s jurisdiction is appellate, and every constitutional law case

of any significance arose out of the Court’s appellate jurisdiction



ii. For all practical purposes, Supreme Court’s appellate jurisdiction is

entirely discretionary; petitioners seek review by filing a writ of

certiorari, which may be granted upon approval of four justices

(“Rule of Four”). Supreme Court has discretion to hear (i) all appeals

from the federal circuit courts; and (ii) appeals from the highest courts of

the states that involve the constitutionality of a state or federal law or

preemption of a state law by federal law



 appeals as of right to the Supreme Court are limited to

injunctions issued by three-judge federal district court

panels



iv. Congress has almost unlimited authority to reduce the Supreme

Court’s appellate jurisdiction; in other words, Congress could

eliminate the Supreme Court’s appellate jurisdiction with regard to

an entire subject matter, such as busing or abortion



 There may be one limit on such power. If Congress

were to remove all Supreme Court jurisdiction, the

action may be unconstitutional, particularly if the

removal of jurisdiction guarantees a particularly

outcome. If, on the other hand, any Supreme Court

jurisdiction remains (even something as remote as

original habeas corpus jurisdiction, which the court has

not used in 75 years), the law is probably constitutional.

The uncertain nature of the law in this area, however,

makes this an unlikely MBE topic.



D. The Doctrines of Justiciability



1. Definition: even if a case involves an issue within the jurisdiction of federal courts, a

federal court will not (or in some cases, may not) hear the dispute unless it is in the

appropriate posture. Such determinations are made at each level in federal courts; thus,

a case suitable for adjudication at the district court may no longer be suitable for

adjudication at the circuit court.



2. Seven justiciability doctrines tested on the MBE:









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a. advisory opinions: Article III limits the jurisdiction of federal courts to

“cases” or “controversies.” This language has been interpreted to exclude

the issuance of “advisory opinions,” in which no case or controversy has yet

arose. There are two types of advisory opinions:



i. Classic Advisory Opinions: usually member of executive or legislative

branch, seeking an opinion about validity or constitutionality of a law or

other government action before it is enacted or enforced



Example: The president is considering selling arms to Israel. There is

an old statute on the books prohibiting arms sales to “Middle-Eastern”

countries. The president is unsure whether this statute applies to Israel,

so he asks the Supreme Court for advice. Holding: the president is

seeking an advisory opinion, which federal courts will not issue.



ii. Non-Final Opinions: opinions by federal courts that may be reversed

or modified by the executive or legislative branch (or, for that matter,

anyone else other than a higher court).



Example: The Supreme Court issues an opinion in which it determines

that the statute of limitations for securities fraud (which has heretofore

been uncertain) is three years and thus dismisses the action pending

before it as untimely. Congress thereafter amends the law to increase

the statute of limitations to five years and attempts to impose this

change retroactively to include the case dismissed by the Supreme

Court. Holding: the retroactive nature of this new statute, at least as it

applies to cases which the Court has already dismissed, is

unconstitutional, because the Supreme Court’s decision in a particular

case is final. If Congress had the power to reverse Supreme Court

decisions, such decisions would be merely “advisory” and, as such,

would violate Article III.



b. Standing: What ¶ is the best one to bring this suit? (“concrete” stake in

outcome of dispute)



i. Most important of the justiciability doctrines. Standing requirement is

part constitutional and part prudential. The prudential part may be

waived by the Court or Congress; the constitutional requirements, of

course, may not be waived by either branch.



ii. constitutional requirements: three elements are required by the “case

or controversy” language of Article III



1. injury in fact: ¶ must show that he suffered concrete,

particularized injury that has actually occurred or is imminent

(i.e., a clear threat of injury)



a. ideally, the ¶ will be able to show a physical injury (a tort),

property damage, or economic loss (such as lost profits); on

the MBE, the best ¶ to assert a constitutional claim is









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usually the one who has suffered (or will suffer) an out-

of-pocket monetary loss



b. but even some aesthetic injuries, such as damage to the

environment, may be sufficient if ¶ can show some

particularized, concrete injury from such environmental

damage (e.g., concrete plans to visit a national park that will

be polluted or plaintiff has previously used the park at issue)



c. if ¶ is seeking injunctive relief, ¶ must show a likelihood

of future harm



Example: ¶ sues to enjoin the future use of “choke-

holds” by the police. Holding: ¶ lacks standing

because he cannot show a likelihood that he will be

subject to a choke-hold in the future



2. causation: even if ¶ is injured, ¶ must show that Δ (i.e., the

government) caused the injury



- injury must be “fairly traceable to defendant”



3. redressability: ¶ must show that, even if court grants ¶’s relief, this

will fix the problem (in other words, if a favorable ruling will not

redress the injury, the opinion would be advisory)



Example: plaintiff challenges the federal government’s

expenditure of funds on maternal health initiatives. Plaintiff

claims that the federal government lacks the power to spend

money on such issues. Plaintiff claims that the government’s

wrongful spending has increased her taxes. Holding: Even if

plaintiff were correct and the court invalidated such spending,

there is no assurance that the government would lower

plaintiff’s taxes. Thus, there is no redressability.



iv. Prudential Standing Rules: Following situations meet contstitutional

requirements, but Supreme Court has refused to recognize standing in

the following situations, unless absolutely necessary



NOTE: prudential concerns are not mandated by Article III, the Supreme

Court may ignore them or Congress may override them (i.e., by granting

citizen-standing)



the prudential standing concerns are raised in a variety of situations,

namely:



Citizen standing: these are claims brought by plaintiffs as

“U.S. citizens,” which typically involve suits to compel federal

officials to enforce federal law. The Supreme Court has

consistently held that U.S. citizenship alone is









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insufficient to confer standing; thus, even though a plaintiff

might be able to show some minuscule injury, the court will

not hear the dispute where plaintiff’s injury is the same as all

other U.S. citizens. Note that Congress can confer citizen-

standing, but only in cases where the plaintiff could otherwise

satisfy the Article III requirements for standing.



Taxpayer standing: Generally ¶s who sue as “U.S.

taxpayers” in relation to spending do not have standing.

These cases typically involve suits to invalidate federal

spending legislation or prohibit federal spending.



Exception: One very narrow exception to this rule. If a

¶ is suing to invalidate (1) an act by Congress (as

opposed to the executive) permitting expenditure of

federal funds, (2) enacted under the Taxing and

Spending Clause (but no other clause), (3) that violates

the Establishment Clause (but no other clause),

standing does exist. This exception has been limited to

these precise criteria.



NOTE: that it is easier for local taxpayers (as opposed

to federal taxpayers) to establish standing to challenge

local government spending. In addition, federal

taxpayers, of course, have standing to challenge their

own tax bills.



Third party standing: Generally ¶ may assert only injuries

that he or she has suffered AND NOT assert injuries

suffered by others. There are several exceptions to this

rule:



Associations (e.g., NAACP or labor unions) may assert

claims on behalf of their members, if (1) one

member has Article III standing and (2) the claim is

related to association’s mission. In some cases, the

association may also assert claims for its own injuries

(e.g., the NAACP had standing to challenge a law

requiring it to disclose its membership)



MAIN: jus tertii standing: ¶ has standing to assert

injuries of a 3rd party if (1) there is an impediment

to the real ¶ bringing suit on his or (2) her own

behalf and there’s a nexus between the real plaintiff

and the third party; examples: doctors asserting the

rights of pregnant women in abortion cases,

bartenders asserting the rights of underage patrons in

an equal protection case, and parents/guardians

asserting the rights of children (assuming the parent

has “legal” custody of the child)









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Person has standing to assert the claims of another

if the injured third party is unlikely to assert his or

her own claims (e.g., a criminal defendant may

assert the claims of jurors who were excluded on

racial grounds because jurors are unlikely to assert

such claims)



Class actions: “named” plaintiff in a class action

may pursue a claim as long as any class member

can satisfy the Article III standing requirements



Legislators’ standing: legislators generally do not have standing to

challenge legislation with which they disagree (i.e., a legislator in the

minority on line-item veto statute cannot run to court after the vote to

invalidate the law)



c. Ripeness Case brought too early; ie., ¶ does not yet (and may never) have

Article III standing. ¶ must have already been harmed or there is an

immediate threat of harm.



ii. Two factors courts consider to determine if controversy is ripe: (1)

harm to the ¶ without (pre-enforcement) judicial review and (2) the

fitness of the issue for review.



iii. Ripeness often arises in cases where ¶ challenges criminal statute or

administrative regulation before he has been arrested or there is even a

threat of arrest – usually denied



Example: Connecticut had a law on the books that made it illegal to

purchase contraceptives. The law had not been enforced for decades

and contraceptives were widely available. Plaintiffs brought suit

challenging the constitutionality of the law. Holding: the case is not ripe

because plaintiffs had not been arrested and there was no immediate

threat of arrest.



iv. The issue of ripeness is always raised by declaratory judgment

actions; such actions are ripe, however, if there is a concrete

dispute between two parties



d. Mootness: case is brought too late; in other words, ¶ had standing, but lost it.



ii mootness may occur at anytime and any level. Case may become moot

one day before Supreme Court is to issue a final opinion; if so, it must

be dismissed – such as settling, etc.



iii. Exceptions:



Capable of repetition in this ¶, yet evading review: there are some

issues that are inherently short-lived such that they can never









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receive full judicial review before they become moot. For such

issues, the court will ignore mootness.



