BIAF-Constitutional Law

Question 1

Constitutional Law

Approach/Checkilst

Answer 1

1. Procedural Issues (CTJ ASG ADE)
   
   1. Case/Controversy
   2. Timeliness: Standing, Ripeness, Mootness, Political Q
   3. Jurisdiction: SCOTUS
   4. Adequate State Grounds
   5. Abstention
   6. Declaratory Relief
   7. Eleventh Amendment
2. Powers of Congress (NTS-CCC-WEB-PP-FIP)
   
   1. Necessary/Proper
   2. Tax
   3. Spend
   4. Commerce
   5. Coin
   6. Citizenship
   7. War
   8. Establish Courts
   9. Bankruptcy
   10. Patent
   11. Post
   12. Foreign-Implied
   13. Investigatory-Implied
   14. Property-Implied
   15. Limitations
       
       • Bill of Attainder
       • Ex Post Facto Law
3. Power of States to Regulate
   
   1. 10th Amendment
   2. Dormant Commerce Clause
   3. 21st Amendment
4. Preemption
5. Immunities
   
   • F taxing S
   • F regulating S
   • S regulating F
   • S taxing F
   • S taxing Interstate Commerce
   • Priviliges/Immunities Clause
6. Separation of Powers
7. Substantive Due Process
   
   • Economic/Social Regs
   • Fundamental Personal Rights
8. Procedural Due Process
   
   1. 5th/14th Amendments - Life/Liberty/Property
   2. Notice/Opportunity to be Heard
9. Eminent Domain
10. Contract Clause
11. State Action
    
    • 13th A
    • 15th A
12. First Amendment (SPAR)
    
    • IRAC 1st Amendment
    • State Action
    • Freedom of Speech/Association
    • Freedom of Press
    • Freedom of Religion
13. Equal Protection (14th)
    
    • IRAC Equal Protection
    • State Action
    • Discrimination Intentional/Unintentional
    • Classification of Discrimination
    • Irrebuttable Presumptions

Question 2

Standards of Review

for

Equal Protection

Answer 2

• **Rational Basis: **Under rational basis review, the Plaintiff carries the burden of persuasion to demonstrate that a law is not rationally related to any legitimate government purpose.
  
  • Test
    
    • P’s Burden
    • Any purpose
    • Reasonable relation
  • Note: Least Rigorous (e.g. gay marriage ban not related to any gov interest.)
  • Use: Economonic/Social Legislation and unprotected classes (A WHEN NEW) age, wealth, handicap, elderly, non-residents, non-fundamental rights: education/welfare)
• Intermediate Scrutiny (Substantial Relationship/Narrowly Tailored)**: **Under the doctrine of intermediate scrutiny, the government carries the burden of persuasion to demonstrate that a law is substantially related to an important government government test, i.e. the law must be narrowly tailored (or specifically designed) to achieving the government’s purpose.
  
  • Test
    
    • ​G’s Burden
    • Significant G Purpose
    • Substantially Relates/Narrowly Tailored
  • **Note: **Intermediate standard
  • **Use: **Gender, Illigetimacy, Aliens, Contracts Clause
• **Strict Scrutiny: **Under the doctrine of Strict Scrutiny, the government carries the burden of persuasion to demonstrate that a law is necessary to promote a compelling government purpose and that it is the least restrictive means to accomplish the interest.
  
  • Test
    
    • ​G’s Burden
    • Compelling (vital) G Purpose
    • Least Restrictive Means
  • **Note: **Most rigorous

Question 3

Judicial Authority

and Jurisdiction

Answer 3

**Rule: **Article III of the United States Constitution vests the judicial power of the United States Supreme Court and provides for the creation of lower federal courts by congress.

**SCOTUS Jurisdiction: **The SCOTUS has

• original jurisdiction over:
  
  • ​dusputes arising between the US and a state:
  • actions by a state against the citizens of another state, and
  • cases involving ambassadors, public ministers, or consuls, and
• ​exclusive jurisdiction over:
  
  • ​disputes arising between two states.

