Con Law Flashcards
standing
individual standing
- injury in fact:
- almost anything but must be particular
- mere ideological objection is not - causation:
- D’s conduct caused/will cause the injury - redressability
- a court can remedy or redress the injury
- damages for past injury, injunction for future (must show it’ll happen again)
- federal taxpayers always have standing to challenge their own tax liability, but do not have standing to challenge government expenditures (except establishment of religion challenge to specific congressional appropriation)
- generally no third-party standing (raise rights of someone else), except parties to an exchange or transaction can raise the rights of other parties to that exchange/transaction
organizational standing
- individual members have standing
- claim is related to the purpose of the organization
- the individual members are not necessary to adjudicate the claim
ripeness
concerns prematurity of a case: you must show actual or an immediate threat of harm
mootness
cases are overripe and dismissed when become moot
cases can become moot during trial or on appeal
exception: controversies capable of repetition yet evading review are not moot (internal time limit)
a court will not dismiss as moot a case in which the defendant voluntarily ceases its illegal or wrongful action once litigation has commenced. The court must be assured that there is no reasonable expectation that the wrong will be repeated
legislative powers overview
- commerce clause
- the taxing & spending power (separate but one clause)
- delegation of legislative power
- anti-commandeering
- war & defense powers
commerce clause
*almost anything can be regulated as interstate commerce
congress has the power to regulate interstate commerce:
- the channels of interstate commerce
- the instrumentalities of interstate commerce
- activities that have a substantial effect on interstate commerce
substantial effect: economic activity in the aggregate
-Wickard v. Filburn, growing wheat on land for purely intrastate commerce, but economic activity and aggregate had substantial effect on interstate commerce
*congress cannot regulate purely intrastate, non-commercial, non-economic activity for which there is no substantial effect on interstate commerce
spending & taxing power
the spending power
-includes spending for the general welfare
- congress can condition federal funds to states and require states to implement certain regulations (such conditions must be set out unambiguously to be enforceable)
- e.g. requires states to pass seatbelt laws for cars in order to receive federal money for highway construction (related)
The spending power has been interpreted very broadly, but is subject to five limitations. First, Congress must spend for the “general welfare,” which amounts to any public purpose. Second, the condition must be unambiguous. Third, the condition must relate to “the federal interest in particular national projects or programs.” Fourth, the condition must not induce the states to act in an unconstitutional manner. Finally, the condition may not exceed the point at which “pressure turns to compulsion.”
taxing power
-taxing clause applies, even when tax is actually used to prohibit the good/activity in question
- the tax need only be rationally related to raising revenue
- Congress may not tax goods exported to foreign countries
*Congress can impose indirect taxes so long as they are (1) uniformly applied in every state where the taxed goods are found and (2) reasonably related to revenue production.
*Direct federal taxes comply with the taxing and spending clause so long as they are (1) apportioned proportionately among the states based on each state’s population and (2) reasonably related to revenue production.
13, 14 & 15 Amendments
13A: congress has broad power to legislate against racial discrimination (public & private)
14A: congress can remedy violations of individual rights by the government, but only as those rights have been defined by the courts (enabling clause - section 5 of 14thA)
-the legislation must have “congruence” and “proportionality” - there has to be a reasonable fit btw the remedial law and the constitutional right
(if not, can’t be applied to states, but can apply to army and navy & DC as exercise of federal powers)
–> think about the enabling clause when essay asks if Congress can pass a law outlawing a state from doing something
15A: congress has power to ensure no racial discrimination in voting
delegation of legislative power
congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power (usually is)
*Congress can delegate incidental legislative powers to federal agencies if it provides an intelligible principle to guide the agency—i.e., a clear statement defining (1) the policy Congress seeks to advance, (2) the agency to carry out that policy, and (3) the scope of that agency’s authority.
anti-commandeering
Congress cannot force states to adopt or enforce regulatory programs; can’t commandeer state/local agencies to implement federal programs
But it can bribe states through use of the spending power & can adopt its own regulatory program and enforce it with federal officers
war & defense powers
congress has power to declare war & power to maintain the army and navy (can authorize pres to call national guard)
can provide for military discipline of US military personnel
can provide for military trial of enemy combatants and enemy civilians
cannot provide for military trial of US citizens who are civilians
The authority granted to Congress under the war power of Article I, Section 8, is very broad. Congress may take whatever action it deems necessary to provide for the national defense in both wartime and peacetime, including rent control of the civilian economy during wartime, and even during the post-war period.
