Con Law Flashcards
For purposes of the bar exam, the Constitution can be divided into a few main parts:
- The main body (establishes a federal government with limited power and divides that power among three branches)
- the Bill of Rights, and
- the Civil Rights Amendments.
Federal judicial power (derived from Article III) extends to cases involving:
- Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws
- Disputes between states, states and foreign citizens, and citizens of diverse citizenship
Congress can define the original and appellate jurisdiction of these courts but is bound by the standards set forth in ____ concerning subject matter and party jurisdiction and the requirement of a “case or controversy.” Congress
Article III
Federal courts can hear a matter only if there is a ____
“case or controversy.”
Whether there is a “case or controversy” (that is, whether a case is “justiciable”) depends on:
- What the case is requesting (is it an advisory opinion?)
- When it is brought (is it ripe or moot?)
- Who is bringing it (does the plaintiff have standing?)
Federal courts cannot issue advisory opinions, which are decisions that lack
(1) an actual dispute between adverse parties, or (2) any legally binding effect on the parties
The federal courts can still provide ____ review of a law (that is, by declaratory judgment action) without rendering an advisory opinion, assuming the “case or controversy” requirements discussed in this section are met.
pre enforcement
Ripeness
To avoid issuing advisory opinions, courts wait until laws and policies have been formalized and can be felt in concrete ways.
A plaintiff can establish ripeness before a law or policy is enforced by showing two things:
- The issues are fit for a judicial decision (The more the case involves legal as opposed to factual issues, the more likely the case will be fit for review)
AND - The plaintiff would suffer substantial hardship in the absence of review
Mootness
A live controversy must exist at all stages of review. Therefore, the plaintiff needs to be suffering from an ongoing injury, or else the case will be dismissed as moot.
A claim is not considered to be moot in the following situations, even
if the injury has passed:
- Controversies capable of repetition but that evade review because of their inherently short duration
- Cases where the defendant voluntarily stops the offending practice but is free to resume it (turns on the facts)
- Class actions in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable
____ bars consideration of claims before they have been developed; ____ bars their consideration after.
Ripeness; mootness
A person must have ____ at all stages of litigation, including on appeal.
standing
Elements of standing
injury, causation, and
redressability.
People have no standing merely as ____ to claim that government action violates federal law or the Constitution. The injury is too generalized.
“citizens” or “taxpayers”
To have standing, a person needs to show an injury in fact, which requires both:
- A particularized injury—an injury that affects the plaintiff in a personal and individual way AND
- A concrete injury—one that actually exists (that is, not hypothetical)
A taxpayer has standing to challenge their own ____ bill.
tax
A person may have standing to allege that federal action violates the ____ by interfering with powers reserved to the states as long as the person has a redressable injury in fact
Tenth Amendment (for example, deputy sheriffs required to do handgun checks under federal law challenging the law as a violation of the Tenth Amendment).
People have standing to challenge congressional spending measures on First Amendment ____ grounds
Establishment Clause
For a taxpayer to have standing to challenge spending on Establishment Clause grounds as such, Congress’s ____ power must be involved. Thus, for example, a person would not have standing as a taxpayer to challenge federal government grants of surplus property to religious groups (because Congress is using the property power rather than the spending power) or expenditures of general executive branch funds (because the executive branch is doing the spending, not Congress).
spending
A claimant with standing in their own right may assert the rights of a third party if:
(1) it is difficult for the third party to assert their own rights, or
(2) a close relationship exists between the claimant and the third party.
An organization has standing to sue on behalf of its members if
(1) there is an injury in fact to the members,
(2) the members’ injury is related to the organization’s purpose, and
(3) individual member participation in the lawsuit is not required (for example, they’re not seeking individualized damages).
A person has standing to bring a free speech claim alleging that the government restricted _____, even if that person’s own speech would not be protected under the First Amendment.
substantially more speech than necessary (in other words, that the restriction was overbroad)
-> Essentially, the plaintiff can bring a claim on behalf of others whose speech would be protected under the First Amendment.
The exception to standing for first amendment over-breadth claims does not apply to ____
commercial speech
Standing for Free Speech Overbreadth Claims requires
- Causation: There must be a causal connection between the injury and the conduct complained of.
- Redressability: A decision in the litigant’s favor must be capable of eliminating their harm (for example, through money damages or an injunction).
Congress can’t eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury. However, a federal statute may ____
create new interests, injury to which may be sufficient for standing.
A plaintiff may have standing to enforce a federal statute if they are within the Congress meant to protect
“zone of interests”
-> that is, a court is likely to find standing if it concludes that Congress intended the statute to protect such persons and also intended to allow private persons to bring federal court actions to enforce the statute).
Standing isn’t defeated simply because the plaintiff wanted to bring a case to ____. The
injury is still traceable to the government, even if the plaintiff knowingly triggered the application of the rule.
test the constitutionality of a particular rule
The Supreme Court has held that the doctrine of ____ reflected in the Eleventh Amendment bars a private party’s suit against a state in federal and state courts. Similarly, sovereign immunity bars claims against a state in federal and state agencies.
sovereign immunity
Exceptions to state sovereign immunity:
- Express Waiver
- Implicit Consent/Structural Waiver
- Actions Against Local Governments
- Suits by Other States or the Federal Government
- Bankruptcy
- Certain Actions Against State Officers
- Congress Removes the Immunity
States can be sued if they ____ to it (that is, by waiver). Most states have expressly waived sovereign immunity, at least to a limited extent, in their ____.
consent; tort claims acts
When they joined the federal union, states implicitly agreed that their sovereign immunity would yield to certain federal powers (for example, eminent domain and military-related powers).
Structural waiver applies when:
- A federal power is complete in itself AND
- The states implicitly consented to the federal government exercising that power as part of the plan of the Constitution
Ex: Based on the federal government’s power to raise and support a military to provide for the common defense, Congress can create veterans’ employment protections and permit veterans to sue states that refuse to accommodate their service-related disabilities. States ratified the Constitution knowing that their sovereign immunity would yield to the federal government’s complete power to build and maintain a military.
Waiver of sovereign immunity extends to suits brought by the federal government as well as to suits by private parties if Congress ____
delegates its power.
Ex: Congress gave an energy company the right to build a pipeline and authorized the company to exercise the federal eminent domain power to do so. The company used that power to institute condemnation proceedings against properties in which a state had an ownership interest. The Supreme Court rejected the state’s claim
that it was immune from suit. The long history behind the federal eminent domain power, which dates back to the nation’s founding, showed that the states had consented to such suits as part of “the
structure of the original Constitution itself.” The Court also confirmed that the federal government could delegate this power, again citing historical evidence.
____ governments (for example, a city or county) are not protected by sovereign immunity. Neither are entities like ____ departments.
Local; police
States can be sued by ____, and the ____ can sue states.
other states; federal government
States lack sovereign immunity in ____ proceedings, so a person can sue a state in relation to a bankruptcy proceeding.
bankruptcy
A person can sue a state official
(1) for damages personally or
(2) to enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state
A suit against a state official is prohibited by sovereign immunity to the extent that it seeks _____
retroactive damages.
Congress can remove a state’s immunity as to actions created under the ____, but it must be unmistakably clear that Congress intended to remove the immunity.
Fourteenth Amendment power to prevent discrimination
A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an _____.
unsettled question of state law
Federal courts will not enjoin pending state ____ (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of ____.
criminal proceedings; proven harassment or prosecutions taken in bad faith
Political questions will not be decided. These are issues
(1) constitutionally committed to another branch of government or
(2) inherently incapable of judicial resolution.
Examples of Political Questions
Challenges based on the “Republican Form of Government” Clause of Article IV; challenges to congressional procedures for ratifying constitutional amendments; the President’s conduct of foreign policy; and partisan legislative apportionment (that is, political gerrymandering).
Examples of Nonpolitical Questions
Arbitrary exclusion of a congressional delegate and production of presidential papers and communications are not political questions.
Also, the Supreme Court has said that a lawsuit challenging the validity of a federal statute should not be dismissed as a political question even if the case involves a dispute between branches of the federal government regarding foreign affairs.
The Supreme Court has original jurisdiction in all cases affecting ____, but Congress has given concurrent jurisdiction to lower
federal courts in all cases except those ____
ambassadors, public ministers, consuls, and those in which a state is a party
between states.
The Supreme Court has ___ jurisdiction in all cases to which federal judicial power extends under Article III, subject to congressional exceptions and regulation.
appellate
When exercising its appellate jurisdiction, generally the Supreme Court will hear the case only after ____ by the lower court.
there has been a final judgment
Cases can come to the Supreme Court by one of two ways:
- Writ of Certiorari—Most Cases (discretionary)
- Appeal—Rare Cases (Mandatory)
The Supreme Court has complete discretion to hear cases that come
to it by certiorari. The cases that come by
ertiorari are:
- Cases from the highest state court capable of providing a decision where (1) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (2) a state statute allegedly violates federal law; and
- All cases from federal courts of appeals
The Supreme Court must hear cases that come to it by appeal. These cases are confined to decisions by ____
three-judge federal district court panels that grant or deny injunctions.
The Supreme Court will not exercise jurisdiction if the state court judgment is based on _____—even if federal issues are involved.
adequate and independent state law grounds
–> If the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
Congress can exercise the powers ____ in the Constitution (under Article I, Section 8) plus any powers ____ to carry out any of its enumerated powers.
enumerated; necessary and proper
Congress has no general police power (that is, it has no general power to legislate for the health, safety, and welfare of the nation).