**Lower Courts: **The jurisdiction of the lower federal courts is determined by Congress and may be expanded, restricted or modifed through Congressional action. Lower federal courts have jurisdiction over:

• disputes between citizens of different states,
• disputes between a US citizen and a foreign country or citizen,
• issues arising under admiralty or maritime jurisdictions, and
• cases involving the US government.

SCOTUS Appellate Jurisdiciton: The SCOTUS has appellate jurisdiction to hear a case after the highest court of a state, a U.S. Court of Appeals, or a three-judge federal District Court panel has issued a final judgment on the case. (Note: Only for Constitution, federal law, or treaty cases)

• Appellate jurisdiction
• Highest State C, US CoA, 3J Fed Dist C
• Final Judgment
• Con-law, fed-law, treaty

Under the Adequate and Independent State Ground doctrine, the SCOTUS does not have jurisdiction over state court decisions that rest on both federal and state law if the state ground is adequeate and independent of federal law. A Presumption exists that the SCOTUS has jurisdiction based on both federal and state law, which can be overcome only if the state court explicitly states in its judgment that its decision rests on an independent state ground.

• adequate + independent state ground
• explicitly stated in state judgment

Question 4

Abstention

Answer 4

**Definition: **Abstention is a federal court’s act of refraining from interfering with pending state court proceedings though the federal court has jurisdiction. This doctrine is based on the principle that the federal courts respect the sovereignty of states and the independence of state judicial systems.

**Younger Abstention: **A federal court will not interfere with an ongoing state criminal prosecution unless the D was proscuted in bad faith, or other extraordinary circumstances exist.

**Pullman Abstention: **A federal court will abstain from hear ing a case so that state courts can have the opportunity to settle an underlying state law question, the resolution of which may avoid the need to decide a federal question.

Question 5

Justicability

Answer 5

Rule: The Constitution limits the jurisdiction of fedral courts to legitimate cases and controversies. Advisory opinions as to the constitutionality of a proposed law or regulation by the SCOTUS are forbidden. Meeting the case or controversy requirement requires assessment of the standing fo the plaintiff, whether the case is ripe or moot, and whether the case involves a political question.

Question 6

Standing

Answer 6

General Standing: Standing is the issue of whether the Plaintiff is the proper party to bring a matter to the court for adjudication. Generally, in order to establish standing, a Plaintiff must show that they have personally suffered an actual harm, which is fairly traceable to the challenged conduct, and is likely to be redressed by the relief sought.

• Define
• Actual Harm
• Fairly Traceable
• Redressable

**Taxpayer Standing: **Federal taxpayers generally do not have standing to challenge federal taxation or spending based soley on their status as taxpayers or U.S. citizens.

**Exception: **Standing will be recognized if a taxpayer can establish a logical nexus between P’s status as a taxpayer and the claim, i.e. where the challenged law was passed under Congress’s inumerated powers, and violates constitutional limitations specifically imposed on the taxing and spending power. **Note: **Only ever used once, does not apply to discretionary spending by exec., no power re: tax credits.

Third Party Standing: Generally, a Plaintiff does not have standing to bring suit on behalf of a third party. However, third party standing is recognized when:

1. A special relationship exists between the P and the injured third party, and the third party is unlikely to assert their own rights (e.g. Doctor-Patient),
2. The third party would have difficulty asserting their own rights,
3. An organization is suing on behalf of its members and:
   
   • ​​members have standing
   • interests org. seeks to protect are germane to its purpose,
   • neither the claim nor relief require individual participation, and
   • org. members are at risk of imminent and concrete harm. (Specific harm, no general threats, e.g. to the environment)

Question 7

Timeliness:

Ripeness & Mootness

Answer 7

**Ripeness: **An issue is ripe for review when the impact of the law or regulation on the plaintiff is sufficiently direct and immediate to render the issue appropriate for judicial review. In order to demonstrate ripeness, a plaintiff must have suffered an actual harm or threat of imminent harm.

