Con Law Flashcards
Federal Courts empowered to decide
CC
Federal Courts empowered to decide (CC, Cases, Controversies)
cases and controversies
Federal Court Jurisdiction limited to certain categories of cases or controversies, including
QDR
Jurisdiction limited to certain categories of cases or controversies, including (QDR, Question, Diversity, Review):
Federal Question Jurisdiction - the power to decide cases that arise under Federal Law
Diversity Jurisdiction - the power to decide disputes between citizens of different states
Federal Courts also exercise power of judicial review
Empowered to strike down statutes and acts of executive officials as unconstitutional
Marbury v. Madison - federal courts have the power to “say what the law is”
11th Amendment and state sovereign immunity
General State Sovereign Immunity Rule
MCA
11th Amendment and state sovereign immunity
General State Sovereign Immunity Rule (MCA, Money, Consent, Abrogate):
Cannot sue any state for money damages in federal court unless:
State consents to the suit; or
Congress chose to abrogate that sovereign immunity through an enumerated power
11th Amendment prohibition breakdown
AVO
11th Amendment prohibition breakdown (AVO, Another, Violating, Own):
Citizens of one state suing another state in federal court
Suits in federal court against state officials for violating state law; and
Citizens suing their own state in federal court
11th Amendment does not protect against injunctions or individual state officers, but federal courts cannot enjoin…
SLC
Limitations: protects only states and state agencies
Does not protect local governments
On the bar exam, if the defendant is a county or city, state sovereign immunity and the Eleventh Amendment do not apply
Does not protect individual state officers
Extends only to suits for money damages
Ex Parte Young: Can seek injunctive relief against state officers, but federal courts cannot enjoin (SLC, State Courts, Law Clerks)
state courts or state law clerks
A plaintiff can only seek money damages from a state officer by suing the state officer in his or her personal capacity. Damages from the state treasury are barred
11th Amendment - Congress can abrogate state sovereign immunity to enforce certain individual rights under the 14th Amendment when…
CWA
Congress can abrogate state sovereign immunity to enforce certain individual rights under the 14th Amendment (CWA, Clear, War, Article)
Congress intent to abrogate immunity must be clear
Must be exercising power under the Civil War Amendments: 13th, 14th, or 15th Amendments
Cannot abrogate state immunity by exercising power under Article I
11th Amendment exception by state consent, which extends to (according to SCOTUS)…
OBAP
States can consent to suit
The U.S. government is permitted to bring suits against the states because state consent is implied by the states ratifying the Constitution
The U.S. Supreme Court has also held that this implied consent allows (OBAP, Other, Bankruptcy, Approved, Powers):
Actions brought by other state governments
Bankruptcy proceedings that impact state finances
Federally approved condemnation proceedings brought by private parties, AND
Actions by private parties against a state pursuant to a federal statute enacted pursuant to Congress’s war and defense powers
The 11th Amendment does not bar
LGB
The 11th Amendment does not bar (LGB, Local, Government, Bankruptcy):
Actions against local municipalities
Actions by the United States government or other state governments
Bankruptcy proceedings that impact state finances
US Constitution - Article I
Legislative Branch
US Constitution - Article II
Executive Branch
US Constitution - Article III
Judicial Branch
US Constitution - Article IV
Full Faith and Credit
and
Privileges and Immunities
US Constitution - Article V
Making Amendments to the Constitution
US Constitution - 1st Amendment
Establishment Clause
Freedom of Religion
Freedom of Speech
Freedom of Press
Freedom of Assembly
Freedom to Petition Gov’t
US Constitution - 2d Amendment
Right to bear arms
US Constitution - 4th Amendment
Right to be free from unreasonable searches and seizures
US Constitution - 5th Amendment
Takings Clause
Grand Jury
Double Jeopardy
Protection Against Self-Incrimination
Due Process
US Constitution - 6th Amendment
Right to a speedy & public trial
Right to an impartial jury in criminal cases
Right to confront witnesses
Right to counsel
US Constitution - 7th Amendment
Right to jury in civil cases
US Constitution - 8th Amendment
Protection against excessive bail
Protection against cruel and unusual punishment
US Constitution - 10th Amendment
Powers not delegated to the US government are reserved to the state governments
US Constitution - 11th Amendment
Sovereign immunities of the states
US Constitution - 13th Amendment
Abolition of slavery
Protection against discriminatory private action (incidents and badges of servitude)
US Constitution - 14th Amendment
Due Process extended to states
Privileges and Immunities extended to states
Equal Protection
Citizenship bestowed upon all persons born and naturalized in US
US Constitution - 15th Amendment
Right to vote for all men, regardless of race or previous conditions of servitude
US Constitution - 19th Amendment
Right to vote for all genders
SCOTUS Original Jurisdiction
AMCS
The United States Supreme Court
Original Jurisdiction
Allows limited cases to be filed directly to U.S. Supreme Court
Typically limited to disputes between states
Cases where Supreme Court has original jurisdiction (AMCS, Ambassadors, Ministers, Consuls, State)
All cases affecting ambassadors
Other public ministers and consuls
Those in which a state is a party
Adequate and Independent State Grounds (AISG)
Regularly tested on MBE
AISG is relevant only if the case
SWD
Adequate and Independent State Grounds (AISG)
Regularly tested on MBE
AISG is relevant only if the case (SWD, Supreme, Writ, Decided):
Is in U.S. Supreme Court;
Arises through a writ of certiorari; and
Has already been decided by a state Court
Adequate: state law controls decisions, regardless of how the federal issue would be decided
Independent: State court’s ruling does not depend on an interpretation of federal law
U.S. Constitution sets floor, not ceiling, for individual rights
States can always create additional rights
Constitutional Elements to Standing
RCI
Constitutional Elements to Standing (RCI, Redressability, Causation, Injury)
Injury in fact
Must be concrete - i.e. either actual or imminent
Must be particularized (not abstract) - i.e., it cannot be common to all members of the public
Need not be economic or monetary
Taxpayer standing
OE
Taxpayer standing (OE, Own, Establishment)
Taxpayers have standing to challenge their own tax assessment (i.e. that their tax is too much)
No taxpayer standing to challenge government expenditures
Narrow exception: Any federal taxpayer has standing to challenge government expenditures that potentially violate the Establishment Clause (religious expenditure)
Organizational standing
An organization may sue on behalf of its members if
MG
Organizational standing
An organization may sue on behalf of its members if (MG, Members, Germane):
The members would have standing to sue in their own right, AND
The interests at stake are germane to the organization’s purpose
Third Party Standing
Generally not permitted
Some exceptions apply for unique relationships between the third party and the person whose rights they are raising
Third Party Standing examples
DSBP
Third Party Standing
Generally not permitted
Some exceptions apply for unique relationships between the third party and the person whose rights they are raising
Third Party Standing examples (DSBP, Doctor, School, Bartender, Parent):
A doctor can raise the injuries of her patients
A school can raise the injuries of its students
A bartender can raise the constitutional injuries of her customers
A parent generally has standing to bring an action on behalf of her minor child (but may be limited to custodial parents)
Political Question Doctrine
Does not simply refer to a politically divisive legal issue
A political question arises when
BD
Political Question Doctrine
Does not simply refer to a politically divisive legal issue
A political question arises when (BD, Branch, Discretion):
The Constitution assigns decision making authority on this subject to a different branch of government; or
The matter depends on that person’s discretion such that there is no law for the judge to apply
Examples of political questions include:
How Congress uses its impeachment power
President’s power to negotiate a treaty
Political questions are non-justiciable
Abstention Doctrines
Abstention Doctrines are all about federalism - respecting state courts
Federal courts may abstain from deciding claims when there are strong state interests at stake
There are four kinds of abstention doctrine
PU YP BR CS
Abstention Doctrines
Abstention Doctrines are all about federalism - respecting state courts
Federal courts may abstain from deciding claims when there are strong state interests at stake
There are four kinds of abstention doctrine (PU YP BR CS, Pullman Unsettled, Younger Pending, Burford Regulatory, Colorado Similar):
Pullman abstention: may abstain because there is unsettled state law
Younger abstention: may abstain for pending state criminal cases (unless obviously unconstitutional)
Burford abstention: may abstain if parties are seeking injunctive relief that would interfere with a complex state regulatory scheme
Colorado River abstention: may abstain if case is substantially similar to another case being heard in state court
May not abstain from a case just to avoid hearing the case
Watch for specific facts that may trigger each type of abstention
The following powers rarely or never give Congress authority to pass a law
WPN
The following powers rarely or never give Congress authority to pass a law (WPN, Welfare, Police, Necessary)
The General Welfare Clause
Congress has no general power to legislate for general welfare
However, the General Welfare Clause does permit Congress to exercise its power to tax and spend for any public purpose, including general welfare
Police Power
Only states have general police power to enact laws to protect its citizens
Congress cannot commandeer state legislatures by forcing states to adopt or enforce federal regulatory programs
Necessary and Proper Clause
An important power of Congress, but not a freestanding power
Must be used in addition to another legislative power
Congress’s Authority
CTS
Congress’s Authority (CTS, Commerce, Taxing, Spending)
Commerce Clause (greatest source of power, usually the right answer on the bar)
Taxing Clause
Spending Clause
The Commerce Clause
The most robust power Congress enjoys is its power to regulate commerce
Empowers Congress to “regulate Commerce with the foreign Nations, and among the several States and with the Indian tribes”
Almost anything can be regulated as interstate commerce
Can regulate three forms of activities
BIC
The Commerce Clause
The most robust power Congress enjoys is its power to regulate commerce
Empowers Congress to “regulate Commerce with the foreign Nations, and among the several States and with the Indian tribes”
Almost anything can be regulated as interstate commerce
Can regulate three forms of activities (BIC, Behavior, Instrumentalities, Channels):
Channels of interstate commerce
Instrumentalities of interstate commerce
Any behavior that has a substantial economic effect on interstate commerce
Behaviors can be judged in the aggregate - i.e., you accumulate individuals to make one big one
Congress only needs a rational basis to conclude that the total incidence of the activity in the aggregate substantially affects interstate commerce
If a behavior is economic in nature, a substantial effect on interstate commerce is presumed
Rational Basis = a law meets the rational basis standard of review if it is rationally related to a legitimate state interest
This test generally results in the law being upheld
under the Spending Clause, Congress cannot
UAC
under the Spending Clause, Congress cannot (UAC, Unconstitutional, Ambiguous, Coerce):
Impose unconstitutional conditions
Enforce conditions that are ambiguous or not related to the program
Coerce state behavior with its spending conditions
Private Action can be regulated by Congress under the 13th Amendment when
REBI
Private Action can be regulated by Congress under the 13th Amendment when (REBI, Rationally, Eliminating, Badges, Incidents):
Congress adopts legislation rationally related to
Eliminating racial discrimination, aka
“Badges or incidents” of slavery
14th Amendment - Section 5 Gives Congress power to “enforce these provisions by appropriate legislation”
Congress can enforce these individual rights as the courts have defined them, but cannot expand them
The Congruence and Proportionality Test
RFRM
Section 5 Gives Congress power to “enforce these provisions by appropriate legislation”
Congress can enforce these individual rights as the courts have defined them, but cannot expand them
The Congruence and Proportionality Test (RFRM, Reasonable Fit, Right, Means):
Requires a reasonable fit between the constitutional right defined by the courts and the means of enforcement
If the enforcement is so broad it effectively expands the right, the enforcement is unconstitutional under Section 5
In Smith, if there is a neutral, generally applicable laws that happen to burden religious conduct are constitutional. Because a law criminalization the use of peyote was not targeted at the members of a Native American church who used peyote in religious ceremonies, the law was not a 5th Amendment violation.
Subsequently, Congress passed the Religious Freedom Restoration Act (RFRA) which gave religious believers an accommodation from otherwise valid laws. SCOTUS struct down RFRA as exceeding Congress’s Section 5 power because it effectively created a new right rather than enforcing an existing right.
