Con Law - Overview

Question 1

IS THERE A CASE OR CONTROVERSY? - No Advisory Opinions

Answer 1

1. Ripeness—harm must actually be threatened
2. Mootness—must be real, live controversy at all stages; if issue has been resolved, court will not hear
   a. Exception—situation capable of repetition yet evading review
3. Standing—plaintiff must have a concrete stake in the outcome at all stages of litigation
   a. Injury in fact—specific injury, not theoretical
   1) Taxpayers—too remote/abstract
   a) Exception: Taxing and spending measure violating Establishment Clause
   b. Remediable by court decision
4. Adequate and independent state grounds—court will not hear appeal from state court if adequate and independent nonfederal grounds support state decision

Question 2

IS THERE A CASE OR CONTROVERSY? - Abstention

Answer 2

If action already going on in state court on unsettled question of state law, federal court will abstain so state can settle issue

Question 3

IS THERE A CASE OR CONTROVERSY? - Political Question

Answer 3

Court will not decide issue that is not suitable for judicial branch

Question 4

IS THERE A CASE OR CONTROVERSY? - 11th Amendment and Sovereign Immunity

Answer 4

Generally cannot sue state in federal court for damages (without state’s permission)

1. Exceptions: Actions against state officers and removal of immunity under 14th Amendment

Question 5

IS LAW WITHIN CONGRESS’S POWER? - Necessary and Proper Clause

Answer 5

Congress has the power to make laws necessary and proper for executing any power granted to any branch of federal government

Question 6

IS LAW WITHIN CONGRESS’S POWER? - Taxing Power

Answer 6

If revenue raising, generally valid

Question 7

IS LAW WITHIN CONGRESS’S POWER? - Spending PowerSpending Power

Answer 7

Spending may be for any public purpose; Congress may regulate beyond enumerated powers by attaching strings to a grant as long as the strings are: (i) clearly stated, (ii) related to the purpose of the grant, and (iii) not unduly coercive

Question 8

IS LAW WITHIN CONGRESS’S POWER? - Commerce Power

Answer 8

Congress may regulate:

1. Channels of interstate commerce—roads, rails, waterways, phones, etc.
2. Instrumentalities of interstate commerce—trucks, trains, planes, etc.
3. Activities having a substantial economic effect on interstate commerce
   a. Generally must be economic or commercial activity

Question 9

IS LAW WITHIN CONGRESS’S POWER? - Property Power

Answer 9

Includes power of eminent domain, to dispose of federal property, and to make rules/ laws regulating federal lands and Indian reservations

Question 10

IS LAW WITHIN CONGRESS’S POWER? - Miscellaneous Other Powers

Answer 10

War (including power to declare war and fund war), investigatory, bankruptcy, postal, citizenship, admiralty, coin money, fix weights and measures, and grant patents and copyrights

Question 11

IS LAW WITHIN CONGRESS’S POWER? - Delegation

Answer 11

1. Congress may delegate its power to other branches

a. Intelligible standard “requirement” for delegation (almost anything suffices)

Question 12

IS LAW WITHIN CONGRESS’S POWER? - Speech or Debate Clause

Answer 12

Immunity for speech made within Congress

Question 13

IS LAW WITHIN CONGRESS’S POWER? - Legislative Veto

Answer 13

Congress cannot make a law reserving to Congress the right to overturn discretionary executive action without passing a new law and presenting it to the President for approval

Question 14

IS PRESIDENT ACTING WITH EXECUTIVE POWER? - Domestic Powers of President

Answer 14

1. Appointment and removal of officers and Supreme Court Justices with advice and consent of Senate
2. Pardon—federal crimes only
3. Veto power—10 days to veto; if President does not do so and:
   a. Congress in session = approval
   b. Congress out = pocket veto
   c. No line item veto
4. Power as chief executive/executive orders— Youngstown guidance from Justice Jackson:
   a. If express or implied authority from Congress—action likely valid
   b. If Congress silent—action valid if it does not impinge on powers of another branch
   c. If against Congress’s will—action likely invalid

