Con Law rules

Question 1

Limitations on Judicial Power - A federal judge cannot SMAC or PRAE.

Answer 1

• *S**TANDING
• *M**OOTNESS
• *A**BSTENTION for independent state grounds Case in CONTROVERSY
• *P**OLITICAL questions (republican form of government)
• *R**IPENESS
• *A**DVISORY opinion
• *E**LEVENTH Amendment

Question 2

Limitations on Legislative Power - As your congressman, I SWAP CAPITAL for DEFICIT.

Answer 2

INSOLVENCY (Bankruptcy) - shared with states

SPENDING (for general welfare)

WAR declaration - raise/support military, legislate wartime economic/social conditions

AFFAIRS related to foreign commerce

PROPERTY - rules & regulations on federal lands, including police power in DC

COMMERCE - interstate

ALIENS, naturalization, citizenship

POSTAL Service (limited by 1st & 4th Am.)

INVESTIGATION of facts related to subjects over which Congress may legislate

TAXING to Raise Revenue (general welfare)

ADMIRALTY - navigable waterways

LEGISLATE!!! (rather than execute or adjudicate the law)

DELEGATION of legislative authority (Chadha limitation on Pres veto power & bicameral structure)

ELECTIONS

FINANCE - necessary/proper to coin $; create banks, fed reserve, credit system set

INFERIOR federal court jurisdictional limits

CIVIL rights enforcement (13th, 14th, 15th Am.)

INTELLECTUAL Property - patent & copyright

TREATY ratification

Question 3

Presidential Power - The president can eat at PF chang’s with one CAVEAT.

Answer 3

• *P**ARDON convicted federal criminals
• *F**OREIGN Affairs
• *C**OMMANDER in chief of the armed forces APPOINTMENT of ambassadors, federal judges and superior officers
• *V**ETO power over acts of congress
• *E**XECUTIVE agreements and privileges
• *A**DVISE congress on state of the union in special session
• *T**REATY power

Question 4

Limits to Exercise of Power by Government - You must SPECIFICLE state how the government violated your constitutional rights.

Answer 4

SUBSTANTIVE DUE PROCESS

PROCEDURAL DUE PROCESS

EQUAL PROTECTION CLAUSE

CIVIL RIGHTS

IMMUNITIES granted to all citizens with regard to livelihood, employment, transfer of property, federally protected interests

FIRST AMENDMENT

IRREBUTTABLE presumptions of fact regarding constitutionally protected rights

CONTRACTS clause

retroactive LEGISLATION

ECONOMIC taking without just compensation

Question 5

Due process - Fundamental Liberties - Courts strictly scrutinize government action involving a STAR VP CAMPER.

Answer 5

* STAR VP - six fundamental freedoms

STAR VP:

freedom of SPEECH
right to TRAVEL
freedom of ASSOCIATION

freedom of RELIGION

right to VOTE
right to PRIVACY

* CAMPER - privacy rights

• *CAMPER**:
• *C**ontraception
• *A**bortion (“undue influence” branches w/intermediate scrutiny)
• *M**arriage (including dissolution)
• *P**rocreation
• *E**ducation of children outside public schools

Related persons’ right to live together

Question 6

Equal Protection - Strict Scrutiny Suspect Classes - The government RAN out of class when the judge strictly scrutinized its behavior.

Answer 6

RACE - purposeful discrimination required (facially or as applied)

ALIENAGE - state/local action only (except regulation of participation in government, e.g. teachers, police, jury duty subject to rational basis test); fed action gets rational basis test)

NATIONAL origin

Question 7

Takings - Valid Public Purpose - SHE validly took the SWAMP by eminent domain

5th Am. - Fed / 14th Am. - State/Local

Answer 7

SAFETY

HEALTH

ECONOMIC

SOCIAL

WELFARE

AESTHETIC

MORAL ENDS

POLITICAL

Question 8

Preemption by Federal Law - Federal law can PUSH around state law.

