Con Law

Question 1

Eleventh Amendment

Answer 1

• immunizes states from suits in federal court for money damages/equitable relief when state is defendant in an action brought by citizen of another state/country.
• bars suits in federal court against state officials for violating state law.
• bars suits against own state in federal court.
• the Supreme Court has also barred federal-law actions brought against a state government without the state’s consent in its own courts as a violation of sovereign immunity
• State MAY CONSENT to actions (e.g., state removing a case to federal court constitutes a waiver)
• BUT NOTE: Can sue a state official for an injunction on the state to stop or compel enforcement.
• ALSO - Cs may abrogate state immunity if clearly acting to enforce rights created by remedial provisions of 13th, 14th, 15th, and DOES SO EXPRESSLY.
• NOT APPLICABLE: Can sue local govts. US can be plaintiff to suit against states. Does not bar actions of bankruptcy court impacting state finances.

Question 2

Means to establish appellate jx at SCOTUS

Answer 2

• Certiorari - “rule of 4,” accepted only if 4 vote to accept.
• Direct appeal - only those from a decision on injunctive relief issues by special 3-judge panel (limited, brought under specific statutes like VRA)

Question 3

Adequate and independent state grounds

Answer 3

A final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court (or it would be an advisory opinion). The state-law grounds must fully resolve the matter (i.e., be adequate) and must not incorporate a federal standard by reference (i.e., be independent). If a state court chooses to rely on federal precedents, the court can avoid federal review by making a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance and did not compel the court’s judgment. When it is not clear whether the state court’s decision rests on state or federal law, the Supreme Court may hear the case, decide the federal issue, and remand to the state court for resolution of any question of state law.

Question 4

Standard

Answer 4

i) Injury in fact (CONCRETE and PARTICULARIZED) (concrete even when widely shared) (need not be physical or economic) (future but more than hypothetical or conjectural, must be ACTUAL or IMMINENT);
ii) Causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right) (FAIRLY TRACEABLE to challenged action); and
iii) Redressability (the relief requested must prevent or redress the injury).

In addition to the Article III requirements, the federal judiciary has also established a “prudential standing” requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute. Bender v. Williamsport Area School District, 475 U.S. 534 (1986). Meeting this requirement depends in large part on whether the plaintiff’s grievance comes within the “zone of interests” protected or regulated by the constitutional guarantee or statute under consideration.

Question 5

Taxpayer Standing

Answer 5

Only to challenge own tax liability or to challenge nondiscretionary governmental expenditures that violate the Establishment Clause.

Question 6

3rd party standing

Answer 6

• generally, no 3P standing.
• EXCEPTIONS:
  1. ) If 3P would experience difficulty or are unable to assert own rights.
  2. ) Special relationship between PL and 3P (e.g., employer asserting rights of employee)
  3. ) Pl suffers injury and injury adversely affects Pl’s relationship w/ 3P.

Question 7

Organizational standing

Answer 7

Org may bring action when it has suffered an injury, or on behalf of members IF (1) members would have standing on their own and (2) interests are germane to organization’s purpose.

Question 8

Parental Standing

Answer 8

Generally, a parent has standing to bring an action on behalf of the parent’s minor child. However, after a divorce, the right to bring such an action may be limited to only one of the child’s parents. Moreover, when the right to bring such an action is based on family-law rights that are in dispute, the federal courts should not entertain an action if prosecution of the lawsuit may have an adverse effect on the child.

Question 9

Proper Defendants, 1983 actions

Answer 9

Individual government employees at any level of government may be sued under section 1983 in their individual capacities for damages, declaratory or injunctive relief. This is permitted because a suit against a government employee in his individual capacity does not represent a suit against the government entity.

Question 10

Ripeness

Answer 10

Pl must have experienced a real injury, or face an imminent threat thereof.

Question 11

Mootness

Answer 11

Moot IF further legal proceedings would have no effect

EXCEPTIONS: Capable of petition but evading review (e.g., abortion, pregnancy); voluntary cessation by defendant; class actions

Question 12

Political Question Doctrine

Answer 12

PQ if –

1. ) Constitution assigns the decision making to another branch of the government, or
2. ) Matter is inherently one that courts cannot decide.

Example: Details of Congress’s impeachment procedures (constitutionally assigned to a branch other than the judiciary) and the President’s conduct of foreign affairs (not within judicial competence) are examples of political questions.

Compare: The political question doctrine does not bar courts from adjudicating the constitutionality of a federal statute directing that an American child born in Jerusalem is entitled to have Israel listed as her place of birth in her U.S. passport. The Court held that the Constitution did not commit the issue to another branch of government and resolving the case would involve examining “textual, structural, and historical evidence” concerning statutory and constitutional provisions, something within judicial competence.Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012).

Question 13

What is regulated by interstate commerce clause?

Answer 13

• Channels
• Instrumentalities
• Activities that substantially affect IC, provided it doesn’t infringe upon another constitutional right.

RULE: Construe BROADLY, but cannot mandate that individuals engage in commerce.

RULE, AGGREGATION: When rational basis for concluding that the “total incidence” of intrastate activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total. BUT, do not aggregate for noneconomic activities.

Question 14

Spending power

Answer 14

• LOOK FOR: “appropriation bill,” “authorization bill”
• RULE: Can spend for “general welfare,” not just to pursue other enumerated powers.
• CONDITIONING FEDERAL FUNDING: Permitted, but cannot impose unconstitutional conditions. And conditions MUST BE SET OUT UNAMBIGUOUSLY.

Question 15

Taxing Power

Answer 15

• TEST: A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production.
• The government has no burden to prove that the tax is necessary to any compelling governmental interest. Instead, the General Welfare Clause has been interpreted as permitting Congress to exercise its power to tax for any public purpose.
• UNIFORMITY: Federal taxes must be geographically uniform (not destroyed by differences in state law)

Question 16

Export Taxation Clause

Answer 16

Congress cannot tax goods exported to foreign countries (or on services/activities closely related to export process)

Question 17

Origination Clause

Answer 17

Article I, Section 7, Clause 1 provides that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Known as the Origination Clause, this provision is limited to “bills that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.”

Question 18

Congressional war powers

Answer 18

• Declare war
• raise and support armies
• provide and maintain navy
• make rules for governing and regulating land and naval forces
• provide for organizing of militia.
• establish tribunals for ENEMY SOLDIERS, ENEMY CIVILIANS, and CURRENT MEMBERS OF A.S. U.S. citizens captured and held as “enemy combatants” are entitled, as a matter of due process, to contest the factual basis of their detention before a neutral decision maker. all persons held in a territory over which the United States has sovereign control are entitled to habeas corpus (or similar) review of the basis for their detention, unless the privilege of seeking habeas corpus has been suspended.

Broad power in both war and peace time.

Question 19

Rights in military tribunals

Answer 19

U.S. citizens captured and held as “enemy combatants” are entitled, as a matter of due process, to contest the factual basis of their detention before a neutral decision maker. all persons held in a territory over which the United States has sovereign control are entitled to habeas corpus (or similar) review of the basis for their detention, unless the privilege of seeking habeas corpus has been suspended.

Question 20

National Guard

Answer 20

• under dual control of congress and state govts.
• Congress has power to call units to execute federal laws, suppress insurrections, and repel invasions.
• Congressional powers to control NG are not subject to approval or veto of governors.

Question 21

Investigation under the necessary & proper clause

Answer 21

• investigatory power of congress may extend to ANY MATTER w/in LEGITIMATE LEGISLATIVE SPHERE.

Question 22

Speech and debate clause

Answer 22

• Congress cannot be questioned w/r/t activities such as speech or debate. Effectively absolute immunity from judicial interference (but doesn’t foreclose investigation re: improper activities if it can be proven w/o the testimony)

This protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts. United States v. Brewster, 408 U.S. 501 (1972). This protection also does not apply to speeches made outside Congress, or the “re-publication” (i.e., repeating) of a defamatory statement originally made in Congress.

Question 23

Failure to appear by a witness before Congress

Answer 23

May be cited for contempt, but entitled to certain rights (procedural due process/presence of counsel) and privilege against self-incrimination.

Question 24

Federal Property Clause of Article IV

Answer 24

• gives Cs the power to dispose of and makes rules re: respecting the territory or other property belonging to the US.

Question 25

Postal Power

Answer 25

Congress has exclusive power to establish post offices and post roads, may impose REASONABLE RESTRICTIONS on the use of mail.

Question 26

Congressional power over aliens

Answer 26

plenary power over aliens.

If in US, aliens have 5th Amendment DP protections and may only be removed after NOTICE AND REMOVAL HEARING.

Question 27

Naturalization/right of citizenship

Answer 27

• Congress has exclusive authority over naturalization.

- If citizen, citizenship cannot be deprived unless obtained by fraud/in bad faith.

Question 28

Power over DC

Answer 28

Article I, Section 8, Clause 17 provides that Congress has the power to “exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States.” Under this provision, which is known as the “Enclave Clause,” Congress has supreme authority over Washington, D.C., and may legislate freely with regard to D.C. law.

Question 29

Elections Clause

Answer 29

“The times, places and manner of holding elections for Senators and Representatives shall be prescribed by each state legislature, but Congress may…make or alter such regulations.” The Elections Clause explicitly empowers Congress to override state laws concerning federal elections.

Question 30

Necessary and Proper Clause

Answer 30

Congress is given the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government. The Necessary and Proper Clause is not an independent source of power, but it permits Congress’s otherwise designated authority to be exercised fully. This clause permits Congress to enact legislation to execute a treaty.

Question 31

Thirteenth Amendment

Answer 31

Congress has the power to adopt legislation rationally related to eliminating racial discrimination, as it is among the “badges or incidents” of slavery. This power has been broadly interpreted to allow Congress to regulate both private and government action, including racial discrimination by private housing sellers, private schools, and private employers.

Question 32

Fourteenth Amendment—Equal Protection and Due Process; Congress’s Power

Answer 32

• Allows Congress to create rules for enforcing 14th Amendment rules recognized by SCOTUS - “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.

