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Con Law - DOC

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									                                                Con Law Attack

I.    ASK IS THERE A JUSTICIABLE CASE OR CONTROVERSY? (RAAMPSE)

      A. Ripeness: the court will decide whether to grant pre-enforcement review of the statute or regulation.
            1.Hardship suffered without pre-enforcement review: greater the hardship the more likely to
               review
            2. Fitness of the issues and the record: does court have all it needs to decide the case?
      B. Abstention: Unsettled questions of state law of pending state proceedings (unless brought in bad
           faith)
            1. SC Review of State Court Decision: Must not be independent and adequate state law ground of decision
      C. Advisory Opinions: must be specific harm or threat of such. Declaratory ok
      D. Mootness: Need real controversy at all stages Unless:
            1. Wrong is capable of repetition
            2. Voluntary Cessation but free to resume
            3. Class actions suits where rep’s case is moot, but the other class members still have claims
      E. Political Question: No judicial resolution on these: (Republican form of Gov’t, Foreign Policy,
          Impeachment/removal process, Political re-districting)
      F. Standing: plaintiff must have actual/imminent injury, show causation (D caused injury), have
          redressabilty (favorable court decision likely to remedy harm)
            1. Plaintiff cannot have third party standing, except: close relationship, unlikely able to assert
               own rights, organizational (members would have standing to sue; interests germane to
               organization’s purpose; claim nor relief doesn’t require all to participate)
            2. Plaintiff cannot have taxpayer standing, except: challenging expenditures violating
               Establishment Clause
      G. Eleventh Amendment: Sovereign Immunity: prohibits Courts from hearing private party’s or
         foreign gov’t claims against a state gov’t (not local gov’t) EXCEPT:
         1. Express waiver
       2. Authorized by Congress (§5 of the 14th Amend.)
       3. Fed Gov’t can sue states
       4. Suits against officers for injunction or damages that do not come out of state treasury.

II.   WHAT KIND OF ISSUE IS RAISED?

      A. SEPARATION OF POWERS: Did Any Branch Overstep its Bounds?
             i. Judicial: SC Review (Final Judgment Rule: Highest state court, USCA, 3-Judge Panel), Suites btw
                state gov’ts, (see above> Justiciability)
            ii. Executive: Foreign Policy, Domestic Affairs
                     1. Treaty (2/3 approval by Senate), Fed law: Last in time
                     2. EA: No approval and invalid if conflicts w/Fed Law
                     3. CIC: broad powers to use military in foreign countries
                     4. Domestic: Appointment Power, Removal Power, Impeachment (2/3 Senate, majority vote in
                         House for removal), Veto (no line-items), Absolute immunity for civil suits while in office,
                         Exec priv. to keep papers/conversations private but not absolute, Pardon (Fed. Criminal
                         Crimes)
           iii. Federal Legislative Powers (Source of Power) Has Congress Overstepped?
                     1. Necessary and Proper
                     2. Police Power for MILD
                     3. Spending Power: Congress may spend for the general welfare
                     4. Taxing Power: Upheld if intended to or results in raising revenue or Congress has power to
                         regulate the activity taxed
                     5. Taking Property: Power to dispose and take (actual possession or regulatory if for a public
                         purpose and just compensation is given)
                     6. Citizenship: Power over aliens and immigration rules
                     7. Civil Rights: §5 of the 14: cannot create or expend just 1. Prevent/remedy violation of
                         already exisisting rights 2. SLA law is proportional and congruent to the violation.
                     8. War Powers: Congress has the power to declare war, raise and support armies, provide for
                         and maintain a navy
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                                1. Economic regulations during and after wartime to remedy wartime
                                   disruptions have been upheld.
                                2. Make military courts and tribunals
                9. Commerce Clause: Congress has plenary and pervasive, but nonexclusive, power
                   to regulate the channels and instrumentalities (persons and things) of interstate
                   commerce and activities that have a substantial effect on interstate commerce (even
                    if intrastate)
             10. LIMITS: BICAMERALISM (passage by H&S and presentment to Pres.) AND 10th Amend
                      i. 10th Amend.: All powers not delegated to federal govt and not prohibited to the states are
                      reserved to the states or the people.
                      1. Congress cannot compel state regulatory or legislative action, but can add conditions to
                      grants as long as they are expressly stated and relate to the purpose of the spending program
                      2. Congress may prohibit harmful commercial activities by state governments

B. FEDERALISM: STATE INTERFERENCE WITH THE FEDERAL SYSTEM
   Did the State overstep its bounds?
   1. Supremacy Clause: Federal law may supersede or preempt local laws.
            a. If a state law conflicts with federal law, the state law will be invalidated.
                      i. Preemption: Federal law preempts state law where federal statute explicitly states federal
                      law is exclusive in the field (express preemption) or if both are mutually exclusive, state law
                      impedes a federal objective (implied preemption).
   2. Intergovernmental Immunity: states may not tax/regulate federal government activity. Unconstitutional
   to pay state tax out of federal treasury; states can’t regulate federal government if significant burden on federal
   activity
            i. Dormant Commerce Clause: if Congress has not enacted laws regarding the subject, state/local
            govt may regulate activities that are purely local if:
                      1. the law does not discriminate against interstate commerce to benefit local interests and
                      2. the law does not place an undue burden on interstate commerce
                      Exception: Discriminatory state law will be invalid unless it furthers an important state
                      interest and there are no reasonable nondiscriminatory alternative OR the state is a market
                      participant (e.g. when buying or selling, hiring labor or giving subsidies; vs. a market
                      regulator) Congressional Approval
                                i. If a non-discriminatory state law burdens interstate commerce will be invalid if the
                                burden on commerce outweighs state’s interest. The court will apply less restrictive
                                alternative test.
                      *exam: if law is discriminatory, also consider Art 4 P&I Clause, EPC and
                               Contract Clause.
   3. Art. IV:Privileges & Immunities Clause prohibits arbitrary discrimination against citizens of another state
   unless it is necessary to achieve an important government interest.
            1. Only “fundamental rights,” those involving civil liberties and important economic activities (e.g.,
            pursuit of livelihood) are protected.
            2. Corporations and aliens are not protected by this clause.
            *Exam, also consider Commerce Clause, EPC, Contracts Clause
   4. 14th Amend. Privileges OR Immunities Clause: States may not deny their citizens the P&I of national
   citizenship (e.g. right to vote for federal officers, right to interstate travel, right to petition Congress for redress
   of grievances).
            1. Does not protect corporations.
   5. State Taxation of Interstate Commerce: Must not be used to help in-state businesses at expense of out-of-
   staters.
            1. Only tax business/activities that have substantial nexus to state; and
            2. State taxation of interstate business must be fairly apportioned (tax is based on extent of taxable
            activity/property in the state)
   6. Full Faith& Credit Clause: courts in one state must give full faith and credit to judgments of courts in
   another state if the court had jurisdiction (PJ &SMJ), judgment was on the merits, and judgment is final.

C. INDVIDIUAL RIGHTS (SSTRREPS)
      i. STATE ACTION: Is there state action always ask this (don’t forget justiciability)
            1. Public Function
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       2. Entanglement: encourages, facilitates, authorizes discrimination
ii. SPEECH
       1. 4 Facial Attacks: “UP {&} OV(er)”
              a. Unfettered discretion
              b. Prior restraint: an action that would prevent speech before it occurs (usually Strict
                  Scrutiny is applied)
                  2. Government licensing of speech must have an important reason for licensing and
                  a clear criteria leaving almost no discretion to the licensing authority and must
                  provide certain procedural safeguards.
                  3. If government adopts a content-based prior restraint of speech, the govt has the
                  burden of proving that the restriction is narrowly tailored (least restrictive
                  alternative) to achieve a compelling or, at least, significant government interest.
                  4. Procedural safeguards. the standards must be narrowly drawn, reasonable and
                  definite , the restraining body must seek an injunction and there must be a prompt
                  and final judicial determination of the validity of the restrain.
              c. Overbroad: regulates substantially more speech than allowed
              d. Vague: Fails to give rsbl notice of what is prohibited
       2. Content Specific or Content Neutral?
       3. Content Specific (6 forms of unprotected Speech) “SCOF A(t) D”
              a. Symbolic Speech: unconstitutional to ban flag burning but ok to ban/regulate
                  burning draft cards or exotic nude dancing.
              b. Commercial Speech: false advertising is not protected, but lawful, non-
                  misleading/non-fraudulent speech may be regulated if it serves a substantial
                  government interest, directly advances that interest, and is narrowly tailored to serve
                  that substantial interest.
              c. Obscenity: “Millet Test” obscene speech is not protected; speech is obscene if taken
                  as a whole by the average person, appeals to the prurient interest in sex, portrays sex
                  in a patently offensive way by contemporary community standards, and lacks serious
                  scientific, literary, artistic, Political or social value (“LAPS” national standard) (Also
                  complete ban on Child Porn)
              d. Fighting words: personally abusive words likely to incite immediate physical
                  retaliation.
              e. Advocacy of illegal conduct: (clear and present danger test) speech directed at
                  producing imminent unlawful activity that is substantially likely to produce the
                  unlawful activity.
              f. Defamation: a public figure must prove actual malice and falsity of the statement; a
                  private citizen with public concern must prove falsity and negligence for actual
                  damages/malice for all damages.
       4. Content-neutral restrictions generally only needs to meet intermediate scrutiny.
              a. Conduct regulations. The government can regulate conduct related to speech and
                  assembly by content neutral time, place and manner restrictions if it has an important
                  governmental interest, unrelated to suppression of the message, and if the impact on
                  regulation is no greater than necessary to achieve the government’s purpose.
              b. Time, Place, Manner Restrictions. The breadth depends on whether the forum is
                  public/designated public/nonpublic.
                        i. Public forums: government restrictions of public forums must be content-
                            neutral, narrowly tailored to serve an important govt interest, and leave open
                            alternative channels of communication.
                       ii. Non-public forums: government restrictions of non-public forums must be
                            viewpoint neutral and must be rationally related to a legitimate government
                            purpose.

iii. TAKING: (5TH Amend)
       1. Taking (actual possession or regulatory: no economic use) must be for public use (SHEP
          SWAM: Safety, Health, Economic, Political, Social, Welfare, Aesthetic, Moral)
       2. Is Just Compensation Paid? (FMV at time of taking)
iv. RELIGION: (1st Amend.)

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            1. Free Exercise: Guarantees right to hold religious beliefs, but resulting conduct can be
                prohibited if there is a compelling state interest; least restrictive means (Balance the interests)
                Gov’t can inquire into whether the individual’s beliefs are sincere.
            2. Establishment: Lemon Test (SEX) 1. Secular Purpose 2. Effect neither advance or prohibits
                religion 3. No eXcessive gov’t entanglement.
  v.    RETROACTIVE LEGISLATION
            1. Contract Clause: Prohibits states from enacting any law that retroactively impairs contract
                rights. (Use Intermediate Scrutiny for state/local laws for private contracts). (Use Strict
                Scrutiny for public contracts)
            2. Ex Post Facto: Laws the retroactively make something a crime or expand punishment,
                change evd. Rules (only criminal)
            3. Bills of Attainder: Laws that direct punishment of a person w/o a trial.
            4. Freedom of Association: Laws that punish group membership must meet Strict Scrutiny.
                Groups can discriminate if it is an intimate association (small dinner party) or expressive
                activity (boy scouts)
                3 Part test used to punish for membership.
                     a. Person actively affiliated with group
                     b. Knowing of illegal activities
                     c. With the specific intent to further those illegal activities
 vi.    EQUAL PROTECTION
            1. Is there state action?
            2. What is the classification? Either on the Face, or facially neutral (show impact and intent)
            3. Level of Scrutiny
                     a. Strict: Burden on state to show the law is necessary (i.e. no less restrictive alternative
                          means exists) and a compelling interest. (1st Amend and RAN (race, aliens as to
                          states not fed, national orgin)
                     b. Intermediate: Burden on state to show the law is substantially related to an important
                          interest. (gender, illegitimacy, undocumented immigrant children)
                     c. Rational Basis: Burden on Plaintiff to show that the law is not rationally related any
                          conceivable legitimate gov’t interest. (all other classifications)
            4. Does the law meet that level?
vii.    PROCEDURAL DUE PROCESS: No Deprivation of LIFE, LIBERTY OR PROPERTY without
        due process (notice and hearing)
            1. Importance of interest to the individual
            2. Ability that additional procedures increases accuracy of fact finding
            3. Gov’t interest in saving money or efficiency
viii.   SUBSTANTIVE DUE PROCESS: No Deprivation of LIFE, LIBERTY OR PROPERTY
        without due process (need an adequate reason)
            1. Life: Usually not an issue
            2. Liberty: “STAR VP” (Speech, Travel, Association, Religion, Vote, Privacy)
                Privacy rights: “CAMPER” (Contraception, abortion, marriage, procreation, educate and raise
                child, right to have related persons live together) USE STRICT SCRUTINY FOR ANY OF
                THESE
            3. Property: (see takings)




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