Examples: pregnancy in abortion cases, ballot restriction

measures in elections



- to fit within this exception, the issue must be capable of

repetition with regard to this ¶



- in abortion case, this ¶ may become pregnant again



- in an election case, this ¶ may run for office again



- but in a discrimination case against a law school in

which the ¶ was admitted to the law school while the

case was pending (and was scheduled to graduate),

the court held that such discrimination could not

occur again as to this ¶



Voluntary cessation: to be moot, Δ must completely and

irrevocably stop doing whatever it is ¶ was complaining about; if

Δ could simply restart the activity after case is dismissed, it is

not moot



Examples: ¶ sues neighbor for nuisance (loud music); neighbor

sells stereo and completely stops; voluntary cessation



What is completely and irrevocably stopped: (1) ¶

challenges constitutionality of statute and legislature repeals it

(2) ¶ and Δ settle a civil case



Collateral consequences: a case is not moot if there are “collateral

consequences” that have yet to be determined

If ¶ is suing for an injunction and for past damages and the

court determines the injunction is moot (because, for

example, the defendant has voluntarily ceased the activity),

that will not moot the claim for past damages



Example: if ¶ sues her neighbor for an injunction to stop loud

music and for damages for the past three months of

nuisance, voluntary cessation may moot injunction, but not

the claim for damages



Class actions: even if the “named” ¶’s case becomes moot, the case

will not be dismissed as long as at least one class member has

standing at all times



e. Political questions









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i. Definition: there are some issues federal courts choose not to hear.

Over the past two decades, the courts have narrowed the list of political

questions. The political question doctrine is mostly prudential, but does

have some constitutional basis. It usually is limited to issues involving

separation of powers.



ii. Two types of political questions:



1. Issues textually committed to another branch by the

Constitution:



Example: impeachment (textually committed to house/senate)



Example: congressional self-governance (Congress has power

to discipline its own members)



BUT only to extent Constitution confers such authority

on Congress (e.g., Congress has the authority to expel

and discipline its own members without judicial review,

but does not have unlimited authority to determine the

“qualifications” of its members)



2. Those issues for which there are no judicially manageable

standards (i.e., the issue is inherently incapable of resolution)



Examples: the constitutional amendment process, foreign

affairs and war powers (e.g., challenges to president’s power

to wage war or deploy troops or to rescind treaties), disputes

within political parties (e.g., who are proper delegates to a

party’s convention?), the guaranty clause (e.g., what is a

“republican form of government?”) (guaranty clause cases are

always political questions)



f. Adequate and Independent State Grounds



i. Supreme Court will not exercise appellate jurisdiction over a case

arising out of highest court of a state involving an issue of federal

law, if the state court decision was based on an adequate and

independent state ground (Plain statement). To do so, would result

in an advisory opinion because the outcome of the case would not

change.



Example: Δ is convicted of possession of a controlled substance. On

appeal to the state supreme court, Δ argues that his conviction should

be reversed because of an illegal search. Δ claims search violated his

rights under the 4th Amendment to the U.S. Constitution and its

counterpart in the state constitution. State supreme court agrees,

specifically finding the search violated both constitutions. Prosecution

appeals (by certiorari) to the U.S. Supreme Court, arguing that state

supreme court’s interpretation of the U.S. Constitution was faulty (note









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that the U.S. Supreme Court would not have jurisdiction to interpret

the state constitution). Holding: the Court will deny petition because,

even if it agreed with prosecution, outcome of the case would be the

same: the search was illegal (under state constitutional law).



July 1998 Sample MBE Question 127



NOTE: U.S. Constitution sets “floor” for individual and civil rights; states

may not go below that floor, but can confer more rights



The Court will deny jurisdiction for adequate and independent state

grounds only if the state grounds were truly “independent”; if the state

supreme court relied exclusively on federal law to interpret the state

constitution, there is no independent ground. The state court must

make clear that the state constitution was an independent basis (this

can be done if the state court includes a “plain statement” in the

decision providing that it relied on state law). If the grounds are unclear,

the U.S. Supreme Court may remand for clarity or may hear the appeal.



g. Abstention: Federal courts will generally abstain from getting involved in (or

enjoining):



i. cases where state law is unsettled (the proper course in such

circumstances would be for the federal court to certify the question to

the state supreme court for determination); the federal courts may

dismiss or stay cases on such grounds so as to await clarification



ii. pending state criminal, administrative, or civil actions, unless such

actions were brought for harassment or were asserted in bad faith

(this exception is rarely used today)



III. The Relationship Between the Federal and State Governments (Federalism)



Statute constitutionality Analysis:

1. Is the statute state or federal?

2. If federal statute, ask:

a. Does the Constitution authorize Congress to regulate in this area?

b. If so, does this particular statute offend any constitutional check on federal power?

3. If state statute ask:

a. Does this particular statute offend any constitutional check on state power?



A. Federal Laws



1. First Question: Does the Constitution authorize Congress to regulate in this area?



a. Federal government has enumerated powers. Constitution prescribes several

“enumerated” areas in which Congress may regulate, most of which are set forth

in Article I, § 8. The most important powers are examined below.









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i. Commerce Clause: Article I, § 8, cl. 3 authorizes Congress to regulate

foreign commerce, commerce with the Indian tribes, and commerce

among the several states (interstate commerce clause)



- commerce clause is, by far, the most important source of federal

power.



- Congress can regulate:



 channels of interstate commerce (i.e., Congress may

regulate anything that crosses state lines, physically,

electronically, or otherwise)



 instrumentalities of interstate commerce (e.g.,

planes, trains, telephone calls, Internet, etc.)



 most importantly, any activity that, in the aggregate,

has a substantial effect on interstate commerce



- under this test, Congress can regulate virtually any

activity and its power is plenary



 Congress has used such power to ban private

discrimination and as a basis for federal criminal

laws (e.g., in 2005, the Supreme Court ruled that

the Commerce Clause authorized Congress to

criminalize the possession and sale of marijuana

and such laws supercede inconsistent state

medical marijuana laws)



July 1998 Sample MBE Question 170

- no general welfare clause

th

- 13 A only applies to racial discrimination

th

- 14 A applies only to gov. entities

- the only limit is that the activity must be

“economic” in nature (probably narrow);

for instance, the Court has held that federal

statutes banning guns in school zones and

creating a federal civil claim for sexual

assault victims are not “economic” in nature

and thus are not within Congress’s commerce

clause powers; besides these two statutes --

both of which dealt with traditional state

violent crimes -- the Court has not

invalidated any federal statutes as

exceeding Congress’s commerce clause

powers since 1937; note also that the Court

will not use the “aggregate” test in

connection with the regulation of non-

economic activities -- in such cases, the









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activity alone must have a substantial

effect on interstate commerce



 In 2005, the Supreme Court held that the

possession, etc. of marijuana was “economic” in

nature and thus could be regulated by Congress



- 10th Amendment is not a limit on Congress’s commerce clause powers

(but see below) BUT is a WRONG answer for limiting Congress’s power

under commerce clause – will need Morris or Lopez facts



ii. Spending Clause: Article I, § 8, cl. 1 provides Congress may spend

for general welfare of nation and pay debts (note: this is the only

time Congress may rely on the “general welfare” to act). Spending

clause is an independent source of federal power; spending not

limited to other enumerated powers



Congress’s power under the spending clause is even broader than

its power under the commerce clause; in other words, the

spending clause may be used to “regulate” (i.e., encourage)

indirectly what Congress cannot regulate directly



Example: Congress passed a law conditioning highway funds on states

raising their minimum drinking age to 21; Congress arguably could not

have mandated this directly because of the 21st Amendment, but the

Court held that Congress could regulate it indirectly by

conditioning federal funds on states passing such laws, as long

as there is a relationship between the federal spending (highway

money) and the condition (drinking age)



July 1998 Sample MBE Question 53



iii. Taxing Clause: Article I, § 8, cl. 1 authorizes Congress to impose all

kinds of taxes (except, arguably, property taxes)



For MBE purposes, Congress may tax anything as long as (1) tax

is reasonably related to raising revenue or (2) within an area

Congress could regulate directly, REGARDLESS of any other

motives Congress may have had (e.g., to tax something out of

existence).



