Con Law 1 Federal Judicial Powers Justiciability= federal courts are limited to cases & controversies o Standing= Injury (must be or imminently will be injured), Causation (∆ caused or will cause injury), Redressibility (favorable decision will remedy the injury). Federal court cannot issue advisory opinions. o 3rd Party Standing: General Rule=not allowed. Exceptions (1) close relationship (i.e. doctor-patient); (2) Injured 3rd Party unable to assert own rights (i.e. peremptory challenges); (3) Organization (members must have standing; interests relevant to Org’s purpose.) o No Generalized Grievances: π cannot sue solely as a citizen or a taxpayer; Exception= challenging government expenditures under the Establishment Clause ($ only; not property) o Ripeness: pre-enforcement review. If hardship will be suffered without preenforcement review & court has everything it needs to decide. o Mootness: π must present a live controversy, if injury ends, so does case; Exceptions: (1) capable of repetition but evading review (Roe); (2) ∆ voluntarily ceases but can resume anytime; (3) Class Action suits (if named π’s claim becomes moot, action can continue) o Political Question: Constitutional violations Fed Courts won’t adjudicate; 4 Types: (1) “republican form of govt”; (2) Challenges against Prez’s foreign policy; (3) Challenges to impeachment and removal; (4) challenges to partisan gerrymandering (drawing legislative seats) Supreme Court Review- virtually all cases come before court by writ of certiorari o Writ of Certiorari: (1) 4 SC justices vote to hear case; (2) all cases of US Ct of Appeals (discretionary); (3) appeals from 3-Judge Federal District Courts (Mandatory); (4) Suits between States. o Final Judgment Rule: must be a final judgment of the highest state court; US Appellate Court; or of a 3-Judge Federal District Court. o Adequate & Independent State Grounds: if state court decision rests on two grounds; one state law and one federal law; if the SC’s reversal of the federal law ground will not change the result in the case, the SC cannot hear it. Lower Federal Court Review: Justiciability requirements must be met. o Rule: may not hear suits against state governments; 11th Amendment (bars suits against states in Federal Courts) & Sovereign Immunity (bars suits against states in state courts). Exceptions: (1) Waiver (explicit); (2) Due Process; (3) Federal government may sue states. (4) States may sue states. Suits against state officers are allowed. o Abstention: Federal courts may not enjoin pending state court proceedings. Federal Legislative Powers Congress’ Authority to Act: o Express or Implied Congress Power: all Congress’ powers come from constitution. No express Police Power. Exceptions: (1) Military; (2) Indian Reservations; (3) Federal Lands & Territories; (4) Washington DC. o Necessary & Proper Clause: Congress has the power to use any means necessary to carry out its specifically granted powers. o Taxing/Spending Powers: Congress can tax & spend for the General Welfare (create any tax it and spend it how it sees fit). o Commerce Clause: Congress can regulate (1) channels of interstate commerce (i.e. highways, waterways, internet); (2) instrumentalities of Interstate Commerce (i.e.