Other Congressional Powers
PONCEN PWN
Other Congressional Powers (PONCEN PWN, Post Office, Non-Citizens, Elections, Necessary Proper, War, Naturalization)
Power to declare war, raise an army and navy, and regulate the armed forces
Exclusive power to establish a post office
Plenary power over non-citizens
Exclusive power over the naturalization process
Power over Federal Elections under Article I, Section 4
Power to enact any legislation necessary and proper to execute an enumerated power
NOT a freestanding power. Rarely a correct answer on the bar exam unless it is carrying into effect a separate enumerated power
Presidential Veto Power
After bill passes both houses of Congress (i.e. bicameralism), bill must be presented to the President for signature
The President then has 10 days to:
Sign the bill (making it a law); OR
Veto the bill (rejecting the bill and sending it back to the originating house
Need not give a reason for the veto
Cannot veto some parts of legislation and not others
This is called a line-item veto and SCOTUS has ruled this as unconstitutional
Congress may override veto with a supermajority (i.e. 2/3 vote in each house)
Pocket Veto
If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden
Presidential Power over Foreign Affairs
Commander in Chief Power
President is commander in chief of the military
But Congress has the power to declare war
Chief Diplomat Power
President has the power to negotiate treaties
Treaties must be ratified by a supermajority of the Senate to have force of law
Supermajority is a 2/3 vote of the Senate
A treaty cannot conflict with the Constitution; if it does, the Constitution trumps the treaty
The President can also negotiate executive agreements (i.e. presidential agreements with other countries that do not require Senate approval)
Because these agreements do not become law, they do not bind a successor President
Federal Impoundment
Congress may pass a statute and give the President discretion to withhold the funds
If a statute requires that certain funds be spent on certain purposes, the President has no discretion to withhold (impound) the money
There is only a separation of powers violation if the President fails to spend the money when Congress has mandated that the funds are to be allocated in a certain way
Executive Immunities
The President is immune from civil liability for official acts, but not immune for acts done:
In the President’s private capacity; or
Before becoming President
Breakdown
The president may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities
The president has no immunity for civil actions based on conduct that occurred before the president took office or completely unrelated to carrying out the job
Judicial Immunity
Absolute immune for all judicial acts that could result in civil liability
May be liable for non-judicial acts (i.e. employment discrimination)
Legislative Immunity
Speech and Debate Clause protects federal legislators from liability for anything said in the course of the regular legislative process
Protected statements cannot be used as evidence against the legislator
Protection extends to Congressional aides if conduct would have been protected had it been performed by a legislator
Supremacy Clause
- Federal Law preempts State Law when
CECP
Federal Law preempts State Law when (CECP, Constitution Exclusive, Congress Prohibits):
The Constitution makes federal power exclusive (such as the powers to coin money or declare war), OR
When Congress has enacted legislation that explicitly prohibits state regulation in the same area
Dormant Commerce Clause (DCC)
Limits the power of states to legislate in ways that impact interstate commerce
Generally, states cannot enact legislation that discriminates against out-of-state commerce, except when
F SNAP
Dormant Commerce Clause (DCC)
Limits the power of states to legislate in ways that impact interstate commerce
Generally, states cannot enact legislation that discriminates against out-of-state commerce, except when (F SNAP, Function, Subsidies, Necessary, Approval, Participant)
Necessary to important state interest and no other nondiscriminatory means are available
State is acting as a market participant
Traditional government function
Subsidies
Federal/Congressional Approval
The DCC issues only arise when:
States are acting in ways that disadvantage each other AND
Congress is silent
Implied because Congress has the power to regulate commerce among the states
A state can impose a nondiscriminatory tax on interstate commerce when
NAR
A state can impose a nondiscriminatory tax on interstate commerce when (NAR, Nexus, Apportionment, Related):
There is a substantial nexus between the taxing state and the property or activity to be taxed
There must be fair apportionment of tax liability among the states; AND
The tax must be fairly related to the services provided by the taxing state
A state can tax the instrumentalities of commerce when
SWAT
A state can tax the instrumentalities of commerce when (SWAT, Situs Within, Apportioned Time):
The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and
The tax is fairly apportioned to the amount of time the instrumentality is in the state
Dormant Commerce Clause
DCC Basic Rule: If Congress has not enacted legislation on a particular area of interstate commerce, then the states can regulate it as long as they do not
DBR
DCC Basic Rule: If Congress has not enacted legislation on a particular area of interstate commerce, then the states can regulate it as long as they do not (DBR, Discriminate, Burden, Regulate):
Discriminate against out-of-state commerce
Unduly burden interstate commerce, OR
Purposely regulate whole out-of-state activity
State Discrimination Against Out-of-State Commerce
Includes state or local laws that protect local economic interests at the expense of out-of-state competitors
A discriminatory state law will survive if one of several exceptions applies, including if
NPC
Discrimination Against Out-of-State Commerce
Includes state or local laws that protect local economic interests at the expense of out-of-state competitors
A discriminatory state law will survive if one of several exceptions applies, including if (NPC, Necessary, Participant, Congress):
It is necessary to serve an important state interest;
The state is acting as a market participant; or
Congress authorizes a state regulation of commerce
Federal Preemption
ECF
Federal Preemption (ECF, Express, Conflict, Field)
Express Preemption
Applies when Congress explicitly says that state regulation in an area is preempted by federal law
Not triggered by merely regulating the same activity
Conflict Preemption
Applies when it is impossible to comply with federal and state law at the same time
Field Preemption
Rare form of preemption
Applies when federal regulation is so thick that we imply that Congress has determined there cannot be a concurrent state law in an area (i.e., Congress has occupied the field)
The state action (that gives rise to Constituional protection) requirement is also satisfied by the following situations
TEA
The state action requirement is also satisfied by the following situations (TEA, Traditional, Entanglement, Affirmatively):
Private actor carrying out a traditional government function
When a private person or company carries on activities that are traditionally performed exclusively by the state, state action exists
Merely providing a product or service that the government could offer is insufficient (e.g., schools)
State entanglement of private actors
State action may exist if there are sufficient mutually beneficial contacts between the conduct of the private party and the state
Must be so intertwined that it is hard to see where the private action ends and the state action begins
Just having a license from the state is not enough
Look for joint ventures or situations where the government has management authority or is making money off the private conduct
State affirmatively approves of private action
State action exists if a state has facilitated or endorsed private behavior
Must affirmatively facilitate the conduct, not just passively approve
Property (Due Process Protection)
A cognizable property interest requires a
LEV SCoC
Property (Due Process Protection)
A cognizable property interest requires a (LEV SCoC, Legitimate, Entitlement, Virtue, Statute, Contract, Custom)
Legitimate claim of
Entitlement to the property interest by
Virtue of a
Statute,
Contract, OR
Custom
The Process Due
To decide what process is due (e.g. hearing, notice, statement of reasons) under the Mathews v. Eldridge balance test, a court will weigh
IS VP GE
The Process Due
To decide what process is due (e.g. hearing, notice, statement of reasons) under the Mathews v. Eldridge balance test, a court will weigh (IS VP GE, Interest Stake, Value Procedure, Government’s Efficiency):
Individual interest at stake
Value of the procedure that is protecting that interest; and
Government’s interest in efficiency (i.e., cost to provide process)
Generally, person whose interest is being deprived is entitled to Procedural Due Process in the form of
NH
Generally, person whose interest is being deprived is entitled to Procedural Due Process in the form of (NH, Notice, Hearing):
Notice of the government’s action by unbiased decision maker; and
An opportunity to be heard
Notice must be reasonably calculated under the circumstances to apprise interested parties of the pendency of the action with enough time to present objections
Timing of hearing varies between post-deprivation hearing and pre-deprivation hearing. For example…
Termination of welfare benefits requires a hearing before the benefits are taken away
Termination of disability benefits do not require a hearing before the benefits are taken away, so long as the hearing occurs promptly after the termination and retroactive relief is possible if appropriate
Public employees who can be fired only for cause (e.g. tenured professor or police officer) must be given hearing before discharge unless there is significant reason not to keep them
Substantive Due Process is the idea that laws should
RAFP
Substantive Due Process is the idea that laws should (RAFP, Reasonable, [not] Arbitrary, Freedom, Possible)
Be reasonable and not arbitrary; and
Protect individual freedom to the extent possible
Standards of Review
SSRI
Standards of Review (SSRI, Strict Scrutiny, Rationality, Intermediate)
Standards of review determine the amount of deference owed to a prior decision maker
Strict Scrutiny
Least deferential standard of review
Strict Scrutiny definition - the law must be the (LeaR MACoI, think “Real McCoy”):
Least
Restrictive
Means
To achieve a
Compelling
Government Interest
The government must show that the challenged law is (NCL, Necessary, Compelling, Least)
Necessary to meet a
Compelling government interest
Using the least restrictive means to do so
Compelling interests: include national security, preserving public health, or remedying past discrimination
Necessary: must be the least restrictive means to achieve the government’s purpose
Sometimes, this is also called the “narrowly tailored” prong
Intermediate Scrutiny
Between strict scrutiny and rationality review
The government must show the law is (SI, Substantially, Important)
substantially related
To an important government interest
Rationality Review
Most deferential standard of review
Rationality review places the burden on the challenger, not the government
A challenger must show that the law is not (RL, Related, Legitimate)
Rationally related
To a legitimate state interest
Legitimate interests: include redistributing wealth, protecting scalp safety, keeping highways safe
Rationally related: the fit of the law to these interests can be loose
Not satisfied by irrational laws animated by prejudice or animus towards a particular group
Strict Scrutiny definition - the law must be the
LeaR MACoI
Strict Scrutiny definition - the law must be the (LeaR MACoI, think “Real McCoy”):
Least
Restrictive
Means
To achieve a
Compelling
Government Interest
Strict Scrutiny requires that The government must show that the challenged law is
NCL
The government must show that the challenged law is (NCL, Necessary, Compelling, Least)
Necessary to meet a
Compelling government interest
Using the least restrictive means to do so
Intermediate Scrutiny
Between strict scrutiny and rationality review
The government must show the law is
SI
Intermediate Scrutiny
Between strict scrutiny and rationality review
The government must show the law is (SI, Substantially, Important)
substantially related
To an important government interest
Rationality Review
Most deferential standard of review
Rationality review places the burden on the challenger, not the government
A challenger must show that the law is not
RL
Rationality Review
Most deferential standard of review
Rationality review places the burden on the challenger, not the government
A challenger must show that the law is not (RL, Related, Legitimate)
Rationally related
To a legitimate state interest
Legitimate interests: include redistributing wealth, protecting scalp safety, keeping highways safe
Rationally related: the fit of the law to these interests can be loose
Not satisfied by irrational laws animated by prejudice or animus towards a particular group
All a plaintiff needs to show for the court to apply intermediate or strict scrutiny is
D FAM
All a plaintiff needs to show for the court to apply intermediate or strict scrutiny is (D FAM, Discriminatory, Facially, Applied, Motive):
Discriminatory intent, either
Facially
As Applied or
By Motive
Substantive Due Process Fundamental Rights
A violation of any of these rights gives rise to a strict scrutiny review
TVPB
A violation of any of these rights gives rise to a strict scrutiny review
Right to Travel
Right to Vote
Right to Privacy
Right to Bear Arms
Identifying Substantive Due Process
Arises out of the word “liberty” in the 14th Amendment
Substantive due process and the Equal Protection Clause overlap, but substantive due process claims do not require a comparative judgment
Right to Travel
Includes right to travel from state to state or settle in another state
