Con Law Overview

Question 1

No Advisory Opinions

Is there a Case or Controversy?

Answer 1

Ripeness - harm must actually be threatened.

Mootness - must be real, live controversy at all stages; if issue has been resolved, court will not hear.
EXCEPT: Situation capable of repetition yet evading review

Standing - P must have a concrete stake in teh outcome at all stages of litigation
* Injury in fact - specific injury, not theoretical
* Taxpayers - too remote/abstract
** EXCEPT - Taxing and spending measures that violate the Establishment Clause**
* Remediable by court decision

Adequate and independent state grounds - a federal court will not hear appeal from state court if adequate and independt nonfederal grounds support state decision.

Question 2

Abstention

Is There a Case or Controversy?

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

Political Question

Is there a Case or Controversy?

Answer 3

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

Question 4

11th Amendment and Sovereign Immunity

Is there a Case or Controversy?

Answer 4

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

1. Waiver - Can be express (explicit consent) or structural (implicit consent to yield immunity with respect to certain federal powers based on teh plan of the Constitution)
2. EXCEPTIONS - Actions against sstate officers and removal of immunity under 14th Amendment.

Question 5

Necessary and Proper Clause

Is Law Within Congress’s Power?

Answer 5

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

Question 6

Taxing Power

Is Law Within Congress’s Power

Answer 6

If revenue raising, generally valid

Question 7

Spending Power

Is Law within Congress’s Power?

Answer 7

Spending may be for any public purpose; Congress may regualte byond enumerated powers by attaching strings to a grant as long as the strings are:
1. clearly stated,
2. related to the purpose of the grant, and
3. not unduly coercive

Question 8

Commerce Power

Is Law Within Congress’s Power?

Answer 8

Congress may regulate:
1. Channels of interstate commerce - roads, rails, waterways, phones, etc.
2. Instrumentalities of interestate commerce - trucks, trains, planes, etc.
3. Activities having a substantial economic effect on interstate commerce - generally must be economic or commercial activity.

Question 9

Property Power

Is Law Within Congress’s 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

Miscellaneous Other Powers

Is Law Within Congress’s Power?

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

Delegation

Is Law Within Congress’s Power?

Answer 11

Congress may delegate its power to ther branches:
1. Intelligble standard “requriement” for delegation (usually, almost anything suffices)
2. Exception - major questions doctrine: Agency seeking to adopt rules having extraordinary economic and political significance must be able to point to language clearly granting such authority

Question 12

Speech or Debate Clause

Is Law Within Congress’s Power?

Answer 12

Immunity for speech made within Congress

Question 13

Legislative Veto

Is Law Within Congress’s Power?

Answer 13

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

Question 14

Domestic Powers of President

Is President Acting Within Executive Power?

Answer 14

Appointment and removal of officers and Supreme Court Justices with advice and consent of Senate

Paron - Federal crimes only

Veto Power - 10 days to veto; if President fails to act in 10 days and:
1. Congress in session = approval
2. Congress out = pocket veto
3. No line item veto

Power as chief executive/executive orders - Youngstown guidance from Justice Jackson:
1. if express or implied authority from Congress - action likely valid
2. If Congress silent - action valid if it does not impinge on powers of another branch
3. If against Congress’s will - action likely invalid.

Question 15

Power Over External Affairs

Is President Acting Within Executive Power?

Answer 15

1. President may commit troops but power to “declare war” belongs to Congress
2. Treaty Power - signs treaties with approval of 2/3 Senate
   * Treaty is on par with other federal laws (“supreme law of land”)
   * Treaties cannot conflict with constitution
3. Executive Agreements - enforcebale if not in conflict with federal law, treaties, or Constitution

Question 16

Executive Privilege/Immunity

Is President Acting Within Executive Power?

Answer 16

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

Question 17

Impeachment

Is President Acting Within Executive Power?

Answer 17

President, VP, and all U.S. civil officers may be impeached for treason, bribery, high crimes, and misdemeanors by majoirty vote of the House; are tried by Senate; and conviction requires 2/3 vote of Senate