Mootness: A case wil be dismissed as moot if events arising after the filing of a lawsuit terminate the injury or threat of injury to the Plaintiff unless the wrong is capable of repetition, yet evading review (e.g. pregnancy), or the wrongful activity was voluntarily stopped by D and could be restarted. **Note: **Class actions not moot until issue is moot for ALL class members

Question 8

Federal Question

Answer 8

Under the Federal Question Doctrine, federal courts will dismiss actionss based on a political question as non-justicable. A political question will be found if:

1. The issue has been committed to another branch of government by the constitutuion,
2. Judicially manageable standards to decide the case on the merits do not exist and would be too difficult to create,
3. Judicial intervention would show insufficient respect for the other branches of government, or
4. deciding the case would be impossible without engaging in policy decision-making.

Watch for:

• Republican form of government clause,
• Challenges to the duration of war,
• Challenges to presidential decidisons regarding foreign affairs,
• challenges to political parties’ actions.

Question 9

Congressional Authority

Answer 9

Congress’s authority is derived from the constitution’s granting of express (eunmerated, A-I-S-8) powers and the courts’ reading of the necessary and proper clause (implied powers).

Enumerated Powers (NTS-CCC-WEB-PP)

1. Necessary
2. Tax
3. Spend
4. Commerce
5. Coin
6. Citizenship
7. War
8. Establish Courts
9. Patent
10. Post

Implied Powers: (FIP)

1. Foreign-President instrument
2. Investigatory
3. Property

Question 10

Necessary and Proper

Answer 10

The necessary and proper clause of Article I Section 8 authorizes Congress to carry out its authority by any means not prohibited by the constitution.

Question 11

Taxing and Spending Power

Answer 11

Congress has broad power to tax for revenue-raising purposes, subject to the following restrictions:

1. All indirect taxes (duties or excise tax) are imposed uniformly among the states,
2. All direct taxes (applied to people/property) must be apportioned among the states and
3. Export taxes are prohibited.

**General Welfare: **Congress’s power to tax and spend must be for the “common defense and general welfare of the United States.”

Regulation throug T & S

**Rule: **Courts will not question congressional motives or the regulatory effects of a tax if congress has the power to impose the tax and the tax will, in fact, raise revenue.

**Conditional funding: **Congress ma use its power to tax and spend for regulatory purposes by placing conditions on qualifications for federal funding if:

1. Congress is acting in the public interest,
   
   • the conditions are expressly stated,
   • the conditions relate to the general welfare purpose of the spending program, and
   • the spending is not for an unconstitutional purpose (e.g. discrimination).
2. Congress may compel private action by imposing a tax penalty on individuals for failure to comply.

Question 12

Commerce Clause

Answer 12

**Rule: **Under the Commerce Clause, Congress may regulate:

1. the channels of interstate commerce,
2. the instrumentalities of interstate commerce,
3. persons or things in interstate commerce, and
4. activities that have a substantial effect on interstate commerce.
   
   • If economic, cumulative effect considered
   • If non-economic, cumulative effect not considered

**Caveat: **Congress may not use its commerce power to compel a state to enact or enforce a federal regulation.

Congress my regulate only existig commercial activities, as opposed to coompelling activity.

**Tip: **Check for taxing / spending power if it appears that congress is using commerce clause to compel state action.

Canned Statement

Article 1, Section 8 gives Congress the power to regulate commerce among the several states to assure survival of a non-fragmented central government and to prevent intertstate rivalries.

Over the years, case law has indicated that Congress’s commerce power is essentially absolute. In addition to the channels of interstate commerce, the power has been extended to the areas of crime, discrimination and almost any activity at any level–national, state or local–which, taken separately or cumulatively, potentially or actually affects interstate commerce, with very few exceptions.

Question 13

War Power

Answer 13

Congress has the power to declare war, raise and support the armed forces, and make laws governing the armed forces.