However, Congress has police power type powers over
the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capital and its property power).
Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of the legislative powers enumerated in Article I, as long as that law doesn’t violate another provision of the Constitution.___
that law doesn’t violate another provision of the Constitution. (low bar = rational basis test)
The Necessary and Proper Clause standing alone can’t support federal law. It must work ____
in conjunction with another federal power.
Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for _____
any public purpose not prohibited by the Constitution.
Congress could do the following under the taxing and spending power, even though it has no enumerated powers to ____:
1) Put a tax on factory carbon emissions
2) Spend for schools in states that follow federal educational standards
3) Impose a tax on the failure to purchase health insurance
regulate the area directly
The federal government can tax and spend for the general welfare, but Congress can’t ____ for the general welfare.
directly legislate
Under the spending power, Congress can impose conditions on the grant of money to state or local governments (so-called “strings”). These conditions are valid if they:
(1) are clearly stated,
(2) relate to the purpose of the program, (road/education example)
(3) are not unduly coercive, and (10% of medicaid funding)
(4) do not otherwise violate the Constitution.
Most federal taxes will be upheld if
they bear some reasonable relationship to revenue production or to promoting the general welfare.
Rarely, a tax may be regarded as an impermissible regulatory “penalty”—for example, if it seeks to ____. Conversely, what Congress labels as a “penalty” may be deemed a permissible tax if it functions as a tax in ____
compel rather than simply influence behavior; raising revenue or influencing (but not compelling) behavior.
To be within Congress’s Commerce Clause power, a federal law regulating interstate commerce must either:
- Regulate the channels of interstate commerce (for example, highways, waterways, telephone lines, the internet)
- Regulate the instrumentalities of interstate commerce (for example, planes, trains, automobiles) and persons and things in interstate commerce or
- Regulate activities that have a substantial effect on interstate commerce
When Congress attempts to regulate intrastate (in other words, local) commercial activity under the third prong (substantial effect), the Court will uphold the regulation if it:
can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.
Ex: Congress could regulate the growing of wheat (or marijuana) in one’s own backyard, even if it’s for personal consumption (wider impact on prices/crime)
The rational basis rule for aggregating local activities under the CC applies only when the regulated intrastate activity is ____.
economic or commercial in nature
Ex: Can’t regulate gun possession near school, but can regulate possession in connection with drug trafficking near schools.
If the regulated intrastate activity is not commercial or economic, the Court generally will not aggregate the effects and will uphold the regulation only if ____
Congress can show that it nonetheless has a direct substantial economic effect on interstate commerce, which Congress generally won’t be able to do.
The Court has interpreted the Tenth Amendment to preclude Congress from regulating noneconomic intrastate activity in areas _____
traditionally regulated by state or local governments.
Example: Congress cannot criminalize intrastate domestic violence against women, even though in the aggregate such violence substantially affects interstate commerce because of the loss of work, travel, and spending by victims.
The Commerce Clause gives Congress power only to regulate existing commercial activity; it does not give Congress power to ____
compel activity.
Under the commerce power, Congress may prohibit ____ discrimination in activities that might have a substantial effect on interstate commerce. Contrast that with ____ discrimination, which Congress can directly regulate under its Fourteenth Amendment enforcement power
private; public (that is, by state or local governments)
Congress may authorize private suits against state governments for _____
employment discrimination on the basis of race, gender, and religion.
War and Related Powers
The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
____ regulation during war and in the postwar period to remedy wartime disruptions has been upheld.
Economic
Congress authorized the ____, a specialized civilian court, to review military cases. The Supreme Court has the ability to review some, but not all, decisions from court-martial proceedings.
Court of Appeals for the Armed Forces
_____ may be tried by military courts.
However, Congress can’t deny habeas corpus review to all aliens detained as enemy combatants absent a ____
Enemy civilians and soldiers; meaningful substitute for habeas corpus review.
Military courts have jurisdiction over _____
all offenses committed by persons who are members of the armed services both at the time of the offense and when charged.
American civilians may be tried by military courts under martial law only if ____
actual warfare forces the federal courts to shut down.
Congress has a broad implied power to investigate to secure information
for potential legislation or other official action (such as for gathering information relating to impeachment). Investigation must be _____
expressly or impliedly authorized by the appropriate congressional
house.
Under the investigatory power, Congress can subpoena the President’s personal information. The subpoena must:
advance a legitimate legislative purpose, but the Court will also balance Congress’s interests in obtaining the information against the burdens on the President.
Property Power
Congress can dispose of and make rules for territories and other properties of the United States.
Although there is no express limitation
on Congress’s power to ____ of federal property, federal ____ of private property (eminent domain) must be pursuant to an enumerated power under some other provision of the Constitution
dispose; takings
Postal Power
Congress has an exclusive postal power. Under the postal power, Congress can classify and place reasonable restrictions on use of the mails but may not deprive any citizen or group of citizens of the general mail “privilege.”
Power Over Citizenship
Congress may establish uniform rules of naturalization.
Congress has ____ power over aliens.
plenary
Aliens have ____ to enter the United States and can be refused entry because of their political beliefs. However, resident aliens must get ____ before they can be deported.
no right; notice and a hearing
Congress has ____ power over naturalization and denaturalization.
However, Congress can’t ____ without their consent.
exclusive; take away the citizenship of any citizen—native-born or naturalized—
Admiralty Power
Congress’s admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.
Power to Coin Money and Fix Weights and
Measures
Congress has the power to coin money and fix standards for weights and measures.
Patent/Copyright Power
Congress has the power to control the issuance of patents and copyrights.
Typically, Congress can delegate rulemaking or regulatory power to the executive branch (including administrative agencies) or judicial branch as long as ____ are set and the power isn’t something that is ____ to Congress (for example, the
power to declare war or impeach).
intelligible standards; uniquely confined
–> A general standard will usually suffice as an intelligible principle.
When an agency adopts regulations that have extraordinary economic and political significance (“major questions”), it must be able to point to
clear congressional authorization for the exercise of such power (Modest, vague, or subtle language in the act delegating power to the agency is not sufficient to support agency action adopting a major change)
To pass a law, Congress must ____.
use bicameralism (passage of a bill by both houses of Congress) followed by presentment to the President for signature or veto
–> Attempts by Congress to create laws or control the enforcement of laws without bicameralism and presentment are invalid.
The requirements of bicameralism and presentment mean that Congress cannot give the President a ____
line item veto power (the President can only approve or reject a bill as a whole).
Congress can’t retain a ___ veto, which is when Congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment.
legislative (Ex: A law providing that one chamber of Congress may overturn agency regulations would be an unconstitutional legislative veto)
Speech or debate clause
Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.
Note: Immunity does not cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.
Presidential power derives from ____
Article II.
Congressional power derives from ___
Article I.
Enumerated Congressional powers
- Taxing and Spending Power
- Commerce Power
- War and Related Powers
- Investigatory Power
- Property Power
- Postal Power
- Power Over Citizenship
- Admiralty Power
- Power to Coin Money and Fix Weights and Measures
- Patent/Copyright Power
The President’s powers over internal affairs are unsettled, but among them is the express power and duty to ____
faithfully execute the laws
Zones of Presidential Authority:
1 - If the President acts with the express or implied authority of Congress, presidential authority is at its maximum and the actions likely are valid.
2 - If the President acts where Congress is silent, the constitutionality of the action is uncertain, and the Court will consider the circumstances and any relevant history.
3 - If the President acts against the express will of Congress and Congress
had authority to act, then the action likely is invalid.
In the zone of uncertainty of presidental powers the act is unlikely to be upheld
if it ____
usurps the power of another governmental branch or prevents another branch from carrying out its tasks.
It follows from the above that the President has no power to refuse to spend appropriated funds when Congress has ____
expressly mandated that they be spent.
The President appoints ambassadors, justices of the Supreme Court, and other officers of the United States whose appointments are not otherwise provided for in the Constitution, with the advice and consent (that is, approval) of the Senate.
Congress, however, can vest the appointment of ____ officers in the President alone, the courts, or the heads of departments. Congress itself may not
appoint members of a body with ____
inferior; administrative or enforcement powers.
The President can remove high level, purely executive officers (for example, Cabinet members) at____. Congress also cannot restrict the President from removing the head of an independent agency if that person is ____. However, Congress can provide statutory limitations (for example, removal only for good cause) on the President’s power to remove ____
will, without any interference
by Congress
the sole director and exercises substantial discretion
all other executive appointees.
Congress can remove executive officers only through ____
the impeachment process.
The President may grant pardons for all federal offenses but not for _____. The pardon power can’t be limited by Congress.
impeachment or civil contempt
The President has no power to declare war (only Congress does), but the President, as commander in chief, can act militarily in actual hostilities against the United States without a congressional declaration
of war to _____. However, Congress, under its power to enact a military appropriation, may ____
protect American lives and property; limit the President.
Challenges to the President’s conduct as commander in chief are likely to be viewed as ____
nonjusticiable political questions.
The President has paramount power to represent the United States in day-to-day ____
foreign relations
The President has the power to enter into treaties with the consent of _____
two-thirds of the Senate.
Like other federal law, treaties are the “supreme law of the land” if they are ____
self-executing (that is, effective without any implementation by Congress)
State laws that conflict with a self-executing treaty are ____
invalid.
The President generally doesn’t have any independent power to issue a memorandum ordering compliance with a
treaty that ____
isn’t self-executing.