Question 18

Federal v. 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

• Actual Conflict - state law invlaid
• interference with federal objectives - state law invlaid
• Preemption - no room for state legislatio; COngress controls entire field
• Express Preemption - narrowly construed
• Field (implied) Preemption - if federal law comprehensive or a federal agency oversees area, preemption may be found
• 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 the Commerce Clause)
   * Congress may delegate commerce power to states
   * Absent delegation, states may not intentionally discriminate against interstate commerce
   - EXCEPTION: Necessary to achieve an important state interst (that is, no reasonable alternatives available)
   - EXCEPTION: State acting as a market participant (a. might still violate the privileges and immunities clause; b. no downstream restrictions - state cannot control what happens to goods after state sells them.
   - Traditional government function
   * Nondiscriminatory state law - may not be unduly burdensome (burden on interstate commerce cannot outweigh promotion of the legitimate state interest sought to be served)
   - Nondiscriminatory state tax affecting interstaet commerce requires: 1) substantial nexus between object of tax and taxing state; 2) fair apportionment accordin to rational forumla; 3) fair relationship to services or benefits provided by state
4. 21st Amendment - liquour regulation - state can regulate sale of liquour, but cannot favor local businesses.

Question 19

Federal v. State Power

Suits

Answer 19

1. The US may sue states without hteir ocnsent
2. States cannot sue the US without its consent
3. State can sue state in federal court; Supreme Court has exlcusive Jurisdiction

Question 20

Federal v. 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 v. 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 (for example, 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 citizens 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 and Immunities

Answer 24

Prohibits state from denying their own citizens rights of national citizenship (corporations are not citizens)

Question 25

Individual Rights

Prohibition 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. Exectpion - law valid if: 1) serves an important interst; 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. Proscribes 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 teh courts

3 - Bill sof 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 Amend (federal government); 14th Amend (states)

2 - Requires fair process/procedure when government acts intentionally or recklessly to deprive a person individually of life, liberty, or proerpty.
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 governemtn benefits: 1) public employment is a proeprty right if claim to entitlement through contract, policy, law, etc.

3 - Balancing test for determining fair process in terms of timing (pre- v. post-deprivation) and scope of hearing. The court weights:
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 purpose liberally construed

3 - Actual or physical appropriation almost always a taking, even if proeprty taken is small
a. Exceptions: emergencies

4 - Use Restrictions (action for inverse condemnation)
a. denial of all economic value - taking
b. Decrease in economic value - generally not a tkaing 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 properotional to owner’s loss

5 - Just compensation - reasonable (fair market) vlaue of property taken at time of taking

Question 28

Individual Rights

Substantive Due Process

Answer 28

1 - Two Due Process Clauses: 5th Amend (federal); 14th Amend (state)

2 - Prohibition against unreasonable laws

3 - Reasonableness Test depends on interest involved
a. Fundamental right (voitng interestae travel, privacy, 1st Amendment rights) - strict scrutiny - government must prove action is necessary to achieve a compelling government interest
b. All other interests - rational basis - Challenger must prove action not rationally related to any legitimate government interest

4 - Requires laws to give fair notice of conduct that is forbidden on or required

Question 29

Individual Rights

Equal Protection

Answer 29

1 - 14th Amend 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. Governmetn must prove action is necessary to achieve a compelling ogvernment interest
2. Affirmative action (favoring minorities) invalid unless: seeking to remedy past discrimination within jx
3. Promoting diversity in a student body is not a compelling interest at any level of education (that is, primary, secondary, or college/university): Most programs that consider race in school admissions/assignmetn decisions will not survive strict scrutiny
4. Alienage - state/local laws on alienage are suspect, except alienage can be considered for state employment positions involving teh self-government process (including police officers and primary and secondary schoolteachers)

c) Quasi-suspect classification (sex and legitimacy) - intermediate scrutiny
1. Governmetn must show discrimination is substantially related to an important governmetn interest
2. Sex discrimination - exceedingly persuasive justiification required: interst must be genuine and not hypothesized

d) all other classifications - rational basis standard

Question 30

Individual Rights

Abortion

Answer 30

1. Recent Supreme Court Ruling - no constitutional right to an abortion
2. Matter is left to the states to legislate

Question 31

Individual Rights

Other Privacy Rights

Answer 31

Include marriage, use of contraceptives, possession of obscene reading material in teh home (except child pronography), right to live with extended family, right to educate and raise children

1. Limitaitons 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 governmetn interest in regulation

Question 32

Individual Rights

Voting Rights

Answer 32

1 - Short residency requriement (i.e., 30 days) - valid

2 - One person, one vote
a) congressional elections - almost exact mathematical equality requried ( a few percentage points may be fatal)
b) state and local elections - varienace 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 (part 1)

Answer 34

1 - 1st Amend limits government regualtion of private speech

2 - 1st Amend inapplicable to government speech
a) Permanent monuments on government proeprty a form of government speech.
b) Government funding of private speech - generally must be viewpoint neutral
1. Exception: Governmetn funding of the arts
c) Limitation: Not all speech on government property is government speech
1. Holistic approach to determine government versus private speech