Con Law 2 trucks, planes, internet); (3) activities that have a substantial effect on interstate commerce. o 10th Amendment: Reserve Powers: all powers not granted to the US, nor prohibited by the states, are reserved to the states or the people. Congress cannot compel state regulatory or legislative action (i.e Brady Bill) Congress may prohibit harmful commercial activity by state governments. (ie Fed Law can prohibit state DMV from releasing personal info) o Section 5 of 14th Amendment: gives Congress power to adopt laws to protect 14 th Amendment; cannot create new rights, only laws that protect preexisting rights, as long as they are Proportionate & Congruent to protecting the rights or remedying violations Delegation Powers o No limit on Congress’ right to delegate legislative powers o Legislative vetoes and Line-Item vetoes= unconstitutional. Must be bicameralism and presentment (president must sign bill in its entirety). o Congress cannot delegate executive powers to itself or itself offices. “congress can give but congress can’t take”
Federal Executive Powers Foreign Policy o Treaties= agreements between US and foreign country. Must be ratified by Senate. Rules: (1) prevail over existing state law; (2) if conflicts with federal statute; last in time wins; (3) If treaty conflicts with Constitution, treaty is invalid. o Executive Agreements= agreements between US and head of foreign country, effective when signed. Need not be ratified. (1) can be used for any purpose; (2) prevail over conflicting state laws; (2) do NOT prevail over federal statutes or the Constitution. President has broad powers to use foreign troops in a foreign country (never been considered unconstitutional). Domestic Affairs o Appointment Power: President appoints ambassadors, federal judges and officers of US senate approval required***. Congress can vest appointment of inferior officers in the president, the heads of apartments or lower federal courts. Congress cannot give itself the appointment power. o Removal Power: unless limited by statute, president may fire any executive branch officer. Congress may limit removal if: (1) office where independence from President is desirable (independent counsel); (2) good cause. Congress cannot prohibit removal, only limit it. o Impeachment: House impeaches (2/3 vote req’d), Senate holds trial (2/3 vote req’d). President, VP, federal judges, and officers of US can be impeached and removed from office. o Civil Suits Against President: President has absolute immunity to civil suits for actions while in office, but is liable for any actions before taking office. o Executive Privilege: President has executive privilege for presidential papers and conversations. Exception: must yield them to other important government interests (Nixon) o Pardon Power: President can pardon those convicted of federal crimes. Limitations: (1) only criminal, no civil; (2) no pardons for impeachment; (3) only federal. No pardon for state crimes.
Con Law 3 Federalism Preemption o Supremacy Clause: Constitution is supreme law of the land. If there is a conflict between state & federal law; federal law wins. o Express Preemption: if federal statute explicitly says it preempts o Implied Preemption: preemption will be found if (1) federal and state laws are Mutually Exclusive; or (2) state law impedes federal objective; (3) Congress evidences a clear intent to preempt state law. o Inter-Governmental Immunity: State may not tax federal government activity. (“it is unconstitutional to pay state taxes out of the Federal Treasury.” State cannot regulate the federal government and place a burden on federal government if it relates to the core governmental function. Dormant Commerce Clause: State and local laws are unconstitutional if they place an excessive burden on interstate commerce. o Test: If law discriminates = violates Dormant Commerce Clause unless it is necessary to achieve an important government interest; If law doesn’t discriminate, then if burden on IC OUTWEIGHS benefit to state, violates DCC Must show No Reasonable Less-Restrictive Alternatives Exceptions: (1) Congressional Approval; (2) Market-Participation Exception (govt owned business) o States may not use their tax systems to help in-state business. State taxation must be Fairly apportioned (% of miles or % of revenues). Privileges & Immunities: no state may deny citizens of other states the privileges and immunities (civil liberties and important economic activities) afforded its own citizens. o Test: If law discriminates (i.e. government tries to help own citizens or businesses at expense of others)= violates P&I unless necessary to achieve an important government interest. If law does NOT discriminate ≠ violate P&I ***Law must be with regard to civil liberties or important economic activities (shrimping license =violates; hunting license= hobby, does not violate o Corporations and Aliens cannot use privileges and immunities clause.** o If the answer choice refers to the P and I clause of the 14 th amendment, it is always going to be the wrong answer unless it refers to the right to travel. Full Faith & Credit Clause: courts in one state must give full fiath and credit to judgments of courts in another state. (must have jurisdiction, judgment on merits, and final judgment to apply) Constitutional Protection of Individual Rights State Action Requirement: constitution only applies to government action. Private Conduct need not comply with the constitution. (teacher at private school can’t claim 1 st amendment right after being fired for speaking out). Exception: Congress, by Statute, may apply constitutional norms to private conduct. o 13th Amendment: prohibits slavery- allows Congress to prohibit private race discrimination. o Commerce Clause: used to apply Constitutional norms to private conduct. (Hotels and Restaurants cannot discriminate based on race). o §5 of 14th Amendment: Congress cannot use §5 to regulate private behavior, only state & local government behavior. Exception: Situations where private conduct must comply with the Constitution