executive powers (article 2)
executive order:
-the president has the power to issue an executive order within the scope of his presidential powers
domestic affairs:
- pardon power for federal offenses (doesn’t extend to impeachment of a federal official)
- veto power (10 days to veto legislation, override requires 2/3 each house)
- appointment and removal powers of executive officers (some senior officers require consent of senate)
- congress cannot give executive power to any officer it can hire/fire
- The appointments clause grants Congress the power to delegate the appointment of inferior federal officers to the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.
foreign affairs:
- commander in chief: control over military decisions (can cut off funding)
- treaties: negotiated by president but require 2/3 senate approval, once ratified it has same authority as statute
- executive agreement: not binding like treaty, can be authorized/overridden by statute, but take precedence over conflicting state laws
- the President has the exclusive power to recognize a foreign government
*A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation
state powers overview
- supremacy clause
- preemption (express & implied)
- privileges & immunities clause
- 10th amendment
- dormant commerce clause
*federal gov immune from direct state regulation/taxation, but states can tax indirectly (tax income of federal employees)
preemption
federal law preempts (overrides) inconsistent state law
express preemption: the federal law explicitly states that it is the only law allowed in that area
implied preemption:
- congress passes a federal law intending to “occupy the field” (rare)
- the state law conflicts either directly or indirectly with federal law
*a state can pass more stringent laws than the federal law, so long as they do not conflict
privilege and immunities clause article IV (comity clause)
prohibits states from discriminating against citizens of other states
this protection only applies to individuals; corporations cannot claim this clause
there can be no legal requirement of residency for private employment (public can)
Non-serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses or state park access.
10th amendment
all powers not expressly given to the federal government are reserved to the states
The federal government can tax state government affiliates—i.e., persons doing business with state governments—so long as the taxes do not discriminate against states or their affiliates.
dormant commerce clause
- protects out of state business as well as individuals
- only applies in the absence of federal action; if congress authorizes/consents to state regulation of commerce, state won’t violate commerce clause even if it discriminates against out of state interests
in the absence of federal regulation, state regulation of commerce is valid so long as:
- there is no discrimination against out of state interests
- the regulation does not unduly burden interstate commerce, and
- the regulation does not apply to wholly extraterritorial activity (state saying beer sold in state couldn’t be sold at price diff from other states)
discrimination:
- if a state discriminates against out of state commerce, the state must show 1. it has an important state interest, and 2. there is no other non-discriminatory means available to achieve that interest
- market participant exception (don’t forget about this!!!) (If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business)
unduly burden interstate commerce:
- if a statute is not discriminatory, the law may still be invalid if it causes an “undue burden” on interstate commerce
- a court will balance the purpose of the statute against the burden on interstate commerce (only if so costly in comparison to benefit)
5th amendment takings clause overview
- look for property being taken from an individual by the government
rule: private property shall not be taken for public use without just compensation
government action private property public use physical or regulatory taking just compensation
*A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a particular use or a demand for an additional expenditure, in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if (1) there is an essential nexus between legitimate state interests and the conditions imposed on the property owner (the conditions substantially advance a legitimate government interest), and (2) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.
- government action
Federal, state, or local government “taking” property by rezoning, prohibiting development, etc.
- private property
usually involves land, but can be other property
- public use
must be taken for public use, including health, safety, economic development, etc.
-basically anything, need only be rationally related to a conceivable public purpose
*A government may seize private property not only for its own direct use but also to transfer the property to another private party. Although such a seizure is subject to challenge as not being made for public use, the taking need merely be rationally related to a conceivable public purpose.
*economic redevelopment goals constitute a sufficient public purpose to justify the seizure.