States may impose reasonable residency restrictions before new residents are eligible for benefits
Typically 30-90 days
One year is too long for everything except
TD
Right to Travel
Includes right to travel from state to state or settle in another state
States may impose reasonable residency restrictions before new residents are eligible for benefits
Typically 30-90 days
One year is too long for everything except (TD, Tuition, Divorce):
In-state tuition; and
Jurisdiction to issue a divorce
Durational residence requirements cannot deny newcomers the basic necessities of life
Although there is also a right to travel internationally, it is not a fundamental right invoking strict scrutiny
Right to Privacy
Collection of several related rights that all have to do with family and procreation
I CAMP
Right to Privacy
Collection of several related rights that all have to do with family and procreation (I CAMP, Intimate, Contraception, Abortion, Marry, Parental)
Right to marry
Fundamental right
State bans same-sex marriage and interracial marriage are unconstitutional
States can still regulate this right (e.g. require proof that two people who want to marry are not related), but must meet strict scrutiny to do so
Right to contraception
Fundamental right of everyone to purchase contraceptives
Right to intimate association
Lawrence v. Texas held that we have a right to choose our intimate partners
Not explicitly held to be fundamental right, but government has no legitimate interest in regulating noncommercial sexual intimacy between consenting adults
Separate fundamental right recognized to read obscene material in the privacy of one’s own home
Parental Rights
Parents have a fundamental right to raise their children as they see fit, including the right to choose:
Whether to send kids to private school
To educate children in a language other than English
Parents have the right to live with their children unless there is a finding of abuse or neglect
Abortion rights
In Dobbs, the U.S. Supreme Court overturned Roe v. Wade and held that access to abortion is not a fundamental right
States can regulate or prohibit abortion outright, subject only to rationality review
Strict Scrutiny under Equal Protection Clause
REO S
Strict Scrutiny (REO S, Race, Ethnicity, Origin, Status)
Applies to suspect classifications of race, ethnicity, or national origin; and when a state law is at issue, the added strict scrutiny classification is citizenship status
Government decisions based on these classifications are automatically suspect and will be aggressively reviewed by the courts
The two triggers for a state action invoking strict scrutiny are when the state action involves a
FS
The two triggers for a state action invoking strict scrutiny are when the state action involves a (FS, Fundamental, Suspect):
Fundamental Right OR
Suspect Classification
Racial Classifications - Proving discriminatory purpose
FCS
Proving discriminatory purpose (FCS, Face, Context, Statistics)
Face of the law - i.e. explicit mention of race in the law
Context or history - i.e. legislative history or a context behind the law
Statistics - i.e., law is neutral on its face, but applied in a discriminatory fashion such that the results are so dramatic that the only explanation can be a racial purpose
Non-Suspect Classes Examples, that give rise to only a Rationality Review
Age
Poverty
Sexual Orientation
Laws that burden members of LGBTQ community get “rationality review with teeth”
Takings Clause
Comes from 5th Amendment
The government has the power to
PPC
Takings Clause
Comes from 5th Amendment
The government has the power to (PPC, Private, Public, Compensation)
Take private property for public purposes so long as it pays just compensation
Definitions
Private property = land, tangible property, and intangible property (e.g., patent rights and trade secrets)
Public use = any conceivable public purpose
The need for the private land only has to be rationally related to that purpose
The government may take private property and resell it to another
Just Compensation = fair market value at the time of the taking
Types of Takings
Takings include:
Taking ownership of private property and modifying it for a public purpose
Giving a third party the right to occupy even a small space on the property
Destruction of private property
But permitted to destroy private property in response to a public peril
Compensation not necessarily owed when destruction is in response to public peril
Taking vs. Regulation
If the government merely regulates property (e.g., zoning regulation), just compensation is not required
Zoning regulations are not takings unless the zoning law is so thorough that there is no economically viable use for the property
If the government physically occupies private owner’s property, then that is a taking
Economic impact on the property is not necessary a taking
Regulatory Taking
A government rule adversely affects a person’s property to such an extent that it rises to the level of a taking
To Determine if it is a Regulatory Taking, Courts consider (CIG, Character, Investment, Gravity):
Gravity of the economic impact
Extent to which the regulation interferes with the owner’s reasonable investment-based expectations; and
Character of the regulation - i.e. how much it will benefit society
Permanent, physical occupation of property = taking
Permanent total loss of property’s economic value = taking
To Determine if it is a Regulatory Taking, Courts consider
CIG
To Determine if it is a Regulatory Taking, Courts consider (CIG, Character, Investment, Gravity):
Gravity of the economic impact
Extent to which the regulation interferes with the owner’s reasonable investment-based expectations; and
Character of the regulation - i.e. how much it will benefit society
Permanent, physical occupation of property = taking
Permanent total loss of property’s economic value = taking
Ex Post Facto Laws
Retroactive change to a criminal law are prohibited
Law will be struck down as being ex post facto if the law
CDPB
Ex Post Facto Laws
Retroactive change to a criminal law are prohibited
Law will be struck down as being ex post facto if the law (CDPB, Criminalizes, Defense, Penalty, Burden):
Criminalizes an act that was not a crime when originally committed;
Authorizes the imposition of more severe penalty after act was committed
Deprives the defendant of a defense that used to be available when crime was committed
Decreases prosecution’s burden of proof after crime was committed
Government property open for speech
TDL
Government property open for speech (TDL, Traditional, Designated, Limited):
Traditional public forums
Designated public forums
Nonpublic/limited public forums
Restrictions on Speech - Content-Neutral Restrictions
Requirements
Government may restrict protected speech in a public forum, aka the time, place, or manner of the speech, if the restriction
FANA
Content-Neutral Restrictions
Requirements
Government may restrict protected speech in a public forum, aka the time, place, or manner of the speech, if the restriction (FANA, Face Applied, Narrowly, Alternative):
Is neutral both on its face and as applied
Leaves open alternative channels of communication; and
Narrowly serves a significant state interest
These requirements only apply to public forums.
Regulations in nonpublic forums need only be (VL, Viewpoint, Legitimate):
Viewpoint-neutral and
Reasonably related to a legitimate governmental interest
Speech Regulations in nonpublic forums need only be
VL
Regulations in nonpublic forums need only be (VL, Viewpoint, Legitimate):
Viewpoint-neutral and
Reasonably related to a legitimate governmental interest
Speech Regulation - Expressive Conduct
Government can regulate expressive conduct as long as
PINU
Expressive Conduct
Government can regulate expressive conduct as long as (PINU, Power, Important, Necessary, Unrelated)
The regulation is within the government’s power to enact
Regulation in question furthers an important interest
Interest is unrelated to expression; and
The burden on expression must be no greater than necessary
If it seems like the government is trying to get an idea or trying to suppress the expression of a message, that is likely unconstitutional. If it seems like the government is trying to neutrally regulate conduct or the time, place, or manner of the speech, that is likely to be constitutional
The types of content that Congress can regulate are
IF DOC
Regulations on freedom of expression based on content are subject to STRICT SCRUTINY
The types of content that Congress can regulate are (IF DOC, Incitement, Fighting, Defamation, Obscenity, Commercial):
Obscenity
Incitement to violence
Fighting words
Defamation
Commercial speech
Obscenity
Rule of 4 S’s
SSSS
Obscenity
Rule of 4 S’s (Sex, Society, Standards, Serious)
Sex = must be erotic (i.e. appeal to the prurient interest); gore and violence are not legally obscene
Society sick = must be patently offensive to the average person in society
Standards = government must define obscenity clearly with precise standards (i.e. not vague or overbroad)
Serious value = if material has serious artistic, scientific, or educational value, then it cannot be legally obscene
Child pornography is unprotected speech and can be prohibited under all circumstances
But merely establishing the speech as pornography is insufficient to show obscenity
Material that appeals to the prurient interests of minors may be regulated as to the minors even if it would not be considered obscene to an adult audience
Undue Burden Balancing Test (nondiscriminatory state law) & Pike Balancing Test
When states are impacting interstate commerce within the bounds of the Dormant Commerce Clause, they are not permitted to do so in a way that unduly burdens interstate commerce
When the law is nondiscriminatory against out-of-state citizens/commerce, use the PIKE BALANCING TEST: a nondiscriminatory law will be upheld unless the challenger shows that the law’s buden on interstate commerce clearly exceeds its local benefits
14th Amendment State Actor Requirement
Under the state-action doctrine, a private actor qualifies as a government actor when:
1) the private actor performs a traditional government function OR
2) the government is significantly involved in the private actor’s activities, including:
a) has a mutually beneficial relationship with the private actor (i.e. joint venture)
b) creates a nexus by affirmatively facilitating or authorizing private action (i.e. through a police officer acting under color of law), OR
c) is pervasively intertwined in the private actor’s management or control
Differences in application between the Equal Protection Clause v. Due Process v. Privileges and Immunities Clause
Equal Protection: applies to discriminatory treatment of similarly situated people
Substantive Due Process: applies to deprivation of life, liberty, or property without adequate JUSTIFICATION
Procedural Due Process: applies to deprivation of life, liberty, or property without adequate PROCESS
Privileges & Immunities: applies to interferences with rights of national citizenship
Rational Basis Test (Default Standard of Review) For Equal Protection Challenges
RRLI
RRLI
Rationally Related Legitimate Interest
Burden is on the CHALLENGER to prove:
Law is not rationally related to
Legitimate state interest
Intermediate Scrutiny - when does it apply under Equal Protection, and what must party prove?
QS / SRII
QS / SRII
Quasi Suspect / Substantially Related Important Interest
Quasi-Suspect Classes:
1. Sex/Gender
2. Legitimacy (child of married couple)
Intermediate Scrutiny is applied when a QUASI-SUSPECT class is allegedly impacted uneqally
To uphold law, the burden is on the STATE to prove
1. Law is substantially related to
2. An important state interest
Strict Scrutiny - When does it apply under Equal Protection and what must party prove?
SC or FR / NNCI
SC or FR / NNCI
Suspect Class or Fundamental Right / Necessary Narrowly Compelling Interest
Strict Scrutiny is applied when a law unequally impacts a Suspect Class or a Fundamental Right
Suspect Classes:
1. Ethnicity
2. Citizenship
3. Race
4. Nationality
Fundamental Rights:
1. Voting
2. Interstate Travel
3. Privacy
4. First Amendment Right
To uphold the law, the burden is on the STATE to prove:
1. Law is necessary and narrowly tailored to achieve
2. A compelling state interest
Is a regulation that attaches time, place, and manner limitations on only fliers for upcoming events and not other types of fliers such as political fliers content-neutral or content-based?
CONTENT-BASED.
Because only one type of speech (upcoming events) are targeted, this is content-based and therefore subject to strict scrutiny.
Strict scrutiny will require that the state prove that the restriction is NECESSARY and NARROWLY TAILORED to achieve a COMPELLING governmental INTEREST
Is choice of school considered a fundamental right?
The fundamental right to privacy includes PARENTS’ RIGHT TO CONTROL THEIR CHILDREN’S UPBRINGING AND EDUCATION. This fundamental right is part of substantive due process.
Which constitutional clause and standard of review is appropriate for a law that is purported to discriminate against truck drivers by regulating their on-the-job conduct?
Substantive Due Process of the 14th Amendment
Because a law that regulates truck drivers’ on-the-job conduct does not impact a fundamental right (1st Amendment, Voting, Interstate Travel, Privacy), and because truck drivers are not a suspect or quasi-suspect class, only a rational basis review is required.
Rational Basis Review: CHALLENGER (truck drivers) must show that the law has no rational relation to any legitimate interest.
Under the Equal Protection Clause, under what standard of review should a law be challenged that unintentionally impacts disabled persons?
RATIONAL BASIS TEST.
Disabled persons are not a suspect or quasi-suspect class, their is no requirement for a heightened level of review.
When is intermediate scrutiny applicable under the Equal Protection Clause?
When a law intentionally discriminates against a quasi-suspect class (gender/sex or legitimacy).
When is strict scrutiny applicable under the Equal Protection Clause?