July 1998 Sample MBE Question 12



federal income and excise taxes must be geographically uniform (e.g.,

Congress may not impose one tax in New York and another in Illinois)



iv. War Powers: authorize Congress to pass a wide variety of laws in the

event of war or other conflict:









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In the theater of war, Congress’s powers are virtually unlimited

(but are shared with President)



On the homefront, Congress has significant power both during and after

war to remedy the effects of war, including the economic effects



Military courts-martial may be used against service personnel (for all

offenses) and enemy soldiers and civilians, but not U.S. civilians; there

are generally no civilian appeals for courts-martial, but habeas corpus

relief is available



v. Treaty Power: (unimportant) Congress has the power to pass laws to

enforce treaties. There is some authority for the proposition that

Congress may pass a statute in accordance with a valid treaty even if

Congress would otherwise be barred from regulating the activity directly;

there is also some authority to the contrary (which is probably the

correct view)





vi. Post-Civil War Amendments

th

§5 of the 14 A, Congress may prohibit discrimination by state and

local governments (probably only for discrimination based on race,

religion, or gender); this provision may not be used to pass laws

prohibiting private discrimination (but see Commerce Clause)

th

§2 of the 13 A: Congress may use to regulate private

discriminatory behavior if such behavior constitutes a “badge or

incident” of slavery, such as refusing to rent or sell property, or

contract with, or admit a child to a private school, or employ a

person because of race



Congress has used the 13th Amendment sparingly; it has virtually been

replaced in the field of private discrimination by the Commerce Clause





vii. Property Clause: Article IV, § 3 authorizes Congress to pass any

laws relating to the ownership, transfer, disposal, or use of federal

property (real, personal, intangible). Under this clause, Congress has

full authority to regulate federal property.



viii. Police Power: the federal government does NOT have “police

powers.” This general power belongs to the states. (Usually a wrong

answer)



Exception: the federal government does have police-type powers on

federal lands, such as Indian reservations, the District of Columbia, or

military bases.









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ix. Necessary and Proper Clause: not an independent source of federal

power; rather, it may be used only in conjunction with one or more of the

enumerated powers as a “means” to obtain an enumerated “end”

(standing alone will not be right – must be attached to another

clause)



2. Second Question: Assuming Congress has constitutional authority to regulate in

this field, is there a specific check in Constitution prohibiting this particular law?



a. Several checks on federal power in Constitution, most of which in the bill of

rights and apply to both federal and state governments (via the 14th

Amendment). These include the Due Process Clause, the Takings Clause, the

Equal Protection Clause, and the First Amendment. These “checks” are set

forth in Section V, below. Others (e.g., 4th, 5th, 6th, and 8th Amendments) are

set forth in the Criminal Procedure outline. This section examines a couple of

federal-specific checks, namely:



i. 10th Amendment: state governments shall have all power not

conferred upon the federal government (nor prohibited to the states) by

Constitution. (almost always a wrong answer on MBE)



today, the 10th Amendment is simply a truism (states have those

powers not given to the federal government, but since federal power has

been construed so broadly, there is little left for the states; thus, the 10th

Amendment rarely limits Congress’s power)



Exceptions: There are two modern limits on Congress’s powers arising

out of the 10th Amendment (both of which apply to federal laws that

regulate state activity only and not private activity):



NY v. US: 10th Amendment bars Congress from ordering

state legislatures to pass laws (i.e., Congress may not

“commandeer” state legislatures)



July 1998 Sample MBE Question 30



BUT federal government has other options: (a) pass the law

itself (assuming it has authority, often will); (b) encourage

state to pass such laws under its spending power



Printz v. U.S.: The 10th Amendment bars Congress from

compelling state executive officials (e.g., county sheriffs) to

enforce federal laws



BUT federal government can: (a) enforce the law itself; (b)

encourage state officials to enforce such laws under its

spending power



NOTE: state courts, unlike state legislatures and executives, are

bound to enforce federal law under the supremacy clause









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NOTE: in Reno, Court upheld a law prohibiting (i.e., not an

affirmative burden) states (and private companies) from selling

DMV information (unlike the laws in N.Y. and Printz, this law (1)

applied to states and private companies (2) and this law

was a negative law)



ii. 11th Amendment: state governments may not be sued for money

damages for federal claims; they have inherent sovereign immunity from

such suits that predates the Constitution. The 11th Amendment limits

Congress’s power to subject state governments to civil liability. Under

the doctrine of state sovereign immunity:



1. A federal claim may not be brought against a state by (a) citizens

of other states; (b) citizens of that state; or (c) foreign citizens



2. Federal claims may not be brought by these parties against a

state in federal court, state court, or federal administrative

tribunals (e.g., Federal Maritime Commission)



Exceptions: When federal claims may be brought against a “state”:



a. a suit for injunctive relief against a state official in his or

her official capacity (not state itself)



- money damages may be sought from the official

personally, but not if such damages would be paid

out of the state treasury for past damages



b. state waives its sovereign immunity



- must be express (by statute or state constitution)



- but a state may be deemed to have waived its

immunity by removing a state court action to federal

court, at least as to state law claims



Note: that states are not immune from suits brought by the

United States or other states



Congressional Abrogation of State Sovereign Immunity.

Under limited circumstances: Congress may authorize private

persons to sue state governments for money damages:

- these suits may arise only out of Congress’s power under § 5

of the 14th Amendment, and probably are limited to suits for

racial or gender (e.g., Family and Medical Leave Act

claims) discrimination on the MBE (note: a 2004 U.S.

Supreme Court decision upheld a federal statute authorizing

suits for money damages against state governments for

violation of Title II of the ADA (access to courts by disabled))









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Test: (a) Is the law designed to prevent or remedy a

pattern of 14th Amendment violations of a kind

recognized by the courts (race or gender discrimination,

but not patent laws, age discrimination, discrimination

against the disabled)? (b) Is the law proportionate and

congruent to the problem (in other words, is the state’s

discrimination such a serious problem as to require

abrogation)?



- counties, cities, etc. are not protected by the 11th

Amendment and thus are subject to liability for federal

claims



B. State Laws



1. Analysis: Is there a specific check in Constitution prohibiting such a law? There are

several checks on state power in the Constitution, most of which are contained in the bill

of rights and apply to both the federal government and to state governments (via the

14th Amendment). These include the Due Process Clause, the Takings Clause, the

Equal Protection Clause, and the First Amendment. These “checks” are set forth in

Section V, below. Others (e.g., 4th, 5th, 6th, and 8th Amendments) are set forth in the

Criminal Procedure outline. This section examines a few of state-specific checks,

namely:



a. Supremacy Clause (preemption): According to the supremacy clause, federal

laws are superior to state laws. There are several ways to determine whether a

federal law trumps state law:



i. express preemption: if area within federal power (e.g., interstate

commerce), federal government may expressly preempt state law



ii. implied preemption (3 types)



1. conflict preemption: occurs when it is impossible for a person to

comply with both state and federal law without violating one; (rare)



example: a federal law requires a minimum octane in gas of 91; a

state law sets maximum of 89. In such case, it would be

impossible to comply with both, and thus the state law would be

preempted.



2. obstacle preemption: possible to comply with both laws, but state

law impedes federal objective (most common type of preemption)



3. field preemption: Congress has impliedly taken over the entire field

with a comprehensive law (and usually an agency to enforce it); no

room is left for the states (e.g., immigration); this requires evidence

that Congress clearly intended to occupy the entire field









16

b. Dormant Commerce Clause: Serves two purposes: (1) authority for

Congress to pass laws regulating interstate commerce; and (2) impliedly

limits states’ authority to interfere with interstate commerce. For state

laws, ask the following questions:



i. Does the state law discriminate against interstate commerce or

out-of-staters? There are two ways this may occur:



facially discriminatory: the statutory language treats

nonresidents or interstate commerce differently than it treats

residents or intrastate commerce



facially neutral (probably not on MBE): the language is

neutral, but it is discriminatory in effect (and possibly purpose as

well), in that the application favors in-staters



ii. If law is discriminatory, state has burden to overcome the “virtual

per se invalidity test.” State (or local gov) must show: (will usually be

invalid-look for exact facts below)



1. an important local purpose (e.g., ecology)



2. there are no less discriminatory alternatives



under such test, the states almost always lose; only one example of

state success (Maine Bait Fish case: state prohibited the importation

of bait fish to prevent contamination of a local ecosystem).