Question 33

Fifteenth Amendment

Answer 33

prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted. In enacting provisions based on the Fifteenth Amendment, Congress cannot treat states differently and thereby impinge on their “equal sovereignty” unless the different treatment is rationally justified by current circumstances.

Question 34

Presidential Pardon Power

Answer 34

APPLIES ONLY TO FEDERAL OFFENSES.

The pardon or reprieve may be made subject to conditions and may take or encompass various lesser acts, such as remission of fines, penalties, and forfeitures or commutation of sentences.

Question 35

Veto Power

Answer 35

• 10 days to act on legislation
• May veto, then overcome w/ 2/3 in each house.

The President may not exercise a “line item” veto, refusing part of a bill and approving the rest, because it violates the Presentment Clause.

If Congress is still in session at the end of the 10-day period, the bill becomes law without the President’s signature. If Congress has adjourned during that time, however, the bill does not become law, because the President could not have returned it to its originating house. The President’s failure to act on a bill in this situation is known as the “pocket veto” and cannot be overridden.

Question 36

Appointment Power

Answer 36

• OFFICERS OF THE US - w/ the advice and consent of the senate.
• INFERIOR OFFICERS - Congress may delegate this to the president, heads of exec. departments, or courts, alone w/o advice and consent of senate.
• MAY NOT itself appoint members of a body w/ administrative or enforcement powers (those must be appointed by pres.)

Question 37

Removal Powers

Answer 37

President generally may remove W/O CAUSE or senate approval.

• Cs may not shield appointees from removal by imposing multi-tiered system in which good cause is required at each level.

Federal judges, however, are protected under Article III, Section 1, which provides that they may “hold their offices during good behavior”; they may be removed only by impeachment.

Question 38

Scope of presidential authority

Answer 38

i) With the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid;
ii) When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government; and
iii) When Congress has spoken to the contrary, presidential authority is “at its lowest ebb,” and the action is likely invalid.

Question 39

Take Care Clause

Answer 39

Article II, Section 3 imposes on the President the duty to “take care that the laws be faithfully executed.” Known as the “Take Care Clause,” this section ensures that the President will enforce laws, despite disagreeing with them.

Question 40

Presidential military actions w/o congress

Answer 40

The President may take military action without a declaration of war in the case of actual hostilities against the United States. Congress may in turn limit the President’s military activities through exercise of its military appropriation (i.e., funding) power. The questions of whether and to what extent the President may deploy troops overseas without congressional approval is unsettled; presidents routinely do so, and Congress routinely asserts its authority to approve the deployment. The courts have generally left the question to the political branches.

Question 41

Treaty rules

Answer 41

• President negotiates, treaty is then ratified w/ 2/3 SENATE.
• CONFLICTS:
• • Constitution > treaty
• • Treaty = act of congress (most RECENT controls)
• • Treaty > state laws
• • Acts of congress, treaties > executive agreements > state laws

A non-self-executing treaty (one that requires legislation in order to implement its provisions) does not have the same force of law as an act of Congress until legislation is passed effectuating the treaty. In the absence of implementing legislation by Congress, the President does not have the authority to make a non-self-executing treaty binding on the states.

Question 42

Executive Agreements

Answer 42

• Pres. can enter into agreements w/ foreign nations that do not require the approval of 2/3 the senate.

Conflicting federal statutes and treaties > EAs, but EAs > state laws

Question 43

Impeachment

Answer 43

• House impeaches by majority vote, senate convicts by a 2/3 vote.

Question 44

Impoundment of funds

Answer 44

• If Congress explicitly mandates an allocation, distribution, or expenditure of funds, the President has no power to impound those funds
• But Pres may exercise discretion if the legislation so provides.
• NOTE: If Cs fails to mandate that the funds are to be allocated, distributed, or spent, then impoundment is not a separation of powers violation.

Question 45

Legislative Veto

Answer 45

It is unconstitutional for Congress to attempt a “legislative veto” of an executive action—that is, to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill.

Question 46

Nondelegation Doctrine

Answer 46

RULE: Congress must articulate an “intelligible principle” - now a cake walk.

Question 47

Reinstating right to bring legal action after judgment has become final

Answer 47

NO - violates separation of powers.

Similarly, Congress cannot prescribe rules of decision to the federal courts in cases pending before it. However, when Congress changes the law underlying a judgment awarding ongoing relief, that relief is no longer enforceable to the extent it is inconsistent with the new law.

Question 48

Immunities

Answer 48

• Judges - AI (for official acts including maliciously or in excess of authority, unless CLEAR ABSENCE of ALL jurisdiction)
• Prosecutors - AI
• Court officers w/ ministerial duties - QI

Question 49

Liability of state legislators

Answer 49

The Speech or Debate Clause does not apply to state legislators, but under the principles of federalism, state legislators are immune from liability for actions within the sphere of legitimate legislative activity

Question 50

Executive privilege

Answer 50

Executive privilege is a privilege with respect to the disclosure of confidential information by the executive branch to the judiciary or Congress. This privilege and the more narrow presidential privilege, which applies to communications made in the performance of a president’s responsibilities to shape policies and make decisions, have been recognized by the Supreme Court. The presidential privilege survives an individual president’s tenure, but this privilege is not absolute.

CRIMINAL: Presidential communications must be made available in a criminal case if the prosecution demonstrates a need for the information. A judge may examine the communications in camera to determine whether the communications fall within the privilege.

CIVIL: An executive branch decision to withhold production of information in civil proceedings will be given greater deference than in a criminal trial because the need for information is “weightier” in the latter case. In a civil case, the court may be required to consider the issue of separation of powers without first requiring the executive branch to assert executive privilege

STATE SECRET: Claims of privilege based on national security are generally accorded enhanced deference.

SUITS BEFORE OFFICE: The President has no immunity, however, from a civil action based on conduct alleged to have occurred before the President took office or completely unrelated to carrying out his job. Moreover, the President may be subject to such a suit even while in office.

ADVISORS: A senior presidential advisor (e.g., cabinet member) is not automatically entitled to enjoy derivatively the protection of absolute executive immunity. Although the Supreme Court has stated that such an advisor may be entitled to such protection when performing special functions that are vital to national security or foreign policy, the Court has also held that an Attorney General did not qualify for absolute immunity with respect to the authorization of a warrantless wiretap for national security purposes. The burden for establishing such immunity rests with the advisor

FED. OFFICIALS: A federal official, in performing a discretionary (as opposed to ministerial) act, is entitled to qualified immunity from liability for civil damages when the official’s conduct does not violate clearly established statutory and constitutional rights of which a reasonable person would have known. This is an objective standard; a plaintiff’s bare allegations of malice are insufficient to overcome this immunity.

Question 51

Fed. Immunity from State Actions

Answer 51

• REGULATION: No state regulation of feds unless Cs permits state regulation or regulation is NOT INCONSISTENT w/ existing federal policy.
• TAXATION: The federal government and its instrumentalities (such as a national bank chartered by the federal government) are immune from taxation by the states. States may, however, impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees). Note that imposing state sales tax on purchases made by the federal government is often unreasonably burdensome and, therefore, unconstitutional.

Question 52

Anticommandeering Doctrine

Answer 52

Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly.

There is no distinction between compelling a state to enact legislation and prohibiting a state from enacting new laws—in either case Congress is precluded from issuing direct orders to state legislatures.

ADDITIONALLY: While Congress, through the use of its taxing and spending powers, can encourage states to act in ways in which it cannot directly compel, Congressional encouragement may not exceed the point at which “pressure turns into compulsion.”

Question 53

Remedying constitutional violations - the judiciary

Answer 53

The federal judiciary has broad equitable powers in fashioning a remedy for a constitutional violation. For example, while a court may not directly impose a tax in order to fund a racial-discrimination remedy, it may order a local government with taxing authority to levy such a tax, and it may do so despite a state statutory limitation that would otherwise prevent such action.

Question 54

Fed. Taxation of States

Answer 54

Pursuant to the Supremacy Clause of Article VI, the federal government may tax a state but states have partial immunity from direct federal taxation that would unduly interfere with the performance of the states’ “sovereign functions of government.”

Question 55

Litigation Involving the United States and Its Officers

Answer 55

In suits between a state and the United States, the United States must consent before the state can file suit against it; conversely, the United States does not need to obtain consent from a state to file suit against that state. As between states, no consent is needed for one state to file suit against another state.

Suits against federal officers are limited, and generally prohibited, because such suits are considered to be brought against the United States if payment of the award will be made from the public treasury. However, if the federal officer acted outside the scope of his professional capacity, then a suit may be instituted against the officer individually.

Question 56

Dormant Commerce Clause

Answer 56

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not:

i) Discriminate against out-of-state commerce;
ii) Unduly burden interstate commerce; or
iii) Regulate extraterritorial (wholly out-of-state) activity.

Question 57

DCC: Discrimination

Answer 57

If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local government can establish that: i) An important local interest is being served; and ii) No other nondiscriminatory means are available to achieve that purpose. (The mere fact that the entire burden of a state’s regulation falls on out-of-state businesses is not sufficient to constitute discrimination against interstate commerce)

EXCEPTIONS -

1. ) Market Participant Exception, as buyer or seller (doesn’t apply to Privileges & Immunities Clause challenges)
2. ) Traditional government function exception (may then favor state and local entities)
3. ) Subsidies
4. ) Congressionally permitted discrimination

Question 58

DCC: Undue Burden

Answer 58

The courts will balance, case by case, the objective and purpose of the state law against the burden on interstate commerce and evaluate whether there are less restrictive alternatives. If the benefits of the state law are grossly outweighed by the burdens on interstate commerce, then even nondiscriminatory regulation may be struck down.

Question 59

Complete Auto Test

Answer 59

Applies when there is a state taxation of commerce.

TEST (arises under commerce clause):

1. ) SUBSTANTIAL NEXUS between activity being taxed and taxing state
2. ) FAIR APPORTIONMENT such that interstate commerce does not pay total taxes greater than local commerce by virtue of having to pay in more than one state. (BURDEN on taxpaying business to show unfair apportionment)
3. ) NONDISCRIMINATION (including in effect)
4. ) FAIR RELATIONSHIP to services provided by the taxing state.