A conflict between a congressional act and a valid treaty is resolved by order of adoption:
the last in time prevails.
Treaties are ___ to the Constitution.
inferior (a treaty may not be inconsistent with the Constitution)
Executive Agreements
Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the consent of the Senate.
If a state law conflicts with an executive agreement, the ___ prevails.
agreement
If an executive agreement conflicts with a federal law, the ____ prevails.
federal law
The President has a privilege to ____ so that the President can receive candid advice and protect national security.
keep certain presidential communications secret
In criminal proceedings, presidential communiques will be available to the prosecution where ____
a need for such information is demonstrated.
The President is subject to state criminal subpoenas of the President’s ____—such records do not fall under the executive privilege.
personal records
The President has absolute immunity from civil damages based on any action taken while ____, but there is no immunity for acts that allegedly occurred ____
exercising official responsibilities; before taking office
If ____ have exercised discretionary authority in a sensitive area, they can share in the immunity for suits brought concerning that area.
presidential aides
The President, Vice President, and all civil officers of the United States are subject to impeachment (the bringing of charges). Grounds include treason, bribery, and high crimes and misdemeanors. A ____ vote in the House is necessary to bring impeachment charges, and a ____ vote in the Senate is necessary to convict and remove from office.
majority; two-thirds
Types of Exclusive Federal Powers
- Some enumerated powers are exclusively federal because the Constitution limits or prohibits the use of the power by states
- Other enumerated powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government (for example, declaration of war, federal citizenship).
Under the Tenth Amendment, all powers not granted to the federal government or prohibited to the states are____.
reserved to the states or the people
-> Note, however, that federal powers are given an expansive interpretation, and thus little state power is exclusive.
The fact that the Tenth Amendment reserves all other powers to the states means that states have general police powers—that is, they can regulate the health, safety, and welfare of their people. Such regulations will be upheld if
they are rational, unless they burden a fundamental right or involve a suspect or quasi-suspect classification
Anti-Commandeering Principle
The Tenth Amendment limits Congress’s power to require the states to act in a particular way. In other words, Congress can’t commandeer the states by requiring them to enact state laws or to enforce federal laws.
Similarly, if Congress passes a tax
that does not apply to private businesses but merely taxes state government entities, it’s possible the Court will use the Tenth Amendment to prohibit the tax.
Not all spending conditions are problematic. ____ spending conditions don’t violate the anti-commandeering principle.
Non-coercive
Under its Fourteenth Amendment enforcement powers, Congress may restrict states from discriminating in _____
violation of equal protection or depriving rights protected by due process
The anti-commandeering rule does not apply when Congress regulates an activity
in which _____
both the states and private actors
engage
-> Therefore, Congress can subject state and local government activities to regulation or taxation if the law or tax
applies to both the public sector and the private sector (for example, minimum wage laws).
Intergovernmental immunity doctrine.
Based on the Supremacy Clause, states cannot interfere with or control the operations of the federal government
-> Thus, states can’t regulate the federal government or its agents while performing their federal functions
A state may not directly tax _____ without the consent of Congress. However, nondiscriminatory, indirect taxes are permissible if ___
federal instrumentalities; they do not unreasonably burden the federal government (for example, state income tax on federal employees).
Federal law for the supremacy clayse includes ____
the Constitution, federal statutes and regulations, treaties, and executive agreements
Types of preemption
- Express
- Implied (conflict, frustration of purpose, field)
Express Preemption
A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation.
Express preemption clauses will be ____ construed.
narrowly
If a state law conflicts with federal law requirements, such that it would be ____, the state law will be held to be impliedly preempted.
impossible to follow both laws
If a state or local law prevents____, it will also be held to be impliedly preempted. This is true even if the state law was enacted for some valid purpose and not to frustrate the federal law.
achievement of a federal objective
A valid federal law may impliedly “occupy”
the ____, thus barring any state or local law even if the state or local law is ____
entire field; nonconflicting.
–> The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field (for example, if federal laws are comprehensive or an agency was created to oversee the area, preemption may be found).
In all preemption cases, but especially in cases involving a field traditionally within ____, courts will start with the presumption that the historic state police powers are not to be superseded unless that was the ____ of Congress
the power of the states (for example, regulations involving health, safety, or welfare); clear and manifest purpose
The Interstate Compact Clause concerns agreements between states. If the agreement increases the states’ power at the expense of federal power, ____ is required.
congressional approval
The Article IV Interstate Privileges and Immunities Clause prohibits discrimination by a state against _____
nonresidents.
Corporations and aliens are ____ by the Privileges and Immunities Clause.
not protected
The Interstate Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns either ____
important commercial activities (such
as the pursuit of a livelihood) or fundamental rights
The Interstate Privileges and Immunities Clause applies only if the discrimination is ____ in nature.
intentionally protectionist
If the state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is _____
necessary to achieve an important government purpose and there are no less restrictive means available
States may not deny their citizens the privileges or immunities of _____. ____ are not protected by this Clause.
national citizenship (for example, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel)
Corporations
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce.
To do so, however, the state or local government must not ____
discriminate against or unduly burden interstate commerce. (dormant commerce clause)
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always
____
invalid
A discriminatory state or local law may be valid if it is ____
necessary to achieve an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.
If a nondiscriminatory state law (that is, a law that treats local and out-of-state interests alike) burdens interstate commerce, it will be valid unless ____.
the burden outweighs the promotion of a legitimate local interest (+The court will consider whether less restrictive alternatives are available.)
Example: An Iowa statute banning trucks over 60 feet was held to be invalid because the state showed no significant evidence of
increased safety and the burden on commerce was substantial.
A different standard may apply to statutes adopted by the state of incorporation regulating the ____. Because of the states’ long history of regulating the internal
governance of corporations that they create, and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be ____
internal governance of a corporation; upheld
Congress may ____ state regulations that would otherwise violate the (Dormant) Commerce Clause. Likewise, Congress
may ____ state regulations that could otherwise be upheld under the Commerce Clause.
permit; prohibit
A state or local government may prefer its ____ in receiving benefits from government programs or in dealing with government-owned businesses (for example, when hiring labor, buying or selling products, or giving subsidies). However, once a state sells state-owned resources, it cannot ____
own citizens; control what happens to the resource after that.
The Supreme Court applies a more lenient standard when a law favors government action that involves the performance of a _____ (such as waste disposal).
Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.
traditional government function
If a state regulation is discriminatory, it will be invalid unless:
- It furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives OR
- The state is a market participant
- Congress has approved that kind of discrimination (and that is constitutional = CC); or
- It involves government action regarding the performance of a traditional
government function
If a state regulation does not discriminate but burdens interstate commerce it will be invalid if
the burden on commerce outweighs the state’s interest.
Discriminatory state laws may violate
the dormant commerce clause, the
Privileges and Immunities Clause, or the Equal Protection Clause.
Privileges and Immunities Clause does not apply where there is no ____.
discrimination (undue burden doesn’t trigger P&I)
Corproations can only claim protection under the ____ clause and not the ____ clause.
commerce, P&I
Given in the ____ Amendment, state governments have wide latitude over the importation of liquor and the conditions under which it is sold or used within the state. However, regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause._
Twenty-First; Commerce Clause.
Liquor in interstate commerce is subject to the ____
Commerce Clause.
Congress may regulate economic transactions involving liquor through the federal commerce power (for example, antitrust laws) or by ____
conditioning grants of money (for example, highway funds given only to states with minimum drinking age of 21).
With a few minor exceptions, the power to regulate ____ commerce lies exclusively with Congress.
foreign
The same general considerations that apply to state regulation of commerce (see supra) apply to state ___ of commerce.
taxation
Unless authorized by Congress, state taxes that discriminate against ____commerce (for example, tax on out-of-state businesses higher than tax on in-state businesses) violate the Commerce Clause (Note that these taxes may also violate other constitutional provisions (for example, the Privileges and Immunities Clause of Article IV or the Equal Protection Clause).
interstate
A nondiscriminatory state tax will be valid if the following requirements are
met:
- Substantial Nexus: exists when
a business avails itself of the privilege of doing business in the state. A physical presence in the state is not necessary. - Fair Apportionment: fairly apportioned according to a rational formula. However, the taxpayer has the burden of proving unfair apportionment.
- Fair Relationship: must be fairly related to the services or benefits provided by the state.
Use taxes are imposed on goods purchased outside the state but used within it. They are ____
valid unless higher than sales tax.
An interstate seller may be required to collect a use tax if the seller has a ____ with the taxing state (for example, maintains
offices in the taxing state).
substantial nexus (A physical presence is not required)
Commodities in interstate transit (such as widgets in a shipping container on a truck or train) are ____ from ad valorem property state taxation.
entirely exempt
Interstate transportation begins when the cargo
(1) is delivered to an interstate carrier or
(2) actually starts its interstate journey.
–> A break in the continuity of transit does not destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment.
The interstate shipment usually ends when ____; after that, the goods are subject to local tax.
the cargo reaches its destination
The validity of ad valorem property taxes on instrumentalities of
commerce (for example, trucks or airplanes) depends on
(1) whether the instrumentality has acquired a “taxable situs” in the taxing state
(that is, whether there are sufficient “contacts” with the taxing state
to justify the tax) and
(2) whether the value of the instrumentality has been properly apportioned according to the amount of the “contacts” with each taxing state.