When, under a law, either
A fundamental right is substantially impacted
OR
A suspect class is intentionally discriminated against
When can the government impose a time, place, or manner restriction in a public forum?
When the restriction is
Narrowly tailored to serve a
Substantial government interest
AND
Leaves open ample alternative channels of communication
When is a defendant NOT liable as an accomplice?
- The crime requires more than one participant
- The criminal statute imposes liability on only one participant
AND - The person acts as the nonliable participant
Is a person liable for embezzlement if the person intended from the very beginning to commit fraudulent conversion of the property?
NO. If a person obtains possession of property by fraud, they were not in LAWFUL possession of the property. The initial intent preempts the lawful possession, and therefore they did not commit embezzlement, but rather Larceny by Trick, which requires fraudulent acquisition of the property.
Can a defendant raise the defense of property when the defendant was not in possession of the property?
NO. Defense of property is only applicable when the defendant was in possession of the property when it was taken.
What is the constitutionality test for restriction of expression?
PIST
PIST
Power Important Suppression Tailored
A government regulation of expressive conduct will be upheld if:
1. The regulation is within the government’s power to enact
2. The regulation furthers an important government interest
3. The government interest is unrelated to the suppression of ideas
AND
4. The burden on speech is no greater than necessary (narrowly-tailored)
Does the a valid content-neutral time, place, and manner restriction require the shifting of speech from one time and place to another?
YES. This is inherent in the time, place, and manner test; the “narrowly-tailored” aspect of the permissible restriction of expression requires that the government still leave alternative channels for the speech. An apparent all-out ban is unconstitutional.
What requirements must Congress follow to enact conditional federal funding?
Art. I, Section 8 - Spending Clause
CRUC
CRUC
Clearly Reasonably Unconstitutional Coerce
Conditions on federal funding must meet the following criteria:
- Clearly stated & unambiguous
- Reasonably related to federal interest in funded program
- Do not require states to engage in unconstitutional activity
- Do not unduly coerce states into accepting
Imposing conditions for federal funding is a valid and constitutional way that Congress can encourage the enactment of policies that the federal government wants the states to follow, but the conditions are binding only if they are clearly stated and unambiguous.
What authority do the states have over congressional elections and what authority does Congress have over congressional elections?
Art. I, Section 4 - Elections Clause
State: The Elections Clause grants state legislatures the power to enact laws that regulate the time, place, and manner of congressional elections.
Congress: The Elections Clause grants Congress the power to override state laws that regulate congressional elections by replacing the state laws with federal law.
What is prior restraint and what is its constitutionality?
Prior restraint is censorship imposed, usually by the state or state actor, on expression that prohibits particular instances of expression.
Prior restraint is almost always unconstitutional, except in extremely limited instances such as when national security is jeopardized by publication.
Which branches of government can appoint federal officers and what are the limitations of these appointment powers?
Art. II, Section 2 - Appointments Clause
Principal Officers (such as ambassadors, SCOTUS justices, Cabinet officials) are appointed by the PRESIDENT with SENATE approval
Inferior Officers (such as independent counsel, judicial clerks, administrative law judges) are appointed by PRESIDENT with SENATE approval UNLESS…
Congress delegates appointment to:
1. President alone
2. Federal Courts, OR
3. Heads of executive departments
Once Congress has delegated to the President or other Executive agency certain rulemaking authority, what power does Congress have to interfere/intervene?
BP
BP
Bicameralism Presentment
Once Congress delegates some of its rulemaking power to the Executive branch, it cannot interfere with these functions of the Executive unless it follows the guidelines of legislative action:
1. Approved by both houses of Congress (bicameralism), AND
2. Presented to the President for approval or disapproval (presentment)
Which legislative powers are exclusive and thus cannot be delegated?
WIL
WIL
War Impeaching Laws
Exclusive legislative powers include:
1. Making/repealing laws
2. Declaring war
3. Impeaching federal officers
What must congressional delegation of powers include to satisfy the INTELLIGIBLE PRINCIPLE requirement?
SAP
SAP
Scope Agency Policy
When Congress delegates its INCIDENTAL legislative power to the Executive (or Judicial) branch, it must provide INTELLIGIBLE PRINCIPLE defining:
1. Policy it seeks to advance
2. Agency carrying out policy
3. Scope of agency’s authority
When is a discriminatory (favoring in-state vs. out-of-state interests) state law not deemed unconstitutional?
Art. I, Section 8 - Commerce Clause
ILNo ReNA
ILNo ReNA
Important Legitimate Noneconomic
Reasonable Nondiscriminatory Alternative
A discriminatory state law - i.e. one that favors in-state over out-of-state interests - will be deemed unconstitutional unless the state proves that:
1. The law furthers an important or legitimate noneconomic state interest (e.g. health, safety), AND
2. There is no reasonable, nondiscriminatory alternative to achieve that interest
Under the rational basis review, is a state authorized by Congress to circumvent the dormant commerce clause limitations permitted to promote in-state business by discriminating against out-of-state business?
NO.
Rational basis review requires that state action be rationally related to a legitimate government interest, and according to the Supreme Court, discriminating against out-of-state business to promote in-state business is not a legitimate government interest.
What must the government do when conducting civil forfeiture to comply with procedural due process? What rules apply to personal property versus real property?
Personal Property: SPF
Real Property: AV RIB
Civil forfeiture involves the government depriving an individual of their property interest by seizing property allegedly used in criminal activity.
Procedural due process requires that the government provide reasonable notice and an opportunity to be heard before a neutral decision-maker.
SPF
Significant Performed Frustrated
Personal Property may be seized prior to providing notice and a hearing when:
1. the seizure serves a significant government interest
2. That seizure would be frustrated by advanced notice of the seizure,
AND
3. The seizure is performed by the government
AV RIB
Affected Value Risk Interest Burden
Real Property may be seized prior to providing notice and a hearing when the seizure is justified based on a balancing test:
1. The private interest affected by the deprivation
2. The risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards
3. The government’s interest, including the fiscal and administrative burdens that other safeguards would entail
What standard of review is applied when the state aims to regulate voting practices by requiring voting registration, requiring photo IDs, and disallowing write-in voting?
CHALLENGER must prove the restriction lacks a rational relationship to legitimate state interest. This application, then, is a Rational Basis Review, because these regulations are non-discriminatory regulations of a fundamental right (voting).
What are some of the constitutional restrictions on firearm ownership?
DSM FOC
DSM FOC
Dangerous Sales Mentally Felon Open Concealed
- Banning unusually dangerous firearms
- Imposing conditions and qualifications on commercial sales of firearms
- Forbidding the possession of firearms by felons and mentally ill individuals, AND
- Prohibiting the open carry of firearms in certain areas or concealed carry of firearms in public
Is a law subject to rational basis review permitted to disadvantage a group of persons solely based on animus toward that group?
NO.
Disadvantaging a group of persons based solely on animus toward that group is NOT a legitimate government interest under the 14th Amendment Equal Protection Clause.
Can the government interfere with the hiring and firing policies and practices of a religious organization?
NO.
Under the 1st Amendment ministerial exception, religious organizations are protected against liability for employment discrimination when they hire or fire employees who serve in ministerial roles. This exception applies to ANY employee whose primary function is to advance the organization’s religious mission.
Can states enact laws that require age discrimination if the discrimination can be linked to promoting safety and efficiency?
YES. Age discrimination is subject only to the rational basis review, so if the state can show a link between age discrimination and the government interest in promoting safety and efficiency, such a law would be deemed constitutional and survive a 14th Amendment challenge.
In passing any legislation, including under Section 5 of the 14th Amendment, what limitations is this congressional authority subjected to?
The federal government can only exercise those powers specifically enumerated by the Constitution, and cannot create or expand the rights of citizens not already guaranteed by the Constitution. To pass legislation, then, Congress is bound by linking a “congruence and proportionality” between an injury to be prevented and the means adopted to achieve that end. The congruence and proportionality must be directly related to a right already guaranteed by the Constitution, though, so Congress cannot pass legislation to bar state laws that do not violate the Constitution, as this would not be congruent and proportional.
Are reasonable residency restrictions (such as a six-month residency requirement) constitutionally valid when applied to basic necessities of life?
NO.
Reasonable residency requirements are subject to strict scrutiny because they impact the fundamental right to travel, and therefore residency restrictions are presumed invalid unless the state can show that the requirement is necessary to achieve a compelling interest. When the restriction denies a person access to the basic necessities of life, the restriction does not survive strict scrutiny.
Does the 14th Amendment Privileges or Immunities Clause apply to corporations?
NO.
The 14th Amendment Privileges or Immunities Clause does not apply to corporations.
When a state law discriminates against a single out of state corporation for the benefit of in-state economic interests, which constitutional clause has been violated?
Dormant Commerce Clause (Art. I, Sec. 8).
Can Congress pass legislation barring federal courts jurisdiction over particular habeas corpus petitions without first passing legislation explicitly suspending the writ of habeas corpus in cases from which those petitions would arise?
NO.
Congress cannot remove jurisdiction over habeas corpus from the federal courts except in cases where Congress has already suspended the writ of habeas corpus in those cases.
Under the Article I suspension clause, persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control.
Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
What power does the Article III Exceptions Clause grant to Congress?
The Article III Exceptions Clause gives Congress power to expand, regulate, or make exceptions to the Supreme Court’s appellate jurisdiction, which generally extends to review of final judgment of lower federal courts and the highest state courts when the judgment turns on federal law.
An affiliate of the federal government can be subject to state taxes, EVEN if the added cost from the tax ultimately passes on to the federal government, UNLESS
GDI
GDI
Granted Discriminates Interferes
- Congress has granted the affiliate immunity
- The tax discriminates against the federal government or the affiliate, OR
- The tax substantially interferes with the affiliate’s federal purpose or duties (such as when a high tax burden makes it impossible for the affiliate to accomplish its federal functions)
What effect does the 10th Amendment have on federal taxation as it relates to the several states, and what are the limitations of this effect?
Under the 10th Amendment, the federal government cannot impose federal taxes directly on states that unduly interfere with their essential functions. But the 10th Amendment does not prohibit the federal government from imposing federal taxes on states INDIRECTLY through their affiliates, so long as the taxes are nondiscriminatory.
What are the Establishment Clause Tests?
CHE
CHE
Coercion - No forced conformity with religious belief or practice. Applies generally to public schools
Historical - Longstanding tradition & historical foundation. This is the default test, but courts can choose to instead apply the strict scrutiny test in place of the historical test when the law EXPRESSLY impacts religion.
Endorsement - No appearance that government endorses religion. Applies generally to public displays or monuments.
Establishment clause challenges are generally reviewed under the historical test. But strict scrutiny can be used instead when a law directly benefits or burdens a particular relgion. In that case, the law is invalid unless the government proves that the law is necessary to achieve a compelling government interest.
Strict Scrutiny: the law is invalid unless the government proves that the law is necessary to achieve a compelling government interest.
When and how does the “One Person, One Vote” rule apply?
Article I, Section 2: governs Congressional Elections; demands almost exact equality (courts that less than a 0.7% variance is OK; other courts have ruled that less than a 3% variance is OK)
Equal Protection Clase: governs State & Local Elections; prohibits unjustifiable large inequality (courts have ruled that a 10% or less variance is OK). However, even a variance less than 10% but that has evidence of discrimination can violate the Equal Protection Clause.
The Fourteenth Amendment equal protection clause ensures that each citizen is given equal voting power by requiring state legislative districts to have largely equal populations
When can governments regulate the content of speech made by public employees while speaking as private citizens about matters of public concern?
The government can regulate the content of that speech (speech of public concern made by off-duty government employees) if its interest in efficient government function outweighs the employee’s free-speech right
When is a law that limits speech considered facially invalid?