- physical or regulatory taking
physical taking: government physically occupies the land (even a tiny portion)
*A taking has occurred when the governmental regulation results in a permanent physical occupation of the property by a government or third party, regardless of the public interest that it may serve.
regulatory taking: a law has the effect of decreasing the value of the plaintiff’s property –>
- total taking: the regulatory taking leaves no economically viable use of the property
- partial taking: the regulatory taking affects some economic use of the land, but there is still some economic use available
- economic impact: how much value was lost due to the regulation
- reasonable expectations: the owner’s reasonable expectations of return on investment (talk about interference with use)
- character of the regulation: does the regulation impact a few owners or the entire community? (more likely if only a few)
- just compensation
if a taking has occurred, the property owner is entitled to the fair market value of the property that has been taken at the time of the taking
*a government may destroy property in response to a public peril without the payment of compensation.
zoning & variances
zoning: local governments have the power to pass zoning ordinances, as long as they are reasonably related to a legitimate government purpose (health, safety, morals, and general welfare)
relief from zoning ordinance
- variance
- may be granted to allow the owner to continue his nonconforming use of the land
- the owner must show an undue burden if the variance is not granted - takings clause claim
procedural due process
the due process clause provides certain protections before the government can take a person’s life, liberty or property
*notice/hearing not required when accident; deprivation requires intentional taking away of life, liberty, or property
-life: death penalty require procedural due process
-liberty: physical confinement, probation/parole, physical injury (including spanking at school), any restriction on legal rights (including being punished for free speech)
(injury to reputation is not loss of liberty)
-property: property interest in gov job/benefit when legitimate entitlement (only fired “for cause”), but not mere expectation of continued employment
examples of procedures: notice, hearings appeals
amount of process due:
- the individual right at stake: life, liberty (including fundamental rights), or property
- the value of the procedure in protecting that interest, and
- the burden/cost of that additional process
timing of hearings:
- must be before deprivation if terminating welfare benefits, non-emergency revocation of driver’s licenses
- sometimes can be after deprivation as long as hearing is prompt and fair (terminating disability benefits, disciplinary suspension from school)
- public employees who can only be fired “for cause” must be given opportunity to be heard before discharge, unless significant reason not to keep employee on job (formal pre-termination hearing not required as long as notice, opportunity to be heard, and post-termination hearing)
- Due process entitles a person to a fair decision maker. A judge must recuse herself when she has a direct, personal, substantial, pecuniary interest in a case or there is a serious risk of actual bias.
- Due process requires public colleges and universities to provide notice and a meaningful opportunity to be heard before dismissing a student for disciplinary reasons. However, due process does not require a public college or university to provide a meaningful opportunity to be heard when a student is dismissed for academic reasons.
substantive due process
whether the government’s action (such as a law or regulation) is valid or whether it impermissibly infringes on an individual’s rights
standard of review:
- fundamental rights (life, liberty & property including travel and voting)
- strict scrutiny: only valid if necessary to achieve a compelling government interest
- But Section 2 of the Fourteenth Amendment permits states to prohibit felons—even those unconditionally released from prison—from voting in elections.
- However, courts will depart from this test and apply rational basis scrutiny when a state or local law limits the right to vote in a governmental unit’s election to its residents—i.e., those who reside within the governmental unit’s borders. - non-fundamental rights:
- rational basis: valid if rationally related to a legitimate government interest (burden on proponent to show arbitrary & irrational)
equal protection clause
discrimination requirement: the plaintiff must show discrimination
standards of review:
- strict scrutiny:
- applies to any law involving fundamental rights ( and classifications based on race, ethnicity, and national origin
- must be: a) the least restrictive means b) to achieve a compelling government interest
- the government bears the burden of proof
- discriminatory purpose is required (not just disproportionate impact)
- e.g. affirmative action: valid only when specifically corrects past discrimination by specific department/agency now engaged in affirmative action
- alienage generally strict scrutiny, 2 exceptions:
- -> federal classifications: valid unless arbitrary & unreasonable
- -> state/local participation in gov functions (voting, jury, police, public school teacher) - intermediate scrutiny:
- applies to laws involving gender and non-marital children born outside of marriage
- must be: a) substantially related b) to an important government interest
- the government bears the burden of proof
- permissible gender classifications: statutory rape & the draft
- Different treatment of the genders by the government (for example separate sports facilities at state universities) does not violate the equal protection guarantee if the state can show that it has an “exceedingly persuasive justification” for the different treatment and that the separate facilities offered are “substantially equivalent.” - rational basis
- applies to all other rights and classifications
- must be: a) rationally related b) to a legitimate government interest
- the plaintiff bears the burden of showing the law is arbitrary or irrational
- easily passed, but not re sexual orientation
- age & wealth (but fed gov has to waive filing fee for indigents except for bankruptcy)
- e.g. U.S. citizenship only when a state law excludes noncitizens from a government function that would allow (1) direct participation in formation, execution, or review of broad public policy or (2) the exercise of broad discretion
- Equal protection challenges to discriminatory state taxes are subject to rational basis review. Although encouraging the growth of an industry within a state is permissible, promoting domestic (i.e., in-state) business by discriminating against nonresident competitors is unconstitutional.