An instrumentality has a taxable situs in a state if it ____ from the state
receives benefits or protection
A tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the ____ of the instrumentality in the taxing state.
average physical presence
The taxpayer’s domiciliary state can tax the full value of instrumentalities used in interstate commerce unless the taxpayer can prove that ____
a defined part of the taxed item has acquired a “taxable situs” elsewhere.
Ao-called “doing business” taxes are ____
generally permitted
–> Such taxes may be measured by a flat amount or by a proportional rate based on contact with the taxing state.
Basic requirements of doing business taxes:
(1) the activity taxed must have a substantial nexus to the taxing state;
(2) the tax must be fairly apportioned;
(3) the tax must not discriminate against interstate commerce; and
(4) the tax must fairly relate to services provided by the state.
Sales taxes are generally valid if
there is a substantial nexus to the taxing state and the tax is properly apportioned (if more than one state can tax the sale).
Ad Valorem Tax on commodities are valid only if
property is no longer in interstate commerce.
The ____ Clause and the Commerce Clause greatly limit the states’ power to tax foreign commerce.
Import-Export
The United States may sue a state without ____
its consent.
Public policy forbids a state from suing the United States without its ____.
consent (Congress can pass legislation that permits the United States to be sued by a state in given situations).
A suit against a federal officer is deemed to be brought against the United States itself if the judgment sought would be ____ and
therefore is barred by sovereign immunity.
satisfied out of the public treasury or would interfere with public administration
Specific relief against an officer as an individual will be granted if the officer acted ____
ultra vires (beyond his authority).
One state may sue another state without ____. The Supreme Court has exclusive original jurisdiction.
the latter’s consent
By virtue of the ____ Clause, certain state court judgments must be recognized in other states.
Full Faith and Credit
The Full Faith and Credit applies only if:
- The court that rendered the judgment had jurisdiction over the parties and the subject matter (if the issue of jurisdiction was litigated in one state, that ruling must be recognized in other states
too) - The judgment was on the merits AND
- The judgment is final
Other than the Thirteenth Amendment ban on slavery (see below), the Constitution regulates only ____
government action, not private action.
By its terms, the Bill of Rights (the first 10 Amendments to the United States Constitution) limits ____ power. However, the Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the ____.
federal; states
Exceptions to incorporation of the bill or rights to the states through the 14A.
(1) the Fifth Amendment’s prohibition of criminal trials without a grand jury indictment and
(2) the Seventh Amendment’s right to a jury trial in civil cases.
The Thirteenth Amendment prohibits slavery and involuntary servitude, which the Court has defined as ____
compulsion of labor through the use or threat of physical or legal coercion.
Under the Thirteenth Amendment’s Enforcement Clause, Congress can prohibit racially discriminatory action by ____
anyone (the government or a private citizen).
The Fourteenth Amendment prevents states from depriving any person of ____
life, liberty, or property without due process and equal protection of law
The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to _____
vote on account of race or color
Section 5 of the Fourteenth Amendment gives Congress the power to adopt ____ to enforce the rights and guarantees provided by the Fourteenth Amendment.
appropriate legislation
Under Section 5 of the 14A, Congress may not ____. To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is ____ (that is, narrowly
tailored) to solving the identified violation.
expand existing constitutional rights or create new ones (it may only enact laws to prevent or remedy violations of rights already recognized by the courts)
congruent and proportional
Congress has inherent power to protect rights of ____ under Section 5 of the Fourteenth Amendment
citizenship (that is, to enforce the guarantee of the “privileges or immunities of citizens of the United States”).
State action can be found in actions of seemingly private individuals who:
- Perform exclusive public functions, or
- Have significant state involvement
Activities that are so ____ prerogative of the state are state action no matter who performs them.
traditionally the exclusive
State action also exists wherever a state ____ facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is ____ between the state and private party.
affirmatively; sufficient entwinement
There is state action even where the state actor is acting ____
contrary to policy
____ schemes are generally not significant state involvement (and thus state action)
Licensing
The mere fact that an organization has some members that are government actors ____
doesn’t convert the org to state action
States are not constitutionally required to outlaw discrimination. They are only forbidden to ____
facilitate, encourage, or authorize it.
Standards of review are used by the Court when reviewing challenges to governmental acts under the guarantees of
substantive due process and equal protection, as well as the First
Amendment rights:
- Rational Basis
- Intermediate Scrutiny
- Strict Scrutiny
What laws are reviewed on a rational basis standard
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard
Rational Basis - Standard
Law is upheld if it is rationally related to a legitimate government purpose.
–> This is a very easy standard to meet; therefore the law is usually valid—unless it is arbitrary or irrational.
Rational Basis - BOP
The person challenging the law has the burden of proof.
Regulations involving ____ are reviewed under the intermediate scrutiny standard
quasi-suspect classifications (that is, gender and legitimacy)
Intermediate Scrutiny - Standard
The law is upheld if it is substantially related to an important government purpose.
Intermediate Scrutiny - BOP
It is unclear who has the burden of proof under intermediate scrutiny. Usually, courts place the burden on the government.
Regulations affecting ____ or involving ____ are reviewed under the strict scrutiny standard
fundamental rights (for example, interstate travel, voting, and First Amendment rights); suspect classifications (that is, race, national origin, and alienage)
Strict Scrutiny - Standard
The law is upheld if it is necessary (that is, the least restrictive means) to achieve a compelling government purpose.
–> This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated—
especially if there is a less burdensome alternative to achieve the government’s goal.
Strict Scrutiny - BOP
The government has the burden of proof under strict scrutiny.
Government ____ is insufficient to state a procedural due process claim. Instead, there generally must be an ____ government action.
negligence; intentional or reckless
The Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment provide that a person has a right to a ____ when the government deprives the person of life, liberty, or property
fair process (procedural due process)
A deprivation of liberty occurs if a person:
- Loses significant freedom of action, or
- Is denied a freedom provided by the Constitution or a statute
Injury to ____ itself is not a deprivation of liberty (or property).
reputation
“Property” includes not only personal and real property (whether it’s tangible or intangible), but also government benefits to which there is an entitlement (that is, a ____) under state or federal law.
reasonable expectation of continued
receipt (An abstract need or desire for (or a unilateral expectation of) a benefit is not enough.)
Property interests under the DPC include welfare benefits, public education, government licenses, and tenured government employment or term employment for the duration of the term, but not ____
at-will employment.
Process Required: Commitment to Mental Institution
- Adults: Prior notice and prior evidentiary hearing (except in emergency).
- Children: Prior screening by
“neutral factfinder.” (Parental consent
alone insufficient.)
Process Required: Welfare Benefits
Prior notice and prior evidentiary hearing.
Process Required: Disability Benefits
Prior notice and opportunity to respond, and subsequent evidentiary hearing.
Process Required: Public Employment
(tenured or termination only “for cause”)
Generally, prior notice and opportunity to respond, and subsequent evidentiary hearing.
Process Required: Public Education (disciplinary suspension or academic dismissal)
Public Education (disciplinary suspension or academic dismissal)
Process Required: Driver’s License Suspension
Prior evidentiary hearing. Exception: Breathalyzer test suspension statutes
Process Required: Termination of Parent’s Custody Rights
Prior notice and prior evidentiary hearing.
Clear and convincing evidence required.
Process Required: Civil Forfeitures
Prior notice and evidentiary hearing for real property; subsequent notice and hearing for personal property.
Process Required: Detention of Citizen Enemy Combatants
Subsequent notice and a meaningful opportunity to contest the factual basis for detention before a neutral decisionmaker.
Procedural due process requires:
- Notice
- Opportunity to be heard AND
- A neutral decisionmaker
Notice for DPC must be ____
reasonably calculated to inform the person of deprivation.
The type and extent of the DPC hearing are determined by a balancing test that weighs:
- The importance of the interest to the individual and
- The value of specific procedural safeguards to that interest (that is, the risk of error from the current procedures used and the benefits of additional procedures),
AGAINST:
- The government interest in fiscal and administrative efficiency (that is, the burden on the government from using additional procedures)
Typically, a claimant should be given a ____ hearing, unless that would be impracticable.
pre-deprivation
The decisionmaker of a DPC hearing cannot have any ____ or a ____
actual bias (for example, having a financial interest in the decision or a relative that is a party to the case); serious risk of actual bias.
As a general rule, due process rights are, presumably, subject to waiver if the waiver is _____
voluntary and made knowingly.
Government fees (for example, court filing fees) must be waived when imposition of a fee would deny a ____ to the
indigent. However, fees can be imposed when ____ rights are involved (for example, fees for a bankruptcy discharge or review
of welfare termination).
fundamental right; nonfundamental
Substantive due process guarantees that laws will be ____
reasonable and not arbitrary.
Fundamental rights subject to strict scrutiny include:
- All First Amendment rights
- The right to interstate travel
- Privacy-related rights
- Voting
Fundamental rights can be enumerated in the Constitution or unenumerated. Whether an unenumerated right is fundamental depends on whether it is ____
deeply rooted in the nation’s history and
tradition and essential to the concept of ordered liberty.
Both substantive due process and equal protection guarantees require the Court to review the ____ of a law rather than the procedures employed.
substance
If a law limits the rights of ____ persons to engage in some activity, on the MBE it usually is a [substantive] due process question.
all
If a law treats ____ differently from others, on the MBE it usually is an equal protection problem.
a person or class of persons but analyze both!)
