Con Law

Question 1

Which regulation, content-based OR conduct-based, is more likely to be held unconstitutional?

Answer 1

Content-based! In general, a reg seeking to forbid communication of SPECIFIC IDEAS (content-based) is LESS likely to be upheld than regulation of CONDUCT incidental to speech

Question 2

What are the scrutiny stds for contest-based and content-neutral restrictions, respectively?

Answer 2

Content based restrictions on speech must meet STRICT SCRUTINY Content-NETUTRAL restrictions(i.e. applies to ALL speech regardless of viewpt) burdening speech generally need only meet INTERMEDIATE SCRUTINY

Question 3

What are the 2 alternative ways of finding that a law is content-based?

Answer 3

1) Subject matter restrictions: application of the law depends on the topic of the msg 2) Viewpt restrictions: application of the law depends on the IDEOLOGY of the speech

Question 4

What is “prior restraint” and the level of scrutiny that it must meet?

Answer 4

Prior restraint = stopping speach BEFORE it occurs Ct orders surpressing speecg MUST meet STRICT SCRUTINY Gag orders on the press to prevent pejudicial PRE-trial publicity are NOT allowed

Question 5

Must a prior restraint challenger follow a ct Gag Order?

Answer 5

YES! Procedurally proper ct orders MUST be complied w/ UNTIL they are VACATED or OVERTURNED A person who violates a ct order is BARRED from later challenging it

Question 6

What are 3 requirements that must be met before the gov’t can require a license for speech?

Answer 6

1) There has to be an IMPORTANT reason for licensing 2) There must be CLEAR CRITERIA, leaving almost NO discretion to the licensing authority 3) There must be PROCEDURAL SAFEGUARDS suh as prompt determination of requests for licenses and judicial review of license denials

Question 7

What is the std for a speech regulation being struck down for vagueness OR overbreadth?

Answer 7

1) A law is unconstitutionally VAGUE if a reasonable person CANNOT tell what speech is prohibited and what is allowed E.g. fighting words are NOT protected speech, BUT statutes attempting to punish the use of such words are often found to be VOID for VAGUENESS 2) A law is unconstitutionally OVERBROAD if it regulates subtl MORE speech than the constitution allows to be regulated

Question 8

What are the elements of defamation? NOTE: NY Distinction

Answer 8

1) Defamatory language of OR concerning the π Defamatory = if it adversely affects the reputation the subject of that stmt (i.e. name calling&raquo_space; never; fact-based opinion&raquo_space; maybe) Has to be concerning a living person Stmts abt a group: (i) if the stmts are about a large group, NO one is defamed; (ii) if the stmt is about a small group, π may recover if it can be reasonably be associated with π 2) Publication (intentionally OR negligently)by ∆ to a 3d person (NOT just π) NO de minimis req: revealing to ONE 3d person is sufficient for publication Primary publishers (newspapers, etc) are ALWAYS liable; secondary publishers (newspaper stand, etc) MAY be liable (if they knew of defamatory content) 3) Damage to π’s reputation (type depends on type of defamation) Libel (written/printed/broadcasted publication of defamatory language): general damages are PRESUMED; no need to prove special damages Slander (spoken defamatory language): UNLESS slander per se [(i) related to π’s business/profession; (ii) π has committed crime of moral torpitude (e.g. fraud); (iii) the woman π is unchaste; (iv) π has loathesome disease (leprosy; or STD)], π has to prove special economic damages NY DISTINCTION: there is an additional slander per se category available: imputation of homosexulaity …[1st Am reqs] ONLY IF matter of “public concern”… 4) Falsity of the dematory language If stmt is TRUE, then NO c/a for defamation 5) Fault on ∆’s part (depending π’s status) If π is PUBLIC OFFICIAL OR FIGURE, π has to prove malice (knowledge that stmt is false OR reckless disrgard as to its truth) to get damages If π is PRIVATE PERSON AND matter of PUBLIC CONCERN, π has to prove at least negligence as to stmts falsity to get damages for ACTUAL INJURY NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1st Am

Question 9

When can the gov’t regulate symbolic speech?

Answer 9

The gov’t may regulate CONDUCT that communicates (symbolic speech) IF: 1) it has an IMPORTANT interest UNRELATED to the supression of the msg; AND 2) the impact on communication is NO greater than NECESSARY to achieve the gov’t goal ——————- Gov’t ALLOWED to regulate… Draft card burning (b/c of potential for national emergency) Nude dancing Contribution ltds to individual candidate campaigns Gov’t NOT ALLOWED to regulate… Flag burning Cross burning (AS LONG AS not done to threaten/intimidate) Overall EXPENDITURE limits in campaigns (gov’t cannot ltd the amt a person/corp/union spends to get a candidate elected, SO LONG AS the expenditures are indpendent of the candidate and are not disguised)

Question 10

Is anonymous speech protected by the 1st Am?