Con Law 4 o Public Function Exception: if private entity is performing a task traditionally, exclusively done by the government (i.e. running a town, holding elections. Not utility company) o Entanglement Exception: if government affirmatively authorizes, encourages, or facilitates unconstitutional activity. (seven key examples: (1) courts cannot enforce racially restrictive covenants; (2) state action when states provide books to schools that racially discriminate; (3) no state action when a private school that is 99% funded by state fires a teacher because of her speech; (4) no state action when NCAA orders suspension of a basketball coach of a state university; (5) state action when government leases premises to a restaurant that racially discriminates; (6) state action when private entity (TSAA) regulates interscholastic sports within a state; (7) No state action simply because club has a liquour license Application of Bill of Rights o General Rule= Bill of Rights applies directly only to Federal Government o General Rule= Bill of Rights applies to State & Local Governments through the due process clause of the 14th Amendment.**** Exceptions (these provisions of the Bill of Rights do not apply to the States): (1) 2nd Amendment (states cannot adopt any form of gun control they want; (2) 3rd Amendment (not have soldier quartered in home; (3) 5th Amendment (no state right to have grand jury indictment in criminal case); (4) 7th Amendment: (no right to jury trial in civil cases) (5) 8th Amendment: (right against excessive fines) All other Bill of Right Amendments do apply to the State & Local Governments
Levels of Scrutiny Test you use to determine if a law should be upheld when it violates the Constitution RATIONAL BASIS TEST: a law is upheld if it is rationally related to a legitimate government purpose. o Burden on the challenger. o Legitimate=some conceivable purpose o Government almost always wins INTERMEDIATE SCRUTINY: a law is upheld if it is substantially related to an important government purpose. o Substantially related = narrowly tailored. o Does not have to be the best way. STRICT SCRUTINY: a law is upheld if it is necessary to achieve a compelling government purpose & there are no less restrictive alternatives. o Government has the burden of proof. Due Process Procedural Due Process: process government must go through if it takes away a person’s life, liberty, or property. o Deprivation of Liberty= violation of a person’s constitutional rights (not harm to reputation, must be an Economic Loss) (Adults v. Children: except in an emergency, adult must receive notice and a hearing to be institutionalized; parent can institutionalize a child- only need a screening by a neutral fact-finder).
Con Law 5 o Deprivation of Property= occurs if there is an entitlement and that entitlement is not fulfilled. (Entitlement =reasonable expectation to continued receipt) (if person works for government and government promises the person that the job will be his for the next year, then the government fires him after ½ a year- the government violated due process). o ***Intentional Taking Required. Negligence is not sufficient for a due process claim (must be intentional government action or at least reckless action for liability to exist.) In Emergency Situations, the government is liable under due process only if its conduct “shocks the conscience”. Exs: Prisoner slipped on pillow; high speed chase led to boy’s death= emergency situation. o Government’s failure to protect people from privately inflicted harms does not deny due process. o Procedures Required: 3 Part Balancing Test: (1) Importance of interest to individual; (2) ability of additional procedures to increase the accuracy of the factfinding; (3) government interests. Specific Situations: (1) Welfare Benefits- before terminated, must be notice and a hearing; (2) Social Security Disability Benefits- if terminated, need only posttermination hearing (3) Student Disciplined By School- notice & opportunity to be heard; don’t need a trial type hearing. (4) Punitive damage awards- requires instructions to jury & judicial review. Grossly excessive punitive damages violate due process (5) Enemy Combatant- an American citizen apprehended in a foreign country must get due process (6) Government seizure of Assets- must be afforded due process Unless exigent circumstances (i.e. fear owner will get rid of) (7) Illegal activity- when property is used in illegal activity, government can seize it, even if it has an innocent owner. Substantive Due Process: whether government has an adequate reason for taking away a person’s life, liberty, or property. Different tests applied o Economic Taking Takings Clause: government may take private