The Supreme Court has recognized (at least in relation to property regulation) that an equal protection claim can be brought not only for discrimination against a group, but also for arbitrary treatment of a
____
single individual—a class of one
The Court has held that an at-will government employee who claims to be a victim of arbitrary discrimination cannot use the ____ to make an equal protection claim.
class of one theory
Privacy related rights subject to strict scrutiny
marriage, procreation, contraception, and childrearing
A statute restricting the rights of prison inmates to marry will be upheld if ____
reasonably related to legitimate penological interests (can’t outright ban!)
Regulations that don’t ____ the right to marry, such as minimum age requirements, are subject to rational basis review.
substantially burden
Parental rights are fundamental rights. They include the”
companionship, care, custody, and upbringing of children.
There’s a fundamental right for ____—to live together. However, this right does not extend to ____ people.
family members—even extended ones; unrelated
There is no longer a fundamental right to an abortion under the federal
Constitution, the matter is left to the states to legislate.
Laws restricting abortions are now entitled to a “____” under rational basis review.
strong presumption of validity
The right to privacy includes freedom to read obscene material in one’s home (except for child pornography), but not the right to _____
sell, purchase, or transport such material.
The state may reasonably gather and distribute information about its citizens. Thus, there is no privacy right to prohibit the accumulation of ____ for whom dangerous drugs are prescribed.
names and addresses of patients
Re: Interstate Travel, An individual has a fundamental right:
(1) to travel from state to state, and
(2) to be treated equally after moving into a new state.
-> Note though that not every restriction on the right to cross state lines is an impairment of the right to travel.
Tolls for ____ a state would be invalid (but tolls for using a state’s roads are fine).
entering or leaving
Increased penalties for a parent abandoning their children and leaving the state are ____
valid.
International travel is ____ a fundamental right. It is, however, protected from ____ by the Fifth Amendment Due Process Clause; the rational basis standard applies.
not; arbitrary federal interference
One year residency requirements to receive full welfare benefits, receive state-subsidized medical care, to vote in a state are
invalid
A thirty-day residency requirement to vote in a state is
valid
A one year residency requirement to get divorced is
valid
Restrictions on the right to vote, other than on the basis of ____, are invalid unless they can pass strict scrutiny.
residence, age, and citizenship
Conditioning the right to vote or hold office on ownership of property is usually ____.
invalid
A state may require voters to show a ____
government-issued voter ID.
Poll taxes are _____
unconstitutional.
States can require early registration to vote in ____. However, states can’t prohibit political parties from opening their primary elections to ____
primaries; anyone, whether or not registered with the party.
The “one person, one vote” principle applies whenever any level of government decides to select representatives to a governmental body by popular election from ____
individual districts.
For state and local elections, the populations of voting districts must be ____
substantially equal.
-> That is, the variance in the number
of persons included within districts can’t be unjustifiably large, but the districts don’t need to be within a few percentage points of each other.
Where there is a deviation from one person one vote in a state/local election a state must show that a deviation from mathematical equality is ____
reasonable and tailored to promote a legitimate state interest (for example, preserving political subdivisions)
Where there is a deviation from one person one vote in a state/local election a __% variance is presumptively valid and a __% has been upheld in light of the state’s
interest in preserving political subdivisions and communities and in light of geographic factors.
10; 16
States must use ____ when creating congressional districts within the state.
almost exact mathematical equality (even a
0.7% variance was invalidated).
The exact mathematical equality requirement doesn’t apply where ____ apportions representatives among the states; Congress’s good faith method for apportioning representatives gets more deference and is not subject to a precise mathematical formula, as are state plans.
Congress
When states measure the equality of their districts, they don’t have to count only persons ____. Counting the ____ is sufficient and this best serves the “one person, one vote” principle.
eligible to vote; total
population
The apportionment requirement is inapplicable to officials who are ____
appointed or elected at large.
The one person, one vote principle doesn’t apply to elections of officials who do not exercise “____”
but rather deal with matters of special interest in the community
normal governmental authority
____ cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny.
Race (and presumably other suspect classifications)
Political gerrymandering (that is, drawing district lines to achieve certain political results, which sometimes results in districts with the contours of a mythical salamander), is a ____
non-justiciable political question.
States can’t charge candidates a fee that makes it impossible for _____
indigents to run for office.
A ballot access (ability to be candidate) regulation must be a ____. A state may
require candidates to show ____ to have their names placed on the ballot.
reasonable, nondiscriminatory means of promoting important state interests
reasonable support
The government can allocate more public funds to the ____ parties than to “minor” parties for political campaigns.
two “major”
The Second Amendment protects the right of individuals to bear arms for self-defense. This includes the right to keep a handgun ___ and the right to ____
at home; carry a handgun in public.
For a gun permit law to be constitutional, the criteria must be clear; a law that gives an official ____ in granting permits is unconstitutional.
discretion
A state may not require someone who is applying for a concealed carry permit to show they ____; such a
requirement is unconstitutional.
need it for safety
Standard of review for gun regulations
The government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation.
-> Simply positing that the regulation promotes an important interest is not sufficient.
Bans on firearms in sensitive places—such as _____ —are constitutional based on historical tradition.
There is no analogous historical tradition to justify general bans on handguns in the home or in public.
legislatures, courtrooms, and schools
A fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is ____.
forbidden or required
-> A regulation that fails to give fair notice violates the Due Process Clause.
The state has no legitimate interest in making it a crime for fully consenting adults to engage in _____
private intimate sexual conduct (for example, sodomy) that is not commercial in nature.
–> can’t even pass the rational basis test because of the lack of a legitimate state interest!
The right of a mentally competent adult to refuse ____ is a part of an individual’s “liberty” under the Fifth and Fourteenth Amendment Due Process Clauses.
medical treatment (although it is unclear what standard of review applies)
There is no fundamental right to physician-assisted ____
suicide.
States can compel vaccination against ____
contagious diseases
An equal protection claim arises whenever the government ____
treats people differently from others
The Equal Protection Clause of the Fourteenth Amendment is limited to ____ action. While the Equal Protection Clause is not applicable to the federal government, the _____ contains an equal protection component.
state; Due Process Clause of the Fifth Amendment
For strict or intermediate scrutiny to be applied, there must be ____ on the part of the government to discriminate.
intent
Intent for the EPC may be show by:
1 - A law that is discriminatory on its face (that is, facial discrimination),
2 - A discriminatory application of a facially neutral law, or
3 - A facially neutral law with a disparate impact on a protected class of people (such as minorities)
++ 2/3: A discriminatory application or effect alone is not enough. The legislature’s discriminatory intent must be shown (for example, by evidence of a history of discrimination).
Classifications are suspect if they are based on ____
race, national origin, or (at the state and local levels) alienage.
Classifications based on race or national origin are judged by a ____ standard.
strict scrutiny
____ segregation violates the Constitution. If school systems and attendance zones are established in a racially neutral manner, there is ____
Intentional; no violation (there is no violation if housing patterns result in racial imbalance in schools without intent)
If it’s proven that a school board has engaged in the racial districting of schools, the board must take steps to _____. If the school refuses to do so, a court can order the school district to take all appropriate steps to eliminate the discrimination, but the order cannot go beyond the purpose of _____
eliminate the effects of that discrimination (for example, busing students); remedying the past effects of segregation
The Supreme Court has found that assigning students to a public primary or secondary school on the basis of race solely to promote ____, as opposed to remedying past intentional segregation, does not satisfy strict scrutiny.
diversity
Government action—whether by federal, state, or local governmental bodies—that ____ racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.
favors
The government has a compelling interest in remedying past governmental discrimination against a racial or ethnic minority. The past discrimination must have been ____. A race based plan cannot be used to remedy general past ____
persistent and readily identifiable; “societal discrimination.”
Even where the government hasn’t engaged in past discrimination, it ____ have a compelling interest in affirmative action in limited contexts. However, remember that the governmental action must be narrowly tailored to that interest.
may
In 2023, the Court brought the rule for universities in line with the rule for lower public schools, stating that having a ____ is not an interest compelling enough to overcome strict scrutiny.
diverse student body
If a plaintiff can show that a redistricting plan was drawn up predominately on the basis of _____, strict scrutiny is triggered
and the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling state interest.
racial considerations
Because of Congress’s plenary power over aliens, federal alienage classifications are ____ to strict scrutiny.
not subject (Such classifications are valid if they are not arbitrary and unreasonable.)
Generally, ____ laws on alienage (that is, citizenship status) are suspect classifications subject to strict scrutiny.
state/local
If a law discriminates against alien participation in state government (for example, voting, jury service, elective office), the _____ standard is applied.
rational basis
The ____ standard is used for state and local laws limiting certain non-elective offices involving important public policy (for example, police officers, probation officers, and primary and secondary schoolteachers).
rational basis
_____ aliens are not a suspect classification. Thus, state laws regarding them are subject to a “rational basis” standard.
Undocumented
Denial of _____ to undocumented alien children
has been held to be invalid under amorphous rational basis/intermediate scrutiny standard.
free public education
Classifications based on ____ are “quasi-suspect.”
legitimacy and gender
Gender classifications based on ____ are generally invalid, whereas those designed to remedy past discrimination are more likely to be upheld under intermediate scrutiny.
role stereotypes
For gender classifications under intermediate scrutiny the government bears the burden of showing an _____ for the discrimination.