July 1998 Sample MBE Question 56





iii. If the law is not discriminatory, the challenger has burden to show

that the law fails to satisfy the balancing test (i.e., the law imposes

an “undue burden” on interstate commerce).



Under this test, three factors are balanced with deference to state:



1. local health and safety concerns



2. burden on interstate commerce



3. need for national uniformity



- under the balancing test, a state law will be invalidated only if the

local concerns are so slight or problematic as to not outweigh

the burden on interstate commerce and the need for uniformity



July 1998 Sample MBE Question 92









17

- application of test is not as strict as its sounds; laws are invalidated

quite often, particularly with regard to truck and train traffic



iv. Exceptions to the Dormant Commerce Clause: There are times

when states may discriminate:



1. Because Congress’s power under the Commerce Clause is

plenary, Congress may authorize states to discriminate against

interstate commerce



NY v. U.S.: Congress authorized states to discriminate

against interstate nuclear waste



July 1998 Sample MBE Question 79



Note: Congress may not authorize violations of any other

Constitutional provisions, such as Article IV’s Privileges and

Immunities Clause or the Equal Protection Clause



2. State is a “Market Participant,” NOT a market regulator, it may

discriminate in favor its own residents; these are situations in

which the state itself is the seller or provider of goods or services

(e.g., a state owned cement plant)



Exception to Market Participant:

a. State discrimination as to “fundamental rights” (e.g.,

private employment, practice of law, civil liberties -- “no

abortions for non-residents”) violates the Privileges and

Immunities Clause of Art. 4, § 2; in other words, a state

may favor its own residents for cement or in-state

colleges; but NOT for private-sector jobs



July 1998 Sample MBE Question 190



- There are two privileges and immunities clauses in the

Constitution: Article IV (see above) and the 14th

Amendment. The P&I clause in the 14th Amendment

has very little significance (right to travel cases only);

its only application would be to invalidate state laws

that discriminate against new state citizens (e.g., a

waiting period before collecting full welfare benefits)



- Neither P&I clause applies to corporations or aliens;

both corporations and aliens, however, may raise

dormant commerce clause challenges



b. A state may not use the market participant exception to

impose regulations downstream – regulating after sale

of product (e.g., Alaska could not require buyers of

Alaskan timber to process the timber in Alaska)









18

C. Tax Laws



1. Intergovernmental Taxation:



a. State Taxation of Federal Government. State may not tax (or, for that

matter, regulate) the federal government, including its land or

instrumentalities, unless the federal government consents; state regulations are

invalid if they significantly burden a federal activity. If the money to pay a state

tax comes out of the federal treasury, the state tax is unconstitutional.



i. Exception: state may impose non-discriminatory (i.e., the same as

all others) income taxes on the salaries of federal employees



July 1998 Sample MBE Question 134



1. But states may not impose state sales or use taxes on private

contractors who are acting as purchasing agents for the federal

government (and thus the money is coming out of the federal

treasury)



2. State sales and use taxes may be imposed, however, on contractors

working for the federal government on a “cost-plus” basis



b. Federal Taxation of State Governments. The federal government may tax or

regulate state governments as long as the law applies to both private individuals

and governments.



2. State Taxation of Interstate Commerce:



a. Taxes that Discriminate Against Interstate Commerce (i.e., a higher rate for

interstate commerce than for intrastate commerce) are generally

unconstitutional, unless such discrimination is approved by Congress



July 1998 Sample MBE Question 114



- if state imposes a use tax, the rate cannot exceed the state’s sales

tax and a credit must be given for the sales tax paid in the other

state



b. Nondiscriminatory Taxes: A state may tax interstate commerce and interstate

businesses if:



1. must be substantial nexus between activity/property taxed and state



this requires more than minimum contacts; catalog sales are not

enough; it generally requires offices, sales people in the state



the use of “drummers” is sufficient contact to force sellers to collect a

use tax, but NOT sufficient for collection of a sales tax; flat license taxes









19

on drummers are unconstitutional, but a peddler’s (who solicit and sell in

state) license fee is constitutional



ad valorem taxes may be imposed only if the goods have a situs in state

(origin or destination points); they may not be imposed on goods in

transit



2. the tax must be fairly apportioned (i.e., the tax should be based on the

extent of the taxable activity or property in the state; otherwise, the

taxpayer would be subject to multiple taxation)



sales taxes do not have to be apportioned (selling state may collect all),

unless buyer resides out-of-state and goods are shipped to buyer



tax on instrumentalities (e.g., trucks) must be apportioned by miles or

physical presence



income taxes on interstate companies must be fairly apportioned (e.g.,

ratio of sales in-state to all sales)



3. tax must be fairly related to services or benefits provided by states

(i.e., reasonable user fees usually okay)



3. Taxation of Foreign Commerce:



a. By States: unconstitutional unless Congress approves



b. By Federal Government: cannot tax “exports”



IV. The Relationship Between the Different Branches of the Federal Government (Separation of

Powers)



Unlike federalism, it is not easy (or maybe even possible) to “flowchart” separation of powers issues.

There are two reasons for this. First, the Supreme Court has decided very few separation of powers cases. This

is caused in part by the fact that many separation of powers issues raise non-justiciable “political questions.”

Second, the Court has not been consistent in its separation of powers cases. One faction on the court has

preferred a very rigid, formalistic approach to separation of powers. Another faction has preferred a pragmatic

approach. Thus, separation of powers questions must be handled on an issue-by-issue basis.



A. Executive Powers



1. Does the President have the power to make law?



a. If the president is legislating (i.e., issuing executive orders affecting a

person’s legal rights), apply Justice Jackson’s three-part test to determine

the validity of such actions. Under that test:



i. Congress has explicitly or implicitly approved president’s action,

he has full power of federal government to make law; will be invalid









20

only if Congress would have been prohibited from making such

law



ii. Congress has been silent on the issue, the case falls into a “twilight

zone”; in this zone, the president may be able to make law,

depending on history and tradition (i.e., have prior presidents taken

such actions without Congressional approval?)



July 1998 Sample MBE Question 109



iii. Congress has disapproved the president’s action (i.e., by rejecting a

similar statute), he may rely only on his own constitutional power to

make laws (which is very limited); for all practical purposes, the

president has no domestic law-making powers in this situation



b. If Congress “directs” president to spend money on a project, he must

spend the money (e.g., the President does not have authority to “impound”

funds Congress has ordered spent).



2. Can Congress increase or decrease executive’s power to make law?



a. Delegation: Congress may delegate law-making power to the executive

branch (IRS, INS, etc.) as long as it establishes “intelligible standards”;

this standard has no teeth; thus, Congress may and does delegate most

everything to the executive branch – once delegated must leave it alone



b. legislative and line-items vetoes:



i. legislative veto: this occurs when Congress delegates law-making

authority to the executive, but keeps the power to overrule the executive

by a one-house or two-house or committee veto



legislative vetoes are unconstitutional; they violate the presentment

and/or the bicameral clauses



if Congress wishes to override the executive, it must pass a new law



ii. line-item veto: President must sign or veto bill in its entirety. Line-

item vetoes are unconstitutional



c. appointment and removal of executive officials



i. appointment of executive officials



Principal officers (e.g., cabinet members), president nominates and

the senate confirms (Not on MBE)



Inferior officers (positions created by Congress, such as the

independent counsel), Congress may (1) give the appointment power

to president alone, (2) a department head, or (3) courts, but Congress









21

may NOT retain the power to appoint anyone with executive duties

(i.e., a person who enforces the law) . . . Congress cannot appoint

anyone to an executive position



July 1998 Sample MBE Question 84



ii. removal of executive officials



unless there is a statute to the contrary, president may fire any

executive official for any reason



Congress may limit the president’s removal power if:



1. the position requires some independence from the president

(e.g., an independent counsel or a person who has quasi-

judicial duties) and



2. Congress merely requires “good cause” to fire the person

(i.e., Congress cannot prohibit the firing)



Congress may not retain the power to remove an executive official;

it only has impeachment power



B. Foreign Affairs



1. Treaties are signed by President and ratified by the Senate



a. If laws conflict, the following preeminence governs:



1. U.S. Constitution

2. Federal Statutes/Treaties (last in time controls)

3. Executive Agreements/Orders

4. State Laws



b. President may use executive agreements as substitutes for treaties; no senate

ratification required, and president may use these agreements as basis for

issuing executive orders (domestic regulation)



2. War Powers



a. War powers are shared between president and Congress;

1. Congress declares war and allocates money for the military;

2. president controls troops and deployment (any interference by Congress is

prohibited); both branches can initiate hostilities, but only the president can

deploy troops

NOTE: after congress declares war, ONLY the president has the power

command troops and all other logistical matters



b. The War Powers Act of 1973 is probably unconstitutional, but this is almost

certainly a political question









22

C. Checks on the President’s Powers



1. Criminal Prosecutions



a. President is probably immune from criminal prosecution while in office



i. criminal prosecution is not a prerequisite to impeachment



b. Executive Privilege (frequently on MBE): President’s communications and

papers presumptively privileged, but president must comply with subpoenas

from criminal courts or grand juries (Nixon); RULE: president’s qualified

immunity must yield to the need for documents or information in criminal cases



i. the president’s immunity is greater for documents or information related

to foreign affairs, national security, or military affairs

2. Civil Actions



a. President is not subject to civil liability for claims (at least those based on

official actions) arising while in office (this is an absolute immunity), but is

subject to civil liability for claims arising prior to taking office.