Question 14

Bankruptcy Power

Answer 14

Congress has the power to extablish uniform laws regulating bankruptcy through out the US.

Question 15

Investigatory Power

Answer 15

Under the necessary and proper clause, congress has an implied power to investigate any matter that falls within the legislative sphere. Includes the power to subpoena witnesses and hold uncooperative witnesses in contempt, subject to prosecution by the Attorney General.

Question 16

Property Power

Answer 16

Congress has the power to enact laws regulating the territory and property of the united states.

Question 17

Congressional Power:

13th Amendment

Answer 17

The 13th Amendment prohibits slavery and indentured servitude. Congress may regulate private behavior under the 13th Amendment to prevent racially discriminatory activity, i.e. there is no state action requirement under the 13th Amendment.

Question 18

Congressional Power:

14th & 15th Amendments

Answer 18

Congress has broad power to enforce rights recognized by the courts under the 14th and 15th Amendments, but may not create new rights or expand the scope of rights. Laws enacted to enforce these rights must be proportionate and congruent to remedying constitutional violations.

Question 19

Executive Powers

Answer 19

The 6 Presidential Powers

• Commander in Chief

The President serves as commander-in-chief of the US military. Pursuant to this power, the President may deploy American forces abroad without a declaration of war.

• Head of State

The president has the power to make treaties and enter into executive agreements with foreign nations. Signed treaties must be ratified by 2/3 of the Senate.

• Appointment Power

The President has the power to appoint ambassadors, federal judges, and officers of the United States. Needs Senate confirmation.

• Removal Power

The President has the power to remove with or without cause any executive appointee. **Caveat: **The President may not remove federal judges, or remove appointees in offices where the term is fixed by statute, unless good cause exists. **Note: **Congress may limit removal if the office is one in which independence from the President is desirable where good cause exists.

• Veto Power

The Constitution requires the President to sign or veto federal legislation within ten days (excluding Sundays) of presentment of a bill by Congress. If the bill is not signed and Congress is in session the bill becomes law; if congress adjourns within ten days, the bill does not become law, i.e. pocket veto.

• Pardon Power

The president may pardon persons accused or convicted of a federal crime. Under the Pardon Power, the President may

1. Grant a full pardon,
2. Commute a federal sentence,
3. Grant a conditional pardon,
4. Pardon an entire class of people.

Power does not extend to impeachments, civil judgments, findings of civil contempt, or state criminal charges.

**Tip: **Though rare, the President can also pardon person not yet charged with a criminal violation.

Question 20

Congressional Power:

Delegation

Answer 20

Congress can delegate legislative powers to the judicial or executive branches unless the power is exclusive to Congress, so long as it provides an intelligible principle to guide the use of the delegated power.

Question 21

Congressional Checks

on Executive

Answer 21

• Power to Impeach & Remove

The President, federal judges, and officers of the United States may be impeached and removed for treason, bribery, or high crimes and misdemeanors. Removal requires impeachment in the House by a simple majority (51%), and conviction by the Senate by a super-majority (67%).

• Investigatory Power
• Apportionment power (direct president to spend)

**Does NOT Include Legislative Veto: **A legislative veto is a resolution by Congress to nullify or overturn an action by an agency of the executive branch. Legislative Vetos are unconstitutional as an intrusion of executive authority.

Question 22

Judicial Checks

Answer 22

The judiciary has the power of judicial review over the acts of the executive and legislative branches and may rule such acts unconstitutional.

Question 23

Congressional Checks

on Judiciary

Answer 23

• Congress has the power to establish and determine the jurisdiction of courts inferior to the Supreme Court.
• Congress regulates the size of the federal courts, including the supreme Court.
• Congress may impeach members of the Judiciary (Impeach 51% House, convict 67% Senate)

Question 24

Executive Checks

on Congress

and Judiciary

Answer 24

Congress

**Veto: **The President may veto legislative action.

**Line Item Veto: Prohibited: **A line item veto is a veto that grants the President the power to veto selected provisions of Congressional bills. This is unconstitutional legislative action by the Executive.