OV
OV
Obroad Vague
- Overbroad: When the law restricts a substantial amount of constitutionally protected expression, OR
- Unduly Vague: the law fails to give persons of ordinary intelligence fair notice of prohibited expression
Dormant Commerce Analysis of Discriminatory Laws
LA
LA
Legitimate Alternative
The Strict Scrutiny Test of the Dormant Commerce Clause applies because of the discriminatory nature of the law. For a discriminatory state law made under the Dormant Commerce Clause to be constitutional, the state must prove that:
1. The law furthers a legitimate interest AND
2. There is no reasonable alternative
Congressional Taxing Power Limitations on DIRECT taxes
AEAS RRRR
AEAS RRRR
A direct tax (tax on person or property) enacted by Congress, in order to be constitutional, must be:
1. Apportioned evenly among states (based on each state’s POPULATION)
2. Reasonably related to revenue raising
What is the difference between sovereign immunity and the 11th Amendment?
Sovereign immunity prohibits private parties (or states or foreign governments) from suing the federal government in state or federal court unless Congress consents.
The 11th Amendment prohibits suits against the several state unless it is by another state, by the federal government, or Congress abrogates the immunity.
What is required for Congress to be permitted to exercise its power to tax for any public person?
As long as a tax has a reasonable relationship to revenue production, Congress may exercise its power to tax for ANY PUBLIC PURPOSE.
If Congress is abrogating state immunity for money damages when certain state action causes harm, from what Amendment(s) would Congress need to draw such authority and what standard of review is required for a state action to remain constitutionally valid?
Congress must draw this authority from the Civil War Amendments (13th, 14th, or 15th) and the standard of review that would be applied to see if a state action would constitutionally permissible would depend on the class affected:
Rational Basis Review: Non-Suspect Class such as age
Intermediate Scrutiny: Quasi-Suspect such as legitimacy or gender
Strict Scrutiny: Race
May the Supreme Court review a state court final judgment that appears to be based on adequate and independent state grounds to determine whether those state grounds actually exist?
YES.
Although a final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the US Supreme Court, the Supreme Court may constitutionally review a state court decision to determine whether such grounds exist.
This would be the case if a state court made a decision based on the interpretation of a federal law, even if the federal law was only used as a model for the state law. Because the interpretation of the federal law is essential to the final judgment of the state court case, there are no INDEPENDENT state grounds.
Can an individual challenge a zoning regulation’s constitutionality in court before applying for a special variance from the regulation?
NO.
An individual who believes he has been harmed by a local zoning regulation does not have standing until he has applied for a special variance; until then, the case is not yet ripe.
Which kind of tax must be apportioned among the states based on population?
A direct tax. Article I, Sec. 2 requires that all direct taxes be apportioned among the states based on their population.
A direct tax is paid by the person or group that owes it directly to the government.
An indirect tax can be shifted to any other person or group by the person or group that owes it, such as an airline that must pay a tax per ticket sold: the airline can add the tax to the cost of tickets charged to passengers.
What are the requirements and limits of the Dormant Commerce Clause?
The Dorman Commerce Clause is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce.
- Courts first determine whether a state regulation discriminates on its face against interstate commerce or whether it has the purpose or effect of discriminating against interestate commerce.
- If the statute is discriminatory, the state has the burden to justify both the local benefits flowing from the statute and to show the state has no other means of advancing the legitimate local purpose.
If a state court rules that under the Supremacy Clause, a state law cause of action is preempted by a federal policy, what is the reason?
Chances are, this is because the state law cause of action would create an obstacle to or frustate the accomplishment of the federal policy. Thus, the Supremacy Clause can help solve the competing aims of the federal policy and the state right of action, with the federal policy winning of course.
Can a consumer bring a due process violation lawsuit against a private company if it is a publicly regulated monopoly?
NO.
Private companies cannot be the target of a due process challenge; due process violations can only be committed by state actors.
When a state action could be challenged on equal protection grounds or substantive due process grounds and the wording of the challenge is that the action “interferes with a right” and not that the action “discriminates,” what is the constitutional violation being alleged and what does the standard of review depend on?
“Interference with a right” is an allegation of a substantive due process violation, not an equal protection violation. Thus, in order to raise the standard of review to strict scrutiny, the violation must be against a fundamental right (voting, travel, privacy, bear arms).
Which circumstances will lead to which standard of review being applied in different state actions that discriminate against citizenship / residency status in the US?
- Laws that discriminate against noncitizens by barring them from owning land, obtaining commercial licenses, being eligible for welfare, or being hired for civil service jobs
- Laws that discriminate against noncitizens by barring them from working as police officers in a city
- Generally strict scrutiny applies to laws such as these
- Laws that require citizenship status to be a police officer is part of the growing list of exceptions to the strict scrutiny test application to state action that discriminates against noncitizens BEING DIRECTLY INVOLVED IN GOVERNMENT FUNCTIONS, and instead the standard applied is the RATIONAL BASIS REVIEW, because of the importance of efficiency in the enforcement of laws.
Under which circumstances and constitutional clause can a state charge higher fees to out-of-state residents for a particular license or service to?
When the license or service does not constitute a fundamental right. Article IV’s Privileges and Immunities Clause protects citizens of one state from discrimination by another state in their exercise of fundamental rights. But if the right is not a fundamental one, the state is permitted to discriminate against out-of-state citizens, provided the discrimination is not unconstitutional, such as being applied to a suspect class.
When is Presidential power strongest under Article II?
When the president acts pursuant to a Congressional authorization
What constitutes a collateral order, when an interlocutory appeal is permitted to challenge a lower court’s order?
And what are examples of collateral orders?
ISE
ISE
Important Separate Effectively
An interlocutory order will be characterized as final and immediately appealable if three elements are met:
1. The order conclusively resolves an important issue;
2. The issue is separate from the merits of the underlying claim;
AND
3. The order cannot be effectively reviewed on appeal from a final judgment
-Denying state 11th Amendment immunity
-Denying government official/employee immunity
-Vacating attachment of vessel
-Refusing to require security bond pursuant to state law
-Remanding action to state court based on abstention
What is Congress’s Property Power?
(Art. IV)
The Article IV Property Clause grants Congress complete power to dispose of and regulate federally owned property. As part of this property power, Congress may enact statutes regulating the use of buildings owned by the federal government.
When is a publisher protected from liability when releasing information that was illegally obtained?
POK
POK
Public Obtained Knows
- The information involves a matter of public concern
AND - The publisher neither obtained it unlawfuly nor knows who did it
Does a state have exclusive authority over commercial transactions that occur wholly within its borders?
NO.
The Commerce Clause gives Congress concurrent authority to regulate in-state activities that, alone or in the aggregate, have a substantial impact on interstate commerce
What is Congress’s “Section 5 Power” of the 14th Amendment?
This is the clause that enabled Congress to pass legislation to enforce the substantive clauses with the 14th Amendment.
The Fourteenth Amendment
Contains the Equal Protection Clause and the Due Process Clause
Section 5 Gives Congress power to “enforce these provisions by appropriate legislation”
Congress can enforce these individual rights as the courts have defined them, but cannot expand them
Which amendment is Congress’s only source of constitutional power to challenge private acts?
The Thirteenth Amendment
Gave Congress authority to pass laws rationally related to ending the badges or incidents of slavery
Allows Congress to regulate both public and private action
When can private action be regulated by Congress under the 13th Amendment?
REBI
REBI
Rationally, Eliminating, Badges, Incidents
Private Action can be regulated by Congress under the 13th Amendment when (REBI, Rationally, Eliminating, Badges, Incidents):
Congress adopts legislation rationally related to
Eliminating racial discrimination, aka
“Badges or incidents” of slavery
What is the Congruence and Proportionality Test (specifically pertinent to the 14th Amendment)
RFRM
RFRM
Reasonable Fit, Right, Means
The Congruence and Proportionality Test (RFRM, Reasonable Fit, Right, Means):
Requires a reasonable fit between the constitutional right defined by the courts and the means of enforcement
If the enforcement is so broad it effectively expands the right, the enforcement is unconstitutional under Section 5
In Smith, if there is a neutral, generally applicable laws that happen to burden religious conduct are constitutional. Because a law criminalization the use of peyote was not targeted at the members of a Native American church who used peyote in religious ceremonies, the law was not a 5th Amendment violation.
Subsequently, Congress passed the Religious Freedom Restoration Act (RFRA) which gave religious believers an accommodation from otherwise valid laws. SCOTUS struct down RFRA as exceeding Congress’s Section 5 power because it effectively created a new right rather than enforcing an existing right.
What are the principles contained in the 15th Amendment?
How are these principles enforced?
The Fifteenth Amendment
Prohibits state and local governments from denying any citizen the right to vote based on race
Enforced by Congress through the Voting Rights Act
Congress held that the right to vote is the right to have the vote meaningfully counted
What are Congress’s powers beyond Taxing, Commerce, Spending, and the Civil War Amendment powers?
PONCEN PWN
PONCEN PWN
Post Office, Non-Citizens, Elections, Necessary Proper, War, Naturalization
Other Congressional Powers
Power to declare war, raise an army and navy, and regulate the armed forces
Exclusive power to establish a post office
Plenary power over non-citizens
Exclusive power over the naturalization process
Power over Federal Elections under Article I, Section 4
Power to enact any legislation necessary and proper to execute an enumerated power (NOT a freestanding power. Rarely a correct answer on the bar exam unless it is carrying into effect a separate enumerated power)
What are the basics of the Executive Branch’s / President’s enforcement powers?
Includes the power to enforce the law, but not the power to make the law
Includes significant power over administrative agencies that enforce the law
Can issue executive orders telling agencies what to do (i.e. how to enforce the law)
Can set enforcement and rulemaking priorities
Enforcement powers are subject to control by Congressional statute
What is the President’s pardon power and how is it limited?
Can forgive crimes for federal offenses
Explicitly does not apply to impeachment
What is the President’s Veto Power, and what are its requirements and limitations?
Key Words:
-Bicameralism
-Veto Power and Options
-Override of Veto
-Line Item Veto
-Pocket Veto
Veto Power
After bill passes both houses of Congress (i.e. bicameralism), bill must be presented to the President for signature
The President then has 10 days to:
Sign the bill (making it a law); OR
Veto the bill (rejecting the bill and sending it back to the originating house)
Need not give a reason for the veto
Cannot veto some parts of legislation and not others
This is called a line-item veto and SCOTUS has ruled this as unconstitutional
Congress may override veto with a supermajority (i.e. 2/3 vote in each house)
Pocket Veto
If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden
What is the President’s Appointments Power, how is it limited and what are its requirements?
Appointment
President authorized to appoint all officers of the United States (i.e. Supreme Court justices, ambassadors) with the “advice and consent of the Senate”
Only federal employees who exercise significant authority on behalf of the United States must be appointed consistent with the appointments clause
Inferior officers can be appointed by a department head, the President alone, or a court of law if Congress so chooses
Congress cannot appoint officers of the United States
Congress creates offices, not officers
Can the President remove an officer from a federal post? If so, what are the limits to this, and what are the limits to Congress’s analogous power?
President can remove federal officers, but this power is not explicitly in the Constitution
Congress can pass a law that
Creates an agency and
Protects the head of that agency from being fired by the President (i.e. an independent agency)
But Congress cannot create multiple layers of protection (i.e. by protecting an officer under the supervision of another protected officer)
What is the President’s authority with regard to the rest of the world?
Key Words:
-Commander in Chief
-Treaties
-Executive Agreements
President’s Power Over Foreign Affairs
Commander in Chief Power
President is commander in chief of the military
But Congress has the power to declare war
Chief Diplomat Power
President has the power to negotiate treaties
Treaties must be ratified by a supermajority of the Senate to have force of law
Supermajority is a 2/3 vote of the Senate
A treaty cannot conflict with the Constitution; if it does, the Constitution trumps the treaty
The President can also negotiate executive agreements (i.e. presidential agreements with other countries that do not require Senate approval)
Because these agreements do not become law, they do not bind a successor President
What is Impeachment?