Answer 10

YES! BUT NOTE: A state’s interest in promoting transparency and accountability in elections is SUFFICIENT to justify public disclosure of the names/addys of persons who sign ballot petitions

Question 11

Is speech BY the gov’t restricted by the 1st Am?

Answer 11

Speech BY the gov’t CANNOT be challenged as violating the 1st Am Gov’t speech AND gov’t FUNDING of speech will be upheld SO LONG AS it is rationally related to a legitimate gov’t interest (rational basis)

Question 12

What5 categories of speech are UNPROTECTED p/t the 1st Am?

Answer 12

REMEMBER: CONTENT-based restrictions of speech must meet STRICT SCRUTINY (law is NECESSARY to achieve a COMPELLING gov’t interest) Regulation of the following is COMPELLING… 1) Incitement of illegal activity The gov’t may punish speech IF (i) there is a SUBSTL likelihood of imminent illegal activity;AND (ii) the speech is directed to causing such illegality 2) Obscenity 3) Defamatory speech 4) Fighting words: true threats or personally abusive actions (cross burning to intimidate) —————— ALSO REMEMBER: CONTENT-neutral restrictions of speech must meet INTERMEDIATE SCRUTINY (law is SUBSTL RELATED to an IMP gov’t interest) Regulation of the following is IMPORTANT… 5) SOME commercial speech: Advertising for illegal activity; OR false/deceptive ads are NOT protected EVEN true commercial speech that inherently risks deception can be prohibited (e.g. using certain trade names)

Question 13

What are the 3 reqs for speech to be deemed obscene?

Answer 13

Speech is obscene (UNPROTECTED) IF… 1) the material appeals to the prurient interest(“shameful or morbid interest in sex”)(based on COMMUNITY std); 2) the material must be PATENTLY offensive (based on COMMUNITY std); AND 3) the material LACKS serious redeeming artistic, literary, poltical OR scientific value (based on NATIONAL std) NOTE: The gov’t MAY use zoning ordinances to regulate the number/location of adult bookstores/movie theaters CHILD PORN (i.e. children in the production of the material) may be COMPLETELY banned, even if it’s NOT obscene The gov’t CAN’T punish the PRIVATE possession of obscene materials; BUT the gov’t CAN punish the private possession of CHILD PORN The gov’t may seize the assets of businesses CONVICTED of violating obscentity laws PROFANE/INDECENT speech is generally PROTECTED by the 1st Am; EXCEPT… on free, over-the-air broadcast media (TV/radio); AND in schools

Question 14

May the gov’t restrict speech by gov’t EMPLOYEES?

Answer 14

YES! Speech by gov’t emps on the job in the performance of their duties is NOT protected by the 1st Am

Question 15

May the gov’t impose liability for TRUTHFUL reporting of LEGALLY obtained gov’t information?

Answer 15

NO! A state may NOT create liability for the TRUTHFUL reporting of information that was LEGALLY obtained from the gov’t records (e.g. a rape victim’s identity obtained lawfully by a reporter)

Question 16

Can the media be held liable for broadcasting ILLEGALLY obtained information?

Answer 16

NO, SO LONG AS… (i) the media did not PARTICIPATE in the illegality; AND (ii) it involves a matter of public importance

Question 17

What is the ONLY instance where the public has a 1st Am right to attend a gov’t proceeding?

Answer 17

Criminal trials and pre-trial proceedings: This right can ONLY be restricted by sanction that is NARROWLY TAILORED to further an interest of the HIGHEST order (e.g. to protect children who are victims of sex offenses) Otherwise, the gov’t MAY restrict its own dissimination of information

Question 18

What is the std for regulating speech in public OR designated public forums?

Answer 18

Public forums = gov’t properties that the gov’t is constutionally req’dto make available for speech Designated public forums = gov’t properties that the gov’t could close off to speech, but chooses VOLUNTARILY to open to speech ————- Std = Gov’t can pass “time, place or manner” regulations, IF they… (i) are content-neutral (subject matter OR viewpt); If NOT content neutral, reg must meet STRICT SCRUTINY (ii) are narrowly tailored to serve an IMPORTANT gov’t interest; AND Narrow tailoring does NOT mean that it has to be least restrictive alternative Permit fee reqs for parades/demonstrations ARE unconst if city officials have DISCRETION in setting the amt of the fee (iii) leave open an alternative channel of communication

Question 19

What is the std for regulating speech in ltd public OR non-public forums?