Judiciary

Appointment: The President appoints the members of the judiciary with the advice and consent of the Senate. (Senate rule change 2014, no filibuster for judicial appointees in Senate)

**Executive Privilege: **The President and executive officials may refuse to disclose information regarding presidential papers and conversations to Congress and the judiciary. (Not absolute power, subject to other important government interests. Does not protect President from criminal inquiries into acts carried out while in office)

Question 25

Executive Power:

Treaties

and

Executive Agreements

Answer 25

Treaty: Treaties are agreemetns between the United States and a foreign country that are negotiated by the President and become effective when ratified by the Senate.

**Precedence: **Constitution>Treaties>State Law & Executive Agreement, Fed Law v. Treaty = Most recent

**Executive Agreement: **An executive agreement is an agreement between the US and a foreign country that becomes effective when signed by the POTUS and a foreign nation.

**Note: **No senate ratification.

**Precedence: **Constitution, Fed Law, Treaties > Exec. Agreement > State Law

Question 26

Federalism

Answer 26

• Preemption
• Intergovernmental Immunities
• Dormant Commerce Clause
• Privileges & Immunities Clause
• Full Faith & Credit
• Federal Police Power

Question 27

Federalism: Preemption

Answer 27

**Rule: **The supremacy clause of Article VI provides that the Copnstitution, and laws and treaties made pursuant to it, are the supreme law of the land. Thus, if federal and state laws conflict, the federal law will preempt the state law.

**Express Preemption: **Federal law will preempt any state law if Congress explicitly states its intention that the federal law preclude state legislation.

**Implied Preemption: **In the absence of express preemption, implied preemption may be found if:

• The state law impedes a federal objective,
• Congress has signaled an intent to wholly occupy the field, or
  
  • ​Inferred from the wording of the legislation or legislative history
• the stat law sets a standard below a federal minimum standard.

**Note: **States are generally free to enact more restrictive regulations, provided that doing so does not impede a federal objective.

Question 28

Federalism:

Intergovernment Immunities

Answer 28

Federal Immunity

States may not tax or regulate federal activities. However, states may tax:

• independent contractors working for or with the federal government provided that the tax does not discriminate against federal contractors.
• income of federal employees.

States may regulate federal land or territories only if Congress grants them the power to do so.

State Immunity

The 10th Amendment prohibits the federal government from taxing unique state activities or essential state government funcitons.

Soverign Immunity

The doctrine of soverign immunity prohibits federal courts from hearing suits against state governments without the state’s consent. A state may only be sued in federal court when:

• A state explicitly waives immunity,
• The federal government brings suit, or
• The suit is brought pursuant to federal laws adopted under section 5 of the 14th Amendment.

Suit may be brough to enforce a state’s compliance with federal laws by individuals or by an agency of the state that is being sued.

**Suits Against State Officers: **Lawsuits may be brought against state officers for injunctive reliev and money damages, so long as the state officers can be held personally liable and the state treasury will not have to pay retroactive damages.

Question 29

Congress Compelling State Action

Answer 29

The 10th Amendment prohibits congress form compelling state regulatory or legislative action. Congress may:

• Induce state governments to act by placing mandates on money grants to the states if the mandates are expressly stated and related to the purpose of the spending program,
• Prohibit harmful commercial activity by state governments.

Question 30

Dormant Commerce Clause

Answer 30

Under the Dormant Commerce Clause doctrine, where Congress has declined to regulate an area of interstate commerce, states may enact laws that regulate interstate commerce if the regulation does not place an excessive burden on interstate commerce or discriminate against interstate commerce.

Review: A state law that discriminates (de jure or de facto) against interstate commerce is subject to strict scrutiny.

**Market Participation: **A state may discriminate against out-of-state persons or businesses when a state acts as a market participant. Under the market participant exception, states may:

• Choose to do business with in-state companies rather than out-of-state companies,
• Grant lower tuition to in-state residents, and
• Require that private companies performing traditional government activities (e.g., trash collection) within the state deal exclusively with state-owned and controlled repositories.

**Undue Burden on Interstate Commerce: **If a state law places an undeu burden on interstate commerce, courts will balance the burden on commerce against the legitimate purpose of the state. (i.e. less restrictive means test)

Question 31

Federalism:

Privileges and Immunities

Answer 31

**A-4-S-2: State to State: **Under Article IV Section 2 of the US Constitution, the privileges and immunities clause prohibits states from discriminating against nonresidents with respect to fundamental rightes related to essential commercial activities (e.g., employment or earning a livelihood). This means that the citizens of each state are entitled to the privileges and immunities of the citizens oin the several states.

**Exception: **A state law that discriminates against nonresidents with respect to fundamental economic activities ill be valid if the state can show that nonresidents are the source of a problem the law is designed to remedy and the law is narrowly tailored to remedying that harm (Intermediate Scrutiny / Substantial Relationship Test)

**Fed to State: **Under the 14th Amendment, the rights of citizens to the privileges of national citizenship are protected from infringement by the states. These rights include:

• The right to vote inf ederal elections,
• The right to travel from state to state,
• The right to enter public lands,
• The right to petition Congress for redress.

**Note: **Both only apply to citizens, not corporations (? still valid after Citizens United?) or aliens.

Question 32

Full Faith & Credit

Answer 32

The full faith and credit clause requires that courts in every state enforce the judgments of out-of-state courts if:

1. The out-of-state court had personal and subject matter jurisdiction,
2. The judgment was on the merits, and
3. The judgment was final.

Question 33

Federal Police Power

Answer 33

Generally, policing authority is the states’ domain. Federal police power may only be exercised:

1. In Washington D.C.,
2. To exclude access to military bases,
3. On indian reservations,
4. On federal lands and territories, and/or
5. To confiscate property from enemy aliens.

Question 34

Individual Rights

Answer 34

**Bill of Rights: **The bill of rights is composed of the first ten amendments to the Constitution. The Bill of Rights fundamentally applies to the federal government and most of the rights are extended to the state governments through the 14th Amendment.

Not extended to states through 14th Amendment:

• 2nd: keep and bear arms
• 3rd: not to have a soldier quartered in one’s home
• 5th: grand jury indictment in criminal cases,
• 7th: jury trial in civil cases,
• 8th: be free from excessive fines.

Note: 2nd Amendment recognized as an individual right by the Supreme Court in 2008. In 2010, a majority of teh Court agreed that the 2nd Amendment applied to the states but the members of the majority did not agree whether it did so through the Due Process Clause of the 14th Amendment.

**State Action: **The Constitution protects only against state action. It does not protect against private actors’ conduct. However, state action may be found in private conduct where a private entity is carrying out an activity traditionally and exclusively performed by the state, or there is significant state involvement in the private discrimination.

Question 35

Due Process

Answer 35

**Rule: **Neither the federal, under the 5th amendment, nor the state, under the 14th Amendment, governments can deprive a person of life, liberty, or property without due process of law. Due process is divided into procedural and substantive due process.

**Procedural Due Process **ensures the fairness of the procedures government follows when it deprives a person of life, liberty, or property.

**Substantive Due Process **ensures that the government is justified in depriving a person’s life, liberty, or property interests.

Question 36

Procedural Due Process

• Deprivation
• Assessing Procedures
• Liberty Special Cases
• Innocent Owner
• Irrebuttable Presumptions

Answer 36

**Deprivation: **A deprivation of life, liberty, or property occurs when state action negatively affects a person’s liberty or property rights:

**Deprevation of liberty: **The loss or restriction of a significant freedom provided by the Constitution or a statute.

**Deprivation of property: **The loss of property or an unfulfilled entitlement.

**Note: **The loss of liberty or property as a result of negligent conduct by the government or under emergency situations will not violate procedural due process.