What is the process of Impeachment?
What are the consequences of impeachment?
Impeachment
The President, the Vice President, and all civil officers of the United States (including U.S. Supreme Court Justices) shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors
The House of Representatives alone impeaches by majority vote. This is done by determining what constitutes “high crimes and misdemeanors” and then voting to determine if the president has committed such acts
The Senate alone tries and convicts by supermajority (⅔) vote
If the President is on trial, the Chief Justice of the Supreme Court presides
Consequences of conviction:
Removal from office
Disqualification from holding future office
No criminal penalties attach
What is a legislative veto and is it permissible?
The Legislative Veto - the (impermissible) act of Congress passing a law reserving the right for themselves to disapprove future executive actions by simple resolution
Congress cannot reserve for itself (or a sub-component of itself) the right to veto legislation under their Constitutional powers
Con Law: What is impoundment and what is its process?
Impoundment
Congress may pass a statute and give the President discretion to withhold the funds
If a statute requires that certain funds be spent on certain purposes, the President has no discretion to withhold (impound) the money
There is only a separation of powers violation if the President fails to spend the money when Congress has mandated that the funds are to be allocated in a certain way
What are the limits of Congress’s Delegation of Powers?
Delegation of Powers
Nondelegation doctrine: Congress is allowed to delegate many powers to administrative agencies, but must provide an intelligible principle to guide agency discretion
Certain powers are nondelegable, such as the power of impeachment and the power to declare war
Historically, the intelligible principle test has not been very hard to pass
Describe Executive Immunity
Executive Immunity
The President is immune from civil liability for official acts, but not immune for acts done:
In the President’s private capacity; or
Before becoming President
Breakdown
The president may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities
The president has no immunity for civil actions based on conduct that occurred before the president took office or completely unrelated to carrying out the job
Describe Judicial Immunity
Judicial Immunity
Absolute immune for all judicial acts that could result in civil liability
May be liable for non-judicial acts (i.e. employment discrimination)
Describe Legislative Immunity
Legislative Immunity
Speech and Debate Clause protects federal legislators from liability for anything said in the course of the regular legislative process
Protected statements cannot be used as evidence against the legislator
Protection extends to Congressional aides if conduct would have been protected had it been performed by a legislator
What is the President’s Executive Privilege?
Certain confidential information can be privileged (i.e. President can withhold it from courts or Congress)
But the privilege can be outweighed by a demonstrated need (e.g. an ongoing criminal prosecution)
Claimed of executive privilege based on national security are generally given enhanced deference from the courts
Federalism: what types of act can neither the state nor federal undertake?
Neither state nor federal can act:
Banning speech protected by the First Amendment
Establishing a religion
Conducting an unreasonable search and seizure
Federal Government holds exclusive power to act:
The Constitution forbids the states from certain acts, including:
Coining their own money; AND
Taxing imported or exported goods
Sometimes, because Congress has the power to regulate something, we infer that the states cannot (e.g. Dormant Commerce Clause)
States hold exclusive power to act:
Includes anything outside Congress’ enumerated powers
The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states or to the people
These powers are limited by the expansive interpretation of the commerce clause
When States and Federal government have concurrent jurisdiction…
Whenever states and the federal government have concurrent jurisdiction to regulate something, remember to apply the Supremacy Clause
Federal Law preempts State Law when…
CECP
CECP
Constitution Exclusive, Congress Prohibits
Federal Law preempts State Law when:
The Constitution makes federal power exclusive (such as the powers to coin money or declare war), OR
When Congress has enacted legislation that explicitly prohibits state regulation in the same area
Can states sheild state officers from federal liability for violation federal constitutional rights?
NO.
Can the Federal government tax the states?
YES.
What is the limit of federal regulation of the States?
States are not immune from direct federal regulation
Exception: The federal government cannot commandeer a state government to enact or enforce a federal regulatory program
Generally, states cannot enact legislation that discriminates against out-of-state commerce, except when:
F SNAP
F SNAP
Function, Subsidies, Necessary, Approval, Participant
Necessary to important state interest and no other nondiscriminatory means are available
State is acting as a market participant
Traditional government function
Subsidies
Federal/Congressional Approva
A state can impose a nondiscriminatory tax on interstate commerce when
NAR
NAR
Nexus, Apportionment, Related
There is a substantial nexus between the taxing state and the property or activity to be taxed
There must be fair apportionment of tax liability among the states; AND
The tax must be fairly related to the services provided by the taxing state
A state can tax the instrumentalities of commerce when
SWAT
SWAT
Situs Within, Apportioned Time
The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and
The tax is fairly apportioned to the amount of time the instrumentality is in the state
Dormant Commerce Clause Basic Rule.
If Congress has not enacted legislation on a particular area of interstate commerce, then the states can regulate it as long as they do not:
DBR
DBR
Discriminate, Burden, Regulate
Discriminate against out-of-state commerce
Unduly burden interstate commerce, OR
Purposely regulate whole out-of-state activity
A discriminatory state law will survive if one of several exceptions applies, including if
NPC
NPC
Necessary, Participant, Congress
It is necessary to serve an important state interest;
The state is acting as a market participant; or
Congress authorizes a state regulation of commerce
How is the Pikes Balancing test performed on a Dormant Commerce Clause issue?
Undue Burden on Interstate Commerce
May violate DCC if burdens imposed on interstate commerce clearly outweigh local benefits
This is called Pikes balancing
Con Law: What is extraterritoriality?
Extraterritoriality
State law that purposefully regulates conduct wholly outside state’s borders violates the Dormant Commerce Clause
Can a property owner whose use of the property predates a zoning ordinance that renders the use of the property “nonconforming” then change their use of the property to a different nonconforming use?
NO.
A property owner shose nonconforming use predates a zoning ordinance may not, after the ordinance becomes effective, switch to another nonconforming use. The property owner’s vested right in the nonconforming use does not extend to other nonconforming uses.
What is the signficance of the presence of a less-restrictive alternative with regard to the constitutionality of a state law passed under the dormant commerce clause?
When applying the “undue burden” test when weighing the constitutionality of a state law passed under the dormant commerce clause, some state laws have been found wanting because there are less restrictive alternatives. It does not matter whether the state law predated OR followed other states’ similar laws, it only matters if there is a less-restrictive alternative.
Note: “less-restrictive alternative” is NOT dispositive to an undue burden constitutionality test under the dormant commerce clause, it is merely one of many possible factors.
How long does a party have, after the discovery conference, to make initial automatic disclosures to the opposing party?
14 days.
Failure to do so authorizes the opposing party to issue a motion to compel on the non-disclosing party, who then has 21 days to correct the issue before the non-disclosing party can request the court to take action, such as issuing sanctions.
Is a courtroom a public forum? What are the limitations on regulations of speech-related activities in a courtroom, based on its forum designation?
VNRL
NO.
VNRL
Viewpoint Neutral Related Legitimate
The courtroom is not a public forum. All public property that is not traditionally or designated public forum is a “nonpublic forum.” Nonpublic forums include government offices, schools, jails, military bases, polling places, and courtrooms.
The government (including the judge in her courtroom) may regulate speech-related activities in nonpublic forums as long as the regulation is
1. Viewpoint-Neutral (can still be content-based, so long as viewpoint-neutral)
AND
2. Reasonably related to a legitimate governmental interest
What is the doctrine of abstention? What is the Younger Abstention Doctrine?
What is the Pullman Abstention Doctrine?
Under the doctrine of abstention, a federal court may abstain from deciding a claim when strong state interests are at stake.
Under the Younger Abstention Doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute.
Under the Pullman Abstention Doctrine, a federal court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts.
When can a state tax interstate commerce?
CDBN
CDBN
Congress Discriminate Burden Nexus
- Congress is silent on that type of commerce
- The tax does not discriminate against or unduly burden interestate commerce
- There is a substantial nexus between the taxing state and the property or activity to be taxed
Con Law: What is an Ad Valorem Property Tax?
States can tax property, real or personal, including movable commodites that are within their border on a particular date
However, states may not levy an ad valorem tax on goods that are merely in transit between states
States may tax instrumentalities of commerce if the instrumentality has a taxable situs or sufficient contacts within the taxing state, typically indicated by where the instrumentality receives benefits and protections from the taxing state
What are the three types of Federal Preemption and what are each of them?
ECF
ECF
Express, Conflict, Field
Express Preemption
Applies when Congress explicitly says that state regulation in an area is preempted by federal law
Not triggered by merely regulating the same activity
Conflict Preemption
Applies when it is impossible to comply with federal and state law at the same time
Field Preemption
Rare form of preemption
Applies when federal regulation is so thick that we imply that Congress has determined there cannot be a concurrent state law in an area (i.e., Congress has occupied the field)
What is the interestate compact clause?
Allows states to enter into agreements with each other when Congress consents
Generally consent is only required for “compacts” that alter the power balance between the states and federal government
What is the effect of the full faith and credit clause on interstate relationships?
Requires that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”
States must honor out-of-state judgments that are final and came from court with proper jurisdiction
To be given full faith and credit, a judgment also must have been on the merits rather than on a procedural issue
Basic interests protected by due process
- Life
-The imposition of the death penalty requires procedural due process - Liberty
-Physical confinement requires due process
-Any restriction of fundamental rights is a deprivation of liberty (e.g., being punished for free speech, committed to a mental institution, parole revocation, loss of parental rights)
-Damage to your reputation does NOT implicate a liberty interest - Property (Due Process Protection)
-A mere expectation of employment or benefit is not enough
-If someone can only be fired “for cause,” then that person has a legitimate entitlement to continued employment
-Even employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution
What are three scenarios where apparently private action is treated as state action?
TEA
TEA
Traditional, Entanglement, Affirmatively
The state action requirement is also satisfied by the following situations:
1. Private actor carrying out a traditional government function
-When a private person or company carries on activities that are traditionally performed exclusively by the state, state action exists
-Merely providing a product or service that the government could offer is insufficient (e.g., schools)
2. State entanglement of private actors
-State action may exist if there are sufficient mutually beneficial contacts between the conduct of the private party and the state
-Must be so intertwined that it is hard to see where the private action ends and the state action begins
-Just having a license from the state is not enough
-Look for joint ventures or situations where the government has management authority or is making money off the private conduct
3. State affirmatively approves of private action
-State action exists if a state has facilitated or endorsed private behavior
-Must affirmatively facilitate the conduct, not just passively approve
Con Law (due process): what does a cognizable property interest require?
LEV SCoC
LEV SCoC
Legitimate, Entitlement, Virtue, Statute, Contract, Custom
Legitimate claim of
Entitlement to the property interest by
Virtue of a
Statute,
Contract, OR
Custom
What is the Matthews v. Eldridge balancing test to decide what process is required under the Due Process Clause?
IS VP GE
To decide what process is due (e.g. hearing, notice, statement of reasons) under the Mathews v. Eldridge balance test, a court will weigh:
1. Individual interest at stake
2. Value of the procedure that is protecting that interest; and
3. Government’s interest in efficiency (i.e., cost to provide process)
What are the due process requirements for notice of the following:
1. Termination of welfare benefits
2. Termination of disability benefits
3. Termination of a public employee who can only be fired for cause
Termination of welfare benefits requires a hearing before the benefits are taken away
Termination of disability benefits do not require a hearing before the benefits are taken away, so long as the hearing occurs promptly after the termination and retroactive relief is possible if appropriate
Public employees who can be fired only for cause (e.g. tenured professor or police officer) must be given hearing before discharge unless there is significant reason not to keep them
What is substantive due process?