Answer 19

Ltd public forums = gov’t properties that are ltd to certain groupsORdedicated to discussion of only some subjects Non-public forums = gov’t properties that the gov’t can constitutionally close off to speech; e.gs. include… Military bases Areas outside prisons Public schools Sidewalks in front of POST OFFICE Airports (but can’t prohibit distribution of literature) ————- Std = Gov’t CAN regulate speech to reserve the forum for its intended use, BUT regs must be… (i) viewpt neutral (don’t have to be subject matter neutral!); AND (ii) reasonably related to a legitimate gov’t purpose (rational basis)

Question 20

What is the std for regulating speech in private forums?

Answer 20

There is NO 1st Am right of access to private property for speech purposes E.g., a shopping mall

Question 21

What is the scruitiny std for freedom of association?

Answer 21

Laws that PROHIBIT or PUNISH group membership must meet STRICT SCRUTINY Laws that require DISCLOSURE of group membership where such disclosure would chill association MUST meet strict scrutiny

Question 22

What 3 requirements must be met in order to punish based on group membership?

Answer 22

Assuming strict scrutiny is met, to punish membership in a group it must be proven that the person… (i) is ACTIVELY affiliated w/ the group; (ii) has KNOWLEDGE of the group’s illegal activities; AND (iii) has SPECIFIC INTENT of furthering those illegal activities or objectives

Question 23

Does freedom of association protect the private right to discriminate?

Answer 23

NO! EXCEPTIONS: (i) “Intimate association” (e.g. a small dinner party) (ii) where discrimination is integral to the expressive activities of the group (e.g. excluding gay kids from the Boy Scouts)

Question 24

Does freedom of association protect the private right to discriminate?

Answer 24

NO! EXCEPTIONS: (i) “Intimate association” (e.g. a small dinner party) (ii) where discrimination is integral to the expressive activities of the group (e.g. excluding gay kids from the Boy Scouts; KKK excluding blacks)

Question 25

What is the Free Exercise Cl?

Answer 25

Prohibits gov’t from punishing someone on the basis of her religious beliefs The gov’t may NOT deny benefits to individuals who quit their jobs for religious reasons NOTE: the Free Exercise Cl CANNOT be used to challenge NEUTRAL laws of general applicablity

Question 26

When is a law valid under the Establishment Cl?

Answer 26

Lemon Test: Gov’t action is valid under the Est. Cl, IF it… “S-E-X” (i) has a SECULAR purpose (ii) the primary EFFECT must be NEITHER to advance nor prohibit religion the gov’t cannot discriminate AGAINST or AMONG religions (iii) there must not be EXCESSIVE gov’t entaglement w/ religion Otherwise it HAS to meet STRICT SCRUTINY E.gs.. Gov’t sponsored religious activity in public schools is unconst Religious student and community groups MUST have the same access to school facilities as non-religious groups School prayer (even if voluntary or silent) is unconst The gov’t CAN give assistance to parochial schools, SO LONG AS it is NOT used for religious instruction (e.g. provide parents w/ vouchers, which they can use in parochial schools)

Question 27

What is the framework for analyzing an equal protection issue?

Answer 27

Equal protection is implicated whenever the gov’t draws DISTINCTIONS AMONG PPL 3-part framework/analysis… 1) What is the CLASSIFICATION? Classification is determinedeither (i) facially; OR (ii) discrimininatory impact AND purpose 2) What level of SCRUTINY should be applied? 3) Does the law MEET the req’d level of scrutiny?

Question 28

Whichclassifications must meet strict scrutiny under equal protection?

Answer 28

Classifications implicating… 1) Race Numerical set-asides require CLEAR proof of past discrimination Race can be a “factor” in HIGHER edu admissions 2) Alienage/national origin by STATE gov’ts NOTE: certain privileges may be reserved JUST for ciztizens (voting; serving on a jury; being a police officer; public school teacher; probation officer; BUT NOT notary publics) When CONGRESS discriminates against aliens, it need only meet RATIONAL basis 3) Travel (BUT not int’l travel) 4) Voting

Question 29

Whichclassifications must meet intermediate scrutiny under equal protection?

Answer 29

Classifications implicating… 1) Gender Classifications BENEFITTING women: (i)based on ROLE stereotypes will NOT be allowed; BUT (ii) designed to REMEDY past discrimination in opportunity WILL be allowed 2) Illegitimacy (non-marital children) Laws that deny benefits to all non-marital children, BUT grant such benefits to all marital children are unconst 3) Undocumented alien children

Question 30

Whichclassifications must meet rational basis under equal protection?

Answer 30

Classifications implicating all other classifications not subject to heightened scrutiny, like… 1) Age discrimination 2) Disability discrimination(rational basis w/ bite) 3) Wealth discrimination 4) Gov’t economic regulations 5) Sexual orientation discrimination (rational basis w/ bite)

Question 31

What 3 ways canPOTUS exercise his foreign policy pwr?

Answer 31

1) Treaties = agmts b/t the US and a foreign country They are NEGOTIATED by POTUS, but RATIFIED by the Senate State laws that conflict w/ treaties are INVALID If treaty conflicts w/ a fed statute, the one adopted LAST IN TIME cntrls (over the earlier one) If treaty conflicts w/ the US Const., the treaty is INVALID 2) Executive agmts = agmt b/t the US and a foreign country that’s effective when signed by POTUS (ALONE) and the head of the foriegn gov’t Executive agmts can be used for any purpose (anything that can be done w/ a treaty) Execuitive agmts prevail over conflicting state laws, BUT NOT conflicting federal laws OR the US Const 3) Commander-in-Chief pwrs = POTUS has BROAD pwrs as CIC to use American troops in foreign countries NOTE: this is ALSO a political question that WON’T be heard by Art. III cts

Question 32

What is the appointment process for “officers” and “inferior officers”?

Answer 32

1) “Officers”: are appointed by POTUS w/ Senate approval 2) “Inferior officers”: Congress MAY vest appointment in (i) POTUS; (ii) heads of Depts; OR (iii) lower fed cts NOTE: An “officer” has firing pwr, whereas “inferior officers” DON’T

Question 33

What is the appointment process for ambassadors?

Answer 33

Requires appointment by POTUS and approval by SENATE

Question 34

What is the appointment process for federal judges?

Answer 34

Requires appointment by POTUS and approval by SENATE

Question 35

What pwr does POTUS have to remove executive branch officials?

Answer 35

POTUS may fire ANY executive branch officer, UNLESS that pwr is ltd by Congress Congress can ltd pwr IF… It’s an office where independence from the President is desirable; AND It’s not a PROHIBITION on removal (Congress can only ltd to where there is “good cause shown” for removal)

Question 36

What federal officers can be impeached, and for what acts?

Answer 36

1) Federal officers = POTUS VPOTUS Federal judges Officers of the US 2) Impeachable acts = Treason Bribery High crimes/misdemeanors

Question 37

What doesimpeachment and conviction req?

Answer 37

Impeachment requires a MAJORITY vote by the House of Reps NOTE: impeachment ONLY doesn’t remove a person from office Conviction requires 2/3rds MAJORITY vote by the Senate

Question 38

What is the scope of POTUS’s immunity from suit?

Answer 38

POTUS has ABSOLUTE immunity to CIVIL suits for MONEY damages for actions WHILE in office NOTE: POTUS does NOT have immunity for actions that occured PRIOR to taking office

Question 39

What is the scope of executive privilege?

Answer 39

POTUS has executive privilege for presidential papers and conversations, BUT such privilege MUST YIELD to other important gov’t interests (e.g. a criminal trial)

Question 40

What is the scope of POTUS’s pardon pwr?

Answer 40

POTUS has the pwr to pardon anyone accued or convicted of FEDERAL (not state) CRIMES EXCEPTION: POTUS may not pardon a person who has been impeached by the House (can NEVER be pardoned) This pwr does NOT apply to CIVIL liability

Question 41

P/t the “cases and controversies” requirement from Art. III, what are the 4 requirements for justicibility?

Answer 41

1) Standing = whether the π is the proper party to bring the matter to a fed ct 2) Ripeness = whether a fed ct may grant pre-enforcement review of a law 3) Mootness = whether the case is a “live” controversy by having a continuing injury 4) Political Question Doctrine = whether the fed ct should defer to another branch of the fed gov’t

Question 42

What are the 4 req’s for a π to have standing?

Answer 42

1) Injury: the π must allege and prove that she HAS been injured or IMMINENTLY will be injured Injury is NOT mere ideological objection to a law (you need PERSONAL injury) π’s seeking injunctive or declaratory relief must show likelihood of future harm 2) Causation & redressibility: π must allege and prove that the ∆ CAUSED the injury so that a favorable ct decn is likely to REMEDY the harm If ct’s ruling would have no effect, then it’d be an advisory op (NOT ALLOWED) 3) NO 3d party standing: π CANNOT assert claims of 3d partys not before the ct EXCEPTIONS: 3d party standing is allowed IF… there is a CLOSE relationship b/t the π and the injured 3d party (e.g. dr-patient relationship; custodial parents; BUT NOT non-custodial parent) the injured party is unlikely to ASSERT THEIR OWN rights [e.g. if jurors are subject to systematic discrimination, they are unlikely to bring a claim as they don’t have an incentive to serve) it’s an ORGANIZATION suing on behalf of its members, IF (1) members would have standing to sue; (2) interests are germane to the org’s purpose; AND (3) neither the claim nor relief req’s participation of individual memeber 4) NO generalized grievances: the π must not be suing solely “as a CITIZEN” or a TAX PAYER interested in having the gov’t follow/not follow the law OR spend tax money in a certain way NOTE: if the gov’t law actually targets a specific person, then he could sue EXCEPTION #1: taxpayers DO have standing to challenge gov’t expenditures p/t federal statutes as violating the Establishment Cl (i.e. sep of church and state) EXCEPTION #2: a person has standing as a citizen to allege that a federal action violates the 10th Am by interfering w/ pwrs reserved to the state (as long as the person can show injury and redressability)

Question 43

What does ripeness require?

Answer 43

Rule: π is NOT entitled to review of a statute or regulation before its enforcement AGAINST the π EXCEPTION: Pre-enforcement review IS OK IF: π will suffer immediate hardship, AND Issues on record are fit for judicial review (i.e. the record is suffiicently developed)

Question 44

What ismootness?

Answer 44

Mootness = events after filing of suit end π’s injury; NO good b/c cases require a live controversy 3 EXCEPTIONS where the case is will NOT be dismissed… 1) the wrong is capable of repetition BUT avoiding review b/c of it’s ltd time duration (e.g. an abortion claim as π will likely NOT be preg at time of trial) 2) the wrong is s/t voluntary cessation, but ∆ can freely resume (e.g. emp who gives a discrim test can easily stop/start whenever) 3) for class action suits: mootness of named π does NOT moot action, if injury still exits for AT LEAST one other class member

Question 45

What isthe Political Question Doctrine?

Answer 45

Refers to const violations that the fed cts WILL NOT adjudicate (as it would be better left to another branch of gov’t) Types of cases dismissed as non-justiciable political questions… 1) Any type of case implicating the Guarantee Cl (i.e. the US will g’tee to each state a republican form of gov’t) 2) Challenges to the President’s conduct of foreign policy 3) Challenges to the impeachment/removal process 4) Challenges to PARTISAN gerrymandering

Question 46

What is the rule re: mandatory SCOTUS review?

Answer 46

General rule: All appeals from state courts and federal courts of appeals come to SCOTUS on writ of certiorari EXCEPTIONS (i.e. mandatory review): 1) Appeals from 3-judge federal district courts 2) Suits b/t states (original/exclusive jx) NOTE: By statute, Congress can change the SCOTUS’s appellate jurisdiction, but NOT original jurisdiction

Question 47

What 2 reqs must be satisfied before SCOTUS can hear cases?

Answer 47

1) Final judgment: SCOTUS may hear ONLY after there has been a final judgment of the (i) HIGHEST state ct, (ii) a US Ct of Appeals; OR (iii) a 3-judge panel from fed dist ct 2) NO independent st law ground: SCOTUS may hear a case ONLY if there is NO independent/adequate state law ground for the decn If a state ct decn rests on 2 grounds (1 federal; 1 state), and SCOTUSs reversal won’t change the result in the case, then SCOTUS can’t hear

Question 48

Can federal cts OR state cts hear suits against state gov’ts?

Answer 48

NO! Fed cts (and state cts) may NOT hear suits against state gov’ts Based on SOVEREIGN IMMUNITY under the 11th Am., which bars suits against states in fed cts, fed agencies OR state cts (even on federal claims) NOTE: this bar does NOT apply to (i) local/city gov’ts; OR (ii) state officers (BUT state officers may NOT be sued for money damages to be paid by the st) EXCEPTIONS (where a state may be sued)… 1) Waiver: a state may and MUST expressly consent to be sued 2) P/t§5 of 14th Am (ONLY): States may be sued p/t fed laws adopted under §5 of the 14th Am. (authorizes Congress to adopt laws to enforce the 14th Am); Congress cannot authorize suits under ANY OTHER const. prvn 3) BK proceedings: the 11th Am does NOT apply to federal laws excerized p/t Congress’ bankruptcy pwrs (i.e. does not bar actions of the US BK cts)

Question 49

When must a fed ct abstain from an action?

Answer 49

Fed cts may NOT enjoin PENDING st ct proceedings when claim is premised on unsettled issue of st law

Question 50

What are the 5 main categories of congressional pwr?

Answer 50

1) Taxing/spending pwr: Congress may tax/spend for the “general welare” (this is NOT the pwr to promote the general welfare, sans taxing) 2) Commerce pwr: can regulate commerce (i) w/ foreign nations, (ii) indian tribes; AND (iii) among the states; Congress may regulate… the channels of interstate commerce (e.g., highways, waterways, the Internet) the instrumentalities of interstate commerce (i.e. persons or things in interstate commerce, like trucks, planes or phones) economicINTRAstateactivities that have a substantial (cumulative) affect on interstate commerce (NOTE: cumulative impact cannot be based on NON-economic activity) non-economic INTRAstate activities where Congress can FACTUALLY SHOW a subtstantial economic effect on interstate commerce 3) §5 of 14Am 4)Ltd police pwrs = re: “M-I-L-D” categories ONLY Military Indian reservations Lands (federal) District of Columbia (D.C.) 5) Necessary & Proper Cl: Congress can adopt all laws that are “necessary and proper” to exercise its EXPRESS/IMPLIED authority (as per above)

Question 51

Can Congress compel state regulatory or legislative action?

Answer 51

NO! Under the 10th Am (reserving to states pwrs that are not granted to the US), Congress CANNOT compel state regulatory or legislative action, BUT… Congress CAN induce state gov’t action by putting strings on grants(p/t Spending pwr), SO LONG AS the conditions are EXPRESSLY stated and RELATE to the purpose of the spending program Congress may prohibit HARMFUL commercial activity by state gov’ts (e.g. state’s can’t release personal information of patients)

Question 52

What can Congress delegate legislative pwr (to an ind. agency for e.g.)?

Answer 52

ALMOST ANYTHING!(as long there is an intelligible principle) EXAM TIP: the non-delegation answer is almost ALWAYS wrong

Question 53

When are legislative vetos and line item vetos allowed?

Answer 53

NEVER! They are unconst. Legislative veto: For Congress to act, there MUST be bicameralism (passage by both houses) AND presentment (veto/non-veto by POTUS) Line-item veto: POTUS must sign or veto the bill in ITS ENTIRETY; NOT allowed to strike certain provisions

Question 54

Is Congress allowed to delegate Executive pwr to itself?

Answer 54

NO! Congress can GIVE pwr (delegation to agencies), BUT CAN NEVER take away pwr from another branch

Question 55

What is preemption?

Answer 55

The Supremacy Cl states that the Const AND the laws/treaties made p/t it are the SUPREME LAW OF THE LAND Bottom line: valid federal law/treaties OVERRIDES (preempts) inconsistent state law A state law that has a HIGHER std than the federal law is OK as you can comply with BOTH

Question 56

What are 3 key ways in which preemption can operate to override an inconsistent state law?

Answer 56

1) Express preemption: When Congress has authority to act, it can state that its pwr is EXCLUSIVE in a field; all state/local laws in that area are preempted 2) Implied preemption: nws silence in the statute, state/local laws can be preempted IF… it is impossible for someone to SIMULTANEOUSLY comply w/ both fed and state laws NOTE: general rule is that states can grant their citizens GREATER PROTECTIONS(i.e. more strict), UNLESS Congress intended otherwise the state law impedes the achievement of a federal OBJECTIVE (i.e. “field preemption”) Congress evidences a clear INTENT to preempt state law (e.g. fed immigration law) 3) Intergovernmental immunity: States may not tax/regulate the fed gov’t for a federal activity

Question 57

What is the dormant commerce cl?

Answer 57

A/k/a = Negative implications of the commerce cl It’s the principal that state/local laws are unconstitutional IFthey place an UNDUE burden on interstate commerce

Question 58

What is the privileges and immunities cl of Art. IV?

Answer 58

No state of municipality may deny CITIZENS OF OTHER STATES the privileges and immunities it affords ITS OWN CITIZENS w/o a substantial justification NOTE: corporations and aliens CANNOT sue under P&I of Art. IV (CITIZENS only) E.g. can regulate that police officers have to live in state

Question 59

What is the privileges and immunities cl of the 14th Am?

Answer 59

Preserves a person’s RIGHT TO TRAVEL from one state to another

Question 60

What is the proper analysis if a state/local law does NOT discriminate against out-of-staters?

Answer 60

FIRST: the Privileges and Immunities Cl of Art. IV DOES NOT APPLY (b/c there is NO discrimination) SECOND: If the law burdens interstate commerce, it violates the Dormant Commerce Cl IF its BURDEN on interstate commerce outweighs the BENEFITS of the law

Question 61

What is the proper analysis if a state/local law DOES discriminate against out-of-staters?

Answer 61

FIRST: if the law discriminates vs. out-of-staters w/ regard to important economic activities(e.g. earning a wage) OR civil liberties, the law violates the P&I Cl of Art. IV, UNLESS it is NECESSARY to achieve an important gov’t purpose SECOND: If the law discriminatory law burdens interstate commerce, it violates the Dormant Commerce Cl UNLESSit is (i) NECESSARY to achieve an important gov’t purpose; AND (ii) the gov’t has shown that there is NO LESS discriminatory alternative TWO EXCEPTIONS where law would be upheld NWS: If Congress approves the law then it’s OK The state is a market participant (where the state/local gov’t CAN prefer its own citizens in receiving benefits form gov’t programs OR dealing w/ gov’t owned businesses)

Question 62

When can a state tax interstate commerce?