Question 60

Challenges to state taxation of commerce

Answer 60

1. Commerce Clause (Complete Auto Test)
2. Comity Clause (e.g., an income tax that exempts local residents)
3. Due Process Clause of the 14th (income-based taxes on nonresidents that taxes income earned outside state’s borders)
4. EPC (if no RB)

Question 61

Ad Valorem Taxes

Answer 61

An ad valorem tax is based on the value of real or personal property and is often assessed at a particular time (e.g., tax day).

a state may not levy ad valorem taxes on goods in the course of transit

However, once the goods are stopped for a business purpose (i.e., obtain a “taxable situs”), they may be taxed.

RULE: A state may tax the “instrumentalities of commerce” (airplanes, railroad cars, etc.), provided that:

i) The instrumentality has a taxable situs within—or sufficient contacts with—the taxing state (i.e., it receives benefits or protection from the state); and
ii) The tax is fairly apportioned to the amount of time the instrumentality is in the state.

Question 62

Sales Tax

Answer 62

A sales tax imposed on the seller of goods is valid as long as the sale takes place within the state. Sales tax generally does not discriminate against interstate commerce as long as there is a substantial nexus between the taxpayer and the state, and the tax is properly apportioned.

Question 63

Use Tax

Answer 63

A use tax on goods purchased out of state but used within the taxing state is valid so long as the use tax rate is not higher than the sales tax rate on the same item. Even though a use tax does, on its face, seem to discriminate against out-of-state purchases, the rationale for its validity is that such a tax equalizes the tax on in-state and out-of-state goods.

Question 64

“Doing business” tax

Answer 64

Taxes levied against companies for the privilege of doing business in a state (made up of privilege, license, franchise, or occupation taxes) are valid as long as they pass the Complete Auto test.

Such a tax may be measured by a flat annual fee or by a graduated rate proportional to the amount of revenue derived from the taxing state. The burden of showing that a tax is unfairly apportioned is on the taxpayer.

Question 65

Taxes by states on foreign commerce

Answer 65

The Import-Export Clause of Article I, Section 10 prohibits the states, without the consent of Congress from imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods, except what is absolutely necessary for executing its inspection laws.

In addition, the Commerce Clause vests in Congress the power to regulate international commerce in which the United States is involved. In addition to meeting the same requirements as a tax on interstate commerce (see VII.B.1.a. “Complete Auto Test,” supra), a state tax on foreign commerce must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues.

Question 66

21st Amendment

Answer 66

The Twenty-First Amendment repealed prohibition and specifically gave states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state. However, this authority is narrowly confined. State regulations concerning alcoholic beverages are subject to the restrictions of the Dormant Commerce Clause, the First and Fourteenth Amendment.

Question 67

Express preemption

Answer 67

• When Const. makes the federal power exclusive or when Congress has enacted legislation that EXPLICITLY prohibits state regulation in the same area.
• Express preemption is to be narrowly construed.
• WATCH FOR: “Savings Clause” in fed. regs which allows state to keep regulating in certain areas.

Question 68

Implied Preemption

Answer 68

• EITHER
  1. ) Congress intended for federal law to OCCUPY THE FIELD (infer intent from “framework of regulation so pervasive that Congress left no room for states to supplement it or when there is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject”)

2. ) State law DIRECTLY CONFLICTS WITH FEDERAL LAW (e.g., by requiring conduct that is forbidden by federal law or making it impossible to comply w/ both)
3. ) State law INDIRECTLY CONFLICTS by creating an obstacle to or frustrating the accomplishment of that laws purpose.

Question 69

Full Faith and Credit Requirements

Answer 69

1. on the merits
2. final
3. valid (proper jx, or improper jx if jx was fully litigated)

Question 70

Traditional Govt. Actions by Private Parties, OR Significant State Involvement

Answer 70

State action CAN be found where private parties are carrying on activities TRADITIONALLY PERFORMED EXCLUSIVELY BY STATE (e.g., company town or primary elections).

SIG. STATE INVOLVEMENT: When “government is so pervasively entwined with the private entity that constitutional standards should apply to the private actor”, OR if the actions of a private party and the government are so intertwined that a mutual benefit results, such as if the parties are involved in a joint venture. Similarly, when the government creates a corporation by special law for the furtherance of governmental objectives and retains permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the government for the purposes of the First Amendment even if the enabling statute explicitly states that the corporation is a private entity.

States must act affirmatively to facilitate, encourage, or authorize the activity for it to be state action.

Highly regulated government-granted monopolies do not ordinarily constitute state action.

Question 71

Procedural Due Process Analysis

Answer 71

OVERALL:
1.) is the threatened interest a protected one?
2.) If so, what process is due?
(Applies in quasi-judicial or adjudicatory settings)

RULE FOR DETERMINING LEVEL OF PROCESS:

• -Balance–
  i) The private interest affected by the governmental action;

ii) The risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and
iii) The government’s interest, including the function involved and the burden (fiscal and administrative cost) of providing the additional process.

GENERAL REQs: Notice and a chance to be heard (for some interests, can have hearing after the deprivation)

• Right to a NEUTRAL DECISIONMAKER.
• A DP violation can only occur from INTENTIONAL GOVT CONDUCT, not merely negligence.
• LIBERTY INTERESTS: significant restraint on physical freedom, exercise of fundamental rights, or freedom of choice/action (commitment, parole revocation, loss of parental rights) (not injury to reputation unless loss of significant employment/associational rights)
• PROPERTY INTERESTS: Must be a “legitimate claim of entitlement” (e.g., govt-issued licenses, continued welfare/disability benefits, right to public education)

Question 72

Recusal

Answer 72

If direct, personal, substantial pecuniary interest in the case or serious objective risk of actual bias, MUST recuse.

Question 73

Right to continued public employment

Answer 73

• only a legitimate property interest if there is an employment K or clear understanding that employee may only be fired for cause. Can’t be at-will employment, unless govt gives assurances of continual employment or dismissal for only specified reasons.

Such entitlement to procedural due process can also result from statutory law, formal contract terms, or the actions of a supervisory person with authority to establish terms of employment.

Note, though, that even those employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution. Thus, an “at-will” governmental employee cannot be fired for having engaged in speech protected by the First Amendment. Board of Regents v. Roth, 408 U.S. 564 (1972). Similarly, discharge of an “at-will” governmental employee because of the employee’s political views or affiliations would violate the employee’s right to freedom of expression and association, unless it can be demonstrated that effective performance of the employee’s job requires certain political views or affiliations. Branti v. Finkel, 445 U.S. 507 (1980). To be entitled to a hearing, however, the employee must make a prima facie claim that she is being discharged for reasons that violate specific constitutional guarantees. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). A dismissal will be upheld if the government can prove that the employee would have been discharged in any event for reasons unrelated to any constitutionally protected activities.

Question 74

DP rights for enemy combatants

Answer 74

• meaningful opportunity to dispute facts of detention by a neutral decision maker
• procedure adapted to reduce burdens brought on by ongoing conflict.

Question 75

DP rights re: parental status

Answer 75

TERMINATION:
- Because termination of parental rights deprives parents of a fundamental right, the state must use clear and convincing evidence to support allegations of neglect.

PATERNITY SUIT: When a mother or child is initiating a paternity suit, due process requires proof by only a preponderance of evidence. In a paternity action initiated by the state, the state must pay for the necessary blood work used in determining paternity.

Question 76

DP re: forfeitures

Answer 76

Generally, the government is required to provide the owner with notice and a hearing prior to seizure of real property. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). However, the government does not need to provide notice prior to the seizure of personal property.

Question 77

DP re: public employment

Answer 77

A public employee who may be discharged only for cause has a property interest in his job and therefore is entitled to notice of termination and a pre-termination opportunity to respond. A formal hearing is not required, as long as there is pre-termination notice, an opportunity to respond to the decision maker, and a post-termination evidentiary hearing.

If there is a significant reason for immediately removing a “for-cause” employee from the job, a prompt post-suspension hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process.

Question 78

DP re: public education

Answer 78

ACADEMIC DISMISSAL: Student not entitled to hearing for dismissal from institution of HIGHER LEARNING. court refused to override academic decision unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment

DISCIPLINARY SUSPENSION: Student must be given oral or written notice of charges and explanation of evidence authorities have and opportunity to present side of story.

CORPORAL PUNISHMENT: NO notice or hearing.

Question 79

DP re: govt benefits

Answer 79

WELFARE BENEFITS: notice and hearing PRIOR to termination

DISABILITY: Prior notice but only POST-TERMINATION HEARING.

Question 80

Indigent Court Access

Answer 80

FEES: The government cannot deny an indigent person access to the court system because of his inability to pay the required court fees, if such imposition of fees acts to deny a fundamental right to the indigent. Due process requires such fees to be waived. Conversely, if the matter does not involve a fundamental right, no waiver is required.

COUNSEL: While the Sixth Amendment provides that an indigent defendant has a constitutional right to have counsel appointed in any criminal case, including a non-summary criminal contempt proceeding in which the defendant is sentenced to incarceration (United States v. Dixon, 509 U.S. 688 (1993)), there is no similar due process right to have counsel appointed when an indigent defendant is held in contempt in a civil proceeding and incarcerated, but procedures must be in place to ensure a fundamentally fair determination of any critical incarceration-related question (e.g., defendant’s ability to comply with order for which the defendant is held in contempt).

Question 81

SDP Strict Scrutiny

Answer 81

APPLIES IF FUNDAMENTAL RIGHT IS INVOLVED

The law must be the least restrictive means to achieve a compelling governmental interest.

1) Least restrictive means

For the law to be the least restrictive means to achieve the government’s interest, there cannot be a way to achieve the same interest that is less restrictive of the right at issue. A law will not fail simply because there are other methods of achieving the goal that are equally or more restrictive.

Under strict scrutiny, the law should be neither over-inclusive (reaching more people or conduct than is necessary) nor under-inclusive (not reaching all of the people or conduct intended).

2) Compelling interest

Although there is no precise definition of what is “compelling,” it is generally understood to be something that is necessary or crucial, such as national security or preserving public health or safety.

3) Strict in theory, fatal in fact

The strict scrutiny standard is very difficult to meet. The great majority of laws reviewed under strict scrutiny are struck down.

b. Burden of proof

The burden is on the government to prove that the law is necessary to achieve a compelling governmental interest.

Question 82

Rational basis review

Answer 82

a. Test

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny and generally results in the law being upheld.

b. Burden of proof

Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.

In court, the government’s stated interest in enacting the law need not be one that it offered when the law was passed. Any legitimate reason will suffice.

Question 83

Presumption of facts about an individual

Answer 83

The government cannot presume facts about an individual that will deprive that individual of certain benefits or rights. By doing so, the government creates an arbitrary classification that may violate due process as well as equal protection.

Question 84

Retroactive legislation review

Answer 84

The retroactive application of a statute does not in and of itself violate substantive due process. Consequently, a law that is applied retroactively must merely meet the rational basis test. United States v. Carlton, 512 U.S. 26 (1994) (retroactive application of estate tax law that resulted in denial of a deduction upheld). Similar treatment applies to a statutory change that is remedial in nature (i.e., affects a remedy but does not create or abolish a right). Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945) (lengthening of statute of limitations that permitted an otherwise time-barred lawsuit to be maintained upheld). Note, however, that the extension of a criminal statute of limitations may violate the prohibition on an ex post facto law (see §XVI.B. Ex Post Facto Laws, infra).

Question 85

Fundamental Rights, Travel

Answer 85

Rights to travel, vote, and to privacy (marriage, sexual relations, abortion, child rearing, the right of related people to live together)

TRAVEL: This includes the right to enter one state and leave another, to be treated as a welcome visitor, and, for those who wish to become permanent residents, the right to be treated equally to native-born citizens with respect to state benefits.

RESIDENCY REQS: Reasonable residency restrictions or waiting periods may be imposed on the receipt of some government benefits. However, durational residence requirements that impinge on the right of interstate travel by denying newcomers “basic necessities of life” are only permitted if the state can establish that they are necessary to serve a compelling state interest. In order to justify such a durational residency requirement, the state must do more than show that the policy saves money.

INTERNATIONAL TRAVEL: No fundamental right, RB.

Question 86

Right to Vote

Answer 86

The level of scrutiny to which a governmental restriction of this right is subject depends on the degree to which the restriction affects the exercise of this right; the more significant the impact, the greater the degree of scrutiny.

RES. REQUIREMENTS: A restriction on the right to participate in the political process of a governmental unit imposed upon those who reside within its borders is typically upheld as justified on a rational basis; nonresidents generally may be prohibited from voting. A person must be given the opportunity to prove residency before being denied the right to vote because of lack of residency. A person may be required to be a resident of a governmental unit (e.g., state, city) for a short period prior to an election in order to vote in that election (50 days has been upheld, a year or three months have been struck down)

PROPERTY OWNERSHIP: Not a valid ground, unless a special purpose entity such as water-storage districts.

POLL TAX: Not okay.

VOTER ID: A state may require that a citizen who votes in person present a government-issued photo ID. With regard to this neutral, nondiscriminatory requirement, the Supreme Court declined to apply a strict scrutiny standard.

FELONS: Pursuant to Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison.

WRITE-IN: A state may ban all write-in candidates in both primary and general elections, at least when the state provides reasonable means by which a candidate can get on the ballot.

Question 87

Fundamental rights, public office

Answer 87

There is no fundamental right to hold office through election or appointment, but all persons do have a constitutional right to be considered for office without the burden of invidious discrimination. Turner v. Fouche, 396 U.S. 346 (1970).

1) Property ownership

The ownership of property cannot be made a condition of holding public office. Turner v. Fouche, supra (appointment to local school board).

2) Filing fee

A candidate for elected public office generally may be required to pay a reasonable filing fee, but an exorbitant filing fee, such as one that imposes the entire cost of the election on the candidates, is unconstitutional. Moreover, alternative provisions must be made for a candidate who is unable to pay the fee.

3) Public support requirements

An independent candidate for elected public office can be required to obtain the signatures of voters on a petition in order to appear on the ballot, but such a requirement cannot deny independent candidates ballot access. Unless the requirement imposes such undue burdens on minority groups, a state can deny a candidate access to the general-election ballot if the candidate failed to receive a sufficient number of votes in the primary election.

4) Write-in candidates

A state may ban all write-in candidates in both primary and general elections, at least when the state provides other reasonable means by which a candidate can get on the ballot.

5) Candidate for other office

A state may prohibit a state office holder from becoming a candidate for another state office; the office holder must resign his current office in order to run for another office.

6) Replacement of elected official

A state may permit a political party to name a replacement for an elected public official from that party who dies or resigns while in office. The governor must call an election to fill a vacant congressional seat

Question 88

Right to Marry

Answer 88

The right to marry is fundamental. Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015) (same-sex couples); Loving v. Virginia, 388 U.S. 1 (1967) (interracial couples); Turner v. Safley, 482 U. S. 78 (1987) (prisoners); Zablocki v. Redhail, 434 U.S. 374 (1978) (fathers delinquent in child-support payments).

Question 89

Right to contraception

Answer 89

Married persons have the right to use contraceptives, Griswold v. Connecticut, 381 U.S. 479 (1965), as do unmarried persons, Eisenstadt v. Baird, 405 U.S. 438 (1972). A state may not limit the sale of contraceptives to dispensation only by pharmacists or only to individuals older than age 16. Carey v. Population Services International, 431 U.S. 678 (1977).

Question 90

Right to intimate sexual conduct

Answer 90

There is no legitimate state interest in making it a crime for fully consenting adults to engage in private sexual conduct—including homosexual conduct—that is not commercial in nature. Lawrence v. Texas, 539 U.S. 558 (2003). (NOTE: not necessarily a fundamental right)

Question 91

Abortion right

Answer 91

RULE: State cannot place an “undue burden” on access to abortion.

1) Pre-viability

An undue burden exists when the purpose or effect of a state law places substantial obstacles in the way of a woman’s right to seek an abortion before the fetus attains viability. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

The following requirements have been held not to impose an undue burden:

i) A requirement that only a licensed physician may perform an abortion;
ii) A requirement that the physician must provide the woman with truthful information about the nature of the abortion procedure, the associated health risks, and the probable gestational age of the fetus;
iii) A requirement that a woman must wait 24 hours after giving informed consent before the abortion is performed;
iv) A requirement that a minor obtain her parents’ consent, or if consent is not required, provide the parents with notice of the abortion. However, this consent requirement has been found to be an undue burden unless, at least for mature minors, the consent requirement can be judicially bypassed. Planned Parenthood Association of Kansas City Missouri Inc. v. Ashcroft, 462 U.S. 476 (1983).
v) A ban on a particular uncommon abortion technique, Gonzales v. Carhart, 550 U.S. 124 (2007). The Court found that the State may use its regulatory power to bar certain procedures and substitute others if it has a rational basis to act and it does not impose an undue burden.

An undue burden has been found when a state requires a woman to notify her husband before having an abortion, even when the requirement provides exceptions to the rule. Planned Parenthood v. Casey, 505 U.S. 833, 887 (1992) (spousal notification imposed an undue burden, even when the requirement could be bypassed with the woman’s signed statement certifying that a statutory exception applied).

2) Post-viability

Once the fetus reaches viability, the state may regulate, and even prohibit, abortion, as long as there is an exception to preserve the health or life of the mother.

3) Government funding

There is no constitutional right to have the government provide indigent women with funding for an abortion or for medical care related to an abortion, even if the government does provide indigent funding for medical care at childbirth.

Question 92

Parental rights and family relations

Answer 92

The fundamental parental right to make decisions regarding the care, custody, and control of one’s children includes the right to privately educate one’s child outside the public school system subject to reasonable educational standards imposed by the state

Related persons, including extended family members, have a fundamental right to live together in a single household

Question 93

Right to possess obscene materials

Answer 93

There is a fundamental right to possess obscene material in the privacy of one’s home, Stanley v. Georgia, 394 U.S. 557 (1969), with the exception of child pornography, Osborne v. Ohio, 495 U.S. 103 (1990). The state, however, may severely restrict the sale, purchase, receipt, transport, and distribution of obscene material.

Question 94

Right to refuse medical treatment

Answer 94

It is an established liberty interest that a person may not be forced to undergo unwanted medical procedures, including lifesaving measures, but the Court has not ruled on whether this right is “fundamental.”

Question 95

Right to avoid disclosure of personal medical information

Answer 95

Numerous courts include personal medical information within a “zone of privacy.” Though the right to protect personal, confidential information is not absolute, courts weigh it against competing interests, employing a balancing test that generally includes consideration of the government’s need for access to the information and the adequacy of safeguards, as well as the type and substance of the requested records and the potential for harm in non-consensual disclosure.

Question 96

2nd Amendment

Answer 96

The Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home. District of Columbia v. Heller, 554 U.S. 570 (2008) (ban on handgun possession in the home violates Second Amendment). As mentioned previously, the Second Amendment is applicable to the states through the Fourteenth Amendment. McDonald v. Chicago, 561 U.S. 3025 (2010).

Like most rights, the Second Amendment right to bear arms is not unlimited. Examples of lawful regulations include imposing conditions and qualifications on the commercial sale of arms, as well as prohibitions on (i) concealed weapons, (ii)possession of firearms by felons and the mentally ill, and (iii) carrying guns in schools, government buildings, and other sensitive places are presumed to be legitimate

Question 97

Equal Protection, STRICT SCRUTINY

Answer 97

RACE, ETHNICITY, NATIONAL ORIGIN, AND STATE LAWS RE: ALIENAGE

1) Test

The law must be the least restrictive means to achieve a compelling governmental interest.

2) Burden of proof

The burden is on the government to prove that the law is necessary. Because the strict scrutiny test is a very difficult one to pass, the government rarely meets its burden, and most laws subjected to this standard of review are struck down.

Question 98

Intermediate scrutiny

Answer 98

GENDER/SEX CLASSIFICATIONS, NONMARITAL CHILDREN

1) Test

To be constitutional, the law must be substantially related to an important governmental interest (and re: gender, must be an “exceedingly persuasive justification” that doesn’t rely on overbroad gender role stereotyping).

2) Burden of proof

Although the Court has not clearly stated the rule, the burden appears generally to be on the government to prove that the law in question passes intermediate scrutiny. As with strict scrutiny (and unlike rational basis review), the government must defend the interest(s) it stated when the law was enacted, not just some conceivable legitimate interest.

NOTE: However, there have been some instances of discrimination against men being upheld because of the important governmental interest:

i) Draft registration of males, but not females, Rostker v. Goldberg, 453 U.S. 57 (1981) (interest of preparing combat troops); and
ii) A statutory rape law that held only men criminally liable for such conduct, Michael M. v. Sonoma County Superior Court, 450 U.S. 464 (1981) (interest in preventing teenage pregnancy).

Question 99

rb+

Answer 99

Some classifications, although nominally subject to rational basis review, in practice receive heightened scrutiny. See e.g., Romer v. Evans, 517 U.S. 620 (1996) (sexual orientation); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (developmental disability). When the government has acted out of animus toward or fear of a particular group, that action—even if not involving a suspect or a quasi-suspect classification—will be searchingly reviewed and may be struck down even under a rational basis test. See e.g., United States v. Windsor, 570 U.S. 744 (2013) (Defense of Marriage Act and same-sex marriage).

Question 100

EP: Discriminatory application

Answer 100

A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated.

Question 101

Disparate Impact

Answer 101

A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause.

Question 102

School integration

Answer 102

Because discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause. Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973). Moreover, a court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. Milliken v. Bradley, 418 U.S. 717 (1974); Missouri v. Jenkins, 515 U.S. 70 (1995) (state not compelled to create magnet schools in order to attract students from outside the district).

If a school board does not take steps to eliminate intentional racial segregation of schools, a court can order the district to implement measures, such as busing, to remedy the discrimination. Court-ordered busing is temporary, however, and must be terminated once the “vestiges of past discrimination” have been eliminated.

Question 103

Affirmative Action

Answer 103

OK if specifically correcting past discrimination by the same institution. Also, if just a factor in a holistic review in preferential college admissions.

• Must have showing that racial preferences are essential to diversity
• Must be holistic and flexible
• No quotas or separate admissions tracks
• NOT OK for secondary schools

Question 104

Racial gerrymandering

Answer 104

May be a factor in district-drawing, but not the predominant or only factor.

• Consider: compactness, observing local, political subdivisions.
• Evidence of predominant racial purpose: bizarrely shaped district

Under the Equal Protection Clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. This restriction applies even when the district is drawn to favor historically disenfranchised groups. The state can use traditional factors—such as compactness, contiguity, or honoring political subdivisions—as the bases for the district, and it may only consider race if it does not predominate over other considerations. Miller v. Johnson, 515 U.S. 900 (1995). To be narrowly tailored within the strict scrutiny standard, the legislature must have a “strong basis in evidence” in support of the race-based choice that it has made. Note that the legislature need not show that its action was actually necessary to avoid a statutory violation, only that the legislature had good reasons to believe its use of race was needed.

Question 105

Federal and state alienage restrictions

Answer 105

Classifications based on status as a lawful resident of the United States (as opposed to a citizen) are subject to a variety of different standards, depending on the level of government and the nature of the classification.

a. Federal classification

Because Congress has plenary power over aliens under Article I, a federal alienage classification is likely valid unless it is arbitrary and unreasonable.

Example: Medicare regulations may require a five-year residency period for eligibility despite thereby excluding many lawful resident aliens. Matthews v. Diaz, 426 U.S. 67 (1976).

b. State classifications 1) Generally struck down

The Court will generally apply the strict scrutiny test and strike down state laws that discriminate against aliens, such as laws prohibiting aliens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs.

2) Exception—participation in government functions

A growing exception exists, however, for state laws that restrict or prohibit an alien’s participation in government functions. Such laws need only have a rational relationship to a legitimate state interest. Laws prohibiting aliens from voting, serving on a jury, or being hired as police officers, probation officers, or public-school teachers have been upheld as preventing aliens from having a direct effect on the functioning of the government.

EXAM NOTE: When determining whether a position or license from which aliens are excluded falls under the government function or political function exception, consider whether the position or license would allow the alien to “participate directly in the formulation, execution, or review of broad public policy” or would allow the alien to exercise “broad discretion.”

c. Undocumented aliens Undocumented aliens are not a suspect class, but the states may not deny primary or secondary public education benefits to undocumented aliens. Plyler v. Doe, 457 U.S. 202 (1982).

Question 106

Classifications based on legitimacy

Answer 106

Classifications on the basis of status as a nonmarital child (i.e., those that distinguish between “legitimate” and “illegitimate” children) are subject to intermediate scrutiny—they must be substantially related to an important governmental interest. The Court will closely examine the purpose behind the distinction, and it will not uphold legislation designed to punish the offspring of a nonmarital relationship. To that end, states may not prohibit children of unmarried parents from receiving welfare benefits, New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973), workers’ compensation benefits upon the death of a parent, Weber v. Aetna Cas. and Sur. Co., 406 U.S. 164 (1972), or an inheritance from an intestate father, Trimble v. Gordon, 430 U.S. 762 (1977). In addition, a state cannot require a paternity action brought on behalf of an illegitimate child to be commenced within a limited time after birth in order to secure child support, while not imposing a similar time limit on a legitimate child seeking child support from a parent. Clark v. Jeter, 486 U.S. 456 (1988).

Question 107

Nonsuspect classifications

Answer 107

1. Age

Age discrimination in violation of the Age Discrimination in Employment Act of 1967 does not provoke heightened scrutiny; laws and other governmental actions classifying on the basis of age are reviewed under the rational basis standard. See, e.g., Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) (police officers may be forced to retire at age 50, even if they are as physically fit as younger officers).

2. Poverty

Most statutes and regulations that classify on the basis of wealth (i.e., discriminate against the poor) are subject only to rational basis scrutiny and will be upheld. There is an exception for cases in which governmental action prohibits the poor from exercising a fundamental right because of a government-imposed fee; strict scrutiny will usually apply in those situations. For example, the availability of appeal in a criminal case cannot hinge on ability to pay for a trial transcript. Griffin v. Illinois, 351 U.S. 12 (1956). Also, poll taxes are unconstitutional because wealth is unrelated to a citizen’s ability to vote intelligently. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

3. Sexual Orientation

There is currently a division among the federal courts as to the standard of scrutiny that is applicable to discrimination on the basis of sexual orientation. The Supreme Court has struck down bans on same-sex marriage as violations of a fundamental right on both Due Process and Equal Protection grounds, but it has not resolved the issue of whether discrimination based on sexual orientation is subject to heightened scrutiny. The government, however, cannot impose a burden upon or deny a benefit to a group of persons solely based on animosity toward the class that it affects. Romer v. Evans, 517 U.S. 620 (1996). Among the rights, benefits, and responsibilities of marriage to which same-sex partners must have access are birth and death certificates, which give married partners a form of legal recognition that is not available to unmarried partners. Pavan v. Smith, 582 U.S. ___, 137 S. Ct. 2075 (2017), citing Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2016).

Question 108

One person, one vote

Answer 108

The principle of “one person, one vote” holds that one person’s vote must be essentially equal to any other person’s vote. To that end, when the government establishes voting districts for the election of representatives, the number of persons in each district must be approximately equal. Reynolds v. Sims, 377 U.S. 533 (1964). Voter approval of a redistricting plan will not justify a violation of the “one person, one vote” rule.

Question 109

Congressional districting

Answer 109

When states establish districts for congressional elections, they must achieve nearly precise mathematical equality between the districts. This restriction is imposed on the states by Article I, Section 2, which requires members of the House to be chosen by “the People of the several States.” An unexplained deviation of less than one percent may invalidate the statewide congressional district plan.

Variations may be justified by the state on the basis of consistently applied, legitimate state objectives, such as respecting municipal political subdivision boundaries, creating geographic compact districts, and avoiding contests between incumbent representatives. In addition, variations based on anticipated population shifts may be acceptable when such shifts can be predicted with a high degree of accuracy, and population trends are thoroughly documented.

But, CONGRESSIONAL APPORTIONMENT OF HOUSE SEATS: Congress, in apportioning members of the House among the states pursuant to Article I, Section 2, is not held to the “mathematical equality” standard. The method adopted by Congress is entitled to judicial deference and is assumed to be in good faith.

STATE AND LOCAL: The size of electoral districts may vary much more in the case of state and local elections, as long as the variance is not unjustifiably large. A variation of less than 10% is rebuttably presumed to be a minor deviation that does not constitute a prima facie case for discrimination. Cox v. Larios, 300 F. Supp. 2d 1320 (N.D. Ga.), aff’d; 542 U.S. 947 (2004); Brown v. Thompson, 462 U.S. 835 (1983). When the maximum variation is 10% or greater, the state must show that the deviation from equality between the districts is reasonable and designed to promote a legitimate state interest.

1) Bodies performing governmental functions

The “one person, one vote” rule applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature. Hadley v. Junior College Dist., 397 U.S. 50 (1970) (election of trustees to junior college district).

2) Relevant population

In addition to requiring relative equality with respect to the weight of a person’s vote, the Equal Protection Clause subjects the restriction of voting of a particular class of persons to strict scrutiny, which generally results in the invalidation of the law. Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969) (state law that restricted voting in school board election to property owners and parents with school-aged children struck down). The restriction of voting to a class of persons (e.g., landowners) and the allocation of voting weight on a basis other than personhood (e.g., the amount of land owned) has been upheld only with regard to water-district elections. Ball v. James, 451 U.S. 355 (1981); See Hadley v. Junior College Dist., supra (determination of districts for junior college trustees based on school age population violated “one person, one vote” rule).