“exceedingly persuasive justification”
Laws that have been found valid under gender intermediate scrutiny:
- Discriminatory statutory rape laws
- All-male draft
- The Social Security Administration’s formula entitles women to greater benefits to remedy a long history of pay discrimination
Laws that have been found invalid under gender intermediate scrutiny:
- Gender-based death benefits
- Gender-based peremptory strikes
- Alimony for women only
- Discriminatory minimum drinking age (women at 18, men at 21)
Distinctions drawn between _____ children are also reviewed under the intermediate scrutiny standard
marital and nonmarital
A law allowing nonmarital children to recover from their fathers’ estates only if parenthood is established before the father’s death is ____, becuase it ____
valid; promotes the efficient disposition of property at death (an important government interest).
All other classifications are evaluated under the rational basis standard. These include ____ classifications.
age, disability, and wealth
If the government’s only interest in denying a benefit to or imposing a burden on a group of people is _____, the classification will not meet rational basis review.
a dislike of them
Summary of what is subject to strict scrutiny:
Suspect classifications: race, national origin, and sometimes alienage
Fundamental rights: interstate travel, privacy, voting, first amendment rights
The Fifth Amendment (applicable to the states via the Fourteenth Amendment) provides that private property may only be taken
(1) for public use and (2) the government must pay just compensation
Property subject to the Taking Clause includes ____
personal property, real property, and certain intangibles (for example, interest on
attorney trust accounts and trade secrets, but not welfare benefits).
A taking (vs a regulation not requiring compensation) will be found if there is:
- A confiscation of a person’s property or
- A permanent or regular physical occupation of a person’s property by the government
Temporary occupations by the government may also be a taking, depending on factors like ____
the degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property.
Municipalities often attempt to condition building or development permits on a landowner’s (1) conveying title to part of the
property to the government (for example, to be used as streets), or (2) granting the public an easement to access the property. These conditions constitute a taking unless:
(1) the government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest) and (2) the adverse impact of
the proposed development is roughly proportional to the loss
caused to the property owner from the forced transfer.
A taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to ____
a public emergency, such as war.
Types of regulatory taking analysis
- Denial of All Economic Value of Land—Taking (BLR)
- Decreasing Economic Value—Balancing Test
If a government regulation denies a landowner of ____ of their land (for example, a regulation prohibiting any building on the land), the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.
all economically viable use
____ an owner of all economic use of property
does not constitute a per se taking. Instead, the Court will carefully examine and weigh all the relevant circumstances—the planners’ good faith, the reasonable expectations of the owners, the length of the delay, the delay’s actual effect on the value of the property, and so on—to determine whether “____” require just compensation.
Temporarily denying; fairness and justice
Generally, regulations that merely decrease the value of property (for example, prohibiting the most beneficial use) do not amount to a taking if they leave an economically viable use for the property. BUT the Court will consider:
(1) the government interests sought to be promoted;
(2) the diminution in value to the owner; and
(3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.
If the government’s action is _____ (for example, for health, welfare, safety, economic, or aesthetic reasons), the public use requirement (of the takings clause) is satisfied.
rationally related to a legitimate public purpose (liberally construed)
Authorized takings by private enterprises are included if they _____
work to the public advantage (for example, railroads and public utilities).
Just compensation is measured by the ____ of the property taken at the time of ____, and it’s based on the loss to the owner. Increases in value to the owner’s remaining property as a result of the taking are ____
fair market value; the taking; not considered.
When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation. If the court determines that the government action amounted to a taking, the government will be required to either:
- Pay the property owner just compensation for the property, or
- Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (that is, temporary taking damages).
The Contract Clause limits the ability of state and local governments to enact laws that ____. It doesn’t affect contracts ____
retroactively impair contract rights; not yet made.
There’s no comparable contract clause applicable to the ____ government, but ____ contract impairment would violate the Fifth Amendment Due Process Clause.
federal; flagrant
Legislation that substantially impairs an existing private contract is invalid unless the legislation:
- Serves an important and legitimate public interest, and
- Is a reasonable and narrowly tailored means of promoting that interest
Types of scrutiny under the contract clause:
- Private Contracts—Intermediate Scrutiny
- Public Contracts—Heightened Scrutiny
Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation ____
reduces the contractual burdens on the state.
Neither the states nor the federal government may pass an ex post facto law, which is a law that ____ in a substantially prejudicial manner for the purpose of punishing a person for some past activity
retroactively alters criminal offenses or punishments
A statute retroactively alters a law in a substantially prejudicial manner if it:
- Makes criminal an act that was innocent when done,
- Imposes a greater punishment for an act than was imposed for the act when it was done, or
- Reduces the evidence required to convict a person of a crime from what was required when the act was committed
Note that the Due Process Clauses of the Fifth and Fourteenth Amendments similarly prohibit ___ from retroactively interpreting criminal laws in an unexpected and indefensible way.
courts
The Ex Post Facto Clauses apply only to ____ cases
criminal
-> An answer choice that attempts to apply these prohibitions in a civil case (for example, regarding a denial of a professional license) is wrong.
____ are legislative acts that inflict punishment on individuals without a judicial trial. Both federal and state/local governments are prohibited from passing these bills.
Bills of attainder
If a retroactive law does not violate the Contracts, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the ___.
Due Process Clause
-> If the retroactive law doesn’t substantially burden a fundamental right, it only needs to be rationally related to a legitimate government interest.
The First Amendment prohibits Congress from abridging the freedoms of ____
speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion
Speech includes ___
words, symbols, and expressive conduct.
Expressive conduct is any kind of conduct that is either ____, or conduct that is:
inherently expressive
Intended to convey a message, and Reasonably likely to be perceived as conveying a message
Unprotected speech include:
- Incitement
- Fighting words (including true threats)
- Obscenity
- Some commercial speech
Lesser protected speech includes:
- Some commercial speech
- Defamatory speech
Speech can be censored as incitement if it is
(1) intended to produce imminent lawless action and
(2) likely to produce such action.
Speech can be censored if it constitutes fighting words which are:
personally abusive words that are likely to incite immediate physical retaliation in an average person
-> Words that are merely annoying won’t do.
The First Amendment does not protect true threats, which are words that are ____
intended to convey to someone a serious threat of bodily harm.
To qualify as a true threat, the speaker must have had some ____ understanding that their threats were of a threatening nature, but a mental state of ____ is sufficient
subjective; recklessness (that is, the speaker is aware that others could regard the statements as threatening violence and delivers them anyway).
Even though fighting words are unprotected, the Supreme Court won’t allow fighting words statutes that are designed to punish only ____
certain viewpoints
As a practical matter, statutes that attempt to punish fighting words are usually ___
vague or overbroad
Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
- Appeals to the prurient interest in sex, using a contemporary community standard
- Is patently offensive under contemporary community standards
AND - Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard
Mere ____ are not obscene
nudity, soft-core pornography, and “dirty words”
Private possession of obscene material in ____ cannot be punished (except for possession of child pornography). However, the protection does not extend ____
the home; outside the home.
To protect minors from exploitation, the government may prohibit the sale or distribution of ____ depictions of sexual conduct involving minors, even if the material would ____
visual; not be found obscene if it did not involve children.
The government can’t bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that actually uses ____
young-looking adults or computer-generated images.
The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience. However, the government can’t prohibit the sale or distribution of material to adults just because ____
it’s inappropriate for children.
A land use (or zoning) regulation may limit the ____ of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (for example, to protect children and unwilling adults from exposure, or to prevent neighborhood crime and decay). However, these regulations can’t ban such establishments altogether.
location or size
Ex: The Supreme Court upheld a city ban on adult bookstores and theaters within 1,000 feet of neighborhoods, schools, churches, and parks, which left less than 5% of the city for such speech.
Under the Twenty-First Amendment, states have broad power to regulate intoxicating beverages. Laws relating to this power that affect free speech rights generally will not be set aside unless ____
they are irrational.
If a defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus _____.
falsity and some degree of fault in order to recover
If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is _____
actual malice.
To show actual malice, the plaintiff must prove by ____ evidence that the alleged defamatory statement was made with:
clear and convincing
- Knowledge that it was false or
- Reckless disregard as to its truth or falsity
Public officials include people:
(1) holding or running for elective office
(at any level), and
(2) public employees in positions of public importance (for example, prosecutor, school principal, police officer).
Public figures are people who have:
(1) assumed roles of prominence in society,
(2) achieved pervasive fame and notoriety, or
(3) thrust themselves into particular public controversies to influence their resolution.
Matters of public concern are issues ____. The courts decide on a case-by-case basis whether the defamatory statement involves a matter of public concern, looking at ____
important to society or democracy; the content, form, and context of the publication.
If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover ____ if the plaintiff only shows negligence. To recover _____ they need to show actual malice.
actual damages; punitive damages or presumed damages
If the plaintiff is a private figure suing on a matter of private concern, then the First Amendment is ____
not involved
The Supreme Court has required proof of ____ for recovery under the torts of intentional infliction of emotional distress and other
torts (for example, invasion of the right to privacy) where the plaintiff is a public figure or official, or where the speech is on a matter of public concern.
actual malice
Ex: The Supreme Court barred recovery for intentional infliction of emotional distress and other torts against the Westboro Baptist Church for picketing at a fallen soldier’s funeral, because the plaintiff couldn’t show actual malice.
Commercial speech (that is, advertisements, promotions of products and services, brand marketing) is not protected if it is
(1) false
(2) misleading, or
(3) about illegal products or services.