- Presidential aids share in this immunity if they are exercising

discretionary authority for the president in sensitive areas, such as

foreign affairs.



3. Impeachment: will never be heard by court – it is a politician question



a. president, vice-president, judges, and “officers” of the U.S. may be impeached.



b. the house “impeaches” (i.e., indicts) by a majority vote; the senate convicts by a

2/3 vote



c. impeachment may be for high crimes, misdemeanors or treason, but these

terms are defined exclusively by Congress, and such issues are political

questions



D. The President’s Pardon Power



1. Applies to federal crimes only (accused or convicted); has no impact on state crimes or

civil liability



2. Note: the president may not pardon a person for “crimes” for which they have been

“impeached”



3. The pardon power includes the power to commute sentences, etc.







V. The Relationship Between Governments and Individuals









23

Beginning Analysis

1. Who is bound by these constitutional provisions? (i.e., the state action doctrine); and

2. Do these provisions apply to all governments -- federal, state, and local? (i.e., incorporation)



A. State Action (actually, “Government Action”)



1. With minor exceptions, Constitution applies only to government action; private

individuals and companies are not bound by the Constitution. But:



a. Congress may, by statute, require private individuals to conform to constitutional

standards. These statutes, of course, must be passed pursuant to one of the

enumerated powers. The two most relevant powers for such statutes are:



Choice 2: § 2 of the 13th Amendment authorizes Congress to pass laws

outlawing slavery by private individuals; this provision has been construed

to allow Congress to pass laws banning the “badges or incidents” of slavery --

race discrimination only



private race discrimination does not technically violate the 13th

Amendment (only private slavery does); it may, however, violate

statutes passed pursuant to the 13th Amendment



Choice 1: the commerce clause has been used to pass statutes banning

most types of private discrimination



NOTE: § 5 of the 14th Amendment may NOT be used to ban private

discrimination



b. Instances where private individuals and companies will be considered “state

th

actors” subject to the 14 A



1. Public function exception: if a private person or company is performing

a traditional, exclusive government function, state action exists



- Court has found only two such functions: company towns and the

running of a primary election



2. Entanglement exception: government affirmatively authorizes,

encourages, or facilitates an unconstitutional activity. Affirmative action

by the government required; government has no duty to protect

individuals from harm (unless the government caused the harm). Most likely

to apply in race discrimination cases. Examples of state action:



a. court enforcement of a racially restrictive covenant in a deed or lease



b. peremptory challenges on race or gender (includes civil cases or

accused in criminal case)



c. government leases space to business that discriminates









24

d. government provides free books to private school that racially

discriminates (i.e., if government does this, school is a state actor)



e. private association regulates high school athletics and most of its

members and funding comes from the government



f. government controls the board of directors of a private company

(Amtrak)



e. government is trustee of private trust that operates a discriminatory

park



BUT NO STATE ACTION WAS FOUND WHERE:



a. state provided 99% of the funding of a private school that fired a

teacher for speech (i.e., government subsidy, alone, is insufficient for

state action)



b. state gave a liquor license to a private club that discriminated on

basis of race



c. government approved name and charter of a private organization

(U.S. Olympic Committee)



d. many members of a private association were public colleges (NCAA)



e. company was heavily regulated by government (e.g., utilities, nursing

homes)



f. company was working under government contract



July 1998 Sample MBE Question 174



B. Incorporation



1. Bill of Rights applies only to the federal government. BUT Supreme Court has

held that all important provisions of Bill of Rights apply to states via 14th

Amendment. They are incorporated in term “liberty” of the due process clause



2. NOTE: due process and equal protection apply to the states directly through the

14th Amendment.



3. NOTE: equal protection has been “reversely” incorporated into the 5th

Amendment and thus made applicable to the federal government.



4. All of Bill of Rights’ protections have been incorporated into the 14th Amendment and

thus made applicable to state and local governments except the:



a. Second Amendment’s right to bear arms

b. Third Amendment’s prohibition against quartering of soldiers in private homes









25

c. Fifth Amendment’s right to a grand jury in a criminal case - decided

d. Seventh Amendment’s right to a jury in a civil case – decided

e. Eighth Amendment’s prohibition against excessive bail and fines (the court has

never specifically addressed this issue, but would probably incorporate these

protections)

f. Ninth Amendment (which has never formed the basis for a Supreme Court

decision)



C. Levels of Scrutiny



1. In due process, equal protection, and first amendment cases, Court uses different

levels of scrutiny depending on the issues and/or classifications involved.



a. The Rational Basis Test: the ¶ must prove that the law not rationally related

to any legitimate government purpose (actual or conceivable);

- default test in due process and equal protection cases;

- “legitimate” means permissible



b. Intermediate Scrutiny: The government must prove law is substantially

related to an important government interest (actual interests)

st

- Primarily used in EP, and some 1 A



c. Strict Scrutiny: The government must prove that the law is necessary to

achieve a compelling government interest (actual interests), and that there

are no less restrictive alternatives (law is necessary)

st

- Used in Due Process, EP, and 1 A



D. The Due Process Clauses



1. There are two due process clauses in the Constitution. The due process clause of the

5th Amendment applies to the federal government, and the due process clause of

the 14th Amendment applies to state and local governments. The two clauses have

been construed identically.



2. Due process has two parts: procedural due process and substantive due process



3. Procedural Due Process. Requires certain procedural safeguards be provided

before government may deprive a person of life, liberty, or property.



a. Has there been an intentional deprivation of life, liberty, or property by the

government?



i. deprivation must be intentional or at least reckless; not negligent



In Emergencies, a deprivation will be found only where the conduct

“shocks the conscience”; thus, a high speed police chase resulting in

death will not ordinarily constitute a due process deprivation



Government generally has no duty to protect a person from harm,

unless the government created the harm









26

ii. deprivation must be of life, liberty, or property



life: see Criminal Procedure outline



liberty: a loss of significant freedom (e.g., confinement in prison or a

mental institution, deprivation of a fundamental right)



1. except in emergencies, an adult must receive notice and

a hearing before a civil commitment



2. a parent may institutionalize a child upon a lesser

showing: only a “screening” by a neutral fact-finder is

required



3. harm to reputation alone (without, for example, a

deprivation of a property interest) is insufficient



4. changes in prison conditions rarely constitution

deprivations of liberty



property: includes real, personal, and intangible property; also includes

government jobs or benefits (“entitlements”) if the recipient had a

reasonable expectation to continued receipt of a benefit (e.g., an

employee who can be fired only for cause has a property interest

but an employee at-will does not)



July 1998 Sample MBE Question 58





b. If there has been a deprivation of a liberty or property interest, what process is

due?



i. To determine what process is required in a particular case, the court will

balance three factors:



a. the importance of the interest to the individual



b. the likelihood that additional procedures will increase the accuracy of

the fact-finding process



c. the government’s interest in administrative efficiency (i.e., costs)



July 1998 Sample MBE Question 148





ii. Examples of the process due in particular cases:



welfare benefits: notice and an evidentiary hearing prior to

termination









27

social security disability benefits: a post-termination evidentiary

hearing will suffice



jobs: pre-termination opportunity to respond; post-termination

evidentiary hearing



suspension from school for more than 10 days: notice and

opportunity to explain (no evidentiary hearing required)



prejudgment attachment: preferably, prejudgment hearing, but

post-judgment hearing will suffice in emergencies with a bond



driver’s license suspension: pre-suspension hearing, except for

refusal to take a breathalyzer



termination of parental rights: pre-termination notice and hearing

with a clear and convincing evidence standard



punitive damages: instructions to jury and judicial review to ensure

reasonableness



4. Substantive Due Process. If a law is challenged under substantive due process (i.e.,

the law is challenged as arbitrary or capricious), Use Rational Basis Test, unless law

infringes upon a fundamental right



a. Rational Basis Test applies to all economic, labor, business, professional

regulation, and consumer protection laws



Government wins every time in due process cases -- no exception



b. Two other constitutional protections for economic and property rights:



i. Takings Clause: the due process clauses of the 5th and 14th

Amendments provide that the government may take property for public

use only if it provides just compensation. In takings clause cases, ask

the following questions:



a. Was the property taken for a public purpose? The answer to this

question will be yes, because any use the government reasonably

deems public, including taking private property from one person

and giving it to another, is public. In 2005, the Supreme Court

reaffirmed this principle, holding that a state may take property

(residential and business) for use in a private economic development.



b. Has there been a taking? Three types:



1. possessory taking: physical possession or confiscation by

the government; includes forcing a landowner to allow others on









28

to his or her land (i.e., a public easement); the amount of

property taken is irrelevant (one cent may be a taking)



- temporary possession is a taking (damages would be

fair rental value)



2. regulatory taking: a regulation or zoning ordinance that

leaves no reasonable economically viable use of the property

(e.g., an ordinance prohibiting the building of any structures on

a residential lot); a mere reduction in value, even if

significant, is not a taking



3. placing conditions (public easements or greenspace) on

building permits or variances: these are permitted so long as

the benefit is “roughly proportional” to the burden imposed

(burden on municipality) (e.g., a new Wal-Mart may be required

to set aside private property for a new interchange)



July 1998 Sample MBE Question 162



NOTE: a property owner may challenge a regulation in place at the time

he or she acquired the property (even if he or she knew the regulation

existed at the time of acquisition)



c. If there has been a taking, what result? government must pay

FMV: the loss to owner, not gain to taker



ii. Contracts Clause. No state shall impair the obligations of contracts;

applies to states and local governments only, not the federal

government



applies to existing contracts only, not future contracts or future profits



Test: (1) Does the law “substantially” impair a party’s rights under

an existing contract? (2) If so, is law a reasonably and narrowly

tailored means of promoting a legitimate and important interest?

(probably somewhere between Rational Basis and Intermediate

Scrutiny)



MBE: If state impairs its own contracts, the test will be applied with

more bite (closer to Strict Scrutiny)-gov will loose



Note: the ex post facto and bill of attainder clauses apply only to

criminal (or at least punitive) laws – will be a wrong answer



c. Fundamental Rights. If a law directly and substantially impairs a

“fundamental right,” the court will apply Strict Scrutiny and the law will

invariably be invalidated. Most fundamental rights are protected by substantive

due process, but a couple are protected by equal protection (i.e., the right to

travel and the right to vote). As a general rule, if a fundamental right is denied to









29

all persons, the law violates the due process clause. By contrast, if a

fundamental right is denied to some people but not others, it violates equal

protection. For MBE purposes, it is not important to know which clause is

violated; what’s important is that the court will apply Strict Scrutiny to any law

that interferes with fundamental rights.



i. Due Process Fundamental Rights. The following is a comprehensive

list of fundamental rights protected by the due process clauses:



the right to control the education and upbringing of one’s children



the right to acquire and use contraceptives (regardless of age)



the right to marry (and probably divorce)



the right to procreate (i.e., thus, no forced sterilization)



the right to custody of one’s children (e.g., a grandparent visitation

law has been found to violate this right); also note that a state may

conclusively presume that children born during marriage are the

children of the husband and wife



the right of family members to live together (includes extended

family, but not unrelated persons)



the right of a competent adult to refuse medical treatment, even life

sustaining medical treatment (but not to commit suicide or for assistance

to commit suicide); a state may require clear and convincing

evidence of the patient’s intent; a state may force parents to obtain

medical care for children



right to engage in adult, consensual sex in one’s home (In

Lawrence, the Supreme Court invalidated Texas’s homosexual sodomy

law, but did not expressly hold that there is a “fundamental right” to

engage in adult, consensual sex in one’s home -- although that is how

many construe Lawrence)



First Amendment rights (covered by First Amendment)



ii. Abortion: although a woman still has a constitutional right to decide to

terminate a pregnancy, that right is subject to a different test:



Test for pre-viability regulations: does the regulation impose an

undue burden (i.e., a substantial obstacle) on the woman’s right;

viability occurs when a fetus could live on its own outside the womb,

which is currently at about the 4 ½ month point



1. the following regulations impose an undue burden (i.e., a

substantial obstacle):









30

a. spousal consent or notification



b. a ban on all “partial birth” abortions



2. the following regulations do NOT impose an undue burden:



a. 24-hour waiting period



b. requirement that abortions be performed by a licensed

physician



c. parental notice/consent for a minor’s abortion, if the law

contains a judicial bypass



d. informed consent laws



July 1998 Sample MBE Question 96



Test for post-viability abortions



- a state may ban such abortions, as long as there are

exceptions for abortions necessary to protect the life or health of

the mother



- There is no right to government-subsidized abortions, and

there is no requirement that public hospitals perform

abortions



iii. Equal Protection Fundamental Rights. There are two fundamental rights

protected by the equal protection clause:



1. right to vote (if racial discrimination, use 15th Amendment)



a. there is a fundamental right to vote in national, state, and

local elections; restrictions on voting, other than those based

on age (18), residency, and citizenship, are generally invalid

(e.g., a requirement that a voter have children to vote in a

school board election is invalid and poll taxes are invalid)



b. short residency restrictions (e.g., 30-50 days) are valid



c. property ownership restrictions are invalid except for “water

district” elections



d. one person-one vote rule. votes may not be diluted by re-

districting; for congressional districts, court requires almost

exact mathematic equality by states; for state elections, the

court allows more variance (the variance will be upheld if it is

“not unjustifiably large” - a few percentage points)









31

e. appointments of officials are valid



f. at-large elections are valid as long as not used to suppress

minority voting power



g. a “standardless recount” (Bush v. Gore) is unconstitutional



h. racial (if predominant factor) gerrymandering must meet strict

scrutiny



i. ballot fees and restrictions must be reasonable and waived for

indigents



July 1998 Sample MBE Question 63



2. right to travel interstate (also see 14th Amendment P&I)



a. there is a fundamental right to travel interstate and to be

treated like a long-term resident once becoming a permanent

resident of a state



b. laws that prohibit entering or leaving a state must meet strict

scrutiny



c. durational residency requirements are subject to strict

scrutiny, but some have been upheld



1. one-year for welfare (or full welfare): invalid



2. one-year for subsidized medical care: invalid



3. one-year for a divorce: valid



d. benefits that distinguish between long-term and short-term

residents are subject to strict scrutiny (e.g., higher tax rebates

for long-term residents; job preferences for veterans based on

length of state residency).



e. federal restrictions on international travel are subject only to

the Rational Basis Test



5. Equal Protection. The equal protection clause of the 14th Amendment (and the due

process clause of the 5th Amendment for the federal government) should be considered

any time a law treats groups differently. The level of scrutiny to apply will depend on

what groups are being singled out (e.g., race, gender, etc.). There are three

classifications for equal protection: Suspect Classes, Quasi-Suspect Classes, and

all others.









32

a. Suspect Classes. Discrimination in favor of or against suspect classes is

subject to strict scrutiny and will rarely be upheld. There are two suspect

classes: race/national origin and alienage (sometimes).



i. race/national origin (Strict Scrutniy): There are two questions that

must be asked anytime a law treats people differently based on race or

national origin (i.e., their ancestry -- Japanese, Irish):



First: Does the law discriminate against the group? There are two

ways this can occur: (1) facially -- language of the statute

differentiates on the basis of race or national origin; or (2) the

purpose AND effect of the statute is to discriminate on the basis

of race or national origin. Note: discriminatory impact alone is

insufficient (although it may be admitted as evidence of discrimination)



Second: If the law discriminates on the basis of race or national

origin, what test will be applied? Answer: Strict Scrutiny. Under

this test, few laws have survived (those that have survived are:

wartime incarceration of Japanese residents (a questionable decision

today), remedying past discrimination against a particular race,

diversity in college admissions as long as admission is not based on a

mathematical formula or quota)



July 1998 Sample MBE Question 18





ii. alienage: laws that treat documented residents (legal residents who

are not U.S. citizens) differently than U.S. citizens are sometimes

subject to strict scrutiny



federal laws: Rational Basis Test only



state laws: Strict Scrutiny, unless the law concerns self-government

(voting, jury duty, elective office, police officers) or the democratic

process (teachers, probation officers), in which case the court

applies the Rational Basis Test



the following are NOT considered part of the state’s self-government

or democratic process (and thus any state law discriminating

against aliens with regard to these jobs or benefits are subject to Strict

Scrutiny): notary public, civil service jobs, attorneys, physicians,

welfare benefits



the Court does not apply heightened scrutiny for laws treating

illegal aliens differently, except the Court has stricken a state law

prohibiting children of illegal aliens from attending public school

(although apparently using the Rational Basis Test)









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b. Quasi-Suspect Classes: There are two quasi-suspect classes: gender and

non-marital children. If a law treats a quasi-suspect group differently than other

groups, the law will be subject to Intermediate Scrutiny.



i. Gender. There are two questions that must be asked anytime a law

treats people differently based on gender:



First: Does the law discriminate on the basis of gender? There are

two ways this can occur: (1) facially -- the language of the statute

differentiates on the basis of gender; or (2) the purpose and effect of

the statute is to discriminate on the basis of gender. Note:

discriminatory impact alone is insufficient (although it may be

admissible as evidence of discrimination). Example: law granting job

benefits to veterans does NOT discriminate against women, despite

the fact that most veterans are men.



