Con Law

Question 1

• Article 3:Federal courts may not render advisory opinions, which lack:
  • An actual dispute between adverse parties, or
  • Any legally binding effect on the parties.
• Rule: Federal courts may only decide controversies
  that are ripe for judicial review.
  • Application: Pre-enforcement review of laws
  (declaratory judgment actions) are generally not
  ripe, unless,
  • Substantial hardship in absence of review (the
  more the better), and
  • Issues and record are fit for review (the more
  legal than factual the better).
• The standing requirements are:
  • Injury (already occur or imminently occur)
• • Almost any harm that is concrete (not hypothetical)
    and particularized (not general, taxpayers’ money).
• • No on behalf of third party, except:
• • • Close Relationship: • Plaintiff and third party
      injured. • 3P unable or unlikely to sue. • Plaintiff can adequately represent 3P. (Doctor and patient counts)
• • • Organizations (on behalf of members):
      •Organization and members have standing. • Members’ injury related to purpose of organization. • Members’ participation not required (e.g., not seeking individualized damages).
• • • Free Speech Overbreadth (party whose speech can be censored sues on behalf of those whose speech cannot) -> • Not commercial speech.

• Causation
- Injury is tracable to the defendant.

• Redressability
- A favorable court can remedy the injury from the claim.

Answer 1

• Immunity: 1. The state can be sued by states 2. The state can be sued for bankruptcy. 3. The state can be sued if by federal law under Fourteenth Amendment powers to prevent discrimination. 4. Local government departments can be sued. 5. State officers can be sued.
• Legislative Power:
• • Necessary and Proper Clause:
    • Not a basis of legislative power.
    • Allows Congress to choose any rational means to
    carry out an enumerated power, as long as means
    not prohibited by Constitution.
• • enumerated power
• • • Taxing and Spending Powers
      Rule - Congress may tax and spend to provide for the general welfare.
      • Includes any public purpose not prohibited by
      Constitution, even if not within an enumerated
      power.
• • • • must relate to purpose of spending
        and not violate Constitution and cannot be “unduly coercive.”
• • • Commerce Power: Interstate Commerce
      Broadest and most common basis for regulation. IC
      includes:
      • Channels of IC: highways, waterways, telephone
      lines, Internet
      • Instrumentalities of IC: planes, trains, automobiles,
      persons in interstate commerce
      • Substantial effect on IC in aggregate (even
      purely local activities)
• • • If Congress has not acted, state regulation of interstate commerce is valid if the regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce. a state may regulate local aspects of interstate commerce if the regulation: (i) does not discriminate against out-of-state competition to benefit local economic interests; and (ii) is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits).
• • • In general, a taxpayer has no standing to challenge the expenditure of federal funds. The major exception to this rule is where the taxpayer alleges that the expenditure was enacted under Congress’s taxing and spending power, and exceeds some specific limitation on that power, in particular the Establishment Clause. In general, a taxpayer has no standing to challenge the expenditure of federal funds. The major exception to this rule is where the taxpayer alleges that the expenditure was enacted under Congress’s taxing and spending power, and exceeds some specific limitation on that power, in particular the Establishment Clause.

Question 2

• FEDERAL EXECUTIVE POWER

- - Enforcement
President has power (and duty) to execute laws.
Inherent (Implied) Presidential Powers
• Highest where authorized by Congress.
• Lowest where prohibited by Congress.