property for public use if it provides just compensation. (Taking= Possessory or Regulatory= leaves no reasonable economically viable use)** (Public Use= government reasonably believes taking will benefit the public) (Just Compensation= loss to owner, not gain to the government) Contracts Clause: no state shall impair the obligations of contracts (applies only to local & state interference with existing contracts, Never Fed!!!) Intermediate Scrutiny: legislation that substantially impairs a party’s rights under an existing contract must be reasonably and narrowly tailored to a legitimate public interest. o Liberty Taking Ex Post Facto Law: law that criminally punishes that was lawful when it was done, or increases punishment. Criminal = unconstitutional. Civil=retroactive civil liability only needs to meet rational basis test.*** Bills of Attainder: if legislature passes a law that is specifically aimed at one person; i.e. law states “X shall be in prison” = unconstitutional. o Privacy
Con Law 6 Right to Marry- strict scrutiny Right to Procreate- strict scrutiny Right to Custody of One’s Children- strict scrutiny Right to Keep the Family Together-- strict scrutiny (must be related) Right to Control Upbringing of One’s children- strict scrutiny Parents have a right to send kids to parochial school Violates due process for court to order grandparent’s visitation rights Right to Purchase and Use Contraceptive- strict scrutiny Right to Have an Abortion- UNDUE BURDEN TEST Undue Burden: government may regulate abortion as long as it does not create an undue burden on the right to have an abortion Undue Burden: (1) prohibiting partial birth abortions; (2) spousal consent & notification laws Not Undue Burden: (1) Doctor must perform; (2) 24-hour waiting period; (3) no abortion after viability- unless mother’s health at risk; (5) parental notice for unmarried minors (alternative procedure required). Right to Engage in Private Homosexual Activity- unknown Right to Refuse Medical Treatment- special Competent adults have right to refuse medical treatment, even life saving treatment (SC did not articulate level of scrutiny, only the rule) State may require clear & convincing evidence that a person wanted treatment terminated before it has ended. State may prevent family members from terminating treatment for one another Right to Physician Assisted Suicide- no right. Rational basis review.
Equal Protection Equal Protection Clause applies to Federal Government through the due process clause of 5th Amendment. Equal Protection Clause applied to states and local governments through 14th Amendment. Classifications o Race - strict scrutiny Proving racial classification: If facially neutral: discriminatory intent & discriminatory impact** Racial classifications benefiting minorities (strict scrutiny)- (1) quota allowed if clear proof of discrimination; (2) educational institutions may use race as one factor in admissions decisions (cannot Add points to score); (3) Seniority systems may not be disrupted by affirmative action o National Origin/Alienage - strict scrutiny Undocumented Alien Children- - intermediate scrutiny Concerning Self Government - rational basis test Congressional Discrimination of Aliens (i.e. Immigration)- allowed o Gender – intermediate scrutiny (+ must have exceedingly persuasive justification) Proving gender classification: If facially neutral= discriminatory intent & discriminatory impact. Gender classifications benefiting women: (1) if based on role stereotypes- not allowed; designed to remedy past discrimination – allowed. o Non-Marital Children – intermediate scrutiny
Con Law 7 Religion - strict scrutiny (1 Amendment) Age – rational basis Disability – rational basis Economic Regulations – rational basis i.e. law said push car vendors in New Orleans had to have worked for 8 years o Sexual Orientation – rational basis o Wealth – rational basis Fundamental Rights under Equal Protection o Right to Travel Local - strict scrutiny Foreign – rational basis Durational Residency Requirements (when person must live in a jurisdiction for a certain amount of time) - strict scrutiny (for voting- max 50 days) o Right to Vote Laws that deny some people right to vote - strict scrutiny One Person One Vote must be met for all state and local elections Specific Examples: (1) Poll taxes (pay to vote)= unconstitutional; (2) property ownership requirements- almost never allowed except water district election; (3) At-Large Election (all voters vote for all of the office holders)- allowed, uless there is proof of discriminatory impact and intent; (4) use of race in drawing election lines must meet strict scrutiny, even if used to help minorities; (5) Counting uncounted votes without standards in a presidential election= unconstitutional. o Right to Education – no right o o o o