Answer 8

PERVASIVENESS

UNIFORMITY of federal regulatory scheme

SIMILARITY between laws

not HISTORICALLY left to State

Question 9

Dormant Commerce Clause - Nonresident Statutes Are Rude.
(limitation on state action)

Answer 9

NONDISCRIMINATORY intent, construction and application

SUBSTANTIAL nexus between state interest and burden on non-resident

APPORTIONED between residents and non- residents that reflects fundamental fairness

RELATEDNESS to State services or resources

Question 10

Obscenity - The materials on Miller’s LAPTOP is not obscene in the privacy of his home.
Miller v. California

Answer 10

LACKS literary, artistic, political or scientific value

AVERAGE person, applying contemporary community standards

appeals to the PRURIENT interest in sex

TAKEN as a whole

patently OFFENSIVE depiction of sexual conduct

POSSESSION of obscenity in privacy of home OK but child pornography can be entirely prohibited

Question 11

Unavailability of Privileges & Immunities claims - if U don’t give a CRAP, you can’t claim privileges & immunities.

Answer 11

UNITED STATES government

CORPORATIONS

RESIDENTS of the state whose law is being challenged

ALIENS

PARTNERSHIPS

Question 12

Limitation on State Action - The State’s PLEA fell on deaf ears.
(14th & 15th Am.)

Answer 12

PUBLIC functions - cities, counties, state institutions, officials acting in official capacity

LICENSING - granting monopolies and heavy regulation is NOT state action

ENCOURAGMENT (or facilitation or authorization) of discrimination by citizens

AID - excessive state financial entanglement

SHELLEY v. Kramer - “The 14th Amendment erects no shield against merely private conduct, however discriminatory or wrongful.”

Question 13

Establishment Clause Violations - Church and state can’t PEE in the same urinal.

Answer 13

• *P**URPOSE. Law or conduct must have a primarily secular purpose
• *E**FFECT. Primary or inevitable effect of law or conduct must neither advance nor inhibit nor endorse religion.
• *E**NTANGLEMENT. Law or conduct can’t foster excessive governmental administration or entanglement with religion

Question 14

ARTICLE III

Answer 14

Federal Judicial power extends to cases involving:
o Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and
o Disputes between states, states and foreign citizens, and citizens of diverse citizenship.

Question 15

Con Law

CASE OR CONTROVERSY REQUIREMENT

Answer 15

STANDING: Whether the plaintiff is the proper party to bring the matter to court for adjudication.

RIPENESS: Whether the federal government may grant a pre-enforcement review of a statute or regulation (before).

The court assesses TWO elements:
o The hardship that will be suffered if no pre-enforcement review is granted (the greater the hardship, the more likely it will be heard)
o The fitness of the issues and the record for judicial review (does the court have the information it needs to make a decision)

MOOTNESS: If events that occur after filing the lawsuit end the plaintiff’s injury, the case will have to be dismissed as moot.

**_There are THREE exceptions:_**
 o Wrongs which are capable of repetition but evading review will not be moot (Ex. Roe v. Wade: she could be pregnant again later).
 o Voluntary cessation: When a defendant voluntarily stops the offending practice but could resume at any time.
 o Class action suits: Main plaintiff’s moot claim will not make entire class action moot, if there is at least one plaintiff whose claim is not moot

Question 16

SUPREME COURT REVIEW

Answer 16

ORIGINAL JURISDICTION - in all cases affecting: ambassadors, public ministers, consuls, and those in which a state is a party.

APPELLATE JURISDICTION: All cases come to the United States Supreme Court by a writ of certiorari (most cases) or by appeal (rare cases):

“THE FINAL JUDGMENT” RULE: Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court (US Court of Appeals or three-judge panel).

REVIEW OF STATE COURT DECISION: For the Supreme Court to review a state court decision, there must not be an independent and adequate state law ground of decision.

Question 17

LOWER FEDERAL COURT REVIEW

Answer 17

1. SUITS AGAINST STATE GOVERNMENTS: Generally, federal and state courts may not hear suits against state governments.

2. Sovereign Immunity: The 11th Amendment prohibits federal courts from hearing a private party’s or foreign government’s claims against a state government. Sovereign immunity bars suits against states in state courts or federal agencies.