• • War
    • Congress alone has power to declare war.
    • President as Commander in Chief has broad discretion to deploy troops internationally to protect
    American lives and property (e.g., Vietnam).
• • Dormant Commerce Clause
    (“Negative Commerce Clause”) prohibits state laws
    that discriminate against or unduly burden interstate
    commerce.
• • • State is acting as participant (engaging in the business -exception)

Answer 2

• State Action:
• • State officer acting in capacity of state is state action.
• • Privating state function qualify as state action as well (e.g.State privatizes prisons)
• • See Chart in the Phone
• Procedure Due Process:
• • Liberty
    • Physical freedom (e.g., from institutionalization,
    deportation).
    • Constitutional rights (e.g., parental rights).
    • Not: mere harm to reputation.
• • IF DEPRIVED, WHAT PROCESS WAS DUE?
    • Notice
    • Opportunity to be heard
    • Neutral decision-maker
• • Or Need to have injury on Property
    • Real and personal, tangible and intangible.
    • Government entitlement to which an individual has
    a reasonable expectation of continued receipt.
• SUBSTANTIVE DUE PROCESS
• • Enumerated rights are specified in the Constitution or Amendments (e.g., “the freedom of speech”).
• • Unenumerated rights are substantive component of
    liberty protected by

Question 3

UNENUMERATED FUNDAMENTAL RIGHTS
- Marriage (Divorce)
• Substantial interference with right to marry is necessary to trigger strict scrutiny.

• Procreation
• Contraception
• Parental Rights
• Living with Extended Family
• Fundamental Right to Interstate Travel (14A
  Privileges or Immunities) -> but not international
• Right to vote

UNSPECIFIED RIGHTS

Refuse Medical Treatment
• Competent adult may refuse life-saving medical
treatment.

Bear Arms
2A protects right of individual at least to have handgun
in home for self-defense. (Heller, 2008; McDonald,
2010)

Answer 3

EQUAL PROTECTION:

Equal Protection Analysis
1. Classification
• Facial, OR
• Disparate impact AND discriminatory intent

- - Alienage (Non-Citizen Status)
Congressional Classification
Test: rational basis.
State and Local Classification
Test: strict scrutiny.

2. Level of Review - See picture

Question 4

TAKING:
Real personal property (including rights to possess,
use, dispose, etc.)
• Some intangible property

• • Temporary occupation: may be takings (depending
    on degree of invasion, duration,
    government intention and foreseeability with
    respect to result, character of property and
    interference with use.
• • Development Exception: traditional conditions on
    property development (e.g., streets, utility easements)
    are not taking if benefits are roughly proportional
    to burdens.
• • • e.g. Regular military flights over chicken farm at low
      altitude scared chickens to death. Taking? -> Yes.
• -Analysis: Ad-hoc analysis: Maybe (but difficult to claim) a taking considering:
  • economic impact of regulation,
  • interference with investment-backed expectations,
  and
  • character of government action.

Answer 4

CONTRACT CLAUSE:

Tests
Private Contracts: Substantial impairment of existing
rights invalid unless:
• legitimate or significant purpose, AND
• reasonable or appropriate means
Public Contracts: Heightened scrutiny (intermediate
or strict scrutiny)Tests
Private Contracts: Substantial impairment of existing
rights invalid unless:
• legitimate or significant purpose, AND
• reasonable or appropriate means
Public Contracts: Heightened scrutiny (intermediate
or strict scrutiny)

EX POST FACTO LAWS
Rule: Neither state nor federal government may pass
legislation that retroactively alters criminal liability.

• Categories:
  • Criminalize act that was innocent when done.
  • Make crime greater than when committed.
  • Set greater punishment than when act was done.
  • Reduce evidence required to convict from what
  was required at time of act.
• • You can sue the state for contracts, not immuned.

Question 5

First Amendment:

Expressive Conduct
Conduct that is inherently expressive.
Conduct that is:
intended to convey message, and
reasonably likely to be perceived as conveying message.

Not speech: Arson, Ordinary clothing
Speech: Flag burning, Ballet, Nude dancing, Black arm band

Category:
- Unprotected:• Incitement • Fighting Words • True Threats • Obscenity • Child Pornography • Defamation
with actual malice • Commercial Speech (false, misleading, or illegal)

• Partly protected:• Defamation about public officials, public figures, or matters of public concern •Commercial Speech (not false, misleading, or illegal)
• PROTECTED:• All Other Speech
  (e. g., Dante, Mortal Kombat)

Answer 5

• Not Protected Speech
  1. INCITEMENT
  Test: Advocacy of lawless action that is:
  • intended to produce imminent lawless action, and
  • likely to produce imminent lawless action.
  Mere advocacy of lawlessness is protected speech.