Any other regulation of commercial speech (that isn’t false, misleading, illegal) will be upheld only if it:
- Serves a substantial government interest,
- Directly advances that interest, and
- Is narrowly tailored to serve that interest (not least restrictive = there just needs to be a reasonable fit)
Complete bans on truthful advertisement of lawful products are ____ to be upheld due to a lack of a legitimate government interest.
very unlikely
The government may require commercial advertisers to make disclosures if the disclosures are ______
not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.
Speech and assembly regulations can generally be categorized as either ____
content-based or content-neutral.
Content-based regulations are subject to ____, and they are presumptively _____
strict scrutiny; unconstitutional (unless they fall within one of the categories of unprotected speech, like obscenity).
A regulation is content-based if it _____
restricts speech based on the subject matter or viewpoint of the speech.
Content-neutral restrictions on speech are both ____
subject matter-neutral and viewpoint-neutral
Content-neutral restrictions on speech generally are subject to ___ scrutiny that is, they must advance important interests unrelated to the suppression of speech and must not _____
intermediate; burden substantially more speech than necessary (or must be narrowly tailored) to further those interests.
Oftentimes content neutral regulations are in the form of ____ restrictions
time, place, and manner (in other words, restrictions on the conduct related to speech).
The extent to which the government may regulate speech or expressive conduct on government property depends on whether the
property involved is a ____
public forum, a designated public forum, a limited public forum, or a nonpublic forum.
Traditional Public Forums
Public property that has historically been open to speech-related activities (for example, streets, sidewalks, and public parks) is called a public forum.
Designated Public Forums
Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (for example, a town hall open for use by social, civic, or recreation groups), is called a designated public forum.
If the regulation on a traditional public forum or designated public forum is content-based, it will be subject to ___ scrutiny
strict
If the regulation on a traditional public forum or designated public forum is content-neutral it only needs to meet ____ scrutiny, which in this context means it must:
intermediate
- Be narrowly tailored to serve an important government interest (however, it need not be the least restrictive means for accomplishing
the interest) and
+++ Leave open alternative channels of communication!!
____ against speech in public forums are treated the same as other speech restrictions.
Injunctions
Limited public forums
Government forums not historically open generally for speech and assembly but opened for specific speech activity, like a school gym opened to host a debate on a particular community issue, or a public university’s funding of student publications.
Nonpublic forums
Government property not historically open generally for speech and assembly and not held open for specific speech activities, such as military bases or government workplaces
The government can regulate speech in limited and non-public forums to reserve the
forum for its intended use. In such locations, regulations are valid if they are:
- Viewpoint neutral and
- Reasonably related to a legitimate government purpose
If the regulation of speech in non-public limited forums is viewpoint based, it will be subject to ____
strict scrutiny.
Generally, public primary and secondary schools (that is, elementary, middle, and high schools) and school-sponsored activities in those schools are ____ forums.
not public
–> Therefore, speech (and association) can be reasonably regulated in them to serve the school’s educational mission
A student’s own personal speech (that is, their expression of themselves as individuals) on campus cannot be censored absent ____
evidence of substantial disruption
Exception to personal student speech on campus
Speech promoting illegal drug use does not require showing any disruption or credible threat of disruption.
When the student’s personal speech occurs off campus schools will be limited to restricting speech to ____ and other speech where ____ clearly outweigh the speech interests of students as private citizens.
prevent cheating, bullying, threats,
pedagogical or safety interests
Restrictions on speech related to the school’s teaching (for example, speech by school faculty and by students as part of curricular or extracurricular activities) must be
reasonably related to legitimate pedagogical concerns.
If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech
was ____
disruptive of the work environment
A government employer may also punish a public employee’s speech whenever the speech is made on the job and ____, even
if the speech touches on a matter of public concern.
pursuant to the employee’s official duties
If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will use a ____ test. The courts must ___
balancing; balance the value of the speech against the government’s interest in the efficient operation of the workplace.
For speech on matters of private concern outside of the workplace, the test is unclear, but this speech appears protected absent a ____.
detrimental effect on the workplace.
The federal government may prohibit federal executive branch employees from taking an active part in ___
political campaigns.
A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the First Amendment when applied to ____ employees.
“rank and file”
-> Such a rule deters speech within a broad
category of expression by a massive number of potential speakers and so can be justified only if the government can show that the employees’ and their potential audiences’ rights are outweighed by the necessary impact the speech would have on actual operation of the government.
A public employee may not be hired, fired, promoted, transferred, etc., based on party ____ except as to policymaking positions, where party affiliation and views are relevant.
affiliation or political views
The government can require employees to take loyalty oaths, as long as the oaths aren’t ___.
overbroad or vague.
An oath for government employees can’t prohibit membership in the communist Party or require abstention from advocating overthrow of the government as an ____
abstract doctrine.
An oath requiring public employees to support the Constitution and to oppose the unlawful overthrow of the government is ____; but an oath requiring public employees to support the flag is ___
valid; invalid.
The government may not force disclosure of every ____ in exchange for a government employment or other benefit; it can only inquire into those activities that are relevant to the employment or benefit sought. Even here, however, a person can exercise their ____ if the disclosure would be incriminating.
organizational membership or affiliation; Fifth Amendment right to remain silent
If a criminal law or regulation fails to give persons reasonable notice of what is prohibited (for example, a ban on “opprobrious and offensive” words), it may violate the Due Process Clause. This principle is applied more strictly when ____ activity is involved.
First Amendment
A regulation of speech or speech-related conduct will be invalidated as overbroad if it ____
punishes substantially more speech than is necessary
An overbroad regulation is facially ____, unless a court has limited construction of the regulation so as to remove the threat to ____
invalid (that is, it may not be enforced against anyone—not even a person engaging in activity that is not constitutionally protected); constitutionally protected expression
Because the invalidation remedy for overboard speech regulation is severe, the Court has noted that invalidation is only justified if the unconstitutional applications are ____. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.
realistic (that is, not fanciful), and substantially
disproportionate to the statute’s lawful sweep
Prior restraints are court orders or administrative systems that prevent speech ____
before it occurs, rather than punish it afterwards (for example, licensing systems, injunctions).
There isn’t any special test for prior restraints—content-based ones are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny—but the government’s burden in justifying a prior restraint is ___. For exam purposes, you should ask whether there is _____ that justifies the restraint.
heavy; some special societal harm
To be valid, a system for prior restraint must provide the following safeguards:
- The standards must be narrowly drawn, reasonable, and definite,
- The injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech), and
- There must be prompt and final judicial determination of the validity of the restraint (for example, a review of a permit denial).
A number of other cases, especially in the area of movie censorship, require that the ____ bear the burden of proving that the speech involved is unprotected.
government
If a statute gives licensing officials unbridled
discretion, it is _____
void on its face and speakers don’t even need to apply for a permit
If the licensing statute includes standards (discussed above), a speaker can’t ignore the statute; they must seek a permit and if it is denied, they can ____
challenge the denial on First Amendment grounds.
Obscenity cases: Seizures of a single book or film may be made with a warrant based on probable cause, although if the item is available for sale to the public, a police officer may ____. Large scale seizures must be _____
purchase a book or film to use as evidence without a warrant; preceded by a full-scale adversary hearing and a judicial determination of obscenity.
Obscenity cases: The Court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression. So, the Court allows the government to establish ____, as long as the procedural safeguards discussed above are followed.
censorship boards to screen movies before they are released
When the government adopts a content-based prior restraint of speech, the ____ has the burden of proving that the restriction is narrowly tailored to achieve a compelling interest (strict scrutiny) or that the speech is unprotected (for example, obscenity).
government
Generally, the press (along with corporations, unions, and expressive associations, like a lobbying group) has ____ than does a private citizen.
no greater First Amendment freedom
Generally, the press has a right to publish ____. Content-based restrictions on the press are subject to ____.
truthful information regarding a matter of public concern
strict scrutiny
The First Amendment guarantees the public and press a right to attend ____ trials. But, the right may be outweighed by an overriding interest stated in the trial judge’s findings
criminal (and probably civil)
The right to attend trials includes the right to be present at ____, unless the judge makes specific findings that closure was narrowly tailored to preserve a higher value.
voir dire and at other pretrial proceedings
Members of the press may be required to testify before ____
grand juries.
Re: Prisons, the First Amendment doesn’t give journalists a right to ____
interview specified prisoners of their choice or to inspect prison grounds.
The press and broadcasting companies can be subjected to ___ business regulations or taxes but can’t be targeted for ____ regulation or taxes. A tax or regulation impacting on the press or a subpart of the press cannot be based on the ___ of a publication absent a compelling justification.
general; special
content (for example, a tax exemption cannot be given to “medical journals”)
Radio and television broadcasting may be more closely regulated than the press. The government may protect viewers and listeners
from ____ over the airwaves because of the uniquely pervasive and accessible nature of broadcasting. The government may also manage access and ownership of broadcast spectrum to promote the public interest in ____
indecent speech; receiving information.
The First Amendment ____ broadcasters to accept political advertisements. However, a radio station may constitutionally be required to offer ____ time to certain individuals based on what is said/endorse on the broadcast.
doesn’t require; free broadcasting (for example, opponents of political candidates or views endorsed by the station, or persons who have been personally attacked in a broadcast).
____ regulations get strict scrutiny if they are contentbased and intermediate scrutiny if they are content-neutral.
Cable and internet
____ speech can’t be challenged as violating the Free Speech Clause of the First Amendment. Absent some other constitutional limitation,
such as the Establishment Clause or Equal Protection Clause, the government is ____
Government; generally free to voice its opinions.