AT LARGE ELECTIONS: While an election in which members of a governmental unit (e.g., county council members) are elected by all voters within that unit (i.e., an at-large election) does not violate the one-person, one-vote rule, it may conflict with another constitutional provision, such as the Equal Protection Clause. Rogers v. Lodge, 458 U.S. 613 (1982) (use of countywide system to elect county board unconstitutionally diluted the voting power of African-American citizens).

Question 110

Political gerrymandering

Answer 110

Partisan political gerrymandering may violate the Equal Protection Clause if the challenger can show “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Davis v. Bandemer, 478 U.S. 109, 127 (1986). However, lack of comprehensive and neutral principles for drawing electoral boundaries as well as the absence of rules to confine judicial intervention prevents the Court from adjudicating political gerrymandering claims.

Question 111

Comity Clause

Answer 111

Nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities. Examples include the pursuit of employment, transfer of property, access to state courts, and engaging in the political process.

Example: Discrimination against out-of-state residents in setting the fee for a commercial activity, such as a commercial shrimping license, violates the Privileges and Immunities Clause of Article IV, but similar discrimination for a recreational activity, such as a recreational hunting license, does not, if there is a rational basis for the fee differential. Compare Toomer v. Witsell, 334 U.S. 385 (1948) (fee for out-of-state commercial shrimper that was 100 times greater than the fee for an in-state shrimper unconstitutional), with Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (1978) (fee for out-of-state resident to hunt elk that was 25 times greater than the fee for an in-state hunter constitutional).

Note that discrimination against an out-of-state resident with regard to access to a state’s natural resources may violate the Dormant Commerce Clause. New England Power Co. v. New Hampshire, 455 U.S. 331 (1982) (prohibition on sale of hydroelectric power outside the state unconstitutional).

3. Exception—Substantial Justification

Discrimination against out-of-state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if:

i) The nonresidents either cause or are a part of the problem that the state is attempting to solve; and
ii) There are no less-restrictive means to solve the problem.

Question 112

Takings Clause

Answer 112

TYPE OF PROPERTY: property that may be subject to the protection of the Takings Clause includes not only land and other real property, but also tangible personal property as well as intangible property, such as contract and patent rights and trade secrets.

TYPE OF INTEREST: In addition to the transfer of a fee simple interest in property, a taking may involve an easement, leasehold interest, or a lien. A taking may involve the rights of a property owner, such as the right to control access to the property.

1. Seizure of Property

The classic application of the Takings Clause is the seizure of private property for governmental use, such as acquiring privately held land in order to construct a courthouse or other government building. In such a case, the property owner’s primary challenge to the seizure is whether he has received just compensation (see §XV.C., Just Compensation, infra).

a. Public-use challenge

A government may seize private property not only for its own direct use but also to transfer the property to another private party. Although such a seizure is subject to challenge as not being made for a public use, the taking need merely be “rationally related to a conceivable public purpose.” This is a highly deferential standard, and the burden is on the person challenging the taking to prove a lack of legitimate interest or rational basis. In addition to traditional health, safety, and welfare justifications, economic redevelopment goals constitute a sufficient public purpose to justify the seizure.

2. Damage to or Destruction of Property

A destruction of property or property rights by the federal, state, or local government can also result in a taking. The destruction need not directly benefit the government. The Takings Clause is not limited to possessory interests in property; instead, it can extend to takings of non-possessory property rights, such as easements or liens.

3. Re-characterization of Property

The Takings Clause prevents a government from re-characterizing private property as public property.

4. Regulatory Taking

Generally, a governmental regulation that adversely affects a person’s property interest is not a taking, but it is possible for a regulation to rise to the level of a taking.

In determining whether a regulation creates a taking, the following factors are considered:

i) The economic impact of the regulation on the property owner;
ii) The extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and
iii) The character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.
b. Per se takings

In two instances, a regulation clearly results in a taking.

1) Physical occupation

A taking has occurred when the governmental regulation results in a permanent physical occupation of the property by the government or a third party.

Example: A law requiring a landlord to permit a cable company to install equipment on the landlord’s property that would remain indefinitely constituted a taking, even though the installation had only a minimal economic impact on the landlord. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

2) No economically viable use

When a regulation results in a permanent total loss of the property’s economic value, a taking has occurred. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (zoning ordinance precluding owner of coastal property from erecting any permanent structure on the land was a taking); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (32-month building moratorium was not a taking).

Adverse economic impact: A regulation that results in a dramatic decline in the value of the regulated property does not necessarily constitute a taking.

Question 113

Exactions as takings

Answer 113

5. Exaction as a Taking

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is:

i) An essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance legitimate state interest); and
ii) A rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.

Question 114

Just Compensation Rules

Answer 114

The phrase “just compensation” has been interpreted to mean fair market value, which is the reasonable value of the property at the time of the taking. This value is measured in terms of the loss to the owner, not the benefit to the government.

1. Worthless Property

Property that is worthless to the owner but has value to the government may be taken without compensation.

Example: Clients whose funds were held by lawyers and deposited in a trust account pursuant to state law to be paid to an entity in order to provide legal services for the poor were not entitled to compensation because each client’s funds would not separately have earned interest. Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003).

2. Only Portion Taken

When only a portion of an owner’s property is taken, the owner may also receive compensation for any diminution in value of the remaining portion that is attributable to the taking but must reduce any compensation by the value of any special and direct benefits (e.g., a highway access) conferred on the remaining portion.

3. Return of Property

When governmental action constitutes a taking, the government cannot escape all liability by returning the property to its owner, but instead must pay the owner compensation for the period that the government possessed the property. First English Evangelical Church v. County of Los Angeles, 482 U.S. 304 (1987).

Question 115

Bill of Attainder

Answer 115

A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial. Article I, Sections 9 and 10 forbid the federal government and the states, respectively, from enacting such “legislative trials.” It applies only to criminal or penal measures.

Barring particular individuals from government employment qualifies as punishment under the prohibition against bills of attainder.

Question 116

Ex Post Factor Laws

Answer 116

The constitutional prohibition on an “ex post facto” law is confined to a retroactive change to a criminal or penal law. A law that is civil in purpose is treated as a criminal law only if its punitive effect clearly overrides its civil purpose. Smith v. Doe, 538 U.S. 84 (2003).

Under Article I, Sections 9 and 10, a federal or state statute will be struck down as being ex post facto if it:

i) Criminalizes an act that was not a crime when it was originally committed;
ii) Authorizes, after an act was committed, the imposition of a more severe penalty on that act;
iii) Deprives the defendant of a defense available at the time the act was committed; or
iv) Decreases the prosecution’s burden of proof required for a conviction to a level below that which was required when the alleged offense was committed.

Question 117

Obligations of Contracts

Answer 117

Article I, Section 10 (i.e., the “contracts clause”), prohibits the states from passing any law “impairing the obligation of contracts.” This prohibition applies only to state legislation—not state-court decisions and not federal legislation—that retroactively impairs contractual rights. It does not apply to contracts not yet entered into.

1. Private Contracts

State legislation that substantially impairs a contract between private parties is invalid, unless the government can demonstrate that the interference was reasonable and necessary to serve an important governmental interest.

2. Public Contracts

Impairment by the state of a public contract (one to which the state or local government is a party) is subject to essentially the same “reasonable and necessary” test as private contracts, but with a somewhat stricter application. The state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances.

Question 118

Establishment Clause

Answer 118

A governmental action that benefits religion is valid if:

i) It has a secular purpose;
ii) Its principal or primary effect neither advances nor inhibits religion; and
iii) It does not result in excessive government entanglement with religion.
a. Aid to religious institutions

Governmental financial assistance to religious institutions is permitted if the aid is secular in nature, used only for secular purposes, and, when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral.

b. Tax exemptions for religious organizations

Property-tax exemptions for religious institutions have been held valid as being equivalent to exemptions given to other charitable organizations and therefore neither advancing nor inhibiting religion.

c. Tax deductions and aid for parochial school expenses

Tax deductions given to reimburse tuition expenses only for parents of students in religious schools are invalid. If such a deduction is available to all parents for actual educational expenses of attending any public or private school (including parochial schools), it is valid.

3. Public School Activities

Generally, officially sponsored religious activities in public schools or at public school events violate the Establishment Clause. The following practices have been held invalid as clearly promoting religion:

i) Prayer and Bible reading, Engel v. Vitale, 370 U.S. 421 (1962);
ii) A designated period of silence during the school day for “meditation or voluntary prayer” lacking any secular purpose
iii) Nondenominational (i.e., nonsectarian) prayer at school events
v) Prohibiting the teaching of Darwinism (i.e., human biological evolution), or mandating that such teaching be accompanied by instruction regarding “creation science,”
4. Access to Public Facilities by Religious Groups

If a public school allows student groups or organizations to use its facilities when classes are not in session, allowing a religious organization to use those facilities does not violate the Establishment Clause. Furthermore, to prohibit such a group from using those facilities because religious topics would be discussed would violate the First Amendment guarantee of free speech.

a. Ten Commandments

A display of the Ten Commandments on public property is an impermissible violation of the Establishment Clause if the display has a “predominantly religious purpose.”

b. Holiday displays

Government holiday displays will generally be upheld unless a reasonable observer would conclude that the display is an endorsement of religion. The context of the display is key—a nativity scene in a courthouse under a banner reading “Gloria in Excelsis Deo” was struck down as endorsing religion, but a nearby outdoor display of a Christmas tree, Chanukah menorah, and other seasonal symbols was upheld as mere recognition that Christmas and Chanukah are both parts of a highly secularized winter holiday season.

Question 119

Free Exercise

Answer 119

1. Religious Belief

The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law. The government may not deny benefits or impose burdens based on religious belief, Cantwell v. Connecticut, 310 U.S. 296 (1940); it may not require affirmation of a belief, West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); and it may not determine the reasonableness of a belief, although it may determine the sincerity of the person asserting that belief, United States v. Ballard, 322 U.S. 78 (1944). When there is a property dispute between two religious groups, a court may not decide questions of religious doctrine, but may apply religiously neutral principles of law to resolve the dispute. Jones v. Wolf, 443 U.S. 595 (1979).