Question 15

IS PRESIDENT ACTING WITH EXECUTIVE POWER? - Power Over External Affairs

Answer 15

1. President may commit troops but power to “declare war” belongs to Congress
2. Treaty power—signs treaties with approval of two-thirds of Senate
   a. Treaty is on par with other federal laws (“supreme law of land”)
   b. Treaties cannot conflict with Constitution
3. Executive agreements—enforceable if not in conflict with federal law, treaties, or Constitution

Question 16

IS PRESIDENT ACTING WITH EXECUTIVE POWER? - Executive Privilege/Immunity

Answer 16

1. Privilege extends to documents and conversations but must yield if court decides information needed in criminal case
2. Immunity
   a. President immune from suits for civil damages for actions taken as President
   b. Immunity extends to aides exercising discretionary authority of President

Question 17

IS PRESIDENT ACTING WITH EXECUTIVE POWER? - Impeachment

Answer 17

President, vice president, and all U.S. civil officers may be impeached for treason, bribery, high crimes, and misdemeanors by majority vote of the House; are tried by Senate; and conviction requires two-thirds vote of Senate

Question 18

FEDERAL VS. STATE POWER - Supremacy Clause

Answer 18

1. Most governmental power shared between state and federal government
2. Federal law supreme, and conflicting state law is invalid
   a. Actual conflict—state law invalid
   b. Interference with federal objectives—state law invalid
   c. Preemption—no room for state legislation; Congress controls entire field
   1) Express preemption—narrowly construed
   2) Field (implied) preemption—if federal law comprehensive or a federal agency oversees area, preemption may be found
   3) Presumption that historic state police powers not intended to be preempted unless that is the clear and manifest purpose of Congress
3. Dormant Commerce Clause (negative implications of Commerce Clause)
   a. Congress may delegate commerce power to states
   b. Absent delegation, states may not intentionally discriminate against interstate commerce
   1) Exception: Necessary to achieve an important state interest (that is, no reasonable alternatives available)
   2) Exception: State acting as a market participant
   a) Might still violate the Privileges & Immunities Clause
   b) No downstream restrictions—state cannot control what happens to goods after state sells them
   3) Traditional government function
   c. Nondiscriminatory state law—may not be unduly burdensome (burden on inter- state commerce cannot outweigh promotion of the legitimate state interest sought to be served)
   1) Nondiscriminatory state tax affecting interstate commerce—must be:
   a) Substantial nexus between object of tax and taxing state
   b) Fair apportionment according to rational formula
   c) Fair relationship to services or benefits provided by state
4. 21st Amendment—liquor regulation—states can regulate sale of liquor, but cannot favor local businesses

Question 19

FEDERAL VS. STATE POWER - Suits

Answer 19

1. The United States may sue states without their consent
2. States cannot sue the United States without its consent
3. State can sue state in federal court; Supreme Court has exclusive jurisdiction

Question 20

FEDERAL VS. STATE POWER - Federal Taxation/Regulation of States—10th Amendment Concerns

Answer 20

1. Tax/regulation applying to both private and state entities—valid
2. Tax/regulation of states as states—generally invalid
   a. Commandeering state officials—cannot require states to regulate their own citizens
   b. Exceptions: Strings on federal grants of money and civil rights

Question 21

FEDERAL VS. STATE POWER - State Taxation/Regulation of Federal Government

Answer 21

1. State cannot directly tax federal government
2. State cannot directly regulate federal government
3. State may tax federal employee and contractor salaries (indirect tax)

Question 22

INDIVIDUAL RIGHTS - State Action Limitation

Answer 22

1. The Constitution limits actions of government, so there must be state (that is, government) action in order to find action unconstitutional
2. Private action can sometimes be attributed to government:
   a. Traditional and exclusive government function (e.g., running a town or election)
   b. Significant state involvement
   1) Official encouragement or use of judicial machinery
   2) Entwinement of state and private actors
   3) But mere regulation, provision of public services, or licensing not enough