**Assessment of Government Procedures: **To determine if sufficient procedural procedural safeguards have been provided, courts will look to:

1. The interest of the individual and the injury threatened by the official action,
2. Whether the risk of harm can be reduced with the interoduction of additional procedural safeguards, and
3. the government’s fiscal and administrative burden of introducting additional safeguards.

**Note: **Notice and a hearing are almost always required to meet the requirements of procedural due process.

Liberty Interests Special Cases

**American Citizens held as enemy combatants: **Requires notice of charges, representation by an attorney, and a meaningful hearing.

**Commitment to a Mental Institution: **Requires notice and a hearing for adults; only a hearing before a neutral fact-finder for children.

**Siezure of Property of an Innocent Owner: **Procedural due process does not provide for an innocent owner defense against government seizure of property. If property is used in an illegal activity, the government may seize the property even if it has an innocent owner.

Irrebuttable Presumptions: The use of certain irrebuttable presumptions by a court will violate procedural due process. (Genarally obvious departures from justice, e.g. atheists incapable of testifying, men incapable of housework)

Question 37

Substantive Due Process

Answer 37

Substantive Due Process ensures that the government is justified in depriving a person’s life, liberty, or property interests. Substantive due process ensures that a law will be fair and reasonable and applies when a law affects the rights of all persons with respect to a specific activity.

Economic Activity: **Generally, laws that regulat economic activity are subjected only to rational basis review. (Tip: Cross-check takings/contracts clauses)

**Fundamental Rights: **Laws affecting fundamental rights must pass strict scrutiny. Fundamental rights include the rights to:

1. Vote
2. Travel
3. Privacy
   
   • ​​Use Contraception
   • Abortion
   • Keep Family Together
   • Marriage
   • Ecucation: Control Children’s Education
   • Procreate
   • Die: Refuse Medical Treatment
4. ​First Amentment Rights
   
   • ​Speech
   • Assembly
   • Press
   • Religion

Question 38

Fundamental Rights

Special Case Notes

Answer 38

**Fundamental Rights Generally (Srict Scruitiny) **

The right to ________ is a personal fundamental right, and laws restricting said right must meet strict scrutiny.

Right to Vote

• One-person-one-vote requres that districts be roughly equal in population.
• At-large elections are generally constitutional, unless there is a discriminatory purpose underlying the use of at-large districts.
• Tallying uncounted votes in a presidential election without preset standards is unconstitutional.
• Property or education requirements to vote and poll taxes will not meet strict scrutiny.

Right to Travel

• Applies to laws preventing people from moving into a state as well as lengthy residency requirements in a state.
• Limitation on the right to foreign travel need only pass rational basis review.

Right to Abortion: Special Test

• The constitutionality of a law regulating abortion depends on the viability fo the fetus:
  
  • No ban prior to viability, regulation must not create an undue burden on the ability to obtain an abortion.
  • May ban after viability with exception to protect the health or life of the mother.
• Unconstitutional Examples
  
  • Complete ban
  • Spousal consent/notification.
  • Parental notice for unmarries minors unless minor can obtain the consent of a judge instead.
  • Partial-birth ban in second trimester unless exception for life of the mother.

Right to Marry

• Direct Barrier: Strict Scrutiny
• Incidental Barrier: Rational Basis
• Federal Same-Sex Marriage Bans Unconstitutional

Right to Refuse Medical Treatment

• Competent adults have the right to refuse medical treatment, even life-saving medical treatment. However, a state may require clear and convincing evidence that a person wants the treatment terminated.
• Individual right, against state interest in safeguarding the sanctity of life. State may prevent family members from terminating treatment of another.

Question 39

Equal Protection:

Applies to Fed

Discriminatory Intent

Classifications

Answer 39

**Equal Protection: **Under the 14th Amendment, no state may deny to any person within its jurisdiction the equal protection of the laws. The Equal Protection Clause assures that laws will not be applied differently to different people, and appplies where a law affects the rights of only some people with respect to a specific activity.