freedom of expression overview
- first talk about why 1A applies, then state action
- corporations have same 1A rights as individuals
symbolic speech - expressive conduct overbreadth vagueness prior restraints content lesser/unprotected speech speech in a government forum
*under the First Amendment, a city can regulate adult entertainment establishments (e.g., by localizing them in a particular area), but cannot impose a blanket ban on all pornography.
*When a public employee is speaking as a private citizen on a matter of public concern, the government can restrict that speech only if its interest in efficient government function outweighs the employee’s right to free speech.
The First Amendment is applicable to the states through the Fourteenth Amendment and protects the freedom of speech as well as the freedom not to speak. For example, the Supreme Court has held that a child in a public school has the right not to recite the Pledge of Allegiance.
- symbolic speech
expressive conduct
e.g. someone burning a copy of the Constitution to show anger at the government
- overbreadth
a statute is overbroad if it regulates more speech than necessary to protect a compelling government interest
- vagueness
a statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited (and thus violate due process)
e.g. “no mean words may be spoken”
- prior restraints
a prior restraint prohibits speech before it occurs (e.g. requiring license/permit before engaging in speech/expressive conduct)
prior restraints are generally not allowed unless there’s a specific harm to be avoided and specific procedural safeguards in place
- standards must be narrowly drawn, reasonable, and definite (cannot have unfettered discretion)
- must be prompt review of the validity of the restraint
- content
start with q: is this a content-based or content-neutral restriction? (regulating political speech is content-based, if restricts all speech it’s content-neutral)
content-based regulation (strict scrutiny)
-necessary to achieve a compelling governmental interest, and narrowly tailored to meet that interest (least restrictive means)
-The government must identify an actual problem, and the regulation of speech must be necessary to solve that problem. This standard is incredibly stringent and not often met. The law shouldn’t be over-inclusive or under-inclusive.
content-neutral regulation in public forum: time, place, and manner restriction: must be narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication
-doesn’t need to be least restrictive means; it need only promote a substantial government interest that would be achieved less effectively absent the regulation.
*aesthetic preservation and traffic safety are substantial government interests.
*preventing littering is an insufficient governmental interest to justify banning all leafleting (not narrowly tailored).
- lesser/unprotected speech
lesser-protected: commercial speech:
- commercial speech is protected unless it is false, misleading, or unlawful
- protected commercial speech can only be regulated if: a) the government interest is substantial, b) the regulation directly advances the interest, and c) the regulation is narrowly tailored
unprotected: obscenity:
- obscene speech is not protected under the first amendment
- obscene: average person finds that material as a whole 1. appeals to the “prurient interest,” 2. depicts sexual conduct in a patently offensive way, and 3. lacks serious literary, artistic, political, or scientific value
- speech in a government forum
*government forums arise when speech on government property is being restricted
traditional public forum (sidewalks, streets, parks) & designated public forum:
Only time, place, and manner may be regulated. 3 requirements:
-must be content-neutral
-alternative channels of communication must be left open
-must narrowly serve a significant state interest
non-public forum (government offices, schools, jails, military bases, sidewalks on postal office property, airport terminals)
Any reasonable regulation of speech will be upheld. Must be:
-viewpoint netural, and
-cannot disrupt government functions
e.g. regulation prohibiting speech concerning war in front of airport terminal is permissible as long as doesn’t ban specific viewpoint
religion overview
-establishment clause
-free exercise clause
establishment clause
Standard of review is strict scrutiny. This is true for laws that prefer one religion over another and laws that prefer religion over nonreligion (but “in God we trust” on currency is upheld).