3 - Regulation of Speech based on content - generally prohibtied
a) Exceptions: Unprotected Categories
b) Speech of Governmetn employees
1. Official Duties - government may punish public employee for unwanted speech made as part of employee’s official duites
2. private speech of government employee: (a) matter of public concern - balance employee’s right as a citizen to commetn 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
1. Prohibition against substantially more speech than necessary voidable as to affected person for overbreadth
2. Prohibition including a substantial amount of protected speech compared to its legitimate sweep - void as to everyone
3. Regulation failing to give reasonable notice of what is prohibited has chilling effect on speech and violates due process
4. Official cannot have unfettered discretion over speech issues

Question 35

Individual Rights

Freedom of Speech (part 2)

Answer 35

5 - Scope of Speech: Includes freedom to refrain from speaking
1. mandatory financial support of government speech - no 1st amendment concerns
2. Mandatroy financial support of private speech - protected
3. speech includes symbolic conduct

6 - Time, place, and manner regulation
1. Public Forums (such as sidewalks and parks) and designated public forums (such as schoolrooms open for use after shcool for social events) - regulation will avoid strict scrutiny and be upheld if: 1) content neutral, 2) narrowly tailored to serve an important government interest, 3) leaves open alternative channels of communication
2. Limited public forums (that is, public property open for expressive activites only on a certain topic) and nonpublic forums (that is, public properyt not open for expressive activities) - regualtion valid if: 1) viewpoint neutral, 2) Reasonably related to a legitimate government purpose

7 - Unprotected Speech: some speech is not protected by 1st Amend
1. Clear and present danger of imminent lawless action
2. Fighting words (including true threats) - statues often overbroad or vague
3. Obscenity - 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 (NOTES: (1) standard for minors may be different; (2) can prohibit pictures of minors engaging in sex that would nto be obscene if engaged in by adults; (3) zoning ordinances may limit the location of adult entertainment establishments if designed to reduce the secondary effects of such businesses)
4. Defamation - 1) public official or figure: P must prove actual malice (actual malice = knowledge of falisty or reckless disregard as to truth); 2) private individual suing on matter of public concern - must prove at least negligence; 3) Privacy Torts - media D cannot be sued for publsihing a true fact about a public record alwfully obtained.

Question 36

Individual Rights

Freedom of Speech

Answer 36

8 - Commercial Speech:
1. If speech about unlawful activity or untrue nature or misleading speech - unprotected
2. Speech regarding lawful activity and not false or misleading - regulation vlid if it: a) serves a substnatial government interest, 2) directly advances that interest, 3) is narrowly tailored to serve that interest
3. COmplete bans unsually invalid

9 - Prior Statements
1. Invalid unless justified by a special societal harm or pursuant to contract
2. 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
3. Broadcast media may be mroe closely regulated than press; cable tv between the two; Internet regulation subject to strict scrutiny if content-based

Question 37

Individual Rights

Freedom of Association and Belief

Answer 37

1 - Electoral Process - Sliding scale to judge restictions on electoral process
1. Sever restriction on 1st Amend activity must be narrowly tailored to achieve a compelling purpose
2. reasonble and nondiscriminatory regulations generally valid

2 - Governemtn 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
1. Oath to supprot eh Constitutiona nd to oppose illegal overthrow of government - okay

4 - Disclosure of associations for government benefits/employment
1. permissible if relevant to position

5 - School sponsorship of extracurricular clubs
1. Can be content based if viewpoint neutral and reasonably related to a legitimate government interest

Question 38

Individual Rights

Freedom of Religion

Answer 38

1 - Free Exercise Clause
1. No punishment of beliefs - total freedom to believe as desired
2. conduct cannto be punished solely becuase religious
3. no exclusion from government benefits solely because organization is religious
4. General conduct regulation that incidentally burdens religious practice - generally valid
5. Religious exemptions for religious belief generally not required except: 1) amish exempt form mandatory secondary education, 2) conscientious objectors who refuse munitions work from unemployment compensation laws requiring applicants to accept any job.

2 - Establishment Clause: government cannto aid or formally establish a religion
1. compels neutrality
2. but if not neutral, may still be permitted based on historical tradition/practice and understanding of Founding Fathers
* not violated every time a government entity fails to censor religious speech
* neutral benefit program vlaid even if independent choices of recipients leads public money to go to religious organizations
* school-sponsored religious activity invalid (i.e., requiring bible study as part of public school curriculum) but accommodation of religion may be valid (i.e., coach’s silent prayer on field after public high school game)