**Federal Government: **The principles of equal protection have been applied to the federal government through the due process clause of the 5th Amendment.

**Note: **Courts will only apply equal protection principles to the federal government when discrimination is so unjustifiable that it violates due process.

Discriminitory Intent: To qualify a law for strict scrutiny, a Plaintiff must show the government acted with discriminatory intent by showing that:

• The law is discriminitory on its face (de jure)
• The law is neutral on its face but applied in a discriminatory manner, or
• The law is facially neutral, but discriminatory impact and discriminatory intent can be proven.

Classifications

Race or National Origin

• Must meet strict scrutiny
• Including laws benefitting minorities
• Racial classifications may be used to remedy past intentional discrimination that has not yet been remedied,
• Higher education institutions can use race as one of multiple factors in admissions decisions for the purpose of maintaining a diverse student body.
• k - 12 school districts cannot use a child’s race as the determinin factor when assigning children to k-12 schools,
• Seniority systems cannot be disrupted for affirmative action.

Gender

• Laws that discriminate on the basis of gender must meet intermediate scrutiny and have an esceedigly persuasive justification.
• A law that benefits women will be upheld if the law is designed to remedy past discrimination that resulted in ascertainable differences in opportunity.

Citizenship

• Generally Strict Scrutiny
• Laws may prevent non-citizens from voting, serving on a jury, or working as a police officer, probation officer, or teacher.
• **Note: **Federal legislation affecting undocumented aliens need only meet rational basis review due to Congress’s enumerated power to regulate citizenship and immigration.
• Children of illegals have a right to primary and secondary education.
• Non-citizen enemy combatants have a right to habeas corpus review in federal courts.

Illegitimacy

• Intermediate Scrutiny

Rational Basis Review

• Age
• Disability
• Wealth
• Sexual Orientation

Question 40

Takings Clause

Answer 40

**Rule: **Under the 5th Amendment’s takings clause, the government may confiscate private property for public use if the owner is provided just compensation.

A Possessory Taking is a confiscation of property by the government.

A Regulatory Taking is Government regulation that is so oppressive as to leave no reasonably economically viable use for the property.

Regulatory Takings Notes

• Devalue: A regulation causing a mere decrease in the value of a property does not qualify as a taking,
• **Retroactive Challenge: **A P may challenge as a taking a regulation that was already in place when the P purchased the property.
• **Temporary: **A temporary restriction on development is not a taking if the restriction is not in place for an unreasonably long period of time.
• **Proportionality: **A regulation on development must be justified by a benefit proportionate to the burden imposed.

**Public Use: **A taking is for the public use if the government acts with a reasonable belief that the appropriated property will serve a public purpose.

• Gov. may not take private property to benefit a particular class of identifiable individuals. However, condemned property does not have to be made available to the general public. Taking is allowed as long as the use of the condemned property confers a benefit on the community (e.g., creation of jobs, increased tax revenue).

Just Compensation

Just compensation is based on the loss suffered by the owner, which is measured yb the property’s market value at the time of the taking. Benefit on government/entitiy irrelevant.

Question 41

Contracts Clause

Answer 41

Under Article I, Section 10, states are prohibited from imparing private contract rights. A law which does impairs private contract rights is subject to intermediate scrutiny.

Question 42

Ex Post Facto Clause

Answer 42

**Rule: **Federal and state governments are prohibited from adopting laws that criminally punish conduct that was lawful when it was carreid out, or increase the punishment for a crime after it has been completed.

An ex post facto law is a law that retroactively changes the legal consequences of acts already committed.

Question 43

Bill of Attainder

Answer 43

A bill of attainder is a law that inflicts punishment on a specific person or easily ascertainable group of persons without a trial. Such laws constitute and unconstitutional overreach of the legislative branch into the judicial power.