RAFP
RAFP
Reasonable, [not] Arbitrary, Freedom, Possible
Substantive Due Process is the idea that laws should
Be reasonable and not arbitrary; and
Protect individual freedom to the extent possible
Substantive Due Process evolved from the word “liberty” in the 14th Amendment
Standards of Review: Strict Scrutiny
LeaR MACoI
LeaR MACoI
Strict Scrutiny definition - the law must be the:
Least
Restrictive
Means
To achieve a
Compelling
Government Interest
To satisfy strict scrutiny, the government must show that the challenged law is:
NCL
NCL
Necessary, Compelling, Least
Necessary to meet a
Compelling government interest
Using the least restrictive means to do so
Necessary is sometimes referred to as the “narrowly tailored prong”
What are examples of compelling government interests that would succeed a strict scrutiny challenge (assuming the least restrictive means to achieve the interest is used)?
Compelling interests: include national security, preserving public health, or remedying past discrimination
Intermediate Scrutiny
SI
SI
Substantially, Important
Between strict scrutiny and rationality review
The government must show the law is:
substantially related
To an important government interest
Rationality Review
RL
RL
Related, Legitimate
Rationality review places the burden on the challenger, not the government
A challenger must show that the law is not
Rationally related
To a legitimate state interest
What are examples/definitions of “legitimate interests” and “rationally related”
Legitimate interests: include redistributing wealth, protecting scalp safety, keeping highways safe
Rationally related: the fit of the law to these interests can be loose
What must a plaintiff show for the court to apply intermediate or strict scrutiny?
D FAM
D FAM
Discriminatory, Facially, Applied, Motive
All a plaintiff needs to show for the court to apply intermediate or strict scrutiny is:
Discriminatory intent, either
Facially
As Applied or
By Motive
When do substantive due process challenges invoke strict scrutiny vs. rationality review?
Strict scrutiny applies when a fundamental right is infringed
Rationality review applies for everything else in the substantive due process context
Intermediate scrutiny does not apply in the substantive due process context
What are the substantive due process rights under the Constitution?
TVPB
TVPB
Right to Travel
Right to Vote
Right to Privacy
Right to Bear Arms
All laws that infringe on fundamental rights are subject to strict scrutiny, including those like free speech that are not part of substantive due process because they are explicitly granted elsewhere
Right to Travel Basics
And, what are the exceptions for limited waiting periods?
TD
TD
Tuition Divorce
Right to Travel
Includes right to travel from state to state or settle in another state
States may impose reasonable residency restrictions before new residents are eligible for benefits
Typically 30-90 days
One year is too long for everything except (TD, Tuition, Divorce):
In-state tuition; and
Jurisdiction to issue a divorce
Durational residence requirements cannot deny newcomers the basic necessities of life
Although there is also a right to travel internationally, it is not a fundamental right invoking strict scrutiny
Right to Vote
Fundamental right for every U.S. citizen who is at least 18 years old
Applies to all elections
Poll taxes are unconstitutional
Short term residency requirements are permissible (e.g., 90 days or less)
Person must be given chance to prove residency before being denied the right to vote because of lack of residency
Congress controls the residency requirements for federal elections
State governments control residency requirements for state elections
The Constitution allows states to prohibit those with a felony conviction from voting
Not infringed by a state law that requires people to show a photo ID
Requires districts of approximately equal size and forbids racial gerrymandering in drawing district lines
But partisan gerrymandering is permitted
Challenges to racial gerrymandering require evidence of a discriminatory purpose
Race may be a factor in drawing district lines but not the only or predominant factor
Right to Privacy
I CAMP
I CAMP
Intimate, Contraception, Abortion, Marry, Parental
Collection of several related rights that all have to do with family and procreation:
1. Right to marry
Fundamental right
State bans same-sex marriage and interracial marriage are unconstitutional
States can still regulate this right (e.g. require proof that two people who want to marry are not related), but must meet strict scrutiny to do so
2. Right to contraception
Fundamental right of everyone to purchase contraceptives
3. Right to intimate association
Lawrence v. Texas held that we have a right to choose our intimate partners
Not explicitly held to be fundamental right, but government has no legitimate interest in regulating noncommercial sexual intimacy between consenting adults
Separate fundamental right recognized to read obscene material in the privacy of one’s own home
4. Parental Rights
Parents have a fundamental right to raise their children as they see fit, including the right to choose:
Whether to send kids to private school
To educate children in a language other than English
Parents have the right to live with their children unless there is a finding of abuse or neglect
5. Abortion rights
In Dobbs, the U.S. Supreme Court overturned Roe v. Wade and held that access to abortion is not a fundamental right
States can regulate or prohibit abortion outright, subject only to rationality review
Right to Bear Arms
Fundamental right applying to state and federal governments
Not limited to service in a militia
Firearm regulations are only valid if they are supported by a history and a tradition of firearms regulations of the sort being challenged
Strict Scrutiny as it applies to Equal Protection
REO S
Race, Ethnicity, Origin, Status
Applies to suspect classifications of race, ethnicity, or national origin; and when a state law is at issue, the added strict scrutiny classification is citizenship status
Government decisions based on these classifications are automatically suspect and will be aggressively reviewed by the courts
What are the two triggers for a state action invoking strict scrutiny?
FS
FS
Fundamental Suspect
The two triggers for a state action invoking strict scrutiny are when the state action involves a:
Fundamental Right OR
Suspect Classification
Racial Classifications - what will satisfy the requirement to prove discriminatory purpose?
FCS
Face, Context, Statistics
- Face of the law - i.e. explicit mention of race in the law
- Context or history - i.e. legislative history or a context behind the law
- Statistics - i.e., law is neutral on its face, but applied in a discriminatory fashion such that the results are so dramatic that the only explanation can be a racial purpose
How are state vs. federal classifications based on citizenship standards addressed?
Standard of review differs for federal and state actors
1. State law: strict scrutiny applies
Exception: state laws prohibiting a non-citizen’s participation in government functions (e.g. voting, serving on a jury or as a police officer) are subject to rationality review
Exception: undocumented non-citizens are not a suspect class, but states cannot deny them primary or secondary education benefits
2. Federal law: because Congress has plenary power over noncitizens, federal classifications based on citizenship are likely valid (unless arbitrary and unreasonable)
When does Intermediate Scrutiny apply under the Equal Protection Clause?
Quasi-Suspect Classifications
Gender &
Illegitimate Children
What are examples of when gender classifications have satisfied intermediate scrutiny?
Statutory rape laws
Military draft
Affirmative action in favor of women for tax exemptions or increased social security
-Government is providing remedy for past gender-based discrimination (an important government interest)
What are examples of non-suspect classes?
Age
Poverty
Sexual Orientation (Laws that burden members of LGBTQ community get “rationality review with teeth”)
What are the two Privileges and Immunities Clauses (5th and 14th Amendments)
- Fourteenth Amendment: protects citizens from infringement by the state upon the privileges or immunities of national citizenships
-This is rarely a correct answer on the bar exam - Article IV (i.e. the Comity Clause): prohibits serious discrimination against out of state individuals in allowing access to the private job market
-There is no market participant exception for the Comity Clause
What is the Takings Clause?
PPC
PPC
Private Public Compensation
Comes from 5th Amendment
The government has the power to:
Take private property for public purposes so long as it pays just compensation
Private property = land, tangible property, and intangible property (e.g., patent rights and trade secrets)
Public use = any conceivable public purpose
The need for the private land only has to be rationally related to that purpose
The government may take private property and resell it to another
Just Compensation = fair market value at the time of the taking
When is the government permitted to destroy private property without always being required to compensate?
Permitted to destroy private property in response to a public peril
Compensation not necessarily owed when destruction is in response to public peril
Taking vs. “Mere” Regulation
-If the government merely regulates property (e.g., zoning regulation), just compensation is not required
-Zoning regulations are not takings unless the zoning law is so thorough that there is no economically viable use for the property
-If the government physically occupies private owner’s property, then that is a taking
-Economic impact on the property is not necessary a taking
Regulatory Taking
CIG
CIG
Character, Investment, Gravity
-A government rule adversely affects a person’s property to such an extent that it rises to the level of a taking
To Determine if it is a Regulatory Taking, Courts consider:
1. Gravity of the economic impact
2. Extent to which the regulation interferes with the owner’s reasonable investment-based expectations; and
3. Character of the regulation - i.e. how much it will benefit society
Permanent, physical occupation of property = taking
Permanent total loss of property’s economic value = taking
Bills of Attainder (NOT PERMITTED)
Legislative acts that declare person or group guilty of a crime and punish them without a trial are prohibited
*Prohibition applies only to criminal measures and bars on government employment
Ex Post Facto (NOT PERMITTED)
CDPB
CDPB
Criminalizes, Defense, Penalty, Burden
Ex Post Facto Laws
Retroactive change to a criminal law are prohibited
Law will be struck down as being ex post facto if the law:
1. Criminalizes an act that was not a crime when originally committed;
2. Authorizes the imposition of more severe penalty after act was committed
3. Deprives the defendant of a defense that used to be available when crime was committed
4. Decreases prosecution’s burden of proof after crime was committed
State Action on Private Contracts
Legislative impairment of existing contracts between private parties are prohibited unless there is an overriding need for it, like an emergency
Applies only to state legislation, not federal legislation or state court decisions
Does not apply to future contracts
Establishment Clause
-Applies when government prefers one religion over other religions or over non-religion
-Courts must apply strict scrutiny to the policy in question
-The current test for Establishment Clause challenges considers the country’s “historical practices and understanding” about the role of religion in everyday life
-Long standing practices (“In God We Trust” on money) are not establishments of religion if you consider the longstanding history and tradition of using them
*Tax deductions available to all parents for educational expenses of private or public schools (including religious schools) are permissible
May not give tax deductions only for tuition used at religious schools
Public Schools & Establishment Clause: What can the government NOT do?
Government may not:
-Specifically create a school district to serve a particular religion
-Require prayer in schools
-Allow prayer at graduation
-Post the 10 commandments on public school walls
-Prohibit the teaching of Darwin and evolution or mandate that such instruction be accompanied by teaching of creationism and the Bible
Public Schools & Establishment Clause: What CAN the government do?
Government may:
-Permit voluntary prayers in school
-Permit Bible reading so long as it is treated as literature or poetry but not if it is treated inspirationally
-Allow a football coach to give a private prayer at halftime during a football game
-Teach the Ten Commandments as an example of an early legal code
Religious Displays and Legislative Prayer & Establishment Clause: What CAN the government do?
Religious Displays
-Governments cannot display the Ten Commandments on public property if that display has a predominantly religious purpose
–If the display also communicates a secular message, that is okay
-Holiday displays that acknowledge religion, rather than endorse religion, are permissible
–Displays including secular symbols alongside religious symbols are typically permissible
Legislative Prayer
-Prayers at the beginning of a legislative session are generally permissible because of the long history and tradition of such prayers
Free Exercise Clause Basics
Protects:
-Freedom to believe in any religion or no religion; and
-Freedom to act on that belief
Freedom of religious belief is absolute, but freedom to act may be limited
Free Exercise Clause: Which standards of review are applied, and when?
Laws Targeting Religious Conduct
-Law purposely targets religious conduct = subject to strict scrutiny and likely going to fail
-Generally applicable laws that are neutral and incidentally affect religious conduct = rationality review
What is the Ministerial Exception?
-Religious institution can hire or fire a religious leader without complying with federal or state employment - e.g., it can discriminate based on gender
-“Minister” has been invoked broadly to include an employee who had some religious instruction as part of the employee’s duties
Freedom Of Expression:
What is the difference between a content-based and a content-neutral restriction?
Content-based restriction = law that prohibits speech because of the subject matter discussed or the idea expressed; trigger strict scrutiny and are generally struck down
Content-neutral restriction = law that restricts the time, place, or manner of speech but not the subject matter or idea conveyed; level of scrutiny depends on forum
What are the three types of government property open for speech?