Second: If the law discriminates on the basis of gender, what test

will be applied? Answer: Intermediate Scrutiny. Under this test,

the government must show an “exceedingly persuasive

justification” for the law. Intentional discrimination and discrimination

based on traditional stereotypes will be stricken. But laws designed

to remedy past discrimination against women (e.g., different

methods used to calculate social security benefits or different periods

for military promotions) are valid



July 1998 Sample MBE Question 180



In addition, the following laws have been upheld (1) a statutory rape law

that applies only to male offenders; (2) male-only draft registration; (3) a

law granting automatic citizenship to non-marital children of U.S.

mothers, but not U.S. fathers (law required proof of paternity)



ii. Non-Marital Children: laws treating non-marital children (i.e., those

born out of wedlock) differently than marital children is subject to

Intermediate Scrutiny. To determine whether such law will be upheld,

ask one question: Does the law treat all non-marital children

differently than all marital children? If so, the law is invalid. By

contrast, if the law treats some non-marital children the same as

marital children, the law will be upheld.



valid law: a law that requires non-marital children to prove paternity

before inheriting from their father is valid, because it treats some non-

marital children (i.e., those that can prove paternity) the same as marital

children



invalid law: a law that prohibits all non-marital children from inheriting

from their fathers, but allows all marital children to so inherit



c. All Other Classifications. Except for classifications based on suspect or quasi-

suspect classes, all other classifications are subject to the Rational Basis Test,









34

and thus will generally be upheld. This includes classifications based on age,

wealth, education, sexual preference, disabilities, etc.



Such classifications, however, must be based on “legitimate” government

interests. The Court has held that animosity toward a particular group (gays,

lesbians) or societal fear or dislike of a particular group (the mentally retarded,

children of illegal aliens) is not a “legitimate” government interest.

st

6. First Amendment. 1 A prohibits Congress from establishing a religion or from making

any law abridging the freedom of religion, speech or the press. The restrictions apply to

state and local governments via the 14th Amendment.



FREE SPEECH FLOWCHART



QUESTION ONE: At what point in time is the speech being regulated?



a. The government is trying to prevent the speech from occurring (e.g., a license

to speak or gag order). If so, see the Prior Restraint materials (Section e,

below).



b. The regulation punishes speech after it occurs. If so, move to Question Two.



QUESTION TWO: What is being regulated?



a. Speech (e.g., oral or written language). If so, move to Question Three.



b. Conduct (e.g., burning draft cards or burning flags). If so, see Regulating

Conduct materials (Section d, below)



QUESTION THREE: What property does the speaker intend to use for speech?



a. His own private property. If so, see Content-based v. Content-neutral

materials (Section a, below).



b. The government’s property. If so, see Government Property materials

(Section c, below).



c. Private property belonging to someone other than the speaker who objects to

such use. There is no right to use another’s private property (including his or

her mailbox) for speech. A state may require shopping malls to be open for

speech, but the First Amendment does not require such opening.







a. CONTENT-BASED vs. CONTENT NEUTRAL SPEECH. Does the law regulate

the “content” of the speech or is it “content-neutral”? If the law regulates the

content of the speech, the law must satisfy Strict Scrutiny. By contrast, content-

neutral regulations (e.g., no parades in town or no loud speakers) are subject

only to Intermediate Scrutiny.









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There are two types of laws that are “content-based”:



 those that discriminate on the basis of subject matter (e.g., “all picketing

is banned except for labor picketing”)



 those that discriminate on the basis of viewpoint (e.g., “all picketing is

banned except for pro-labor picketing”)



July 1998 Sample MBE Question 120



b. Unprotected or less protected that may be regulated/banned based on content.



i. clear and present danger: speech that (a) is directed to producing or

inciting imminent lawless action, and (b) is likely to produce or incite

such action, may be banned.



ii. fighting words. speech, such as racial epithets, that is likely to incite a

physical retaliation may be banned, but, for the past 40 years, all

fighting words laws have been found to be either unconstitutionally

vague (e.g., laws prohibiting “opprobrious, offensive, annoying, or

abusive” language) or not view-point neutral (laws prohibiting “hate

speech”)



Note: a convicted person’s sentence may be increased if he or she was

racially motivated (i.e., hate crimes), but not for merely holding abstract

beliefs



Note: these categories will probably not be upheld



iii. obscenity, pornography, and indecent speech:



obscenity: obscenity is not protected by the First Amendment.

Obscenity is defined as a description or depiction of sexual

conduct that, taken as a whole, by an average person (including

sensitive and insensitive adults, but not children), applying

contemporary community standards:



(1) appeals to the prurient (i.e., shameful or morbid) interest in

sex;

- pandering to a certain groups (e.g., swingers, S&M) by

the purveyors may be considered to determine whether

material is obscene



(2) portrays sex in a patently offensive way (and the law must

delineate which portrayals are obscene); AND



(3) does not, taken as a whole, have serious literary, artistic,

political, or scientific value, using a national, reasonable

person standard









36

- the government may not ban material suitable for

adults solely to protect children



- determination of “obscene” is a jury question, but will

receive de novo review on appeal



- private possession of obscenity may NOT be outlawed



Child pornography. material depicting sexual conduct involving

(actual) minors may be completely banned, even if not “obscene”

- private possession of child porn may be outlawed



Adult entertainment establishments. adult book stores, adult

theaters, and strip joints may be limited to a particular part of the

city by zoning ordinances, if:

1. the law is designed to promote a legitimate local interest (e.g.,

protect residential character of neighborhood, avoid crime unrelated

to speech) and

2. the law does not prohibit all such entertainment in the

community;

NOTE: state and local governments have more regulatory power

under the 21st Amendment if the establishment serves alcohol



July 1998 Sample MBE Question 141



Profanity. Profane and indecent language is generally protected by

the First Amendment.



Exceptions: broadcast media (but not cable or the Internet);

high schools



iv. Defamation. not protected by the First Amendment. But when the ¶

is public official or public figure and/or the speech involves a matter of

public concern, the ¶ must prove by clear and convincing evidence that

the statement was false and must prove some level of fault on behalf of

the defendant (e.g., actual malice, negligence). See the torts outline for

more details.



The ¶ may not use other torts, such as intentional infliction of

emotional distress, to circumvent these constitutional

restrictions



Privacy Torts/Crimes. The media may not be subject to

criminal or civil liability for publishing truthful information about a

matter of public concern that was either lawfully obtained (e.g.,

from court records) or was illegally obtained but not by the

media itself



Neither the public nor the press has a right to government

information or to attend federal government meetings, etc.,









37

except for criminal trials (all important parts of a criminal trial

must be open to the public and the press)



v. Commercial Speech. Protected excepted False and misleading

commercial speech, as well as the advertisement of illegal

activities, may be banned. In addition, speech that is “inherently”

deceptive may be banned, including: attorney (but not accountant)

in-person and live telephone (but not written) solicitation for profit; the

use of trade names by professionals



all other commercial speech is protected by the First Amendment and

may be regulated only if the government satisfies a test similar to

Intermediate Scrutiny: (a) the law serves a substantial government

interest; (b) it directly advances the asserted interest; and (c) is

narrowly tailored to serve that interest.



The following types of laws have been invalidated under this test:



- laws restricting the advertisement of abortions, contraceptives,

prescription drug prices, alcohol prices (despite 21st Amend.)