2. Religious Conduct

Religious conduct, on the other hand, is not absolutely protected. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test.

a. Targeting religious conduct

Strict scrutiny applies when the government purposely targets conduct because it is religious or displays religious beliefs. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (city ordinance banning all ritual sacrifice of animals not for the purpose of food consumption struck down as targeting the Santeria religion). A state law that is designed to suppress activity because it is religiously motivated is valid only if it is necessary to achieve a compelling governmental interest.

Other laws that have been struck down as violating the Free Exercise Clause include compulsory school attendance for the Amish, Wisconsin v. Yoder, 406 U.S. 205 (1972), and denial of unemployment benefits to one whose faith prevented her from taking a job that required her to work on the Sabbath, Sherbert v. Verner, 374 U.S. 398 (1963).

b. Generally applicable laws

Neutral state laws of general applicability that have the incidental effect of interfering with one’s ability to engage in religious practices are subject only to the rational basis test. Employment Div. v. Smith, 494 U.S. 872 (1990) (criminalization of peyote that did not contain an exception for use in Native American religious rituals upheld, as the ban was not motivated by any desire to burden religious conduct).

Example: A parent’s right to pray over a child who has contracted meningitis, rather than seeking medical assistance, may be limited by state child-neglect and manslaughter laws. Parents do not have the right to endanger the lives of their children on the grounds of freedom of religion. See Prince v. Massachusetts, 321 U.S. 158 (1944).

c. Access to benefits

Strict scrutiny applies when the government purposely denies a religious entity access to an otherwise available public benefit purely on account of its religious status. The avoidance of entanglement of church and state is not a sufficient governmental interest to justify this denial. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017) (church-run preschool could not be denied, solely on the basis of its religious status, a state grant to resurface playground); but see Locke v. Davey, supra (state not required to fund degree in devotional theology as part of a state scholarship program).

Question 120

Ministerial exception

Answer 120

Religious institutions can rely on a “ministerial exception” to federal and state employment discrimination laws in their decision to hire or fire a minister. The purpose of the ministerial exception, which is based on both the Establishment and Free Exercise Clauses of the First Amendment, is not merely to safeguard a church’s decision to discharge a minister when it is made for a religious reason but also to ensure that the authority to select and control who will serve as a minister to the church’s faithful, a strictly ecclesiastical matter, is solely the church’s decision. The exception operates as an affirmative defense to an otherwise cognizable claim, but not as a jurisdictional bar.

Question 121

Expressive Conduct

Answer 121

. Governmental regulation of expressive conduct is upheld if:

i) The regulation is within the government’s power to enact (e.g., through a local government’s police power);
ii) The regulation furthers an important governmental interest;
iii) The governmental interest is unrelated to the suppression of ideas; and
iv) The burden on speech is no greater than necessary.

Question 122

Overbreadth

Answer 122

Overbroad if burdens SUBSTANTIAL AMOUNT of PROTECTED SPEECH. has to be more than just some impermissible applications of the statute.

• CHALLENGING: Can be challenged as overbroad even if the challenger’s case isn’t impermissible (b/c chilling effect).
• BURDEN: Challenger must prove overbreadth.

Question 123

Vagueness

Answer 123

TEST: Is it so vague that it fails to provide a person of ORDINARY INTELLIGENCE w/ fair notice of what is prohibited?

Question 124

Prior Restraints

Answer 124

Presumed to be impermissible.

EXCEPTIONS (rare):

1. Particular harm to be avoided, AND
2. certain procedural safeguards are provided to the speaker (e.g., providing that standards must be narrowly drawn, reasonable, and definite, and the censoring body must promptly seek an injunction)

For exceptions to apply, burden is on govt and a prompt and final judicial determination of the validity of the restraint must occur.

Even where national security was at issue, or press coverage threatened trial fairness, the govt failed.

Question 125

Unfettered discretion, 1st Amendment

Answer 125

laws allowing an official to restrict speech (e.g., licensing requirement for protests) must give definite standards for enforcement, must be related to an important govt interest, and contain procedural safeguards.

A statute giving unfettered discretion is facially invalid.

Question 126

Freedom not to speak

Answer 126

The First Amendment protects not only freedom of speech, but also the freedom not to speak. One such example is a child’s right not to recite the Pledge of Allegiance. Similarly, the private organizers of a parade cannot be compelled by the government to include in the parade a group that espouses a message with which the organizers disagree. Nor can the government mandate as a condition of federal funding that recipients explicitly agree with the government’s policy to oppose prostitution and sex trafficking.

However, a state can compel a private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights when the private entity is open to the public and the message is not likely to be attributable to the private entity. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). A state may also require professional fundraisers to file certain public financial disclosures about fundraising activities in order to allow donors to make informed charitable contributions and to prevent fraud

Question 127

Compelled financial support

Answer 127

Although one can be compelled to join or financially support a group with respect to one’s employment, one cannot be forced to fund political speech by that group. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (teacher required to pay union dues); Keller v. State Bar of California, 496 U.S. 1 (1990) (lawyer required to join a bar association). A student, however, can be required to pay a university activity fee even though the fee may support groups that espouse messages with which the student disagrees, at least when the fee is allocated in accord with a viewpoint-neutral scheme

Question 128

Government speech

Answer 128

When the government itself speaks, it is not constrained by the Free Speech Clause of the First Amendment. Therefore, government speech (public service announcements, agricultural marketing campaigns, etc.) need not be viewpoint-neutral. Johanns v. Livestock Mkt’ing Ass’n, 544 U.S. 550 (2005). This Government Speech Doctrine, however, is subject to the requirements of the Establishment Clause (See §XVII.A., supra).

a. Monuments on public property

The display of a monument on public property, even if the monument has been donated by a private person, constitutes government speech. Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government installed a Ten Commandments monument donated by a private person in a public park; the Court held that governmental entities may exercise “selectivity” in choosing a monument being offered by a private donor).

b. Specialty license plates

Specialty license plates, even if designed by private individuals, are government speech and, as such, the state may refuse proposed designs based on the content of those designs. Walker v. Tex. Div., Sons of Confederate Veterans, 576 U.S. ___, 135 S. Ct. 2239 (2015) (rejection of proposed Texas license plate featuring Confederate battle flag).

c. Funding of private messages

The government may fund private messages. However, it must generally do so on a viewpoint-neutral basis. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). The exception to this is when the government decides to fund artists; the decision of which artist to fund is necessarily based on the content of the artist’s work. National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).

d. Speech by government employees

When a government employee contends that her rights under the Free Speech Clause of the First Amendment have been violated by her employer, the employee must show that she was speaking as a citizen on a matter of public concern. Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011). When a government employee is speaking pursuant to her official duties, the employee is generally not speaking as a citizen and the Free Speech Clause does not protect the employee from employer discipline. Garcetti v. Ceballos, 547 U.S. 410 (2006). In determining whether a government employee is speaking pursuant to her official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. Lane v. Franks, 573 U.S. 228 (2014).

When an employee is speaking as a citizen on a matter of public concern, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs. Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983); Borough of Duryea v. Guarnieri, supra. This approach also applies to a government employee who petitions the government for redress of a wrong pursuant to the Petition Clause of the First Amendment. Id.

Question 129

Campaign finance rules

Answer 129

Campaign Related Speech

Political campaign contributions

Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be “closely drawn” to correspond with a sufficiently important interest.

Contributions to candidates

The government may limit contributions to individual candidates because excessive contributions to candidates create a danger of corruption and the appearance of corruption. However, because aggregate limits on the amount a donor may contribute to candidates for federal office, political parties, and political action committees restrict participation in the political process and do little to further the prevention of “quid pro quo” corruption or the appearance of such corruption in campaign financing, they are invalid under the First Amendment. The government cannot set differential contribution limits that penalize a candidate who finances his own campaign.

Contributions to political parties

The government may limit contributions to a political party that are used to expressly advocate for the election or defeat of a particular candidate (also known as “hard money”) as well as contributions that are used for other purposes, such as promoting the party itself (also known as “soft money”). In addition, the government may require a political party to disclose contributors and recipients unless the party can show that such disclosure would cause harm to the party.

POLITICAL CAMPAIGN EXPENDITURES
restrictions on expenditures by individuals and entities (including corporations and unions) on communications during an election campaign regarding a candidate are subject to strict scrutiny. So long as the source of the funding is disclosed, there is no legal limit to the amount that corporations and unions may spend on “electioneering communications.” BUT coordinated expenditures for a candidate w/ the campaign may be limited.

In addition, expenditures by a candidate on her own behalf cannot be limited.

A state law banning judicial candidates from personally soliciting campaign funds, however, does not necessarily violate the First Amendment.

Question 130

Public Forums

Answer 130

either TRADITIONAL (historically associated with expression) or DESIGNATED (not traditional, but govt chooses to open for such use). Difference: Govt can change latter to nonpublic forum.

RULE: TPM restrictions must be -

1. ) Content-neutral (both SM and viewpoint)
2. ) Narrowly tailored to serve SIGNIFICANT public interest.
3. ) Leave open ample alternative channels of communication.

OTHER RESTRICTIONS must pass strict scrutiny, including content-discriminating restrictions.

Question 131

Speech rights in residential areas

Answer 131

There is no right to focus picketing on a particular single residence. However, a person may solicit charitable funds in a residential area. Door-to-door solicitation does not require a permit, as long as the solicitation is for noncommercial or nonfundraising purposes.

Question 132

public forum rules for injunction

Answer 132

If an injunction is content-neutral, then the test is whether it burdens no more speech than is necessary to achieve an important governmental interest.

On the other hand, if the injunction is content-based, it must be necessary for the government to achieve a compelling governmental interest.

Question 133

Schools and public forums

Answer 133

When a public school, as a designated (limited) public forum, permits the public to use its facilities, it cannot discriminate against organizations based on its beliefs.

Similarly, a public school may provide funding and other benefits (e.g., free use of facilities) to student groups, but it must do so on a viewpoint-neutral basis.