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1st Amendment Freedom of Speech o Content Based v. Content Neutral Content Based - strict scrutiny (subject matter restrictions, viewpoint restrictions) Content Neutral (time place manner if public forum) – intermediate scrutiny o Prior Restraints: judicial order or administrative system that stops speech before it occurs. Court orders suppressing speech must meet - strict scrutiny. If violate court order, you can’t challenge it later Licenses- allowed if (1) clear criteria (no discretion and (2) important reason o Vagueness (a reasonable person cannot tell what speech is prohibited and what’s not) – unconstitutional o Overbreadth (regulates substantially more speech that the constitution allows to be regulated) = unconstitutional. Fighting Words: vague and overbroad= unconstitutional o Symbolic Speech: government can regulate if it has an important interest unrelated to the message and if impact on communication is no greater than necessary to achieve the government purpose. Examples: (1) flag burning- protected; (2) draft card burning- not protected; (3) Nude dancing- not protected; (4) Burning a Cross- protected if not intended to threaten or intimidate; (5) Campaign Contribution Limits- not protected; (6) Campaign Expenditure Limits- protected. o Anonymous Speech- protected (right to speak and right not to speak)
Con Law 8 o Incitement of Illegal Activity- unprotected if substantial likelihood of imminent illegal activity o Obscenity & Sexually Oriented Speech – 3 Part Test (1) material must appeal to the prurient interest (2) material must be patently offensive under the law prohibiting obscenity (3) Taken as a whole, material must lack serious redeeming artistic, literary, political, or scientific value. Examples: (1) zoning ordinances= allowed; (2) child pornography= not allowed; (3) private possession of obscene material= allowed; profane and indecent speech= allowed, EXCEPT over broadcast media & in schools. o Commercial Speech: - intermediate scrutiny EXCEPTIONS: (1) Advertising for illegal activity= not protected (2) False & Deceptive Ads= not protected (3) True Commercial Speech that inherently risks deception= not protected (i.e. government can prevent professional from advertising under a trade name- optometrists) (i.e in-person solicitation- attorneys, not accountants) o Defamation Π = public official, must prove falsity and actual malice (=knowledge of falsity or reckless disregard for truth) Π ≠ public official, must prove falsity and negligence for general damages (actual malice for punitive damages) o Privacy & Speech (special content based rules) Government cannot create liability for truthful reporting of information that was lawfully obtained from government No liability if media broadcasts a tape of an illegally intercepted call, if media did not participate in the illegality Government may limit the dissemination of information to protect privacy. o Places Available for Speech Public Forums: government property that government is constitutionally required to make available. (i.e. sidewalks, parks) Content Based -- strict scrutiny Content Neutral – Time, Place, Manner restrictions only- - must serve important government purpose and leaves open adequate alternative places for communication (need not be least restrictive alternative) Limited Public Forums: government property that government could close to speech but chooses to open to speech. (if government opens it as a public forum, must follow public forum requirements). Non-Public Forums: government properties that government can and does close to speech. – rational basis Non-public forums= (1) military bases, areas outside prisons, advertising space on city buses, sidewalks-at post office, airports Private Property- there is no 1st Amendment right of access to private property for speech purposes. Freedom of Association - strict scrutiny (special test) o Prohibit Group Membership Laws that prohibit or punish group membership must meet strict scrutiny. (To punish, must show (1) actively affiliated with group; (2)
Con Law 9 knowledge of its illegal activities; (3) with specific intent of furthering those illegal activities). o Disclosure of Group Members: - strict scrutiny o Laws Prohibiting Group From Discriminating = constitutional unless they interfere with (1) intimate association (i.e. small dinner party) or (2) expressive authority (KKK) Freedom of Religion o Free-Exercise Clause: freedom to practice whatever law you want. **Rule: Free-Exercise clause cannot be used to challenge a neutral law of general applicability (i.e. Native Americans cannot use FEC to challenge law against peyote). If law is motivated by desire to interfere with religion, then must satisfy - strict scrutiny. Rule: The government may not deny benefits to individuals who quit their jobs for religious reasons. o Establishment Clause: government can make no law respecting or restricting establishment of religion. 3 Part Test (S E X)- special test (1) there must be a secular purpose for law o If primary purpose is to advance religion, it fails. (2) the effect must be neither to advance nor inhibit religion o Nativity scene on public land violates (3) there must not be excessive entanglement with religion o Govt cannot directly pay teachers salaries in parochial schools o Religious Speech-- strict scrutiny If government is going to treat religious speech separately from secular speech, must meet strict scrutiny. o Schools & Religion Government sponsored religious activity in public schools is unconstitutional. But, religious students and community groups must have same access to school facilities as non-relgious groups. School Prayer= unconstitutional Silent Prayer in School= unconstitutional Parochail Schools: government may give assistance to parochial schools, so long as it is not used for religious instruction. Vouchers- government may provide parents with vouchers which they in turn use for parochial schools.