TDL
TDL
Traditional, Designated, Limited
-Traditional public forum = place that has been historically reserved for speech activities
-Designated public forum = place that the government has opened for free-speech activities, even if it has not traditionally been open for speech activities
-Nonpublic forum = government property that a reasonable observer would assume is not open to the public
Government may restrict protected speech in a PUBLIC FOUM, aka the time, place, or manner of the speech, if the restriction
FANA
FANA
Face Applied, Narrowly, Alternative
Government may restrict protected speech in a public forum, aka the time, place, or manner of the speech, if the restriction:
Is neutral both on its face and as applied
Leaves open alternative channels of communication; and
Narrowly serves a significant state interest
Note: These requirements only apply to public forums
Requirements of government regulations on speech/expression in a nonpublic forum
VL
VL
Viewpoint, Legitimate
Regulations in nonpublic forums need only be:
Viewpoint-neutral and
Reasonably related to a legitimate governmental interest
When can government regulate expressive conduct?
PINU
PINU
Power, Important, Necessary, Unrelated
Government can regulate expressive conduct as long as:
The regulation is within the government’s power to enact
Regulation in question furthers an important interest
Interest is unrelated to expression; and
The burden on expression must be no greater than necessary
If it seems like the government is trying to get an idea or trying to suppress the expression of a message, that is likely unconstitutional. If it seems like the government is trying to neutrally regulate conduct or the time, place, or manner of the speech, that is likely to be constitutional
Content-Based Restrictions: What are the types of content that Congress can regulate?
IF DOC
IF DOC
Incitement, Fighting, Defamation, Obscenity, Commercial
The types of content that Congress can regulate are:
Obscenity
Incitement to violence
Fighting words
Defamation
Commercial speech
Content Based Restrictions: Obscenity
SSSS
SSSS
Sex, Society, Standards, Serious
Sex = must be erotic (i.e. appeal to the prurient interest); gore and violence are not legally obscene
Society sick = must be patently offensive to the average person in society
Standards = government must define obscenity clearly with precise standards (i.e. not vague or overbroad)
Serious value = if material has serious artistic, scientific, or educational value, then it cannot be legally obscene
*Child pornography is unprotected speech and can be prohibited under all circumstances
*Material that appeals to the prurient interests of minors may be regulated as to the minors even if it would not be considered obscene to an adult audience
Content-Based Restrictions: Incitement
Incitement
State may forbid speech that advocates the use of force or illegal action
Requirements: restricted speech must be:
Directed to inciting or producing imminent unlawful behavior; and
Likely to incite such behavior
Abstract expression of ideas is not incitement
Must be substantial evidence that a reasonable person would engage in the activity
Content-Based Restrictions: Fighting Words / True Threat
May be punished for speech that is likely to incite an immediate breach of the peace or threaten violence
Must be genuine likelihood of imminent violence from hostile listeners
Words that are just annoying or offensive are still protected
Viewpoint discrimination is still prohibited
Most attempts by statute to carve out a particular type of fighting word that the government can punish are going to fail because the government is engaging in viewpoint discrimination
Content-Based Restrictions: Defamation
Defamation can be restricted, but additional requirements must be met to restrict speech about public figures or matters of public concern
Plaintiff is public figure = speech must be spoken with actual malice towards the truth
Actual malice = either knowledge that the statement is false or reckless disregard to the truth of the matter asserted
Public figure = someone who is known to the general public or has voluntarily injected herself into the public eye
Does not include scientists publishing in journals or spouses of public figures
Plaintiff is private figure but speech involves a matter of public concern = speech must be spoken with at least negligence towards the truth
Content-Based Restrictions: Commercial Speech
SAN
SAN
Substantial Advance Narrowly
Receives intermediate level of First Amendment protection
Must concern lawful activity to be entitled any protection; cannot be false or misleading
-False and misleading commercial speech is unprotected and can be prohibited altogether
Requirements to restrict protected commercial speech:
1. Asserted government interest must be substantial
2. Regulation must directly advance that interest
AND
3. Regulation must be narrowly tailored to serve that interest
First Amendment Issues: Vagueness and Overbreadth
Vague = ambiguous to such an extent that it gives no clear notice to a person of ordinary intelligence about what speech is prohibited
Overbroad = burdens more speech than necessary for the government to achieve its interest
Both are unconstitutional
First Amendment Issues: Prior Restraint
Generally presumed unconstitutional
Especially disfavored under the First Amendment
If you see the government trying to get an injunction to prevent speech before it is uttered, that is likely unconstitutional as a prior restraint
First Amendment Issues:
Government Employee Speech
When a government employee is speaking pursuant to official duties, the First Amendment cannot protect the employee if later disciplined by the state
-Only applies if the speech is ordinarily within the scope of employee’s duties
-If speaking on a matter of public concern, the First Amendment interest is balanced against the interest of the state in effective management of its affairs
-Cannot be fired or hired based on their political party or any act of free speech
-Exception: confidential advisors or policy makers
First Amendment Issues:
Campaign Finance
-The use of money on a political campaign is political speech
-Campaign contributions can be regulated as long as the caps are not unreasonably low
-Campaign expenditures are subject to strict scrutiny
–As long as the source of the funding is disclosed, there is no legal limit to the amount that individuals and entities may spend on electioneering communications
-The only rationale the U.S. Supreme Court has approved in restricting campaign finance is to help prevent quid pro quo corruption
First Amendment Issues: What are the two types of campaign expenditures and what are the constitutional implications?
Independent expenditures: Money spent on your own to campaign for a candidate cannot be regulated
Coordinated expenditures: Money spent in coordination with the candidate or the campaign can be regulated just like contributions
Can government employees be forced to take an oath?
NO, except to uphold the Constitution
Freedom of Association: criminalization of groups
A statute that criminalizes mere membership in any group is unconstitutional unless:
The group is actively engaged in unlawful activity or inciting imminent violence; and
The individual in question knows about it
Can investigate good character as part of bar membership, but cannot deny admission based on affiliation with certain groups
Can a state court issue a writ of habeas corpus to challenge a person’s custody in federal detention?
NO.
Only a federal court can challenge the constitutionality of a federal detention.
Writs of habeas corpus can be issued by state courts, but not when the detainee is in federal custody.
If a federal statute requires the President to expend all funds provided by Congress for the purposes Congress orders, and the President does something else with the money or doesn’t spend it, are the President’s acts constitutional?
NO.
The President is constitutionally required to adhere to Congress’s instructions regarding spending federal funds.
Furthermore, the President may not spend federal funds for any purpose unless authorized by a Congressional act
Does the Takings Clause require just compensation when a very small right of inheritance is taken from private individuals to satisfy a public interest?
YES.
The 5th Amendment Takings Clause requires that a taking be for public use AND that the government justly compensate the owner for the fair market value
A taking occurs even when the right to transfer property by will or intestate succession is taken/destroyed
If a state actor, in his legal discretion, exercises preferential treatment in his official capacity to snub a private actor because of their disfavorable speech or expression, has the state actor committed a constitutional violation?
YES.
The government cannot condition hiring a government employee or contractor on his/her political views or affiliations unless such views are ESSENTIAL to effective performance of the applicable work.
When can a party void a contract that was made based on incorrect information?
FMIR
FMIR
Fraud Material Induce Relied
The adversely affected party can rescind the contract (it is voidable) if:
1. The misrepresentation was intentional or reckless (fraud)
OR
2. Material (likely to induce)
3. The misrepresentation did induce assent to the contract
AND
4. The adversely affected party justifiably relied on the misrepresentation
When is a state law on its face discriminatory against out-of-state persons?
EFA
EFA
Expressly Furthers Alternatives
The law is invalid based on “on its face” discrimination if:
1. The language of the regulation expressly favors in-state interests
AND EITHER
2. It does NOT futher a legitimate, noneconomic state or local interest
OR
3. It DOES further a legitimate, noneconomic state or local interest
BUT
4. There are reasonable, nondiscriminatory alternatives that would promote this interest
What is the standard of review applied to content-neutral restrictions of speech in a public forum, such as billboards along a roadway?
TPMINSA
TPMINSA
Time Place Manner Intermediate Narrowly Substantial Alternative
The standard of review is one of Intermediate Scrutiny.
The government may impose:
a) time
b) place
OR
c) manner restrictions
d) that satisfy intermediate scrutiny review,
requiring that its content-neutral restrictions:
e) are narrowly tailored to serve
f) a substantial government interest
AND
g) leave open amble alternative channels of communication
If an express easement by deed is silent on its exact location, can the servient estate impose a restriction on its location?
YES.
If the location of the easement is not specificed, the servient estate owner may fixthe easement to a reasonable location.
For example, this can be done after continuous use of one location if the dominant estate wishes to move it, in which case the servient estate owner is permitted to prohibit its relocation.
Can Congress pas legislation to modify the Supreme Court’s original jurisdiction?
NO.
Article III has fixed the cases over which the US Supreme Court has original jurisdiction to those:
1) affecting ambassadors, public ministers, or consuls
OR
2) in which a state is a party
Are public nudity bans subject to First Amendment limitations? What standard of review must the court use to evaluate such bands?
YES.
Public nudity is a form of expression and thus public nudity bans are subject to First Amendment limitations. These bans are generally upheld because they survive required INTERMEDIATE SCRUTINY tests.
For what purposes is the inquiry into an individual’s association with a subversive group constitutional vs. unconstitutional?
Constitutional: the government must show that the inquiry is necessary to protect a legitimate state interest.
Unconstitutional: the government cannot inquire about a person’s associations for the sole purpose of withholding a right or benefit because of that person’s belief.
The First Amendment (and 14th Amendment as applied to the states) protects the right to freely associate with any group or organization, including subversive organizations.
What standard of review are laws that prohibit non-citizens from serving in particular government roles?
Sometimes Rational Basis Review, sometimes Strict Scrutiny.
Citizenship is a suspect class and are thus generally subject to strict scrutiny as a default.
However, an exception exists for state laws that restrict a noncitizen’s participation in government that would allow
1. Direct formulation, execution, or review of public policy
OR
2. Exercise of broad discretion
These types of participation are considered the POLITICAL FUNCTION EXCEPTION and are subject to Rational Basis Review.
What is the standard of review that is applied to content-neutral regulations in a public forum?
The government may only impose time, place, or manner restrictions if they:
1. are narrowly tailored to serve a substantial government interest
AND
2. leave open ample alternative channels of communication
What must the 1st and 14th Amendments’ guaranteed right to publish lawfully obtained and truthful information be balanced against?
The right to publicity, the right to control or commercially benefit from one’s own name, likeness, or other intimately associated qualities.
There is thus a First Amendment right to report on newsworthy events, but that does not extend to the right to publish an entertainer’s entire act without his/her consent since that would infringe upon the entertainer’s right to publicity.
How is the government limited in its restriction of true and lawful commercial speech?
SIEN
SIEN
Substantial Interest Extensive Necessary
All non-false, non-misleading, and lawful commercial speech is protected by the First Amendment, and therefore can only be regulated if the government proves that its regulation:
1. Directly advances a substantial government interest
AND
2. Is not more extensive than necessary to serve that interest (narrowly drawn)
What is the effect of the export clause?
The Export Clause prohibits federal taxation of:
- Exported Goods
AND - Services and activities closely related to the export process
What do the Article IV Privileges and Immunities Clauses guarantee?
Article IV’s Privileges and Immunities Clauses protect against:
1. Discrimination against citizens of other states
AND
2. Interference with a right of state citizenship
What does the 14th Amendment’s Privileges and Immunities Clause guarantee?
The 14th Amendment’s Privileges and Immunities Clause protects against:
Interference with a right of national citizenship
Does a government employee who can only be fired for cause have a right to notice and a hearing before being terminated?
YES.
Because public employees have a property interest when they can only be fired for cause, they are guaranteed notice and a hearing before being fired.
If the job is a state job: Article IV Privileges and Immunities Clause applies
If the job is a federal job: 14th Amendment Clause applies