3. Exceptions: Explicit Waiver; Suit falling under Section 5 of 14th Amendment; The federal government may sue state governments; Bankruptcy proceedings

4. ABSTENTION: A federal court will temporarily abstain from resolving a constitutional claim when the deposition rests on an unsettled question of state law. In addition, federal courts may not enjoin pending state criminal proceedings (and in some cases civil proceedings involving an important state interest

Question 18

FEDERAL EXECUTIVE POWER

Answer 18

FOREIGN POLICY

o TREATIES: Agreements between the U.S. and a foreign country that are negotiated by the President and effective once ratified by the senate

o EXECUTIVE AGREEMENTS: An agreement between the U.S. and a foreign country that is effective when signed by the President and the head of the foreign nation

o BROAD POWERS OF PRESIDENT: The President has broad powers as Commander-in-Chief over American Troops in foreign countries.

DOMESTIC AFFAIRS
o PRESIDENTIAL IMMUNITY: The President has absolute immunity to civil suits for monetary damages for any action while in office, but no immunity from actions occurring prior to taking office.

o EXECUTIVE PRIVILEGE: Applies to presidential papers and conversations, but it is not absolute, and may yield to other important governmental interests (e.g., Nixon)

o PRESIDENTIAL POWER TO PARDON: For those accused or convicted of federal crimes: No pardon for civil crimes (only criminal); No pardons for offenses that lead to an impeachment; Only federal crimes (not state)

APPOINTMENT AND REMOVAL POWER

IMPEACHMENT AND REMOVAL: The President, the Vice-President, federal judges, and officers of the United States may be impeached or removed from office for treason, bribery, high crimes, and misdemeanors.

Question 19

FEDERALISM: PREEMPTION

Answer 19

The Constitution and the laws and treaties made pursuant to it are the supreme law of the land (via the Supremacy Clause of Article IV). There are three kinds of preemption:

1. EXPRESS PREEMPTION: When a federal statute explicitly states that the law wholly occupies the field, then the state law will be expressly preempted.
2. IMPLIED PREEMPTION: If federal laws and state laws are mutually exclusive, federal law trumps.
3. INTER-GOVERNMENTAL IMMUNITY: The federal government is immune from state taxation or regulation. States may not tax or regulate federal government activity. They cannot pay a state tax out of the federal treasury.

Question 20

FEDERALISM: DORMANT COMMERCE CLAUSE

Answer 20

State and local laws are unconstitutional if they place an undue burden on interstate commerce.

If the law burdens interstate commerce, it violates the Dormant Commerce Clause unless it is necessary to achieve an important governmental purpose (must be shown that there is no less discriminatory alternative that could achieve that objective).

TWO exceptions to violation:
o Congressional approval
o “Market place exception”: A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.

Question 21

FEDERALISM: PRIVELEGES & IMMUNUNITIES CLAUSE OF ART. IV

Answer 21

Privileges AND Immunities Clause of Article IV: No state may deprive a citizen of another state from the privileges and immunities it affords its own citizens

If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the Privileges and Immunities Clause unless it is necessary to achieve an important government purpose.

o The law must discriminate against out-of-staters;
o The discrimination must be with regard to civil liberties or important economic activities;
o Corporations and aliens cannot use it.

Question 22

FEDERALISM: FULL FAITH & CREDIT

Answer 22

Courts in one state must give full faith and credit to the judgments of courts in another state so long as:

o The court that rendered the judgment had jurisdiction over the parties and the subject matter;
o The judgment was on the merits; and
o The judgment was final.

Question 23

GOVERNMENT ACTION

Answer 23

The Constitution only applies to government action (federal, state, local governments). Private action need not comply.

Question 24

RATIONAL BASIS TEST

Answer 24

Laws will be upheld if they are rationally related to a legitimate, conceivable government purpose. The laws are usually valid – unless it is arbitrary or irrational.
o Burden of Proof: Party challenging the legislation

Question 25

INTERMEDIATE SCRUTINY

Answer 25

Laws will be upheld if they are substantially related to an important, actual government purpose.
o Burden of Proof: Probably the government, but unclear.