In Kennedy v. Bremerton School District, the Supreme Court “abandoned” the Lemon test (Lemon v. Kurtzman) and endorsement test (i.e., whether a reasonable observer would consider the government’s challenged action as an endorsement of religion), replacing them with a consideration of “historical practices and understandings.”
Examples: long standing public monuments and symbols with explicit religious content (if validated by history, then likely upheld but not necessarily upheld if built today); and long standing practices such as “In God We Trust” on our coins and “God Save this Honorable Court” when the Supreme Court opens session
The Establishment Clause allows neutral aid to religious primary and secondary schools - the government gives a voucher to parents and the parents are allowed to send their children to the schools of their choice.
The Supreme Court wants to prevent coercive endorsement of religion (one that might override individual choice).
free exercise clause
- arises when P is trying to practice his religion and a law impedes that practice
- religion: the religion must be genuine
- belief: a person’s beliefs are absolutely protected
- conduct: laws that intentionally target religions conduct are subject to strict scrutiny
- neutral laws: laws that do not target religion and are generally applicable are subject to the rational basis test
- ministerial exception: non-discrimination employment laws cannot be applied to ministers (teacher at religious school) (protection for civil liability, not criminal)
unfettered discretion
a law or regulation that permits a government official to restrict speech must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion. such a law or regulation must be related to an important governmental interest and contain procedural safeguards. a statute that gives officials unfettered discretion is void on its face
judicial power source, scope & limitations
source: article III (federal question/diversity jurisdiction)
scope: jurisdiction of federal courts is limited to cases or controversies
limitations: 11A and state sovereign immunity
- you cannot sue a state for money damages in either state or federal court unless the state consents or congress expressly says to enforce 14A rights (or pursuant to bankruptcy clause)
- 11A protects states & state agencies, not local govs
- This immunity extends to suits against state officials for a violation of state law—even if the remedy that is sought is injunctive relief instead of monetary damages
- can sue state officer for injunctive relief (only for money damages if officer committed constitutional tort), (damages from state treasury are barred)
*When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law.
jurisdiction of supreme court
original jurisdiction: a case can be filed first in the SC (controversies btw states)
appellate jurisdiction: mostly, jurisdiction of SC is appellate
- certiorari: discretionary
- congress can make exceptions to SC’s appellate jurisdiction
- adequate and independent state grounds: the SC can review a state court judgment only if it turned on federal grounds; no jurisdiction if judgment below rested on an adequate and independent state ground
- adequate: state ground must control the decision no matter how a federal issue is decided; when the federal claimant wins anyway under state law
- independent: state law doesn’t depend on interpretation of federal law (no AISG if state adopts/follows federal law)
- when state court decision is unclear as to basis of decision, SC can review the federal issue
- -> if SC agrees with state court’s decision of federal law, it affirms the decision
- -> if SC disagrees with SC’s understanding of federal issue, remands case to state court
advisory opinions
federal courts cannot issue advisory opinions, cannot rule on the constitutionality of proposed legislation
political questions
a non-justiciable political question when it’s inappropriate for judicial resolution
Examples:
- guarantee clause (protecting republican form of gov)
- foreign affairs (opening/breaking diplomatic relations with another country)
- impeachment procedures
- political gerrymandering
- ability of congress to authorize pres to call national guard & pres’ decision to do so
notes for MBE legislative power
- promoting the general welfare is not a power of congress
- federal gov does not have general police power
- necessary & proper is not a free-standing power
important powers of congress: taxing, spending, commerce
state taxation of interstate commerce
discriminatory taxation will be struck down unless congress consents, and non-discriminatory taxation will be upheld unless it’s unduly burdensome
non-discriminatory taxation is valid if:
- substantial nexus btw taxing state & property/activity to be taxed (doesn’t require physical presence)
- must be fair apportionment of tax liability among states
ad valorem property taxes:
- commodities: pay full tax to every state where goods are stopped for business purpose on tax day (not if merely passing through)
- instrumentalities: fair apportionment of tax liability among states with substantial nexus to instrumentality
a state tax on foreign commerce must not 1. create a substantial risk of international multiple taxation or 2. prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues
relations among states
states can make intrastate compacts (agreements among states), but if affects federal rights, congress must approve
full faith & credit clause: states don’t have to follow other states’ laws but have to give full faith and credit to the judgments rendered by other states’ courts as long as court had jurisdiction to render final judgment on merits
state action
Rule statement: the Constitution generally protects against wrongful conduct by the government, not private parties. In other words, state action is a necessary prerequisite to triggering constitutional protections.