Answer 62

A state may ONLY tax activities IF there is a subtl nexus b/t the product or activtity to be taxed AND the state States may NOT use their tax systems to help in-state businesses (e.g. a tax credit IF purchase ethonol from an in-state business) State taxation of interstate business MUST be fairly apportioned

Question 63

What is the requirement of Full Faith and Credit?

Answer 63

Cts in one state MUST give “full faith and credit”(that is they MUST ENFORCE all jdmts of cts in another state), SO LONG AS… 1) the ct that rendered or issued the jdmt had pjx AND smjx; 2) the jdmt was on the merits; AND 3) the jdmt was final

Question 64

What is the State Action Doctrine?

Answer 64

Represents principle that the Const. applies ONLY to gov’t (“state”) action and NOT private conduct, UNLESS Congress is regulating private behavior p/t… 1) the 13th Am (prohibiting slavery and involuntary servitude): Congress can prohibit private race discrimination and has broad pwrs to adopt laws to enforce this prvn NOTE: only slavery violates the 13th Am DIRECTLY; private discrimination can violate LAWS passed p/t the 13th Am 2) the Commerce Cl: Can can apply Const. norms to private conduct if it affects interestate commerce (e.g. CRA of 1964) NOTE: Congress CANNOT use §5 of the 14th Am to regulate PRIVATE behavior; it can only regulate state/local gov’ts

Question 65

What are 2 instances where private conduct can be considered “state action”?

Answer 65

1) Public Function exception: If a private entity is performing a task TRADITIONALLY, EXCLUSIVELY done by the gov’t (e.g. a company town ran by a private operator; running elections) 2) Entanglement exception: The Const. applies if the gov’t affirmatively (i) authorizes; (ii) encourages; OR (iii) facilitatesunconst. activity; NOTE: there needs to be SIGNIFICANT involvement (e.g. a ONE time gift from the gov’t is NOT signficiant state action); needs to be CONTINUOUS involvement VERY inconsistent doctrine, so KEY e.gs = cts cannot enforce racially restrictive cov’ts there IS state action when the govt leases premises to a restaurant that racially discriminates there IS state action when a state provided free books to private schools that racially discriminate there ISstate action when a private entity regulates interscholastic sports w/in a state there is NO state action when the NCAA orders suspension of a basketball coach at a state university there is NO state action when a private school that is over 99% funded by the govt fires a teacher b/c of her speech there is NO state action when a private club w/ a liquor license from the state racially discriminates

Question 66

Which BOR prvns are NOT “incorporated” (i.e. they DON’T apply to the states)?

Answer 66

1) 3d Am right NOT to have soldiers quartered in a persons home 2) 5th Am right to a grand jury indictment in CRIMINAL cases 3) 7th Am right to jury trial in CIVIL cases 4) 8th Am right against excessive fines ALL OTHER prvns of the BOR are incorporated and apply to the states via the 14th Am.

Question 67

What are the 3 levels of scrutiny re: individual liberties/equal protection?

Answer 67

1) Rational basis: a law is upheld IF it is RATIONALLY related to a LEGITIMATE gov’t purpose Burden of proof = on the π 2) Intermediate scrutiny: a law is upheld IF it is SUBSTANTIALLY related to an IMPORTANT gov’t purpose Burden of proof = on the gov’t 3) Strict scrutiny: a law is upheld IF it is NECESSARY to achieve a COMPELLING gov’t purpose Burden of proof = on the gov’t

Question 68

What is procedural due process?

Answer 68

The procedures that a gov’t MUST FOLLOW in order to take away someone’s life, liberty or property

Question 69

When does a “deprivation” liberty or property occur?

Answer 69

Deprivation of liberty: occurs if there is the loss of a significant freedom provided by the Const or a statute Deprivation of property: occurs if a person has an ENTITLEMENT (a reasonable expectation to the continued receipt of a benefit) and that entitlement is not fulfilled

Question 70

Is gov’t negligence sufficient to deprive a person of due process?

Answer 70

NO! Generally, there must be INTENTIONAL gov’t action; or at least RECKLESS ACTION for liability to exist NOTE: in emergency situations, the gov’t is liable under DP ONLY IF the conduct “shocks the conscience”

Question 71

Is the gov’t FAILURE to protect people from private harm a denial of due process?

Answer 71

NO! Generally, the gov’ts failure to protect ppl from PRIVATELY inflicted harms does NOT deny due process

Question 72

(Only) If there HAS been a deprivation (of liberty/property), how can we tell if in-place procedures are sufficient?