Question 26

STRICT SCRUTINY

Answer 26

Laws will be upheld if they are necessary to achieve a compelling and actual government purpose.
o Burden of Proof: Government

Question 27

THE TAKINGS CLAUSE

Answer 27

1. Is there a taking?
o Possessory: Government confiscation or physical occupation.
o Regulatory: If it leaves no reasonable economically viable use of the property (if it merely decreased the value of the property, it is not considered taking).

2. Is it for public use?
o Government may take private property so long as it is for public use.
o “Public use” standard is defined as a reasonable belief that the taking will benefit the public.

3. Is just compensation paid? Government can take but it must provide just compensation.
o The measurement is the loss to the owner, not the gain to the taker.
o The reasonable market value to the owner, not how much the taker will receive or is receiving

Question 28

FUNDAMENTAL PRIVACY RIGHTS

Answer 28

1. Right to Marry

2. Right to Procreate

3. Right to Custody of One’s Child

4. Right to Keep the Family Together

5. Right to Control the Upbringing of One’s Children

6. Right to Use and Purchase Contraceptives

7. Right to Abortion

8. Right to engage in private consensual homosexual activity

9. Right to refuse medical treatment

Question 29

FREEDOM OF ASSOCIATION

Answer 29

1. PROHIBIT OR PUNISH GROUP MEMBERSHIP: Laws that prohibit or punish group membership must meet strict scrutiny.

Must be proven that:
o The person is actively affiliated with the group;
o Knowing of its illegal activities; and
o The person has specific intent of furthering those illegal activities.

2. DISCLOSURE OF GROUP MEMBERSHIP: Laws that require disclosure of group membership, where such disclosure would chill association, must survive strict scrutiny.

3. PROHIBIT A GROUP FROM DISCRIMINATING: Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity.

Question 30

FREEDOM OF RELIGION

Answer 30

THE FREE EXERCISE CLAUSE:

o Cannot be used to challenge a neutral law of general applicability;
o The government may not deny benefits to individuals who quit their jobs for religious reasons; and
o Prohibits government from punishing someone on the basis of his or her religious beliefs

THE ESTABLISHMENT CLAUSE: Government can make no law respecting the establishment of religion.

o The Test (known as the Lemon Test):
• There must be a secular purpose for the law;
• The effect must be neither to advance nor inhibit religion; and
• There must not be excessive entanglement with religion.

o The government cannot discriminate against religious speech or among religions unless is passes a strict scrutiny analysis.
o Government sponsored religious activity in public schools is unconstitutional

Question 31

FREEDOM OF SPEECH: SYMBOLIC SPEECH

Answer 31

The government can regulate communicative conduct if it has an important interest unrelated to suppression of the message, and if the impact on communication is no greater than necessary to achieve the government’s purpose.

Question 32

FREEDOM OF SPEECH: PRIOR RESTRAINTS

Answer 32

A judicial order or administrative system that stops speech before it occurs.

o Court orders suppressing speech must meet *strict scrutiny:*
• Procedurally proper orders must be complied with until they are vacated or overturned; and
• A person who violates a court order is barred from later challenging it.
o Government can require a license for speech, but only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
• Licensing schemes must contain procedural safeguards, such as prompt determination of requests for licenses and judicial review.

Question 33

FREEDOM OF SPEECH: PLACE AVAILABLE FOR SPEECH

Answer 33

Public forums: Government properties that the government is constitutionally required to make available for speech
o Sidewalks, parks;
o Must be time, place, or manner regulations that serve an important government purpose and leave open adequate alternative places for communication;

Limited public forums: Government properties that the government could close to speech but chooses to leave open. Same rules apply as the open forum (regulations are the same when used as the public forum).

Non-public forums: Government properties that the government may close to speech. The government can regulate this speech as long as it is reasonable and viewpoint neutral. (Sidewalks on post office property; Airports; Military bases; Areas outside prisons and jails; and Advertising space on buses.)

Question 34

FREEDOM OF SPEECH: VAGUENESS & OVERBREADTH

Answer 34

Vagueness: A law is unconstitutionally vague if a reasonable person cannot tell what speech is being prohibited and what is allowed.