13A (outlawing slavery) applies directly to private parties & individuals, but narrow in focus
other individual rights apply to states and localities through the 14A, which requires state action
state action means government action, whether state or local
gov cannot be significantly involved in private discrimination
- can’t facilitate private discrimination
- can’t profit from private discrimination
- can’t enforce private agreement to discriminate
- but not required to prevent private discrimination
abortion
In Dobbs (2022), the Supreme Court held the Constitution does not confer a right to abortion, overruling Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.
State supreme court can determine whether to make abortion a fundamental right under the state’s constitution.
States have the authority to regulate or prohibit abortion and challenges to such regulations or prohibitions are subject to rational basis review.
due process vs. equal protection
due process clauses:
-5th amendment applies to federal gov, 14A applies to localities & states
equal protection:
-found in 14A, applies to localities & states
fundamental rights
*strict scrutiny applies
- right to travel
- right to vote: one person, one vote (applies whenever you elect representatives by district, even school board) (A deviation of 10% or less between the populations of legislative districts is considered minor and does not violate the equal protection clause absent evidence of discrimination.)
- racial gerrymandering: vote dilution can’t be done with discriminatory purpose, race may be a factor in drawing district lines but not predominant/only factor
- political gerrymandering: in theory can violate equal protection but non-justiciable political question
- right to privacy (includes right to marry, right of parents to choose upbringing of children)
- right to live with relatives
*The Fourteenth Amendment due process clause generally prohibits states from enacting laws that substantially impair parents’ right to control their children’s upbringing and education. However, this right is not absolute, so states may impose reasonable educational standards on schools without violating the due process clause.
privileges and immunities clause 14A
P&I of 14th amendment applies to interstate travel, peaceful assembly, voting for national office, enter public lands, petitions to congress for redress and protection when in custody of US marshals
(is about national citizenship, rarely the answer)
bill of attainder
legislative punishment imposed without judicial trial and is unconstitutional
“jane doe is a felon”
ex post facto laws
unconstitutional to expand criminal (not civil) liability retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct
contract clause
bars states (not federal) from legislative impairment of existing contracts, unless there is an overriding need (emergency)
incitement
speech is not protected if it is an incitement to immediate violence
fighting words
words likely to provoke an immediate breach of the peace
-general vulgarity is not enough
must be aimed/targeted at someone, and that person might hit back
-fighting words in theory are not protected speech
–> fighting word statutes are unconstitutionally vague/overbroad (e.g. laws against “hate speech)
defamation
false statement of fact damaging to person’s reputation can be prohibited
- public officials/figures can recover for defamation only on proof of knowing or reckless falsity
- private Ps can recover on proof of negligent falsity
government speech
1A restrictions don’t apply to gov as a speaker, can express a point of view
but specialty license plates bearing messages are still gov speech, so gov can refuse to issue plates that would be offensive to other citizens
regulation of the media
press & media have no special privileges
The First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern.
exception is broadcasters, gov has greater regulatory authority over broadcasters than over print media/internet
*The First Amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if (1) the information involves a matter of public concern and (2) the publisher neither obtained it unlawfully nor knows who did.
regulation of association
freedom of association: cannot be punished/disadvantaged bc of political associations
loyalty oaths: public employees can be required to take a loyalty oath to the constitution but most are struck down as vague/overbroad
political parties: states cannot require open primaries
*A state can require a semi-closed primary system, in which only registered party members and independents can vote in the party’s primary, even if the party wants to permit anyone to vote.