Question 23

INDIVIDUAL RIGHTS - Article IV Privileges and Immunities

Answer 23

1. Prohibits states from discriminating against RESIDENTS of other states with respect to “fundamental” rights (Note: Corporations and aliens are not citizens)
2. Mainly used to prevent substantially unequal treatment regarding commercial activities
3. Substantial justification exception if nonresidents are part of problem and there are no less restrictive means to solve problem

Question 24

INDIVIDUAL RIGHTS - 14th Amendment Privileges or Immunities Clause

Answer 24

1. Prohibits states from denying their own RESIDENTS rights of national citizenship (corporations are not citizens)

Question 25

INDIVIDUAL RIGHTS - Prohibitions Against Retroactive Legislation

Answer 25

1. Contracts Clause—applies only to states
   a. Prevents only substantial impairment of a party’s rights under an existing contract
   b. Exception—law valid if:
   1) Serves an important interest; and
   2) Is narrowly tailored to promote that interest
   c. Public contracts subject to stricter scrutiny
   1) State cannot be obligated to refrain from exercising its police power
   2) Law should not broadly repudiate government contractual obligations
2. Ex post facto laws—prohibited
   a. Makes criminal an act that was innocent when done
   b. Prescribes greater punishment than what was prescribed when act was committed
   c. Reduces evidence required to convict
   d. Specifically applies only to legislation, but due process prohibits similar changes by the courts
3. Bills of attainder—prohibits laws inflicting punishment without a trial on people by name or past conduct

Question 26

INDIVIDUAL RIGHTS - Procedural Due Process

Answer 26

1. Two Due Process Clauses: 5th Amendment (federal government); 14th Amendment (states)
2. Requires fair process/procedure when government acts intentionally to deprive a person individually of life, liberty, or property
   a. Both actual bias and serious risk of actual bias unconstitutional
   b. Liberty includes losses of significant freedom of action
   c. Property includes legitimate claims/entitlements to government benefits
   1) Public employment is a property right if claim to entitlement through contract, policy, law, etc.
3. Balancing test for determining fair process in terms of timing (pre- vs. post-depriva- tion) and scope of hearing. The Court weighs:
   a. Importance of individual right
   b. Value of specific procedural safeguard involved
   c. Governmental interest in fiscal and administrative efficiency

Question 27

INDIVIDUAL RIGHTS - Takings

Answer 27

1. If government takes land for public purpose, it must provide just compensation
2. Public purposes liberally construed
3. Actual or physical appropriation almost always a taking, even if property taken is small
   a. Exception: Emergencies
4. Use restrictions (action for inverse condemnation)
   a. Denial of all economic value—taking
   b. Decrease in economic value—generally not a taking if economically viable use remains
   c. Dedications—cannot condition building permits on forced dedication unless:
   1) Government can show legitimate interest, and
   2) Adverse impact of development roughly proportional to owner’s loss
5. Just compensation—reasonable (fair market) value of property taken at time of taking

extra note from Q’s: The court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives.

Question 28

INDIVIDUAL RIGHTS - Substantive Due Process

Answer 28

1. Two Due Process Clauses: 5th Amendment (federal); 14th Amendment (states)
2. Prohibition against unreasonable laws
3. Reasonableness test depends on interest involved
   a. Fundamental right (voting, interstate travel, privacy, 1st Amendment rights)— strict scrutiny
   1) Government must prove action is necessary to achieve a compelling government interest
   b. All other interests—rational basis
   1) Challenger must prove action not rationally related to any legitimate government interest
4. Requires laws to give fair notice of conduct that is forbidden or required