Overbreadth: A law is constitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Fighting Words: Words likely to invoke a violent response from others. Considered both vague and overbroad and are not constitutionally protected.

Question 35

Preemption & the Supremacy Clause

Answer 35

Preemption & the Supremacy Clause

Article VI provides that the Constitution and law made pursuant to it are the supreme law of the land. This clause renders any contarary state legislation void. A state may regulate more etensively than a federal statute so long as it does not frustrate the objective of the federal statute. A state may not, however, pass a aw that excludes conduct that is included in a federal law.

Express Preemption

Express preemption occurs when the federal law by words states that it is the only regulation allowed and state regulation is prohibited. Federal statute expressly says that federal law is exclusive in the area.

• narrowly construed:*The court will narrowly construe any express preemption clause in a federal statute.
• Environmental standards - States may set environment stricter than federal law unless clearly prohibted by Congress*

Implied Preemption

Implied preemption can occur in one of three ways: 1) in direct conflict - if the federal law is in direct conflict with state law (i.e. impossible to comply with both laws), the state law will be invalidated. State law substantially impedes federal objective - state law will be invalidated if it substantially interferes with a federal objective. Field Preemption - occurs when Congress clearly conveys (i.e. from the legislative history of a federal law) that it inteds the federal law to be the only regulation in the area then any state law iin the area is preempted.

Question 36

Treaties:

Answer 36

Treaties: A Treaty is an agreement between nations that MUST be advised and ratified by the US Senate (with a 2/3 vote) to become effective. They are negotiated by the President.

Example: International Atomic Energy Treaty, Treaty of San Francisco (Ending Pacific Theatre of WW2)

Question 37

Executive Agreement

Answer 37

Executive Agreement: An executive agreement is an agreement between foreign countries, and to become effective, need only the signatures of the heads of state of the involved countries. Senate ratification is not necessary.

Question 38

EXECUTIVE ORDER (CON LAW SUPPLEMENT)

Answer 38

Executive Order: By interpreting the “Take Care” Clause of the Constitution, a President may issue an order directing an executive office to perform some task or conform to some guideline. The President must find express support, either in a clause in the Constitution, or from some Congressional grant. These have the full weight of the executive branch because they are considered direct orders from the chief executive order, and are very rarely overturned judicially.

Examples: Executive Order 9066 (creating Japanese Internment Camps)

Question 39

COMMERCE CLAUSE (CON LAW SUPPLEMENT)

Answer 39

Commerce Clause: In order for a Congressional Law to be promulgated based on the Commerce Clause of the Constitution, the law may only regulate one of the following three categories:

a) The law may regulate the Channels of Interstate Commerce (or commerce between states and Native American Tribes). Examples of Channels are:

i) the Internet
ii) Highways
iii) Waterways
iv) Telephone or Telegraph Lines
v) Examples: Speed limits for boats and cars, Height and Safety regulations on telephone poles, Sales Tax on Internet Purchases, No prioritizing different types of internet traffic (Net Neutrality)

b) The law may regulate the Instrumentalities of Interstate Commerce or the Persons or Things in it. Examples of these are:

i) Instrumentalities: Trucks, Ships, Planes, Cars
ii) Persons: Drivers, Operators, Salespeople
iii) Things: Radio Waves, Insurance, Stocks, Debt, Anything intangible used for Interstate Commerce
iv) Examples: Types of Brakes on Trucks and Cars, Required number of life vests on boats, Black Boxes on planes, Training Requirements for drivers and operators, Telemarketer Restrictions, Securities Regulations

c) The law may regulate activities that have a substantial effect on interstate commerce. Such activities cannot contribute to interstate commerce through a cumulative effect though, they must directly affect interstate commerce by virtue of the nature of the activity.

i) Examples: Price Floors and Ceilings on Goods, Anti-Discrimination Laws covering Private Business (because they can affect employment and travels for people which are a part of interstate commerce).
ii) Not a substantial effect: Gun Ownership Restrictions, Gun Safety Zones