Answer 72

3-part balancing test: 1) The IMPORTANCE of the interest to the individual Greater importance = more procedural protection needed 2) The ability of ADDITIONAL procedures to increase the accuracy of the fact-finding Will more procedures reduce erroneous deprivation? 3) The gov’ts interest in EFFICENCY and SAVING $$ EXAMPLES w/ adequate process Welfare benefits (notice; hearing) Termination of parental custody rights (notice; hearing) Non-emergency institutionalization (notice; hearing) Social Security disability benefits termination (post-termination hearing) Reptuational harm (NOT A LOSS of liberty) Prisoners liberty interest (OFTEN not a loss of liberty) Punitive damage awards (jury instruction; judicial review) Non-citizen held as enemy combatant (ability to challenge continued detention) US citizens facing charges abroad by US military (Habeas Corpus) Actual bias in a ct proceeding (recusal by the judge is necessary)

Question 73

What is substantive due process?

Answer 73

Asks whether the gov’t has an adequate reason for taking away a person’s life, liberty, or property NOW, analysis is used to protect (i) ECONOMIC liberties;(ii) safeguarding PROPERTY; AND privacy (fundamental rights)

Question 74

What is the basis for evaluating laws that affect economic rights (p/t substantive due process)?

Answer 74

Only a RATIONAL BASIS test is used for laws affecting economic rights

Question 75

What is the standard req’d p/t the Takings Cl of the 5th Am?

Answer 75

The gov’t may take PRIVATE property for PUBLIC use but ONLY IF it provides JUST COMPENSATION or terminates the regulation Ask… FIRST: has there been a “TAKING”? Posessory taking = gov’t confiscation OR physical occupation of property Regulatory taking = gov’t regulation is a taking IF it leaves NO REASONABLE economically viable use of the property NOTE: Gov’t conditions on the development of property (exactions) must be justified by a benefit ROUGHLY proportional to the burden proposed A property owner may bring a takings challenege to regulations that ALREADY EXISTED at the time the property was acquired Temporarily denying an owner use of property is NOT a taking so long as the gov’ts action was reasonable SECOND: is it for PUBLIC USE? It’s a “public use” SO LONG AS the gov’t acts out of a reasonable belief that the taking will benefit the public THIRD: is JUST COMPENSATION paid? Measured in terms of loss to owner in reasonable MKT value terms (NOTE: the GAIN to the gov’t is IRRELEVANT)

Question 76

What is the Ks Cl of Art. I of the Const?

Answer 76

It says: no STATE shall impair the obligations of K Only applies to STATE/LOCAL interference w/ EXISTING Ks (never applies to fed gov’t) STATE/LOCAL gov’ts CAN interefere w/ existing PRIVATE Ks IF INTERMEDIATE SCRUTINY is met If the interference is substantial, then the law must be NARROWLY tailored to meet an important gov’t interest STATE/LOCAL gov’ts CAN interefere w/ existing GOV’T Ks IF STRICT SCRUTINY is met

Question 77

When can the gov’t adopt ex post facto laws?

Answer 77

Ex post facto law = one that punishes conduct that was LAWFUL when it was done Gov’t can create ex post facto laws in CIVIL CASES ONLY NEVER in CRIMINAL cases

Question 78

Which 8 fundamental rights (protected under substantive due process) are subject to strict scutiny?

Answer 78

The right to PRIVACY, specifically… 1) right to marry 2) right to procreate 3) right to custody of one’s child Can only be terminated if st proves a compelling interest like child abuse/neglect NOTE: a state CAN create an irrebuttable presumption that a married woman’s husband is the father of her child 4) right to keep family together Includes extended family BUT NOT students w/ no bio relationsh 5) right to cntrl raising children 6) right to purchase/use contraceptives 7) right to travel from state to state (BUT NOT int’l travel) NOTE: for voting purposes, 50 DAYS is the MAXIMUM allowable durational req 8) right to vote “One-person, one-vote” must be met for all state/local elections e.g. poll taxes are unconst.

Question 79

What is std for regulating abortions?

Answer 79

1) Prior to viability: states CANNOT prohibit abortions, but MAY regulate abortions AS LONG AS the regulation is not an UNDUE BURDEN on the ability to obtain an abortion 2) After viability: states MAY prohibit abortions UNLESS necessary to protect the woman’s life or health NOTE: the gov’t has NO DUTY to subsidize abortions or provide abortions in public hospitals Spousal consent and notification laws are unconst. Partential notice is OK as long as there is a judicial safety valve

Question 80

What are the 3 rights where the level of scrutiny is UNKNOWN?

Answer 80

1) Right to engage in private consensual homosexual activity 2) Right to refuse medical care Competent adults have the right to refuse medical care, EVEN IF it’s life-saving A state has a compelling interest in protecting the sancity of life (so may require CLEAR AND CONVICING evidence that person wants to terminate treatment) A state may prevent family members from terminating treatment NO const right to physician-assisted suicide 3) Right to possess firearms