Generally, government speech and government funding of speech will be upheld if it is ____
rationally related to a legitimate state interest (rational basis)
The freedom to speak includes the freedom ____ speak. Thus, the government generally can’t require people to ____
not to; salute the flag or display other messages with which they disagree.
Ex: A person can’t be made to display the state motto “live free or die” on a license plate.
Although the government can’t compel a person to express a message with which the person disagrees, the government may tax people and use the revenue to express a government message even if the taxpayer ____. However, people can’t be compelled to subsidize ____ with which they disagree
disagrees with the message; private messages
The government can require public university students to pay a _____ even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program is ____
student activity fee; viewpoint neutral.
Public accommodation laws, which prohibit certain forms of discrimination when businesses offer goods and services to the public, sweep too broadly when they ____. States cannot use public accommodation statutes to deny speakers the right to choose the ____
compel speech; content of their own messages.
Spending programs may not impose conditions that limit First Amendment activities of fund recipients outside of the scope of ____
the spending program itself.
When the government chooses to fund private messages (for example, college group newsletters), it generally must do so on a _____ basis.
viewpoint-neutral
From a financial standpoint, the government can’t fund all artists, and choosing which it will fund inevitably must be based on ____
the content of the art. (and that’s an exception!)
Determining whether speech, particularly speech that occurs on government property, is government speech, requires a holistic approach. While this review is context-driven and not mechanical, some factors that may be relevant include:
- The history of the expression at issue
- The public’s likely perception as to who (government or private person) is speaking
- The extent to which the government has shaped the message
Trademark protection is not government speech, but rather it’s ____ speech. Thus, content-based restrictions on trademarks are subject to ____
private; strict scrutiny
Although the freedom of association is not mentioned explicitly in the Constitution, it’s clearly implied from the rights that are explicitly
noted. Pursuant to this freedom, the government may neither:
prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups.
If the right to association is ____ by a content-based regulation, strict scrutiny is triggered. But a content-neutral regulation that ____ is only subject to intermediate scrutiny.
substantially burdened; incidentally burdens association
Laws regulating elections might impact on the First Amendment freedoms of speech, assembly, and association. The Court uses a ____ test to determine whether a regulation of the electoral process is valid: ___
balancing
If the restriction on First Amendment activity is
severe, it must be narrowly tailored to achieve a compelling interest (that is, strict scrutiny), but if the restriction is reasonable and nondiscriminatory, it generally will be upheld.
A statute limiting election campaign contributions is subject to ____
intermediate scrutiny
To prevent corruption or the appearance of corruption, laws may limit the amount of money that a person, group, or corporation can contribute to a ____. But the government may not limit the amount of money that may be spent to support or oppose a ____.
political candidate; ballot referendum
The government cannot limit the aggregate amount one person or entity contributes to political candidates or committees during ____, even though it can limit the amount given to a single candidate.
an election
-> Aggregate limits violate the First Amendment’s protection of political speech because unlike individual contribution limits, they do not further the government’s interest in preventing quid pro quo corruption or the appearance of such, and they seriously restrict participation in the democratic process
Laws may not limit the amount that a candidate ____ on a political campaign. Neither may the government limit the amount that a person spends to get a candidate elected, as long as the expenditures are not _____—that is, the expenditures must be independent of the candidate and not disguised contributions.
spends;
contributed directly to the candidate nor coordinated with those of the candidate
Regulation of “core political speech” (for example, electioneering, distributing campaign literature), rather than regulation of the process
surrounding an election, will be upheld only if it satisfies ____
strict scrutiny.
Ex: Under this standard, a state may ban personal solicitation of campaign funds by judicial candidates because such a ban advances
the state’s compelling interest in preserving public confidence in the integrity of the judiciary.
An ad concerning a political issue will be considered protected core political speech unless it’s ____
susceptible of no reasonable interpretation other than one as an appeal to vote for or against a particular candidate.
Freedom of religion clauses in the first amendment
- Free Exercise Clause
- Establishment Clause
The Free Exercise Clause prohibits government from ____
punishing someone on the basis of their religious belief or related religious status or conduct.
For First Amendment purposes, a religious belief includes
the tenets of traditional religions, as well as beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents.
When deciding whether a person holds a religious belief or even just whether the belief qualifies as religious, courts can question the ____ of a person’s belief, but not the ____ of the belief.
sincerity; truthfulness
A law or other government conduct that discriminates on the basis of religion is subject to ____
strict scrutiny.
Note: the Supreme Court has never found an interest so compelling that it justifies such action.
A law is discriminatory under the free exercise clause if it is either:
- Not neutral on its face (that is, the law expressly provides favored or disfavored treatment based on religious belief, conduct, or
status) or - Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally
or a religion in particular)
A law that is ____ is not subject to the Free Exercise Clause. In other words, the Free Exercise Clause cannot be used to challenge government action unless the action was ____ to interfere with religion.
facially neutral and generally applicable; specifically designed
A law that gives government officials discretion to grant exemptions from the law is not ____. Thus, if someone seeks an exception from such a law on religious grounds and the government refuses to grant the exception, that person can ____. ___scrutiny would apply.
generally applicable; challenge the denial on Free Exercise Clause grounds
Strict
The Free Exercise Clause ____ religious exemptions from generally applicable governmental regulations that happen to
burden religious conduct; that is, a law that regulates the conduct of all people can be applied to prohibit the conduct of a specific
person despite the fact that their religious beliefs prevent them from complying with the law. But granting an exemption to accommodate
religious exercise (such as for underage drinking of sacramental wine) generally would ____ the Establishment Clause.
does not require; not violate
Religious organizations ____ granted an exemption from suits alleging employment discrimination by ministers against their
religious organizations. This exception extends not only to the head of a congregation, but also to others who are in any position considered
by the congregation to be ____
must be; ministerial (for example, teachers at
religious schools).
-> Imposing an unwanted minister would
violate the Free Exercise Clause, and allowing the government to determine who will minister within a faith also would violate the Establishment Clause.
The Supreme Court has granted the Amish an exemption from a law requiring _____, based on the Free Exercise Clause and the fundamental right to educate one’s children.
compulsory school attendance until age 16
If a state’s unemployment regulations allow people to refuse work for “good cause,” then the state can’t refuse to grant unemployment benefits to people who quit their jobs for ____
religious reasons (the worker doesn’t need to belong to a formal religious organization in such a situation, as long as the belief is sincere.)
The federal _____ allows a person to challenge federal laws of general applicability as burdening their religious beliefs and practices, and strict scrutiny is applied in actions brought under the act.
Religious Freedom Restoration Act (“RFRA”)
A state may not limit eligibility for a generally available governmental benefit to ____
nonreligious organizations.
–> Thus, if a state provides textbooks to secular private schools, it must provide the same benefit to otherwise-eligible religious private schools.
The Establishment Clause prohibits
government sponsorship of religion, meaning the government cannot aid or formally establish a religion. Like the Free Exercise Clause, it compels the government to pursue a course of neutrality toward religion.
The government generally must remain ____ with respect to religion, neither favoring nor disfavoring it.
neutral
The government may not ____ coerce individuals to exercise (or refrain from exercising) their religion.
directly or indirectly (Providing clergy-led invocation and benediction prayers at a middle- school graduation is an example of indirect coercion.)
The Court has often stated that the Establishment Clause must be interpreted by reference to ____
historical practices and understandings.
–> Overall, this approach is sometimes referred to as “an analysis focused on original meaning and history.”
Religious practices and displays that have been around for a long time tend to get upheld because the Court sees them as a tolerable
acknowledgment of the role that religion has played in the history and tradition of this country. More specifically, the Court also looks
at the time when the Constitution was first adopted and tries to determine ____
what the Founders intended to prevent by adopting the
Establishment Clause and what they would have deemed acceptable.
The Supreme Court has upheld the following practices and displays under the Establishment Clause as complying with history and tradition:
- Prayer opening a legislative session or city council meeting.
- A four-decade-old Ten Commandments display on the Texas capitol grounds surrounded by other displays of historical or societal significance.
- A large WWI memorial cross that had been on display for many years when challenged.
The Establishment Clause cases can be grouped into four categories:
(1) cases preferring one religious sect over others;
(2) a limited group of cases unconnected to financial aid or education;
(3) cases involving financial aid to religiously affiliated institutions; and
(4) cases concerning religious activities in public schools.
Government action that prefers one religious sect over another violates the Establishment Clause, at least if such favoritism is not ____
necessary to achieve a compelling interest (strict scrutiny)
In cases not connected to financial aid or education and not involving a sect preference, a good rule of thumb is that a law favoring or burdening ____ will be invalid (for example, exempting only “traditional religions” from state registration requirements), but a law ____ will be upheld (for example, a Sunday closing law)
religion or a specific religious group; favoring or burdening a large segment of society that happens to include religious groups
A statute authorizing governmental aid to a religiously affiliated institution must be ___ toward religion.
neutral
A neutral benefit program (such as school tuition assistance) is valid even if, as a result of the independent choices of private benefit recipients, it allows _____
public funds to be directed to a religious organization (such as a religious private school).
Treating religious private schools the same as non-religious private schools does not violate the Establishment Clause and is ____ by the
Free Exercise Clause.
required
School-sponsored religious activity is invalid, but school accommodation of religion may be ____. If a public school allows members of the public and private organizations to use school property when classes are not in session, it can’t deny a religious organization permission to use the property for meetings merely because___
valid; religious topics will be discussed.