Question 29

INDIVIDUAL RIGHTS - Equal Protection

Answer 29

1. 14th Amendment prohibition against unreasonable discrimination by states
2. Test for reasonableness depends on criteria used to classify (suspect or quasi- suspect class) and nature of right (fundamental right)
   a. Discriminatory intent by government:
   1) Law discriminatory on its face
   2) Discriminatory in application
   3) Discriminatory motive
   4) If facially neutral, no discriminatory application, and no discriminatory motive, then rational basis test applies
   b. Suspect classification (race and national origin) or fundamental right—strict scrutiny
   1) Government must prove action is necessary to achieve a compelling government interest
   2) Affirmative action (favoring minorities) invalid unless:
   a) Seeking to remedy past discrimination within jurisdiction
   3) Race can be a factor considered in admission of students in institutions of higher education to achieve a diverse student body
   a) Cannot be a special/weighty factor
   4) Alienage can be considered for state employment positions involving the self-government process—including police officers and primary and secondary schoolteachers
   c. Quasi-suspect classification (sex and legitimacy)—intermediate scrutiny
   1) Government must show discrimination is substantially related to an impor- tant government interest
   2) Sex discrimination—exceedingly persuasive justification required
   a) Interest must be genuine and not hypothesized
   d. All other classifications—rational basis standard

Question 30

INDIVIDUAL RIGHTS - Abortion

Answer 30

1. Competing interests—mother’s right to privacy vs. fetus’s interest in becoming a child
2. Pre-viability—no undue burdens on right to obtain an abortion
3. Post-viability—may prohibit abortion except when woman’s health threatened
4. No right to government funding of abortion services

Question 31

INDIVIDUAL RIGHTS - Other Privacy Rights

Answer 31

—marriage, use of contraceptives, obscene reading material in the home (except child pornography), living with extended family, to educate and raise children

1. Limitations generally subject to strict scrutiny or at least intermediate scrutiny but language in cases not consistent
2. Intimate private, noncommercial sexual contact between fully consenting adults—no legitimate government interest in regulating

Question 32

INDIVIDUAL RIGHTS - Voting Rights

Answer 32

1. Short residency requirement (e.g., 30 days)—valid
2. One person, one vote
   a. Congressional elections—almost exact mathematical equality required (a few percentage points may be fatal)
   b. State and local elections—variance not unjustifiably large (16% variance upheld)
3. Fees—cannot preclude indigent candidates

Question 33

INDIVIDUAL RIGHTS - Right to Travel Interstate

Answer 33

1. Durational residency requirements for dispensing benefits ordinarily subject to strict scrutiny (30-day period probably okay; one year invalid)
2. Distinctions between old and new residents—invalid

Question 34

INDIVIDUAL RIGHTS - Freedom of Speech

Answer 34

1. 1st Amendment limits government regulation of private speech
2. 1st Amendment inapplicable to government speech
   a. Permanent monuments on government property a form of government speech
   b. Government funding of private speech—generally must be viewpoint neutral
   1) Exception: Government funding of the arts
3. Regulation of speech based on content—generally prohibited
   a. Exceptions: Unprotected categories (see 7., infra)
   b. Speech of government employees
   1) Official duties—government may punish public employee for unwanted speech made as part of employee’s official duties
   2) Private speech of government employee
   a) Matter of public concern—balance employee’s right as a citizen to comment against government’s interest as employer in efficient performance of public service
   b) Not a matter of public concern—employer has broad discretion to punish employee’s disruptive speech
4. Overbreadth and vagueness
   a. Prohibition against substantially more speech than necessary voidable as to affected person for overbreadth
   b. Prohibition including a substantial amount of protected speech compared to its legitimate sweep—void as to everyone
   c. Regulation failing to give reasonable notice of what is prohibited has chilling effect on speech and violates due process
   d. Official cannot have unfettered discretion over speech issues
5. Scope of speech—includes freedom to refrain from speaking
   a. Mandatory financial support of government speech—no 1st Amendment concerns
   b. Mandatory financial support of private speech—protected
   c. Speech includes symbolic conduct
6. Time, place, and manner regulation
   a. Public forums (e.g., sidewalks and parks) and designated public forums (e.g., schoolrooms open for use after school for social events)—regulation will avoid strict scrutiny and be upheld if:
   1) Content neutral
   2) Narrowly tailored to serve an legitimate government interest
   3) Leaves open alternative channels of communication
   b. Limited public forums (that is, public property open for expressive activities only on a ceratin topic) and nonpublic forums (that is, public property not open for expressive activities)—regulation valid if:
   1) Viewpoint neutral
   2) Reasonably related to a legitimate government purpose
7. Unprotected speech—some speech is not protected by 1st Amendment:
   a. Clear and present danger of imminent lawless action
   b. Fighting words (including true threats)
   1) Statutes often overbroad or vague
   c. Obscenity
   1) Test:
   a) Appeals to the prurient interest in sex;
   b) Portrays sex in a patently offensive way; and
   c) Does not have serious literary, political, or scientific value judged from a national standard
   2) Standard for minors may be different
   3) Can prohibit pictures of minors engaging in sex that would not be obscene if engaged in by adults
   4) Zoning ordinances may limit the location of adult entertainment establishments if designed to reduce the secondary effects of such businesses (e.g., rise in crime, reduction of property values)
   d. Defamation
   1) Public official or figure—plaintiff must prove actual malice
   a) Actual malice = knowledge of falsity or reckless disregard as to truth
   2) Private individual suing on matter of public concern—must prove at least negligence
   3) Privacy torts—media defendant cannot be sued for publishing a true fact about a public record lawfully obtained
8. Commercial speech
   a. If speech about unlawful activity or untrue or misleading speech—unprotected
   b. Speech regarding lawful activity and not false or misleading—regulation valid if it:
   1) Serves a substantial government interest
   2) Directly advances that interest
   3) Is narrowly tailored to serve that interest
   c. Complete bans usually invalid
9. Prior restraints
   a. Invalid unless justified by a special societal harm or pursuant to contract
   b. Procedural safeguards
   1) Standards must be narrowly drawn, reasonable, and definite
   2) Injunction must be sought promptly
   3) There must be a prompt and final determination of validity of restraint
   c. Broadcast media may be more closely regulated than press; cable TV between the two; Internet regulation subject to strict scrutiny

