CA Bar- Con Law- Breeden Attack Sheet (Barbri)

CON LAW (BREEDEN ATTACK SHEET) WHO IS THE ACTOR? ---------------------------------------------------------------CONGRESS: 1. (ASK ONE OR BOTH QUESTIONS) DOES CONGRESS HAVE AUTHORITY TO ACT? (“DEPOT C14”) 2. 3. 4. 5. 6. 7. HAS CONGRESS VIOLATED A LIMIT ON ITS POWER? (“FEDS”) 1. (AND/OR) DOCTRINE OF ENUMERATED POWERS [(1) those powers expressed or implied by Constitution; (2) 10th Amendment limit on Congressional powers (those powers not delegated to FG are retained by States; (3) Necessary and proper clause] TAXING AND SPENDING POWER [May tax and spend for any reason reasonably regarded for general welfare; can attach strings to federal appropriations; a federal tax valid if dominant intent is fiscal] COMMERCE POWER [Congress may regulate (“CIA”): (1) Channels of Interstate Commerce (highways, waterways, internet); (2) Instrumentalities of interstate commerce and person or things in interstate commerce (trucks, planes, internet); (3) Activities that have a substantial effect on interstate commerce (if non-econ interstate activity, must show activity affects interstate commerce)] NO EXPRESS GENERAL POLICE POWER [4 exceptions “MILD”: where Congress legislating for (1) military (2) Indian reservations (3) federal lands and territories (4) DC] CONGRESSIONAL POWER UNDER 14 AMENDMENT, SEC 5 [Congress can’t create new rights or expand scope of rights, but can prevent or remedy violations of rights recognized by courts/must be narrowly tailored] OTHER POWERS [War power (declare/raise & support forces/make rules to regulate armed forces); Postal power; Power to coin money; Immigration; Copyright; Patent; Bankruptcy; Impeachment] DELEGATION OF POWERS [No limit on delegation; Legislative/line-item vetoes unconstitutional; May NOT delegate executive power to itself or its officers] STATE ACTION (“P.E.”) [Always start with discussing state action to make sure government is doing the action (should be obvious in most questions but if it is a non-governmental actor, need to discuss how they are a state actor); state action is a threshold requirement of government conduct which must be satisfied before private discrimination can be restricted under 14th or 15th Amendments (13th can punish purely private acts of discrimination without state action); PUBLIC FUNCTION (private entity performing activities traditionally and exclusively carried on by state; ex: company town but not privately owned utility company); ENTANGLEMENT (state facilitates, encourages, or authorizes discrimination by private actor)] DUE PROCESS [Government cannot DEPRIVE a person of LIFE, LIBERTY or PROPERTY without due process (5th Amend=Federal; 14th Amend= State/local)] PROCEDURAL DUE PROCESS [Notice and a hearing; court balances 3 factors: (1) importance of interest to individual (2) ability of additional procedures to increase accuracy of fact finding (3) government’s interest (usually money or efficiency); Government owes you proper procedure; EX POST FACTO LAWS (retroactively changes criminal law; not constitutional/denying proper process); BILL OF ATTAINDER (legislative punishment of named group or individual without judicial trial/denying proper procedure] SUBSTANTIVE DUE PROCESS [Government has to give you an adequate reason for depriving you of life, liberty, or property (INCLUDE THE DESCRIPTIONS OF THESE BELOW IN YOUR ANSWER)] LIFE [rarely in issue; government would have to be killing you] LIBERTY [6 FUNDAMENTAL FREEDOMS granted under the Constitution or statutes “STAR VP”: (1) Right to Privacy (“CAMPER” contraception, abortion, marriage, procreation, education of children outside public schools, and right of related persons to live together) (2) Right to Vote (3) Right to Travel (4) Freedom of Speech (5) Freedom of Association (6) Freedom of religion; STRICT SCRUTINY for fundamental freedoms (except abortion is “undue influence”/a branch off of intermediate)] PROPERTY [Entitlements, such as right to public education, right to private property, welfare; TAKINGS CLAUSE: (1) Is it a possessory taking? (Confiscation or physical occupation) OR is it a regulatory taking? (Denies all reasonable economically viable uses) (2) Is it for public purpose (“SHEP SWAM”: safety, health, economic, political, social, welfare, aesthetic, moral ends) (3) is just compensation paid?); CONTRACTS CLAUSE: (1) prevents state/local (not FG) from enacting legislation which retroactively impairs public and private contracts (2) applies to “Property” under DP because if the purpose of an already existing contract is frustrated, the person might not receive performance entitled to; Rational Basis test for laws affecting economic rights, such as minimum wage laws) DP ESSAY APPROACH: (1) Is there a state action? (2) Is there a fundamental freedom (liberty) that is being deprived? (3) Is there an entitlement (property) that has not been fulfilled? (4) Did government provide proper procedure? (5) Does the government have an adequate reason for denying the right? 2. 3. EQUAL PROTECTION [Arises when rights are being denied to a particular group of people; Big Question: Is the government justified to treat individuals differently; EP protects same freedoms as SDP plus the Suspect Classes (see Strict Scrutiny below); Difference between SDP and EP: SDP concerns laws which restrict a right for "all" and EP concerns laws which seek to carve out a "discrete and insular group" and treat them differently; 3 STANDARDS OF REVIEW: STRICT SCRUTINY [Burden on STATE to show the law is necessary (i.e. no less restrictive alternative means exists) to a compelling interest; applies to 3 areas: (1) 1st Amendment Rights (2) Suspect Classes (“RAN”: (a) Race (purposeful discrimination required, i.e. facially discriminatory laws and laws discriminatory as applied) (b) Alienage (federal regulation only subject to rational basis but state regulation subject to strict scrutiny, except where participation in government such as police, teachers, serving on a jury list is involved) (c) National Origin] INTERMEDIATE SCRUTINY [Burden on STATE to show the law is substantially related to an important interest; applies is 2 areas: (1) Gender (purposeful discrimination required, i.e. on its face or in application) and (2) Illegitimacy] RATIONAL BASIS SCRUTINY [Burden on PLAINTIFF to show the law is not rationally related to any legitimate government interest; applies to all other classifications, including poverty, age, disabled, etc.] EP ESSAY APPROACH: (1) Is there a state action? (2) What is the classification (either (a) the classification is on the face of the law; or (b) if the law is facially neutral, there is both a discriminatory intent for the law AND a discriminatory impact) (3) What is the level of scrutiny? (4) Does the law meet the level of scrutiny? 4. FIRST AMENDMENT (applies to State/local through 14th Amendment/ also included in SDP and EP above as fundamental rights) FREEDOM OF RELIGION STEP 1: FREE EXERCISE CLAUSE: Guarantees right to hold religious beliefs, but resulting conduct can be prohibited if there is a compelling state interest; Least restrictive means; Balance severity of burden on individual’s free exercise of religion with the government’s interest it the regulation; use of peyote during religious ceremonies may be prohibited STEP 2: ESTABLISHMENT CLAUSE: “SEX” test: (1) Secular purpose (2) Effect neither advances or prohibits religion, and (3) no eXcessive government entanglement with religion. FREEDOM OF SPEECH STEP 1: Begin analysis with 4 facial attacks “UP [&] OV[er]”: (1)Overbroad (2) Vagueness (reasonable person cannot tell what speech is prohibited and what is allowed) (3) Prior Restraint (gov action restricting free speech in advance of publication generally invalid (licensing permits, gag order barring media from pretrial publicity/valid where national security interests compelling) (4) Unfettered Discretion (licensing official has unfettered discretion as to whether to confer or deny a permit) STEP 2: If the regulation survives the facial attacks, then discuss whether the regulated speech is CONTENT SPECIFIC (Protected speech: use Strict Scrutiny; Unprotected speech: skip to STEP 4 below) or CONTENT NEUTRAL (regulation of time, place, manner) STEP 3: If CONTENT NEUTRAL: If public forum, APPLY 3 part test: regulation must (1) further a significant gov interest such as noise control or traffic safety (2) be narrowly tailored (no more restrictive than necessary) (3) leave open alternative channels of communication; If non-public forum such as jails, military bases, billboards, public buses, APPLY 2 part test: regulation must (1) be viewpoint neutral and (2) reasonably related to a legitimate government interest STEP 4: If CONTENT SPECIFIC: Does the speech fit into one of the 6 FORMS OF UNPROTECTED SPEECH? (“SCOFF [at] DC”) (1) Clear and Present Danger (speech (a) directed at producing imminent unlawful action and (b) likely to produce such action); (2) Defamation (Public officials, public figures, and limited public figures who voluntarily inject themselves in the limelight, MUST prove malice (knowing falsity or reckless disregard for the truth)/ constitutional limits apply only to private person P’s where the defamatory statement involves a matter of public concern, in which case negligence must be proven and punitive damages are not awarded absent proof of malice); (3) Obscenity (must (a)appeal to the prurient interest in sex applying contemporary community standards and (b) depict sexual conduct in a patently offensive way, and (c) lack serious literary, artistic, or scientific value (“LAPS”)); (4) Child pornography ( outside protection of 1st Amendment, visual depictions of sexual conduct including children may be punished even if not “obscene”); (5) Fighting words (personally abrasive language likely to invite average person to commit acts of physical violence; however, statutes designed to punish only particular viewpoints are invalid, such as fighting words that provoke violence on basis of race); (6) Fraudulent Commercial Speech (Generally commercial speech is protected but may be restricted as to false or deceptive advertising or illegal products); (7) Symbolic Speech (where medium itself is the message; unconstitutional to ban flag burning, but burning drafts cards can be restricted) STEP 5: LICENSING STATUTES: Must relate to an important government objective, be clearly written, narrowly drawn, and reasonably regulate time, place and manner of speech; if statute valid on face, speaker may not ignore and speak anyway; if statute void on its face (see 4 facial attacks above), then speaker can ignore and speak anyway FREEDOM OF ASSOCIATION [Laws that punish group membership must meet strict scrutiny. 3 part test where allowed to punish membership: (1) person actively affiliated with group (2) knowing of its illegal activities, and (3) with the specific intent of furthering those illegal activities; laws requiring disclosure of membership must meet strict scrutiny; Groups are allowed to discriminate ONLY if it is an intimate association (small dinner party) OR expressive activity (KKK can exclude blacks) FREEDOM OF THE PRESS [read together with the “free speech” clause as a single guarantee; generally the press has no greater privilege than the ordinary citizen; Right of Access to attend criminal trial unless compelling government interest; No privilege exists to allow newspersons to refuse to disclose confidential sources to grand jury, but state may enact shield laws to protect this; Broadcasting may be regulated more closely than the press due to limited number of frequencies available (need to provide equal time) yet on the other hand newspapers need not provide equal space for political rebuttal. ---------------------------------------------------------------PRESIDENT/FEDERAL EXECUTIVE BRANCH: (ASK ONE OR BOTH QUESTIONS) 1. HAS THE PRESIDENT/EXECUTIVE BRANCH EXCEEDED THE SCOPE OF EXECUTIVE POWERS? DOMESTIC POLICY: (1) Appointment power (President appoints ambassadors, federal judges, and officers of US; Congress may delegate to President the power to appoint inferior officers, heads of department, or lower federal courts; Congress may not give itself or its officers the appointment power); (2) Removal Power (President may remove purely executive officers without cause; may dismiss independent counsel only if good cause); (3) Veto power (President has 10 days to exercise his veto, which may then be overridden by 2/3 vote of each house); (4) Pardon power (only federal crimes, not state crimes; no civil pardon and no pardon if offense led to impeachment); (5) Executive privilege (to refuse to disclose info such as military and diplomatic secrets; must yield to important government interests); (6) Absolute Immunity in civil suits for damages based on actions while in office (subject to impeachment by majority vote in House and conviction in Senate requires 2/3 vote). 2. HAS THE PRESIDENT/EXECUTIVE BRANCH VIOLATED A LIMIT ON GOVERNMENT POWER? (SAME ANSWER AS 2nd CONGRESS QUESTION ABOVE) (AND/OR) FOREIGN POLICY: (1) Commander in chief of Armed Forces- may establish military governments in occupied territories; (2) Broad emergency powers; (3) Treaty Power (requires consent by 2/3 of Senate; where conflict between 2 laws exist apply the following hierarchy: Constitution, Treaty/Act of Congress (equal footing; last in time prevails), Executive Agreement, State Law); (4) Executive Agreement (same as treaty except no senate approval and it is lower on hierarchy previously mentioned) ---------------------------------------------------------------FEDERAL COURTS: (ASK FOLLOWING QUESTION) DOES THE FEDERAL COURT HAVE THE AUTHORITY TO HEAR THE CASE? 1. ORGANIZATION OF FEDERAL COURT SYSTEM: (1) Art 3 grants judicial power to Supreme Court and such inferior courts that Congress may establish; (2) Power of Judicial Review granted to SC to determine constitutionality of acts of other branches of government (federal courts may also review state court decisions); (3) SC can hear cases ONLY after there has been a final judgment of the highest state court, of a US Court of Appeals, or of a 3 judge federal district court (one exception is if the prosecutor clearly has a vendetta against the D) (most decisions come to SC by certiorari (except 3 judge panel which is mandatory) (cert is discretionary; 4 or more judges must vote to hear case) 2. JUDICIAL REVIEW (Doctrine empowering federal courts to refuse to hear a case, despite jurisdiction): “SAME RAP” (1) STANDING (Actual injury or imminent + redressibility/causation); (2) MOOTNESS (Events after P’s suit end P’s injury; Exceptions: capable of repetition, voluntarily ended, or class action); (3) RIPENESS (cannot be based on contingent future event that may not occur); (4) POLITICAL QUESTIONS (Court will not hear questions regarding (a) republican form of government clause, (b) challenges to President’s conduct in foreign policy, (c) Challenges to impeachment and removal process, (d) Challenges to partisan redistricting); (5) ELEVENTH AMENDMENT (State can only be sued in federal court by another state, by the US, by individual if the state gave consent or Congress remove state’s immunity for civil rights violations; State officials can be sued individuals for federal law violations; Local Governments can be sued); (7) ABSTENSION (Federal court may not enjoin pending state court proceedings); (8) ADEQUATE AND INDEPENDENT STATE GROUNDS (if state court decision rests on both a state law and federal law ground, the SC will only get involved if its reversal of the federal law ground could change the result) ---------------------------------------------------------------STATE/LOCAL GOVERNMENT: (ASK FOLLOWING QUESTION) HAS THE STATE/LOCAL GOVERNMENT VIOLATED A LIMIT ON ITS POWER? 1. SAME ANSWER AS 2nd CONGRESS QUESTION ABOVE PLUS THE FOLLOWING FEDERAL LIMITATIONS ON STATE POWER: INTERGOVERNMENTAL IMMUNITIES (1) State Regulation of Federal Government (Fed Gov and its agencies immune from state taxation/no state contractor’s license to build on federal property in state); (2) Federal Property Power (Congress has autonomous control over its land and territories) DORMANT COMMERCE CLAUSE (AKA Negative Implications of the Commerce Clause) [Where Congress has not regulated, States are free to regulate interstate commerce; regulation must be (1) non-discriminatory (not favoring or protecting local interests) AND (2) Not unduly burdensome (no less restrictive alternative means is available); EXCEPTIONS: (1) Market Participant Exception (where state uses its own taxpayer funds to create the market, it may favor its own residents with subsidies and hiring preferences; (2) Congressional Approval exception; Compare with Art. 4 P&I Clause that does NOT apply to corps or aliens) STATE TAXATION OF INTERSTATE COMMERCE [Just remember: States may not use their tax systems to help in-state businesses] SUPREMACY CLAUSE OF ART 6, SEC 2 [Provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land] EXPRESS PREEMPTION: [Federal statute explicitly states that it preempts state/local laws] IMPLIED PREEMPTION (AKA Supersession): [Any state law in ACTUAL conflict with a federal law will be unconstitutional; federal law and state law are mutually exclusive saying opposite things; Note: if federal law only gives minimum standards and state law is stricter, this is allowed] 2. 3. 4. 5. 6. FULL FAITH AND CREDIT CLAUSE: [Principle that courts in one state must give full faith and credit to judgments of courts in another state (as long as court had PJ and SMJ over parties and the judgment was on the merits and was final] PRIVILEGES AND IMMUNITIES CLAUSE OF ART 4: [prevents discrimination by one state against citizens of another state regarding basic economic rights and liberties; NOT APPLICABLE TO CORPORATIONS OR ALIENS] ---------------------------------------------------------------PRIVATE (NON-GOVERNMENTAL) ACTOR:: (ASK BOTH QUESTIONS) IS THERE STATE ACTION? SEE STATE ACTION SECTION OF 2ND CONGRESS QUESTION ABOVE BUT FOCUS ON NON-GOVERNMENTAL BECOMING STATE ACTION DOES IT VIOLATE THE CONSTITUTION? SAME ANSWER AS 2nd CONGRESS QUESTION ABOVE