2. FIGHTING WORDS
   Test: Words likely to provoke an immediate violent
   response. (if not direct to particular person, then not fighting words)
3. TRUE THREATS
   Test: Words intended to convey to someone a serious
   threat of bodily harm. (Cross burning at kkk alley v. in black neighbor’s yard - protected v. unprotected)
4. OBSCENITY
   Test: Depiction of sexual conduct defined by state law
   that taken as a whole, by contemporary community
   standards,
   • appeals to the prurient interest in sex,
   • is patently offensive, AND
   • lacks serious social value by national standards.
5. CHILD PORNOGRAPHY
   Test: Depiction of children engaging in sexual conduct
   defined by state law, whether or not obscene.

6.DEFAMATION
Test:To promote robust public debate, 1A bars recovery
under state defamation law for speech made without
actual malice about

Needs - Knowledge of falsity, or • Reckless disregard of the truth.

Identify plaintiff -> public or private -> what’s the subject matter, public or private concern, see picture

Question 6

COMMERCIAL SPEECH

Includes: ads and promotions of products and services,
brand marketing (e.g., Nike swish)
Insufficient: profit motive (e.g., Dickens, New York
Times)

Protected v. Unprotected
• Unprotected
• false,
• misleading, or
• illegal product or service
• Protected: all other commercial speech

Test (Intermediate Scrutiny):
• Substantial government interest (e.g., consumer
protection)
• Narrowly tailored (reasonable fit => least restrictive)

Answer 6

SPEECH RESTRICTIONS ON GOVERNMENT PROPERTY

See forums on picture.

• Public Forums: content based -> SS, content neutral ->IS

STUDENT SPEECH
Personal student speech
• Cannot be censored absent evidence of substantial disruption.
• Exception: speech promoting illegal drug use does not require showing any disruption. (Frederick, 2007)

SCHOOL SPEECH (including curricular student speech)
• Can be censored if reasonably related to legitimate pedagogical concern.

PUBLIC EMPLOYMENT ***
Public Employee Speech

• Unprotected:
• private concern at workplace (e.g., office gossip), or
• public concern, but pursuant to official duties
(e.g., TPS report, closing argument)

• Protected:
• private concern outside workplace (e.g., dinner
conversations), or
• public concern, as citizen rather than pursuant
to official duties, at or outside workplace (e.g.,
political chat at lunch)

Question 7

Question:

1. Due Process claims can be based on legitimate claims or entitlements to property.
2. regulatory agency that can make rules regarding the enforcement of the statute, the agency can construe “repeated violations” so as to comport with due process requirements.
3. The Supreme Court has held that remedying past discrimination is a compelling interest and that the type of hiring program described in this choice was necessary to achieve that interest.
4. Although state classifications based on alienage are generally suspect, a state may reserve a government position for citizens if it is related to self-governance, involves policymaking, or requires exercise of important discretionary power over citizens. (for example, performs important government functions)
5. The Privileges or Immunities Clause of the Fourteenth Amendment would not apply to a state tax on interstate commerce that discriminates against a natural person who is a nonresident. It applies when a state denies its own citizens rights of national citizenship
6. A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest.
7. When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test. The Supreme Court has specifically held that a state’s interest in fiscal integrity is not sufficient to justify a one-year waiting period for welfare or health benefits.
8. A park is a public forum. The government can limit rights of speech in such a forum only when there is a serious and imminent threat to the public order.
9. he Supreme Court has held that businesses selling material that is sexually explicit, although not necessarily obscene, may be regulated through land use ordinances designed to reduce the secondary effects of such businesses. Thus, a zoning ordinance prohibiting the location of adult bookstores and theaters in areas close to residential zones and restricting such theaters to a limited area of the city is permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community.

Answer 7

10. Private actor licensed from government or received a fund from government will not count as state action