- laws banning news racks for “commercial” publications, but

allowing news racks for newspapers



- laws banning tobacco ads within a 1000 feet of schools



- laws banning “for sale” signs



vi. Other Content-Based Regulations. With the exception of those

categories of speech mentioned above, all other content-based

regulations are subject to Strict Scrutiny.



c. Government Property. If a question involves a person or group wishing to use

government property for speech, one must determine what type of property is at

issue, as that will determine the test to apply. There are three types of

government property:



Public Forums. These are forums the government must open for

speech, which includes sidewalks, parks, and streets. For the

government to regulate speech in such public forums, the regulation

must be (a) content-neutral, (b) a reasonable time, place and manner

restriction, and (c) must leave open alternative channels of

communication. The government is NOT required to use the least

restrictive means of accomplishing its goals.



 targeted residential picketing may be banned



 Prisons and Public Schools. Speech may be regulated in

prisons if reasonably related to legitimate penological interests

(e.g., prisons may search incoming mail, but not outgoing mail).









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Speech may be regulated in schools if necessary to prevent

disruption to the educational process.





Designated (Limited) Public Forums. These are non-public forums

that the government has opened, by policy or practice, to speech.

Designated public forums are subject to the same rules as public

forums, but the government may decide to close the property entirely at

any point.



Example: if a high school opens its classroom after hours to

community groups, it must allow access to all groups, including

religious groups.



Non-Public Forums. All other government property is non-public. The

government may regulate speech in non-public forums if the regulation

is (a) viewpoint neutral, and (b) reasonably related to a legitimate

government purpose. Examples of non-public forums: military bases,

schools, government workplaces, courthouses (and grounds), prisons

and jails (and grounds), post office sidewalks, street signs, etc. (no right

to post signs), airport terminals (there is a right to distribute leaflets but

not to solicit funds), political debates on public television, ad space on

city buses, government radio stations. There is also no right to

participate in a government charity drive.



d. Regulating Conduct. The government may regulate symbolic conduct if

(1) the regulation furthers an important government interest, (2) that is

unrelated to the suppression of speech, and (3) the burden on speech is no

greater than necessary. Under this test, the following conduct may be

regulated: draft-card burning, public nudity, nude dancing, but not flag burning,

cross burning, swastika painting, the wearing of black armbands by students.



e. Prior Restraints: rarely constitutional. There are two types of prior

restraints.



i. Judicial orders prohibiting speech: For a court to enter an injunction

or other order prohibiting speech, such as a gag order on the press, the

court must satisfy Strict Scrutiny, which it will rarely be able to do.



Prior restraints on speech contained in government employment

contracts (e.g., an agreement by CIA employees not to disclose

secrets) are enforceable



According to the Collateral Bar Rule, a person must comply with

a court injunction even if it is unconstitutional. Failure to do so

will result in contempt.



ii. Licensing and permit schemes: If there is an ordinance or other law

requiring a person to obtain a permit or license to speak, march, etc.,

such system must provide (1) definite standards for the granting of the









39

license or permit; (2) no discretion in the granting official (including

discretion to charge different amounts); (3) prompt issuance; and (4)

prompt judicial review.



If a licensing scheme is procedurally improper, the speaker may

ignore the scheme and raise a First Amendment challenge in

later proceedings



If the scheme is facially proper, the speaker must follow these

procedures or he or she will be barred from raising First

Amendment issues in a later prosecution



iii. The government may seize obscene materials for obscenity or other

criminal law violations



f. MISCELLANEOUS FREE SPEECH RULES.



i. Taxing the Press. The press may be subject to general business

regulations and taxes, but may not be singled out for special taxes

(taxes on paper and ink invalid)



ii. Freedom of Association. There is an implied freedom of association in

the First Amendment, which prohibits regulation (including anti-

discrimination laws) of intimate, private groups and clubs, but not large

clubs, with unselective membership or that are used for business

contacts. Also, expressive groups (Boy Scouts, KKK) can have

exclusive membership.



iii. Political Contributions. The government may limit the amount a person

may give to a particular candidate, but may not limit the amount a

person or group may spend on an election or referendum



iv. Loyalty Oaths. The government may require a person to swear to

support the constitutions (state and federal) or swear to oppose unlawful

attempts to overthrow the government to obtain government

employment or become a member of the bar. Persons may not be

required to “support the flag” or swear not to “advocate” an overthrow of

the government as an abstract idea.



v. Group Membership. A person may not be punished or precluded from

public employment, etc. because of membership in an organization

(e.g., the communist party), unless that person was a knowing and

active member with the specific intent to further the organization’s

unlawful aims. Laws that require groups to disclose membership are

subject to strict scrutiny.



vi. Government Funding of Speech. Government funding may be content-

based, as long as it is view-point neutral (e.g., the government does not

have to fund organizations that promote abortions, family planning, and

may choose artists, etc. to which to give grants)









40

But if a college gives financial support to student groups, it may not

exclude religious groups (i.e., not viewpoint neutral) (e.g., a university

collects student activity fees from students and disburses it to a variety

of groups; in such case, the university may not exclude religious groups)



If government union or school requires its students or members to pay a

due or student fee (part of which will be used to fund speech with which

the student or member disagrees), the due or fee is constitutional,

unless its “primary purpose” is to fund speech.



vii. Overbroad and Vague. Laws that are vague or overbroad are not

enforceable, and may be facially challenged (even by those whose

speech would not be protected). A law is overbroad if it prohibits

substantially more speech than required (e.g., “all live

entertainment”). A law is vague if a reasonable person would not

know what speech is prohibited (e.g., “all First Amendment

activities”).



July 1998 Sample MBE Question 199



viii. Right Not to Speak. The First Amendment protects a person’s right not

to speak (e.g., a person may tape over the statement “Live Free or Die”

on license plates and a person may not be forced to salute or pledge to

the flag); moreover, a person has the right to speak anonymously





FRESS EXERCISE CLAUSE

th

The First Amendment prohibits Congress from passing any law abridging the freedom of religion. The 14

Amendment incorporates this clause, thus making it applicable to state and local governments. “Religion”

includes any sincerely held religious-like beliefs.



i. The free exercise clause may not be used to challenge a neutral law of

general applicability, unless that law was motivated by a desire to

interfere with religion. Thus, the government may outlaw the general

use of peyote, deny tax exempt status to religious organizations that

discriminate, require religious organizations to pay minimum wages,

social security taxes, and sales and use taxes.



July 1998 Sample MBE Question 8



ii. If, however, a law was designed to interfere with religion, that law will be

subject to strict scrutiny (e.g., the Court invalidated a law banning

animal sacrifice that was motivated to exclude a religious sect from the

city)



iii. A person who quits a job or fails to take a job because of sincerely held

religious beliefs may not be denied unemployment benefits (e.g.,

refusing to work on Sabbath, refusing to produce armaments); a person









41

can, however, be denied such benefits if he or she is fired for a violation

of the criminal laws (e.g., peyote use). In addition, religious oaths may

not be required for government employment.



iv. Amish children are exempt from mandatory secondary education.





ESTABLISHMENT CLAUSE



Congress shall make no law respecting the establishment of religion. The 14th Amendment incorporates this

clause, thus making it applicable to state and local governments. There is a three-part test for Establishment

Clause issues:



i. the law must have a secular purpose (indeed, the primary purpose must be secular)



ii. the effect of the law must not be to advance or inhibit religion (in other words, the government must not

symbolically endorse religion)



NOTE: holiday scenes are permissible if they include both religious and non-religious symbols

(i.e., the government should include a snowman)



July 1998 Sample MBE Question 165



- in 2005, the Supreme Court held that courthouses may not display the 10 Commandments on

government property, unless they are displayed with other historical documents in an

appropriate context (similar to Christmas displays)



- direct subsidies to religious schools are impermissible, but vouchers to parents, which may be

used for religious and non-religious schools, are constitutional



- any law that discriminates among religions must meet Strict Scrutiny



iii. there must not be excessive entanglement with religion



- government payments to religious school teachers are unconstitutional



iv. Examples:



- government sponsored religious activities in public schools (elementary, middle and high

school) are unconstitutional



- all school prayer (including voluntary, silent (prayer), clergy-ran, student-ran prayer) during

school, at graduation, or at sporting events is unconstitutional; bible reading and the teaching

of creationism (or the prohibition of teaching evolution) is unconstitutional



- the government may give assistance to religious schools as long as the aid is not used for

religious instruction



constitutional aid: (free textbooks to all schools; transportation to and from school for all

students; diagnostic tests; remedial education, guidance, counseling)









42

illegal aid: (transportation for field trips, payment of teachers’ salaries, reimbursement

for writing achievement tests)



- if the school opens its building after hours to community groups, it must include religious

groups



- schools may allow students to leave early to attend religious instruction off-campus



- the court gives less scrutiny to aid to religious colleges, hospitals, etc. than it does to aid to

religious high schools



- the state legislature may have chaplain









43