Question 134

Nonpublic forum rules

Answer 134

A nonpublic forum is essentially all public property that is not a traditional or designated public forum. Examples include government offices, schools, jails, military bases, and polling places. Sidewalks on postal service property and airport terminals are also considered nonpublic forums.

The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.

Question 135

content-based regulations

Answer 135

Any governmental regulation of speech that is content-based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., the strict scrutiny test).

However, even regulations that are not content-based on their face may still be content-based in application or in intent, and these laws, too, will generally be subject to strict scrutiny.

Question 136

Obscenity

Answer 136

Under the Miller test, the average person, applying contemporary community standards, must find that the material, taken as a whole:

i) Appeals to the “prurient interest”;
ii) Depicts sexual conduct in a patently offensive way; and
iii) Lacks serious literary, artistic, political, or scientific value.

Standards Distinguished – The first two prongs of this test use a contemporary community standard, which may be national but is generally considered to be local or statewide. A national standard must be applied, however, to the third prong of the test—determining the value of the work—because the work may merit constitutional protection despite local views to the contrary.

Courts have recently begun to distinguish legally obscene speech from pornography. Merely establishing that speech constitutes pornography is generally insufficient to establish that the speech is obscene. Therefore, content-based restrictions on pornography are generally subject to strict scrutiny.

The sale, distribution, and exhibition of obscene material may be prohibited. However, the right to privacy generally precludes criminalization of possession of obscenity in one’s own home.

Material that appeals to the prurient interests of minors may be regulated as to minors, even if it would not be considered obscene to an adult audience. The government may not, however, block adults’ access to indecent materials in order to prevent them from reaching children.

Question 137

Land-use restrictions that impact speech

Answer 137

Narrowly drawn zoning ordinances may be used to restrict the location of certain adult entertainment businesses (e.g., adult theaters, adult bookstores, strip clubs) if the purpose of the regulation is to reduce the impact on the neighborhood of such establishments, but they may not be used to ban such establishments entirely. It does not matter that such establishments may be found in adjoining jurisdictions.

Question 138

Child Pornography

Answer 138

The First Amendment also does not protect child pornography, which is sexually explicit visual portrayals that feature children. Because of the state’s compelling interest in protecting minor children from exploitation, the sale, distribution, and even private possession of child pornography may be prohibited, even if the material would not be obscene if it involved adults.

Simulated child pornography (i.e., pornography using young-looking adults or computer-generated images) may not be banned as child pornography. However, offers to sell or buy simulated child pornography that contain actual depictions of children even though the sexually explicit features are simulated may be criminalized when the material is presented as actual child pornography.

Question 139

Incitement to Violence

Answer 139

A state may forbid speech that advocates the use of force or unlawful action if:

i) The speech is directed to inciting or producing imminent lawless action; and
ii) It is likely to incite or produce such action (i.e., creates a clear and present danger).

The abstract expression of ideas, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as the actual incitement of violence. There must be substantial evidence of a strong and pervasive call to violence.

Question 140

Fighting Words

Answer 140

A speaker may be criminally punished for using “fighting words,” which are words that by their very nature are likely to incite an immediate breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Words that are simply annoying or offensive are not fighting words; there must be a genuine likelihood of imminent violence by a hostile audience.

Statutes designed to punish only fighting words that express certain viewpoints are unconstitutional.

Very often overbroad or void for vagueness.

Question 141

Defamation

Answer 141

PF: Plaintiff must show actual malice (intentional falsity or reckless indifference as to whether true).

Private plaintiff but defamatory: must show at least negligence w/r/t the falsity.

Question 142

Commercial Speech

Answer 142

Restrictions on commercial speech are reviewed under a four-part test:

i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited);
ii) The asserted governmental interest must be substantial;
iii) The regulation must directly advance the asserted interest; and
iv) The regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.

Note that solicitation of funds for charitable purposes is recognized as a form of protected speech. However, fraudulent charitable solicitations, such as false or misleading representations designed to deceive donor as to how donations will be used, are not protected. Additionally, because there is a strong government interest in preventing fraud and allowing donors to make informed choices about their charitable contributions, the government may require professional fundraisers to file certain public financial disclosures about fundraising activities.

Question 143

Press Rules

Answer 143

• Generally, subject to SS.

GAG ORDERS: Such orders are subject to prior-restraint analysis. Gag orders are almost always struck down because they are rarely the least restrictive means of protecting the defendant’s right to a fair trial. The trial judge has other alternatives available, such as change of venue, postponement of the trial, careful voir dire, or restricting the statements of lawyers and witnesses.

ATTENDING TRIAL: The public and the press both have the right to attend criminal trials, but this right is not absolute. It may be outweighed if the trial judge finds an overriding interest that cannot be accommodated by less restrictive means.

PROTECTING SOURCES: A journalist has no First Amendment right to refuse to testify before a grand jury regarding the content and source of information relevant to the criminal inquiry.

ILLEGALLY OBTAINED/PRIVATE INFO: The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long, RULE, as the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did. Similarly, the First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern.

Question 144

First Amendment intersection w/ right of publicity (state cause of action)

Answer 144

Some states recognize a right of publicity—the right of a person to control the commercial use of his or her identity. The right is an intellectual property right derived under state law, the infringement of which creates a cause of action for the tort of unfair competition. In Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977), the Supreme Court considered a conflict between the First Amendment and a person’s state-law right of publicity. A news program had televised a videotape of a daredevil’s entire 15-second performance at a local fair when he was shot out of a cannon. The lower court held that the First Amendment protected the telecast from a tort suit regarding the right of publicity. The Supreme Court reversed, holding that the First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer’s entire act without his consent, and the Constitution does not prevent a state from requiring broadcasters to compensate performers. Note that a state government may pass a law shielding the press from liability for broadcasting performers’ acts.

Question 145

Broadcast and cable rules

Answer 145

2. Broadcast

Because the broadcast spectrum is a limited resource, radio and television broadcasters are said to have a greater responsibility to the public, and they therefore can be more closely regulated than print and other media. Broadcasters may be sanctioned, therefore, for airing “patently offensive sexual and excretory speech,” even if such speech does not qualify as obscene under the Miller test, in the interest of protecting children likely to be listening. FCC v. Pacifica Found., 438 U.S. 726 (1978).

3. Cable Television

The First Amendment protection provided to cable television falls somewhere between the extensive protection given to print media and the more limited protection for broadcasting. As such, a law requiring cable operators to carry local television stations is subject to intermediate scrutiny.

Question 146

Public employee right of association

Answer 146

An individual generally cannot be denied public employment based simply upon membership in a political organization.

i) Is an active member of a subversive organization;
ii) Has knowledge of the organization’s illegal activity; and
iii) Has a specific intent to further those illegal objectives.

Question 147

loyalty oaths

Answer 147

Public employees may be required to take loyalty oaths promising that they will support the Constitution and oppose the forceful, violent, or otherwise illegal or unconstitutional overthrow of the government. Connell v. Higgenbotham, 403 U.S. 207 (1971). However, oaths that forbid or require action in terms so vague that a person of common intelligence must guess at the oath’s meaning and differ as to its application are often found to be so vague or overbroad as to deprive an individual of liberty or property without due process.

Question 148

Associational rights of bar members

Answer 148

Although the state can inquire into the character of a candidate for bar admission, such admission cannot be denied on the basis of political association unless the candidate knowingly belongs to a subversive organization with specific intent to further its illegal ends. Schware v. Board of Bar Exam’rs, 353 U.S. 232 (1957). The state may, however, deny bar membership to a candidate who refuses to answer questions about political affiliations if that refusal obstructs the investigation of the candidate’s qualifications.

Question 149

Voters and elections, 1st Amendment

Answer 149

a. Voters in primary elections

A state cannot require a local political party to select presidential electors in an open primary (i.e., a primary in which any voter, including members of another party, may vote) when the national party prohibits nonparty members from voting. Democratic Party v. LaFolette, 450 U.S. 107 (1981). A state can require a semi-closed primary system, in which only registered party members and independents can vote in the party’s primary, even if the party wants to permit anyone to vote. Clingman v. Beaver, 544 U.S. 581 (2005). On the other hand, a state may not prohibit a political party from allowing independents to vote in its primary. Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986).

1) Blanket primary

A state may adopt a blanket primary system (i.e., a primary in which all voters regardless of party affiliation or lack thereof vote) that is nonpartisan. Under a nonpartisan primary system, the voters choose candidates for the general election without regard for their party affiliation. A nonpartisan blanket primary system in which a candidate identifies his own party preference or his status as an independent and that identification appears on the ballot has withstood a facial challenge, despite assertions that this self-designation violates the party’s First Amendment rights as compelled speech and forced association. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008). By contrast, a partisan blanket primary system in which a party’s nominees are chosen violates the party’s First Amendment rights of free speech and association. Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).

b. Ballot access to general election

A state may refuse to grant a political party’s candidate access to the general-election ballot unless the party demonstrates public support through voter signatures on a petition, voter registrations, or previous electoral success. Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997); Munro v. Socialist Workers Party, 479 U.S. 189 (1986).

c. Fusion candidate

A state may prohibit a fusion candidate (i.e., a candidate who is nominated by more than one political party) from appearing on the general-election ballot as a candidate of multiple parties. This limitation on the associational rights of political parties is justified by the state’s interests in ballot integrity and political stability. Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

d. Replacement candidate

When a state gives a political party the right to select an interim replacement for an elected state official who was a member of that party, the party may select the replacement through an election at which only party members may vote. Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982).

Question 150

criminal penalty for associations

Answer 150

A statute that purports to criminally punish mere membership in an association violates the First and Fourteenth Amendments. Brandenburg v. Ohio, 395 U.S. 444 (1969). Instead, such membership may only be criminalized if (i) the group is actively engaged in unlawful activity, or is engaging in advocacy that passes the Brandenburg “clear and present” danger test (i.e., speech directed to inciting or producing imminent lawless action that is likely to incite or produce such action); and (ii) the defendant knows of and specifically intends to further the group’s illegal activity. See, e.g., Whitney v. California, 274 U.S. 357 (1927).