*State electoral regulations must comply with the First Amendment freedom of association (applicable through the Fourteenth Amendment). The standard for reviewing such regulations depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny).
speech by gov employees
gov employees generally cannot be hired/fired based on political party, political philosophy, or any act of expression
exception: doesn’t apply to confidential advisors or policy-making employees (president’s cabinet officers)
A person may only be punished or deprived of public employment based on their political affiliation if that individual 1. is an active member of a subversive organization, 2. has knowledge of the organization’s illegal activities, and 3. has a specific intent to further those illegal objectives
When a government employee contends that his free speech rights have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern.
campaign finance
the use of money to support a campaign is political speech and the regulation of that money raises 1A issues
contributions can be regulated (to individual candidates, but not to ballot measures), provided that limits are not unreasonably low (intermediate scrutiny)
direct expenditures in support of candidate, campaign, or political issue cannot be regulated
- independent expenditures cannot be regulated
- coordinated expenditure is disguised contribution and can be regulated
- equalization of campaign resources is NOT a valid rationale for restricting campaign expenditures
necessary & proper
*not a freestanding power
The Necessary and Proper Clause enables Congress to enact laws that carry into execution a treaty that’s been negotiated by the President and ratified by the Senate in the exercise of their constitutional powers
Congress does not have an express power to investigate, but the Necessary and Proper clause allows Congress broad authority to conduct investigations incident to its power to legislate. While a subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, the witness is entitled to certain procedural due process rights, including the presence of counsel
legislative veto
It is unconstitutional for Congress to legislatively veto an executive action—that is, to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill
*Once Congress delegates power to an executive agency, it cannot interfere with the agency’s functions without satisfying the legislative-action process—i.e., bicameralism and presentment. Any attempt to bypass this process is an unconstitutional legislative veto.
states & voting
a state may ban all write-in candidates in both primary and general elections, at least when the state provides reasonable means by which a candidate can get on the ballot.
states cannot prohibit political parties from allowing independents to vote in primaries, and states cannot require open primaries
The Elections Clause explicitly empowers Congress to override state laws concerning federal elections
separation of powers
congress may not reinstate the right to bring a legal action after the judgment in the action has become final. Requiring a federal court to do so violates the separation of powers doctrine.
the enclave clause
gives congress police/regulatory powers over DC that a state enjoys over persons and things within its boundaries, including power to tax or not to tax income earned within its boundaries
21st amendment
in addition to repealing prohibition, specifically gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state. This amendment has been interpreted as giving a state the authority to regulate or outright ban the distribution and sale of alcoholic beverages within the state.
supremacy clause
when acting as a federal law enforcement officer, you can enjoy immunity under the Supremacy Clause from state prosecution for his actions.
Under the supremacy clause, the federal government is immune (i.e., exempt) from any direct taxation by the states—including taxes on its commercial activities. As a result, states may not impose taxes on the federal government, or any of its agencies or instrumentalities, without the express consent of Congress.
*also covers preemption
congress’s property power
The Federal Property Clause of Article IV, Section 3 gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.
Under the property clause, Congress has the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands.
abstention
Under the Younger abstention doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute.
The Pullman abstention doctrine asserts that a federal court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts.
The Import-Export Clause of Article I, Section 10
prohibits the states from imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods. The Commerce Clause limits states from taxing commerce with other countries because it vests in Congress the exclusive power to regulate foreign commerce.
the presentment clause
requires any bill that has been passed by Congress to be presented to the President. If the President signs the bill, it becomes law. If the President does not, it may either become law or not depending on whether the President vetoes it (either directly or via a “pocket veto”), and if by a direct veto, whether Congress overrides the President’s veto.
the bankruptcy clause
Although Congress, acting pursuant its Article I powers, generally cannot abrogate state immunity, the Bankruptcy Clause gives Congress the power to subject states to its provisions.
While the Eleventh Amendment generally immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state, it does not bar the actions of a bankruptcy court that impacts state finances.
State Action Doctrine
Under the state-action doctrine, private actors are treated as government actors when they perform a traditional government function or the government is significantly involved in their activities. But government funding (however substantial) or licensing does not trigger this doctrine.
suspension clause
Under the Article I suspension clause, persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control.
Judge immunity
A judge is absolutely immune from civil liability for damages resulting from her judicial acts unless it is clear that the judge did not have jurisdiction.