Question 35

INDIVIDUAL RIGHTS - Freedom of Association and Belief

Answer 35

1. Electoral process—sliding scale to judge restrictions on electoral process
   a. Severe restriction on 1st Amendment activity must be narrowly tailored to achieve a compelling purpose
   b. Reasonable and nondiscriminatory regulations generally valid
2. Government employees may be sanctioned for speech undertaken as part of official duties; balancing test determines whether other speech may be sanctioned—right to comment on matter of public concern vs. government interest in efficient and orderly workplace
3. Loyalty oaths for federal employees and public officials permissible if not overbroad
   a. Oath to support the Constitution and to oppose illegal overthrow of government okay
4. Disclosure of associations for government benefits/employment a. Permissible if relevant to position
5. School sponsorship of extracurricular clubs
   a. Can be content based if viewpoint neutral and reasonably related to a legitimate government interest

Question 36

INDIVIDUAL RIGHTS - Freedom of Religion

Answer 36

1. Free Exercise Clause
   a. No punishment of beliefs—total freedom to believe as desired
   b. Conduct cannot be punished solely because religious
   c. General conduct regulation that incidentally burdens religious practice—generally valid
   d. Religious exemptions for religious belief generally not required except:
   1) Amish from mandatory secondary education
   2) Conscientious objectors who refuse munitions work from unemployment compensation laws requiring applicants to accept any job
2. Establishment Clause—government action/law respecting the establishment of religion valid if action/law:
   a. Has a secular purpose
   b. Has a primary effect that neither advances nor prohibits religion
   c. Does not cause excessive entanglement between government and religion
   1) Prayer in public schools generally prohibited
   2) Invocation prayer at legislative sessions and town hall meetings generally valid (recognizes long history of prayer in America and adults not of tender impressionable years)
   3) Religious symbols in Christmastime displays valid if accompanied by nonre- ligious symbols (recognizes historic roots of American Christmas holiday)
   4) Displays of religious symbols (e.g., the Ten Commandments) on public property invalid if shown to have a predominantly religious purpose

Question 37

Property interests and government jobs:

Answer 37

A public employee who is subject to removal only for “cause” has a property interest in his job and must be given notice of the charges against him that are to be the basis for his job termination, and a pretermination opportunity to respond to those charges.

Question 38

what constitutes a public forum vs. limited/nonpublic forum for speech regulation?

Answer 38

Other than streets, sidewalks, parks, and designated public forums, most public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum.